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12/05/97 SOFONDA BRADSHAW v. CITY METROPOLIS

December 5, 1997

SOFONDA BRADSHAW, PLAINTIFF-APPELLANT,
v.
THE CITY OF METROPOLIS, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Massac County. No. 95-L-3. Honorable Terry J. Foster, Judge, presiding.

The Honorable Justice Goldenhersh delivered the opinion of the court. Kuehn, J., concurs. Justice Maag, dissenting.

The opinion of the court was delivered by: Goldenhersh

The Honorable Justice GOLDENHERSH delivered the opinion of the court:

Plaintiff, Sofonda Bradshaw, appeals from an order of the circuit court of Massac County granting summary judgment for defendant, the City of Metropolis, based upon sections 2-109 and 2-202 of the Local Governmental and Governmental Employees Tort Immunity Act (the Act) (745 ILCS 10/2-109, 2-202 (West 1992)).

On appeal, plaintiff contends that the trial court erred in finding that the municipality was protected from liability under the Act for a police officer's negligent operation of his authorized emergency vehicle while responding to a 9-1-1 call. We reverse and remand.

I

On February 15, 1994, Officer Gregory Neihoff was on duty and patrolling on East Fifth Street when he received from the dispatcher a 9-1-1 call for a residence on Johnson Street. Officer Neihoff had responded to an earlier call that evening from the same address. The caller making the second 9-1-1 call told the dispatcher that the subject of the first 9-1-1 call had returned and that the caller would shoot him if the subject refused to leave.

After receiving the call from the dispatcher, Office Neihoff proceeded to the Johnson Street address. He traveled down East Fifth Street to Ferry Street. Officer Neihoff had been traveling down Ferry Street for three to four blocks at 60 miles per hour with his lights activated. Plaintiff's car was the only other vehicle on the road.

Plaintiff was heading home from work in a northerly direction on Ferry Street. Plaintiff intended to turn left onto Ninth Street. As she neared the intersection of Ferry and Ninth Streets, plaintiff activated her turn signal and pulled into the left lane.

About two blocks away from plaintiff's car, Officer Neihoff reached down to activate his siren. He briefly took his eyes off the road to make sure he was reaching in the direction of the siren. When he looked up, plaintiff's car had moved into the turn lane where Officer Neihoff was to pass plaintiff's car. Officer Neihoff began braking and lost control of the squad car. His squad car "fishtailed" and struck the rear end and right side of plaintiff's car.

On January 27, 1995, plaintiff filed a complaint against the City of Metropolis and the Metropolis Police Department, alleging that plaintiff was injured as a result of Officer Neihoff's negligence. Defendant filed a special and limited appearance seeking to quash service on the police department, claiming that it is not a separate legal entity with any legal standing to be sued. The court on March 14, 1995, granted the police department's special and limited appearance.

Defendant filed its answer and affirmative defense alleging immunity from liability pursuant to sections 2-109 and 2-202 of the Act. On June 2, 1995, defendant filed its motion for summary judgment on count I of plaintiff's complaint. Based on Officer Neihoff's deposition testimony, defendant argued that it was immune from liability because Officer Neihoff was engaged in the enforcement and execution of the law at the time of the accident. On August 18, 1995, the trial court entered an order granting defendant's motion for summary judgment as to count I.

Subsequently, defendant filed a second motion for summary judgment on count II of plaintiff's complaint. Relying on the deposition testimonies of Officer Neihoff and plaintiff, defendant contended that Officer Neihoff's acts did not constitute wilful and wanton conduct. The trial court granted defendant's motion. This appeal followed.

II

Plaintiff posits that the trial court erred in determining that the Act immunized the municipality from liability because the officer was in the act of executing and enforcing the law and that his acts did not constitute wilful and wanton conduct. Plaintiff maintains that the Act and the Illinois Vehicle Code (the Code) (625 ILCS 5/11-205 (West 1992)) are in conflict and that where such conflict exists, the more specific statute, the Code, preempts the more general provisions of the Act. Plaintiff contends that the Code's more specific provisions delineating the conduct and duty of the driver of ...


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