author: JUSTICE STOUDER

text:
    LARA HOSSELTON, Guardian of the Estate of Edward Niggeman, a Disabled Person, Plaintiff-Appellant, v. FIRST AMERICAN BANK, N.A., et al., Defendants-Appellees.
    Third District
    No. 3 — 92—0289
    Opinion filed February 5, 1993.

      Edward G. Vogt, of Kankakee, for appellant.
    William D. Heinz, of Jenner & Block, of Chicago (James D. Noseda, of counsel), for appellee First American Bank.
    Phillip M. Goldberg, of Coffield, Ungaretti & Harris, of Chicago (Jennifer K. Walter, of counsel), for appellee Blunt, Ellis & Loewi.
    H. Nicholas Berberian, of Neal, Gerber & Eisenberg, of Chicago (Susan Feingold Carlson, of counsel), for appellee Shearson, Lehman & Hutton.
   JUSTICE STOUDER

delivered the opinion of the court:

This appeal arises from the dismissal with prejudice of counts I, II, III, V, VI, and VII of the plaintiff’s second amended complaint. The plaintiff, Lara Hosselton, acting as guardian of the estate of Edward Niggeman, filed a complaint for damages against the defendants, First American Bank, Blunt Ellis & Loewi, and Shear-son Lehman Brothers, Inc. The complaint alleged that defendant First American Bank (First American) made unauthorized payments in the amount of $290,594 out of the estate of Edward Niggeman, a disabled person. The complaint further alleged that defendant Blunt, Ellis & Loewi (Blunt Ellis) improperly sold estate stock in the amount of $134,534.21 and that defendant Shearson Lehman Brothers, Inc. (Shearson), improperly sold estate stock in the amount of $87,768.53. Pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 615), the defendants filed motions to dismiss the various counts against them for failure to state a cause of action. The motions were granted, and the relevant counts were dismissed with prejudice. The plaintiff appeals from the dismissal of those counts of her second amended complaint. We affirm.

This case arises solely on the pleadings. Accordingly, all well-pleaded facts in the complaint are deemed to be true. Ault v. C.C. Services, Inc. (1992), 232 Ill. App. 3d 269, 597 N.E.2d 720.

On December 13, 1990, the plaintiff filed a three-count complaint against the defendants. Count I alleged improper transactions between Lois Hebert and First American. Hebert was the previous guardian of the estate. Count I alleged that First American improperly honored a check, payable to the estate, in the amount of $15,800. Hebert used the proceeds to open a guardian checking account in the amount of $6,500. She received the remaining $9,000 in cash and paid the bank to issue a cashier’s check to Larry Hebert in the amount of $6,500. The complaint alleged that this transaction was without lawful authority, without order of court, and without benefit to the estate.

Count I further alleged that First American accepted and paid checks, which were payable to the estate, and accepted checks payable to Hebert, her creditors, friends, and merchants, on drafts issued to the estate or drawn on the guardian account. These transactions were alleged to be without order of court, without lawful authority, and without benefit to said estate.

Count II was pled in the alternative against Blunt Ellis. Count II alleged that, at the direction of Hebert, the defendant purchased or sold estate stock valued at $134,534.21. This conduct allegedly violated section 19 — 2 of the Probate Act of 1975 (the Probate Act) (Ill. Rev. Stat. 1991, ch. 110 1/2, par. 19 — 2).

Count III was directed against defendant Shearson and alleged that Shearson purchased or sold to others estate stock valued at $87,768.53. Shearson’s conduct allegedly violated section 19 — 2 of the Probate Act.

All three defendants moved to dismiss the complaint for failure to state a cause of action. On March 8, 1991, plaintiff was granted leave to file an amended complaint.

The amended complaint was in eight counts. Counts I and YII were directed against First American. Count I of the amended complaint repeated the allegations of count I of the original complaint, but further alleged that First American had violated section 4 of the Fiduciary Obligations Act (the Act) (Ill. Rev. Stat. 1991, ch. 17, par. 2000 et seq.). Count I further alleged that First American was aware that Hebert was breaching her obligation as a fiduciary in endorsing the $15,800 check. It was also alleged that First American acquired knowledge of Hebert’s breach of fiduciary duties, or facts amounting to bad faith, claiming that First American was aware of the following: (1) lack of a court order authorizing Hebert’s expenditures; (2) that there was no basis in reasonable possibility that the estate required those expenditures; (3) the amounts deposited and withdrawn indicated that the estate was being defrauded; and (4) that a looting of the estate was the only possible inference. Count VII repeated many of the allegations of count I, but did not allege a violation of the Act. First American moved to dismiss count I because it failed to include factual allegations to support its conclusions, and count VII for failure to state a cause of action.

Counts IV and V of the amended complaint were directed against defendants Blunt Ellis and Shearson, respectively. The allegations in count IV and V of the amended complaint were identical to those made against Blunt Ellis and Shearson in the original complaint. Blunt Ellis and Shearson moved to dismiss counts IV and V of the amended complaint, respectively.

While the various motions to dismiss were pending, the plaintiff took the discovery depositions of Michael Bruner, an employee of Shearson; Gerald Elder, Blunt Ellis’ account representative; and three First American employees. On November 1, 1991, the trial court issued a memorandum opinion tentatively granting the motions to dismiss. On December 5, the plaintiff was given leave to file a second amended complaint.

Counts I and V of the second amended complaint were directed against First American. Count I essentially repeated the allegations of count I of the amended complaint, but made the following changes: (1) it was now alleged that part of the proceeds of the $15,800 check were deposited in a joint checking account of Lois and Margaret Hebert at First American; (2) it was alleged that the transactions regarding the $15,800 check indicated a failure to act in a commercially reasonable manner and constituted knowledge of fraud and/or facts giving rise to bad faith in making the payments; (3) the allegation of a violation of section 4 of the Act was dropped and replaced by allegations of violations of sections 7, 8, and/or 9 of the Act (Ill Rev. Stat. 1991, ch. 17, pars. 2007, 2008, 2009); (4) it was alleged that on May 16, 1989, First American paid Hebert $16,000 on a check made to her order from the guardian account; and (5) it was alleged that checks to merchants drawn on the guardian account by Hebert were paid with knowledge of fraud or of facts giving rise to bad faith, and such action was commercially unreasonable. Count VII of the amended complaint was redesignated as count V of the second amended complaint without making any new allegations. On December 24, 1991, First American moved to dismiss counts I and V of the second amended complaint.

Counts II and VI of the second amended complaint were directed against Blunt Ellis. Count II repeated the previous allegation that Blunt Ellis’ actions violated section 19 — 2 of the Probate Act. Count VI alleged that Blunt Ellis either had knowledge that Hebert was breaching her duty as a fiduciary or at least had knowledge of facts giving rise to bad faith. The counts against Shearson were similar. Count III repeated the previous allegation that Shearson’s actions violated section 19 — 2 of the Probate Act, while count VII made the same charges against Shearson that were made against Blunt Ellis in count VI. Shearson and Blunt Ellis both moved to dismiss the charges against them.

On March 9, 1991, the circuit court issued a memorandum opinion. In that opinion, the court found that the plaintiff had not stated a cause of action. The court found specifically that section 19 — 2 of the Probate Act could not form a basis of liability with respect to any defendant. Further, the court found that the plaintiff could not state a cause of action that would take the complaint outside the protections of the Fiduciary Obligations Act. The court also rejected the plaintiff’s argument that the Act must be pled as an affirmative defense. On March 23, 1991, the circuit court entered a judgment of dismissal of all counts against First American, Blunt Ellis, and Shearson. The court further entered a finding that there was no reason to delay enforcement or appeal.

The plaintiff brought an appeal to this court, asking us to consider the following issues: (1) whether First American is chargeable with fraud or bad faith in paying out monies from a fiduciary account; and (2) whether Shearson and Blunt Ellis are liable for selling stock from the estate without a court order, and whether they are chargeable with fraud and bad faith.

The standard of review on appeal from a grant of a motion to dismiss a complaint is whether the complaint alleged facts which sufficiently state a cause of action. Melton v. Central Illinois Public Service Co. (1991), 220 Ill. App. 3d 1052, 581 N.E.2d 423.

