dissenting:
On April 24, 1995, Renee Kazmierowski (decedent) suffered an asthma attack at her apartment in Chicago. Decedent called 911 and stated: “I need help. I’m having an asthma attack. I think I’m going to die. Please hurry.” The 911 operator told decedent that paramedics were on the way, but failed to keep decedent on the phone while the paramedics were responding. When the defendant paramedics arrived at the reporting apartment, they knocked loudly but received no response. A next-door neighbor escorted one of the responding officers through his apartment to check the back door of the reporting apartment, but the officer received no response there either. The neighbor told the paramedics that in the apartment lived a young couple who appeared to have no medical problems. The paramedics called the dispatcher, who confirmed that they were at the correct address. Concluding that there was no indication that they were needed at the address, the paramedics reported back in service. Later that day, the defendant paramedics were again called to the same apartment. This time, a man let them into the apartment and showed them on the floor the dead body of his girlfriend, who had died of an asthma attack.
The majority holds that the complaint filed by the administrator of decedent’s estate adequately alleged willful and wanton misconduct under section 17(a) of the Emergency Medical Services (EMS) Systems Act (EMS Act) (210 ILCS 50/17(a) (West 1994)). Contrary to the majority’s holding, this statutory section does not even apply to this case.
Section 17(a) states that a person who “provides life support services” shall not be liable for the results of their acts or omissions unless those acts or omissions are “inconsistent with the person’s training or constitute willful or wanton misconduct.” 210 ILCS 50/17(a) (West 1994). The majority errs in holding that the defendants in this case provided life support services within the meaning of the statute. The statute defines life support services as “emergency medical care,” and lists as examples of such services “airway management, cardiopulmonary resuscitation, control of shock and bleeding and splinting of fractures.” 210 ILCS 50/4.02, 4.06, 4.20 (West 1994). According to the allegations of the complaint, the defendant paramedics provided no life support services to the decedent. Although the 911 dispatcher promised to provide such services, the services were never provided because the paramedics did not locate the decedent. The majority seems to believe that because the statute applies to the transportation of patients, it necessarily applies to the locating of patients as well. There is absolutely nothing in the statute to support such a reading. Defendants never even began to provide life support services, because they did not even see the patient. Because the statute immunizes only “acts or omissions in providing [life support] services,” the statute does not apply to any acts or omissions of the instant defendants, whether willful and wanton or otherwise. 210 ILCS 50/ 17(a) (West 1994).
The City argues, however, that even if this immunity statute does not apply, it is still immune from liability in the instant case under the common law “public duty” rule. The public duty rule prevents units of local government from being held liable for their failure to provide adequate governmental services such as police and fire protection. Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 345 (1998); Leone v. City of Chicago, 156 Ill. 2d 33, 37 (1993); Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 509 (1990). The rationale for the rule is that the duty of government to provide such protective services is owed to the public at large and therefore takes precedence over any duty owed to a particular plaintiff. Zimmerman v. Village of Skokie, 183 Ill. 2d 30, 44 (1998); Harinek, 181 Ill. 2d at 345. The public duty rule exists independently of any statutory immunities and notwithstanding the abolition in Illinois of common law sovereign immunity. Zimmerman, 183 Ill. 2d at 45-46; Harinek, 181 Ill. 2d at 345, 347; Huey v. Town of Cicero, 41 Ill. 2d 361, 363 (1968). Under the public duty rule, then, the City is presumptively immune from liability for its failure to promptly locate and treat the decedent.
This court has recognized, however, an exception to the public duty rule known as the “special duty” doctrine. Under this doctrine, a municipality may be held liable for its failure to provide adequate governmental services if the legislature has not granted immunity to the municipality. Harinek, 181 Ill. 2d at 347. To invoke the special duty doctrine, a plaintiff must prove the following elements:
(1) that the municipality was uniquely aware of the particular danger or risk to which the plaintiff was exposed;
(2) that the municipality engaged in specific acts or omissions that were affirmative or willful in nature; and
(3) that the injury occurred while the plaintiff was under the direct and immediate control of municipal employees or agents.
See Leone, 156 Ill. 2d at 37; Burdinie, 139 Ill. 2d at 508. For example, in Leone v. City of Chicago, 156 Ill. 2d 33 (1993), this court found a special duty where a police officer directed the plaintiff to stand between her car and his police car, which was then struck from behind, injuring her.
Assuming arguendo that the complaint in the instant case satisfies the first of the requirements for a special duty, I would hold that it fails to satisfy the remaining elements. The complaint fails to establish that the City or its employees engaged in affirmative or willful acts or omissions in connection with decedent’s death. The complaint simply alleges that the 911 dispatcher failed to keep decedent on the phone while the paramedics were responding and that the paramedics failed to try the doorknob in order to enter decedent’s apartment. At most, these allegations show that the city employees neglected to perform certain tasks. There is no indication of a conscious decision by the employees not to perform the tasks. Rather, the employees attempted to locate decedent but neglected to try the doorknob to gain entry to her dwelling. This conduct was neither affirmative nor willful.
Furthermore, the complaint fails to adequately allege that decedent was under the direct and immediate control of the City. Although decedent called 911 for assistance, the paramedics had not located her and were not physically in her presence at the time of her death. In Doe v. Calumet City, 161 Ill. 2d 374 (1994), this court refused to find a special duty where police officers failed to enter an apartment to prevent a violent crime that was occurring. Doe, 161 Ill. 2d at 387. We held that because the officers had not initiated the circumstances that brought harm to the victims, the victims were not under the officers’ direct and immediate control. Doe, 161 Ill. 2d at 387. Similarly, in the instant case the City had no part in initiating the harm that befell decedent. Although the complaint may establish that the City employees performed their duties incompetently, it fails to establish that they owed decedent a special duty. The public duty rule therefore immunizes the City from liability for her death.
For these reasons, I respectfully dissent.
JUSTICES BILANDIC and RATHJE join in this dissent.