specially concurring:
With this case has gone another chance to acknowledge that the common law special duty exception is a legal dead letter. Were there doubt about the exception’s nonviability — and the court not complicit in its recognition as a means of skirting statutory immunities — reason might arguably exist to ignore the fact. But the exception, operating as it had at common law, did not survive the constitutional abolishment of sovereign immunity. The failure to see that has resulted, unfortunately, in the muddled jurisprudence that is, today, the law of municipal liability in Illinois.
Far from being "legally irrelevant” here (see 168 Ill2d at 327-28), the special duty exception would be the only means by which the negligence Calloway alleged could be actionable. As the negligence counts she alleged must be addressed, the exception’s viability must be considered.
In the end, I agree in the judgment today affirming the dismissal of those counts. But, as I explain, I do so for reasons entirely different from the majority’s. I otherwise join in the rest of today’s decision that Calloway has alleged an action for willful conduct against Effingham County and Kinkelaar as its sheriff under the Domestic Violence Act.
Why the Special Duty Exception Must Be Considered
The nature of the motion by which Calloway’s complaint was dismissed bears directly upon the special duty exception being at issue. In lieu of answering the allegations of negligent and willful conduct made against them, Effingham County and Kinkelaar moved for a section 2—619(a)(9) dismissal. The "affirmative matter” asserted to "avoid! 1 *** or defeat! ]” Calloway’s claims (see 735 ILCS 5/2—619(a)(9) (West 1992)) were principles of common law and statutory governmental immunity.
Governmental tort immunity has been recognized to be "affirmative matter’’ upon which a section 2 — 619(a)(9) motion may be grounded. (See Midwest Bank & Trust Co. v. Village of Lakewood (1983), 113 Ill. App. 3d 962, 970-71.) But a section 2—619 motion is a fact, not a pleading, motion (see 4 R. Michael, Illinois Practice § 41.8 (1989)), despite occasional suggestion to the contrary (see, e.g., 168 Ill. 2d at 318, 325-26). Though appropriate when an immunity defense calls for facts to show that conduct was within the scope of governmental authority, the motion’s use to assert the mere "fact” of governmental status, as Effingham County and Kinkelaar did, is problematic. The main reason is that such use undermines operation of the burdens that section 2—619(a)(9) normally imposes (see 4 R. Michael, Illinois Practice § 41.8 (1989) (explaining that the burdens make the motion not unlike one for summary judgment)).
It is possible, though tortured, to say that Effingham County and Kinkelaar’s burden under the motion — raising the issue of governmentalness — was satisfied without need for affidavit or other proof, Calloway having alleged it in her complaint. (See, e.g., Kedzie & 103rd Currency Exchange, Inc. v. Hodge (1993), 156 Ill. 2d 112, 116.) But it makes no sense to speak of what would be Calloway1 s resulting burden to satisfy to avoid dismissal. Calloway could not have presented "proof denying the facts alleged or establishing facts obviating the grounds of defect.” (See 735 ILCS 5/2—619(c) (West 1992).) The motion raised but a legal challenge to negate liability, grounds better suited to a section 2—615 pleading-based motion (735 ILCS 5/2—615 (West 1992)). See 4 R. Michael, Illinois Practice § 41.8, at 333 n.24 (1989) (criticizing use of section 2—619(a)(9) motions in such situations).
That points to what issues must be addressed to properly dispose of this appeal. Granting the section 2 — 619(a)(9) motion, of course, meant that Calloway’s complaint should be dismissed. (See 4 R. Michael, Illinois Practice § 41.9 (1989).) Because no evidentiary hearing was needed to determine the motion, the issue here would be the same as if a summary judgment had been granted. (Kedzie & 103rd Currency Exchange, Inc., 156 Ill. 2d at 116.) Notwithstanding that a section 2—615 motion would have been better suited to the particular challenge that Effingham County and Kinkelaar raised, there being no issue of fact, the question on appeal is otherwise the same: whether Calloway’s suit should have been dismissed on grounds that, as a matter of law, Effingham County and Kinkelaar were immune from liability because they were governmental entities.
All four counts of the complaint must be assessed, as the review is de nova. (Cf. Leone v. City of Chicago (1993), 156 Ill. 2d 33, 38 (declining to consider the constitutionality of the special duty exception because it represented a different theory from that upon which the case had been tried to a finder of fact).) Pertinent to whether the issue of the special duty exception is at issue are the negligence actions Calloway stated in counts II and IV.
The reason that the court declines to address the special duty exception begins and ends with the observation that those counts, like counts I and III, sought recovery under the Domestic Violence Act, which precludes liability for negligence. (See 168 Ill. 2d at 326-28.) The observation is indisputable. It does not, however, mean that the special duty exception is not an issue.
