Cadena v. Chicago Fireworks Manufacturing Co.

Annotate this Case
THIRD DIVISION
June 30, 1998

No. 1--95--3531

MANUEL ANTHONY CADENA, a minor by ) Appeal from the
his mother and next friend, ARELI ) Circuit Court of
MORENO; LARISA CADENA, a minor, by ) Cook County.
her mother and next friend, DELIA )
GARCIA; ANDRES CADENA, a minor, by )
his mother and next friend, DELIA )
GARCIA; and MARCELLA GARCIA, by )
her mother and next friend, DELIA )
GARCIA, )
)
Plaintiffs-Appellants, )
)
v. )
)
CHICAGO FIREWORKS MANUFACTURING )
COMPANY, a corporation, )
)
Defendant, )
)
and )
)
CITY OF CHICAGO HEIGHTS, )
)
Defendant-Appellee. )
)
__________________________________________)
)
DALE BAIKAUSKAS, individually and )
DALE BAIKAUSKAS, as father and )
next friend of CHRISTOPHER )
BAIKAUSKAS, a minor, )
)
Plaintiffs-Appellants, )
)
v. )
)
CHICAGO FIREWORKS MANUFACTURING )
COMPANY, a corporation, )
)
Defendant, )
)
and )
)
CITY OF CHICAGO HEIGHTS, a )
municipal corporation, ) Honorable
) Gary L. Brownfield,
Defendant-Appellee. ) Judge Presiding.

JUSTICE BURKE delivered the opinion of the court:
Plaintiffs Manual Anthony Cadena, Larisa Cadena, Andres Cadena, and
Marcella Garcia (Cadenas) and plaintiffs Dale Baikauskas and Christopher
Baikauskas (Baikauskases) appeal from an order of the circuit court granting
summary judgment in favor of defendant City of Chicago Heights (City) pursuant
to sections 4--102 and 5--102 of the Illinois Governmental and Governmental
Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/4--102, 5--102 (West
1993)) in the Cadenas' and Baikauskases' actions against it based upon claims of
negligence, wilful and wanton conduct, res ipsa loquitur, and strict liability
under the ultrahazardous activity doctrine. On appeal, plaintiffs contend that
the activities undertaken by the City during a Fourth of July fireworks display
did not constitute police or fire protection services under sections 4--102 and
5--102, respectively, of the Tort Immunity Act and, therefore, the City was not
immune from liability, and the City was engaged in an ultrahazardous activity in
displaying fireworks, thereby also precluding any immunity under the Tort
Immunity Act. For the reasons set forth below, we affirm.
On July 3, 1991, Chicago Fireworks Manufacturing Company, who is not a
party to this appeal, conducted a Fourth of July fireworks display at Bloom
Township High School in the City of Chicago Heights. The City's administrator,
Enrico Doggett (Doggett), was in charge of coordinating all activities
surrounding the fireworks display. Chicago Fireworks was responsible for putting
on the display on July 3, 1991, and had been responsible for the display from
1976 to 1992. Doggett had been involved in the City's Fourth of July firewords
event in his capacity as the City's administrator since 1975. Doggett's duties
included ensuring that, because of the large crowds estimated at between 12,000
and 15,000, that the police were on the site for security and fire department
personnel and emergency vehicles were on the site in case of an accident.
Doggett was also in charge of overseeing food vendors, a petting zoo, rides for
children in attendance, and entertainers. Doggett coordinated his activities
with Joseph Piunti (Piunti), the chief of the City's fire department, Larry
Heusman (Heusman), the chief of the paid-on-call division of the fire department,
and the assistant chief of the police department. Doggett was further
responsible for ensuring that the traffic department, which was a division of the
police department, had barricades on the site. The barricades were set up by
members of the paid-on-call division of the fire department. The procedures for
setting up the fireworks display and the barricades had been essentially the same
since Doggett began as the City's administrator in 1975, and "everyone knew where
the barricades went, *** how it was supposed to be set up." According to
Doggett, he was unaware of the procedures set out in the "National Fire
Protection Association" safety guidelines, but assumed that either the fire
protection officer or assistant chief of the fire department would have told him
if there were any codes which had to be followed. On July 3, 1991, the "Fire
Chief" wanted the western border of the barricades moved farther away from the
ignition site of the fireworks display and Doggett agreed to the change.
Doggett also stated that after an accident during the 1975 fireworks
display, which was held at the Bloom Township High School football field, the
display was moved in 1976 to a large field at the high school where the display
in 1991 was subsequently held. A perimeter was also established in 1976 and the
perimeter remained basically the same from then on, with minor variations that
were "sometimes made by *** [the owner of Chicago Fireworks], sometimes by
[Doggett], sometimes by the fire chief." Neither Heusman nor Piunti were aware
of any codes or regulations controlling the distance the barricades were to be
placed from the ignition site of the fireworks display in 1991.
On July 3, 1991, it rained at approximately 6 p.m. and, while it was
raining, workers from Chicago Fireworks placed tarps over the fireworks. During
the fireworks display, one of the fireworks misfired and landed in the crowd
which had gathered to view the display, injuring the Cadenas and Baikauskases.
On July 9, the Cadenas filed a complaint against Chicago Fireworks, alleging that
it was negligent based on Chicago Fireworks' act of firing fireworks in such a
manner as to cause the fireworks to explode near the spectators, failure to
properly protect the spectators, and failure to warn the spectators of the danger
that portions of the fireworks would fall into the spectators.
