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03/09/87 Margaret B. Wolf, Adm'r of v. Linda Liberis Et Al.

March 9, 1987

MARGARET B. WOLF, ADM'R OF THE ESTATE OF PAUL C. WOLF, DECEASED, PLAINTIFF-APPELLEE

v.

LINDA LIBERIS ET AL., DEFENDANTS-APPELLANTS (NICK LIBERIS, DEFENDANT)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

505 N.E.2d 1202, 153 Ill. App. 3d 488, 106 Ill. Dec. 411 1987.IL.266

Appeal from the Circuit Court of Cook County; the Hon. Edwin M. Berman, Judge, presiding.

APPELLATE Judges:

Justice O'Connor delivered the opinion of the court. Quinlan, P.J., and Campbell, J. concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR

This consolidated appeal arises out of an action for damages brought by plaintiff, Margaret Wolf, administrator of the estate of Paul C. Wolf, deceased, against defendants Linda Liberis, the city of Chicago, and Nick L. Liberis, who is not a party to this appeal. The trial court denied separate motions for summary judgment on behalf of Linda Liberis and the city of Chicago. This court granted both leave to appeal pursuant to Supreme Court Rule 308 (87 Ill. 2d R. 308).

The plaintiff's decedent, Paul C. Wolf, was killed on May 16, 1979, while driving eastbound on Belmont, as the result of a head-on collision with a car westbound on Belmont owned and operated by Nick L. Liberis, an off-duty Chicago policeman.

The following series of undisputed events preceded the collision. Liberis and his fiancee, Linda Manno (now Linda Liberis), had dinner at a restaurant and had a personal argument. Manno testified that she had several glasses of wine during the meal and several more after Liberis drove her home. At about 2 a.m. she drove to Liberis' apartment, where they resolved their argument. Because Manno had been drinking, Liberis offered to follow her while she drove home. Manno took a wrong turn, drove through a red light, and then lost control of her vehicle at Central and Belmont and drove her car partway through a store window. Liberis then parked his car, backed Manno's car out of the window and parked it. He told Manno to stay there while he went to call the police, but did not arrest her.

As Liberis attempted to get back into his own car, he was approached by three men who attempted to restrain or attack him. While he was struggling to get away, Liberis reached for his wallet, where he kept his police badge, and said "I'm on the job." He was not able to get the badge out. In the meantime, Manno had left the scene of the original accident and driven home. Liberis got back into his own car and began to drive away. One of his assailants pulled open his car door and attempted to wrest control of the steering wheel, causing Liberis to lose control and drive head-on into the vehicle driven by plaintiff's decedent.

Liberis was knocked unconscious by the collision and, when he woke up, asked bystanders to call the police and an ambulance. Following the incident, he was discharged from the police department for his misconduct involving the collision. He was also criminally charged and pleaded guilty to a misdemeanor of reckless conduct and sentenced to a year of probation.

The administrator of decedent Wolf's estate filed suit against Nick Liberis, Linda Liberis, and the city of Chicago. Claims against the city were based on the theory that Liberis was acting as an agent of the city at the time of the incident that led to Mr. Wolf's death. Count V of plaintiff's second amended complaint against Linda Liberis alleged that she and Nick Liberis were involved in a tortious concert of action and a joint venture or that Nick Liberis was the agent or a representative of Linda Liberis and that she was, therefore, vicariously liable for his negligent driving. Plaintiff also alleged that Linda Liberis knew or should have known that when she left the scene of the initial accident, it was reasonably foreseeable that Nick Liberis would also leave the scene, follow her, and present a danger to other persons traveling on the highway.

The trial court denied separate motions for summary judgment by Linda Liberis and the city and certified the following question of law:

"Whether a police officer is acting within the scope of his employment when he is involved in an automobile accident at a time when he is:

a) off duty;

b) out of uniform; and

c) driving his own ...


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