Davis v. Village of Maywood

                                                                                SECOND DIVISION
                                                                                December 29, 2023

                                           No. 1-21-1373

                          IN THE APPELLATE COURT OF ILLINOIS
                                FIRST JUDICIAL DISTRICT


 ANDREW DAVIS and JAIRAME DAVIS, as Independent                             )    Appeal from
 Administrator on Behalf of the Estate of Lee Anthony Davis,                )    the Circuit Court
                                                                            )    of Cook County.
        Plaintiffs-Appellants,                                              )
                                                                            )    2018-L-64020
                 v.                                                         )
                                                                            )    Honorable
 THE VILLAGE OF MAYWOOD,                                                    )    Cheryl D. Ingram,
                                                                            )    Judge Presiding.
        Defendant-Appellee.                                                 )

       JUSTICE McBRIDE delivered the judgment of the court, with opinion.
       Presiding Justice Howse and Justice Cobbs concurred in the judgment and opinion.

                                             OPINION

¶1     We determined in an earlier appeal that the tort claims the plaintiffs electronically filed on

the last day of the limitations period, but which the clerk of the court rejected four days later, were

not time barred. Davis v. Village of Maywood, 

. On remand, the plaintiffs

filed a first amended complaint. Andrew Davis and the estate of his deceased father, Lee Anthony

Davis, sued the Village of Maywood. They alleged that law enforcement’s woeful response to

Andrew’s 911 call about domestic violence that they were experiencing was willful and wanton in

light of the 10 statutory duties imposed upon officers responding to intrafamily abuse. The police

officers’ actions and inactions resulted in injuries to Andrew and the death of Lee Anthony. Section

304(a) of the Illinois Domestic Violence Act of 1986 (Act) contains seven of those duties, stating:

       “Whenever a law enforcement officer has reason to believe that a person has been abused,
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       neglected, or exploited by a family or household member, the officer shall immediately use

       all reasonable means to prevent further abuse, neglect, or exploitation, including [for

       instance, making an arrest, providing information about obtaining an order of protection,

       or providing transportation for the victim to a medical facility or shelter or court].” 750

       ILCS 60/304(a) (West 2016).

The three other similar duties set out in section 304(b) of the Act are relevant “[w]henever a law

enforcement officer does not exercise arrest powers or otherwise initiate criminal proceedings.”

750 ILCS 60/304(b) (West 2016). According to the complaint, Maywood police officers did not

provide any of the enumerated forms of intervention when they responded to Andrew’s call about

his abusive brother, Gale Jackson. Instead, they questioned Andrew and his father in front of Gale,

then transported and left Gale at a hospital. When Gale returned to the residence hours later, he

attacked both of his accusers and fatally injured Lee Anthony. The circuit court granted the

municipality’s motion to dismiss the complaint, not only finding that the plaintiffs’ allegations

were factually deficient, but also denying leave to amend. The court found, as a matter of law, that

the officers had acted “in good faith” and that the plaintiffs’ allegations were fatally defective

under the immunity provision that the municipality is afforded by section 305 of the Act. See 750

ILCS 60/305 (West 2016). Section 305 provides,

       “Any act of omission or commission by any law enforcement officer acting in good faith

       in rendering emergency assistance or otherwise enforcing this Act shall not impose civil

       liability upon the law enforcement officer or his or her supervisor or employer, unless the

       act is a result of willful or wanton misconduct.” 750 ILCS 60/305 (West 2016).

Thus, the issue presented in this second appeal is whether it was error to grant the municipality’s



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motion to dismiss on the basis that the plaintiffs did not and could not allege willful and wanton

misconduct.

¶2     The first amended complaint alleges the following. Gale’s assault upon Andrew and Lee

Anthony in their Maywood home on July 13, 2017, was the culmination of two days of violent

behavior. On July 11, while in Maywood, Gale struck a friend over the head with a glass bottle

and was arrested for battery. After being released from custody on a personal recognizance bond,

Gale returned to the Davis residence, and, over the course of the next day, July 12, he was

“aggressive and violent” towards Andrew, Lee Anthony, and others in the household. “At the

culmination of this [hours long] rampage,” Gale “swung a crutch recklessly at Andrew.” “[I]n the

early morning hours of July 13th,” when Andrew dialed 911 and reported that “he thought that

[Gale] was going to kill someone in the home,” Maywood police officers and an ambulance

responded to the scene. The officers then interviewed the three men together, which was “against

proper [police] protocol and training.” Fearful of infuriating Gale, Andrew initially denied making

the 911 call. But when the officers were about to leave, he admitted to being the caller. Andrew

and Lee Anthony also told the police that Gale was “dangerous,” and one of the officers

“commented that he knew [Gale] and that he knew [him] to be dangerous.” These “circumstances

*** were a clear indication that both Andrew Davis and Lee Anthony Davis were domestic

violence victims in need of protection.”

¶3     The police did not arrest Gale, “though they had probable cause to do so, but instead [they]

merely transported him to the hospital and left him there.” Although there was some indication in

their original complaint that “[Gale] was taken to the hospital for a mental health evaluation,” in

the pleading at issue, there was no indication as to why Gale was transported to a medical facility.