On December 30, 1991, the Baikauskases filed a complaint against Chicago
Fireworks and the City. Count I of the complaint alleged that Chicago Fireworks
was negligent in permitting the fireworks to explode within the crowd of
spectators, failing to adequately protect the spectators, and permitting the
fireworks to be ignited in an unsafe condition; counts II and III alleged that
the City was negligent and acted in a wilful and wanton manner in designating a
spectator viewing area too close to the point of ignition of the fireworks
display and in placing barricades too close to the ignition area of the fireworks
display.
On February 6, 1992, the Cadenas filed a second amended complaint, adding
the City as a defendant, and alleging, in count I, that the City and Chicago
Fireworks were negligent in causing the fireworks to explode in the vicinity of
the spectators, failing to protect the spectators from the ignited portions of
the fireworks, failing to warn the spectators of the danger, permitting the
fireworks to be ignited when wet, placing the barricades too close to the
ignition area of the fireworks, and designating a spectator viewing area too
close to the ignition area of the fireworks. Count II alleged that the City
acted in a wilful and wanton manner with a reckless disregard for the safety of
the spectators in designating a spectator viewing area too close to the ignition
area of the fireworks, placing barricades too close to the ignition area of the
fireworks, failing to warn spectators that ignited portions of the fireworks
would or could fall into the spectator area and failing to properly protect the
spectators from ignited portions of the fireworks. Count III alleged that the
City and Chicago Fireworks were negligent and liable under the Family Expense Act
for the same reasons as stated in count II. Count IV and V alleged that Chicago
Fireworks was liable under strict liability and products liability, respectively,
in using an unreasonably dangerous and defective firework. Count VI alleged that
the City and Chicago Fireworks were negligent under a theory of res ipsa loquitur
for the same reasons as stated in counts II and III. The remaining counts of the
second amended complaint, VII through XXII, repeated counts I through VI for each
individual Cadena plaintiff.
On February 11, 1992, the Baikauskases filed a motion to consolidate their
case with the Cadenas' case, which the trial court granted. The City
subsequently filed a motion to dismiss count II of the Baikauskases' complaint
alleging negligence, and a motion to dismiss counts I, III, VI, VII, IX, XII,
XIII, XIV, XVII, XVIII, XIX, and XXII of the Cadenas' second amended complaint
pursuant to section 2--615 of the Civil Practice Act (Act) (735 ILCS 5/2--615
(West 1992)), arguing that it was immune from both the Baikauskases' and Cadenas'
negligence claims pursuant to sections 3--106, 3--108 and 3--109 of the Tort
Immunity Act (745 ILCS 10/3--106, 3--108, 3--109 (West 1993)), which provided
immunity for injuries sustained on public property used for recreational
purposes, failure to supervise activity of use of public property, and injuries
sustained by any person who participated in a hazardous recreational activity,
respectively.
In response to the City's motion to dismiss count II of their complaint,
the Baikauskases argued that because the City was involved in a nongovernmental
function when it oversaw the fireworks display, it was not protected by the Tort
Immunity Act. The Baikauskases further argued that because the City was engaged
in an ultrahazardous activity in sponsoring the fireworks, it was strictly liable
for any injuries caused by that activity.
In the City's reply to the Baikauskases' response to its motion to dismiss
count II of their complaint, it argued that any distinction between governmental
and nongovernmental activities was irrelevant for purposes of the Tort Immunity
Act. The City also argued that the Baikauskases' complaint failed to allege that
the City was liable under an "ultrahazardous activity" theory; rather, their
complaint merely alleged that the City was negligent, and engaged in wilful and
wanton conduct.
During the pendency of plaintiffs' case in the trial court, another case
arising from the same incident, McLellan v. Chicago Fireworks Manufacturing Co.,
No. 91 C 4295, was filed in the U.S. District Court for the Northern District of
Illinois. The McLellan plaintiffs alleged that the City was liable to them based
upon the grounds of negligence, res ipsa loquitur, and wilful and wanton
misconduct. On September 21, 1994, the McLellan court granted the City's
subsequent motion for summary judgment based on sections 4--102 and 5--102 of the
Tort Immunity Act. In its order, the McLellan court, relying on Dockery v.
Village of Steeleville, 200 Ill. App. 3d 926, 558 N.E.2d 449 (1990), stated:
"The Dockery court reasoned that the crowd control and
traffic management at the Steeleville Fourth of July
celebration was a police function that has been
recognized as an important part of police service.
Accordingly, like the Village of Steeleville, the City
of Chicago Heights 'is immune from liability for failure
to provide adequate police protection or service.'
***
The reasoning of Dockery applies with equal force to the
Chicago Heights fire department. Therefore, it too is
immune from liability for failure to provide adequate
fire protection and service.
Plaintiffs maintain that defendant's arguments are
inapplicable because there is no immunity for injuries
caused by an inherently and abnormally dangerous or
ultrahazardous activity. In light of Dockery, we must
summarily reject plaintiffs' argument. The Dockery
court had the opportunity to hold that fireworks
displays are intrinsically and inherently dangerous, and
did not do so. We can go no further than Dockery.
