Appeal from the Circuit Court of Cook County; the Hon. Robert
C. Mackey, Judge, presiding.
JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
This is an appeal from a judgment entered on a jury verdict for plaintiff in a personal injury action.
Plaintiff brought this action against defendants, the city of Chicago (the city), and Officer Theodore Ptak (Ptak), to recover for injuries he sustained during a nighttime accident involving an automobile driven by Isaias Marin *fn1 which collided with Ptak's squad car, causing it to strike him. In his complaint, plaintiff alleged, in substance, that his injuries were the proximate result of Officer Ptak's negligence in improperly parking his vehicle on the shoulder of the highway and failing to adequately illuminate it so as to cause it to be visible to oncoming traffic. In their answer, defendants denied liability and asserted, as an affirmative defense, governmental immunity under sections 2-202 and 2-109 of the Local Government and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1979, ch. 85, pars. 2-202, 2-109) (the Tort Immunity Act), which provide, respectively, that "a public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes wilful and wanton negligence" and that "[a] local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable."
There is no dispute that as he was driving northeast on the Stevenson Expressway in Chicago at about 1 a.m. on February 23, 1980, plaintiff caused a minor accident when, in changing lanes, his automobile struck the rear of a car being driven by Leo Jefferson.
At trial, Jefferson testified that when his car a Buick came to a stop after the accident, it was partially on the left shoulder and partially on the median strip between the northeast and southwest lanes at a slight northerly angle and directly beside a streetlight, the motor was still running, and the lights were on. After unsuccessfully attempting to move the car which seemed to be stuck in mud his brother-in-law and a co-worker walked down the shoulder of the highway to seek assistance. When he first saw the police car approaching from the southwest-bound side of the highway, all of its lights including the revolving blue dome light were on; but after driving across the median and parking the squad car two to three feet behind his vehicle, facing southwest and positioned either slightly on the traffic lane or at the edge thereof, the officer turned off all the lights. About 10 minutes later, as he, plaintiff, and Officer Ptak were examining the damage to his car, the vehicle being driven by Marin collided with the front of the squad car, propelling it a few feet backward and causing it to strike plaintiff, who was standing between the Buick and the police car.
The testimony of Jefferson's wife, Betty, was essentially the same, except she stated that the police car was parked between the median and the shoulder, not on the traffic lane.
Plaintiff's testimony relating to the accident with Jefferson's car, the arrival of Officer Ptak, and the location of and lack of lighting on the police vehicle before it was struck was also substantially the same as Jefferson's, although he maintained that the portion of the highway where the accident occurred was poorly lit in comparison to the area directly southwest, from which oncoming traffic approached.
Officer Ptak testified that he was driving southwest on the Stevenson Expressway when he saw one car parked on the median, another stopped on the opposite side of the highway, and people on the side of the roadway waving to him. He then activated all of the emergency lights on the squad car, drove across the median, and parked facing southwest between the median and the shoulder a few feet behind Jefferson's car. When he exited the squad car to speak with plaintiff and Jefferson, he left all of the lights on. He was completing his examination of the damage to Jefferson's car when the second accident occurred. Although he could have traveled further down the expressway to an exit and turned around, driving across the median and parking the car as he did was the most expeditious way to reach the accident scene to ascertain whether anyone had been injured. He also stated that the use of flares at the scene of an accident is discretionary, and that there was no need for them in this situation as the lighting conditions on the highway were good.
Officer Spreyne, a member of the traffic division of the Chicago police department, testified that it was the responsibility of a traffic officer to render aid to motorists, enforce traffic regulations, and investigate accidents. Having been one of the officers who responded to a call of the accident at issue, Spreyne identified photographs taken in his presence at the scene. They showed that all of the lights on Officer Ptak's squad car were activated, the streetlights were on, and the visibility on the roadway was good. None of the cars involved in the collision had been moved or altered in any way before the photographs were taken. Spreyne also stated that it was not unusual, nor unsafe, to park a police car facing oncoming traffic in situations such as the one here.
The trial court denied defendants' motion for a directed verdict, ruling as a matter of law that Officer Ptak was not engaged in the execution or enforcement of any law at the time of this occurrence, and the court also refused defendants' instructions and special interrogatories concerning governmental tort immunity. The jury returned a verdict for plaintiff, defendants' post-trial motion for judgment n.o.v. was denied, and this appeal followed.
• 1 Defendants first contend that the trial court should have either (a) directed a verdict in their favor on the basis of the Tort Immunity Act; or, in the alternative, (b) submitted the issue of immunity to the jury. In support thereof, they assert that the evidence was sufficient to establish that at the time of this incident Officer Ptak was enforcing and executing laws relating to the investigation and reporting of traffic accidents, and that under the Tort Immunity Act, he and therefore the city was immune from liability for his negligence in the course thereof.
In response, plaintiff first argues that defendants were not entitled to a directed verdict or jury instructions on the issue of immunity, because they failed to properly plead it as an affirmative defense. He maintains that by merely quoting the text of sections 2-202 and 2-109 of the Tort Immunity Act, without alleging facts demonstrating their applicability to this case, defendants did not comply with Illinois rules of pleading particularly section 2-613(d) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-613(d)) (the Code), which requires that "[t]he facts constituting any affirmative defense * * * must be plainly set forth in the answer or reply," and that they thereby waived governmental immunity as a defense at trial.
With respect to plaintiff's argument, we note initially that while it is not one of the defenses listed in section 2-613(d) of the Code, statutory governmental tort immunity has been recognized as a valid affirmative defense in cases involving allegations of negligence by public employees. (Midwest Bank & Trust Co. v. Village of Lakewood (1983), 113 Ill. App.3d 962, 447 N.E.2d 1358; Vines v. City of Chicago (1982), 110 Ill. App.3d 1060, 443 N.E.2d 652.) Further, a review of pleadings here reveals that the affirmative defense of governmental immunity is directed to the facts alleged in plaintiff's complaint; namely, that while acting within the scope of his employment as a policeman, Officer Ptak was guilty of certain specified negligent acts and omissions. Plaintiff has cited no case law, nor have we found any, requiring a defendant to restate facts already adequately pleaded in the complaint in order to raise an affirmative defense based thereon. Neither do we believe that the language of section 2-613(d) was intended to impose such a requirement in circumstances like those in this case. When read in its entirety, that section, as well as others in the Code relating to pleadings, makes clear that the prime function of pleadings is to apprise the opposition of the nature of the claim or defense a party intends to raise at trial (Handelman v. London Time, Ltd. (1984), 124 Ill. App.3d 318, 464 N.E.2d 710; see also Ill. Rev. Stat. 1981, ch. 110, par. 2-612(b)) "which, if not expressly stated in the pleading, would be likely to take the opposite party by surprise * * *" (Ill. Rev. Stat. 1981, ch. 110, par. 2-613(d)). Although plaintiff intimates ...