United States District Court, Central District of Illinois, Springfield Division
February 26, 1987
WANDA PARKER ARMSTRONG, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF PATRICIA WELLER, DECEASED, INCOMPETENT, PLAINTIFF,
WAYNE MUDD, OFFICER THOMAS HENDRICKSON, SERGEANT DAMON BARLEY, SANGAMON COUNTY, ILLINOIS, OFFICER JOHN J. GREENAN II, OFFICER HARLAND SANDERS, OFFICER SCOTT ALLIN, AND CITY OF SPRINGFIELD, ILLINOIS, DEFENDANTS.
The opinion of the court was delivered by: Mills, District Judge:
High speed chase.
The fleeing criminal suspect hits decedent's car.
Her administrator sues the police.
The police all move for summary judgment.
Plaintiff, special administrator for the estate of Patricia
Weller, brings this lawsuit pursuant to the Illinois Wrongful
Death, Ill.Rev.Stat. ch. 70, ¶ 1, and Survival Acts,
Ill.Rev.Stat. ch. 110 1/2, ¶ 27-6.*fn1 She seeks
recovery in sixteen counts for the injury to and subsequent death
of the deceased as a result of a 1982 vehicle collision with
Defendant Wayne Mudd, a fleeing criminal suspect.*fn2 The
complaint alleges negligence not only against Mudd, but also the
pursuing patrolmen and their respective employers.*fn3
Jurisdiction is premised upon diversity of citizenship,
28 U.S.C. § 1332(a)*fn4, and Illinois substantive law governs. Erie
Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed.
Now before the Court are the Defendant police officers' motions
for summary judgment under Fed.R.Civ.P. 56. The underlying events
appear not in dispute. Rather, the query is whether such
circumstances give rise to genuine issues of material fact
regarding (1) the officers' alleged breach of the appropriate
care standard, and (2) the proximate cause of the deceased's
The Court finds that they do not. Summary judgment is proper.
At approximately 6:00 a.m. on May 8, 1982, Springfield Police
Officers John Greenan and Harland Sanders responded separately to
a report of theft in progress at the OK Corral, a used car lot
near the intersection of Taylor Avenue and Stevenson Drive in the
southeast corner of the city. According to the complaint, both
men observed the suspect, later identified as Wayne Mudd, enter
a green Mercury Marquis and begin to flee. Siren and lights
activated, Officer Greenan pursued Mudd north on Taylor, followed
by Officer Sanders. Subsequently, the pursuit proceeded east on
South Grand Avenue, southeast on Rochester Road, and south on
Dirksen Parkway. Returning to Stevenson Drive, the accused then
advanced west to Sixth Street, where he traveled north. (See
Appendix.) During this period, both patrolmen were in constant
communication with the city's dispatch officer. Greenan relayed
the suspect's license number and requested assistance.
As a result, County Officer Thomas Hendrickson, accompanied in
his squad car by Sergeant Damon Barley, received notice of the
pursuit via the Illinois State Police Emergency Radio Network.
Proceeding to the intersection of Sixth and Ash Streets, they
joined in a roadblock with two city units.
Apparently spotting the barrier, Mudd turned west onto Cornell
Avenue, one block south of Ash. Unable to make the corner,
Officer Greenan progressed north to Ash where his attempted left
turn resulted in the police car striking the curb. His vehicle
inoperable, Greenan abandoned the chase.
In the meantime, Officer Sanders had advanced west onto Broad
Place, one street prior to Cornell, hoping to cut off the fleeing
suspect. He then heard over the radio that Mudd was northbound on
Fourth Street. Having lost his quarry, Sanders shut off his siren
and slowed down. He, too, abandoned the chase.
Officer Hendrickson and Sergeant Barley, however, continued the
pursuit when Mudd averted the roadblock. Followed by city officer
Scott Allin, the county car proceeded to Cornell, becoming the
lead unit behind the suspect. According to Allin, the chase
endured at a speed of approximately 45 m.p.h.*fn5 Both cars
activated their emergency equipment — flashing lights and sirens.
Within a few seconds, Mudd had gained over a one block lead on
Officer Hendrickson. Officer Allin reported that when the county
car reached Laurel Street, on which the suspect had proceeded
west, both patrolmen had lost sight of the Mercury. Allin then
terminated his emergency apparatus and withdrew from the hunt.
