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February 8, 1995

JEFFREY T. CAVENDER, T. SIEWERT, and VILLAGE OF ORLAND PARK, a municipal corporation, Defendants.

The opinion of the court was delivered by: RUBEN CASTILLO

 In the early hours of May 12, 1992, Theodore Wozniak ("Wozniak") crashed his all terrain vehicle ("ATV") in a ditch while being pursued by Orland Park police officers Jeffrey Cavender ("Cavender") and Troy Siewert ("Siewert"). Wozniak ("Wozniak") and his wife Karen Wozniak are now suing Cavender and Siewert (count I) and the Village of Orland Park (count V) under 42 U.S.C. § 1983, alleging that the officer's pursuit of Wozniak in conjunction with his subsequent crash constituted an unreasonable seizure resulting in serious and permanent injuries to Wozniak. Wozniak's municipal liability claim against the Village is premised on the position that the Village maintained a custom or policy of encouraging unreasonable or excessive force by police officers. In addition to these federal causes of action, the plaintiffs also maintain the following state law claims: Karen Wozniak's claims for loss of consortium (counts II, VI, VIII, and X); Wozniak's claim of assault (count VII); and Wozniak's claim of reckless operation of a motor vehicle (count IX). The defendants move for summary judgment on all counts.

 The defendants argue that Wozniak's crash did not constitute a Fourth Amendment seizure and even if it is deemed to be a seizure it was not an unreasonable seizure prohibited by the Fourth Amendment. The defendants also contend that Cavender and Siewert are entitled to qualified immunity. With respect to the municipal liability claim, the Village contends that there is no evidence in the record supporting plaintiffs' claim of an official policy or custom of Orland Park encouraging unreasonable or excessive force. Finally, defendants maintain that the supplemental state law claims are precluded by the Illinois Tort Immunity Act ("the Act"), 745 ILCS 10/2-109 and 10/2-202.


 The undisputed facts gleaned from the parties' Local Rule 12(M) and (N) statements of material facts as to which there is no genuine issue are as follows. *fn1"

 On May 11, 1992, Wozniak and a friend, Charles Wilcox ("Wilcox") , went to Wilcox's brother's home. Wozniak and Wilcox arrived at Mike Wilcox's home at approximately 1:00 - 2:00 in the afternoon and stayed there until approximately midnight. When they departed, they were both on ATVs. During the course of the day, Wozniak and Wilcox had played frisbee, basketball, and pool and had driven the ATVs over various fields in the vicinity of Mike Wilcox's home.

 When Wozniak and Wilcox left Mike Wilcox's house in the early morning of May 12, 1992, they travelled over various fields under Commonwealth Edison power lines (referred to herein as the Commonwealth Edison Right-of-Way) and ultimately ended up in a forest preserve area. En route to the forest preserve, Wozniak and Wilcox drove across the drainage ditches at 80th Avenue (It was this very drainage ditch site to which Wozniak would subsequently return and crash while being pursued by the Orland Park police.) Wozniak testified that the access road was approximately five to ten feet wide -- wide enough to accommodate two ATVs travelling side-by-side. Wozniak also testified that the ditch appeared to be approximately two (or three) to four feet deep and that when they reached the drainage ditch, Wilcox cautioned him about the need to slow down. *fn2"

 Upon leaving the forest preserve land, Wozniak and Wilcox travelled the same route, although in the opposite direction, with the intention of returning to Mike Wilcox's house. At some point, Wozniak and Wilcox were spotted by Cavender and Siewert who decided to effect a traffic stop of the ATVs while riding in a marked Orland Park police squad car. *fn3" Like many facts regarding the specifics of the police pursuit, the exact location at which Cavender and Siewert first spotted Wozniak and Wilcox is a matter of some dispute. *fn4" Wilcox's deposition testimony, as well as that of Cavender and Siewert indicates that the officers sighted and began to follow the ATVs at Catalina street. See Wilcox Dep. at 33; Siewert Dep. at 80-81; Cavender Dep. at 67. *fn5" Wozniak maintains that Cavender and Siewert began their pursuit of the ATVs where Wheeler intersects the Right-of-Way, approximately two blocks west of Catalina. Wozniak Dep. at 489. *fn6" For purposes of this motion, the Court shall resolve this conflict in the testimony in favor of Wozniak.