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¶4     “At no time during this incident did any Maywood police officer ask Andrew Davis or Lee

Anthony Davis whether they wanted to sign a criminal complaint against [Gale] Jackson.” The

subsequent allegations plead other duties of active intervention that are required by section 304(a)

and (b) of the Act (750 ILCS 60/304(a), (b) (West 2016)). The officers did not (1) ask whether

either man wanted an emergency order of protection, (2) explain to them how to obtain such an

order, (3) transport or offer to transport them to obtain an emergency order, (4) accompany them

while they retrieved necessary personal belongings and possessions from the residence, (5) take

either man to a place of safety, (6) offer medical treatment, (7) offer to preserve evidence of the

abuse, or (8) summarize the relief that was available to them pursuant to the Act.

¶5     When Gale was released from the hospital “later that night” (July 13), he went back to the

house. He found Andrew asleep and choked him into unconsciousness. As Andrew came to, a

“confrontation” ensued in which Lee Anthony intervened. Gale then pushed Lee Anthony down a

set of stairs, causing him to sustain a head injury and lose consciousness. Lee Anthony was

transported to a hospital and declared dead. Less than 12 hours had elapsed since Andrew asked

the 911 operator to send help to the Davis residence because Gale “was going to kill someone in

the home.” Gale was arrested and charged with aggravated domestic battery and murder. In their

appellate brief, the plaintiffs state that Gale has since been indicted for first degree murder (a

felony), that Gale was twice found fit to stand trial, and that the criminal case against him is still

pending.

¶6     Counts I and II are claims brought by Lee Anthony’s estate for damages under the

Wrongful Death Act (740 ILCS 180/1 (West 2018)) and the Survival Act (755 ILCS 5/27-6 (West

2018)) due to the “willful and wanton actions of one or more Maywood police officers” when they



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“failed to do their duty to prevent a crime *** as required by the [Domestic Violence] Act.” Count

III is Andrew’s claim for damages based on the officers “willfully and wantonly fail[ing] to do

their duty to prevent [a crime] *** as required by the Act.”

¶7     In a section 2-619.1 combined motion to dismiss (735 ILCS 5/2-619.1 (West 2018)),

Maywood argued that the plaintiffs were relying on legal conclusions, including that the officers

“willfully and wantonly failed to do their duty [to persons protected by the Act].” In the alternative,

Maywood argued that it was immunized from liability by various sections of the Local

Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1-101 et seq.

(West 2018) or by section 6-103 of the Mental Health and Developmental Disabilities Code (405

ILCS 5/6-103(d) (West 2018)), primarily because the plaintiffs had not alleged willful and wanton

misconduct.

¶8     During oral arguments, the circuit court found that the allegations of willful and wanton

conduct were factually deficient. Removing Gale from the home “to a place more equipped to deal

with someone who may be dangerous” was a “reasonable manner” of making Andrew and Lee

Anthony “safe” and was not “the type of action or inaction that would shock the consciousness

[(sic)] or [was] in an utter disregard for the well-being of the victims.” Furthermore, the officers

were not subject to an open-ended duty to protect Andrew and Lee Anthony from Gale. Also,

although Maywood was not immunized by either statute that the municipality cited, it was

immunized by the similarly worded statute regarding willful and wanton conduct that we quoted

in the first paragraph of this order, section 305 of the Act. See 750 ILCS 60/305 (West 2016). The

plaintiffs requested leave to replead, as these were the first allegations that the circuit court had

reviewed. However, the court entered a dismissal with prejudice, concluding that no facts could



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be alleged to show willful and wanton misconduct.

¶9     On appeal, the plaintiffs argue that both of the circuit court’s findings (factual deficiency

and statutory immunity) are incorrect. They contend that the Maywood officers failed to perform

any of the duties mandated by section 304(a), particularly, they failed to make an arrest, to offer

information about how to obtain an order of protection, and to make a referral to a social service

agency (750 ILCS 60/304(a)(1), (4), (5) (West 2016)) and willfully and wantonly failed to perform

these duties. Plaintiffs allege that, as a foreseeable consequence of officers’ misconduct, Gale

engaged in further domestic abuse in the Davis home, for which Maywood is liable. Maywood

responds that the plaintiffs failed to allege actionable misconduct and the dismissal with prejudice

was proper.

¶ 10   Section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2018))

provides that arguments with respect to pleadings pursuant to sections 2-615 and 2-619 of the Code

(735 ILCS 5/2-615, 2-619 (West 2018)) may be filed together in a single motion. While a motion

to dismiss pursuant to section 2-615 of the Code disputes the legal sufficiency of the complaint, a

motion pursuant to section 2-619 admits the legal sufficiency of the complaint but asserts an

affirmative defense that defeats the claim. Brooks v. McLean County Unit District No. 5, 

.

¶ 11   Relevant to the section 2-615 portion of Maywood’s motion is the principle that, in this

“fact-pleading jurisdiction, a pleading must be both legally and factually sufficient. It must assert

a legally recognized cause of action and it must plead facts which bring the particular case within

that cause of action.” (Internal quotation marks omitted.) Chandler v. Illinois Central R.R. Co.,

 (2003) (citing 3 Richard A. Michael, Illinois Practice, Civil Procedure Before



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Trial § 23.4 (1989)). While the plaintiff is not required to set out his or her ultimate evidence, he

or she must allege sufficient facts to state a claim, not simply conclusions. Marshall v. Burger

King Corp., 

 (2006); Illinois Graphics Co. v. Nickum, 

(1994) (“not only are allegations of law or conclusions not required, they are improper”).

