Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Robert G. Mackey,
JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 2, 1986.
Plaintiff, George Fitzpatrick, brought suit in the circuit court of Cook County against defendants, the city of Chicago (the city) and Officer Theodore Ptak (Ptak), to recover for injuries he sustained when an automobile driven by Isaias Marin collided with Ptak's squad car. Defendants raised as an affirmative defense sections 2-202 and 2-109 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1979, ch. 85, pars. 2-202, 2-109) (hereinafter cited as the Tort Immunity Act). Section 2-202 provides 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 willful and wanton negligence," while section 2-109 provides 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."
The trial court, after finding as a matter of law that this affirmative defense was not available on the facts presented in the case, refused defendants' instructions and special interrogatories concerning governmental tort immunity and denied their motions for a directed verdict. The jury awarded plaintiff damages based on the defendants' negligence, the trial court denied defendants' motion for a judgment n.o.v., and defendants appealed. The appellate court reversed the judgment and remanded the cause for a new trial. (131 Ill. App.3d 582.) We granted plaintiff's petition for leave to appeal.
The events in question occurred at approximately 1 a.m. on February 23, 1980. The plaintiff, George Fitzpatrick, was driving northeast on the Stevenson Expressway when his car struck another driven by Leo Jefferson. The Jefferson auto came to a stop partially on the left shoulder and partially on the median strip between the northeast- and southwest-bound lanes of the expressway. Plaintiff parked his car on the southwest border of the median. Two passengers from the Jefferson auto began walking along the shoulder of the expressway to seek assistance in moving the car, which appeared to be stuck in mud.
Ptak testified that as he was driving southwest on the Stevenson Expressway he saw one car parked partially on the median and a second car parked on the side of the highway. He also recalled being approached by people walking along the highway. Ptak activated all of the emergency lights on his squad car, drove across the median, and parked a few feet behind the Jefferson auto with the front of the squad car facing oncoming traffic.
The testimony is in dispute as to whether the squad car was parked partially in a northeast-bound lane of traffic and as to whether Ptak turned off the squad car's emergency lights after parking.
Later, as Leo Jefferson, Ptak, and the plaintiff were examining the damage to the rear end of the Jefferson auto, a vehicle driven by Isaias Marin collided with the front of the squad car, pushing it backward and causing it to strike the plaintiff. At the time, plaintiff was standing between the squad car and the Jefferson auto. As a result of this second collision, plaintiff suffered injuries to both legs.
Plaintiff sued Marin, the city of Chicago and Ptak. Marin was never served, and the case proceeded with only the city and Ptak participating as defendants.
In their answer to plaintiff's complaint, defendants included a pleading entitled "Affirmative Defense." This pleading stated that sections 2-202 and 2-109 of the Tort Immunity Act (Ill. Rev. Stat. 1979, ch. 85, pars. 2-202, 2-109) had been in effect at the time of the accident. The pleading also quoted the pertinent parts of the statutes and prayed for the dismissal of the complaint.
At the close of plaintiff's case and again at the close of all the evidence, defendants moved for a directed verdict based on the provisions of sections 2-202 and 2-109 of the Tort Immunity Act (Ill. Rev. Stat. 1979, ch. 85, pars. 2-202, 2-109). Both motions were denied. The trial court also refused all instructions and special interrogatories tendered by the defendants regarding the Tort Immunity Act.
The appellate court reversed the judgment and remanded the cause for a new trial. (131 Ill. App.3d 582.) In doing so, the court found that the defendants had not waived their affirmative defense based on the Tort Immunity Act. (131 Ill. App.3d 582, 585-87.) The court reasoned that the affirmative defense was directed to the facts alleged in the plaintiff's complaint and there was no need for the defendants to restate the factual basis for this defense. (131 Ill. App.3d 582, 586.) The court also noted that the plaintiff had waived his objections to the defendants' pleadings by failing to request the appropriate relief in the trial court. 131 Ill. App.3d 582, 586-87.
The appellate court found that the evidence did not so overwhelmingly favor the plaintiff as to warrant what was, in effect, the trial court's directed finding that Ptak was not executing or enforcing the law at the time of his alleged negligence. (131 Ill. App.3d 582, 589.) The court ruled that the defendants should have the opportunity to submit this issue to the jury and remanded the cause for a new trial. (131 Ill. App.3d 582, 589.) As noted above, we granted plaintiff's petition for leave to appeal pursuant to Rule 315(a) (94 Ill.2d R. 315(a)).
Plaintiff first contends that the appellate court erred in ruling that the defendants had not waived the affirmative defense based upon sections 2-202 and 2-109 of the Tort Immunity Act (Ill. Rev. Stat. 1979, ch. 85, pars. 2-202, 2-109). Plaintiff argues that the defendants failed to assert or incorporate even one fact that established from a pleading standpoint that these statutes were applicable to this case. He also maintains that the appellate court erred in holding that the facts alleged in his complaint, together with the quoted statutes, stated sufficient ...