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06/02/95 JIM AND CATHERINE URBAN v. VILLAGE

June 2, 1995

JIM AND CATHERINE URBAN, CO-ADMINISTRATORS OF THE ESTATE OF LISA URBAN, DECEASED, PLAINTIFFS-APPELLANTS,
v.
VILLAGE OF LINCOLNSHIRE, A MUNICIPAL CORPORATION, ALAN DAVID BOYES, ET AL., DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. NO. 89 L 13014. HONORABLE PATRICK McGANN, JUDGE PRESIDING.

Presiding Justice McNAMARA delivered the opinion of the court: Egan and Zwick, JJ., concur.

The opinion of the court was delivered by: Mcnamara

PRESIDING JUSTICE McNAMARA delivered the opinion of the court:

Plaintiffs, Jim and Catherine Urban, filed this action as co-administrators of the estate of their deceased daughter, Lisa Urban, seeking recovery against defendants, Village of Lincolnshire and Lincolnshire Police Officer Alan David Boyes, for the death of the decedent arising from a collision between the motorcycle on which she was riding and an automobile. Counts III and IV of plaintiffs second amended complaint alleged willful and wanton conduct on the part of defendants in engaging in a high-speed pursuit of the motorcycle shortly before the accident occurred. The trial court granted summary judgment in favor of defendants on both counts, and plaintiffs appeal.

The relevant facts are as follows. At approximately 8:30 p.m. on the evening of June 29, 1989, Charles Dalenberg and the decedent traveled on Dalenberg's motorcycle to Antioch, Illinois, where they boarded a ferry which transported them to Blarney Island, an island on which a drinking establishment by the same name is located. Neither Dalenberg, who was driving the motorcycle, nor the decedent was wearing a helmet. At his deposition, Dalenberg testified that after he picked up the decedent from her house prior to driving to the ferry, the two stopped at a gas station where they split a can ofbeer. Later, while waiting for the ferry to take them to the island, Dalenberg consumed two more beers. The decedent was also drinking during the 15-minute wait for the ferry, and Dalenberg believed the decedent drank about the same amount. During the one and a half-hour period on the island, Dalenberg drank two more beers. Dalenberg and the decedent left the island at around midnight and returned to the pier. On the ferry ride back to the pier, Dalenberg drank two additional beers.

When they reached land, Dalenberg and the decedent got back on the motorcycle and traveled with a fellow motorcyclist to a restaurant located north of Illinois Routes 21 and 22 in Lincolnshire. Dalenberg and the decedent remained at the restaurant for 10 minutes and left at approximately 12:40 a.m. Dalenberg believed, but was not certain, that he turned right out of the restaurant's parking lot onto southbound Route 21 and at the first intersection, turned left onto Route 22 going eastbound toward Interstate 294. Dalenberg stated that he drove onto southbound I-294 and at some point noticed that his gas tank was nearly empty; he and the decedent exited onto westbound Willow Road to fill up. Finding no gas station open on Willow Road, Dalenberg decided to travel the rest of the way home on Willow and intended to exit at Wolf Road. (At that location, Willow Road is known as Palatine Road.) Dalenberg testified that at no time after leaving the restaurant was he ever pursued by the police. He did not see flashing lights behind him or hear sirens at any point.

Boyes testified at his deposition that he was parked in his squad car in a parking lot at the northeast corner of Routes 21 and 22. At approximately 12:40 a.m. on the morning of June 30, Boyes heard the sound of a revving motorcycle engine and looked up to see Dalenberg and the decedent on a motorcycle weaving in and out of traffic in the two southbound lanes of Route 21 at a high rate of speed. Boyes testified that he clocked the speed of the motorcycle on his radar unit at 78 miles per hour. The speed limit was 35 miles per hour. Boyes activated his flashing lights and began to pursue the motorcycle southbound on Route 21. Contrary to Dalenberg's deposition testimony, Boyes stated that Dalenberg and the decedent remained on Route 21 and did not turn onto Route 22. When Dalenberg failed to stop, Boyes engaged his siren. Dalenberg drove through a red light at Route 21 and Aptakisic Road, after which Boyes radioed his dispatcher to notify him that he was in pursuit of a motorcycle. He gave his location and advised that he was switching to "ISPERN," the Illinois State Police Emergency Radio Network. Boyes was outside his Lincolnshire jurisdiction by the time hereached Aptakisic Road and could no longer communicate on the "local" frequency. Throughout the pursuit, the motorcycle reached speeds far in excess of the posted speed limits, which ranged from 35 to 50 miles per hour.

