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John Hatteberg and Elizabeth Hatteberg v. Cody B. Cundiff

January 25, 2012


Appeal from Circuit Court of Champaign County No. 09L71 Honorable Jeffrey B. Ford, Judge Presiding.

The opinion of the court was delivered by: Justice Cook

JUSTICE COOK delivered the judgment of the court, with opinion.

Justices Appleton and McCullough concurred in the judgment and opinion.


¶ 1 In December 2008, plaintiffs, John and Elizabeth Hatteberg, were injured when defendant, Cody B. Cundiff, collided with their vehicle. The accident occurred while defendant, a volunteer firefighter, was responding to an emergency call regarding a three-car motor vehicle accident. Defendant was driving a personal (not an emergency) vehicle at the time of the accident, as he had just received the call and, pursuant to fire department policy, was driving to the Thomasboro Fire Station (Station).

¶ 2 Plaintiffs filed suit against defendant, seeking recovery for personal injuries sustained in the accident. Defendant moved to dismiss two counts and moved for summary judgment on the remaining two counts. The trial court dismissed two counts after it determined defendant fell within the parameters of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/5-106 (West 2008)), and therefore was not subject to liability for negligence. The court entered summary judgment for defendant on the remaining two counts, finding that the facts of the case would not support a jury finding that defendant's conduct was willful and wanton.

¶ 3 Plaintiffs appeal.


¶ 5 On December 20, 2008, the Champaign County Emergency Dispatch System (METCAD) sent out an emergency call to Thomasboro firefighters regarding an accident with unknown injuries and three vehicles off the road on Leverett Road. Defendant, a volunteer firefighter, received this emergency call. According to Thomasboro Fire Chief Paul Cundiff, the expectation of all volunteer firefighters was that they would carry their department-issued pagers with them at all times and respond to any emergency call, so long as they were in the county and not under the influence of drugs or alcohol. The department protocol was that the firefighters should report to the fire station upon receiving an emergency call unless their route to the station would cause them to pass the accident, at which point they could stop, render aid, and give information to other responders. Defendant responded to the emergency call and was en route to the Station in a personal vehicle at the time of the collision.

¶ 6 Defendant was driving west on County Road 2500 N. at 55 miles per hour, approaching the United States Highway Route 45 intersection. He observed another vehicle stopped at the stop sign, and when he was approximately 500 feet from the sign, he applied his brakes to stop his vehicle behind the one ahead of him. According to defendant's deposition, when he applied his brakes, his vehicle began to skid on the ice. Defendant let off the brake and then applied it again, and even though he had slowed to approximately 35 miles per hour, he realized he was not going to be able to stop his vehicle in time to avoid colliding with the vehicle in front of him. When defendant was approximately 100 feet from the vehicle in front of him, he made the decision to move into the left lane and go around the vehicle. Defendant stated he did not have enough time to see whether there was any traffic on Route 45 before going through the intersection at approximately 35 to 40 miles per hour. Defendant collided with plaintiffs' vehicle, which was traveling southbound on Route 45. Defendant stated that he was not aware of the slick road conditions until he first attempted to apply his brakes.

¶ 7 Elizabeth Hatteberg, a passenger in the vehicle driven by John Hatteberg, testified in her deposition that the country roads they had been traveling seemed "all right," but when they turned on Route 45, the road seemed "very slick." She did not see defendant or his vehicle prior to the accident. John Hatteberg testified in his disposition that when he turned onto southbound Route 45, he slowed his vehicle to 40 or 45 miles per hour because the road seemed slick. He stated it had not been snowing prior to the accident. He only saw defendant's vehicle a second before the collision and was not able to estimate the speed it was traveling.

¶ 8 In April 2009, plaintiffs filed four causes of action seeking recovery for their injuries. Counts I and II were based on common-law negligence and counts III and IV were premised upon the theory of willful and wanton conduct. In December 2009, defendant filed a motion to dismiss counts I and II, arguing that those claims were barred because he was a public employee acting within the scope of his employment at the time of the accident and, thus, was not liable for any injury caused by the negligent operation of his motor vehicle while responding to an emergency call pursuant to the Tort Immunity Act. In February 2010, the trial court dismissed counts I and II, finding defendant immune from a negligence claim under the Tort Immunity Act because he was (1) a public employee; (2) acting within the scope of his employment; (3) while operating a motor vehicle; and (4) acting in response to an emergency call. In January 2011, defendant filed a motion for summary judgment on counts III and IV, arguing that no record evidence supported plaintiffs' claims that defendant's conduct constituted willful and wanton behavior or exhibited conscious disregard for safety, which it must do for defendant to be liable under the Tort Immunity Act. In April 2011, the court granted summary judgment in favor of defendant.

¶ 9 This appeal followed.


¶ 11 Plaintiffs argue on appeal that (1) the trial court erred in granting defendant's motion to dismiss counts I and II (735 ILCS 5/2-619(a)(9) (West 2008)) based upon a determination that defendant could not be liable to plaintiffs on a theory of negligence due to tort immunity because he was not responding to an emergency at the time of the accident, and (2) the court erred in awarding summary judgment to defendant on counts III and IV (735 ILCS 5/2-1005(b) (West 2008)) because reasonable minds could draw different inferences as to whether defendant's conduct was willful and wanton. We disagree.

¶ 12 A. Negligence Claims

ΒΆ 13 Section 5-106 of the Tort Immunity ...

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