The plaintiff first argues on appeal that First American is chargeable with fraud or bad faith in paying out monies from a fiduciary account. We disagree. In our opinion, the circuit court was correct in finding that the plaintiff could not state a cause of action that would take the complaint outside of the Fiduciary Obligations Act. The purpose of the Act is to cover situations which arise when one person deals honestly with another knowing him to be a fiduciary (Johnson v. Citizens National Bank (1975), 30 Ill. App. 3d 1066, 334 N.E.2d 295), and to facilitate a fiduciary’s performance of his responsibilities by limiting the liability of those who deal with him. (Bellflower Ag Service, Inc. v. First National Bank & Trust Co. (1985), 130 Ill. App. 3d 80, 473 N.E.2d 998.) The Act relieves a depository bank of the duty of seeing that funds are properly applied and places the burden upon the principal to employ honest fiduciaries. (Johnson, 30 Ill. App. 3d 1066, 334 N.E.2d 295.) Specifically, section 4 of the Act provides in part as follows:

“If any negotiable instrument payable or indorsed to a fiduciary as such is indorsed by the fiduciary, or if any negotiable instrument payable or indorsed to his principal is indorsed by a fiduciary empowered to indorse such instrument on behalf of his principal, the indorsee is not bound to inquire whether the fiduciary is committing a breach of his obligation as fiduciary in indorsing or delivering the instrument, and is not chargeable with notice that the fiduciary is committing a breach of his obligation as fiduciary unless he takes the instrument with actual knowledge of such breach or with actual knowledge of such facts that his action in taking the instrument amounts to bad faith.” Ill. Rev. Stat. 1991, ch. 17, par. 2004.

We find section 4 to be dispositive of the proper result to be reached in this case. In order for the plaintiff to have stated a cause of action against First American, she needed to have pled facts showing actual knowledge of wrongdoing or facts indicating bad faith. The plaintiff was not able to plead such facts. Rather, her pleadings were in the nature of conclusional allegations. Legal conclusions unsupported by allegations of specific facts are insufficient to state a cause of action. (Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 520 N.E.2d 37.) Because the plaintiff was not able to plead specific facts showing actual knowledge or bad faith, her complaint against First American was properly dismissed.

The plaintiff has argued that the transactions between the bank and Lois Hebert also violated sections 7, 8, and 9 of the Act. Specifically, the claimant argues that payments to Larry and Margaret Hebert were not protected under the Act. We see no merit to this argument. The payment to Margaret Hebert was done by way of a deposit to a joint checking account of Lois and Margaret. Section 9 of the Act specifically allows for deposits to a fiduciary’s personal account. The payment to Larry Hebert was in the form of a cashier’s check. Section 2 of the Act (Ill. Rev. Stat. 1991, ch. 17, par. 2002) provides that when a person transfers funds to a fiduciary that the fiduciary is authorized to receive, that person is not responsible for the proper application of the funds by the fiduciary. In the case at bar, First American distributed the proceeds of the $15,800 check as directed by Hebert. In the absence of specific factual allegations that the bank knew that Hebert was breaching her fiduciary obligations or that the bank acted in bad faith, the transactions in question were protected by the Act. There were clearly no factual allegations in this case to support a finding of actual knowledge on the part of the bank. Further, we do not believe the allegations support an inference of bad faith. The Act defines something as being done in good faith when “it is in fact done honestly, whether it be done negligently or not.” (Ill. Rev. Stat. 1991, ch. 17, par. 2001(2).) The allegations in the plaintiff’s complaint do not suggest an inference that the bank acted other than in good faith. The transactions in question were specifically protected by the Act. We do not believe that acts specifically permitted by the Act can be used to support an inference of bad faith in the absence of specific factual allegations that would show that the bank acted dishonestly.

Further, we find that the transactions listed in the complaint regarding checks drawn on the account by Hebert are specifically protected by section 7 of the Act. Once again, in the absence of factual allegations of actual knowledge or bad faith, no cause of action can be stated against First American with regard to these transactions.

The plaintiff’s final argument with respect to the counts against First American is that the Act must be pled as an affirmative defense. An affirmative defense gives color to an opponent’s claim and then asserts new material by which an apparent right is defeated. (Zieger v. Manhattan Coffee Co. (1983), 112 Ill. App. 3d 518, 445 N.E.2d 844.) As the circuit court recognized, the plaintiff tried to state a claim outside the protections of the Act. First American would not have been asserting new material defeating plaintiff’s claim by pleading the Act as a defense. The Act, by its terms, requires allegations of actual knowledge or bad faith. We find that the circuit court properly rejected this argument.

The plaintiff’s next argument on appeal is that defendants Shearson and Blunt Ellis are liable for selling stock from the guardianship account without a court order authorizing such action. The plaintiff further argues that such action amounts to bad faith. The plaintiff’s argument is premised on section 19 — 2 of the Probate Act. This section provides as follows:

“By leave of court a representative may lease, sell, mortgage or pledge any personal estate of the ward, when in the opinion of the court it is for the best interest of the ward or his estate.” (Ill. Rev. Stat. 1991, ch. 110 1/2, par. 19 — 2.)

It is clear that this statute creates no liability on the part of Shearson or Blunt Ellis. Section 19 — 2 does not place a duty on a stockbroker to sell shares of estate stock only with court approval. We affirm the trial court’s finding that this section cannot form a basis of liability with respect to these defendants.

With respect to the plaintiff’s claim that a cause of action was stated against the stockbrokers based on knowledge of facts which establish bad faith, we find that no cause of action was stated for the same reasons that applied to the counts directed at First American. The plaintiff has merely pled conclusional allegations of knowledge of facts establishing bad faith, without pleading any specific facts that would support those allegations. The Fiduciary Obligations Act applies to the transactions between Hebert and the defendant stockbrokers. In the absence of allegations of facts showing actual knowledge of wrongdoing or of facts establishing bad faith, no cause of action can be stated against these defendants.

We further reject plaintiff’s argument that the pleadings were sufficient to require an answer and permit discovery. The plaintiff did not plead any factual allegations that would permit her to recover against these defendants. Even after deposing the relevant employees at Shearson and Blunt Ellis, the plaintiff was unable to plead any facts that would support an inference of bad faith.

Because the plaintiff was unable to state a cause of action outside the protections of the Act, we hold that the circuit court correctly dismissed all counts against these defendants. Accordingly, the judgment of the circuit court of Kankakee County is affirmed.

Affirmed.

SLATER and BARRY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CAMPBELL JUSTICE MANNING,

license: Public Domain

text:
    JANE DOE, for Herself and as Next Friend of Betty Doe, her Minor Daughter and John Doe, her Minor Son, Plaintiffs-Appellants, v. CALUMET CITY et al., Defendants-Appellees.
    First District (1st Division)
    No. 1 — 90—1121
    Opinion filed November 23, 1992.
    Rehearing denied March 9, 1993.

      MANNING, J., dissenting.
    Edward T. Stein, Clifford Zimmerman, and Nottage & Ward, all of Chicago (Eunice Ward, of counsel), for appellants.
    Segal, McCambridge, Singer & Mahoney, of Chicago (Gregory E. Rogus and Paul E. Wojcecki, of counsel), for appellee City of Calumet City.
    Baal & O’Connor, of Chicago (Robert B. Baal and Keith R. Haug, of counsel), for appellees James Horka, Daniel Surufka, and Kevin Beasley.

      Ancel, Glink, Diamond & Cope, P.C., of Chicago (David Lincoln Ader, Thomas G. DiCianni, and Teri Engler Kliejunas, of counsel), for appellees Village of Burnham and Gregory Giglio.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiffs, Jane Doe, individually, and on behalf of her minor children Betty and John Doe, appeal from the order of the circuit court of Cook County dismissing counts I through IV and count VIII of their first amended complaint brought against defendants Calumet City and James Horka, Daniel Surufka, and Kevin Beasley, Calumet City police officers; and the Village of Burnham and Gregory Giglio, a Burnham police officer, for injuries sustained by Jane Doe and her minor children during a home invasion. Counts V through VII relate only to defendant Valentine and remain pending. On appeal, plaintiffs contend that: (1) the trial court erred in finding no “special relationship” existed between plaintiffs Betty and John Doe and defendant police officers; (2) the trial court erred in determining that plaintiffs did not adequately plead gender-based discrimination claims against defendants Officer Horka and Calumet City; and (3) the trial court erred in determining that plaintiffs did not adequately plead a cause of action for intentional infliction of emotional distress. For the following reasons, we affirm the judgment of the trial court.

The record sets forth the following facts relevant to this appeal. Plaintiffs’ complaint charged that on December 20, 1987, at approximately 4:30 a.m., defendant Benjamin Valentine illegally entered the apartment of Jane, Betty and John Doe at 278 Yates Street, Calumet City, Illinois. Valentine entered the bedroom where all three Does were sleeping, and climbed on top of Jane Doe. He grabbed her clothing and began feeling her breasts and genital area, declaring he would rape her and threatening to kill her. Jane begged Valentine not to do anything with her children present. Valentine got off Jane and directed Betty and John to leave the room. Valentine followed the children out while threatening to kill them. Jane ran to the front door of the apartment. Valentine followed and caught Jane and they fell down the stairs. Valentine struck Jane and again threatened to kill her. Jane grabbed the stair railing and would not let go. Valentine turned around and reentered the apartment, locking the door behind him.

