JUSTICE THOMAS delivered the judgment of the court, with opinion. Chief Justice Kilbride and Justices Freeman, Garman, Karmeier, and Burke concurred in the judgment and opinion. Justice Theis specially concurred, with opinion.
Plaintiffs, Christopher Ries and Michael Martinez, were injured when Demario Lowe stole a police vehicle, ran a red light, and crashed into their vehicle. Plaintiffs sued Officer Sergio Oliva of the Chicago police department and the City of Chicago in the circuit court of Cook County. The case ultimately went to the jury against the City only, and the jury entered a verdict for plaintiffs. The appellate court determined, inter alia, that the City was immune from liability pursuant to section 4--106(b) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/4--106(b) (West 2008)), which immunizes local public entities and their employees from liability for injuries inflicted by escaping prisoners. Accordingly, the court held that the circuit court should have entered a judgment notwithstanding the verdict in favor of the City. 396 Ill. App. 3d 418. We allowed plaintiffs' petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Feb. 26, 2010)), and we now affirm the appellate court.
The facts, including a complete summary of the trial testimony, are set forth fully in the appellate court opinion. 396 Ill. App. 3d 418. We summarize here only those facts that are necessary to an understanding of our decision. On February 22, 2002, at approximately 2:15 p.m., Chicago police officer Sergio Oliva, who had been on assignment guarding People's Gas, left to put gas in his supervisor's vehicle. While cutting through a parking lot, he noticed several persons standing around a young man. One of these persons flagged down Oliva and told him that there had been a traffic accident and that the man they were surrounding had tried to flee the scene. Oliva then placed the man, Demario Lowe, in the back of his squad car. Oliva did not handcuff Lowe, and he left the keys in the ignition and the engine running. Oliva soon saw Lowe driving away in his vehicle, and he realized that the car did not have a cage or screen to prevent access to the front.
When Oliva's supervisor, Sergeant Edward Veth, arrived on the scene, he saw Lowe driving out of the parking lot in Oliva's vehicle. Veth activated his lights and siren and initiated pursuit. Another Officer, Elmer, heard a radio transmission that Oliva's vehicle had been stolen. When Elmer saw the vehicle pass him, he also initiated pursuit. Lowe ultimately hit several parked vehicles and then drove through a red light at a high rate of speed and collided with plaintiffs' vehicle at the intersection of Pratt and Western Avenues. Plaintiffs had been stopped at a red light waiting to make a left turn when Lowe struck their vehicle. Both plaintiffs suffered multiple injuries.
Plaintiffs sued Oliva and the City of Chicago, alleging willful and wanton misconduct. Plaintiffs alleged that the City, through Oliva, engaged in willful and wanton misconduct by failing to properly secure Lowe, failing to turn off the squad car's engine and remove the keys, failing to place Lowe in a police vehicle that had a protective divider, and failing to secure or lock the rear door.
The City and Oliva moved to dismiss, citing various provisions of the Tort Immunity Act (745 ILCS 10/1--101 et seq. (West 2008)). Oliva alleged that he was immune under section 4--106(b), which immunizes municipalities and employees from liability for injuries inflicted by an escaped or escaping prisoner. The City moved to dismiss based on sections 4--102 (745 ILCS 10/4--102 (West 2008)) (immunizes municipalities and employees from liability for failure to provide adequate police protection or service or failure to prevent a crime) and 4--107 (745 ILCS 10/4--107 (West 2008)) (immunizes municipalities and employees from liability for injuries caused by the failure to make an arrest or by releasing a person in custody). Relying on Doe v. Calumet City, 161 Ill. 2d 374 (1994), the circuit court denied the motions. The court stated that Doe had held that willful and wanton misconduct is an exception to the immunities granted in the Act, and that Doe abrogated cases that held that sections 4--102 and 4--107 provide blanket immunities that prevail over section 2--202's exception for willful and wanton misconduct.
Plaintiffs later filed a first amended complaint, adding allegations that the officers who pursued Lowe after he stole the police car failed to terminate the pursuit when the danger to the public exceeded the benefit of apprehending Lowe. The amended complaint alleged that the City, through the pursuing officers, engaged in willful and wanton misconduct when it failed to terminate the pursuit when the apprehension of the fleeing motorist was outweighed by the inherent danger of the pursuit to the general public, the speed of the pursuit became excessive, the volume of pedestrian and vehicular traffic endangered the traveling public, the pursuit vehicle was involved in a property damage accident, and the identity of the fleeing motorist could be easily ascertained.
Defendants counterclaimed against plaintiff Ries. The counterclaim sought contribution from Ries on the grounds that he was comparatively negligent in several respects, including that he had cannabis and cocaine in his system at the time of the accident. Defendants also filed a third-party complaint against Lowe. In their answer to the amended complaint, defendants raised affirmative defenses based on several provisions of the Tort Immunity Act and the common law doctrine of public officials' immunity. Defendants also raised an affirmative defense of Ries's comparative negligence on the same grounds as asserted in their June 2005 counterclaim.