The uncontradicted police report filed by Officer Hendrickson
and supported by his deposition describes the final seconds of
Mudd's nine mile adventure:
R/O [Reporting Officer] turned onto Cornell just in
time to see Mudd turn north on 4th St. R/O almost
came to a dead stop at 5th St. due to parked vehicles
on 5th St. blocking R/O's view. R/O then proceeded
across 5th St. to 4th St. As R/O turned north on 4th,
R/O saw Mudd's vehicle already across Ash St. and
still proceeding north at a high rate of speed on 4th
St. R/O approached Ash and again came to almost a
complete stop as two (2) autos were approaching side
by side on Ash from the west. These two (2) vehicles
stopped and R/O crossed Ash still northbound on 4th.
R/O then saw the Mudd vehicle turn west on Laurel.
Immediately Sgt. Barley reported, on County channel
one (1) that the suspect vehicle was westbound on
Laurel. R/O then said, "we've lost him, Damen". When
the Mudd vehicle turned west on Laurel, R/O had just
crossed Ash St. At that time R/O believed that the
only chance of keeping track of the vehicle was if
another officer was on Laurel and could see the Mudd
vehicle. R/O proceeded to Laurel on 4th and looked
west but did not see the Mudd vehicle on Laurel. R/O
drove west on Laurel crossing the 3rd St. railroad
tracks and saw the Mudd vehicle sitting in a gasoline
station lot at Spring and Laurel Streets. R/O quickly
proceeded to Spring and Laurel as Sgt. Barley radioed
the message of a traffic accident involving the
Mudd had collided with an auto driven by Patricia Weller at the
intersection of Spring and Laurel Streets.
The decedent was rendered incompetent for the duration of her
She died July 28, 1985.
Under Rule 56(c), summary judgment should enter "if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c). Unquestionably, in determining whether a
genuine issue of material fact exists, the evidence is to be
taken in the light most favorable to the nonmoving party. Adickes
v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598,
1608-09, 26 L.Ed.2d 142 (1970). Nevertheless, the rule is also
well established that the mere existence of some factual dispute
will not frustrate an otherwise proper summary judgment. Anderson
v. Liberty Lobby, Inc., ___ U.S. ___, 106 S.Ct. 2505, 2510, 91
L.Ed.2d 202 (1986); Federal Deposit Ins. Corp. v. Meyer,
781 F.2d 1260, 1267 (7th Cir. 1986). Thus, the "preliminary question for
the judge [is] not whether there is literally no evidence, but
whether there is any upon which a jury could properly proceed to
find a verdict for the party
producing it, upon whom the onus of proof is imposed." Anderson,
106 S.Ct. at 2511, quoting Improvement Co. v. Munson, 81 U.S. (14
Wall.) 442, 448, 20 L.Ed. 867 (1872); see also Celotex Corp. v.
Catrett, ___ U.S. ___, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265
(1986). In other words, the Court must consider the evidence
"through the prism of the substantive evidentiary burden" in
deciding Defendants' motion. Anderson, 106 S.Ct. at 2513; Carson
v. Allied News Co., 529 F.2d 206, 210 (7th Cir. 1976). Applying
this standard, the Court now turns to an analysis of the case at
In essence, Plaintiff maintains each officer involved in the
chase was negligent in pursuing Mudd through the streets of
Springfield on a mere suspicion of theft.*fn6 She claims the
Defendants failed to exercise due care in disregarding proper
police procedures, thereby jeopardizing the lives of innocent
people. As a result of their actions, Plaintiff concludes the
officers proximately caused the death of Patricia Weller.
With her conclusion, however, no reasonable jury could agree.
A. The Standard of Care
The Administrator is correct in stating that police officers
must exercise a degree of care for the safety of other persons
when engaged in the pursuit of a suspected law violator. This
principle has been established in Illinois at least since the
decision in Moore v. Cook, 22 Ill. App.2d 48, 159 N.E.2d 496 (4th
Dist. 1959). See also Sundin v. Hughes, 107 Ill. App.2d 195,
246 N.E.2d 100 (1st Dist. 1969). In fact, the Illinois General
Assembly had codified the precept together with certain
privileges applicable during a police chase at Ill.Rev.Stat. ch.
95 1/2, ¶ 11-205:
(b) The driver of an authorized emergency vehicle,
when responding to an emergency call or when in the
pursuit of an actual or suspected violator of the
law . . . may exercise the privileges set forth in
this Section, but subject to the conditions herein
(c) The driver of an authorized emergency vehicle
1. Park or stand, irrespective of the provisions of
2. Proceed past a red or stop signal or stop sign,
but only after slowing down as may be required and
necessary for safe operation;
3. Exceed the maximum speed limits so long as he
does not endanger life or property;
4. Disregard regulations governing direction of
movement or turning in specified directions. . . .
(e) 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
the safety of others.
See also Id. ¶ 11-907(b).