Jane Doe tried to reenter the apartment by kicking and pushing the door. As she was unable to awaken anyone in her building, Jane left the building screaming for help. At that time, she was clothed only in underwear and had no shoes or socks on her feet. Several neighbors heard Jane Doe’s cries and called 911. Jane Doe ran to the building next door and pushed all the apartment buzzers.

In response to the 911 call, several municipalities dispatched police officers to the scene in Calumet City. Defendant Giglio, a Village of Burnham police officer, arrived shortly before defendant Horka of the Calumet police department. Horka arrived at approximately 4:39 a.m. and assumed a supervisory role, stating that he was in charge of the scene, maintaining control of the scene, the building and all persons in the area, giving instructions and orders to the other officers at the scene. Specifically, Horka talked to Jane Doe and ordered her to stay out of the building.

Horka asked Jane Doe if she had keys to her apartment and she replied that she did not. Horka also asked Jane: “Where is your husband?”; “Do you know the guy?”; “Why would you leave your children in the apartment if there was a strange man there?”; and “Why did you leave your apartment without the key?” Upon direction of one or more of the defendants, the landlord, who lived in South Holland, Illinois, was telephoned and requested to bring keys to the building.

Plaintiffs alleged that when Horka spoke to other officers, he described Jane Doe as “an hysterical woman,” and said “this girl is freaking out,” and “she’s not coherent anymore.” The complaint alleges that Horka’s tone of voice was rude, demeaning and accusatory.

Horka checked the front door and rang several apartment buzzers but received no response. Horka and Giglio walked around to the rear of the building, allegedly checking the windows and rear door.

Horka assigned Giglio to stay at the back door to secure the area. Jane Doe begged Horka to break down the door, but Horka responded that he would not break down the door because he did not want to be responsible for property damage. Horka prevented Jane Doe and her neighbors from their attempts to break down the door or otherwise enter the apartment.

Defendant Surufka arrived and discussed the situation with Horka, but did not attempt to enter the premises. Horka shined a spotlight into the apartment. Defendant Beasley then arrived and Horka stationed him and additional Chicago police officers at different points around the building. Defendants Beasley and Surufka tapped on windows and rang doorbells to the building.

Horka spoke by radio with his supervisor, Sergeant Targonski. During this conversation, Sergeant Targonski directed Horka to break down the apartment door. Horka did not do so.

Several paramedics arrived and consulted with Horka. One or more of the paramedics told Horka and other defendants that a “lock pick,” locksmith and ladder were all available to gain entry into the apartment. Horka told the paramedics not to interfere and that Horka himself would make the decisions regarding the situation. No effort was made to utilize the “lock pick,” locksmith or ladder.

At approximately 5 a.m., Investigator Miller of the Calumet City police department arrived, and spoke with Jane Doe. Miller went around to the rear of the building and entered the apartment through the rear door of the building and the back door of the apartment, which were both unlocked. When Investigator Miller entered the apartment, he found Valentine raping Betty Doe. During the time Valentine was in the apartment, Valentine had threatened and choked John Doe.

Count I of plaintiffs’ amended complaint alleges that the defendants assumed a “special relationship” to Betty and John Doe when they became aware of the facts and circumstances surrounding Valentine’s intrusion and sexual assault of Jane Doe. Plaintiffs allege that defendants had a duty to enter the apartment to prevent injury to Jane Doe’s children, and that defendants willfully and wantonly breached this duty when they did not enter the apartment. Counts II and III, based on the same theory of recovery, were brought on behalf of Jane Doe for loss of society and for medical expenses under the family expense act, respectively. Plaintiffs ultimately withdrew count II.

Count IV alleges that defendants Horka and Calumet City engaged in gender-based discrimination by defendant Horka’s conduct toward Jane Doe during the incident and defendant Calumet City’s ratification of such conduct.

In count VIII, all plaintiffs seek recovery for intentional infliction of emotional distress against defendants Horka and Calumet City on the grounds that defendants’ conduct was extreme and outrageous and caused Jane severe emotional distress.

Defendants filed section 2 — 615 (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 615) motions to dismiss plaintiffs’ complaint on the grounds that: (1) section 4 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1991, ch. 85, par. 4 — 102) provided immunity for the municipalities and the individual officers in the absence of a special duty owed to plaintiffs, and that plaintiffs failed to allege a special duty; (2) plaintiffs failed to state a cause of action against Horka and Calumet City for gender-based discrimination; and (3) plaintiffs failed to state a cause of action against Horka and Calumet City for intentional infliction of emotional distress.

Following a hearing on the motions, the trial court granted defendants’ motions to dismiss with prejudice. Plaintiffs’ timely appeal followed.

Preliminarily, this is an appeal from a dismissal pursuant to section 2 — 615, which allows a court to dismiss actions based on the pleadings. A trial court should dismiss a cause of action on the pleadings only if it is clearly apparent that no set of acts can be proven which will entitle a plaintiff to recover. (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 504, 565 N.E.2d 654, 657.) On appeal, all well-pleaded facts in the attacked portions of the complaint are taken as true and this court must decide whether the allegations, when viewed in the light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief may be granted. Burdinie, 139 Ill. 2d at 505, 565 N.E.2d at 657.

Plaintiffs initially allege that defendants assumed a “special relationship” to Betty and John Doe when they became aware through Jane Doe that Betty and John were locked in Jane Doe’s apartment with Valentine, an intruder and potential rapist. The complaint alleges that defendants “willfully and wantonly” failed to enter Jane Doe’s apartment, thereby allowing Valentine to rape Betty Doe. Plaintiffs contend that count I states a cause of action under the “special duty” exception to the general rule that municipalities are not liable for failure to exercise police powers.

To overcome a motion to dismiss, plaintiffs must assert facts supporting the allegations of the cause of action; in other words, plaintiffs must allege facts which establish a duty, breach of that duty, and resulting injury. (Anthony v. City of Chicago (1988), 168 Ill. App. 3d 733, 735-36, 523 N.E.2d 22; Bell v. Midlothian (1980), 90 Ill. App. 3d 967, 969, 414 N.E.2d 104.) Plaintiffs contend the trial court erred in dismissing counts I through III of their complaint.

A municipality or its employees may not be held liable for failure to supply general police or fire protection. (Burdinie, 139 Ill. 2d at 520; Huey v. Town of Cicero (1968), 41 Ill. 2d 361, 363, 243 N.E.2d 214; Ill. Rev. Stat. 1987, ch. 85, pars. 5 — 102, 5 — 103.) This rule rests upon a public policy consideration and “embodies the conclusion that a police department’s negligence — its oversights, blunders, omissions — is not the proximate or legal cause of harms committed by others.” (Marvin v. Chicago Transit Authority (1983), 113 Ill. App. 3d 172, 176, 446 N.E.2d 1183; Porter v. City of Urbana (1980), 88 Ill. App. 3d 443, 410 N.E.2d 610.) Where a public employee, however, exercises care or custody over an individual, the individual’s status is elevated beyond that of a member of the general public, the “special duty” exception is activated and the employee is liable for injury proximately caused by his negligence. Burdinie, 139 Ill. 2d at 508; Huey, 41 Ill. 2d at 363; Anthony, 168 Ill. App. 3d at 736; Fessler v. R.E.J. Inc. (1987), 161 Ill. App. 3d 290, 295, 514 N.E.2d 515; Santy v. Bresee (1984), 129 Ill. App. 3d 658, 662, 473 N.E.2d 69; Gardner v. Village of Chicago Ridge (1966), 71 Ill. App. 2d 373, 378-79, 219 N.E.2d 147, aff’d in part, rev’d in part and remanded (1970), 128 Ill. App. 2d 157, 262 N.E.2d 829, cert, denied (1971), 403 U.S. 919, 29 L. Ed. 2d 696, 91 S. Ct. 2230.