Accordingly, when reviewing a decision to grant a motion pursuant to section 2-615, we consider

whether the allegations, construed in the light most favorable to the plaintiff, are sufficient to

establish a cause of action upon which relief may be granted. Marshall, 

.

¶ 12      The municipality’s other argument for dismissal, immunity, is an affirmative matter

properly raised in a motion to dismiss under section 2-619(a)(9). See 735 ILCS 5/2-619(a)(9)

(West 2018); Van Meter v. Darien Park District, 

 (2003). After addressing the

plaintiffs’ arguments about the factual sufficiency of their allegations, we will consider any

additional legal principles that are necessary to resolve their section 2-619 arguments.

¶ 13      Whether the dismissal was pursuant to section 2-615 or 2-619, we accept as true all well-

pled facts and all reasonable inferences that may be drawn from those facts, while construing the

allegations in the complaint in the light most favorable to the plaintiff. Torres v. Peoria Park

District, 

. A circuit court may dismiss a complaint pursuant to

section 2-615 or 2-619 with no opportunity to replead only if it is clearly apparent that no set of

facts can be proven that will entitle plaintiff to recovery. Illinois Graphics Co., 

(regarding section 2-615); Feltmeier v. Feltmeier, 

 (2003) (regarding section

2-619).

¶ 14      Our review of a dismissal under either section 2-615 or 2-619 is de novo. King v. First

Capital Financial Services Corp., 

 (2005). The de novo standard is also applicable



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when addressing a question of statutory interpretation. Lacey v. Village of Palatine, 

 (2009).

¶ 15   Section 305 of the Act states:

       “Limited law enforcement liability. Any act of omission or commission by any law

       enforcement officer acting in good faith in rendering emergency assistance or otherwise

       enforcing this Act shall not impose civil liability upon the law enforcement officer or his

       or her supervisor or employer, unless the act is a result of willful or wanton misconduct.”

       750 ILCS 60/305 (West 2016).

¶ 16   In other words, pursuant to section 305, the municipality is liable for the plaintiffs’

damages only if the law enforcement officers engaged in willful and wanton conduct that

proximately caused the plaintiffs’ damages. 750 ILCS 60/305 (West 2016). Illinois does not treat

willful and wanton misconduct as a separate and independent tort. Brooks, 

 (citing Ziarko v. Soo Line R.R. Co., 

 (1994)). Instead, willful and

wanton misconduct is regarded as an aggravated form negligence and as essentially a hybrid

between conduct that is considered negligent and conduct that is considered intentionally tortious.

Sparks v. Starks, 

 (2006). A successful claim based on a theory of willful

and wantonness is a claim in which the plaintiff pleads and proves the basic elements of a

negligence claim—including that the defendant owed a duty to the plaintiff, the defendant

breached the duty, and the breach was the proximate cause of the plaintiff’s injury (Brooks, 

 (citing Krywin v. Chicago Transit Authority, 

(2010)))—and the plaintiff also alleges and establishes either a conscious disregard for the

plaintiff’s welfare or a deliberate intention to harm. Brooks, 

 (citing



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Doe v. Chicago Board of Education, 

 (2004)); Sneed v. Howell, 

 (1999) (willful and wanton conduct consists of a course of action that shows an utter

indifference to or conscious disregard for the safety of others or an actual or deliberate intent to

cause harm); Murray v. Chicago Youth Center, 

 (2007) (reviewing supreme court

precedent defining willful and wanton conduct).

¶ 17   More succinctly, to state a claim for damages under the Act, the plaintiff must allege that

(1) he or she is a person in need of protection under the Act, (2) the statutory law enforcement

duties owed to him or her were breached, (3) the duties were breached by the willful and wanton

acts or omissions of law enforcement officers, and (4) the misconduct proximately caused the

plaintiff’s injuries. Moore v. Green, 

 (2006) (citing Calloway v. Kinkelaar, 

 (1995)). Whether a cause of action has been stated and whether and to what extent

immunities are available will depend upon the particular facts and circumstances of each case.

Calloway, 

.

¶ 18   When interpreting a statute, our role is to determine and give effect to the intent of the

legislature. Moore, 

; Barnett v. Zion Park District, 

 (1996).

Our inquiry begins with the statute’s language, the best indicator of legislative intent. Moore, 

; Barnett, 

. Statutory terms are to be read with their plain, ordinary,

and popularly understood meaning. Moore, 

. We are to evaluate a statute as a

whole, with each provision being construed in connection with every other provision, and not

depart from the plain language of the statute by reading into it exceptions, limitations, or conditions

that conflict with the express legislative intent. Barnett, 

.