***
Since all three counts of the plaintiffs' amended
complaint as they relate to the City of Chicago Heights
are concerned with inadequate police and fire services,
the City is entitled to summary judgment in its favor
and against plaintiffs on Counts 1 (Negligence), Count
2 (Res Ipsa Loquitur), and Count 3 (Wilful and Wanton
Misconduct) of the 'Amended Complaint At Law.' "
(Emphasis in original.)
On March 25, 1994, the Cadenas filed a response to the City's motion to
dismiss counts I, II, III, VII, X, XV, XVII, XXII, and XXIV of their complaint,
which were based on claims of negligence and wilful and wanton conduct, arguing
that the Tort Immunity Act did not provide the City protection from negligence
claims arising from its conduct. The Cadenas further argued that because a
similar motion to dismiss filed by the City in McLellan had been denied by the
federal court, the City's motion should also be denied in the present case. The
Cadenas also adopted the arguments set forth in the Baikauskases' response to the
City's motion to dismiss, i.e., that the City was involved in a nongovernmental
function when it oversaw the fireworks display and, therefore, was not protected
by the Tort Immunity Act, and the City was engaged in an ultrahazardous activity
in sponsoring the fireworks and, therefore, the City was strictly liable for any
injuries and not protected under the Tort Immunity Act.
On November 9, 1994, the City filed a motion for summary judgment against
the Cadenas and Baikauskases. The City argued that it was immune from liability
pursuant to sections 4--102 and 5--102 of the Tort Immunity Act and, as a result,
it could not be held liable for failure to provide police protection or fire
protection. The City contended that the deposition testimony of Piunti, acting
fire chief for the City, Heusman, the paid on-call fire chief for the City, and
Doggett, the City's administrator, showed that the City was only providing police
and fire protection services for crowd control, prevention of fire, and
preparation for the possibility of fire or injuries to the spectators present.
The City further argued that, under Dockery, the City was immune from liability
for providing police and fire protection during the fireworks display. The City
further argued that summary judgment should be granted to it based on the
McLellan court's finding that the City was immune from liability to persons
injured at the July 3, fireworks display pursuant to sections 4--102 and 5--102
of the Tort Immunity Act.
In response to the City's motion for summary judgment, the Cadenas argued
that: the City was engaged in an ultrahazardous activity and was therefore
strictly liable for any injuries caused by the fireworks display; the City was
not immune from liability under the Tort Immunity Act because it arbitrarily
designated an area for the crowd to be located and it voluntarily assumed a duty
to protect the crowd from a "hazardous recreational activity"; the City was not
immune from liability under sections 3--106 and 3--109 of the Tort Immunity Act,
which provide immunity for injuries sustained on public property used for
recreational purposes, and injuries sustained by any person who participated in
a hazardous recreational activity, respectively; and "[t]he fact that the Federal
court had decided a similar issue in a related case was completely unrelated and
irrelevant to the case at bar." On the same day, the Baikauskases filed a
response to the City's motion for summary judgment, adopting the Cadenas'
response, and arguing that the City was not protected by governmental immunity
because the City failed to raise governmental immunity in its answer and had
admitted that it was not engaged in a governmental activity at the time of the
accident.
In reply, the City contended that: Illinois case law did not support
plaintiffs' argument that the use of fireworks was an ultrahazardous activity;
it did not participate in any ultrahazardous activity because it merely sponsored
the fireworks display; it had not predicated its motion for summary judgment on
section 3--109 of the Tort Immunity Act and, therefore, the Cadenas' argument
relating to that issue was meaningless; and pursuant to sections 4--102 and 5--
102 of the Tort Immunity Act and the Dockery decision, it was immune from
liability for any injuries caused by the fireworks display on July 3, 1991.
After a hearing on the City's motion for summary judgment, the trial court
granted the motion, stating:
"The city seeks summary judgment on the ground
that it is immune from liability for failure to provide
adequate police and fire protection under sections 4--
102 and 5--102 of the Illinois Tort Immunity Act.
Section 4--102 provides immunity for a local
public entity's failure to provide adequate police
protection or service.
The plaintiff's [sic] complaint is based upon the
failure of Chicago Heights in providing adequate police
and fire protection services.
Crowd control and traffic management in a citywide
celebration are included in the phrase, 'police
protection or service.'
Therefore, the City of Chicago Heights is immune
from liability for failure to provide adequate police
protection or service.
5--102 establishes immunity from liability from
the Chicago Heights Fire Department or failure to
provide adequate fire protection service.
Therefore, Chicago Heights is immune from
liability for failure to provide adequate fire
protection under section 4--102 [sic].
Plaintiffs argue that this immunity does not apply
because fireworks displays are inherently and abnormally
dangerous and ultrahazardous activities.
However, Dockery versus Village of Steelville, 200
Ill. App. 3d, rejected that argument. Therefore, the
defendants' motions for summary judgment are granted."
This appeal followed.
Plaintiffs first contend that the activities undertaken by the City during
the July 3, 1991, fireworks display did not constitute police or fire protection
services protected under section 4--102 and 5--102, respectively, of the Tort
Immunity Act and, therefore, the City was not immune from liability. Plaintiffs
argue, inter alia, that: the Tort Immunity Act must be strictly construed against
the City to preclude providing immunity to the City; the City was not engaging
in mere crowd control and fire safety; an interpretation of the City's activities
as crowd control and fire protection would be overly broad and improperly provide
the City with absolute immunity; and the City was acting in a ministerial
capacity and thus not protected by the Tort Immunity Act.
