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09/24/87 Barbara Fessler, Deceased, v. R.E.J. Inc.

September 24, 1987

BARBARA FESSLER, DECEASED, BY HER REPRESENTATIVE AND FATHER, KENNETH FESSLER, PLAINTIFF-APPELLANT

v.

R.E.J. INC., D/B/A J.E.M. BAR ET AL., DEFENDANTS (THE CITY OF JERSEYVILLE ET AL., DEFENDANTS-APPELLEES). --

STANTON A. SMITH, DECEASED, PLAINTIFFS-APPELLANTS

v.

DONALD TILLERY ET AL., DEFENDANTS



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

GEORGE SMITH et al., Adm'rs of the Estate of

(The City of

Jerseyville et

al., Defendants-Appellees)

Nos. 4-86-0883, 4-86-0919 cons.

514 N.E.2d 515, 161 Ill. App. 3d 290, 112 Ill. Dec. 852

Appeal from the Circuit Court of Jersey County; the Hon. Claude J. Davis, Judge, presiding. 1987.IL.1420

APPELLATE Judges:

JUSTICE McCULLOUGH delivered the opinion of the court. SPITZ, P.J., and GREEN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

Plaintiffs in this consolidated appeal brought separate actions on behalf of the decedents, Barbara Fessler and Stanton Smith. Several defendants were named in each action, including the city of Jerseyville (city) and one of its police officers, Sergeant Ralph Pickett.

Plaintiffs alleged local law enforcement agencies on July 7, 1984, received several citizen complaints concerning erratic driving behavior exhibited by a pickup truck on Illinois Route 267 leading to Jerseyville. In response, the city dispatched Sergeant Pickett, who encountered the truck and its two occupants in a parking lot in town. According to the complaints, although Sergeant Pickett knew or should have known both men were intoxicated, he allowed them to remain with their parked vehicle. Just over one hour later that same pickup, being operated by Donald Tillery without a valid driver's license, collided with a vehicle driven by Smith with Fessler as a passenger. Both Smith and Fessler died as a result of injuries sustained in the accident.

The city and Sergeant Pickett moved to dismiss for failure to state a cause of action those counts of the plaintiffs' complaints relating to them. Pickett's motion also raised the immunity afforded under sections 2-205 and 4-107 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, pars. 2-205, 4-107). The trial court granted both motions. Plaintiffs now appeal pursuant to Supreme Court Rule 304(a). 107 Ill. 2d R. 304(a).

At issue here is whether under the facts as alleged the decedents were owed a particular duty of care by the defendants. While the circumstances of this matter are tragic, we hold under the decisional law of this State no such duty exists, and we affirm.

Counts V through VIII of the complaint filed by plaintiffs George and Herta Smith, as administrators of the estate of Stanton Smith, sounded in tort against the city and Sergeant Pickett. Similarly, counts IX through XII of the complaint, maintained by Kenneth Fessler as representative and father of Barbara Fessler, charged the city and Sergeant Pickett with negligence as well as wilful and wanton misconduct. The factual allegations contained therein identify the fatal accident as occurring July 7, 1984, on Illinois Route 267 approximately 4.8 miles north of the Jersey and Greene county lines. Smith was operating his car in a southbound direction, ...


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