The general requirements of the “special duty” exception, whereby the police owe a special duty to an individual, as contrasted to the public at large, are as follows: (1) the municipality must be uniquely aware of the particular danger or risk to which plaintiff is exposed; (2) there must be allegations of specific acts or omissions on the part of the municipality; (3) the specific acts or omissions must be either affirmative or willful in nature; and (4) the injury must occur while the plaintiff is under the direct and immediate control of employees or agents of the municipality. Burdinie, 139 Ill. 2d at 508; Anthony, 168 Ill. App. 3d at 737; Bell, 90 Ill. App. 3d at 970; Marvin, 113 Ill. App. 3d at 176; Curtis v. County of Cook (1982), 109 Ill. App. 3d 400, 407, 440 N.E.2d 942.

The cases relied on by plaintiffs are factually distinguishable from the present case and therefore unpersuasive. Plaintiffs first rely on Gardner v. Chicago Ridge. In Gardner, police apprehended suspects who had attacked the plaintiff and requested that the plaintiff assist in identifying the suspects. The plaintiff accompanied police officers to where the suspects were being held, whereupon plaintiff was beaten again in the presence of the police officers. The court reversed the dismissal of plaintiff’s complaint because the plaintiff had been “called into a position of peril” by the police. Gardner, 71 Ill. App. 3d at 380.

Similarly, in Brooks v. Lundeen (1977), 49 Ill. App. 3d 1, 364 N.E.2d 423, plaintiff motorist approached a police roadblock set up in the path of a car police knew was approaching at a very high speed. Police directed plaintiff to park on the side of the road, without giving him a reason for doing so, or warning him of the danger, and plaintiff was hit and killed by the speeding motorist. The court found a special relationship had been created between the parties and held the police liable for directing the plaintiff to remain in an area they knew was dangerous without warning him of the approaching, speeding car. Brooks, 49 Ill. App. 3d at 7.

Finally, in Anthony v. City of Chicago, a civilian was injured when city firefighters directed him to assist in opening an elevator door from which smoke was escaping in a burning building, knowing that Anthony was neither properly trained nor equipped for such assistance, and failing to warn him of the elevator’s dangerous condition. The court held that the plaintiff sufficiently alleged that he acted under the direct and immediate control of the fire department because defendants’ affirmative acts created a position of peril for the plaintiff.

Plaintiffs contend that the present case is similar to these cases if “direct and immediate control” is given a new interpretation. Plaintiffs argue that the proper standard for the fourth element of the special relationship test is whether or not the defendants “maintained and preserved control of the entire situation such that the injury could occur.” However, plaintiffs fail to cite any authority for their proposition.

In the present case, the trial court found that while the amended complaint satisfies the first three requirements, plaintiffs made no allegations which lead to the conclusion that Betty and John Doe were injured while they were under the direct and immediate control of the Calumet City or Burnham village police officers. Plaintiffs’ allegation that “JANE and several neighbors believed they were prevented from helping JANE’s children because of the orders and actions of the police” (emphasis added) goes only to the state of mind of Jane Doe and the neighbors and does not meet this latter requirement.

The present case is more similar to Galuszynski v. City of Chicago (1985), 131 Ill. App. 3d 505, 475 N.E.2d 960. There, police failed to respond to a 911 call for 24 minutes during which time plaintiffs’ residence was burglarized and plaintiffs were injured. The court held the police did not call plaintiffs into a position of peril creating a special duty; rather, the police simply failed to provide police protection. Galuszynski, 131 Ill. App. 3d at 508.

Plaintiffs here were neither affirmatively directed nor “called into a position of peril by the police.” Plaintiffs’ complaint fails to allege facts which show that Betty and John Doe were under the direct and immediate control of the police at the time their injuries occurred. Betty and John Doe were in Jane Doe’s apartment with Valentine when the police arrived at the scene. The police officers did not have direct or immediate control over Valentine or over what was occurring in Jane Doe’s apartment when they reached the scene, nor at any time during the incident, nor were they aware of exactly what was happening inside the apartment. Plaintiffs do not adequately allege that the police officers exacerbated the situation through their awareness of the dangers of the situation. Any harm occurring to Betty and John Doe by Valentine while the police were outside the apartment determining their method of action cannot have been proximately caused by the police.

The dissent’s reliance upon Burdinie v. Village of Glendale Heights is misplaced. The dissent quotes the supreme court out of context, thereby misinterpreting the meaning of the court’s opinion. In that case, the court found no duty on the part of the defendant municipality under the “special duty” exception for injuries incurred by a plaintiff who jumped into a pool at the direction of a village swimming instructor. The court found that the third and fourth requirements of the test had not been satisfied in that case. Addressing the fourth requirement of “direct and immediate control,” the court explained in full:

“The situations which have satisfied the fourth part of the test have all involved police or fire protection. (See, e.g., Anthony, 168 Ill. App. 3d at 737; Gardner, 71 Ill. App. 2d at 379; Brooks, 49 Ill. App. 3d at 6-7.) Police and fire departments are paramilitary organizations. The very essence of their duties is to be cloaked in State authority, making refusal to obey an order or suggestion a difficult proposition in the mind of a private citizen. There is a tremendous qualitative difference between following a police officer’s command and following a municipal recreational program instructor’s command.
With this in mind, we note that the appellate court has stated that the fourth test requirement is met where the public employee creates a position of peril ultimately injurious to a plaintiff, as opposed to situations where a plaintiff merely seeks protection from the public employee that is not normally provided. (Anthony, 168 Ill. App. 3d at 737; [citation].) We interpret this to mean that the control element arises when the public employee initiates the circumstances which create the dangerous situation. Thus, where a police officer or firefighter initiates the dangerous situation without any suggestion from the plaintiff, it has been held that the plaintiff is under the control of the police or fire department. (Anthony, 168 Ill. App. 3d at 737; Brooks, 49 Ill. App. 3d at 6-7; Gardner, 71 Ill. App. 2d at 379.) However, where the plaintiff initiates the contact with the municipal employee, it has been held that the plaintiff is not under the direct or immediate control of the municipality. [Citations.]
Thus, it has been held that a person is under the direct and immediate control of a municipality if a municipal employee who is acting with official authority which private citizens would reasonably believe they cannot refuse (such as a police officer’s authority) makes a request of the private citizen and the citizen complies with the request. Where a private citizen asks the municipal employee to perform a task, and the employee performs the task so as to injure the citizen, the citizen cannot claim he was under the municipality’s direct or immediate control.” (Emphasis added.) (Burdinie, 139 Ill. 2d at 525-26.)

We do not believe that Burdinie supports the conclusion that the requirement of “direct and immediate control” has been fulfilled in this case.

Plaintiffs’ further contention that the defendants’ conduct was willful and wanton in reliance on Barth v. Board of Education (1986), 141 Ill. App. 3d 266, 490 N.E.2d 77, is misplaced. There, an 11-year-old plaintiff received a head injury in the school yard and was taken to the principal’s office, where school officials called the plaintiff’s mother. The plaintiff’s mother directed the school officials to take the injured child to the hospital. The school officials called 911, but made no effort to take the plaintiff to the hospital, which was directly across the street from the school. Plaintiff was not transported to the hospital for another hour, and as a result, suffered irreparable brain damage. In determining the city’s liability for the 911 dispatcher’s negligence, the court found the Tort Immunity Act and the four-part “special relationship” test inapplicable to the city’s 911 emergency system because it is not a police protection service. The court, instead, found the city liable under the standard of “willful and wanton misconduct” in section 15.1 of the 911 act (Ill. Rev. Stat. 1983, ch. 134, par. 45.1). (Barth, 141 Ill. App. 3d at 279.) The 911 act is not relevant to the present case.

Next, plaintiff Jane Doe contends on her own behalf that Horka engaged in department-supported gender-based discrimination through his questioning of her at the scene. Jane Doe argues that Horka treated her differently than he would have treated a male in the same situation in that the questions he asked her (“Where is your husband?”; “Do you know the guy?”; “Why would you leave your children in the apartment if there was a strange man there?”; and “Why did you leave your apartment without the key?”), and the comments he made (he described Jane Doe as “an hysterical woman,” and said “this girl is freaking out,” and “she’s not coherent anymore”) were rooted in gender-based stereotypes of females. Jane Doe claims a violation of her fourteenth amendment equal protection rights under 42 U.S.C. §1983 (1988). The trial court dismissed Jane Doe’s equal protection claim for failure to show gender-based discrimination or to plead the existence of a department policy of discrimination.