The City contends, relying on Dockery and McClellan v. City of Chicago
Heights, 61 F.3d 577 (1995), that sections 4--102 and 5--102 of the Tort
Immunity Act provide absolute immunity for its activities during the fireworks
display.
Plaintiffs counter that sections 4--102 and 5--102 do not provide absolute
immunity because several exceptions to those sections, specifically the special
duty doctrine and wilful and wanton conduct by a local governmental entity, apply
to preclude immunity under the Tort Immunity Act. Plaintiffs further argue that
if section 4--102 provides the City with immunity for its negligent and wilful
and wanton conduct, the City is not immune because it was engaged in an
ultrahazardous activity.
"In reviewing a trial court's entry of summary judgment, the only issue on
appeal is whether 'the pleadings, depositions, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.' 735 ILCS 5/2--1005(c) (West 1992). A court must construe the pleadings,
depositions, admissions, and affidavits strictly against the movant and liberally
in favor of the opponent. Review of summary judgment rulings is de novo."
Barnett v. Zion Park District, 171 Ill. 2d 378, 384-85 (1996).
"The Tort Immunity Act adopted the general principle that local
governmental units are liable in tort, but limited this liability with an
extensive list of immunities based on specific government functions." Barnett
v. Zion Park District, 171 Ill. 2d 378, 386, 665 N.E.2d 808 (1996). "[T]he
purpose of the Tort Immunity Act is to protect local public entities and public
employees from liability arising from the operation of government." Eck v.
McHenry County Public Building Commission, 237 Ill. App. 3d 755, 758, 604 N.E.2d 1109 (1992). "Because the Tort Immunity Act is in derogation of the common law,
it must be strictly construed against a local public entity." Eck, 237 Ill. App.
3d at 761.
Section 4--102 of the Tort Immunity Act, provides:
"Neither a local public entity nor a public
employee is liable for failure to establish a police
department or otherwise provide police protection
service or, if police protection service is provided,
for failure to provide adequate police protection or
service, failure to prevent the commission of crimes,
failure to detect or solve crimes, and failure to
identify or apprehend criminals." 745 ILCS 10/4--102
(West 1993).
Section 5--102 of the Tort Immunity Act, provides:
"Neither a local public entity that has undertaken
to provide fire protection service nor any of its
employees is liable for an injury resulting from the
failure to suppress or contain a fire or from the
failure to provide or maintain sufficient personnel,
equipment or other fire protection facilities." 745
ILCS 10/5--102 (West 1993).
"Police protection services" under section 4--102 have been found to
include the following activities: police officers who were searching for a
missing person (Platacis v. Village of Streamwood, 224 Ill. App. 3d 336, 340, 586 N.E.2d 564 (1991)); the failure to prevent injuries not inflicted criminally
(Platacis, 224 Ill. App. 3d at 340, citing Dockery); the supplying of street
lights (Burley v. On Waterfront, Inc., 228 Ill. App. 3d 412, 592 N.E.2d 623
(1992)); the supplying of crossing guard service (Goebig v. City of Chicago, 188
Ill. App. 3d 614, 544 N.E.2d 1114 (1989); and "crowd control and traffic
management at a city-wide celebration involving a fireworks display (Dockery, 200
Ill. App. 3d at 929).
In Dockery, the Village of Steeleville, through its police department,
voluntarily assumed the duty to maintain crowd control and traffic management for
spectators at a fireworks display presented by the American Legion Post. A
spectator was injured when a firework misfired and landed in the crowd. The
injured spectator then sued the City of Steeleville, alleging that the City was
negligent. The trial court granted the City's subsequent motion for summary
judgment based on section 4--102 of the Tort Immunity Act. On appeal, in
affirming the trial court, the Dockery court stated:
"We think that crowd control and traffic
management at a city-wide celebration are included in
the phrase 'police protection or service' as found in
section 4--102 of the Tort Immunity Act because, in many
communities, these functions are recognized as important
parts of police services. Section 4--102 provides
immunity for a local public entity's failure to provide
adequate police protection or service. Plaintiff's
complaint does not allege that the Village committed
some affirmative act such as directing plaintiff to an
unsafe area to watch the fireworks display. Instead,
the complaint alleges that the Village provided
inadequate police protection to its citizens in that it
allowed them to watch, or failed to prevent them from
watching, the fireworks display from an unsafe area."
(Emphasis added.) Dockery, 200 Ill. App. 3d at 929.
In the present case, plaintiffs attempt to distinguish Dockery, arguing
that the "dangerous situation" in Dockery was "created by another," the American
Legion, whereas here the fireworks display was "put on" by the City, i.e., the
City sponsored and actively participated in the presentation and "public
relations" surrounding the July 3 fireworks display. We conclude, however, that
these "acts" did not constitute an affirmative act changing the nature of the
City's conduct in setting up the barricades for crowd control purposes. By
setting up the barricades, the City clearly was engaged in crowd control in
placing the barricades, an act which the Dockery court held to be "police
service" under section 4--102 (Dockery, 200 Ill. App. 3d at 929), setting the
parameters of where the spectators could not go, rather than affirmatively
directing them to an unsafe area. Thus, we find that the City's conduct falls
within those "police services" protected under section 4--102 of the Tort
Immunity Act and, as in Dockery, we hold that the City was immune from
plaintiffs' claims of negligence under section 4--102. Additionally, because
plaintiffs do not specifically separately argue the City's lack of immunity under
section 5--102, we need not address the scope of the City's immunity under that
section.
