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Bouhl v. Smith

OPINION FILED FEBRUARY 26, 1985.

WENDY BOUHL, PLAINTIFF-APPELLANT,

v.

STEVEN S. SMITH ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Peoria County; the Hon. Charles M. Wilson, Judge, presiding.

JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

Plaintiff, Wendy Bouhl, sued Officer Steven Smith of the Peoria County sheriff's office and the county of Peoria for personal injuries suffered by her as a result of an accident in which the truck she was driving was rear-ended by the defendant's squad car. A Peoria County jury returned a verdict for the defendants on the question of negligence. Plaintiff filed a post-trial motion for judgment notwithstanding the verdict, which was denied. She appeals.

On February 14, 1975, around 4:30 p.m., defendant Smith, while on patrol duty, received a dispatch to go to an accident scene located at Route 88 and Woodside Drive in Peoria County. At the time, Smith was on Mossville Road, a two-lane road, near Route 29. Smith testified that he activated the lights and siren on his squad car and drove about 40 miles per hour in the 45-mile-per-hour zone. He was still in the westbound lane of Mossville Road as he approached the point where Mossville Road meets Route 88, a stop for Mossville traffic. There he observed several vehicles lined up in his lane of traffic, and he slowed to around 35 miles per hour to attempt to go around that backed-up, stopped traffic by passing in the eastbound lane. The record is unclear as to the exact number of cars that were in the westbound lane between the plaintiff's truck, which was the rear-most vehicle at the end of the line, and the stop sign at the intersection — the plaintiff being of the opinion that at least two cars were ahead of her and the officer opining that maybe eight or a dozen vehicles were in the line as he attempted to pass. At that point Smith saw a vehicle turn from Route 88 into the Mossville Road eastbound lane, heading towards him. Smith swerved his squad car back towards the westbound lane, braked, and skidded into the rear end of plaintiff's truck. Smith estimated that his speed just prior to impact was 30 miles per hour. The point of collision was 220 feet from the stop sign at the "T" intersection.

The weather conditions were described as starting to sleet or snow. The pavement was wet and slippery. The shoulders on both sides of Mossville Road were too narrow to permit vehicles to travel on them. The posted speed limit on Mossville Road was 45 miles per hour. It further appears that Smith was familiar with the vicinity of the accident and knew the intersection of Route 88 and Mossville Road to be busy at that time of day.

The plaintiff testified that she had been stopped at the end of the line of traffic for 20 to 30 seconds and had neither seen nor heard the defendant's squad car approaching from the rear prior to the impact. The damage to the truck was minor; and the damage to the front of the squad car, substantial. The plaintiff suffered head and back injuries which were the subject of much dispute at trial but need not be described in detail for purposes of this appeal.

The only issue which need be addressed in this appeal is whether the trial court should have granted plaintiff's motion for a directed verdict on the issue of liability at the close of all evidence and whether the court erred in denying plaintiff's post-trial motion for judgment notwithstanding the jury's verdict for the defendant. Our task is to determine whether all of the evidence viewed in its aspect most favorable to the defendants so overwhelmingly favors the plaintiff that no contrary verdict based on the evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504.) For the reasons that follow, we reverse.

The defendant's theory of non-liability as presented at trial and again on appeal is premised on an application of sections 11-205 and 11-907 of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95 1/2, pars. 11-205 and 11-907). These provisions grant exemptions from certain traffic laws to operators of "authorized emergency vehicles when responding to an emergency call" and when "making use of either an audible signal * * * or visual signals" (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-205), and require that other drivers yield to such an approaching emergency vehicle and "immediately drive to a position parallel to, and as close as possible to, the right hand edge * * * of the highway" so as to permit passage of the emergency vehicle (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-907). By operation of these statutes under the circumstances of this case, defendants contend, Officer Smith was not negligent in attempting to pass in the left-hand lane and, in any event, the appearance of an on-coming vehicle which failed to make way for Smith was the proximate cause of the accident.

Plaintiff does not dispute that defendant Smith qualified for the statutory exemption for emergency vehicles (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-205) under the circumstances as they existed on the date of the accident, but disagrees with the defendant's application of the statutory provisions. According to the plaintiff, the statutes at issue authorize drivers of emergency vehicles to violate rules of the road only to the extent that such violations do not endanger other persons. Under plaintiff's view, the statutory exemptions do not lower the standard of care chargeable to operators of emergency vehicles when an accident results. The question of negligence is measured by what a reasonable, prudent emergency vehicle driver would do under all of the circumstances, including that of the emergency. (Torres v. City of Los Angeles (1962), 58 Cal.2d 35, 372 P.2d 906, 22 Cal.Rptr. 866; Rutherford v. State (Alaska 1979), 605 P.2d 16.) The plaintiff argues that defendant Smith was negligent in that his speed was too fast for existing conditions and that he failed to keep a proper lookout for vehicles that might enter the eastbound lane on the busy narrow road before proceeding into it and attempting to pass a continuous line of cars stretching 200-odd feet back from State Highway 88, a "T" intersection.

The specific subsections of the statutes relied upon by the plaintiff are as follows:

"The foregoing provisions do not relieve the driver of an authorized emergency vehicle from the duty of driving with due regard for the safety of all persons, nor do such provisions protect the driver from the consequences of his reckless disregard for safety of others." Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-205(e).

"This Section shall not operate to relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway." (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-907(b).)

We find the plaintiff's position compelling. It is obvious that the plaintiff could not have done anything to avoid the accident.

• 1 On the basis of the foregoing statutory provisions, plaintiff correctly observes that the ordinary-negligence standard applies to operators of emergency vehicles. Under ordinary-negligence standards, adverse weather and road conditions known to the negligent party are not sufficient to absolve a defendant from liability for an accident where the defendant's car skids into the plaintiff's and the plaintiff's car is entirely within its own lane of traffic. (Calvetti v. Seipp (1967), 37 Ill.2d 596, 227 N.E.2d 758; Kyrouac v. Brockman (1983), 120 Ill. App.3d 249, 457 N.E.2d 1074.) In Sughero v. Jewel Tea Co. (1967), 37 Ill.2d 240, 226 N.E.2d 28, on similar facts, our supreme court approved the principle that "after plaintiff [has] shown defendant's vehicle was on the wrong side of the highway and out of control, [defendant] had the duty of showing it was there for some reason other than his own negligence." 37 Ill.2d 240, 242, 220 N.E.2d 28, 29.

In the instant case, the defendants point to the appearance of the unknown vehicle that turned onto Mossville Road after Smith entered the left-hand lane of traffic to explain that Smith's decision to re-enter the right-hand lane was reasonable. Defendants posit that the potential danger of a head-on collision would inspire a reasonably ...


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