 Wozniak testified that as he was crossing Wheeler in a westbound direction onto the Right-of-Way, he noticed a car parked in the bend approximately twenty to forty yards away that accelerated towards him. Wozniak stated that he could not tell at that time that the car was a marked squad car. After travelling approximately twenty to fifty feet on the Right-of-Way, Wozniak testified that the police car "flew up behind us," Wozniak Dep. at 46, "and then I realized it was a police car because he had his [Mars] lights [flashing]." Wozniak Dep. at 46-47; see also id. at 58. *fn7" Although Wozniak first testified that he could not say how far behind him the police car was, he subsequently stated that the car was "about 10 to 20 feet behind me and accelerating at a high rate of speed." Wozniak Dep. at 48-49. When asked what was the closest distance that the police car ever came to him from this point to the accident site at 80th Avenue, Wozniak stated, "I could not say the exact distance, because, you know, I only looked back once or twice . . . ." Id. at 48. Wozniak subsequently stated that the squad car appeared to be approximately ten to twenty feet behind him and that this was the closest that he ever saw the police car in relation to his ATV. Id. at 49, 124. The only other point at which Wozniak stated he looked back was approximately 100 to 150 yards before reaching 80th Avenue and at that time the squad car continued to be ten to thirty feet behind his ATV. Id. at 54, 57. The squad car's emergency lights were still on at that point. Id. at 56. When asked if the squad car was closing in on him at that point, Wozniak testified that "He [the police] seemed to be keeping a well interval," and that they [Wozniak and the police] were travelling at roughly the same speed, id.8 This was the last point at which Wozniak turned around and saw the police. Id. at 57, 73. *fn9"

 By the time he reached the access road leading to 80th Avenue and the drainage ditches, Wozniak was unaware of the distance between himself and the police car. Id. at 111. Indeed, in response to a deposition question, Wozniak acknowledged that by the time he reached 80th Avenue, he "had no idea where the police car was exactly." Id. at 124-25. However, he testified that he believed the squad car was still right behind him because he could hear the police siren. Id. at 73-74, 287.

 Although he could not say exactly -- because his ATV did not have a speedometer -- Wozniak testified that his maximum rate of speed during the police chase was approximately 35 to 45 miles per hour. *fn10" Id. at 70. When he reached the access road leading to 80th Avenue, Wozniak testified that he was braking and downshifting such that by the middle of the access road his speed was approximately ten to twenty miles per hour. Id. at 72. As he approached 80th Avenue, Wozniak continued to brake and downshift decelerating to approximately five to ten miles per hour as he crossed the Avenue. Id. *fn11" By the time of his leaving the Avenue and entering the ditch, Wozniak estimated that his speed was approximately three to six miles per hour. Id. at 79. Wozniak crashed upon entering the ditch on the west edge of 80th Avenue. *fn12"

 It is uncontroverted that almost from the outset of the chase, Wozniak accelerated and thereafter was ahead of Wilcox for the entire duration of the chase. Wilcox Dep. at 36-37; 39; 49; 52; 53. Wilcox stated that his ATV was approximately 20 feet behind Wozniak's. Id. at 39; see also id. at 49 (20 to 30 feet). *fn13" Wilcox also stated that the squad car followed him at a distance of approximately one or one-and-one-half to three or four car lengths. Id. at 61. Wilcox testified that right before the accident he could no longer hear the squad car behind him, id. at 40-41, and that at no point during the chase did he hear a police siren, id. at 37. *fn14" When asked if it ever occurred to him to stop and allow the police officers to catch up with him, Wilcox testified, "No, they were right behind me up until I slowed down for 80th and the officers slowed down too." Id. at 64. *fn15"

 Cavender testified that he was aware of the existence of the drainage ditches at 80th Avenue and that he had a general knowledge of how steep they were. Cavender Dep. at 57-58. While testifying that it would be "extremely difficult to drive a car across the drainage ditches," id. at 57, Cavender expressed no opinion as to whether it would be difficult to cross the ditches on an ATV because he had never driven one, id. at 57-58. *fn16"

 At its core, Wozniak's complaint alleges that Cavender and Siewert effected an unreasonable seizure by forcing him into the ditch -- through ...

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