¶ 19   The Act, now more than 35 years old, is “a comprehensive statutory scheme for reform of



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the legal system’s historically inadequate response to domestic violence.” Moore, 

. The “sad statistics of potentially preventable death in domestic arguments are legion, but

suffice it to say that it was long ago recognized that careful intervention by law enforcement and

the judiciary has been recognized to save many lives.” Fenton v. City of Chicago, 

. The General Assembly intended for the Act “to be ‘liberally construed and

applied to promote its underlying purposes.’ ” Calloway, 

 (quoting 750 ILCS

60/102 (West 1992)). Those remedial purposes in relevant part are to

            “(1) Recognize domestic violence as a serious crime against the individual and society

       which produces family disharmony in thousands of Illinois families, promotes a pattern of

       escalating violence which frequently culminates in intra-family homicide, and creates an

       emotional atmosphere that is not conducive to healthy childhood development;

            ***

            (3) Recognize that the legal system has ineffectively dealt with family violence in the

       past, allowing abusers to escape effective prosecution or financial liability, and has not

       adequately acknowledged the criminal nature of domestic violence; that, although many

       laws have changed, in practice there is still widespread failure to appropriately protect and

       assist victims;

            ***

            (5) Clarify the responsibilities and support the efforts of law enforcement officers to

       provide immediate, effective assistance and protection for victims of domestic violence,

       ***; and

            (6) Expand the civil and criminal remedies for victims of domestic violence; including,


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       when necessary, the remedies which effect physical separation of the parties to prevent

       further abuse.” 750 ILCS 60/102(1), (3), (5), (6) (West 2016).

¶ 20   Accordingly, the Act “streamlines the procedures that victims of domestic violence must

use to obtain orders of protection *** and pushes petitions for orders of protection to the top of the

trial court dockets.” Moore, 

. Subsequent sections of the Act “shift[ ] focus from

helping victims to obtain orders of protection to instructing law enforcement agencies and officers

to enforce them.” Moore, 

. “The Act provides that law enforcement officers

may arrest, without warrants, persons who violate orders of protection.” Moore, 

.

Also, the specific sections of the Act that are relevant here, section 304(a) and (b), require law

enforcement officers to actively assist victims of abuse, as follows:

            “(a) Whenever a law enforcement officer has reason to believe that a person has been

       abused, neglected, or exploited by a family or household member, the officer shall

       immediately use all reasonable means to prevent further abuse, neglect, or exploitation,

       including:

               (1) Arresting the abusing, neglecting and exploiting party, where appropriate;

               (2) If there is probable cause to believe that particular weapons were used to

            commit the incident of abuse, subject to constitutional limitations, seizing and taking

            inventory of the weapons;

               (3) Accompanying the victim of abuse, neglect, or exploitation to his or her place

            of residence for a reasonable period of time to remove necessary personal belongings

            and possessions;

               (4) Offering the victim of abuse, neglect, or exploitation immediate and adequate


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            information (written in a language appropriate for the victim or in Braille or

            communicated in appropriate sign language), which shall include a summary of the

            procedures and relief available to victims of abuse under subsection (c) of Section 217

            and the officer’s name and badge number;

                (5) Providing the victim with one referral to an accessible service agency;

                (6) Advising the victim of abuse about seeking medical attention and preserving

            evidence (specifically including photographs of injury or damage and damaged

            clothing or other property); and

                (7) Providing or arranging accessible transportation for the victim of abuse (and, at

            the victim’s request, any minors or dependents in the victim’s care) to a medical facility

            for treatment of injuries or to a nearby place of shelter or safety; or, after the close of

            court business hours, providing or arranging for transportation for the victim (and, at

            the victim’s request, any minors or dependents in the victim’s care) to the nearest

            available circuit judge or associate judge so the victim may file a petition for an

            emergency order of protection under subsection (c) of Section 217. When a victim of

            abuse chooses to leave the scene of the offense, it shall be presumed that it is in the best

            interests of any minors or dependents in the victim’s care to remain with the victim or

            a person designated by the victim, rather than to remain with the abusing party.

            (b) Whenever a law enforcement officer does not exercise arrest powers or otherwise

      initiate criminal proceedings, the officer shall:

                (1) Make a police report of the investigation of any bona fide allegation of an

            incident of abuse, neglect, or exploitation and the disposition of the investigation, in


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            accordance with subsection (a) of Section 303;

               (2) Inform the victim of abuse[,] neglect, or exploitation of the victim’s right to

            request that a criminal proceeding be initiated where appropriate, including specific

            times and places for meeting with the State’s Attorney’s office, a warrant officer, or

            other official in accordance with local procedure; and

               (3) Advise the victim of the importance of seeking medical attention and preserving

            evidence (specifically including photographs of injury or damage and damaged

            clothing or other property).” 750 ILCS 60/304 (West 2016).

¶ 21   Notably, both 304(a) and 304(b) state that law enforcement “shall” take certain actions.

When the word “shall” is used by the legislature, it ordinarily indicates a mandatory obligation.

See In re Marriage of Takata, 

 (1999) (“Under the rules for statutory

construction, the word ‘shall’ ordinarily connotes a mandatory obligation, unless the context of

the statute indicates otherwise.”); Hoffman Estates Professional Firefighters Ass’n v. Village of

Hoffman Estates, 

 (1999) (“Legislative use of the word ‘shall’ is generally

considered to express a mandatory reading.”).

¶ 22   The duties expressed in section 304(a) and (b), combined with other sections that

“expressly contemplate[ ] the expansion of civil and criminal remedies for abuse victims [citation],

subject to the limitation of liability expressed in section 305,” demonstrate “the General

Assembly’s intent to encourage active intervention on the part of law enforcement officials in cases

of intrafamily abuse.” Calloway, 

.

