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07/23/96 ELMER NELSON v. ROBERT THOMAS

July 23, 1996

ELMER NELSON, EXECUTOR AND ADMINISTRATOR OF THE ESTATE OF JANET STREPEK, DECEASED, PLAINTIFF-APPELLANT,
v.
ROBERT THOMAS, VILLAGE OF ORLAND PARK, CERTAIN UNKNOWN POLICE OFFICERS OF ORLAND PARK, OFFICER JOHN KEATING, INDIVIDUALLY AND AS AGENT OF THE VILLAGE OF ORLAND PARK, VILLAGE OF TINLEY PARK, CERTAIN UNKNOWN POLICE OFFICERS OF TINLEY PARK, OFFICER STEVEN VACCARO, INDIVIDUALLY AND AS AGENT OF THE VILLAGE OF TINLEY PARK, OFFICER MARK FABISZAK, INDIVIDUALLY AND AS AGENT OF THE VILLAGE OF TINLEY PARK, THE VILLAGE OF OAK FOREST, CERTAIN UNKNOWN POLICE OFFICERS OF OAK FOREST AND OFFICER CHARLES QUINN, INDIVIDUALLY AND AS AGENT OF THE VILLAGE OF OAK FOREST, DEFENDANTS-APPELLEES. ROSE MARIE STREPEK-HENNING, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF EUGENE E. STREPEK, DECEASED, PLAINTIFF, V. ROBERT THOMAS, JOHN KEATING, THE VILLAGE OF ORLAND PARK, STEVEN VACCARO, MARK FABISZAK, THE VILLAGE OF TINLEY PARK, CHARLES QUINN AND THE VILLAGE OF OAK FOREST, DEFENDANTS.



Appeal from the Circuit Court of Cook County. Honorable Gary Brownfield, Judge Presiding.

Rehearing Denied July 17, 1996. Released for Publication August 29, 1996.

The Honorable Justice Burke delivered the opinion of the court: Scariano and DiVITO, JJ., concur.

The opinion of the court was delivered by: Burke

JUSTICE BURKE delivered the opinion of the court:

Plaintiff Elmer Nelson appeals from an order of the circuit court granting summary judgment pursuant to section 2--1005 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2--1005 (West 1992)) to defendants, the Village of Orland Park (Orland Park), Certain Unknown Police Officers of Orland Park, Officer John Keating (Officer Keating), the Village of Tinley Park (Tinley Park), Officer Steven Vaccaro (Officer Vaccaro), Officer Mark Fabiszak (Officer Fabiszak), the Village of Oak Forest (Oak Forest), Certain Unknown Police Officers of Oak Forest, and Officer Charles Quinn (Officer Quinn). On appeal, plaintiff argues that summary judgment was erroneously granted because genuine issues of material fact existed as to whether the police officers' actions were a proximate cause of a collision that occurred when a criminal suspect ran a red light and collided with plaintiff's daughter and son-in-law's automobile, causing the couple's death, and whether the police officers' conduct during the police pursuit of the criminal suspect was wilful and wanton. For the reasons set forth below, we affirm.

On February 4, 1991, Robert Thomas (Thomas) was driving eastbound on 159th Street through Oak Forest in a Riveria fleeing from police officers. At the same time, Janet and Eugene Strepek were driving southbound on Cicero Avenue at the intersection of 159th Street. Thomas ran a red light and collided with the Strepeks' car which was properly in the intersection on a green light. The Strepeks died as a result of the collision.

For several weeks prior to February 4, 1991, there had been five "smash-and-grab" thefts committed in the Orland Park area. Some area police departments were informed during their roll call that the suspects of the five smash-and-grabs were a black male driver of a dark or gray Riveria, bearing an Indiana license plate with the number 45 L 4466, and a female who would run into the stores, grab the merchandise and then run to the waiting Riveria.

On February 4, 1991, when Orland Park Police Officer Keating ended his shift at 7 p.m., he gathered his belongings and got into his personal vehicle, a Bronco, and started to drive home. As he was driving home, Keating heard on the police radio in his Bronco that another smash-and-grab had occurred in the Orland Park mall. The radio dispatcher described two black females who ran into the mall, grabbed merchandise and then ran outside the mall to a waiting vehicle with an Indiana license plate bearing the beginning numbers of 45 L. Officer Keating immediately recognized the license place number and suspects as the ones he had heard described during his roll call on the previous day.