We briefly note that plaintiffs' argument that this interpretation would
provide the City with absolute immunity is without merit. While section 4--102
provides the City with immunity from negligence claims in providing police
services, the City cannot benefit from the Act's protection if the City's conduct
was wilful and wanton pursuant to section 2--202 of the Tort Immunity Act (745
ILCS 10/2--202 (West (1993)),[fn1] or a special relationship existed between the
police and the injured party. See Doe v. Calumet City, 161 Ill. 2d 374, 641 N.E.2d 498 (1994); Fatigato v. Village of Olympia Fields, 281 Ill. App. 3d 347,
666 N.E.2d 732 (1996); and Goebig, 188 Ill. App. 3d 614. We further briefly note
that the City also erroneously relies on Platacis for the proposition that the
immunity provided in section 4--102 is absolute, provides a blanket grant of
immunity for failure to provide police protection, and does not differentiate
among theories of liability, such as negligence or wilful and wanton conduct.
While it is true that the Platacis court stated that "section 4--102 of the Act
*** provides for immunity from liability both for ordinary negligence and for
wilful and wanton misconduct," our supreme court has, subsequent to the Platacis
decision, clarified conflicting appellate court decisions and held that section
4--102 does not provide immunity for a local governmental entity or its employees
where a plaintiff either proves facts that show the existence of a special duty
and proves simple negligence or proves willful and wanton conduct alone. Doe,
161 Ill. 2d at 390; see also Fatigato, 281 Ill. App. 3d at 353-56.
We also reject plaintiffs' argument that the City's conduct in setting up
the barricades was ministerial in nature and that the City, in promoting and
sponsoring the fireworks display, created a hazardous condition, both of which
are not encompassed in the immunity provided pursuant to section 4--102. More
specifically, plaintiffs argue in their opening brief "that while the decision
by the City to undertake a fireworks display *** may have been a discretionary
action, the implementation of that activity was not a matter of discretionary
authority and necessitated a duty upon the City to exercise its performance with
all reasonable care in a non-negligent manner."
The City contends a " 'discretionary/ministerial' distinction [should not]
be imposed upon 4-102" because "there is nothing in the language of *** [section
4--102] that would warrant doing so." The City also points out that "immunity for
discretionary acts *** appears in 2-201 of the Act," and argues that "[t]he
grant of immunity in one provision of the Act cannot reasonably be read as a
limitation on immunities provided in other provisions of the Act." (Emphasis in
original.)
Plaintiffs counter, in their reply brief, that the City "misapprehends the
nature of Plaintiffs' argument concerning the distinction the courts have made
between discretionary and ministerial actions of government." Rather, plaintiffs
maintain that their argument is that "the discretionary/ministerial distinction
is used by the courts as a tool of statutory construction" in order "to separate
out those kinds of activities that could conceivably come under the relevant
statutory provision by a broad interpretative reading of the language, but which
are not properly the subject of the immunity, as such a reading to include those
kinds of activities would tend to swallow the exception to the general rule of
liability established by the Tort Immunity Act, and thereby render the entire
provision effectively meaningless." Quoting Eck, plaintiffs further maintain
that " 'it is apparent from a review of the statute as a whole that the
legislature contemplated the discretionary/ministerial distinction when it
drafted the provisions of the Act.'" In support of their argument, plaintiffs
cite to a number of cases involving the applicability of section 2--202 immunity
to public employees for acts or omissions "in the execution or enforcement of any
law." 745 ILCS 10/2--202 (West 1993).
We find that notwithstanding plaintiffs' assertion that they do not seek
to impose a "discretionary/ministerial" exception to section 4--102 immunity, to
use this dichotomy as a "tool" in construing that section would have the same
effect as imposing it as an exception, which we deem inappropriate. In Epstein
v. Chicago Board of Education, 178 Ill. 2d 370, 380-81 (1997), involving the
application of section 3--108(a) immunity to a local public entity or public
employee for an "injury caused by a failure to supervise an activity on or the
use of any public property" (745 ILCS 10/3--108(a) (West 1993)), the court
rejected the rationale of the Eck court underlying the Eck court's conclusion
(which was based upon that court's belief "that the Tort Immunity Act must have
implicitly retained *** [the] common law discretionary/misisterial disctinction
because that distinction 'continues to be recognized' in the cases"), that
supervision of preplanned construction activities is a ministerial task for which
liability must be imposed regardless of the immunity granted in section 3--
108(a)." The Epstein court found the Eck court's analysis "seriously flawed,"
stating that "[t]he Eck court's importation of the common law
discretionary/ministerial distinction into section 3-108(a) is not appropriate,"
and that "[t]here is nothing in section 3--108(a)'s language which even remotely
suggests that it does not apply to ministerial tasks" and that such a limitation
could not be read into that section. Epstein, 178 Ill. 2d at 380-81. The
Epstein court further compared the immunity provided for in sections 2--209 and
2--201 for discretionary functions with the immunity provided for in section 3--
108(a), and stated that "[t]hese immunities operate independently of one
another," that "the discretionary immunity provided for in sections 2--209 and
2--201 does not in any way operate to remove or otherwise limit the immunity
granted in section 3--108(a) for the failure to supervise," and that, "[m]ore
particularly, there is no language in sections 2--109 or 2--201 that imposes
liability for ministerial tasks, so those provisions cannot be used to override
section 3--108(a)'s grant of immunity for the failure to supervise." Epstein,
178 Ill. 2d at 381-82. The Epstein court therefore overruled Eck and its progeny
for this reason and others. Epstein, 178 Ill. 2d at 382.
