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Carter v. Du Page County Sheriff

Illinois Appellate Court


March 12, 1999

DAWN E. CARTER, N/K/A DAWN E. RUDNICK, PLAINTIFF-APPELLANT,
v.
THE DU PAGE COUNTY SHERIFF AND THE COUNTY OF DU PAGE, DEFENDANTS (RANDALL R. SIMPSON, DEFENDANT-APPELLEE).

Appeal from the Circuit Court of Du Page County. No. 96--L--1232 Honorable Edward R. Duncan, Jr., Judge, Presiding.

The opinion of the court was delivered by: Justice Thomas

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Plaintiff, Dawn Carter, n/k/a/ Dawn Rudnick, appeals from the trial court's judgment dismissing her negligence count against defendant, Randall Simpson. Plaintiff argues that the trial court erred in concluding that section 2--202 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2--202 (West 1996)) immunized Simpson for his acts of negligence that caused his car accident with plaintiff. Plaintiff contends that the Tort Immunity Act does not apply because (1) the standard of care established in sections 11--205 and 11--907 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11--205, 11--907 (West 1996)) supercedes the immunity provisions of the Tort Immunity Act; and (2) Simpson was not executing or enforcing the law when the accident occurred.

This cause arises from an accident between plaintiff and Simpson at the intersection of Butterfield Road and Park Boulevard. At the time, Simpson, who had his emergency lights and his siren operating, was traveling through the intersection against the traffic light and on the wrong side of the road. Plaintiff was traveling with the traffic light. Neither saw the other until they were both in the intersection. Their cars collided and ricocheted into two other vehicles. Following the accident, both plaintiff and Simpson were treated at a hospital.

Subsequently, plaintiff filed a three-count complaint against defendants, the County of Du Page (County), the Du Page County Sheriff (Sheriff), and Simpson. Count I sought to recover from Simpson for his negligence in causing the accident. Count II sought recovery from all three defendants, alleging that Simpson had acted wilfully and wantonly, and count III sought recovery from all three defendants, alleging that Simpson had, while acting under color of law, violated plaintiff's rights (see 42 U.S.C.A. §1983 (West 1994)).

Pursuant to section 2--619.1 of the Code of Civil Procedure (735 ILCS 5/2--619.1 (West 1996)), defendants sought to dismiss plaintiff's complaint, alleging that, as to count I, Simpson was immune from liability pursuant to section 2--202 of the Tort Immunity Act and that counts II and III failed to state a cause of action (see 735 ILCS 5/2--615 (West 1996)). The trial court (1) dismissed all allegations against the County for failing to state a cause of action; (2) dismissed count I pursuant to section 2--619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2--619(a)(9) (West 1996)), finding Simpson immune from liability for his negligent acts; and (3) dismissed counts II and III against Simpson and the Sheriff for failing to state a cause of action. The trial court found that the dismissal of the allegations against the County and the dismissal of count I against Simpson were final and appealable orders (see 155 Ill. 2d 304(a)). The court also granted plaintiff leave to file an amended complaint with respect to counts II and III against Simpson and the Sheriff. Subsequently, plaintiff filed a timely notice of appeal. We note that plaintiff's notice of appeal states that she is appealing the dismissal of count I against Simpson and the dismissal of the allegations against the County. On appeal, however, plaintiff does not argue that the trial court erred in dismissing the allegations against the County; thus, we do not review the propriety of that dismissal.

Plaintiff argues that sections 11--205 and 11--907 of the Vehicle Code supercede the immunity provision found in section 2--202 of the Tort Immunity Act. Therefore, plaintiff concludes, the trial court erred in finding that Simpson's actions were immunized and that dismissal pursuant to section 2--619 was proper. Section 2--619 affords "litigants a means to dispose of issues of law and easily proved issues of fact at the outset of a case." Zedella v. Gibson, 165 Ill. 2d 181, 185 (1995). In deciding a motion to dismiss under section 2--619, courts may consider the pleadings, depositions, and affidavits. Zedella, 165 Ill. 2d at 185. We review a dismissal pursuant to section 2--619 de novo. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116 (1993).

Section 11--205 of the Vehicle Code provides, in pertinent part:

"(b) The driver of an authorized emergency vehicle, when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law or when responding to but not upon returning from a fire alarm, may exercise the privileges set forth in this Section, but subject to the conditions herein stated."

"(c) The driver of an authorized emergency vehicle may:"

"1. Park or stand, irrespective of the provisions of this Chapter;"

"2. Proceed past a red or stop signal or stop sign, but only after slowing down as may be required and necessary for safe operation;"

"3. Exceed the maximum speed limits so long as he does not endanger life or property;"

"4. Disregard regulations governing direction of movement or turning in specified directions[.]"

