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03/20/87 Peter Laco Et Al., v. the City of Chicago Et Al.

March 20, 1987





507 N.E.2d 64, 154 Ill. App. 3d 498, 107 Ill. Dec. 400 1987.IL.346

Appeal from the Circuit Court of Cook County; the Hon. Thomas J. O'Brien, Judge, presiding.


JUSTICE MURRAY delivered the opinion of the court. LORENZ and PINCHAM, JJ., concur.


Plaintiffs, Peter Laco, Augustina Laco, Ivanna Lamb, and Bernice Mahnke, individually and as special administrator of the estate of Dean Mahnke, deceased, appeal from an order of the circuit court of Cook County granting summary judgment to defendant city of Chicago and its police officers, John Walsh and John Karlow, in a negligence and wrongful death action. Plaintiffs contend: (1) that defendants failed to satisfy the procedural or substantive requirements for summary judgment; (2) that "Illinois law allows recovery for persons injured by a fleeing violator who is being pursued by the police"; and (3) that "a jury [could] find that the defendants were liable to the plaintiffs from the documents contained in the record." For the reasons set forth below, we affirm.

The record discloses that on November 1, 1979, a collision occurred at 27th Street and Princeton Avenue in Chicago between plaintiffs' automobile and a stolen vehicle being driven by Henry Hernandez. Hernandez, who was being pursued for traffic violations by defendant police officers Walsh and Karlow, struck plaintiffs' car and, as a result, plaintiffs were injured and Dean Mahnke was killed. On September 26, 1980, plaintiffs filed a complaint alleging Walsh and Karlow negligently and recklessly operated their vehicle at high and dangerous speeds knowing that such action would result in injury to other drivers; that they failed to use oscillating or flashing lights or sound a siren during the chase; that they failed to take appropriate steps to warn other drivers of the approach of the vehicles operated by them and Hernandez; and that they operated their vehicle so that, as a direct and proximate cause, plaintiffs were injured.

Defendants subsequently filed a motion for summary judgment, attaching the depositions of officers Walsh and Karlow and police reports. Plaintiffs filed a motion to strike defendants' motion, but did not file any counteraffidavits or other evidence contradicting defendants' evidence.

Walsh's and Karlow's depositions, as well as the police reports, indicated that at approximately 11 p.m. on November 1, 1979, Walsh was driving a marked squad car when he and Karlow observed a 1971 Chevrolet heading north on Wentworth Avenue, a southbound, one-way street. The Chevrolet traveled approximately 50 feet on Wentworth, made a U-turn, drove into a gas station, and then proceeded west on 31st Street, a two-way street. The officers had followed the Chevrolet for two short blocks when it turned onto 31st Street. At that time Karlow activated the squad car's blue Mars lights and siren. When the Chevrolet turned north on Princeton, another two-way street, Walsh put on the squad car's floodlight and directed it towards the Chevrolet. On Princeton, the officers encountered cars double-parked on both sides of the street and slowed the speed of their car to two to three miles per hour. After passing through the double-parked cars, they saw the Chevrolet 1 1/2 blocks ahead of them traveling at an approximate speed of 60 miles per hour.

As the squad car traveled up Princeton, the officers saw no other vehicles on the street. At 28th Street, an east-west street, the Chevrolet ran a stop sign, as well as at 27th Street, where it collided with plaintiffs' vehicle which was traveling in a westerly direction on 27th Street. Karlow testified that during the chase he and Walsh proceeded at varying speeds: 30 to 35 miles per hour, 15 miles per hour, 2 to 3 miles per hour. Walsh testified that the maximum speed of the squad car may have been between 40 and 45 miles per hour. The chase covered a distance of approximately six city blocks; the evening was clear; the streets were dry and artificially illuminated; and traffic was not heavy.

In granting defendants' motion for summary judgment, the trial court ruled that defendants owed no duty to plaintiffs and that, if there was a duty, no liability arose because the acts of the defendants as a matter of law did not constitute wilful and wanton conduct.

On appeal, we first address plaintiffs' argument that defendants failed to satisfy procedural or substantive requirements for summary judgment. Summary judgment should be granted where " 'the pleadings, depositions and admissions on file, together with the supporting affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.' " (Wright v. Adonis Compania Naviera, S.A. (1978), 59 Ill. App. 3d 108, 110, 376 N.E.2d 4; Ill. Rev. Stat. 1985, ch. 110, par. 2-1005(c).) Evidence is to be construed strictly against the moving party and liberally in favor of the opponent. (Clausen v. Ed Fanning Chevrolet, Inc. (1972), 8 Ill. App. 3d 1053, 291 N.E.2d 202.) The right to summary judgment must be clear beyond question and an order granting summary judgment must be reversed if a reviewing court determines that a material question of fact does exist. Wright v. Adonis Compania Naviera, S.A. (1978), 59 Ill. App. 3d 108, 376 N.E.2d 4.

In an action for wilful and wanton negligence, the plaintiff must establish the existence of a duty, breach of that duty, and an injury proximately resulting from that breach. (Breck v. Cortez (1986), 141 Ill. App. 3d 351, 490 N.E.2d 88.) The existence of a duty, i.e., whether a defendant and plaintiff stood in such a relationship to one another that the law imposed upon the defendant an obligation to meet a standard of conduct for the benefit of the plaintiff, is a question of law properly addressed by the court on a motion for summary judgment. Horrell v. City of Chicago (1986), 145 Ill. App. 3d 428, 495 N.E.2d 1259; Breck v. Cortez (1986), 141 Ill. App. 3d 351, 490 N.E.2d 88.

We further observe that "although a complaint . . . may purport to raise issues of material fact, if such issues are not further supported by evidential facts through affidavits or other evidence, summary judgment is appropriate; if the party moving for summary judgment supplies facts which, if not contradicted, would entitle such a party to judgment as a matter of law, the opposing party cannot rely on his or her complaint . . . alone to ...

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