¶ 23   Section 305 of the Act immunizes law enforcement for acts or omissions that result from

their “ ‘good faith’ ” efforts in rendering emergency assistance or otherwise enforcing the Act.



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Calloway, 

 (quoting 750 ILCS 60/305 (West 1992)). However, section 305

subjects law enforcement officers to liability when they have engaged in willful and wanton

misconduct in breach of a statutory duty to a victim of domestic violence. Moore, 

. In other words, the legislature intended “that officers are not to be held civilly liable for mere

negligence in the good-faith performance of their duties under the Act.” Calloway, 

.

        “[T]his partial immunity of law enforcement agents is a direct expression of legislative

        intent to reconcile the strongly worded purposes of the Act—primarily the protection of

        and assistance to victims of abuse—with the recognition that officers performing their legal

        duties should not be held civilly liable when their efforts to enforce the Act fall short, unless

        the conduct in question can be viewed as willful or wanton.” (Emphasis in original.)

        Calloway, 

.

¶ 24    Treating the well pled facts as true and drawing all reasonable inferences from those facts,

we find that the plaintiffs satisfied the first element of their claims with allegations indicating that

Andrew and Lee Anthony were persons in need of protection within the meaning of the Act, as

they were abused by a family or household member. The persons protected by the Act include any

person abused by a family or household member. 750 ILCS 60/201(a) (West 2016). The definitions

section of the Act indicates, “ ‘Domestic violence’ means abuse”; “ ‘Abuse’ means physical abuse,

harassment, intimidation of a dependent, interference with personal liberty or willful deprivation”;

and “ ‘Physical abuse’ ” means, among other things, “knowing or reckless use of physical force,

confinement or restraint” or “knowing or reckless conduct which creates an immediate risk of

physical harm.” 750 ILCS 60/103(1), (3), (14) (West 2016). The pleading includes the allegations



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that Gale recently struck a friend over the head with a glass bottle, was arrested and held until he

posted a bond, and “engaged in an hours-long pattern of aggressive and violent behavior toward

the occupants of the house.” These allegations encompass both Andrew and Lee Anthony.

Although they lack specificity as to what Gale was doing during this “hours-long” state of violence,

they allege that Gale was volatile.

¶ 25   The circuit court emphasized the allegation that Gale had “recklessly” swung a crutch at

Andrew and reasoned that recklessness “negates any intentional or abusive behavior towards

Andrew.” The circuit court’s conclusion was erroneous because, regardless of whether Gale was

deliberate or reckless as he swung the crutch, the Act defines “reckless use of physical force” as a

form of domestic violence. 750 ILCS 60/103(14)(i) (West 2016). The word “recklessly” did not

make the allegation superfluous, and this allegation should have been part of the circuit court’s

consideration of the adequacy of the pleading.

¶ 26   The allegations that Gale struck the friend, continued to be “aggressive and violent” with

members of the household, and then “recklessly” swung at Andrew, even if the later conduct was

only careless, could give rise to a reasonable inference that Gale was being physically abusive and

endangering the people in his vicinity, including Lee Anthony. There are also the allegations that

Andrew, Lee Anthony, and the police already knew Gale to be a “dangerous” person and that

Andrew asked the 911 operator to send help because Gale’s conduct had escalated to the point that

he “was going to kill someone in the home.” These allegations, particularly the distressed phone

call, encompass both Andrew and Lee Anthony. The circuit court remarked that, apparently, none

of the occupants needed medical attention from the ambulance personnel that had arrived with the

police officers. This is another instance when the circuit court’s analysis was misdirected. The



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circuit court was commenting on an irrelevant fact because the Act does not require physical injury

before law enforcement officers are required to actively assist domestic violence victims.

“[H]arassment” or “interference with personal liberty” is considered abuse. 750 ILCS 60/103(1)

(West 2016). The pleading indicates that Andrew and Lee Anthony had endured two days of Gale’s

disturbing volatility, aggression, violence, and recklessness in their home. Gale’s alleged conduct

is reasonably characterized as harassment. Furthermore, the plaintiffs alleged, “Harassment,

intimidation, and threatening abuse of the type referenced [in the pleading] interfered with the

personal liberty of [Andrew and Lee Anthony] and thus constituted domestic violence under [the

Act].” Although the factual allegations about Gale’s conduct when he “engaged in an hours-long

pattern of aggressive and violent behavior toward the occupants of the house” could be more

specific (and likely improved by repleading), construing them in the light most favorable to the

nonmoving party, the pleading indicates that Andrew and Lee Anthony were victims of domestic

violence.

¶ 27   With respect to the second element, again, although the pleading lacks factual detail, it

does suggest that statutory law enforcement duties owed to Andrew and Lee Anthony were

breached by the Maywood officers’ acts or omissions. The plaintiffs should have been given an

opportunity to amend their claims because it could not be determined from the pleading (the first

complaint to be reviewed) that there was no set of facts upon which the plaintiffs could recover.

¶ 28   The question of whether a defendant’s actions amount to willful and wanton misconduct is

usually a question of fact to be determined by a jury, but the preliminary question of whether

allegations of willful and wanton misconduct are sufficient to state a cause of action is a question

of law to be determined by a court. Torres, 

; Doe v. Calumet City,



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1-21-1373

 (1994) (whether conduct is willful and wanton is ultimately a jury question,

but “a court must first decide as a matter of law whether a plaintiff has alleged sufficient facts such

that a jury question concerning the willful and wanton nature of defendant’s conduct is created”).