Section 11--907 of the Vehicle Code provides:

"(a) Upon the immediate approach of an authorized emergency vehicle making use of audible and visual signals meeting the requirements of this Code or a police vehicle properly and lawfully making use of an audible or visual signal,"

"(1) the driver of every other vehicle shall yield the right-of-way and shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb of the highway clear of any intersection and shall, if necessary to permit the safe passage of the emergency vehicle, stop and remain in such position until the authorized emergency vehicle has passed, unless otherwise directed by a police officer and"

"(2) the operator of every streetcar shall immediately stop such car clear of any intersection and keep it in such position until the authorized emergency vehicle has passed, unless otherwise directed by a police officer."

"(b) This Section shall not operate to relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway." (Emphasis added.) 625 ILCS 5/11--907 (West 1996).

Section 2--202 of the Tort Immunity Act provides:

"A public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct." 745 ILCS 10/2--202 (West 1996).

The emphasized portions of sections 11--205 and 11--907 impose a duty on drivers of emergency vehicles to refrain from negligence. Bradshaw v. City of Metropolis, 293 Ill. App. 3d 389, 395 (1997); see also Sundin v. Hughes, 107 Ill. App. 2d 195, 200 (1969). Relying upon Bradshaw, plaintiff argues that these specific provisions governing how drivers of emergency vehicles must drive control over the more general immunity provision found in section 2--202 of the Tort Immunity Act.

The Bradshaw court explained that, where two statutory provisions exist, one of which is generally applicable and the other of which relates to only one subject, the particular provision prevails. Bradshaw, 293 Ill. App. 3d at 393. The court recognized that the Tort Immunity Act has previously been found to be a general statute. Bradshaw, 293 Ill. App. 3d at 393, citing Cleaver v. Marrese, 253 Ill. App. 3d 778 (1993); Emulsicoat, Inc. v. City of Hoopeston, 99 Ill. App. 3d 835 (1981). After examining those cases and the provisions at issue, the Bradshaw court concluded that the Vehicle Code "is a specific statute containing express provisions establishing a duty and standard of care governing the operation of emergency vehicles by police officers. *** Consequently, a driver of an emergency vehicle can be held liable for negligence arising out of the breach of the duty to use due care in the operation of an emergency vehicle." Bradshaw, 293 Ill. App. 3d at 395.

Plaintiff urges us to adopt Bradshaw's reasoning and conclude that the applicable portions of the Vehicle Code apply instead of the immunity provision in the Tort Immunity Act. In fact, in plaintiff's reply brief, her counsel argues that we are bound by Bradshaw, a decision issued by the Appellate Court, Fifth District. Plaintiff's counsel represents that the supreme court has held that the decision of any division of the appellate court is binding on all others.

This argument is clearly erroneous for two reasons. First, and most disturbingly, the language counsel relies upon and quotes at length comes not from the court's opinion, but from a special Concurring opinion. See Aleckson v. Village of Round Lake Park, 176 Ill. 2d 82, 94-95 (1997) (Harrison, J., specially Concurring). We caution plaintiff's counsel that this court does not look kindly upon such misrepresentations. In future cases, counsel should ensure that language he represents as the court's holding comes from the majority opinion.

Second, even if the quoted language had been the court's opinion, it would not support counsel's argument that we are bound by Bradshaw. Justice Harrison's Concurring opinion argues only that Illinois has a single appellate court and that therefore the decision of any division of that court is binding on every circuit court. Aleckson, 176 Ill. 2d at 94 (Harrison, J., specially Concurring). The concurrence does not state or imply that the decision of one division of the appellate court is binding on any other division of the appellate court.

While we are not bound by Bradshaw, we find it persuasive and we agree with the Bradshaw court that the provisions in the Vehicle Code are more specific than the general provision found in the Tort Immunity Act and that, therefore, the standard of care provisions in sections 11--205 and 11--907 control over section 2--202. The histories of the statutes further support this Conclusion.

The legislature enacted the Tort Immunity Act in 1965 in response to the supreme court's abolition of sovereign immunity in Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11 (1959). In re Chicago Flood Litigation, 176 Ill. 2d 179, 191 (1997). The Tort Immunity Act adopts the general principle that local governments and governmental employees are liable in tort but limits this liability with an extensive list of immunities based upon specific governmental functions. Chicago Flood Litigation, 176 Ill. 2d at 192.

