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Garner v. City of Chicago

January 30, 2001

RACHELL GARNER, INDIVIDUALLY AND AS MOTHER AND NEXT FRIEND OF KIMBERLY GARNER,
PLAINTIFFS-APPELLEES,
V.
CITY OF CHICAGO, CITY OF CHICAGO BOARD OF TRUSTEES OF THE POLICEMEN'S AND FIREMEN'S DEATH BENEFIT FUND, MATT L. RODRIGUEZ, EDWARD ALTMAN AND WHITNEY W. ADDINGTON,
DEFENDANTS-APPELLANTS, AND
EDWARD M. BURKE,
DEFENDANT.



The opinion of the court was delivered by: Justice McBRIDE

Appeal from the Circuit Court of Cook County Honorable Dorothy Kinnaird, Judge Presiding.

This appeal involves the interpretation of a Chicago Municipal Ordinance which provides benefits to family members of slain police officers. Plaintiffs-Appellees, Rachell and Kimberly Garner (collectively the "Garners"), are the widow and child of Sergeant Michael Garner ("Decedent"). Decedent, a police officer employed by the City of Chicago, died on July 12, 1997. Defendants-Appellants are the City of Chicago; the City of Chicago Board of Trustees of the Policemen's and Firemen's Death Benefit Fund (the "Board"); Matt L. Rodriguez, Superintendent of the Chicago Police Department (the "Superintendent"); Edward Altman, Commissioner of the City of Chicago Fire Department; and, Whitney W. Addington, President of the City of Chicago Board of Health. Also named as a Defendant is Edward M. Burke, a Chicago Alderman and Chairman of the City of Chicago Committee on Finance ("Alderman Burke")(when addressed collectively, Defendants-Appellants will be referred to as the "City"). Alderman Burke, however, retained his own counsel and supports the Garners' position on the question to be decided by this court.

The trial court granted the Garners' request for declaratory relief and the dispute between the parties on appeal centers around the trial court's interpretation of section 3--8--040 of the Chicago Municipal Code ("section 3--8--040"). Chicago Municipal Code § 3-8-040 (1999). Section 3--8--040, in conjunction with other provisions in the ordinance, provides benefits to family members of police officers or firefighters who are killed while in the line of duty.

Section 3--8--040 of the Chicago Municipal Code states, in pertinent part:

"It shall be the duty of the superintendent of police in the case of a policeman, and of the fire commissioner in the case of a fireman, upon the occurrence of any injury in the performance of duty, to have immediate medical care and hospital treatment given to such injured policeman or fireman, to make or cause to be made a complete and careful investigation of all facts surrounding the occurrence, to obtain the statements of all material witnesses, and to present the said report without delay to the said board of trustees for consideration and action thereon, including the determination as to whether or not such injury arose from violence or other accidental cause and was received by the deceased policeman or fireman while he was in the performance of his duty. Such report shall show the actual date and hour of the injury, the place of occurrence, the names and addresses of witnesses and the apparent nature and extent of the injury." Chicago Municipal Code § 3--8--040 (1999).

In their complaint for declaratory judgment, the Garners asserted that Decedent was killed while in the performance of his duty. The Garners also claimed that under section 3--8--040 the Superintendent is required to conduct an investigation whenever a police officer is killed in the performance of his duty. They also argued that, under section 3--8--040, the Superintendent must submit the results of the investigation to the Board, which then makes the decision as to whether or not the family members are entitled to benefits. After the Superintendent refused to issue a report concerning Decedent's death, the Garners filed the instant declaratory judgment action in the circuit court. The circuit court held that the Superintendent acted in violation of section 3--8--040 by not issuing a report and ordered the Superintendent to conduct an investigation concerning the death of Decedent. The circuit court also ordered that the results of the Superintendent's investigation be submitted to the Board. The record reveals the following facts.

Decedent died of multiple gunshot wounds on the evening of July 12, 1997. That evening Decedent had been in a tavern with Cindalyn Meadows ("Meadows"), a woman with whom he was having an affair. After drinking at the tavern, Decedent and Meadows drove their own automobiles to the 7000 block of South Bell Street, Chicago, Illinois. After they both parked, Meadows got into Decedent's car.