As indicated in subsection (e) of Paragraph 11-205, operators
of emergency autos are generally required to abstain only from
reckless or willful and wanton conduct. See Ill.Rev.Stat. ch. 85,
¶ 2-202. Nevertheless, where the public employer is insured for
the misconduct of its employees, the issuing company waives the
right to deny liability based upon any defense or immunity
established by the legislature. Id. ¶ 9-103(c).
In this instance, Plaintiff alleges and Defendants admit that
both Sangamon County and the City of Springfield are insured.
Thus, reasonable care under the circumstances is the measure by
which the police officers' actions must be judged. Cf. Sundin,
107 Ill.App.2d at 200-01, 246 N.E.2d at 104.
Having established the applicable standard, the next question
the Administrator presents a factual issue as to the Defendants'
breach of duty.
B. Reasonable Care
The Court is well aware that the determination of a breach of
duty is ordinarily a question of fact for the jury. Jardine v.
Rubloff, 73 Ill.2d 31, 43, 21 Ill.Dec. 868, 873, 382 N.E.2d 232,
237 (1978). Still, a general principle is not a universal rule.
If all of the evidence viewed in an aspect most favorable to the
opponent so overwhelmingly favors the movant that no genuine
issue of material fact exists, summary judgment is appropriate.
See Breck v. Cortez, 141 Ill. App.3d 351, 95 Ill.Dec. 615,
490 N.E.2d 88 (2d Dist. 1986).
As noted, the underlying facts are uncontradicted. The
Plaintiff, however, maintains that a factual issue arises from
the deposition of Ken Katsaris — an expert whose qualifications
are too lengthy to mention. He believes the Defendants violated
departmental policy in pursuing a suspect, accused only of theft,
through an urban area. His opinion is that high speed chases are
Yet, neither the Administrator nor her expert have produced the
regulations of the respective police departments, although the
burden is upon them to do so.*fn7 Apparently, the relevant
guidelines are quite general, referring only to the use of due
care in the line of duty.*fn8 Compare Breck, 141 Ill.App.3d at
360-61, 95 Ill.Dec. at 621-22, 490 N.E.2d at 94-95. Coupled with
the clear legislative policy reflected in Ill.Rev.Stat. ch. 95
1/2, ¶ 11-205, recognizing the need for prompt apprehension of
suspected law violators, and the privileges applicable to
emergency vehicles,*fn9 such inexact rules cannot support the
Plaintiff's position. No reasonable jury could so find.
Indeed, Plaintiff accurately points out that the patrolmen ran
red lights, proceeded the wrong direction down one-way streets,
and surpassed the speed limit. But the Illinois General Assembly
has deemed it proper for police officers to so act when in
pursuit of a fleeing criminal so long as they exercise due regard
for the safety of others. The events indicate the Defendants used
nothing less than reasonable care under the circumstances.
Officers Greenan, Sanders, and Allin of the city force all
utilized their sirens and lights while engaged in the chase. The
record simply does not support the inference that they
unreasonably endangered the lives of innocent persons. Likewise,
Deputy Hendrickson has stated without contradiction that after
assuming the reins he lost Mudd when forced to reduce his speed
on Fourth Street due to the presence of other motorists.
Furthermore, Sergeant Barley was merely riding in the county
squad car at the time of the occurrence. Plaintiff fails to
enlighten the Court as to her theory of recovery against him.
Reduced to a minimum, Plaintiff claims that pursuing a criminal
through city streets on the suspicion of simple theft is
negligence per se where the police officer possesses a
description of the culprit and the vehicle's license number. Such
an assertion, however, is not — nor should it be — the law in
Illinois. As one federal court has stated:
We must not forget that the primary duty was upon
the pursued to stop. . . . It is hardly necessary to
point out the overriding public policy of
apprehending criminals as rapidly as possible, thus
eliminating continued criminal acts, as a factor
outweighing the undesirable consequences of holding
an officer liable for the damages sustained by a
third party. . . .
We are not prepared to hold an officer liable for
damages inflicted by the driver of a . . . vehicle
whom he was lawfully attempting to apprehend for the
fortuitous reason only that the criminal drove
through an urban area. To do so would open the door
for every desperado to seek sanctuary in the
congested confines of our municipalities, serene in
the knowledge that an officer would not likely give
chase for fear of being liable for the pursued's
State v. Fidelity & Casualty Co., 263 F. Supp. 88, 90-91
(S.D.W.Va. 1967). Undoubtedly, the officers' actions caused Mudd
to drive recklessly. Still, the conclusion that the patrolmen are
responsible for the result of the criminal's behavior does not
follow. "Police cannot be made insurers of the conduct of the
culprits they chase." Bailey v. L.W. Edison Charitable
Foundation, 152 Ind. App. 460, 468, 284 N.E.2d 141, 146 (3d Dist.
