Appeal from the Circuit Court of Cook County; the Hon. William
Cousins, Judge, presiding.
JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Plaintiff, Albert Morris, brought suit in the circuit court of Cook County against defendants, city of Chicago and police officer James Rowan, for injuries sustained when his car was struck by a Chicago police car driven by Rowan. At trial, after plaintiff had put on one witness, the trial court directed a verdict for defendants based on section 2-202 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1983, ch. 85, par. 2-202). The court also denied plaintiff leave to amend his complaint to charge wilful and wanton conduct on the part of defendants.
On appeal, plaintiff attacks the directed verdict, contending that (1) the trial court erred in its determination that defendant Rowan was executing or enforcing a law at the time of the collision; and (2) the trial court erred by failing to put the issue of wilful and wanton negligence to the jury at the time the directed verdict was granted. Plaintiff also contends that (3) the defendants waived reliance on the statutory immunity; and (4) the trial court improperly denied plaintiff leave to amend his complaint to allege wilful and wanton negligence.
We affirm in part, reverse in part, and remand.
This action commenced with the filing of plaintiff's one-count complaint alleging that on February 5, 1976, he was injured when his parked car was struck from behind by a police car negligently driven by defendant Rowan. Defendants' answer denied the negligence allegations and raised no affirmative defenses. The case proceeded to trial on the issues raised by the complaint and answer.
At trial, plaintiff's first witness was defendant Rowan, called as an adverse witness. Rowan testified that on the night of February 5, 1976, he was on routine patrol in an unmarked police car. The car was equipped with a siren and flashing headlamps, but had no rooftop "Mars" lights. Rowan's patrol area included the near north side of Chicago. Rowan was heading northbound on La Salle Street when he received an "in progress" call on the police radio. Rowan recalled that the call was for a man with a gun near the intersection of Oak and Orleans streets. Rowan proceeded to Oak Street with siren on and headlamps flashing.
Just before turning down Oak Street, Rowan turned off the siren, but left the flashing headlamps on. As he approached the intersection of Oak with Orleans, Rowan saw some police vehicles on the other side, but saw no other activity suggesting that a crime was being committed or that an arrest was being made. After coming to an almost complete stop at Orleans, Rowan drove slowly across the intersection. Rowan then began to apply the brakes, intending to pull up behind the first car parked in front of the other police vehicles at the scene. At this point, the car began to slide on a patch of ice. Rowan attempted to stop but could not. His car slid 25 feet and collided with the rear of plaintiff's car. Rowan claimed that, although he looked carefully ahead before crossing the intersection, he did not see the patch of ice.
Rowan also testified that when an "in progress" call is received, a police officer assumes that a crime is in the process of being committed and responds accordingly.
After Rowan's testimony, defendants moved for a directed verdict. Defendants claimed immunity from liability based on negligence under section 2-202 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1983, ch. 85, par. 2-202). The trial court heard argument relative to the motion and granted the directed verdict. According to the trial court's findings, Rowan's undisputed testimony showed that he was executing or enforcing a law when the collision occurred, and thus defendants were within the protection of the Tort Immunity Act.
The trial court also rejected plaintiff's argument that defendants had waived reliance on the Tort Immunity Act by failing to raise it before trial. The court also denied plaintiff's motion to allow him to amend his complaint to add allegations of wilful and wanton negligence on the part of the defendants, necessary to defeat the statutory immunity.