To sustain an action under section 1983, a plaintiff must allege (1) deprivation of a constitutional right and (2) that the constitutional deprivation was caused by a government official acting in accordance with a municipal policy or custom. (City of Oklahoma City v. Tuttle (1985), 471 U.S. 808, 85 L. Ed. 2d 791, 105 S. Ct. 2427; Monell v. Department of Social Services (1978), 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018; Jackson v. City of Chicago (N.D. Ill. 1986), 645 F. Supp. 926.) Alleging one specific incident of constitutional deprivation and generally alleging that the deprivation resulted from a custom or policy does not constitute adequate pleadings; a plaintiff must allege a specific pattern or series of incidents that support the general allegations. (Jackson, 645 F. Supp. at 927.) Because this is an equal protection claim and there is no general constitutional right to police protection (Hawk v. Perillo (N.D. Ill. 1985), 642 F. Supp. 380, 384; Lowers v. City of Streator (N.D. Ill. 1985), 627 F. Supp. 244, 246), the plaintiff must demonstrate that she was treated differently because of her membership in a certain class. (Watson v. City of Kansas City (10th Cir. 1988), 857 F.2d 690, 694.) An equal protection plaintiff need not prove a discriminatory policy against an entire class; discrimination against the plaintiff because of her membership in the class is by itself enough. Bohen v. City of East Chicago (7th Cir. 1986), 799 F.2d 1180, 1187.

Jane Doe relies on a number of cases to support the contention that defendants discriminated against her. Each case is distinguishable on the facts. In reliance on Price Waterhouse v. Hopkins (1989), 490 U.S. 228, 104 L. Ed. 2d 268, 109 S. Ct. 1775, Jane Doe first contends that the questions and comments at issue are the product of sex stereotyping. There, the plaintiff proved that gender-based comments in her employment file that she should take “a course in charm school,” should not use foul language because “[she’s] a lady,” and that she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry,” contributed to her denial of partnership. In finding that the defendant engaged in sex stereotyping, the court held:

“Remarks at work that are based on sex stereotypes do not inevitably prove that gender played a part in a particular employment decision. The plaintiff must show that the employer actually relied on her gender in making its decision. In making this showing, stereotyped remarks can certainly be evidence that gender played a part. *** Hopkins proved that Price Waterhouse invited partners to submit comments; that some of the comments stemmed from sex stereotypes; that an important part of the Policy Board’s decision of Hopkins was an assessment of the submitted comments; and that Price Waterhouse in no way disclaimed reliance on the sex-linked evaluations.” Price Waterhouse, 490 U.S. at 251, 104 L. Ed. 2d at 288, 109 S. Ct. at 1791.

In the present case, Jane Doe asserts that if Horka acted based on preconceived beliefs about women, then sex stereotyping occurred, and that the questions are sufficient evidence to show sex stereotyping. However, Jane Doe has not alleged facts supporting her contention that defendant Horka’s questions and comments were based on preconceived beliefs about women, and that defendants in no way disclaimed that these comments were sex-linked, as did the plaintiff, Hopkins, in the above case. Jane Doe has alleged no facts showing that Horka had a pattern of asking these specific questions of women nor that he would not have put the same questions to a man in the same predicament, as the trial court stated, e.g., “Where’s your wife?” Do you know the guy?” “Why would you leave your children?” The trial court held it was more likely that defendant Horka’s questions were an attempt to determine if he had a domestic situation and how he should proceed. We agree. Horka’s comments that Jane Doe was “hysterical” and that she was not coherent similarly fail to indicate a pattern of gender-based discrimination.

Jane Doe’s further reliance on Watson v. City of Kansas City and Lowers v. City of Streator is misplaced. In Watson, the plaintiff claimed that an unwritten policy or custom of the Kansas City police department allowed officers to respond differently to victims of domestic violence. In support, plaintiff offered evidence showing that out of 608 nondomestic assault cases where there was a known perpetrator, there were 186 arrests for an arrest rate of 31%. Out of 369 domestic assaults, there were only 69 arrests for a rate of 16%. Watson, 857 F.2d at 695.

In Lowers, the plaintiff was raped and reported the incident to the police. The plaintiff identified the rapist from police photographs and defendant police officers investigated the scene of the crime. One police officer defendant warned the plaintiff that the rapist would return and repeat the crime. Thereafter, defendants took no action to make a record of the incident, nor to apprehend the rapist, and the plaintiff was raped again by the same man. The rapist was arrested and pled guilty to both rapes. (Lowers, 627 F. Supp. at 245.) The court found a special relationship between the plaintiff and the police officers and that plaintiff stated a cause of action for denial of protective services. The court held that the plaintiff’s complaint sufficiently alleged a cause of action for denial of equal protection because plaintiff submitted evidence of a pattern of activity over a six-month period indicating a deliberate indifference on the part of the defendant city toward the prosecution of violent crimes against women. Lowers, 627 F. Supp. at 246-47.

Neither Watson nor Lowers supports Jane Doe’s contention. Although Jane Doe argues that she need not show a policy of discrimination, in both of the above cases plaintiffs alleged statistical evidence or a pattern of activity showing that the police department defendants allowed officers to respond differently to female victims of certain crimes. Further, the Lowers court found a special relationship between the plaintiff and defendant police officers which is not present here.

Jane Doe argues, in the alternative, that if a municipal policy, practice or custom must be shown, the practices and customs of the Calumet City police department support a claim of gender-based discrimination. Jane Doe contends that a municipality may be liable when more than one incident of discrimination evidences the existence of a policy, practice or custom. (Tuttle, 471 U.S. at 821, 85 L. Ed. 2d at 802-03, 105 S. Ct. at 2435.) In support, Jane Doe submitted evidence of a Calumet City police department policy of strip searching female arrestees held unconstitutional by the United States District Court for the Northern District of Illinois. See Doe v. Calumet City (N.D. Ill. December 12, 1990), No. 87 — 3594, Memorandum Opinion and Order.

However, defendants argue that the policy Jane Doe seeks to rely upon is far removed from the constitutional deprivation alleged: “At the very least there must be an affirmative link between the policy and the particular violation alleged.” (Tuttle, 471 U.S. at 823, 85 L. Ed. 2d at 804, 105 S. Ct. at 2436.) A department policy related to the strip searches of female arrestees is unrelated to an alleged department practice of asking discriminating questions of women at the scene of a home invasion. Jane Doe has shown no link between the policy and the alleged constitutional deprivation and has thus failed to substantiate a claim for gender-based discrimination against Calumet City.

Finally, all plaintiffs contend the trial court erred in rejecting their claim of intentional infliction of emotional distress against defendants Calumet City and Horka. The trial court ruled that plaintiffs’ complaint failed to show intent to injure. Plaintiffs argue that the complaint alleges all requisite elements of the tort of intentional infliction of emotional distress.

To sufficiently plead a cause of action for intentional infliction of emotional distress, plaintiffs must allege facts which establish (1) the conduct was extreme and outrageous; (2) the conduct resulted in severe emotional distress; (3) the conduct was intentional or in reckless disregard of the consequences; and (4) the conduct was the actual and proximate cause of emotional distress. Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 360 N.E.2d 765; McGrath v. Fahey (1988), 126 Ill. 2d 78, 533 N.E.2d 806.

The Illinois Supreme Court has determined that extreme and outrageous conduct is that which goes beyond all bounds of decency. (Public Finance, 66 Ill. 2d at 90.) Whether certain conduct can be characterized as extreme and outrageous necessarily depends on the facts of each case. Farnor v. Irmco Corp. (1979), 73 Ill. App. 3d 851, 855, 392 N.E.2d 591, 595.

Reckless disregard is conduct from which the actor knows severe emotional distress is certain or substantially certain to result. Liability extends to situations in which there is a high degree of probability that severe emotional distress will follow and the actor goes ahead in conscious disregard of it. (Public Finance, 66 Ill. 2d at 90.) It is not enough that the plaintiff experience fright or worry; to be actionable, the distress must be of such intensity and duration that no reasonable person could be expected to endure it. Public Finance, 66 Ill. 2d at 90.

The authority cited by plaintiffs in support of their contention that defendants’ conduct can be judged to be extreme and outrageous is distinguishable on the facts (Morrison v. Sandell (1983), 112 Ill. App. 3d 1057, 446 N.E.2d 290 (stuffing toilet paper and human waste in a file drawer held extreme and outrageous)), and therefore unpersuasive.

Plaintiffs contend that the intentional character of defendants’ conduct in not entering the apartment and in removing Jane Doe from the area was an abuse of position and authority. Jane Doe alleges that she and her children suffer severe emotional distress as a result of defendants’ conduct and that the conduct of defendants was either intentional, in reckless disregard of the consequences, or both. In support, plaintiffs cite McGrath v. Fahey. There, the court held that the plaintiff had adequately alleged intentional infliction of emotional distress where defendants, a bank and its president, threatened to exercise their power to coerce the plaintiff into signing over his second mortgage to the bank, something he would not do otherwise. The court held such coercion on the part of defendants in a position of authority met the intent requirement of an intentional infliction of emotional distress claim. McGrath, 126 Ill. 2d at 89-90.