In the case at bar, we find the Epstein court's analysis applicable to any
attempt to import the discretionary/ministerial distinction, as the Eck court did
regarding section 3--108(a), into section 4--102. Moreover, as discussed above,
the exceptions to section 4--102 immunity are well settled, i.e., wilful and
wanton conduct pursuant to section 2--202 or the judicially created special duty
exception.
Plaintiffs further urge this court to declare that not all "police
protection service" activities, such as routine elements of a police officer's
official duties, are provided immunity under section 4--102, as has our courts
in cases involving section 2--202 of the Act (immunity provided to public
employees for their acts or omissions in the execution or enforcement of any
law). Plaintiffs further argue that the City was engaged in an ultrahazardous
activity which should be an exception to section 4--102 immunity. We need not
make such determinations, however, because it is clear, as dicussed above, that
crowd control is conduct provided immunity pursuant to section 4--102 and, as
more fully discussed below, the displaying of fireworks is not an ultrahazardous
activity.
Lastly, as to this issue, plaintiffs, relying on Snyder v. Curran Township,
167 Ill. 2d 466 (1995), and Eck, argue that "even were it so that the vernacular
inclusion of crowd control in the term 'services' [under section 4--102] were
justified, the sponsoring and promotion of a fireworks display *** cannot
withstand such tenuous inclusion," and quoting Snyder, state that "'"when a city
creates a hazardous condition and someone is injured as a consequence it must
respond in damages, just as others are required to do."'" We find, however, that
Snyder is distinguishable because that case involved the applicability of
sections 2--109 and 2--201 (immunity for discretionary functions) in conjunction
with the Illinois Vehicle Code and the Illinois Manual on Uniform Traffic Control
Devices, which prescribed "tailored statutory and regulatory guidelines" as
constraints on the decisions of officials in erecting traffic signs. Snyder, 167 Ill. 2d 474-75 In the present case, as dicusssed above, sections 2--109 and 2--
201 pertaining to discretionary acts are not involved here, but rather section
4--102 activities. Moreover, even were we to consider plaintiffs' argument,
they have failed to cite to any specific governmental regulation or code with
which the City failed to comply. Plaintiffs merely make a passing reference in
their brief to the safety guidelines established by the National Fire Protection
Association, without indicating whether it is a private, federal or local
governmental organization and that the City was required to follow the
Association's guidelines. Plaintiffs also merely stated at oral argument that
the "Fireworks Display Use and Sale Acts" (425 ILCS 30/1 et seq., 35/1 et seq.)
were the statutes the City was required to follow "before any fireworks display
can be done," without directing this court to any specific language in those
provisions. Accordingly, there is no indication that the City violated any
specific mandate. Further, as also noted above, Eck has been overruled
specifically with respect to the importation of a discretionary/ministerial
distinction to section 3--108(a) of the Act, and, as we have determined in the
present case, that distinction is inapplicable to section 4--102. Plaintiffs
therefore have failed to cite to any controlling authority in support of their
"promoting and "sponsoring" argument as a basis for an exception to the City's
immunity under section 4--102.
Plaintiffs next contend that the display of fireworks is an ultrahazardous
activity, and urge that this court declare "the display and demonstration of
fireworks before a crowd of spectators to be an ultrahazadous activity and an
exception to section 4--102 immunity. Plaintiffs argue that fireworks displays
are an ultrahazardous activity because (1) the detonation of explosives has been
found to be ultrahazardous and fireworks are a form of explosives; (2) the
absolute liability which attaches to employers or property owners authorizing
inherently dangerous activity is directly analogous to the operation of the
ultrahazardous doctrine and property owners have been found vicariously liable
for fireworks displays on their property; (3) the Illinois legislature has
regulated the use of fireworks; and (4) other jurisdictions have found fireworks
displays to be ultrahazardous either explicitly or implicitly. Plaintiffs also
contend that pursuant to Clark v. City of Chicago, 88 Ill. App. 3d 760, 410 N.E.2d 1025 (1980), a local governmental entity is not protected under sections
4--102 and 5--102 when engaged in an ultrahazardous activity.
The City argues that this issue is not properly before this court because
plaintiffs did not plead an ultrahazardous claim in their complaints; only one
jurisdiction has found fireworks displays to be ultrahazardous, and the case
which decided that issue is distinguishable from the case at bar; and under
Illinois law and sections 519 and 520 of the Restatement (Second) of Torts, the
presentation of a fireworks display is not an ultrahazardous activity.
Plaintiffs counter that this issue is properly before this court because
their ultrahazardous activity claim was adequately pled before the trial court,
the City responded to the ultrahazardous activity issue in its pleadings and the
trial court made an explicit ruling against finding fireworks displays an
ultrahazardous activity. Plaintiffs also contend that under Illinois Supreme
Court Rule 366, this court can grant plaintiffs the opportunity to amend their
pleadings to include an ultrahazardous claim.