The special duty exception has been held by this court — wrongly, as it turns out — to operate as an exception to statutorily conferred governmental immunity from negligence. (Leone, 156 Ill. 2d at 38 (stating that "what the special duty doctrine is an exception to is the rule that municipalities are immune from liability for injuries negligently caused by police officers *** while performing their official duties” (emphasis in original)).) That would mean that,, although Calloway improperly claimed that the allegedly negligent acts afforded recovery under the Domestic Violence Act, counts II and IV were only defectively pied. It would be wrong, as this court has recently stated, "to affirm *** dismissal of [a] complaint with prejudice on the basis of a correctable pleading defect not raised in the trial court where it was likely that [the] plaintiff[ ] would have been granted leave to amend *** if the pleading defect had been found below.” (Geaslen v. Berkson, Gorov & Levin, Ltd. (1993), 155 Ill. 2d 223, 230; see Doe v. Calumet City (1994), 161 Ill. 2d 374, 388.) The special duty exception is at issue because this court has held it could allow for recovery under the acts and omissions Calloway alleged (see Doe, 161 Ill. 2d at 380) despite that the Domestic Violence Act precludes liability for negligence. It is therefore unnecessary to make a case for the use of supervisory authority (see 168 Ill. 2d at 329) to reach the issue, though it would hardly be difficult.
The Origin of the Special Duty Exception
The basis of the common law immunity asserted by Effingham County and Kinkelaar was the so-called public duty doctrine. The doctrine, rooted in the earliest notions of sovereign immunity (see Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 506-07; 63 C.J.S. Municipal Corporations § 747 (1950); see also 18 McQuillin on Municipal Corporations § 53.04.25, at 165, 167 (3d ed. 1993)) has been justified for the following reason, though others have been noted (see 18 McQuillin on Municipal Corporations § 53.04.25, at 165-66 (3d ed. 1993)):
"[T]he duty of the municipality is owed to the public, and though the neglect causing the injury may prove of damage to the individual affected, the benefit of the discharge of such function to the public generally is deemed an outweighing consideration and so justifies immunity to the municipality.” Gebhardt v. Village of LaGrange Park (1933), 354 Ill. 234, 237-38.
Historically, courts came to see, in the undermining of that particular reason, cause not to honor the public duty doctrine’s promise of immunity. (See 18 McQuillin on Municipal Corporations § 53.04.25, at 166 (3d ed. 1993); see generally 63 C.J.S. Municipal Corporations § 747 (1950).) That is, the undertaking of a "special duty to a particular individual” gave cause for governmental tort liability. (See, e.g., Huey v. Town of Cicero (1968), 41 Ill. 2d 361, 363 (stating that the protection of a material witness from threatened injury by third parties created such a "special duty”).) And so was born the special duty exception, or, as it is called in some applications, the special relationship exception. See 18 McQuillin on Municipal Corporations § 53.04.25, at 166 (3d ed. 1993) (stating that the special duty exception "is an exception to the public duty doctrine”); see also Burdinie, 139 Ill. 2d at 508.
The last point is critical, for the continued, wrong application of the special duty exception today to avoid statutory immunities owes to the failure to see from where it sprang.
Putting it differently, the special duty exception is a judicially created exception to the judicially created rule of the public duty doctrine under which municipalities could not be liable in tort. The exception simply reflects the notion that, logically, a rule should not apply where the reason for it is absent. So, at common law, while the public duty doctrine protected governmental entities from tort liability in the exercise of customary duties toward the public at large, the special duty exception properly applied to avoid that protection when there was a departure from that customary conduct. (Burdinie, 139 Ill. 2d at 508, 509.) In Bell v. Village of Midlothian (1980), 90 Ill. App. 3d 967, our appellate court devised a four-part test, about which there is more to be said later, which has since been universally applied to measure the departure for purposes of applying the special duty exception. See Burdinie, 139 Ill. 2d at 508; Leone, 156 Ill. 2d at 37.
The Effect of Abolishment of Sovereign Immunity
This court’s 1959 decision in Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11, spelled the end of common law sovereign immunity. (See Aikens v. Morris (1991), 145 Ill. 2d 273, 277-78; see generally D. Baum, Tort Liability of Local Governments and Their Employees: An Introduction to the Illinois Immunity Act, 1966 U. Ill. L.F. 981.) In the wake of Molitor, the General Assembly passed, in 1965, the Local Governmental, and Governmental Employees Tort Immunity Act (745 ILCS 10/1—101 et seq. (West 1992); Burdinie, 139 Ill. 2d at 506). The Tort Immunity Act embraced — importantly—the rule that local governmental entities could be liable in tort (Burdinie, 139 Ill. 2d at 508), for it "grants only immunities and defenses” (745 ILCS 10/1—101.1 (West 1992)). The Act did, however, preserve extensive immunities for local governments, including, as would be relevant in this case, immunity for negligence in law enforcement efforts. 745 ILCS 10/2—202 (West 1992).