Dalenberg and the decedent continued down Route 21 with Boyes still following. Boyes came within one-quarter mile of the motorcycle with his lights still flashing, but Dalenberg failed to pull over. Boyes made two or three additional radio transmissions on ISPERN. Each time, Boyes announced that he was in pursuit of a motorcycle and gave his location. At Route 21 and Deerfield Road, one of Boyes' dispatches was acknowledged by District 3 State Police. Boyes stated his opinion that he was authorized to continue his pursuit of Dalenberg even though he was no longer within the boundaries of Lincolnshire.

Dalenberg and the decedent ran another red light at Route 21 and Wolf Road, which Boyes stated was approximately three miles south of where the pursuit began. Dalenberg continued to weave around cars in the two southbound lanes. A little over a mile later, at Route 21 and Dundee Road, Boyes made another radio transmission advising that he was still in pursuit and giving his location. The dispatcher acknowledged receipt of the call.

At Route 21 and Palatine Frontage Road, Dalenberg and the decedent made a right turn onto westbound Palatine Frontage Road. At that point, Boyes was three car lengths behind them. Boyes again radioed his location over ISPERN. Dalenberg and the decedent then drove into the lane of oncoming traffic to pass two westbound cars. Boyes was unable to safely pass the cars and as a result lost sight of the motorcycle. Boyes remained on the frontage road and decreased his speed. He slowed down to a near stop and looked around several nearby buildings to see if Dalenberg and the decedent were hiding there. About 20 seconds elapsed from the time he lost sight of the motorcycle to the time he began looking between the buildings. He spent approximately 10 seconds searching that area. When he failed to find the motorcycle, he continued driving toward the next intersection, intending to turn around and head home. When he reached the next intersection, that being Palatine Frontage Road and Wolf Road in Wheeling, he discovered that Dalenberg and the decedent had collided with an automobile owned by Jeanette Jagiello and driven by Scott Cwik. Boyes immediately reported the accident over the police radio. Moments later, several other squad cars and emergency rescue personnel arrived. The decedent died later that day as a result of injuries sustained in the collision.

After reporting the accident, Boyes called his station andrequested that his supervisor, Sergeant Weinstein, meet him at the scene. Weinstein was off duty at the time, and no other supervisor was on duty. Weinstein was contacted at his home and met Boyes at the scene shortly thereafter.

Boyes testified as to the department's policies and procedures concerning police pursuits. He stated that in the course of a pursuit, radio communications are to be transmitted over ISPERN. Boyes acknowledged the existence of a Lincolnshire Police Department regulation pertaining to pursuits outside the Lincolnshire jurisdiction, which states:

"Department vehicles are normally to be driven within the incorporated limits of the Village. It is understood that assists to other agencies or other assignments may require an officer to travel outside the Village limits; however, all incidents requiring an officer to leave the Village must be approved by a supervisor and logged with the radio dispatcher."

With respect to the applicability of this rule to the pursuit in question, Boyes stated that no supervisor was on duty at the time the pursuit occurred, and he was thus required to use his own discretion as to whether to continue the pursuit outside the village limits. During the course of the pursuit, the weather was clear and dry and traffic was light, and he decided to continue the pursuit. Boyes also acknowledged the existence of another Lincolnshire Police Department regulation requiring an officer in pursuit to weigh the risks involved in the pursuit against the nature ...


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