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11/23/94 ROBERT JAHN v. TROY FIRE PROTECTION

November 23, 1994

ROBERT JAHN, APPELLANT,
v.
THE TROY FIRE PROTECTION DISTRICT ET AL., APPELLEES.



Bilandic

The opinion of the court was delivered by: Bilandic

CHIEF JUSTICE BILANDIC delivered the opinion of the court:

The central issue in this appeal is whether the Fire Fighter Liability Act (Ill. Rev. Stat. 1987, ch. 127 1/2, par. 46) has been repealed by implication. The plaintiff, Robert Jahn, filed a three-count amended complaint alleging personal injury in the circuit court of Will County against the Troy Fire Protection District (the District) and Robert Meyers (Meyers), a fire fighter employed by the District. Count III, which is at issue in this appeal, claimed that the District is liable for Meyers' negligence pursuant to the Fire Fighter Liability Act. The trial court denied the defendants' motion to dismiss count III and certified the following question for interlocutory appeal: Whether the Fire Fighter Liability Act constitutes an invalid classification between different government agencies that perform the same function. See 134 Ill. 2d R. 308.

The appellate court answered the certified question in the affirmative and found that the Fire Fighter Liability Act has been repealed by implication. (255 Ill. App. 3d 933.) We granted the plaintiff's petition for leave to appeal (145 Ill. 2d R. 315). We allowed the Illinois Trial Lawyers Association to submit a brief as amicus curiae in support of the plaintiff's position.

FACTS

On August 25, 1988, the plaintiff was working on a road repair project for his employer, the Department of Transportation. Meyers drove a fire truck through the construction site during an emergency call. The fire truck hit a construction marker cone. The cone flew into the air, striking and injuring the plaintiff.

Counts I and III of the plaintiff's amended complaint sounded in negligence. Count III specifically claimed that the District is liable for Meyers' negligence pursuant to the Fire Fighter Liability Act. The defendants moved to dismiss these counts with prejudice. The motion to dismiss count I was based on the immunity provision of section 5-106 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1987, ch. 85, par. 5-106). The motion to dismiss count III contended that the Fire Fighter Liability Act creates an invalid classification between different government agencies that perform the same function.

The trial court dismissed count I, but denied the motion to dismiss count III. The appellate court held that count III should be dismissed because the Fire Fighter Liability Act has been repealed by implication. 255 Ill. App. 3d at 941.

ANALYSIS

I

As an initial matter, the plaintiff argues that the District lacked standing to challenge the validity of the Fire Fighter Liability Act in its motion to dismiss. He asserts that the District, a unit of local government, could not raise an equal protection challenge because it is not a person. See Williams v. Mayor & City Council (1933), 289 U.S. 36, 77 L. Ed. 1015, 53 S. Ct. 431; Meador v. City of Salem (1972), 51 Ill. 2d 572, 284 N.E.2d 266.

Although the District may have framed the issue in the trial court as an equal protection problem, that characterization was inappropriate. The real issue in this case concerns whether the Fire Fighter Liability Act remains valid in light of subsequent legislation. The District undoubtedly would have had standing to pursue such a challenge in the trial court because it implicates no constitutional rights. We therefore reject the plaintiff's assertion.

II

The plaintiff next contends that the appellate court erred in holding that the Fire Fighter Liability Act has been repealed by implication. He argues that the appellate court improperly presumed that the General Assembly intended to repeal the Fire Fighter Liability Act by amending the Tort Immunity Act. According to the plaintiff, any ...


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