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06/05/97 ROBERT LOHMAN AND CRAIG DERAEDT v. JOEL

June 5, 1997

ROBERT LOHMAN AND CRAIG DERAEDT, PLAINTIFFS-APPELLANTS,
v.
JOEL BEMIS AND RONALD SCHMUCK, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 94--L--13704. Honorable Michael Hogan, Judge Presiding.

Rehearing Denied July 8, 1997. Released for Publication July 21, 1997.

The Honorable Justice Cerda delivered the opinion of the court. McNamara, J., and Burke, J., concur.

The opinion of the court was delivered by: Cerda

JUSTICE CERDA delivered the opinion of the court:

Two Chicago police officers, Robert Lohman and Craig Deraedt, filed a complaint against two fellow officers, Joel Bemas and Ronald Schmuck, for personal injuries they sustained when defendants' vehicles collided. The trial court dismissed plaintiffs' willful and wanton claims on the basis that section 22--307 of the Illinois Pension Code (40 ILCS 5/22--307 (West 1994)) prohibits a police officer from bringing a cause of action against another police officer for willful and wanton conduct. For the following reasons, we affirm.

The issue in this case is whether under the Illinois Pension Code, a Chicago police officer is barred from suing a fellow officer for personal injuries caused by willful and wanton conduct while responding to an emergency call.

On June 12, 1994, plaintiff Deraedt was a passenger in a vehicle being driven by defendant Schmuck. At the same time, plaintiff Lohman was a passenger in a vehicle being driven by defendant Bemas. All the officers were on duty in Chicago Police Department vehicles. They were responding to an emergency call when the vehicles collided in the intersection of Keeler Street and Armitage Avenue in Chicago. As a result of the collision, plaintiffs sustained injuries.

Plaintiffs filed a complaint against defendants for personal injuries they sustained in the collision, alleging willful and wanton misconduct. Defendants filed a section 2--619 motion to dismiss the first amended complaint (735 ILCS 5/2--619 (West 1992)) on the basis that (1) the allegations in the complaint of willful and wanton conduct were speculative, conclusory, and devoid of factual support; and (2) the complaint was barred by the Pension Code. The trial court granted the motion to dismiss because the claims were barred by the Pension Code. The purpose of a 2--619 motion to dismiss is to afford litigants a means to dispose of legal issues and easily proved factual issues at the outset of a case, reserving disputed questions of fact for a trial. Zedella v. Gibson, 165 Ill. 2d 181, 185, 650 N.E.2d 1000, 209 Ill. Dec. 27 (1995). The granting of a section 2--6l9 motion to dismiss is given de novo review on appeal because the motion does not require the trial court to weigh facts or determine credibility. Kedzie & 103rd Currency Exchange v. Hodge, 156 Ill. 2d 112, 116, 619 N.E.2d 732, 189 Ill. Dec. 31 (1993).

We base our decision on section 22--307 of the Pension Code and Mitsuuchi v. City of Chicago, 125 Ill. 2d 489, 497, 532 N.E.2d 830, 127 Ill. Dec. 1 (1988), where the Illinois supreme court held that section 22--307 bars a police officer from bringing a cause of action for negligence against another police officer.

Section 22--307 of the Pension Code provides:

Common law or statutory rights barred. Whenever any city or village enacts an ordinance pursuant to this Division, no common law or statutory right to recover damages against such city or village for injury or death sustained by any policeman or fireman while engaged in the line of his duty as such policeman or fireman, other than the payment of the allowances of money and of the medical care and hospital treatment provided in such ordinance, shall be available to any policeman or fireman who is covered by the provisions of such ordinance, or to anyone wholly or partially dependent upon such policeman or fireman, or to the legal representative of the estate of such policeman or fireman, or to anyone who would otherwise be entitled to recover damages for such injury or death." 40 ILCS 5/22--307 (West 1994).

The City of Chicago enacted section 22--l9 of the City of Chicago Municipal Code, which provides:

'The committee on finance of the city council is hereby authorized, directed and empowered to provide for payment for proper medical care and hospital treatment for accidental injuries sustained by any policeman * * * while in the performance of his duties * * *." Chicago Municipal Code Sec. 22--19 (1969).

Thus, the City of Chicago enacted an ordinance pursuant to the Illinois Pension Code and was protected under the Code from common law actions for ...


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