1972). The policy of safeguarding life and property by
apprehending a fleeing suspect who, by electing to run,
recklessly endangers innocent parties must be balanced against
the possibility of injury upon commencing the pursuit. In other
words, an officer's duty to drive with due care must be gauged in
relation to the surrounding circumstances.
In this instance, the Court concludes as a matter of law that
the Plaintiff failed to meet her substantive evidentiary burden
with regard to the patrolmens' conduct.*fn10 Their duty was to
suppress the offense and apprehend the offender. This they did by
utilizing due care under the circumstances. A passage from a
recent Illinois Appellate Court opinion is fitting:
While it is most unfortunate that bystanders are
sometimes innocently involved and injured by the
police in the performance of their duties, such
emotional and understandable human considerations are
not a substitute for proof of negligence. Such proof
is lacking in the instant case.
Breck, 141 Ill.App.3d at 361, 95 Ill.Dec. at 622, 490 N.E.2d at
95, quoting Stanton v. State, 26 N.Y.2d 990, 991, 311 N.Y.S.2d
28, 29, 259 N.E.2d 494, 495 (1970).*fn11
Viewing the facts in a light most favorable to the Plaintiff,
no reasonable jury could find that the officers breached their
duty of due care. As a consequence, a discussion of proximate
cause seems unnecessary. Nevertheless, since the issue provides
an additional basis for the grant of summary judgment in this
controversy, the Court will comment upon it briefly.
C. Proximate Cause
Like the breach of duty, the question of proximate cause is
generally also for the jury. Felty v. New Berlin Transit,
71 Ill.2d 126, 130, 15 Ill.Dec. 768, 770, 374 N.E.2d 203, 205
(1978). But where the facts are undisputed and reasonable men
could not differ as to the inferences to be drawn therefrom, the
issue may be decided as a matter of law. Id. at 130, 15 Ill.Dec.
at 769, 374 N.E.2d at 204. This is such a case.
Applying a simplified "but for" test, Plaintiff maintains the
officers' conduct was a concurrent proximate cause of the
deceased's injuries and subsequent death. In other words, if the
police hadn't chased the fleeing suspect, the collision would not
have occurred. The Administrator's analysis, however, is
unconvincing. Rather, this Court is persuaded by the recent
Illinois decision in Huddleston v. City of Charleston,
144 Ill. App.3d 1077, 99 Ill.Dec. 17, 495 N.E.2d 82 (4th Dist. 1986).
In that case, the decedent, a motorcycle passenger of the
fleeing culprit, was killed when the driver lost control
attempting to avoid a police roadblock. Finding no evidence
supporting proximate cause, the trial judge directed verdicts for
the patrolmen and municipality. The appellate court affirmed,
noting that the defendants did not put plaintiff's decedent at
[The criminal's] reckless disregard for his own
safety, the safety of his passenger, the safety of
other drivers, his disregard for the various
licensing rules, and his engaging in a high speed
police chase, evidences such negligence that it is
clear that his actions were the original wrong. . . .
The officers' conduct was reasonably foreseeable.
As such, their conduct could not be the proximate
cause of the accident.
Id. at 1080-81, 99 Ill.Dec. at 19-20, 495 N.E.2d at 84-85; see
also Downs v. Camp, 113 Ill. App.2d 221, 252 N.E.2d 46 (1st Dist.
The situation confronting this Court is similar. Clearly, the
direct and proximate cause of Patricia Weller's death was the
utter disregard by Mudd of authority in running from the police
and his lack of due care in recklessly operating his vehicle.
"The officers would have been derelict in their duty had they not
pursued the escapee in the reasonable manner in which they did
pursue him." United States v. Hutchins, 268 F.2d 69, 72 (6th Cir.
Moreover, the facts establish that at the time of the accident,
all the city officers had abandoned pursuit. Likewise, the county
officials had significantly reduced their speed and lost sight of
Mudd. Thus, even assuming arguendo that the patrolmen were
initially negligent, such neglect is too remote to be considered
a proximate cause of the mishap. "Any danger created by [the
officers] had spent itself and there was no causal connection
between it and what followed." Schatz v. Cutler, 395 F. Supp. 271,
275 (D.Vt. 1975).
Ergo, for all the aforementioned reasons, the motions for
summary judgment filed by the Defendant Police Officers and their
respective employers are ALLOWED.
The issue of Defendant Wayne Mudd's negligence remains for
IT IS SO ORDERED.