Meadows, an eye-witness to the shooting, indicated that while they sat together in Decedent's automobile, another car stalled near Decedent's car. At one point, one of the men gathered around the stalled car approached Decedent's vehicle. The man, later identified as Stanley Wofford ("Wofford"), appeared to be gesturing to Decedent like he was asking if Decedent wanted any drugs. Decedent then indicated that he did not want to communicate with Wofford and "waved him away." Wofford walked away but, soon thereafter, approached Decedent's automobile again to inquire if Decedent had any jumper cables to start the stalled car. Decedent responded that he had no jumper cables and Wofford, again, walked away.

A few minutes later, a black two-door automobile pulled up along side Decedent's car. According to Meadows, the driver of the black car was Wofford who asked Decedent: "Where do you come from?" and "What do you want?" Wofford then exited the black vehicle with an automatic handgun in his hand. In response, Decedent exited his automobile carrying his own handgun. A physical altercation ensued between Decedent and Wofford. During the struggle, Decedent was shot multiple times and was pronounced dead on the morning of July, 12, 1997.

After investigating the incident, the Superintendent found that Decedent was not acting in the performance of his duty at the time of death. Further, the Superintendent concluded, pursuant to section 3--8--040, that he did not have to report the circumstances of Decedent's death to the Board. The Garners thereafter filed their complaint for declaratory, injunctive and other relief in the circuit court. The circuit court dismissed the original complaint and allowed the Garners to re-plead their declaratory judgment count. The Garners filed an amended complaint in which they requested a declaration that section 3--8--040 required the Superintendent to conduct an investigation concerning Decedent's death and to submit the results of that inquiry to the Board. At the hearing before the circuit court, the Garners orally moved for judgment on the pleadings concerning the above declaration. The trial court granted judgment on the pleadings and as indicated earlier ordered the Superintendent to conduct an investigation concerning the Decedent's death and to submit a report to the Board for review. This appeal followed.

The sole question on appeal concerns the interpretation of section 3--8--040. Specifically, under the facts of this case, could the Superintendent, in conformity with section 3--8--040, unilaterally determine whether or not the Decedent, a police officer, was injured while in the performance of his duty as opposed to reserving that decision for the Board. As the question involves the construction of a municipal ordinance, a question of law, this Court's standard of review is de novo. Daley v. American Drug Stores, Inc., 294 Ill. App. 3d 1024, 1026, 691 N.E.2d 846 (1998).

The language at issue in section 3--8--040 has been set out above and will not be repeated here. We note however that the language of sections 3--8--030 and 3--8--50 are also relevant in construing section 3--8--40. Section 3--8--030 states, in pertinent part: "A board composed of four members shall constitute a board of trustees authorized to carry out *** provisions dealing with the policemen's *** death benefit fund, and shall be charged with the duty of administering that fund ***." Chicago Municipal Code § 3--8--030 (1999). Section 3--8--050 states, in relevant part:

"No such award or payment shall be made unless satisfactory proof shall have been presented to the board of trustees that death occurred within one year from the date of injury, that such injury arose from violence or other accidental cause, that such injury was received while in the performance of duty, and that such injury was the direct cause of death. The amount of the award shall be determined by order of court, entered by a court of competent jurisdiction, declaring heirship." Chicago Municipal Code § 3--8--050 (1999).

The Garners contend that they properly alleged that Decedent was injured while "in the performance of his duty" in paragraph 10 of their amended complaint which states:

"On July 12, 1997, Michael Garner [Decedent] was assigned by the Chicago Police Department to work narcotics as a plain clothes officer and was parked in an unmarked City of Chicago police vehicle, at which time he was in possession of his department issued radio, cellular phone, badge, identification Chicago Police baseball cap and was armed with an approved and registered handgun."

The amended complaint additionally provides in Paragraph 19: "Sergeant Garner's [Decedent's] actions in confronting Wofford and attempting to disarm, subdue and arrest him were actions in the performance of his duty as a Chicago police officer." Moreover, the Garners claim that because Wofford was carrying a firearm upon a public street, Decedent had a duty to apprehend Wofford under the Illinois Code of Criminal Procedure, and thus, Decedent was injured while in the performance of a police duty when he was killed. 725 ILCS 5/107-16 (West 1998). Based upon the allegations contained in the amended complaint and the ...


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