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Breck v. Cortez

OPINION FILED FEBRUARY 21, 1986.

EDWARD BRECK ET AL., ADM'RS OF THE ESTATE OF DAVID E. BRECK, DECEASED, PLAINTIFFS-APPELLANTS,

v.

EDWIN G. CORTEZ ET AL., DEFENDANTS (ALEX KIKILAS ET AL., DEFENDANTS-APPELLEES).



Appeal from the Circuit Court of Du Page County; the Hon. William E. Black, Judge, presiding.

JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:

Plaintiffs, Edward Breck and Carol Gray, are the co-administrators of the estate of their son, David Breck, who died as a result of injuries he sustained in a collision between the car he was driving and a car driven by Edwin Cortez. At the time of the collision, Cortez' car was being pursued by the police. Plaintiffs brought this wrongful death action against Cortez; Matthew Bandur, the registered owner of the car Cortez was driving; Alex Kikilas and David Skala, police officers involved in the pursuit of the car driven by Cortez; and the village of Bolingbrook and the city of Darien, the employers of Kikilas and Skala, respectively. The court entered summary judgment in favor of Bandur, and he is not involved in this appeal. The counts of the complaint directed against the police officers and their employers were counts II and IV. Count II alleged that the police were negligent in their pursuit of Cortez, and count IV categorized the actions of the police in the pursuit as wilful and wanton misconduct. The court dismissed count II as to defendants Skala and the city of Darien, and that dismissal order is not before us. Subsequently, the court entered summary judgment in favor of both police officers and their municipalities on the remaining counts. Plaintiffs are appealing that summary judgment pursuant to Supreme Court Rule 304(a) (87 Ill.2d R. 304(a)).

In deciding the motion for summary judgment, the trial court considered the depositions of defendants Kikilas, Skala, and Cortez, as well as the deposition of Edward Hradecky, whose car was passed by Cortez and the police shortly before the accident.

Officer Kikilas, in his deposition, testified that on the date in question, November 10, 1982, he and his partner, Officer Hugo, were assigned to routine patrol. Kikilas was driving the police car. At about 9 p.m. they were proceeding southbound on Route 53. It was dark out. When they stopped at a red light at 107th Street, Kikilas observed a black and yellow Dodge coming north on Route 53 toward the intersection. At that point Route 53 was a four-lane highway, and with a left-turn lane in the middle of the road. The Dodge was proceeding with its headlights off, and it appeared to be accelerating. At the intersection the Dodge made a U-turn onto the right-hand southbound lane of Route 53. In the course of making the U-turn, the Dodge spun around 360 degrees and forced a vehicle that had been turning onto Route 53 from 107th Street off of the roadway. Kikilas estimated that, just prior to the U-turn, the Dodge was going 40 to 45 miles per hour.

Kikilas testified that after the Dodge made the U-turn, he activated his overhead lights and siren, drove through the intersection, and began to follow the Dodge. He described traffic as light to medium, and weather conditions as misty. The roads were wet. As he followed the Dodge south on Route 53, it changed lanes more than once. It ran a red light at 111th Street. At this point the officers radioed the station that they were pursuing a black and yellow Dodge. The call was acknowledged. When the Dodge approached the I-55 interchange, it was in the left lane. It made a sharp right-hand turn onto the entrance ramp to southbound I-55. The Dodge then made a U-turn on the entrance ramp and returned to Route 53. The Dodge then proceeded southbound and made a hard left turn onto the entrance ramp to northbound I-55. At that point its lights were still off. Kikilas testified that the distance from 107th Street to I-55 is about a mile, and that as he followed the Dodge for that mile, he (Kikilas) did not drive faster than 35 to 40 miles per hour. He said the Dodge was going 40 to 45 miles per hour.

Kikilas testified that he followed the Dodge onto I-55. He described traffic on the interstate highway as light to medium. He tried to stay about a quarter of a mile behind the Dodge. At one point it drove onto the shoulder and then returned to the roadway. While following the Dodge on I-55, the officers made a report to State Police District 5, and a message was broadcast over ISPERN (Illinois State Police Emergency Radio Network) that a Bolingbrook unit was in pursuit of a black and yellow Dodge northbound on I-55. The Dodge drove off of I-55 and onto the exit ramp leading to southbound Cass Avenue. Kikilas slowed down as he approached the exit ramp, and the distance between his car and the Dodge increased. Kikilas testified that at that point Officer Skala radioed that he had visual contact with the Dodge. When Kikilas reached Cass Avenue, he saw Skala "engage his lights" and follow the Dodge. Kikilas estimated the distance from Route 53 to Cass Avenue along I-55 at five miles. He said that during the pursuit on I-55, the fastest he drove his police car was 60 to 65 miles per hour. The Dodge was traveling at about the same speed.

