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02/23/89 Raymond C. Trepachko, v. the Village of West-Haven

February 23, 1989

TREPACHKO, DECEASED, PLAINTIFF-APPELLANT

v.

THE VILLAGE OF WEST-HAVEN, ET AL., DEFENDANTS-APPELLEES. -- BRUNO PIETRUSZYNSKI, ADM'R OF THE ESTATE OF RICHARD

PIETRUSZYNSKI, DECEASED, PLAINTIFF-APPELLANT,

v.

THE VILLAGE OF WESTHAVEN ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

RAYMOND C. TREPACHKO, Special Adm'r of the Estate of Carla

540 N.E.2d 342, 184 Ill. App. 3d 241, 132 Ill. Dec. 602 1989.IL.225

Appeal from the Circuit Court of Cook County; the Hon. Myron T. Gomberg, Judge, presiding.

Rehearing Denied July 11, 1989.

APPELLATE Judges:

JUSTICE McMORROW delivered the opinion of the court. LINN, J., concurs. PRESIDING JUSTICE JIGANTI, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCMORROW

This is a consolidated appeal from the dismissal of plaintiffs' third-amended complaints in a personal injury and wrongful death action.

Background

Plaintiffs, Raymond Trepachko and Bruno Pietruszynski, administrators of the estates of Carla Trepachko and Richard Pietruszynski (decedents), respectively, filed separate complaints against defendants, the Village of Westhaven (Village), Westhaven police officer Harry Callahan (Callahan), and Jerome Ranos (Ranos), seeking recovery for the fatal injuries suffered by Carla and Richard when the motorcycle on which they were riding collided with Ranos' automobile on LaGrange Road in Westhaven.

The facts, as alleged in both plaintiffs' third-amended complaints and admitted by defendants by reason of their motions to dismiss (see O'Brien v. Township High School District 214 (1980), 83 Ill. 2d 462, 415 N.E.2d 1015), are as follows. At approximately 1 a.m. on August 12, 1984, Ranos, who had been driving northbound on LaGrange Road, was stopped by Officer Callahan for a traffic law violation. Ranos stopped his car in the right curb lane, and Officer Callahan positioned his vehicle directly behind Ranos' automobile. Callahan focused his spotlight on the driver's area of the Ranos car and instructed Ranos to move the car from the lane in which it was parked to the median which divided the northbound lanes from the southbound lanes in the four-lane highway. Ranos drove his car in a westerly direction across the highway toward the median in such a way that it was proceeding almost perpendicularly across the two north-bound lanes. While Ranos moved his car across the highway, Officer Callahan continued to shine his spotlight toward Ranos' rear-view mirror. As the Ranos car proceeded across the highway, the motorcycle on which the decedents were riding collided with it, causing them the severe injuries from which they subsequently died.

The Trepachko complaint alleged that Callahan was negligent in the following respects: directing Ranos to drive his car across two lanes of travel; failing to keep a proper lookout for or take measures to control oncoming traffic; and focusing his spotlight in Ranos' rear view mirror in such a way as to make it difficult or impossible for Ranos to see any traffic approaching from the south. The Pietruszynski complaint alleged these same acts and omissions, and also alleged that Officer Callahan's failure to warn oncoming cars of the maneuver Ranos was performing at Callahan's direction constituted both negligent and wilful and wanton conduct.

Defendants filed motions to strike and dismiss the complaints, asserting that they owed no duty to protect the decedents from Ranos; that Callahan's conduct was not the proximate cause of the decedents' injuries; and that they were immune from liability under sections 2-202 and 2-109 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, pars. 2-202, 2-109) (the Tort Immunity Act)).

Following a hearing, the trial court granted the motions to dismiss. The court found that plaintiffs had failed to plead or establish the existence of a special relationship between defendants and the decedents giving rise to a duty on the part of defendants to the decedents. The court then held, as a matter of law, that absent any such duty, plaintiffs' complaints failed to state a cause of action. The action against Ranos remained pending and is not the ...


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