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November 6, 1995


Appeal from the Circuit Court of Lake County. Nos. 92-L-1329, 93-L-1187 (Consolidated). Honorable Terrence J. Brady, Judge, Presiding. This Opinion Substituted on Denial of Rehearing for Withdrawn Opinion of August 30, 1995, Previously

Released for Publication December 7, 1995. Petition for Leave to Appeal Denied January 31, 1996.

The Honorable Justice Thomas delivered the opinion of the court: Bowman and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Thomas

JUSTICE THOMAS delivered the opinion of the court:

The plaintiff, Richard A. Korjenek, Jr., filed this negligence action in the circuit court of Lake County against the defendant, State Trooper Joseph P. Julian, Jr., to recover for personal injuries the plaintiff sustained as a result of an automobile collision at an intersection. This action was consolidated with a negligence action brought by Jonathan T. Lenz against Trooper Julian arising out of the same accident. Lenz was the driver and Korjenek the passenger in a vehicle which was struck by Julian's police car. A jury awarded plaintiff Korjenek $189,071 in damages but found that Julian was not liable as to Lenz. Following a post-trial hearing, the trial court found that the jury had ignored the unrebutted evidence of Korjenek's medical bills, and, therefore, it increased the award and entered judgment in favor of Korjenek for $219,809.66. The court then allowed a $100,000 setoff for a payment previously paid to Korjenek by Lenz's insurance company. Julian appeals, contending that Korjenek's suit was barred by the doctrines of sovereign immunity, public officials' immunity, and res judicata. Korjenek cross-appeals, claiming that he is entitled to a new trial on damages because the trial court excluded Jews from the jury and defense counsel made improper comments during closing argument.

The record reveals that State Troopers Julian, Bruce Shimizu, and Joseph Perez were assigned to patrol Lake County on the night in question. Shimizu was assigned to patrol the western half of the county, and Julian was assigned to patrol the eastern half of the county. At one point during his shift, Shimizu saw a motorcyclist pass other vehicles in a no-passing zone. Shimizu activated his emergency lights and attempted to stop the vehicle. When it became clear that the driver was attempting to evade the trooper, Shimizu advised the dispatcher by radio that he was pursuing the motorcycle. In turn, the dispatcher made a broadcast requesting that any units in the area offer assistance. Shimizu pursued the vehicle across the Wisconsin State line. Eventually the trooper lost sight of the motorcycle and radioed that he was calling off the chase at 12:45:31 a.m. At that time, he did not know which direction the fleeing motorist was proceeding.

Trooper Julian heard the initial broadcast about the fleeing motorcyclist when he was outside of his vehicle at a gas station about 8 to 10 miles from Shimizu. Even though Shimizu and the motorcyclist were heading away from Julian at the time, Julian decided to offer assistance because he considered it to be an emergency situation. Julian's vehicle was not equipped with mars lights, but it did have revolving red and blue flashing lights in the front and rear, which he activated. Julian took Route 21 to Route 41 and then proceeded north on Route 41. Julian was travelling between 80 and 90 miles per hour within one mile of the accident scene. At approximately 12:47:11 a.m., nearly two minutes after Shimizu radioed that he was cancelling the chase, Julian's vehicle entered the intersection of Routes 41 and 173 and collided with a vehicle driven by Lenz in which Korjenek was a passenger. Korjenek was thrown from the vehicle and suffered severe and permanent injuries. Witnesses testified that Julian's flashing lights were not visible to most motorists and that he only activated his siren shortly before entering the intersection. Several witnesses gave varying estimates of Julian's speed as he entered the intersection, i.e., between 80 and 90 miles per hour, between 65 and 80 miles per hour, between 55 and 60 miles per hour, and 35 miles per hour. Six witnesses testified that Lenz's car had the green light at the time of the collision. Julian testified that he had not heard at the time of the accident that Shimizu's chase had been discontinued. According to Julian, the last broadcast he heard concerning the chase indicated that Shimizu and the motorcyclist had crossed the border into Wisconsin. Julian further testified that he intended to travel near the Wisconsin border to intercept the vehicle in the event it returned to Illinois travelling south on Old Route 41 or a nearby frontage road.

Trooper Perez testified that Julian told him after the accident that he intended to travel to Wisconsin to assist Shimizu. This would have been a violation of Illinois State Police policy which only permits State Police vehicles that are in hot pursuit to cross the State line.