The standard of care language found in sections 11--205 and 11--907 can be found in the Vehicle Code at least as early as 1937. See Ill. Rev. Stat. 1937, ch. 95½, pars. 150, 169. In fact, the language found in section 11--907 has existed substantially unchanged, except for minor grammatical changes, since then. See Ill. Rev. Stat. 1937, ch. 95½, par. 169. If this were the only evidence before us, we might conclude that the legislature recognized that the Vehicle Code imposed a negligence standard of due care upon drivers of emergency vehicles and that it chose to limit that when it enacted section 2--202 of the Tort Immunity Act. See Northern Illinois Home Builders Ass'n v. City of St. Charles, 297 Ill. App. 3d 730, 741 (1998) (explaining that "a more recent statute takes precedence over an earlier statute"). A problem arises, however, from the fact that in 1967, two years after the Tort Immunity Act was enacted, the legislature, for the first time, added to section 11--205 the standard of care language currently found there. See Ill. Rev. Stat. 1967, ch. 95½, par. 120.

Thus, we face not only a situation where sections 11--205 and 11--907 are more specific than section 2--202, but we also face the fact that the legislature enacted the applicable provision of section 11--205 after it enacted the Tort Immunity Act. Given these facts, we must agree with Bradshaw that the more specific provisions of the Vehicle Code control over the more general provisions of the Tort Immunity Act. In reaching this Conclusion, we are aware that this may not be what the legislature intended when it added the standard of care language to section 11--205. One could rationally conclude from section 2--202 that the legislature has decided that the proper balance to be struck between vigorous enforcement of the law and liability for injuries to others is to hold public employees who are executing or enforcing the law liable only for their wilful and wanton conduct. If this is the case, we urge the legislature to correct its oversight. As the law stands now, however, we are unable to conclude that the immunity found in section 2--202 prevails over the standard of care found in sections 11--205 and 11--907.

Relying upon the Dissent in Bradshaw (see Bradshaw, 293 Ill. App. 3d at 395 (Maag, J., Dissenting)), Simpson argues that, in Postich v. Henrichs, 267 Ill. App. 3d 236 (1994), we considered and rejected plaintiff's argument. We disagree.

In Postich, the plaintiff sued the defendant, an employee of the Department of Conservation, for injuries suffered in an automobile accident. The trial court entered judgment in favor of the plaintiff and awarded damages. On appeal, the defendant argued that, although the defendant was named individually, the plaintiff was actually suing the State. Therefore, the defendant concluded, the plaintiff had to bring the action in the Court of Claims. We agreed with defendant and vacated the judgment. Postich, 267 Ill. App. 3d at 244. In an attempt to avoid that result, the plaintiff argued that section 11--205 authorized her action against the defendant. Postich, 267 Ill. App. 3d at 243. We disagreed, holding that section 11--205 was "irrelevant to the question of *** whether statutory principles of sovereign immunity barred [the] action from proceeding in the circuit court." Postich, 267 Ill. App. 3d at 244.

The only issue considered in Postich was whether the trial court had jurisdiction to hear the cause. See Postich, 267 Ill. App. 3d at 244. As the Postich court recognized, the question of the proper standard of care is wholly irrelevant to the question of which court had jurisdiction over plaintiff's claim. Moreover, since the standard of care is irrelevant to the jurisdictional question, there was no conflict between the statutes. Here, however, we face a much different question and a direct conflict between two competing statutes. Because the Postich court did not address the issue raised here, that decision does not affect our resolution of this action.

Simpson also argues that no conflict exists between the provisions of the Tort Immunity Act and the Vehicle Code. He asserts that sections 11--205 and 11--907 simply require the driver of an emergency vehicle to exercise due care, while section 2--202 immunizes a municipal employee for negligent acts committed while enforcing the law. Although these facts are true, we fail to see how they affect our decision. Here, sections 11--205 and 11--907 clearly apply and section 2--202 arguably applies. Both cannot apply equally; either Simpson is liable for his negligent acts or he is immune from liability. Given the greater specificity found in sections 11--205 and 11--907 and the more recent additions to section 11--205, we must conclude that sections 11--205 and 11--907 apply and that Simpson can be held liable for his negligence. Therefore, the trial court erred in dismissing plaintiff's claim that Simpson acted negligently.

Given our resolution of this issue, we need not address plaintiff's contention that the trial court erred in finding that, for purposes of section 2--202, Simpson was enforcing the law.

The judgment of the circuit court of Du Page County is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

GEIGER and RAPP, JJ., concur.

19990312


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