In the present case, plaintiffs have not alleged that the police used their position of authority to coerce Jane Doe into doing something she would otherwise not do. The trial court found it likely that the police officers restrained Jane Doe from reentering the apartment to protect her from further danger. Further, defendant Horka’s decision not to break down the apartment door was a judgment call that cannot be said to have shown intent to inflict emotional distress under the facts set forth in plaintiffs’ complaint.

For the aforementioned reasons, the judgment of the trial court is affirmed.

Affirmed.

O’CONNOR, J., concurs.

JUSTICE MANNING,

dissenting:

I must dissent from the majority decision in this case. It is well established that a trial court should dismiss a cause of action on the pleadings only if it is clearly apparent that no set of facts can be proved which will entitle a plaintiff to recover. (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 565 N.E.2d 654.) When a challenge is raised as to all or part of a complaint pursuant to a section 2 — 615 motion to strike or dismiss, all well-pleaded facts in the attacked portion of the complaint are to be taken as true. (Miner v. Gillette Co. (1981), 87 Ill. 2d 7, 428 N.E.2d 478.) The role of the reviewing court is to determine whether the allegations of the complaint, when interpreted in the light most favorable to the plaintiff, are sufficient to set forth a cause of action upon which relief may be granted. (Zandrozny v. City Colleges (1991), 220 Ill. App. 3d 290, 581 N.E.2d 44.) Thus our review here is limited to the allegations set forth in the complaint. Plaintiffs pleaded in their complaint that:

Defendant Horka arrived at the scene and assumed a supervisory role;

Defendant Giglio arrived on the scene a short time before Horka;

From the time Horka arrived and thereafter, he was the officer in charge, assumed supervisory responsibility, and gave instructions and orders to other officers and maintained control of the scene, the building and all persons in the area; specifically, he maintained control of Jane so that she was restrained and unable to aid her children;

Plaintiff Jane Doe told Horka that the intruder said, “I’m going to kill your children,” and that she pleaded with Horka to break the door in;

Horka responded that he would not break down the door because he would be held responsible for the property damages; and that he further indicated there was nothing he could do and would not break down the door;

When plaintiff attempted to break down the door herself one or more of the defendants physically restrained and prevented her from going into the apartment;

At no time did Horka break down the door to the apartment nor did he or any other officer attempt or direct any other officer to enter the apartment in any other manner;

Defendants Horka, Beasley, Surufka and Giglio at all times material to the incident knew, were on notice, and were all uniquely aware of the facts and circumstances surrounding the intruder, his sexual assault of plaintiff, the danger and threat to Betty and John, and his presence in the apartment with Betty and John;

Defendant police officers were in the direct and immediate control of Betty and John Doe at 278 Yates Street, Calumet City, on the morning of December 20,1987, from 4:30 a.m. until 5:30 a.m.; and

Each officer had a duty to enter plaintiffs’ apartment, by force if necessary, to prevent injury to plaintiff Jane Doe’s minor children; and that none of the defendant officers took any action to enter the premises in which Betty and John Doe were exposed to danger.

While it has been held in Illinois that a municipality or its employees may not be held liable for failure to supply general police or fire protection (Huey v. Town of Cicero (1968), 41 Ill. 2d 361, 363, 243 N.E.2d 214), an exception to that general immunity exists where the public employee exercises care or custody over an individual. (Anthony v. City of Chicago (1988), 168 Ill. App. 3d 733, 736, 523 N.E.2d 22.) In those instances, the individual’s status is elevated beyond that of a member of the general public, the “special duty” exception is activated and the employee is liable for injury proximately caused by his negligence. Fessler v. R.E.J. Inc. (1987), 161 Ill. App. 3d 290, 296, 514 N.E.2d 515.

In Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 565 N.E.2d 654, plaintiff filed a three-count complaint against defendant seeking to recover damages for injuries he sustained while participating in an adult swimming class held at the Village of Glendale Heights sports complex. The trial court granted defendant’s motion to dismiss counts II and III of the complaint. The appellate court reversed the trial court, and the Illinois Supreme Court reversed the appellate court.

Count II of the complaint alleged liability in tort because defendant had established a “special relationship of control and supervision over the plaintiff.” Count III of the complaint alleged liability in tort because defendant operated the sports complex and swimming pool as a proprietary function. In arguing that the test for establishing a special relationship existed, plaintiff first asserted that defendant was uniquely aware of the particular danger or risk to which plaintiff was exposed. Plaintiff argued that his complaint clearly alleged that he was a “beginner swimmer” and that defendant supplied a “qualified” swimming instructor who knew or should have known that directing a beginner to jump into the shallow end of a concrete swimming pool could result in injuries.

As to specific acts or omissions by defendant which caused the injuries, plaintiff maintained that his complaint averred he was told to jump into the pool by the swimming instructor. Plaintiff likened the affirmative command given by the swimming instructor to that given by the fireman in Anthony v. City of Chicago (1988), 168 Ill. App. 3d 733, 523 N.E.2d 22, where the court found that by instructing a bystander to accompany him into a burning building the fireman’s affirmative act created a position of peril to the bystander.

As to the third part of the test, which requires that the specific acts in question be affirmative or willful in nature, plaintiff again relied on the fact that the swimming instructor commanded him to jump into the pool.

Plaintiff maintained that the fourth part of the test, which requires that the injury to plaintiff occur while plaintiff is under the direct and immediate control of defendant, should be disregarded. Specifically, he asserted that the court should adopt the language of Brooks v. Lundeen (1977), 49 Ill. App. 3d 1, 364 N.E.2d 423, which would find a special relationship based on traditional concepts of duty and foreseeability in negligence law. The appellate court refused to accept plaintiff’s argument and stated that the determination of whether a special relationship existed must be analyzed in accordance with the four-part test in Bell v. Village of Midlothian (1980), 90 Ill. App. 3d 967, 414 N.E.2d 104.

In reversing the appellate court, the supreme court stated that plaintiff had probably pleaded enough facts to satisfy parts 2 and 3 of the special relationship test, but that the complaint failed to contain sufficient averments of facts under parts 1 and 4 of the test to state a cause of action. The court reasoned that the complaint was devoid of any factual allegations that defendant was aware of any particular danger or risk to which plaintiff was exposed (Burdinie, 139 Ill. 2d at 521), and that plaintiff also failed to allege any facts to support a claim that he was injured while under the direct and immediate control of defendant. (Burdinie, 139 Ill. 2d at 525.) However, the court stated that a person is under the direct and immediate control of a municipality if a municipal employee who is acting with official authority which private citizens would reasonably believe they cannot refuse (such as a police officer’s authority) makes a request of the private citizen and the citizen complies with the request. (Burdinie, 139 Ill. 2d at 526.) The court found that because plaintiff was not forced to jump into the pool, nor ordered or instructed to jump by a person whom he could have reasonably believed he must obey, plaintiff failed to satisfy the fourth prong of the special relationship test.

Similarly, in Huey v. Town of Cicero (1968), 41 Ill. 2d 361, 243 N.E.2d 214, the Illinois Supreme Court affirmed the dismissal of a complaint against the defendant, finding that plaintiff’s complaint did not set forth a basis for deviation from the general statutory immunity granted public entities by the Local Governmental and Governmental Employees Tort Immunity Act. In that case, plaintiff’s decedent was fatally beaten by four white youths while en route to an employment office in Cicero, Illinois. Plaintiff’s complaint averred that the town failed to warn him of the dangers a black person faced being on the streets of Cicero at a particular time. The appellate court held that since the complaint did not allege that defendants knew of plaintiff’s decedent’s presence in town, or had reason to know that he required protection from a specific danger, no relationship could be found sufficient to impose a duty upon the city to warn plaintiff’s decedent of danger. (Huey, 41 Ill. 2d at 364.) The court further held that the complaint lacked allegations of specific acts or omissions by defendant or any causal connection between such conduct and the fatal injury to plaintiff’s decedent. Huey, 41 Ill. 2d at 364.

The instant case is distinguishable from Bwrdinie and Huey. Here, I find the facts as alleged in plaintiffs’ complaint expressly satisfy “unique awareness” and “control and supervision” over plaintiff sufficient to satisfy the Bell test. First, the complaint averred that plaintiff told Horka that the intruder was inside the apartment with her children and that the intruder had threatened to kill them. Plaintiff further advised Horka that the intruder had sexually assaulted her while she was inside the apartment. The complaint also stated that defendant knew, was on notice, and that all the agents of defendant were uniquely aware of the facts and circumstances and the danger and threat to Betty and John Doe. Thus, these pleadings suggest that defendant was uniquely aware of the particular risk that plaintiffs faced of being sexually assaulted, physically harmed or murdered.

