Tort Immunity Act immunizes Village in wrongful death suit, Illinois appellate court holds 

An Illinois appellate court recently held the Village of Romeoville was immune from liability in a wrongful death suit, as the applicable provisions of the Local Governmental and Governmental Employees Act did not contain an exception for willful and wanton conduct.

In Pouk v. Village of Romeoville, 2010 WL 4398717 (3d Dist. 2010), the plaintiff, Marie Pouk, filed suit against the village,  village resident Gregory Gotches, and a landscaping company for the wrongful death of her daughter. The daughter was killed as she was turning left at an intersection. The plaintiff alleged that the view of the intersection was obstructed by bushes located on the Gotches' property.

Previously, the Village had been notified that bushes located on the Gotches' property obstructed the view of drivers turning left at the intersection. A village representative inspected the property and determined the bushes violated a village ordinance governing intersection visibility.

After being served with a notice of the violation, Mrs. Gotches hired a landscaping company to trim the bushes. After the trimming was complete, the village sent another notice to the Gotches residence that bushes continued to obstruct the intersection. The village code enforcement officer told Mrs. Gotches that he would discuss the matter with his supervisor and let the resident know if the bushes needed to be trimmed further. However, no one from the village contacted the Gotches after that.

In her complaint, the plaintiff alleged that bushes violated two sections of the village's code. The plaintiff further alleged that the village committed willful and wanton conduct by failing to advise the Gotches of whether further trimming was necessary and by failing to take further action to compel enforcement with the ordinances.

The Village then filed for summary judgment, asserting it was immune from liability under sections 2-103, 2-105, and 2-106 of the Tort Immunity Act.

Section 2-103 of the Act provides that "[a] local public entity is not liable for injury caused by […] failing to enforce any law." 745 ILCS 10/2-103. Section 2-105 provides immunity for injuries caused by its failure to adequately inspect property. 745 ILCS 10/2-105. Section 2-106 grants immunity to local public entities for negligent and intentional oral promises and misrepresentation. 745 ILCS 10/2-106. None of these sections provide an exception for willful and wanton conduct.

The trial court granted the village's motion and dismissed the plaintiff's complaint with prejudice.

On appeal, the plaintiff argued that section 2-202 of the Act applied. Unlike the previously described sections, 2-202 does contain an exception for willful and wanton conduct. Specifically, section 2-202 immunizes public employees for acts or omissions made "in the execution or enforcement of any law unless such act or omission constitutes willful or wanton conduct." 745 ILCS 10/2-202.

The appellate court affirmed the trial court's decision, finding that, based on the allegations in the plaintiff's complaint; section 2-202 did not apply. In so holding, the court noted that, in order to fall under section 2-202, a complaint must allege that the plaintiff's injury occurred while the public employees were "in the course of putting into effect a law."

The court further noted that the section did not apply in this case, because the plaintiff alleged that the public employees were doing nothing at the time of injury. Therefore, sections 2-103 and 2-105 applied.