The record shows that while plaintiffs did initially plead an
ultrahazardous activity claim, they supported that claim with allegations of
negligence instead of allegations of strict liability and allegations that
fireworks are an ultrahazardous activity. The City, however, failed to object
to plaintiffs' insufficient pleading and the trial court ruled that the
displaying of fireworks is not an ultrahazardous activity. Because the defect
complained of in plaintiffs' complaints was not objected to in the trial court
and, therefore, the City's complaint that plaintiffs failed to properly plead a
cause of action alleging that fireworks displays are an ultrahazardous activity
is deemed waived. Alimissis v. Nanos, 171 Ill. App. 3d 1005, 1009, 525 N.E.2d 1133 (1988). Accordingly, notwithstanding any deficiency in plaintiffs'
pleadings, we will address this issue.
Illinois courts have either implicitly or explicitly adopted the
Restatement (Second) of Torts in analyzing whether an activity should be
considered ultrahazardous. See Miller v. Civil Constructors, Inc., 272 Ill. App.
3d 263, 269, 651 N.E.2d 239 (1995); Continental Building Corp. v. Union Oil Co.,
152 Ill. App. 3d 513, 516, 504 N.E.2d 787 (1987); Fallon v. Indian Trail School,
148 Ill. App. 3d 931, 933, 500 N.E.2d 101 (1986). Section 519 of the Restatement
states the following principle: "One who carries on an abnormally dangerous
activity is subject to liability for harm to the person, land or chattels of
another resulting from the activity, although he has exercised the utmost care
to prevent the harm." Restatement (Second) of Torts 519 (1977). Section 520
sets forth the following factors to be considered in determining whether an
activity is abnormally dangerous or ultrahazardous:
"(a) existence of a high degree of risk of some
harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it
will be great;
(c) inability to eliminate the risk by the
exercise of reasonable care;
(d) extent to which the activity is not a matter
of common usage;
(e) inappropriateness of the activity to the place
where it is carried on; and
(f) extent to which its value to the community is
outweighed by its dangerous attributes." Restatement
(Second) of Torts 520 (1977).
"The terms 'ultrahazardous,' 'abnormally dangerous,' or 'intrinsically
dangerous,' as traditionally used, refer to that type of danger which is inherent
in the instrumentality itself at all times and do not mean danger which arises
from mere casual or collateral negligence of others with respect to it under the
particular circumstances." Fallon, 148 Ill. App. 3d at 935. The Miller court,
in holding that the use of firearms is not an ultrahazardous activity, described
the following approach in analyzing whether an activity should be considered
ultrahazardous:
"While all of these [Restatement] factors are
important and should be considered, ordinarily the
presence of more than one factor, but not all of them,
will be necessary to declare the activity ultrahazardous
as a matter of law so as to hold the actor strictly
liable. The essential question is whether the risk
created is so unusual, either because of its magnitude
or because of the circumstances surrounding it, as to
justify the imposition of strict liability even though
the activity is carried on with all reasonable care.
[Citation.] Considerations of public policy also enter
prominently into the decisions by our courts to impose
strict liability (at least in product liability cases).
[Citation.] Particular consideration is also given to
the appropriateness of the activity to the place where
it is maintained, in light of the character of the place
and its surroundings ***." Miller, 272 Ill. App. 3d at
269.
Based on the factors listed in section 520 of the Restatement (Second) of
Torts, we find that the displaying of fireworks is not an ultrahazardous
activity. While plaintiffs argue that because the detonation of explosives has
been found to be ultrahazardous and fireworks are a form of explosives, therefore
this court should find that fireworks displays constitute an ultrahazardous
activity, this comparison alone is not enough to support a finding that a
fireworks display is an ultrahazardous activity under an analysis of the factors
listed in section 520 of the Restatement (Second) of Torts. While factors (a)
and (b) of the Restatement are arguably met because there exists a high degree
of risk of some harm to a person during a fireworks display, and the likelihood
that the harm that results from it will be great because of the explosive nature
of fireworks, the other factors listed in the Restatement are not met. Under
factor (c) the exercise of reasonable care in displaying fireworks will
significantly reduce the risks involved. Moreover, section (c) does not require
the reduction of all risk, and indeed, there exists significant risk using a
firearm, an activity which this court has previously determined is not an
ultrahazardous activity. Miller, 272 Ill. App. 3d at 270-71. Under factor (d),
while displaying fireworks is not a common activity undertaken by a large amount
of individuals, certainly many individuals view them and many municipalities
display fireworks. Thus, fireworks displays are a matter of common usage. Under
factor (e), we assume that the location was appropriate for the fireworks display
in the absence of factual allegations in plaintiffs' complaint specifically
describing the area as inappropriate for fireworks displays. See Miller, 272
Ill. App. 3d at 271. Lastly, we determine, based on the fact that the general
public enjoys fireworks displays to celebrate every July 4, they are of some
social utility to communities. Therefore, we find that the value of the
fireworks display is not outweighed by its dangerous attributes. Accordingly,
we find that a fireworks display is not an ultrahazardous activity as a matter
of law.
We also reject plaintiffs' argument that the absolute liability which
attaches to employers or property owners who authorize inherently dangerous
activity is directly analogous to the operation of the ultrahazardous doctrine.
