In the
United States Court of Appeals
For the Seventh Circuit
No. 95-1152
TONI MCLELLAN, Individually and as Mother
and Next Friend of MICHAEL MCLELLAN, a minor,
and JERRICA MCLELLAN, a minor; SANDY HERNANDEZ
and KELLY HERNANDEZ,
Plaintiffs-Appellants,
v.
CITY OF CHICAGO HEIGHTS, municipal corporation,
Defendant-Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 91 C 4295--W. Thomas Rosemond, Jr., Magistrate Judge.
ARGUED JUNE 2, 1995--DECIDED AUGUST 3, 1995
Before CUMMINGS, KANNE and ROVNER, Circuit Judges.
CUMMINGS, Circuit Judge. Plaintiffs, all citizens of the
state of Washington, filed this diversity action against the
City of Chicago Heights ("the City") and the Chicago
Fireworks Manufacturing Company seeking damages for
injuries that occurred during a Fourth of July fireworks
display in Chicago Heights, Illinois.
For many years, the City of Chicago Heights has dis-
played fireworks on a high school field. The fireworks are
manufactured by the Chicago Fireworks Manufacturing
Company. Spectator seating at this event was set by the
Traffic Division of the Police Department, the Fire Chief,
City Administrator Doggett and the manager of the fire-
works display company. On July 2, 1991, plaintiffs and
thousands of other people attended the fireworks display
on the grounds of Bloom Township High School. Uniformed
firemen placed barricades on the field at a certain distance
from the fireworks launching site to prevent injuries to
spectators. During the display a shell was fired and rose
into the sky but then fell to the ground, exploded, and
burned plaintiffs, who were seated within the designated
spectator area.
Plaintiffs alleged in their complaint that the fireworks
had become wet prior to use and that spectators had been
permitted to sit too close to the launching site. After
discovery, the City filed a motion for summary judgment
on the ground that it was immune from liability under
secs. 4-102 and 5-102 of the Local Governmental and Gov-
ernment Employees Tort Immunity Act./1 The motion was
granted in a memorandum opinion and order (Plaintiffs'
App. R. 153) deciding that the City was immune from lia-
bility under those provisions as interpreted in Dockery
v. Village of Steeleville, 200 Ill. App. 3d 926, 558 N.E.2d
449 (5th Dist. l990). The summary judgment order was
made final and appealable under Rule 54(b) of the Federal
Rules of Civil Procedure./2
Judgment for the City was proper. Dockery, a case with
almost identical facts, involved a fireworks display in Steele-
ville, Illinois, which also went awry. The plaintiff, who
was struck in the face by an aerial bomb, claimed--as in
the present case--that the city negligently failed to keep
spectators "a safe and proper distance from the site where
the fireworks were being discharged." Dockery, 200 Ill.
App. 3d at 928. The Illinois Appellate Court affirmed sum-
mary judgment for the city based on Section 4-102 of the
Tort Immunity Act, which provides:
Neither a local public entity nor a public employee
is liable for failure to establish a police department
or otherwise provide police protection service, or if
police protection service is provided, for failure to
provide adequate police protection or service, failure
to prevent the commission of crimes, failure to detect
or solve crimes, and failure to identify or apprehend
criminals. This immunity is not waived by a contract
for private security service, but cannot be transferred
to any non-public entity or employee.
Ill. Rev. Stat. 1991, ch. 85, par. 4-102. The court held that
because crowd control and traffic management at the Fourth
of July celebration constituted "police functions," sec. 4-102
barred the plaintiffs' claim that the Village of Steeleville
provided inadequate police protection in allowing spec-
tators into an unsafe area to watch the fireworks display.
Plaintiffs attempt in numerous ways to distinguish and
thus avoid Dockery, but to no avail. Plaintiffs contend that
because, at the Chicago Heights display, it was firemen
and not policemen who set up and manned the barricades,
sec. 4-102 and Dockery are inapplicable. First, the barricades
were provided by the Traffic Division of the Police De-
partment which was one of the entities responsible for
spectator seating. Second and more importantly, immunity
under sec. 4-102 attaches to "police services," not police
departments. By its terms sec. 4-102 applies to all local pub-
lic entities and public employees, including City Adminis-
trator Doggett. That firemen rather than traffic cops set
up and manned the police barricades is irrelevant. They
performed the same crowd control function which the
Dockery court held was encompassed by sec. 4-102's grant
of immunity.
In any event, as the district court noted, the same result
would be reached by applying sec. 5-102, an analogous pro-
vision granting the city immunity for failure to suppress
or contain fires:
Neither a local public entity that has undertaken
to provide fire protection service nor any of its em-
ployees is liable for an injury resulting from the
failure to suppress or contain a fire or from the fail-
ure to provide or maintain sufficient personnel, equip-
ment or other fire protection facilities.
Ill. Rev. Stat. 1991, ch. 85, par. 5-102.
Plaintiffs next contend that immunity does not attach
because fireworks displays are ultrahazardous activities--
an issue, they claim, not addressed by the Dockery court.
There are a number of problems with this argument. Though
the word "ultrahazardous" appears in numerous places
in their complaint, plaintiffs' claim against the city is
based on negligence, not strict liability. But that is be-
side the point because secs. 4-102 and 5-102 do not distin-
guish between theories of tort liability. They bar them
all including claims of wanton and willful misconduct.
Platacis v. Village of Streamwood, 224 Ill. App. 3d 336,
586 N.E.2d 564 (1st Dist. 1991). Plaintiffs argue, based
on Clark v. City of Chicago, 88 Ill.App.3d 760, 410 N.E.2d
1025 (1st Dist. 1980), that despite their all-encompassing
language secs. 4-102 and 5-102 do not bar liability based on
ultrahazardous activities. Plaintiffs misread Clark. In
Clark, the court found the City of Chicago strictly liable
when a piece of a crane being used to demolish a down-
town building fell on and severely injured a young boy.
In reaching that result, the court did not hold that ultra-
hazardous liability trumped the Tort Immunity Act. The
court instead found that none of the provisions of the Act
(specifically pars. 2-109, 2-201, 2-202, 2-206, and 3-108) ap-
plied to the accident in question. Finding no immunity
under the Act, the court therefore relied on the common
law rule that "a municipal entity can be liable for injury
resultant from inherently dangerous or ultrahazardous ac-
tivity whether performed by an employee or independent
contractor." Id. at 764.
Because the City's actions in the present case do fall
under a provision of the Tort Immunity Act, Clark is in-
apposite and we need not decide whether fireworks dis-
plays are ultrahazardous. Summary judgment was proper.
FOOTNOTES
/1
Section 4-102 immunizes municipal police functions and
Section 5-102 immunizes municipal fire protection functions
from liability.
/2
Chicago Fireworks was granted summary judgment as
to strict liability (R. 160) but otherwise was denied relief
(R. 157). Its present status does not appear in the record.
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