Appeal from the Circuit Court of Cook County Honorable Barbara J. Disko, Judge Presiding.
The opinion of the court was delivered by: O'Brien, P.J.
PRESIDING JUSTICE O'BRIEN delivered the opinion of the court:
Plaintiff, Eulastine Sanders, brought an action on behalf of the estate of her deceased daughter to recover damages allegedly caused by the negligence and willful and wanton conduct of defendants, Officer Charles Copps and the City of Chicago. Plaintiff's case was tried before a jury (trial I). At the close of all the evidence, the trial court directed a verdict for defendants on the negligence counts, and the jury returned a verdict for defendants on the willful and wanton counts. The trial court subsequently set aside the jury verdict and the directed verdict and granted plaintiff's motion for a new trial on both the negligence and willful and wanton counts. Thereafter, the trial court granted summary judgment for defendants on the negligence counts, and the case was tried before a jury on the willful and wanton counts (trial II). This jury, too, returned a verdict for defendants. Plaintiff appeals the trial court's orders granting summary judgment for defendants on her negligence counts and denying her post-trial II motions for a new trial or judgment notwithstanding the verdict on her willful and wanton counts. We reverse the trial court's order granting summary judgment for defendants on plaintiff's negligence counts and remand for further proceedings. We affirm the trial court's order denying plaintiff's post-trial motion for a new trial or judgment notwithstanding the verdict on her willful and wanton counts.
This case arose out of a traffic accident on May 1, 1991. At 8 a.m. on that date, Officer Copps reported to work and received his beat assignment. At about 8:35 a.m, he left roll call and began patrolling. Soon thereafter, he heard an emergency call over his radio from Officers Kenny Watt and Patricia Black, who had been attacked at 223 West 72nd Street. That address is in another beat area.
Without requesting permission from his supervisors, Officer Copps left his beat and proceeded toward 223 West 72nd Street. Along the way, Officer Copps heard over his radio that the suspect had been chased into a hallway at 7227 South Stewart, and that the suspect was cornered but not yet searched. The radio dispatcher then asked Officer Watt and Officer Black if they were getting enough help. Officer Black responded, "Yes, we do." Officer Copps claims not to have heard Officer Black's response.
Officer Copps proceeded east on 71st Street toward Stewart Street. As he approached the intersection of 71st and Stewart Street, he observed that the traffic was stopped in the eastbound lane. Officer Copps then entered the westbound lane of 71st Street and proceeded to drive eastbound in that lane.
Meanwhile, plaintiff was walking her three children, Patricia, April, and Jerry, to school. Plaintiff and her children walked eastward on 71st Street halfway down the block toward Stewart, then turned and walked in a northerly direction across the eastbound traffic lane, crossing in front of a dump truck that was stopped in that lane. Before reaching the center lane dividing east and westbound traffic, plaintiff looked to her right, in the direction from which she would expect to see approaching traffic. By the time she glanced back to her left, Officer Copps' vehicle had struck Patricia in the westbound lane. Patricia suffered serious injuries and died on February 13, 1997.
Plaintiff filed a complaint alleging that defendants acted negligently and willfully and wantonly in connection with the car accident that killed Patricia. Defendants filed a motion for summary judgment, arguing that sections 2-202 and 2-109 of the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act) (745 ILCS 10/2-202, 10/2-109 (West 1996)) immunized them from liability in negligence for acts and omissions in the execution and enforcement of any law. Defendants supported their motion with sworn testimony and exhibits purportedly demonstrating that defendant Officer Copps was responding to an emergency call, and thus was executing and enforcing the law, when the accident occurred. The trial court granted defendants' motion for summary judgment. Thereafter, the jury found for defendants on the willful and wanton counts. Plaintiff filed this timely appeal.
Initially, defendants argue we should dismiss plaintiff's appeal pursuant to Supreme Court Rule 341(e)(7) (155 Ill. 2d R. 341(e)(7)) for failing to cite to the record that was before the trial court at the time of its summary judgment ruling. We disagree. At the time of its summary judgment ruling, the trial court had before it testimony from trial I. In her appellate brief arguing for reversal of the trial court's order granting summary judgment, plaintiff cites to testimony from trial II. Defendants contend that plaintiff waived her argument by citing trial II testimony instead of trial I testimony. Defendants' argument fails because the testimony at trial II was the same as that at trial I; therefore, this court has before it the same evidence, with appropriate citations, as the trial judge had before her when she granted defendants' motion for summary judgment. Accordingly, we deny defendants' motion to dismiss plaintiff's appeal.
We now address plaintiff's argument that the trial court erred in granting defendants' motion for summary judgment on plaintiff's negligence counts. Summary judgment is appropriate when, viewed in the light most favorable to the nonmoving party, the pleadings, depositions and admissions on file reveal that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. Ragan v. Columbia Mutual Insurance Co., 183 Ill. 2d 342, 349 (1998). The standard of review in cases involving summary judgment is de novo. Ragan, 183 Ill. 2d at 349.
The trial court found as a matter of law that Officer Copps was executing and enforcing the law at the time of the accident and, thus, sections 2-109 and 2-202 of the Tort Immunity Act immunized defendants from liability in negligence. Sections 2-109 and 2-202 provide:
"§2-109. A local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable." 745 ILCS 10/2-109 (West 1996).
"§2-202. 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." (Emphasis added.) 745 ILCS 10/2-202 (West 1996).
Whether a police officer is executing or enforcing the law is ordinarily a question of fact. Arnolt v. City of Highland Park, 52 Ill. 2d 27, 35 (1972). However, where the facts point to only one conclusion, the trial court may determine the issue as a matter of ...