Plaintiffs’ complaint further averred that Horka refused to break down the apartment door, refused to allow plaintiff and others to break the door down and told plaintiff that there was nothing he could do. Horka also refused to direct other officers to break down the door. The intruder remained inside the apartment and eventually injured plaintiffs. I find these pleadings sufficient to meet the second prong of the test, which requires that plaintiff allege specific acts or omissions by defendant which caused the injuries.

As to the third prong of the test, which requires that the specific acts in question be affirmative or willful, clearly the pleadings established that Horka willfully refused to break down the apartment door and restrained plaintiff and others from entering the apartment. The pleadings state that Horka advised plaintiff that he would not break down the door because he would be held responsible for the property damage, and that there was nothing he could do.

I would find that the fourth prong of the test, which requires that the injury occur while plaintiff is under the direct and immediate control of defendant, is satisfied here. The pleadings state that defendant police officers were in the direct control of the residence at 278 Yates Street when the injury occurred. They further state that Horka was the supervising officer, gave orders and maintained control of the scene, the building and all persons in the area. More significantly, Horka physically restrained plaintiff, other officers and paramedics from entering the apartment or breaking down the door.

I believe that the language in Burdinie is controlling here. Plaintiff and her neighbors were ordered not to enter the apartment by Horka. Certainly, they could reasonably believe that Horka had the authority to restrain them from entering the apartment and that they could not refuse that request. Horka arrived at the scene, assumed a supervisory role, and the other officers complied with his orders.

Although the Burdinie court held that no special relationship existed, the facts here are distinguishable from those in Burdinie. The defendant in Burdinie was a swimming instructor, not a police officer. The facts in Burdinie do not indicate that the instructor had knowledge of a known danger that existed in the swimming pool, while the pleadings in this case specifically state that defendant knew of the danger plaintiffs faced. Further, unlike the plaintiff in Huey, plaintiff in this case specifically alleged in the complaint that defendant knew of the danger plaintiffs faced.

I would recognize, as the majority apparently cannot, that the officers’ knowledge of plaintiffs’ predicament and their expression of intent to help, coupled with their affirmative acts, amounted to direct control over plaintiffs. Restraining plaintiff Jane Doe and others from acting on their own behalf is an affirmative act which I believe constituted direct physical control. Indeed, the majority decision here relieves the City of Calumet City and its police officers of any obligation to do more than show up at the scene of a crime. Once at the scene, they are free to stand by and observe without incurring liability for their action, likened to spectators at a wrestling match. This is true even if the officers have special knowledge that harm will be done to a victim who cries out for help.

I find there are sufficient allegations in the complaint to establish that the municipality “instructed,” “directed” or otherwise exercised direct and immediate control over plaintiffs. I would allow plaintiffs to show that respondent’s failure to help during this crisis arose, not out of the sound exercise of professional judgment, but from arbitrariness and capriciousness that cannot be condoned by this State. My disagreement with the majority arises from its failure to recognize, as the statute requires, that a motion to dismiss be viewed in the light most favorable to plaintiff. When plaintiffs’ complaint is viewed in that light, it is clear that plaintiffs have pleaded facts and circumstances establishing that the City of Calumet City’s actions in this case created a special relationship.

Therefore, I respectfully dissent.

       Jane Doe in the Federal district case is not the same Jane Doe in the present case.


author: PRESIDING JUSTICE INGLIS JUSTICE McLAREN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL PFISTER, Defendant-Appellant.
    Second District
    No. 2 — 91—1326
    Opinion filed February 17, 1993.
    McLAREN, J., dissenting.
    G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Thomas F. Baker, State’s Attorney, of Woodstock (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Michael Pfister, appeals after a jury convicted him of armed robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18 — 2), home invasion (Ill. Rev. Stat. 1989, ch. 38, par. 12 — ll(aXl)), residential burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 3), and unlawful possession of a stolen vehicle (Ill. Rev. Stat. 1989, ch. 95 1/2, par. 4 — 103(a)(1)). He was sentenced to concurrent terms of 20 years’ imprisonment for armed robbery and home invasion, and 10 years’ imprisonment for residential burglary and unlawful possession of a stolen vehicle. On appeal, defendant contends that the trial judge erred when imposing an extended sentence for unlawful possession of a stolen vehicle.

On March 12, 1991, defendant entered the home of Constance Sears in Woodstock, Illinois, through a basement window. Sears testified that she was sleeping at 10 a.m. when she heard a thumping noise. She investigated and found defendant in her home. He thrust a kitchen knife towards Sears and asked her for money and jewelry. Sears ran to a neighbor’s house while defendant was searching her jewelry box.

Defendant had driven a white Oldsmobile to Sears’ home, which he purchased from a man in a tavern for $100 and which he knew had been stolen. After confronting Sears and taking a watch and a pin, defendant fled in the car. He was chased by the police chief from Richmond until he crashed into a ditch.

A jury found defendant guilty of armed robbery, home invasion, residential burglary and unlawful possession of a stolen vehicle. On the unlawful possession of a stolen vehicle charge, defendant was sentenced to a term of 10 years’ imprisonment, to run concurrently with the prison sentences for the other charges. Defendant filed a motion for a new trial before sentencing, but did not file a motion to reconsider his sentence. He now appeals.

Defendant contends that the trial court erred in imposing an extended sentence of 10 years’ imprisonment for unlawful possession of a stolen vehicle, a Class 2 felony. (Ill. Rev. Stat. 1989, ch. 95 1/2, par. 4 — 103(b).) He argues that both section 5 — 8—2(a) of the Unified Code of Corrections (the Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8— 2(a)) and People v. King (1985), 140 Ill. App. 3d 937, among other cases, stand for the proposition that an extended-term sentence may be imposed for only the class of the most serious offense of which the defendant is convicted. Because defendant was also convicted of armed robbery and home invasion, both Class X felonies (see Ill. Rev. Stat. 1989, ch. 38, pars. 18 — 2(b), 12 — 11(c)), he requests that his sentence for unlawful possession of a stolen vehicle be reduced to seven years’ imprisonment, the maximum nonenhanced sentence for a Class 2 felony (see Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)(5)).

Originally, the State confessed error in this appeal. However, one day after confessing error, the State moved to withdraw its confession of error and file an appellee brief instanter. The motion was granted, and the State filed a brief in which it argued, citing People v. Lewis (1992), 235 Ill. App. 3d 1003, appeal allowed (1993), 148 Ill. 2d 565, that defendant waived this issue by failing to file a post-trial motion to reconsider his sentence. The State requests that this court dismiss the appeal.

In his reply brief, defendant claims that Lewis was wrongly decided and asks us to reconsider the holding. Defendant interprets Lewis to mean that a motion to reconsider sentence is a jurisdictional prerequisite to filing an appeal when the defendant only wishes to appeal the sentence. Defendant urges us to hold that failure to file a post-trial motion to reconsider sentence results in waiver, which can be circumvented by the plain error rule (134 Ill. 2d R. 615(a)).

We begin our discussion with Lewis. There, a jury convicted the defendant of unlawful delivery of a controlled substance (Ill. Rev. Stat. 1987, ch. 56 1/2, par. 1401(c)). She was sentenced to probation, public service and a street-value fine. The defendant appealed only her sentence, claiming that her probationary term and the street-value fine were miscalculated and that she was not given credit for time served. Lewis, 235 Ill. App. 3d at 1004.

This court dismissed the appeal, following the reasoning in People v. Macke (1992), 224 Ill. App. 3d 815, that section 5 — 8—1(c) of the Code requires a defendant to file a motion to reduce the sentence within 30 days after the sentence was imposed in order to appeal only the sentence. (Lewis, 235 Ill. App. 3d at 1005.) Section 5 — 8—1(c) of the Code states, in pertinent part:

“(c) A motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within 30 days after the sentence is imposed. ***
***
If a motion to reduce a sentence is timely filed within 30 days after the sentence is imposed, then for purposes of perfecting an appeal, a final judgment shall not be considered to have been entered until the motion to reduce a sentence has been decided by order entered by the trial court.” Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(c).

