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10/18/94 MICHELLE C. POSTICH v. TIMOTHY M. HENRICHS

October 18, 1994

MICHELLE C. POSTICH, PLAINTIFF-APPELLEE AND CROSS-APPELLANT,
v.
TIMOTHY M. HENRICHS, DEFENDANT-APPELLANT AND CROSS-APPELLEE.



Appeal from the Circuit Court of Lake County. No. 91-L-1924. Honorable Emilio B. Santi, Judge, Presiding.

Quetsch, McLAREN, Doyle

The opinion of the court was delivered by: Quetsch

JUSTICE QUETSCH delivered the opinion of the court:

Plaintiff, Michelle C. Postich, brought this action in the circuit court of Lake County against defendant, Timothy M. Henrichs, seeking recovery for injuries allegedly sustained in an automobile accident. At the time of the accident, defendant was employed by the Department of Conservation as a police officer and was on duty in that capacity. Following a bench trial, the court entered judgment in plaintiff's favor awarding damages in the amount of $4,682. On appeal, defendant argues that this action should have been brought in the court of claims and the circuit court of Lake County lacked subject-matter jurisdiction. Defendant alternatively argues that plaintiff failed to prove that his alleged negligence was the proximate cause of any injury to plaintiff. Plaintiff cross-appeals from orders of the trial court deferring the accrual of interest on the judgment and staying the enforcement of the judgment without an appeal bond. We agree that the court of claims, and not the circuit court, had jurisdiction; and we vacate.

On December 6, 1991, at about 2:48 p.m., the Village of Glencoe Department of Public Safety received a report of possible shots fired at the Skokie Lagoons, which was described by one witness as a series of lagoons and forested areas bounded by residential areas and the Edens Expressway. A dispatcher directed Glencoe police officers to respond to the scene and then immediately advised the Department of Conservation of the report by telephone. The Glencoe dispatcher testified that the telephone call to the Department of Conservation was "informational" and was not a request for assistance.

At about 3:20 p.m., defendant received a radio call from his commanding officer's secretary indicating that the Glencoe police requested assistance "ASAP" with a report of a "man with a gun" at the Skokie Lagoons. Defendant was driving his patrol car on Sheridan Road north of the Village of Lake Bluff when he received the call. He then proceeded westbound on Rockland Road. Defendant testified that he activated his vehicle's various emergency lights and its siren. As defendant approached the intersection of Rockland Road and Green Bay Road, the westbound lanes were blocked by vehicles stopped at a red light. Defendant drove around those vehicles into the eastbound lane of traffic. Defendant testified that he inched into the intersection and was struck by plaintiff's vehicle which was southbound on Green Bay Road.

Two eyewitnesses who observed the accident offered somewhat conflicting accounts of defendant's actions as he approached the intersection. One witness testified that defendant came to a rolling stop at the intersection and looked both ways before proceeding into the intersection, at which point the collision occurred. However, a second witness testified that defendant momentarily activated his brakes about 20 feet from the intersection and then accelerated into the intersection, achieving a speed of about 40 miles per hour. The trial court's comments indicate that the court credited the second witness' account.

Both eyewitnesses testified that the emergency lights on defendant's vehicle were operating. One of the witnesses also testified that he heard the siren on defendant's vehicle. The other witness, a motorist, did not hear the siren, but he explained that the windows of his car were rolled up, his car radio was on, and his children were making noise in the backseat.

Defendant testified that he considered the report of a person with a gun at the Skokie Lagoons to be an emergency which constituted a potentially life threatening situation. Defendant indicated that on occasion deer killed with .22 caliber ammunition had been found at the Skokie Lagoons. Such ammunition has a range of 1.7 miles and could strike people in adjacent portions of Glencoe or drivers on the Edens Expressway. Defendant considered the report of a person with a gun at the Skokie Lagoons was very serious because of the proximity to residential areas. Defendant's commanding officer, Captain James Getz, testified that the report of a person with a gun could be considered an emergency and that it was consistent with the policies of the Department of Conservation law enforcement division and with police training to respond to such a report with emergency lights and siren activated.

The trial court rejected defendant's argument that the court of claims was the proper forum for the plaintiff's action and entered judgment in favor of plaintiff in the amount of $4,682 on March 16, 1993. The trial court had found plaintiff's damages to be $5,508, but found that plaintiff was 15% at fault and reduced her damages accordingly. Thereafter, defendant filed a timely post-trial motion. On May 6, 1993, the trial court denied defendant's motion, but ordered that interest on the judgment would not begin to accrue until 30 days after the May 6 order. Subsequently, the trial court entered an order staying the enforcement of the judgment without an appeal bond.

We first consider defendant's argument that although this action was nominally brought against him as a private individual, it is, in effect, a suit against the State. As such, defendant argues, plaintiff should have brought this action in the court of claims in accordance with statutory sovereign immunity principles. Defendant maintains that the circuit court of Lake County lacked subject-matter jurisdiction over the matter.

Article XIII, section 4, of the Illinois Constitution of 1970 abolished sovereign immunity "except as the General Assembly may provide by law." (Ill. Const. 1970, art. XIII, § 4; see Currie v. Lao (1992), 148 Ill. 2d 151, 157-58, 170 Ill. Dec. 297, 592 N.E.2d 977.) Pursuant to this provision, the General Assembly has enacted the State Lawsuit Immunity Act (745 ILCS 5/1 (West 1992)), which provides, in pertinent part, that the State of Illinois shall not be made a defendant or party in any court except as provided in the Court of Claims Act (705 ILCS 505/1 et seq. (West 1992)). In turn, the Court of Claims Act created the court of claims (705 ILCS 505/1 (West 1992)) which has exclusive jurisdiction to hear and determine, inter alia, "all claims against the State for damages in cases sounding in tort, if a like cause of action would lie against a private person or corporation in a civil suit" (705 ILCS 505/8(d) (West 1992)).

The determination of whether an action is in fact against the State depends upon an analysis of the issues involved and the relief sought, rather than the formal designation of the parties. ( Currie v. Lao (1992), 148 Ill. 2d 151, 158, 170 Ill. Dec. 297, 592 N.E.2d 977; Hickey v. Huber (1994), 200 Ill. Dec. 452, Ill. App. 3d , , 635 N.E.2d 791, 793.) "An action brought nominally against a State employee in his individual capacity will be found to be a claim against the State where a judgment for the plaintiff could operate to control the actions of the State or subject it to liability." Currie, 148 Ill. 2d at 158.

In Currie v. Lao (1992), 148 Ill. 2d 151, 158, 170 Ill. Dec. 297, 592 N.E.2d 977, the court explained that sovereign immunity does not immunize a State employee for his own acts of negligence merely because he acted within the scope of his employment. (See also Hickey, Ill. App. 3d at , 635 N.E.2d at 793.) Instead, the applicability of sovereign immunity turns upon the source of the duty the employee is alleged to have breached. Where the basis of the negligence claim is the breach of a duty imposed on the State employee solely by virtue of his or her State employment, sovereign immunity will bar maintenance of the action in the circuit court. But if the duty is imposed upon the employee independently of State employment, sovereign ...


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