Plaintiffs argue that because property owners have been found vicariously liable
for fireworks displays on their property, this court should find that the display
of fireworks is an ultrahazardous activity. We find that the analysis utilized
under the "inherently dangerous activity" as it relates to property owners,
however, is not substantially similar to the analysis utilized under the
ultrahazardous doctrine. The "inherently dangerous activity" doctrine is
analyzed under section 427 of the Restatement, which provides:
"One who employs an independent contractor to do work
involving a special danger to others which the employer
knows or has reason to know to be inherent in or normal
to the work, or which he contemplates or has reason to
contemplate when making the contract, is subject to
liability for physical harm caused to such others by the
contractor's failure to take reasonable precautions
against such danger." Restatement (Second) of Torts
427 (1977).
This doctrine is clearly distinct from the ultrahzardous activity doctrine set
forth in section 520 of the Restatement because while an activity may be
considered inherently dangerous, the imposition of strict liability under an
ultrahazardous activity theory may not be warranted in certain situations. See
Miller, 272 Ill. App. 3d at 270 (where the court stated that the use of firearms
has been classified as highly dangerous but their use does not constitute an
ultrahazardous activity). In addition, liability under section 427 can be
avoided by taking reasonable precautions against the danger, whereas under the
ultrahazardous doctrine, reasonable precautions will not preclude the imposition
of liability.
We further reject plaintiffs' argument that because the Illinois
legislature has imposed regulations on the use of fireworks and other
jurisdictions have found fireworks displays to be an ultrahazardous activity,
this court should also find such activity to be considered ultrahazardous.
Plaintiffs' argument that the Illinois legislature has regulated the use of
fireworks, however, supports the opposite conclusion. While plaintiffs are
correct in stating that under the Fireworks Regulation Act (425 ILCS 30/1 et seq.
(West 1993)), and the Fireworks Use Act (425 ILCS 30/35/0.01 et seq. (West
1993)), the Illinois legislature has regulated the use of fireworks, the
legislature did not, when passing these acts, determine that the displaying of
fireworks should be considered ultrahazardous, and we also, as discussed above,
do not find them ultrahazardous.
We further briefly note that we find plaintiffs' contention, that other
jurisdictions have found the displaying of fireworks to be an ultrahazardous
activity, unpersuasive. As the City argues, only one jurisdiction has explicitly
found that such activity is ultrahazardous. See Klein v. Pyrodyne Corporation,
117 Wash. 2d 1, 810 P.2d 917 (1991). We decline to follow Klein, and disagree
with that court's determination that the risk involved in fireworks displays
cannot be sufficiently reduced and that the value of fireworks displays to the
community does not outweigh their dangerous attributes. While the other
jurisdictions that plaintiffs cite do state that fireworks are dangerous, such
a determination is not enough to find that the displaying of fireworks is an
ultrahazardous activity. See Hughes v. Star Homes, Inc., 379 So. 2d 301 (Miss.
1980); Alpha Enterprises, Inc. v. City of Houston, 411 S.W.2d 417 (Tex. Civ. App.
1967); Riley v. McGee, 427 So. 2d 509 (La. Ct. App. 1983).
We also briefly note that plaintiffs' reliance on Clark, in support of its
argument that Clark "declare[s] a rule that has been referred to as an
'ultrahazardous exception' to the Tort Immunity Act," i.e., "a municipal entity
can be held liable for injury resultant from inherently dangerous or
ultrahazardous activity whether performed by an employee or independent
contractor" (Clark, 88 Ill. App. 3d at 764), is misplaced. In Clark, the City
of Chicago was held strictly liabile to the plaintiff for injuries suffered after
a piece of crane, which was being used to demolish a building, fell on the
plaintiff. In so holding, the Clark court found that sections 2--109, 2--201,
2--202, 2--206 and 3--108 of the Tort Immunity Act were inapplicable to the
accident. Finding no provision of the Act applied, the Clark court relied on the
common law. Here, the City's actions do fall under a provision of the Act,
namely section 4--102.
Lastly, we briefly note that plaintiffs failed to set forth the standard
of review in their brief and merely stated at the conclusion of the brief that
"summary judgment is a drastic remedy which should not be employed unless the
movant's right is clear and free from doubt" and that "[t]he case at bar falls
very short of that standard"; plaintiffs' arguments were structured upon their
contentions that the trial court incorrectly interpreted the law and its
"interpretation of the City's activities" was not justified by the record.
Notwithstanding plaintiffs failure to specifically argue that genuine issues of
material fact existed precluding summary judgment, we find, based on our decision
in this cause, that in fact no genuine issues of material fact existed and that
the trial court properly granted summary judgment.
For the reasons stated, the judgment of the circuit court is affirmed.
Affirmed.
McNAMARA and CERDA, JJ., concur.
[fn1]In a footnote in their reply brief, plaintiffs state that "if the
court should, however, find that the conduct of the Defendant in connection with
the fireworks display is subsumed within the phrase 'police protection service'
and that no ultrahazardous activity exception applies, the trial court's decision
was still in error as it improperly dismissed the wilful and wanton counts of
Plaintiffs' complaints (counts that, it will be noted, were not even part of
Defendant's motion but rather were disposed of by the court at the hearing when
asked by Defendant if the ruling applied to the wilful and wanton counts) because
if such activities are to be regarded as 'police protection service' then 2-202
of the Tort Immunity Act applies and specifically excepts wilful and wanton
conduct from immunization." Beyond this statement, plaintiffs fail to make
specific legal argument and to cite to authority. Accordingly, plaintiffs have
waived this issue. Saldana v. Wirtz Cartage Co., 74 Ill. 2d 379, 385 N.E.2d 664
(1978).


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