We continue to follow the Macke holding and interpret Lewis to mean that, when appealing only the sentence after a trial on the merits, the failure to file a post-sentencing motion results in waiver. (See People v. Spencer (1992), 229 Ill. App. 3d 1098, 1101.) Lewis primarily relied on Macke, in which the court found the sentencing issue, the only issue presented for review, to be waived. The court affirmed the judgment. (Macke, 224 Ill. App. 3d at 816.) Although this court dismissed the appeal in Lewis, which was factually analogous to Macke, it was because the issue had been waived:

“For the foregoing reasons, we find that defendant has failed to properly preserve any error which might have occurred in sentencing, thereby waiving her right to appeal the issues she raises relating to sentencing.” (Emphasis added.) Lewis, 235 Ill. App. 3d at 1006.

While we follow the holding in the Macke case, we disagree with part of an analogy made by the court, which we believe could be a source of confusion:

“Requiring a defendant to file a motion to reduce his sentence is similar to requiring a post-trial motion to preserve issues on appeal (Ill. Rev. Stat. 1989, ch. 38, par. 116 — 1(b)) and requiring a defendant who pleads guilty to move to withdraw that plea before appealing. (134 Ill. 2d R. 604(d).)” (Emphasis added.) (Macke, 224 Ill. App. 3d at 816.)

We agree that this situation is analogous to preserving issues on appeal by filing a post-trial motion. (See People v. Enoch (1988), 122 Ill. 2d 176.) However, our court has interpreted Rule 604(d) and supreme court precedent to mean that the filing of a motion to withdraw a guilty plea, or a motion to reconsider sentence when only the sentence is being challenged after a guilty plea, is a jurisdictional prerequisite to be met before filing an appeal.

The supreme court precedent to which we refer is People v. Wilk (1988), 124 Ill. 2d 93, in which the court held that a motion to withdraw a guilty plea is a “condition precedent” to appeal a plea of guilty under Rule 604(d). (Wilk, 124 Ill. 2d at 106-07.) Thereafter, on August 1, 1992, Rule 604(d) was amended also to require a motion to reconsider the sentence, if only the sentence is being challenged, before an appeal can be taken after a plea of guilty. (Official Reports Advance Sheet No. 8 (April 15, 1992) R. 604(d), eff. August 1, 1992.) This court has stated recently that the requirements of Rule 604(d) are jurisdictional prerequisites. (See People v. Ramage (1992), 229 Ill. App. 3d 1027, 1030; People v. Ishmon (1991), 213 Ill. App. 3d 653, 657.) However, in contrast to a guilty plea situation, the supreme court has not expressly stated that, after a trial on the merits, a motion to reduce sentence under section 5 — 8—1(c) of the Code is a “condition precedent” to filing an appeal. Therefore, we will not do so either.

One may wonder why the post-conviction procedures following guilty pleas are treated as jurisdictional requirements under Rule 604(d), while the failure to follow post-conviction procedures after a trial on the merits results in waiver. We believe the supreme court alluded to this distinction in Wilk:

“Rule 604(d) was designed to meet a specific need. A few years after the effective date of our 1970 Constitution, it came to the attention of this court that a large number of appeals in criminal cases were being taken from pleas of guilty. One appellate court justice estimated that one-third of all criminal appeals in his division were from pleas of guilty. A review of criminal appeal filings in the appellate court in the five judicial districts substantiated this estimate. A review of the appeals in those cases revealed that many of the errors complained of could and undoubtedly would be easily and readily corrected, if called to the attention of the trial court. The rule was designed to eliminate needless trips to the appellate court and to give the trial court an opportunity to consider the alleged errors and to make a record for the appellate court to consider on review in cases where defendant’s claim is disallowed.” (Wilk, 124 Ill. 2d at 106.)

Further, the court acknowledged that the need for additional fact finding may be necessary before issues involving guilty pleas are properly before a reviewing court:

“In short, Rule 604(d) has a purpose. That purpose is to ensure that before a criminal appeal can be taken from a guilty plea, the trial judge who accepted the plea and imposed sentence be given the opportunity to hear the allegations of improprieties that took place outside the official proceedings and dehors the record, but nevertheless were unwittingly given sanction in the courtroom. Rule 604(d) provides for fact" finding to take place at a time when witnesses are still available and memories are fresh. (People v. Frey (1977), 67 Ill. 2d 77.) A hearing under Rule 604(d) allows a trial court to immediately correct any improper conduct or any errors of the trial court that may have produced a guilty plea. The trial court is the place for fact finding to occur and for a record to be made concerning the factual basis upon which a defendant relies for the grounds to withdraw a guilty plea. If the motion to withdraw the plea is denied, that decision can be considered on review. As the situation now stands, some divisions of the appellate court are hearing these appeals on their merits. [Citations.] As we stated in People v. Frey (1977), 67 Ill. 2d 77, 85:
‘It is mandatory for the protection of the accused, as well as society, that courts of original and appellate jurisdiction confine themselves to their respective spheres. Matters which require fact finding based on oral and written evidence dehors the record are primarily within the realm of the circuit court. Appeals from a judgment of that court are the function of reviewing courts, which operate on the record of the lower court.’ ” Wilk, 124 Ill. 2d at 104-05.

Since the amendment to Rule 604(d), the supreme court, in People v. Pasch (1992), 152 Ill. 2d 133, has applied the waiver rule and plain error analysis to a sentencing issue where no post-sentencing motion had been filed in the trial court. (Pasch, 152 Ill. 2d at 216.) Although Pasch is distinguishable from our case, in addition to Lewis and Macke, because the sentence in Pasch was not the only issue appealed, we believe Pasch illustrates our supreme court’s intent to treat the failure to file a post-sentencing motion as a matter of waiver, as is done analogously under Enoch (122 Ill. 2d 176).

Thus, we hold that we have jurisdiction in this cause and that Lewis is limited to a finding that when appealing only the sentence after a trial on the merits, the failure to file a post-sentencing motion results in waiver. We recognize that all appellate court districts do not follow the rationale of Macke and Lewis. (See People v. Turner (4th Dist. 1992), 233 Ill. App. 3d 449; People v. Sims (3d Dist. 1992), 233 Ill. App. 3d 471.) The supreme court may address this issue in Lewis in order to achieve continuity among the appellate court districts.

Based on Macke and Lewis, defendant has waived the issue of whether the trial court erred in sentencing him to an extended sentence for unlawful possession of a stolen vehicle. However, we will address the issue under Rule 615(a) (134 Ill. 2d R. 615(a)), as the error affected substantial rights that defendant possesses, namely, his right to equal protection under the law.

Section 5 — 8—2(a) of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—2(a)) has been interpreted by our court to allow extended-term sentences only for the class of the most serious offense of which the offender was convicted. (People v. King (1985), 140 Ill. App. 3d 937, 945.) Because defendant was also convicted of armed robbery and home invasion, two Class X felonies, the trial judge could not sentence him to an extended term for unlawful possession of a stolen vehicle, a Class 2 felony. Thus, pursuant to our authority under Supreme Court Rule 615(b)(4) (134 Ill. 2d R. 615(b)(4)), we reduce defendant’s sentence for unlawful possession of a stolen vehicle to a concurrent term of seven years’ imprisonment, the maximum nonenhanced sentence for a Class 2 felony (see Ill. Rev. Stat. 1989, ch. 38, par. 1005— 8 — 1(a)(5)).

For the foregoing reasons, we modify and reduce defendant’s sentence for unlawful possession of a stolen vehicle to a concurrent term of seven years’ imprisonment.

Affirmed as modified.

QUETSCH, J., concurs.

JUSTICE McLAREN,

dissenting:

I respectfully dissent. I authored People v. Lewis (1992), 235 Ill. App. 3d 1003, appeal allowed (1993), 148 Ill. 2d 565. That opinion was based upon People v. Wilk (1988), 124 Ill. 2d 93, and People v. Wallace (1991), 143 Ill. 2d 59. The supreme court in Wilk and Wallace affirmed the dismissals in the appellate court. Applying the rationale contained in Macke (224 Ill. App. 3d 815) to the dispositions of the cases in Wilk and Wallace, I believe that a post-trial motion seeking the reconsideration of a criminal sentence “is a condition precedent to the appeal.” (Wilk, 124 Ill. 2d at 107.) Without such a motion, the appellate court does not have jurisdiction to consider the merits of the appeal.

The rationale contained in the majority opinion herein only cites cases where the appeal of an improper sentence was only one of among several issues. In those cases the appellate court obtained jurisdiction of the appeal, due to those other justiciable issues.

As in Macke, Lewis, and this case, the only issue by which we may obtain jurisdiction is the alleged improper sentence. I am constrained to follow the language contained in Wilk and Wallace and, therefore, believe that we do not have jurisdiction to consider the merits of this appeal.

If I were to consider the merits of the appeal, I would concur in the majority opinion.