¶ 29   “Whether conduct is willful and wanton depends on the circumstances of each case.”

Harris v. Thompson, 

; see Barr v. Cunningham, 

 (the

totality of the evidence are circumstances to consider in determining whether a defendant’s

conduct is willful and wanton).

¶ 30   In Suwanski v. Village of Lombard, 

 (2003), the court observed three

categories of willful and wanton actions. At one extreme are alleged circumstances that are “so

benign as to clearly be, as a matter of law, below the theoretical minimum for willful and wanton

conduct.” Suwanski, 

. At the other extreme are circumstances “so egregious

that one could say, as a matter of law, that the officer acted willfully and wantonly.” Suwanski,

. The third scenario are those “circumstances where the question of willful

and wanton conduct is the subject of reasonable argument.” Suwanski, 

.

“[W]here reasonable minds might draw different inferences from the same undisputed facts, it is

the role of the jury to decide whether [the officer’s] exercise of discretion crossed a line and

[became willful and wanton].” Agwomoh v. Village of Dolton, 

. It

is only the third category of cases that cannot be decided as a matter of law and must be turned

over to a jury. Suwanski, 342 Ill. App. at 257.

¶ 31   Here, we cannot say that the allegations and reasonable inferences drawn in the plaintiffs’

favor were such that the circuit court could have determined as a matter of law that the officers

were “acting in good faith in rendering emergency assistance” (750 ILCS 60/305 (West 2016))



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1-21-1373
and that their conduct was so benign that it could never be considered willful and wanton

misconduct. The circuit court erred, as it lacked sufficient facts to form its conclusions of law as

well as its determination that there was no set of facts upon which the plaintiffs could recover.

¶ 32   The plaintiffs cite an illustrative case, Calloway, 

, in which the supreme

court first recognized a cause of action for damages by persons protected by the Act whose injuries

are allegedly caused by the willful and wanton misconduct of police officers in performing or

failing to perform the affirmative obligations that are imposed upon them by the Act. There, the

plaintiff alleged that she told the sheriff of Effingham County about threats her husband was

making in violation of an order of protection that had been entered because of domestic abuse, yet

the sheriff only “briefly observed the house and then drove off, without further investigation.”

Calloway, 

-16. Within hours of this inaction, the husband abducted the victim from

work at gunpoint and forced her to drive them in his vehicle. Calloway, 

. Only after

the reported abduction was she able to escape when Illinois troopers blocked the road. Calloway,

. The supreme court affirmed the appellate court’s reinstatement of her claims of

willful and wanton misconduct, as the sheriff “did nothing to enforce the order of protection or to

intervene after being informed of Calloway’s continuing abuse.” Calloway, 

.

Thus, Calloway, decided nearly 30 years ago, instructs that awareness of abuse triggers the

statutory duties. Calloway, 

. And, in Calloway, our supreme court recognized

that the failure to meet statutory duties can amount to actionable willful and wanton misconduct.

Calloway, 168 Ill. App. 3d at 324 (noting that other jurisdictions had recognized causes of action

arising out of violations of their domestic violence laws, and that Illinois, in order to “give effect

to the legislature’s purposes and intent in enacting the Domestic Violence Act” was recognizing a



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right of action for civil damages). The plaintiffs also cite Fenton, 

, in

which Chicago police officers were called to a violent domestic argument but took minimal action

in derogation of their duties under the Act. After police were called back to the residence within

an hour, they removed an “angry, drunken” 22-year-old man and made the outlandish request that

he wait outside “in zero-degree weather in the middle of the night” until his girlfriend could pick

him up. Fenton, 

. A few minutes later, he broke into the house

and murdered his mother’s boyfriend. Fenton, 

. A jury found the

officers to have been willful and wanton in failing to discharge their duties under the Act. Fenton,

. Law enforcement’s alleged lack of response in Sneed, 

, was equally egregious. In that case, it was alleged that the City of Mount Vernon’s

police took no action when informed that an ex-husband was repeatedly violating an order of

protection and that this allowed him to abduct and fatally injure his ex-wife. Sneed, 

. When reviewing the sufficiency of the plaintiff’s allegations of willful and wanton

conduct, the appellate court emphasized that the Act puts an affirmative duty on the police to

respond to and investigate complaints. Sneed, 

.

¶ 33   Here it is alleged that the Maywood officers similarly failed in their duty under section

304(a) to “immediately use all reasonable means to prevent further abuse, neglect, or exploitation.”

750 ILCS 60/304(a) (West 2016); Calloway, 

 (section 304 establishes

immediate duties to act when law enforcement has reason to know of intrafamily abuse) and that

they left an alleged abuser at liberty to reenter the victims’ home later that same day.

¶ 34   The circuit court narrowly focused on the statute’s first enumerated duty and whether the

officers were obligated to arrest Gale. The statute does not necessarily impose a duty of arrest



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because section 304(a)(1)’s phrase “[a]rresting the abusing, neglecting and exploiting party” is

followed by the modifying phrase “where appropriate” (750 ILCS 60/304(a)(1) (West 2016)),

which we read to mean that the officers were still able to use their training, experience, and

discretion to determine whether it was appropriate to effect an arrest. Furthermore, the statute

expressly contemplates instances when no arrest is made. Immediately after subparagraph 304(a)’s

illustrative list of seven “reasonable means to prevent further abuse, neglect, or exploitation,”

subparagraph 304(b) provides, “Whenever a law enforcement officer does not exercise arrest

powers or otherwise initiate criminal proceedings, the officer shall ***.” (Emphasis added.) 750

ILCS 60/304(a), (b) (West 2016). Thus, the Act did not mandate an arrest solely because the police

were made aware that domestic violence was occurring.

