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Sundin v. Hughes

MARCH 14, 1969.

ELAINE SUNDIN, PLAINTIFF-APPELLANT,

v.

CLYDE J. HUGHES, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County, County Department, Law Division; the Hon. JOSEPH J. DRUCKER, Judge, presiding. Reversed and remanded. EBERSPACHER, J.

This is an appeal from an order granting defendant's motion to dismiss plaintiff's complaint, in a personal injury action.

The complaint alleged that plaintiff was a pedestrian in the exercise of ordinary care, standing upon a public sidewalk near an intersection in the City of Chicago when plaintiff was struck by the body of one Eiermann, which had been struck by a motor vehicle operated by Larry Benford and that the vehicle of Benford was being pursued by a vehicle operated by defendant Hughes. Neither Eiermann nor Benford were parties to the action, and although the status of defendant Hughes is neither alleged in the complaint nor in the motion to dismiss, the parties in this Court treat defendant Hughes as a police officer who was acting in the performance of his duties as such and using a police vehicle. Such status was obviously made known to the trial court where defendant Hughes was represented by the Corporation Counsel of the City of Chicago, who on defendant's behalf defends this appeal.

The complaint alleged that plaintiff's injuries were proximately caused or contributed to by one or more of the following wrongful acts of defendant Hughes:

(a) Carelessly and negligently operated his motor vehicle so that as a direct and proximate result thereof the plaintiff was injured;

(b) Carelessly and negligently operated his motor vehicle at a high and dangerous rate of speed in pursuit of another automobile, although the defendant knew, or in the exercise of ordinary care ought to have known, that such action on his part was likely to result in injury to bystanders, including the plaintiff and said Albert Eiermann;

(c) Carelessly and negligently failed to take appropriate and available steps to warn bystanders, including the plaintiff and said Albert Eiermann, of the approach of the vehicles operated by himself and said Larry Benford;

(d) Carelessly and negligently operated his motor vehicle in pursuit of another vehicle without sounding siren, so as to warn bystanders, including the plaintiff and said Albert Eiermann, of the approach of his vehicle and that of said Larry Benford.

The complaint makes no reference to any statute or breach thereof on the part of Hughes.

The motion to dismiss asserted (1) that the complaint did not state a cause of action against defendant, (2) that in attempting to show causal connection between the activities of defendant and plaintiff's injuries facts are set up to be remote, problematical and conjectural, and (3) that the complaint is otherwise obscure, vague, indefinite, uncertain and replete with conclusion.

Plaintiff relies upon the authority of Kita v. Young Men's Christian Ass'n of Metropolitan Chicago, 47 Ill. App.2d 409, 198 N.E.2d 174, to support her contention that a cause of action was stated. In that case the defendant admitted that it owed a duty of reasonable care to the plaintiff, but contended the facts alleged were not sufficient to show a breach of that duty. Here defendant raises an issue regarding the sufficiency of the allegations of duty owed and proximate cause.

Defendant's motion admitted the truth only of facts well pleaded, but not conclusions by the pleader. Kurtzon v. Kurtzon, 395 Ill. 73, 69 N.E.2d 341. Here defendant contends the complaint fails to allege a duty on the part of defendant to protect the plaintiff from the injury of which she complains, and a failure of the defendant to perform that duty owed to plaintiff.

We agree with plaintiff's contention that defendant Hughes has no immunity from suit simply because he was acting in the performance of his duties as a police officer. To support this contention plaintiff cites Moore v. Cooke, 22 Ill. App.2d 48, 159 N.E.2d 496 (1959), in which it was specifically held that where a police officer of a city was engaged in a governmental function while pursuing a traffic violator in a police automobile, such fact nevertheless does not operate to render the police officer immune from liability for personal injury and property damage sustained by a motorist whose automobile the police officer negligently collided with. In Moore v. Cooke, supra, the undisputed facts indicated a reckless disregard for the safety of others amounting to a wilful and wanton misconduct, although it is indicated that only ordinary negligence was pled, and that in the opinion of the Court ordinary negligence would support the verdict; Moore v. Cooke, supra, was so interpreted by the same Court in Creamer v. Rude, 37 Ill. App.2d 148, 185 N.E.2d 345 (1962), a case dealing with the responsibility of a State employee while driving a State maintenance truck clearing snow and spreading cinders, when the Court said, "We have held that a policeman in pursuit of a traffic violator is liable for injury caused by ordinary negligence." In Moore v. Cooke, supra, the Court felt that the legislative attitude had been expressed by amendments to the statutes dealing with indemnification of policemen by the City of Chicago, excluding indemnification in cases of wilful and wanton misconduct.

A police car is an "authorized emergency vehicle" within the definition of our Statute. *fn1 From the complaint and theories argued in this Court, being in pursuit of a fleeing suspect (Benford), Hughes was "responding to an emergency call." Since the complaint alleges that Hughes failed to sound a siren or give warning the statutory speed limits would apply by the provisions of section 53 of the above referred to Act, *fn2 which provides in part:

"The speed limits established by this article or by regulation or ordinance made pursuant to provisions of this article do not apply to an authorized emergency vehicle in motion when responding to an emergency call and when the driver thereof sounds an audible signal by bell, siren, or exhaust whistle, as may be reasonably necessary. . . . However, this provision does not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the ...


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