The opinion of the court was delivered by: SHADUR
MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE
This action has been brought by Lynda Warner ("Warner") as personal representative for the estate of Todd Warner ("Todd") to seek recovery for Todd's death as a result of a collision in 1983 between a vehicle driven by Stephanie Rixecker ("Rixecker") and another vehicle in which Todd was a passenger.
In Count I Warner has sued the United States under the Federal Tort Claims Act ("FTCA"),
28 U.S.C. §§ 1346(b) and 2671-2680, alleging that Officer Lester Caldwell ("Caldwell") -- a police officer with the Great Lakes Naval Base ("Great Lakes") Police Department -- was negligent in his pursuit of Rixecker's automobile at the time of the accident. Counts IV and V, the only other remaining claims,
are pendent state-law claims charging negligence and willful and wanton misconduct against Rixecker.
At 3:38 p.m. Sunday April 17, 1983
Rixecker, an unlicensed 15-year old driver who had recently attempted suicide, was driving a car that she had stolen that day. Rixecker piloted the stolen car into the intersection of Sheridan Road and 22d Street, North Chicago, Illinois at a speed of approximately 60 m.p.h., ignoring a stop sign and slamming into the side of a car owned and driven by Matthew Johnston ("Johnston"), causing it to flip over and land on its roof. Todd, a passenger in Johnston's car, was killed by the impact.
Just moments before that Rixecker had made an illegal U-turn, had nearly hit a guard on duty at Great Lakes, had run a red light and had driven down a half-mile stretch of road weaving and speeding up to the point of impact. At that point Caldwell was following Rixecker at a distance of approximately 300 to 400 feet. He had been following Rixecker for just under 60 seconds before the accident.
Only three days before the accident Rixecker had attempted to commit suicide by slashing her wrists and taking a quantity of pills, after which she was admitted to the intensive care unit at Glenbrook Medical Hospital for drug poisoning and multiple wrist lacerations. Then just one day after her April 16 discharge from the hospital Rixecker went for an automobile ride with some of her friends. While they were riding around Rixecker asked the driver of the car, Ingrid Schwartz ("Schwartz"), to stop at a house in Riverwoods, Illinois. There Rixecker stole a 1978 Toyota owned by Morey Sachnoff ("Sachnoff") from the driveway and drove off.
Schwartz pursued Rixecker, who then struck a parked automobile, drove over a private lawn and sped away. Schwartz continued to follow Rixecker through Deerfield, Illinois to Deerfield Road, to Milwaukee Road,
north to Buckley Road and then east to Sheridan Road in North Chicago. Refusing to stop the stolen car, Rixecker drove up Sheridan Road, turning into the Great Lakes Farragut Street entrance. While Rixecker waited in line to enter the gate, Schwartz (who was still behind her) told on-duty Officer Caldwell that Rixecker was a runaway, had attempted suicide, was underage and was driving without a license. Caldwell responded by turning on the red lights on his patrol car, which was marked with "Great Lakes Police Department" on each door and the sign "POLICE" on the fenders, and moved up toward the rear of Rixecker's vehicle.
Suddenly Rixecker "rapidly put her car in reverse" (Caldwell Dep. 40), made an illegal U-turn and almost hit a guard positioned at the gate. She then headed away from the base, ran a red light at Farragut and Sheridan Roads and after making a right turn quickly sped north on Sheridan Road toward the next intersection, a little more than a half mile away.
When Caldwell had reached his maximum speed of 60 to 65 m.p.h. -- at a point about half way from Farragut Street to 22d -- Rixecker was already 300 feet ahead of him. Caldwell did not actually know that the Johnston car was about to enter the 22d Street intersection, but he continued to use his lights and siren to warn any drivers who might have been in the vicinity of the intersection. Rixecker sped north on Sheridan Road and was weaving from lane to lane, including the oncoming traffic lane. Rixecker does not recall that Caldwell was following her as she was speeding down Sheridan Road. She increased her speed and was driving at approximately 60 m.p.h. -- 20 m.p.h. over the speed limit -- when she ran the stop sign at 22d Street and struck the Johnston vehicle, mortally injuring Todd, who was pronounced dead at the scene at 4:15 p.m.
Liability of the United States
Warner's claim against the United States interchangeably -- and misleadingly -- uses both the terms "ordinary care" and "willful and wanton negligence." As discussed below, those two standards are relevant to two different and distinct kinds of claims. Illinois law allows a claim against a police officer under an "ordinary care" standard only when the officer had a "special duty" to the particular plaintiff. Absent such a relationship, police officers in Illinois are immune from suit for their negligence unless their behavior rises to the level of "willful and wanton conduct."
It is of course plain, and neither party disputes, that Illinois law provides the applicable standards of liability in this case. As Opinion at 553 and nn. 3, 4 explained:
1. Under the FTCA, Illinois law provides the rules of decision as to the United States' potential liability (28 U.S.C. § 2674 ("Section 2674") says that the "United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances . . . .").
A public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct. n.3
n.3 That statute used to refer to "willful and wanton negligence" until it was amended in 1986 by substituting "conduct" for "negligence." Thus the operative standard at the time of the occurrence at issue here was the pre-amendment version, when "willful and wanton" was expressly characterized as a greater degree of negligence.
That standard of care links up with a coterminous standard of care for the employer of any such public employee, id. P 2-109:
A local public entity is not liable for an injury resulting from an act or omission of its employee where ...