State Police Sergeant Scott Norwood testified that Trooper Julian told him that at the time of the accident he knew the chase had already been called off by Shimizu. According to State Police policy, a trooper should weigh the seriousness of the offense against the potential for death or injury to others when deciding to engage in a high-speed pursuit of a motorist. However, it is the pursuing officer and not an assisting officer who is to balance the factors and decide whether to continue the pursuit.

On appeal, Julian first argues that the doctrine of sovereign immunity bars Korjenek's claim in the circuit court. Under this doctrine, the circuit court would be without subject-matter jurisdiction to entertain a lawsuit which is in reality a claim against the State because it involves an employee of the State engaged in his official duties. Julian contends that the accident occurred while he was on duty and attempting to apprehend a fleeing motorcyclist and, therefore, he was engaged in activity unique to his employment as a State trooper.

The determination of whether an action is in fact a suit against the State turns 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.) 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.) However, where a State employee is charged with breaching a duty imposed on him independently of his State employment, sovereign immunity will not attach and a negligence claim may be maintained against him in the circuit court. ( Currie, 148 Ill. 2d at 159.) A State employee who breaches a duty he owes regardless of his State employment is no more entitled to immunity than is a private individual who breaches that same duty; the mere fact of his State employment should not endow him with heightened protection. ( Currie, 148 Ill. 2d at 160, 170 Ill. Dec. 297, 592 N.E.2d 977.) In keeping with these principles, the rule has evolved that claims based on the negligent operation of an automobile by a State employee are generally outside the doctrine of sovereign immunity. ( Currie, 148 Ill. 2d at 160.) This rule, of course, is not without exception: in some circumstances, a State employee's manner of operating a vehicle may be so unique to his employment that a lawsuit aimed at his negligent driving could operate to control the actions and policies of the State. See, e.g., Campbell v. White (1991), 207 Ill. App. 3d 541, 152 Ill. Dec. 519, 566 N.E.2d 47; Postich v. Henrichs (1994), 267 Ill. App. 3d 236, 204 Ill. Dec. 545, 641 N.E.2d 975.

In Currie, the Illinois Supreme Court found that sovereign immunity did not apply to bar a claim against a State trooper for his negligent operation of a motor vehicle while on duty. There, the trooper's area of responsibility included Will County, and his assignment on the date in question was to regulate traffic on Interstate 80. The trooper testified that he received a call from the dispatcher directing him to report to a disturbance within the Joliet city limits. En route, the trooper drove the wrong way on a one-way street and collided with another vehicle. Prior to the accident, the trooper had been driving close to the speed limit. The court questioned the trooper's veracity about whether he was responding to a disturbance because Joliet police department records did not reflect a request for assistance from the State police. The court further noted that, even if the trooper was responding to a call for assistance, it was clear that responding to such a call was not part of the trooper's normal and official functions as a State trooper. The court also questioned the trooper's claim that he was responding to an emergency situation noting that any "emergency" which had existed would certainly have become a nonemergency given the manner in which the trooper traveled to the scene. The court concluded that the duty the trooper was charged with breaching did not arise as a result of his employment as a State trooper, but rather arose as a result of his status as the driver of an automobile on a public roadway.

In reaching its decision, the Currie court distinguished Campbell v. White (1991), 207 Ill. App. 3d 541, 152 Ill. Dec. 519, 566 N.E.2d 47. In Campbell, a State trooper began a high-speed chase of a suspect after the suspect's motorcycle passed the trooper while he was adjusting his radar. Eventually, the suspect's motorcycle came to rest in the median; the suspect stepped onto the highway and was struck by the trooper's vehicle, causing the death of the suspect. In holding that the plaintiff's claim was barred by the doctrine of sovereign immunity, the Campbell court found that the trooper operated his vehicle in a manner uniquely related to his State employment where he was driving in hot pursuit of a violator of the law. Currie distinguished Campbell on the basis that in Campbell the trooper was operating his vehicle in a manner in which only a governmental official is authorized to act, while in Currie the trooper drove his vehicle in a routine manner on a public street.

Here, Trooper Julian contends that the present case is similar to Campbell and Campbell should control the outcome. He also relies on Postich v. Henrichs (1994), 267 Ill. App. 3d 236, 204 Ill. Dec. 545, 641 N.E.2d 975, for the proposition that even if his determination that an emergency existed was unreasonable under the circumstances, ...

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