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07/14/94 HELEN M. HAMPTON v. RICHARD E. CASHMORE

July 14, 1994

HELEN M. HAMPTON, PLAINTIFF-APPELLANT,
v.
RICHARD E. CASHMORE AND MINNESOTA MINING AND MANUFACTURING COMPANY, DEFENDANTS (THOMAS J. ZELENZ AND THE CITY OF WAUKEGAN, DEFENDANTS-APPELLEES).



Appeal from the Circuit Court of Lake County. Nos. 91-L-1197, 91-L-1135 consolidated. Honorable Stephen E. Walter, Judge, Presiding.

The Name of this Case has been Corrected by the Court July 20, 1994. Released for Publication August 15, 1994. The Name of this Case has been Corrected by the Court February 10, 1995.

Doyle, Colwell, PECCARELLI

The opinion of the court was delivered by: Doyle

JUSTICE DOYLE delivered the opinion of the court:

Plaintiff, Helen M. Hampton, filed a complaint in the circuit court of Lake County against defendants, Richard E. Cashmore, Thomas J. Zelenz, and the City of Waukegan (City), alleging negligent and careless acts and omissions arising from a vehicular intersection collision. At the time of the collision, plaintiff was being transported in an ambulance driven by Zelenz, who was acting in his capacity as an employee of the City, when it either struck or was struck by a pickup truck being driven by Cashmore. Plaintiff subsequently amended her complaint twice, adding the Minnesota Mining and Manufacturing Company as a defendant and amending her allegations against Zelenz and the City to include willful and wanton conduct. Zelenz and the City moved for summary judgment, and approximately two months later, they moved to dismiss plaintiff's complaint on the ground that it was time barred under the more restrictive limitations period in the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/8-101 (West 1992)) (Tort Immunity Act). The circuit court granted summary judgment in favor of Zelenz and the City and, on the same date, denied their motion to dismiss. Plaintiff timely appeals from the order granting summary judgment in favor of Zelenz and the City. Zelenz and the City have filed a cross-appeal from the trial court's denial of their motion to dismiss. The order plaintiff appeals from contains the requisite Supreme Court Rule 304(a) finding (see 134 Ill. 2d R. 304(a)), and neither Cashmore nor the Minnesota Mining and Manufacturing Company is a party to this appeal.

Plaintiff's sole issue on appeal is whether the trial court erred in determining that no issue of material fact existed on the issue of whether defendants' conduct was willful and wanton. In their cross-appeal, Zelenz and the City maintain that even if an issue of material fact were found to exist, the trial court erred in denying theirmotion to dismiss because plaintiff's claim was time barred under the more restrictive limitations period applicable to public employees.

Before proceeding to the merits of the parties' respective contentions, it is necessary to consider this court's jurisdiction to hear defendants' "cross-appeal." During the pendency of this appeal, defendants' cross-appeal was dismissed on plaintiff's motion, and following reconsideration, it was reinstated. In her supplemental reply brief, which was filed after the reinstatement of defendants' cross-appeal, plaintiff renews her objection, contending that defendants' cross-appeal from the order denying its motion to dismiss was not appealable. Plaintiff reasons that because the denial of a motion to dismiss is an interlocutory order which does not finally dispose of an action (see, e.g., Chicago Health Clubs, Inc. v. Picur (1987), 155 Ill. App. 3d 482, 487, 108 Ill. Dec. 431, 508 N.E.2d 742, rev'd on other grounds (1988), 124 Ill. 2d 1, 124 Ill. Dec. 87, 528 N.E.2d 978), defendants' failure to obtain a finding under Supreme Court Rule 308 (see 134 Ill. 2d R. 308) precludes review of defendants' cross-appeal. Defendants respond that this court has jurisdiction to hear their cross-appeal because they are entitled to urge any ground contained in the record which supports the validity of the trial court's judgment. We disagree entirely with plaintiff and partly with defendant.