The circuit court granted plaintiffs partial summary judgment on defendants' affirmative defense of comparative negligence. The court reasoned that there was no nexus between Ries's drug use and the accident. The court also dismissed defendants' tort immunity affirmative defenses on the same grounds on which it had denied defendants' motion to dismiss--that section 2--202's exception for willful and wanton misconduct is an established exception to the immunities provided in the Act.
The court ultimately granted a directed verdict to Oliva, based on section 4--107.*fn1 This section provides immunity for injuries caused by the failure to make an arrest or by releasing a person in custody. The court also stated that Oliva was entitled to a directed verdict on the claims regarding leaving the key in the car and the car's engine running, finding that this conduct did not amount to willful and wanton misconduct. The court ruled that the City was immune on the same basis as Oliva, but did not grant the City a directed verdict in all respects. The court explained at the jury instruction conference that, while the City could not argue that Oliva's conduct was willful and wanton, the plaintiffs' theory was that "the entire manner in which the police handled this incident was willful and wanton." Thus, while the jury would be precluded from basing liability on Oliva's conduct alone, the plaintiffs would be allowed to argue that the conduct of the various officers--including Oliva--"in conjunction with or synergistically with each other, was willful and wanton behavior." Thus, the court ultimately provided jury instructions which directed the jury to determine if the City, through its employees, including Oliva, engaged in willful and wanton misconduct.
The jury ultimately returned a verdict for Ries for $4,052,573 and for Martinez for $159,069, and allocated 35% fault to the City and 65% to Lowe. The jury answered "yes" to a special interrogatory that asked, "Did the City of Chicago engage in a course of action that showed an utter indifference to or conscious disregard for the safety of others?" The City moved for a judgment notwithstanding the verdict or, in the alternative, a new trial. The court denied the motion.
The City appealed, and the appellate court reversed. 396 Ill. App. 3d 418. The appellate court held that the City should have been granted JNOV. First, the court held that the City was immune for all claims involving Officer Oliva. Section 2--109 of the Tort Immunity Act states that "[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 2008). The City had been sued on a respondeat superior theory. Thus, once the circuit court directed a verdict for Officer Oliva, the City could not be held liable for Oliva's conduct. 396 Ill. App. 3d at 428-29. The court rejected plaintiffs' argument that the directed verdict for Oliva had been partial. The court pointed out that the directed verdict order stated that "[t]he court grants a directed verdict in favor of Sergio Oliva and against plaintiff and for costs." Id. at 429. On other occasions, the circuit court explained that Oliva was "no longer a party to this case" and that "Oliva has been dismissed out of this case." Id. For these reasons, the circuit court would not allow plaintiffs to argue to the jury that Oliva's conduct had been willful and wanton.
Plaintiffs argued that the trial court's inclusion of Oliva's conduct in the jury instructions showed that the directed verdict was only partial. The appellate court disagreed. The appellate court held that, once the trial court directed a verdict for Oliva, it was error to issue an instruction that would allow the jury to find the city liable based on Oliva's conduct. Because Oliva had been granted a directed verdict, the City could not be held liable for willful and wanton misconduct in relation to Oliva's conduct. Id.
Next, the appellate court considered whether the city could be held liable for the actions of the two police officers who pursued Lowe. The City argued that it was immune under section 4--106(b), which provides immunity to public entities and their employees for "[a]ny injury inflicted by an escaped or escaping prisoner." 745 ILCS 10/4--106(b) (West 2008). The appellate court agreed.
First, the court held that Lowe was an escaping prisoner.
According to the court, the record clearly showed that Lowe was in custody. He obviously did not consider himself free to leave, as he stole a squad car in order to flee the scene. The court also noted that plaintiffs themselves believed that Lowe was under arrest and elicited testimony in their case to show that Oliva violated Chicago police department procedures for restraining an arrestee. Thus, because Lowe was an escaping prisoner, the City was immune from liability for injuries inflicted by Lowe. 396 Ill. App. 3d at 430-31.
Next, the appellate court considered plaintiffs' argument that section 2--202's exception for willful and wanton misconduct would apply to this case. Section 2--202 provides that "[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 2008). In Doe, this court held that a plaintiff could rely on this exception even when section 4--102 of the Act was otherwise applicable. Doe, 161 Ill. 2d at 389-90. Section 4--102 provides, inter alia, that:
"Neither a local public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide adequate police protection service, failure to prevent the commission of crimes, failure to detect or solve crimes, and failure to identify or apprehend criminals." 745 ILCS 10/4--102 (West 2008). Section 4--102 contains no exception for willful and wanton misconduct. This court in Doe held that plaintiffs can avoid statutory immunities granted municipalities and their employees by proving willful and wanton misconduct. Doe, 161 Ill. 2d at 390. In doing so, the court rejected such cases as Luber v. City of Highland, 151 Ill. App. 3d 758 (1986), and Jamison v. ...