The public duty doctrine and its special duty exception could happily coexist as viable legal concepts with the Tort Immunity Act during the first five years of the statute’s effect. Nothing prohibited the judiciary from applying principles of common law governmental liability or immunity in deciding a case where the Act’s provisions did not apply. See generally Huey v. Town of Cicero (1968), 41 Ill. 2d 361, 363.
The 1970 Constitution changed all that. Article XIII, section 4, abolished all forms of governmental immunity except as provided for by the General Assembly. (Ill. Const. 1970, art. XIII, § 4; see ILCS Ann., Ill. Const. 1970, art. XIII, § 4, Constitutional Commentary, at 828-29 (Smith-Hurd 1993) (noting that the Constitution of 1870, in contrast, had abolished immunity for the State but not its units of local government); see also Burdinie, 139 Ill. 2d at 506-07.) The judiciary’s power to apply the public duty doctrine ceased to exist.
Its foundation gone, the special duty exception — the means of avoiding governmental immunity — could no longer operate in the manner it had previously. The 1970 Constitution had ushered out common law governmental tort immunity in favor of acknowledging the potential for liability. The rule of governmental tort liability could be avoided only by express grant of statutory immunity. Given the rule of governmental tort liability, the special duty exception could only offer a means of avoiding a statutory immunity — specifically one under the already existing Tort Immunity Act. But such a judicially created exception would be at odds with the constitutional scheme created by article XIII, section 4. In that scheme, Illinois courts, including this one, were limited to viewing issues of governmental tort liability — not just immunity — through the prism of existing legislation. See generally Henderson v. Foster (1974), 59 Ill. 2d 343, 349.
To explain, the Tort Immunity Act then existed as the source for determining when a governmental entity could not be liable in tort. Where no statutory provision was created to grant immunity, or where a statutory provision could be not be interpreted to do so, the potential for governmental tort liability existed. (See Vesey v. Chicago Housing Authority (1991), 145 Ill. 2d 404, 412-13.) Again, the Tort Immunity Act, by "delineat[ing] immunities,” "articulate[dl” the scope of governmental responsibility actionable in tort. (Vesey, 145 Ill. 2d at 412.) And so, again, continued judicial recognition of the special duty exception as a means, unto itself, to separately base governmental tort liability was wrong.
That does not mean that the principle underlying the special duty exception was, for all purposes, made invalid. Article XIII, section 4, calls for governmental liability where the General Assembly provides no immunity. Absent a statutory immunity, governmental entities are potentially liable for negligence. Every negligence claim requires the existence of a legal duty. Within the context of deciding duty in a negligence action — again, only absent a statutory immunity — courts are free to look to the reason for the special duty exception; namely, whether the conduct involved was not of the kind customarily directed to the public at large. Our appellate court correctly recognized the point in Han-non v. Counihan, a case decided in 1977. (See Hannon v. Counihan (1977), 54 Ill. App. 3d 509, 512-13, citing Stigler v. City of Chicago (1971), 48 Ill. 2d 20, and O’Fallon Development Co. v. City of O’Fallon (1976), 43 Ill. App. 3d 348.) But—and it bears repeating, for it must be made clear—after 1970, the special duty exception could not continue to operate as it had up to that time to skirt governmental immunities. In simple terms, the constitutional uprooting of the public duty doctrine caused the special duty exception, nothing but a response to it, to wither on the vine.
The judiciary’s continued recognition of the exception after 1970 as an exception to statutory immunities created under the exclusive grant of power to the General Assembly presents a constitutional conflict. In twice acknowledging the conflict (see Leone, 156 Ill. 2d at 38; Burdinie, 139 Ill. 2d at 506-07), and four times not (see Doe, 161 Ill. 2d at 385-86; Eagan v. Chicago Transit Authority (1994), 158 Ill. 2d 527, 534; Bilyk v. Chicago Transit Authority (1988), 125 Ill. 2d 230, 241-43; Stigler, 48 Ill. 2d at 24), this court has, regrettably, exacerbated the problem.