¶ 35   Although their pleading did not specify any arrestable offense or cite any section of the

Illinois criminal code, the plaintiffs argue that it would have been “[p]articularly appropriate” to

arrest Gale. Based upon the allegations in their complaint, the several offenses that Gale could

have been arrested for are assault, disorderly conduct, and reckless conduct. The Criminal Code

of 2012 provides, “A person commits an assault when, without lawful authority, he or she

knowingly engages in conduct which places another in reasonable apprehension of receiving a

battery.” 720 ILCS 5/12-1(a) (West 2016). “Domestic battery” consists of a person, “knowingly

without legal justification by any means,” “(1) [causing] bodily harm to any family or household

member” or “(2) [making] physical contact of an insulting or provoking nature with any family or

household member.” 720 ILCS 5/12-3.2(a) (West 2016). Assault and domestic battery are both

misdemeanor crimes. 720 ILCS 5/12-1(b), 12-3.2(b) (West 2016). A person commits “disorderly

conduct,” another misdemeanor offense, when he or she does any act “in such unreasonable



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manner as to alarm or disturb another and to provoke a breach of the peace.” 720 ILCS 5/26-

1(a)(1), (b) (West 2016). In Davis, the supreme court stated that the main purpose of the offense

of disorderly conduct is to “guard against ‘an invasion of the right of others not to be molested or

harassed, either mentally or physically, without justification.’ ” People v. Davis, 

 (1980) (quoting Ill. Ann. Stat., ch. 38, ¶ 26-1, Committee Comments, at 149 (Smith-Hurd

1977)). The misdemeanor of “reckless conduct” results when a person “by any means lawful or

unlawful, recklessly performs an act or acts” that “(1) cause bodily harm to or endanger the safety

of another person; or (2) cause great bodily harm or permanent disability or disfigurement to

another person.” 720 ILCS 5/12-5(a), (b) (West 2016). The offense does not require actual bodily

injury, as long as the defendant “endanger[ed] the safety of another person.” 720 ILCS 5/12-5(a)(1)

(West 2016). Gale’s swing at Andrew fits within each of these definitions.

¶ 36   Here, the responding officers had probable cause to arrest Gale. Probable cause is sufficient

evidence to justify the reasonable belief that the defendant has committed or is committing a crime.

People v. Jones, 

 (2005). Andrew told the 911 operator that he thought that

Gale “was going to kill someone in the home,” from which it can be reasonably inferred that,

among other things, Andrew told the 911 operator about Gale’s reckless swing of the crutch. In

other words, it could reasonably be inferred that an arrest should have been made to prevent the

abuse that was sure to follow and did follow the officers’ brief intervention. Granted, “the fact that

somebody made the call to 911 does not automatically mean that he is the victim of abuse.” Fenton,

. However, the responding officers here were (or reasonably should

have been) aware of the fact of Gale’s arrest two days prior by members of their own police force

for striking a friend over the head with a glass bottle. Additionally, one of the responding officers



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had some familiarity with Gale because, when speaking with the victims, the officer stated that he

knew that Gale was “dangerous.”

¶ 37   Furthermore, the officers’ decision to interview the alleged abuser and victims together,

rather than individually, factually pled their failure to uphold one of the Act’s stated purposes of

treating domestic violence as a “serious crime.” See 750 ILCS 60/102(1) (West 2016) (the

underlying purposes include to “[r]ecognize domestic violence as a serious crime against the

individual and society which produces family disharmony in thousands of Illinois families, [and]

promotes a pattern of escalating violence which frequently culminates in intra-family homicide”).

The plaintiffs contend that the officers wantonly exacerbated the abusive situation by making

Andrew admit to having called the police and that what the officers did was “not only against all

proper police protocol, but also against simple common sense and [the Act’s purposes].” From

this, it could also be reasonably inferred that the group questioning exposed Andrew and Lee

Anthony to Gale’s subsequent retaliatory, escalating violence.

¶ 38   Although the pleading does not disclose the men’s ages, it can be reasonably inferred that

Lee Anthony was the most vulnerable and in need of effective police assistance and protection

from a younger, abusive household member. Lee Anthony died shortly after Gale was able to leave

the hospital unimpeded by law enforcement action, return to the house without being subject to an

order of protection, and then batter both of his accusers. The plaintiffs contend that an arrest would

have likely resulted in Gale being detained for some period of time because he had just been

released from custody pursuant to a personal recognizance bond. Hospitals, on the other hand,

generally have no authority to detain patients. Gale was able to leave the hospital whenever he

chose. Arresting Gale, instead of merely leaving him in the hands of hospital personnel without



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knowing the outcome of his medical evaluation, would have prevented the predictably tragic

events that occurred when Gale was able to return to the residence under his own devices, without

sufficient time for his anger to have cooled. Furthermore, arresting someone and obtaining medical

care for them are not mutually exclusive choices.