Kikilas testified that when he exited I-55, he lost sight of the Dodge. When he reached Cass Avenue, he had lost sight of Skala's police car. Kikilas then drove southbound on Cass Avenue at about 35 to 40 miles per hour until he arrived at the scene of the collision, which was 3 1/2 miles from I-55. At the scene Skala's police car was off of the road on the west side. The Dodge and a small Toyota which had been driven by David Breck were on the east side of the roadway. Kikilas arrested the driver of the Dodge who was identified as Edwin Cortez.

Officer Skala testified that on the night in question he was on patrol in his police car. He was advised over ISPERN that a Bolingbrook unit was in pursuit of a black and yellow Dodge northbound on I-55 for traffic offenses. Skala parked his police car on the median strip on Cass Avenue over the interstate highway. He first saw the Dodge just before it entered the ramp leading to southbound Cass Avenue. At that point its headlights were on. Skala stated that in the distance he could see the overhead lights of the Bolingbrook car. When the Dodge turned off of I-55, Officer Skala activated his overhead lights and siren and began to follow it southbound on Cass Avenue. He radioed the Darien police department that he was in pursuit of the vehicle Bolingbrook had been chasing. He subsequently advised State Police District 2 that he was pursuing the Dodge.

Skala testified that he followed the Dodge until the collision occurred. He had sight of the vehicle through two curves in the road and a straightaway. The Dodge accelerated in the straightaway, and Skala lost sight of it as it entered a third curve. When Skala entered the third curve, he depressed his brake slightly and lost control of his car. It spun around about five times and slid into a ditch on the west side of the road. Skala looked over to the east side of the roadway and saw that the Dodge had collided with another vehicle. Skala stated that the first curve was a 45-mile-per-hour curve; the second was a 35-mile-per-hour curve, and the last one was a 45-mile-per-hour curve. From the point where he began following the Dodge to the point where he lost sight of it, the distance between his car and the Dodge remained the same. Skala was asked how fast the Dodge was traveling, and he replied that "[a]t different points the speeds changed of the vehicle due to the road conditions and the curves." He said that its speed ranged from 45 to 60 miles per hour. Skala stated that his speed ranged between 45 and 55 miles per hour. When the Dodge entered the first two curves, it crossed over the center line temporarily.

Skala testified that traffic on Cass Avenue between I-55 and the place where the collision occurred was very light. In the straightaway which preceded the third curve the Dodge passed another southbound vehicle by going over the gravel shoulder on the right. Skala stated that when his car went into the ditch, there were only two other cars at the scene, the Dodge and the vehicle Breck had been driving. The Bolingbrook police car arrived about 15 seconds later.

Hradecky testified that on the night in question he was driving southwest on I-55 from Cicero. His wife was with him in the car. He exited I-55 at Cass Avenue and proceeded southbound. In order to exit I-55 he had to drive under Cass Avenue and then "make a clover leaf" onto that road. Hradecky stated that when he turned onto Cass, he passed a police car which was sitting on the median strip on the bridge over I-55. It did not have its overhead lights or siren on.

Hradecky stated that at the interchange Cass Avenue had two lanes for traffic in each direction in addition to the ramps from the interstate. About a quarter of a mile south of the bridge it became a two-lane road. The two southbound lanes merged together at that point. Between I-55 and the point where the southbound lanes merged, there were two roads onto which one could turn right. The first was a frontage road that ran along the interstate, and the second was an entrance to Argonne National Laboratory. After the lanes merged, there was a road that intersected Cass from the left which led to a residential area. Hradecky described the curves that came after that road.

Hradecky testified that when he had just completed the curve which preceded the straightaway, he saw in his rear view mirrors the headlights of the Dodge approaching him from behind. They were coming up so fast that Hradecky thought the car was going to hit him. At that point Hradecky was going about 35 miles per hour, and there was a car traveling in the northbound lane. The Dodge passed Hradecky on the right. Hradecky started applying his brakes, and when the Dodge drove back onto the roadway, it threw dirt and stones up at his car. Hradecky slowed down to about 25 miles per hour. He saw the Dodge going down the straightaway in front of him for about 30 seconds, and then it disappeared around the curve where the accident took place. Hradecky estimated that the Dodge was going 45 to 50 miles per hour when it passed him, and that the maximum speed it reached while it was still in his sight was 55 to 60 miles per hour.

Hradecky testified that when the Dodge disappeared around the curve, he heard sirens behind him. He pulled over onto the shoulder of the road. He looked into his rear view mirror and saw a police car approaching with its overhead lights on. Hradecky estimated that when that car passed him, it was going 55 to 60 miles per hour. Four more police cars followed the first one past him. After the last police car passed him, Hradecky drove up to ...


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