The court actually resolved the conflict in Burdinie. (Burdinie, 139 Ill. 2d at 506-07, 510-11.) There, the court acknowledged that, under article XIII, section 4, "the tort liability of a municipality” was "expressly controlled” by what the General Assembly chose to provide by law. (Burdinie, 139 Ill. 2d at 507.) Municipal tort liability — not merely immunity — was a matter of constitutional mandate and legislative grace. (Burdinie, 139 Ill. 2d at 507.) The court therefore held "that the language of the Tort Immunity Act should control” all municipal tort liability claims. (Burdinie, 139 Ill. 2d at 510-16.) The conclusion that the Act precluded the claim there alleged, for injuries sustained in a public swimming pool, wholly disposed of the case. Burdinie, 139 Ill. 2d at 511-16.
But, in analyzing an alternative argument that the complaint could be read to satisfy the special duty exception (Burdinie, 139 Ill. 2d at 517-27), the resolution appeared to be left uncertain. (See Burdinie, 139 Ill. 2d at 527-28 (Miller, J., specially concurring).) Without commenting on the legitimacy of the practice, the court noted that the appellate court had "[t]raditionally” used the four-part special duty test of Bell, "discuss[ing]” it even after ratification of the 1970 Constitution. Burdinie, 139 Ill. 2d at 508, 511.
Though the special duty exception as it operated prior to 1970 was indeed recognized in cases after the existence of article XIII, section 4, it was then, as it is now, without valid legal grounds. The test that the appellate court created in Bell for deciding when the exception should apply was therefore, too, invalid when it was formulated in 1980, a decade after the constitution’s ratification.
For the test’s first three elements, the appellate court had relied upon cases decided prior to the 1970 Constitution and the resulting effect of the abolishment of sovereign immunity. (See Bell, 90 Ill. App. 3d at 970, citing Huey, 41 Ill. 2d 361, and Keane v. City of Chicago (1968), 98 Ill. App. 2d 460.) The appellate court overlooked that the cases had to be read in their historical context. Constitutionally speaking, the decisions could offer no support for an exception to statutory immunities. Bell and every case which can be traced today back to it for the point that the special duty exception could operate as it had prior to 1970 should be overruled.1
The Present State of Affairs
This court has struggled with the special duty-exception’s operation in the modern era of exclusive statutory governmental immunity. (See Leone, 156 Ill. 2d at 41-42 (Miller, C.J., dissenting) (acknowledging the “complex relationship between the Tort Immunity Act and the special duty exception”).) In Leone, and more recently in Doe, the court presumed that the exception — as it operated prior to 1970 and not, as explained above, in a manner in which its underlying rationale could apply today in a negligence action — and the Tort Immunity Act were reconcilable. (Leone, 156 Ill. 2d at 38-39; Doe, 161 Ill. 2d at 385-86.) That served only to underscore the problem in the exception’s continued recognition; no consensus could be reached as to what the special duty exception was exactly an exception to. (See Leone, 156 Ill. 2d at 38-39 (stating that the exception avoided immunities of the Tort Immunity Act); Leone, 156 Ill. 2d at 46-48 (Bilandic, J., dissenting) (stating that the exception merely permitted an individual to sue a municipality, it did not negate statutory immunities).) In retrospect, for its efforts the court has made matters worse. Failing to see the non viability of the special duty exception, the court has sanctioned a hairsplitting body of case law concerned with whether the Bell test — particularly the “control” element — is satisfied. See Leone, 156 Ill. 2d at 39 (interpreting the element regarding control to simply require a governmental hand in creating a dangerous situation); see Doe, 161 Ill. 2d at 386-87 (distinguishing the facts of Leone).
Conclusion
Time has long since passed for declaring that the special duty exception arose because of, and its fate was tied to, the common law public duty doctrine. Late or not, in that plain acknowledgment is, I have come to see, the last hope of righting 25 years of confusion regarding governmental tort liability and immunity in Illinois.
When sovereign immunity was abolished constitutionally in 1970, the public duty doctrine ceased to exist. So did the special duty exception which rode its coattails. Then and today, governmental tort liability and immunity are matters to be determined, ultimately, against what legislation the General Assembly does and does not provide. The special duty exception remains, in the form of its undérlying principle, a valid policy factor to be weighed in determining the' existence of a legal duty in a negligence action not precluded by a statutory immunity. But the exception as it operated prior to 1970. does not otherwise exist as means of its own to separately impose governmental tort liability.
As a result, counts II and IV of Calloway’s complaint alleging negligence could not be cured to avoid immunities in either the Domestic Violence or Tort Immunity Acts. For that reason, and not those stated in the court’s opinion, I would affirm the dismissal of those counts against Effingham County and Kinkelaar.