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O'donnell v. City of Chicago

OPINION FILED JULY 27, 1984.

JAMES O'DONNELL, PLAINTIFF-APPELLEE,

v.

THE CITY OF CHICAGO, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. James Quinlan, Judge, presiding.

PRESIDING JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Defendant, the city of Chicago, appeals from the denial of its motion to dismiss (Ill. Rev. Stat. 1981, ch. 110, par. 2-619) and from a judgment for $75,000 entered on a jury verdict for plaintiff in the amount of $150,000, reduced to reflect plaintiff's contributory negligence. The sole issue on appeal is whether the trial court erred in denying defendant's motion to dismiss. We reverse the trial court's order denying the motion to dismiss and the judgment entered in favor of plaintiff.

At 8 a.m. on Saturday, December 8, 1979, the plaintiff reported to the firehouse to which he had been assigned, dressed in his regulation uniform. During the course of that Saturday, as on all Saturdays, the firehouse personnel conducted a scrub-down day. On Saturday the fire equipment and the floor of the area in which the vehicles were stationed were scrubbed with soap and water. While this was being done, several firemen traveled up and down the steps connecting the upper and lower levels of the firehouse. As the lieutenant of this unit, plaintiff had the responsibility of overseeing this clean-up procedure.

Later that afternoon, plaintiff was in the communications center in the upper level of the firehouse. Sometime between 3 and 4 o'clock, plaintiff left the communications room to post an obituary notice which had just come over the speaker. After posting the notice on the bulletin board, he walked downstairs to get a cup of coffee. As he descended the stairs, plaintiff slipped on water which had collected there from the recent washings of fire equipment and vehicles on the lower level of the firehouse. Plaintiff incurred head injuries due to the fall.

Plaintiff thereafter submitted a claim for medical expenses to the defendant pursuant to section 22-306 of the Illinois Pension Code and the corresponding city ordinance which authorize such payment for injuries "while in the performance of his duties." The claim was denied. Although no evidence concerning this was presented at trial, both parties agreed at pretrial proceedings that the Chicago City Council Committee on Finance (Finance Committee) denied plaintiff's claim for medical expenses based on its finding that plaintiff had not been injured in the line of duty.

Plaintiff then filed a complaint on February 2, 1981, instituting a common law negligence suit against the defendant. The defendant moved to dismiss, contending that the suit was barred by section 22-307 of the Illinois Pension Code, which provides:

"Whenever any city or village enacts an ordinance pursuant to this Division, no common law or statutory right to recover damages against such city or village for injury or death sustained by any policeman or fireman while engaged in the line of his duty as such policeman or fireman, other than the payment of the allowances of money and of the medical care and hospital treatment provided in such ordinance, shall be available to any policeman or fireman who is covered by the provisions of such ordinance * * *." (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 108 1/2, par. 22-307.)

The pertinent provisions of the Chicago city ordinance enacted pursuant to the foregoing statute are as follows:

"Whenever the city council shall appropriate a sum or sums of money for the payment of medical care and hospital treatment in case of an accident resulting in an injury to or death of a policeman or fireman employed by the city while in the performance of his duties, in accordance with the provisions of an act [Ill. Rev. Stat. 1981, ch. 108 1/2, pars. 22-301 through 22-308], the same shall be paid, disbursed and recouped in accordance with the following provisions.

The committee on finance of the city council is hereby authorized, directed and empowered to provide for payment for proper medical care and hospital treatment for accidental injuries sustained by any policeman or fireman, while in the performance of his duties, and to that end may recommend to the city council the authorization for payment of any such necessary expenses. * * *

No payment shall be made under the provisions hereof unless satisfactory proof shall have been presented to said committee on finance that such injury was sustained by such policeman or fireman while in the performance of his duty." (Emphasis added.) (Chicago Municipal Code, 1983, ch. 22, secs. 18 through 22.)

The trial court denied the defendant's motion to dismiss. Defendant thereafter filed an answer and also an affirmative defense to plaintiff's complaint alleging that the suit was barred by section 22-307 of the Illinois Pension Code. In reply to defendant's affirmative defense, plaintiff denied both that the statute was applicable and that the injuries were sustained in the line of duty. Defendant renewed the motion to dismiss prior to trial, and the trial court again denied it. The determining factor in the trial court's denial of the renewed motion was its perception that the finance committee's finding was that the plaintiff was not injured in the line of duty and, therefore, his cause of action was not barred. During the pretrial discussion, defendant indicated that plaintiff's medical bills had been paid by the Blue Cross/Blue Shield policy maintained by defendant for its employees. A motion in limine granted by the trial court precluded defendant from introducing evidence of the foregoing payment at trial. The case proceeded to trial, resulting in a jury verdict for the plaintiff in the amount of $150,000, which the trial court reduced to $75,000 for plaintiff's contributory negligence.

OPINION

• 1, 2 On appeal, defendant contends that the trial court erred in denying its motion to dismiss because plaintiff's suit was barred by the Illinois Pension Code. Defendant argues further that plaintiff has already received the same benefits under the Blue Cross/Blue Shield plan that he would have been entitled to under the statute and the ordinance. Plaintiff's acceptance of these payments, the defendant maintains, constituted an election of remedies and a waiver of common law claims. According to ...


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