". . . to proclaim a new and general duty of protection in the law of tort, even to those who may be the particular seekers of protection based on specific hazards, could and would inevitably determine how the limited police resources of the community should be allocated and without predictable limits.[]
Before such extension of responsibilities should be dictated by the indirect imposition of tort liabilities, there should be a legislative determination that that should be the scope of public responsibility."
In other words, the court held that it is not the business of the judiciary to declare that the police are liable for not providing 24-hour protection to an individual who is receiving threats, and if there should be liability, the legislature should be the one making the determination.
The holding in Riss does not have much (if any) bearing on this case.
Neither a public entity nor a public employee is liable for failure to establish a police department or otherwise to provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service.
Under Illinois law, city and county governments are generally not liable for failing to supply police protection.1 Similarly, the governments are not legally liable for the injuries that police officers negligently cause while performing their official duties.2 A "special duty" exception to the rule exists which, if proved, would allow a victim of police negligence to sue. To invoke the exception, the victim must prove all four of the following elements:
- the police (government) was "uniquely aware" of the danger to the victim;
- the police did or failed to do some specific act;
- the act (or failure to act) was "affirmative or willful in nature;" and
- the victim was injured while he or she was under the direct and immediate control of the police (government's employees).3
Can the city police be liable for failing to respond to a crime victim who dials 911?
Sit and Watch for the Police
Sylvia Galuszynski and her mother heard noises in the evening of January 24, 1984, and discovered an intruder trying to break into their Chicago home.4 At 9:45pm, Sylvia dialed 911 to report the imminent invasion. The 911 operator, a police department employee, answered the call, took the information, and told Sylvia to "watch for the police" because they were on the way.
The police were not on their way; they did not arrive until 10:10pm. By then, the armed invaders had attacked and injured Sylvia and her mother, and had stolen and injured Sylvia and her mother, and had stolen money, jewelry, and other items. Could Sylvia and her mother sue the police for failing to promptly respond to the emergency 911 call?
The Illinois court recited the statutory law: "Neither a local public entity nor a public employee is liable... for failure to provide adequate police protection or service, [for] failure to prevent the commission of crimes, [or for] failure to apprehend criminals."5 The Court went on to say that "the duty of the police is to preserve the well-being of the community at large." That duty "is generally not owed to specific individuals."
Sylvia and her mother would lose their case under the general rule. But what about the "special duty" exception (set forth above)?
The court held that Sylvia and her mother had offered evidence for the first three elements of the "special duty" exception. Then came the bad news: they had no evidence or proof of the fourth element. The two victims could not show that they had been under the "direct and immediate control" of the police when they suffered their injuries. The police had not placed the two women into danger by anything the police had done. Therefore, the Court held, the police had owed no legal duty to respond to protect the women from the ongoing attack.
Ditched, Battered and Bewildered
Even when the police are on site, they have little duty to protect citizens. Valiant Poliny and Donald Nagolski were walking in Chicago on July 20, 1985, when Rolando Calderon attacked and beat them.6 Witnesses took Nagolski to the hospital, while Poliny followed Calderon up the street. Soon Poliny flagged a police car and led the two officers to Calderon.
Calderon was standing with some friends, one of whom was Jose Rosario. While the officers were arresting Calderon, Rosario and another man verbally abused Poliny and threatened to hurt him because he had helped the police arrest Calderon. Poliny asked the officers to help him get to the station house to file his complaint. He also asked the officers specifically not to leave him alone with Rosario. The officers refused Poliny's requests and left the scene. Rosario attacked and battered Poliny after the police were gone.
Poliny sued the officers and the police department for negligently failing to protect him from Rosario. The appellate court of Illinois upheld the trial court ruling: Poliny's case was dismissed.
Under the general rule, the Chicago police owed no duty to protect Poliny. The "special duty" exception also did not apply, because Poliny "was not in the immediate control of the police when he was attacked by Rosario."7 The fact that the police knew of the threats against Poliny but just left him alone on the street to face the hoodlums, did not move the court even to allow a trial against the police.
Fortunately, Sylvia Galuszynski and Valiant Poliny survived the attacks on them... no thanks to the 911 operators or to the police. Would the attacks have taken place if the intended victims had been equipped and ready to defend themselves with firearms?
1Leone v. City of Chicago, 619 N.E.2d 119, 121 (Ill. 1993); 745 Ill. Comp. Stat. 10/1-101, 10/4-102 (West 1992)
2Leone, 619 N.E.2d at 122.
3Id.
4The facts and law of this case are set forth in Galuszynski v. City of Chicago, 475 N.E.2d 960 (Ill. App. 1985).
5Galuszynski, 475 N.E.2d at 961, quoting the Local Government and Governmental Employees Tort Immunity Act, §4-102, now codified at 745 Ill. Comp. Stat. 10/4-102.
6The facts and law of this case are set forth in Poliny v. Soto, 533 N.E.2d 15 (Ill. App. 1998).
7Id. at 18.