While it is true that appeals from interlocutory orders must fall within the purview of either Supreme Court Rules 307 or 308 (see 134 Ill. 2d Rules 307 (interlocutory appeals as of right), 308 (permissive interlocutory appeals)), plaintiff fails to recognize that an order remains interlocutory relative to its appealability only so long as no final order has been entered. Once a final order has been entered, all prior nonfinal orders become appealable. ( Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 433, 31 Ill. Dec. 178, 394 N.E.2d 380; In re E.L. (1987), 152 Ill. App. 3d 25, 30, 105 Ill. Dec. 288, 504 N.E.2d 157.) Although the record shows that the trial court denied defendants' motion to dismiss on the same date it granted defendants' motion for summary judgment, procedural logic would dictate that the denial of the motion to dismiss preceded the grant of summary judgment because a motion for summary judgment ordinarily assumes, for the purpose of the motion, that the complaint states a legally viable cause of action. (See generally Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 406, 312 N.E.2d 605.) Defendants, however, did not seek review of the denial of their motion to dismiss until after the grant of summary judgment in their favor. Therefore, with the entry of a final order disposing entirely of the controversy between plaintiff and defendants, the earlier denial of defendants' motion to dismiss became reviewable once plaintiff chose to appeal from the grant of summary judgment. Accordingly, the absence or existence of a Supreme Court Rule 308 finding would have been of no consequence as applied to the present circumstances.

We note, however, that defendants' argument is not entirely correct because a cross-appeal does not lie from the denial of a motion to dismiss where no part of the trial court's final judgment was adverse to them. (See Boles Trucking, Inc. v. O'Connor (1985), 138 Ill. App. 3d 764, 772, 93 Ill. Dec. 261, 486 N.E.2d 362.) Because no part of the order granting summary judgment in favor of defendants was adverse to them, defendants' cross-appeal should be dismissed. This rule governing cross-appeals does not mean, however, that the issues raised by defendants are precluded from review. An appellee may advance any argument supported by the record to sustain the judgment of the trial court. (See Boles, 138 Ill. App. 3d at 772.) We initially address the propriety of the trial court's order granting summary judgment in favor defendants, however, because an affirmance of the trial court's ruling would make it unnecessary to reach the issues raised by defendants.

Plaintiff's second amended complaint alleged that on or about August 16, 1989, she was a passenger in an ambulance being driven by Zelenz, who at the time was acting in his capacity as a fireman for the City of Waukegan. As the ambulance was proceeding northbound on Lewis Avenue near the intersection with Ridgeland, another vehicle, which was driven by Cashmore, was proceeding west on Ridgeland. It was further alleged that as a result of Cashmore's negligence and Zelenz's willful and wanton conduct, the vehicles collided at the intersection. Specifically, Zelenz willfully and wantonly failed to yield the right-of-way; stop for a red light; take evasive action to avoid a collision; reduce his speed to avoid an accident; keep a proper, or any, lookout for traffic crossing Lewis Avenue with the green light; and entered the intersection with little or no regard to traffic crossing Lewis Avenue with the green light. The City was joined on a theory of vicarious liability, and no issue of whether Zelenz was acting within the scope of his employment at the time of the accident was raised in the trial court.

In their motion for summary judgment, Zelenz and the City maintained that the deposition testimony of various witnesses conclusively established that no issue of material fact existed on the question of whether Zelenz was acting with either a deliberate intention to cause harm or an utter indifference for the safety of others. Citing portions of the same depositions, plaintiff responded that Zelenz's conduct was arguably willful and wanton because the evidence established the allegations of the complaint including, in particular, that Zelenz observed that the traffic light was red, proceeded into the southbound lanes of traffic, and collided with the pickup truck operated by Cashmore.

The depositions relied on by the parties reveal the following facts. Lewis Avenue is a four-lane, north-south road. Ridgeland, where it intersects Lewis Avenue, is a two-lane roadway running east-west. The intersection is controlled by traffic signals, and there are no dedicated turn lanes on Lewis Avenue. It was undisputed that the traffic signals were operational at the time of the accident, and weather and road conditions were not a factor. The parties do not dispute that, at the time of the accident, the ambulance's siren and emergency lights were activated.

Gary Grant, an eyewitness, testified that he was driving southbound on Lewis Avenue in the inside lane approaching Ridgeland. When he was approximately one block north of the intersection, he observed, several blocks to the south, a northbound ambulance with its emergency lights activated. As the ambulance entered the intersection, he observed that the traffic light was red and that the ambulance did not appear to be traveling "excessively fast." When asked whether the ambulance slowed, relative to its speed when he first observed it, before entering the intersection, Grant stated that he did not believe so. Grant estimated that the ambulance was traveling below the speed limit, perhaps 30 or 35 miles per hour.

Grant testified further that he first observed Cashmore's pickup truck when it was a "few car lengths" from the intersection. He was unable to say whether the pickup was traveling above or below the speed limit. Just prior to the collision with the ambulance, Grant observed the pickup truck slam on its brakes. He opined that neither driver saw one another prior to the collision. ...


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