¶ 39    Accordingly, the circuit court should have permitted an amendment so that the plaintiffs

could provide more detailed allegations of what was disclosed during the 911 call and what was

said during the group interview, as the statements might have reasonably lead to Gale’s arrest.

¶ 40    Even without further details about what was disclosed to the 911 operator or the responding

officers, the existing allegations, accepted as true, indicate that the officers shirked statutory duties

owed to Andrew and Lee Anthony. We reiterate our conclusion that Andrew and Lee Anthony

were protected persons under the Act. The plaintiffs alleged that the officers did not offer to

accompany Andrew and Lee Anthony while they retrieved necessary personal belongings and

possessions from the residence (in breach of section 304(a)(3)); provide information about how to

obtain an emergency order of order, or offer transportation to where they could file for an

emergency order (in breach of section 304(a)(4) and 304(a)(7)); take either man to a nearby safe

place (in breach of section 304(a)(7)); or advise either about seeking medical attention and

preserving evidence of abuse (in breach of section 304(a)(6)). Based on these allegations, we find

that the plaintiffs adequately alleged the second element of a claim under the Act by alleging

breach of at least one of the enumerated duties. Helping Andrew and Lee Anthony to either

temporarily leave the residence or obtain an order of protection could well have prevented Gale’s

aggravated domestic abuse and murder after he left the hospital unimpeded by law enforcement.

¶ 41    In order to satisfy the third element, the facts needed to indicate that the actions and



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inactions of Maywood law enforcement could be construed as not merely negligent but as utter

indifference or conscious disregard for Andrew and/or Lee Anthony’s welfare. See Moore, 

 (stating four elements of an action for willful and wanton misconduct under the Act);

750 ILCS 60/305 (West 2016); Ziarko,161 Ill. 2d at 275-76 (under common law, willful and

wanton misconduct may be only degrees more than ordinary negligence or only degrees less than

intentional wrongdoing, depending upon the facts of the case).

¶ 42   Although there are numerous allegations that the Maywood officers owed and breached

statutory duties (which we accept as true on a motion with respect to the pleading), we do not reach

any conclusions as to whether the officers’ conduct amounted to willful and wanton misconduct.

“Whether a person is guilty of wilful and wanton conduct is a question of fact for the jury and

should rarely be ruled upon as a matter of law.” Glover v. City of Chicago, 

 (1982); Doe, 

 (whether conduct is willful and wanton is ultimately a jury

question); Torres, 

.

¶ 43   Despite deeming the complaint to be factually deficient, the circuit court also found that a

hospital was “a place more equipped [than jail] to deal with someone who may be dangerous,”

which meant that “the officers acted in good faith in rendering emergency assistance,” rather than

acting willfully and wantonly. These conclusions were not based on facts or reasonable inferences.

The first amended complaint disclosed no facts indicating why the officers decided to take Gale to

a hospital. The circuit court opined about the officers’ intentions but had no foundation for its

opinion. The circuit court also had no factual grounds for determining that whatever hospital Gale

was taken to was better equipped than Maywood’s jail to deal with someone who might be

dangerous or was suffering from mental or emotional deterioration. The record does not support



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any comparison of the two facilities, and there was no reason to conclude that the officers had to

choose between either obtaining medical care for Gale or detaining him for criminal activity. As

we pointed out above, medical care and an arrest are not mutually exclusive choices. The circuit

court then extrapolated from its erroneous factual findings in order to reach a conclusion that is

usually made by a jury: that “the officers acted in good faith in rendering emergency assistance,”

rather than acting willfully and wantonly. This was not a decision to be made at the initial pleading

stage.

¶ 44     To meet the fourth element, the plaintiffs needed to factually plead that Maywood’s

misconduct proximately caused injuries to the Davis family. See Moore, 

 (stating

four elements of an action for willful and wanton misconduct under the Act). We do not reach this

element. The circuit court never reached this issue and we observe, that like the question of whether

conduct is willful and wanton, whether the officers’ conduct proximately caused injuries to the

Davis family is generally a question that should be reserved for the finder of fact. Freeman for

Estate of Freeman v. City of Chicago, 

; Winston v City of Chicago,

.

¶ 45     Finally, we conclude that the circuit court further erred by denying the plaintiffs an

opportunity to amend. We reverse the dismissal of the first amended complaint with prejudice and

remand to the circuit court to allow the plaintiffs to replead. See Hayes Mechanical, Inc. v. First

Industrial, L.P., 

 (2004); Loyola Academy v. S&S Roof Maintenance, Inc., 

 (1992); Storm & Associates, Ltd. v. Cuculich, 

 (1998).

¶ 46     Reversed and remanded with directions.




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1-21-1373


               Davis v. Village of Maywood, 

Decision Under Review:    Appeal from the Circuit Court of Cook County, No. 2018-L-
                          64020; the Hon. Cheryl D. Ingram, Judge, presiding.


Attorneys                 Richard Dvorak and Adrian Bleifuss Prados, of Dvorak Law
for                       Offices, LLC, of Clarendon Hills, for appellants.
Appellant:


Attorneys                 Howard C. Jablecki and Allen Wall, of Klein, Thorpe and
for                       Jenkins, Ltd., of Chicago, for appellee.
Appellee:




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