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02/02/89 Kathleen Arnold, As Mother v. the Village of Chicago

February 2, 1989

ARNOLD, PLAINTIFF-APPELLANT

v.

THE VILLAGE OF CHICAGO RIDGE ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

KATHLEEN ARNOLD, as Mother and Next Friend of Christine

537 N.E.2d 823, 181 Ill. App. 3d 778, 130 Ill. Dec. 494 1989.IL.110

Appeal from the Circuit Court of Cook County; the Hon. Brian B. Duff and the Hon. Willard J. Lassers, Judges, presiding.

APPELLATE Judges:

JUSTICE JOHNSON delivered the opinion of the court. McMORROW, J., concurs. PRESIDING JUSTICE JIGANTI, specially Concurring in part and Dissenting in part.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JOHNSON

Plaintiff, Kathleen Arnold, as mother and next friend of Christine Arnold, appeals from the orders of the circuit court of Cook County that dismissed her first and second amended complaints brought against defendants, the Villages of Chicago Ridge and Worth, for injuries sustained by Christine, her daughter, during a police vehicular pursuit. The Village of Alsip was also named as a defendant in plaintiff's complaints but was voluntarily dismissed. Plaintiff also appeals from an order granting defendants' summary judgment motions.

On appeal, plaintiff contends the following: (1) the filing of an amended count IV as part of a third amended complaint did not constitute an abandonment of counts I through III, previously stricken in her first and second amended complaints; (2) a breach of a special duty need not be pleaded or proved for injuries arising out of the operation of a police vehicle in violation of section 11-205 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-205); and (3) the trial court erred in granting defendants' summary judgment motions, as she had established at least a question of fact as to the identity of the vehicle which struck Christine and of those involved in the pursuit of the suspected law violator.

We reverse.

The record discloses that on August 26, 1982, at approximately 5 p.m., Christine, while riding her bicycle, was struck by a vehicle during a "police chase" through a residential area in the Village of Chicago Ridge. The action began when Chicago Ridge police officer Thomas White observed a vehicle that failed to come to a complete stop at a stop sign. Edward McDade, the driver of the vehicle in question, attempted to evade the police by driving at an accelerated speed through the residential area. At some point in time, police assistance from the Villages of Worth and Alsip was requested.

On August 16, 1983, plaintiff filed a six-count complaint against defendants and the Village of Alsip. The suit alleged that defendants, by and through their police personnel, negligently pursued the vehicle driven by McDade. This negligent conduct allowed the McDade vehicle to collide with Christine's bicycle, which caused her injuries. Defendants and Alsip moved to strike and dismiss plaintiff's complaint for failure to state a cause of action. These motions were based on their theory that plaintiff failed to allege the existence of a special duty, a necessary predicate, upon which to base liability against municipal defendants. Defendants also argued that plaintiff's complaint was defective in that negligent and willful and wanton allegations could not be commingled and that there was no proximate cause upon which to base liability. Defendants' motions were granted, and plaintiff, with leave of court, filed a first amended complaint in three counts that, in substance, contained all of the allegations in the original complaint.

Plaintiff's first amended complaint was dismissed for failure to allege the existence of a special duty. Subsequently, plaintiff filed a second amended complaint in four counts. Substantively, the allegations in counts I through III remained the same. Count IV alleged that the defendants' police departments were operating in concert in the pursuit of McDade.

The second amended complaint was dismissed for failure to plead or prove a special duty owed to Christine in counts I through III. The court granted plaintiff leave to amend count IV to plead that Officer White's vehicle collided with the bicycle being ridden by Christine.

Plaintiff then filed a third amended complaint in four counts. Counts I through III of the third amended complaint referred to the previously stricken counts I through III of the first and second amended complaints without amending these counts. Count IV was amended to allege, "in the alternative," liability on the part of defendant ...


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