dissenting:
Two rules of law are implicated in this lawsuit. The first is that police officers have a duty to exercise ordinary care in carrying out their responsibilities. (Huey v. Town of Cicero (1968), 41 Ill. 2d 361, 243 N.E.2d 214; Andrews v. City of Chicago (1967), 37 Ill. 2d 309, 226 N.E.2d 597; Sundin v. Hughes (1969), 107 Ill. App. 2d 195, 246 N.E.2d 100; Moore v. Cook (1959), 22 Ill. App. 2d 48, 159 N.E.2d 496.) The second proposition is that under the common law a municipality or its employees is not liable for failure to supply general police or fire protection. (Huey v. Town of Cicero (1968), 41 Ill. 2d 361, 243 N.E.2d 214; Marvin v. Chicago Transit Authority (1983), 113 Ill. App. 3d 172, 446 N.E.2d 1183.) This second proposition is codified in section 4 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 4 — 102). (Marvin v. Chicago Transit Authority (1983), 113 Ill. App. 2d 172, 466 N.E.2d 1183.) In this appeal the defendants do not raise the Tort Immunity Act as a defense and I think the majority should not have gratuitously considered this issue.
The factual setting is as the majority relates it. Officer Callahan stopped Ranos for a traffic violation. Callahan focused his spotlight on the Ranos vehicle. Under the allegations of the complaint, the spotlight shining in the rearview mirror made it difficult for Ranos to see the decedent’s vehicle, thereby being a cause of the deaths of the two plaintiffs. The majority concludes that the gist of the complaint is that Officer Callahan failed to take measures to protect the safety of the decedents, thereby implicating the second proposition of law stated above, that is, that a municipality is not liable for failure to provide police protection. (184 Ill. App. 3d at 246.) The difficulty with the position of the majority in my estimation is that they cite no case law to support their conclusion that the second proposition of law controls this case. On the contrary, I believe that case law opposes the position of the majority.
In Brooks v. Lundeen (1977), 49 Ill. App. 3d 1, 364 N.E.2d 423, the defendant municipality through its police department set up a roadblock to intercept a car driven by Lundeen. The plaintiff’s decedent approached the roadblock and was directed by the police to park on the shoulder of the road. The decedent was not informed of the purpose of the roadblock. The Lundeen car collided head on with the decedent’s vehicle causing his death. The appellate court stated that case law holds that a police officer acting “in the performance of his duties [and] circumstances similar to those seen in this case owes a duty to exercise ordinary care for the safety of others in carrying out his responsibilities.” (Brooks, 49 Ill. App. 3d at 6, 364 N.E.2d at 427.) In Sundin v. Hughes (1969), 107 Ill. App. 2d 195, 246 N.E.2d 100, a Chicago police officer was pursuing a vehicle operated by Larry Benford. The Benford vehicle struck a pedestrian named Eiermann, whose body, in turn, struck the plaintiff Sundin. The complaint charged Officer Hughes with negligence. The defendant contended that the complaint failed to allege a duty. The appellate court found that a duty had been sufficiently alleged. In Moore v. Cook (1959), 22 Ill. App. 2d 48, 159 N.E.2d 496, a police officer who was engaged in a chase struck the plaintiff’s automobile. The court, in affirming the recovery of a judgment by the plaintiff, explained that a police officer is answerable to private persons resulting from the negligent performance of the officer’s ministerial duties.
Each of the cases cited above involved policemen attempting to apprehend offenders. And each of these cases was analyzed under the proposition of law which requires officers to exercise ordinary care when carrying out their responsibilities. I fail to see any distinction between these cases and the instant case, where the police officer apprehended an alleged traffic violator.
Yet all of these cases would seemingly be overruled by the holding of the majority, since the majority finds that the gist of the instant complaint is that the officer failed to take measures to protect the safety of the decedents, which could equally be said about each of the above cases. To read the complaint as alleging that the police are charged with failure to provide police protection is indeed strained. The holding of the majority would dramatically constrict the responsibility of municipalities and call into question a significant body of case law.
I would reverse the judgment of the trial court.