After hearing the radio dispatch, Officer Keating saw a gray Riveria with a matching Indiana license plate traveling eastbound on 159th Street. He then called the Orland Park police to advise them of his observation. Keating also asked the Orland Park police to relay this information to the Tinley Park and Oak Forest police departments because the Riveria, on its present route, would travel through those two villages. According to Keating, he did not attempt to stop the Riveria, but continued to follow the suspect car, which was traveling under the speed limit, at a safe distance. Officer Vaccaro of the Tinley Park police department was driving behind Officer Keating and saw Keating's Bronco immediately behind the Riveria on 159th Street between 159th Street's intersections with Oak Park and Long Streets. Near the intersection of 159th Street and Long Avenue, Vaccaro advised Keating over the police radio that he was going to pull the Riveria over to the side of the road. Vaccaro then activated his squad car's emergency equipment and signaled the Riveria to pull off the road.

The driver of the Riveria complied with Officer Vaccaro's order and pulled to the side of 159th Street near a Kean gas station at the corner of 159th Street and Long Avenue. When the Riveria pulled off the road, Officer Keating parked his Bronco at the gas station, exited his Bronco and walked toward the Riveria. At the same time, Officer Vaccaro exited his squad car and also began to walk towards the Riveria. Officer Busse of the Oak Forest police department stated that, while he was traveling in his squad car eastbound on 159th Street, he saw Vaccaro approach the driver's door of the Riveria and Keating approach the passenger's door. Officer Fabiszak, of the Tinley Park police force, also saw the two officers approach the Riveria. Approximately five seconds after Keating and Vaccaro began walking toward the Riveria, the Riveria quickly accelerated, drove away from the police and began traveling eastbound on 159th Street.

In response, Officers Keating and Vaccaro returned to their cars to follow the Riveria. At the same time, Oak Forest police cars were traveling westbound on the median of 159th Street toward the Kean gas station. While the Riveria was fleeing the police, the Riveria crossed over the median into the westbound lanes of traffic, swerved around the Oak Forest police cars in the median and crossed back into the eastbound lanes of 159th Street. Officer Quinn was one of the Oak Forest police officers situated in a squad car on the median. Officer Quinn stated in an affidavit:

"6. I then observed Orland Park and Tinley Park police squads with emergency equipment activated approximately two blocks behind the offender who appeared to be gaining distance on them.

7. The offender veered directly at my vehicle while it was on the median and then veered around my vehicle into the westbound lane of 159th Street and back into the eastbound lanes of 159th Street. After the Tinley Park and Orland Park police squads passed, I proceeded to turn eastbound onto 159th Street from the median where my car stalled. After I restarted the vehicle, I proceeded eastbound on 159th Street to Cicero Avenue where I observed an accident had already occurred. I did not witness the accident.

8. At no time was I in 'pursuit' of the offender nor did I exceed 45 m.p.h."

When the Riveria swerved around Officer Quinn, he "clocked" the speed of the Riveria at 75 miles per hour. According to Officer Keating, at this point, other police cars had their emergency lights and sirens activated and were following the Riveria. Keating also stated that after the Riveria pulled away from the gas station, he lost sight of the car because he was not pursuing the vehicle. Keating further stated that upon hearing the events unfold, he was told over the police radio by his street supervisor to not get involved with stopping the Riveria.

Several officers stated in either depositions or affidavits that the police were pursuing the Riveria as it drove away from the gas station on 159th Street. Officer Fabiszak stated that, in accordance with the Tinley Park police department's general orders, he was in pursuit of the Riveria. Also, Officer Vaccaro stated that the Riveria was fleeing to elude his squad car, as well as the other squad cars that were obviously in pursuit of it. Officer Busse also stated that the two Tinley Park units as well as the Orland Park unit was in fresh pursuit of the Riveria.

Meanwhile, at approximately 7:30 p.m., Janet Strepek picked up her husband, Eugene, from the Metra station in Oak Forest at the end of his work day, and they began to drive home on Cicero Avenue. When they came to the intersection of 159th Street and Cicero Avenue, they properly proceeded through the intersection because the traffic light was green. At the same moment, the Riveria, against the red light, sped through the intersection and collided with the Strepeks' car, killing the couple. The collision occurred approximately six blocks from where the Riveria had sped away from the police near the Kean gas station and happened less than a minute after the ...


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