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Carter v. Du Page County Sheriff

May 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 R. 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 ...


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