Appeal from the Circuit Court of Cook County. Honorable Robert Lopez Cepero, Judge Presiding.
The opinion of the court was delivered by: Justice Howse
JUSTICE HOWSE delivered the judgment of the court, with opinion.
Justices Joseph Gordon and Fitzgerald Smith concurred in the judgment and opinion.
¶ 1 Plaintiffs Dolores Stehlik and Jerry Stehlik filed a personal injury lawsuit against defendants Gerald Kelly and the Village of Orland Park, seeking damages for injuries the plaintiffs sustained when their automobile was struck by an Orland Park police squad car driven by police officer Kelly. Following the presentation of plaintiffs' case-in-chief at trial, defendants filed a motion for a directed verdict based on section 2-202 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/2-202 (West 1998)). On April 10, 2009, the trial court granted defendants' motion for directed verdict on all counts and dismissed the action in its entirety, finding that defendants were immune from liability under section 2-202 of the Act because Officer Kelly was engaged in the execution and/or enforcement of the law at the time of the accident, and that no evidence demonstrated Officer Kelly acted willfully or wantonly. Plaintiffs appeal. For the reasons that follow, we affirm the trial court's judgment.
¶ 3 The evidence adduced at trial established that at around 8 p.m. on August 13, 1999, Officer Kelly was involved in an accident with the plaintiffs at the intersection of 143rd Street and Greenland Avenue in the Village of Orland Park.
¶ 4 Officer Kelly testified he was on patrol on August 13 when he heard a dispatch report regarding a traffic altercation at the intersection of 143rd Street and Ravinia Avenue. Officer Kelly was initially assigned the call and began to respond. As he was responding, dispatch advised him that two westbound vehicles had been involved in the altercation---a white Chevrolet minivan and a blue Ford Taurus. The driver of the blue Ford had called dispatch on her cell phone. Officer Glacier had also been dispatched to the scene.
¶ 5 Officer Kelly testified Sergeant Lynch, the duty sergeant, told dispatch to tell the driver of the blue Ford to pull over.
Officer Kelly said he heard a third officer, Officer Wegner, inform dispatch over the radio that he had pulled over the white minivan. A fourth officer, Officer Palgen, then informed dispatch that he was going to assist Officer Wegner. At that time, dispatch advised Officers Kelly and Glacier to disregard the call. Officer Glacier responded to the "disregard call," but Officer Kelly did not. Officer Kelly said he told dispatch that he was going to assist Officer Wegner because he believed Officer Palgen might be heading to the wrong location. Dispatch responded "10-4." Officer Kelly also testified he is authorized to assign himself back to a call.
¶ 6 Officer Kelly said Officer Palgen radioed him and told him he was at the white minivan's location with Officer Wegner. Officer Palgen asked Officer Kelly to go to the blue Ford driver's location, which was four blocks east of Crystal Tree on 143rd Street. Officer Kelly then turned around and went back to the blue Ford's location. Officer Kelly said the blue Ford was stopped close to the curb on westbound 143rd Street, so he stopped in the middle of the eastbound lane and activated his emergency lights. After Officer Kelly approached the vehicle, he told the driver that the white minivan had been stopped a few blocks away on 143rd Street. Officer Kelly asked the driver to go to 143rd Street and Crystal in order to identify the vehicle and the driver as the other party involved in the moving violation. Officer Kelly told the driver he would follow her and meet her there.
¶ 7 Officer Kelly testified that in order to escort the driver of the blue Ford to the location of the white minivan, he had to turn his squad car around to head west on 143rd Street. Although Officer Kelly admitted neither Officer Wegner or Officer Palgen nor dispatch told him to follow the blue Ford, he testified "[i]t's police procedure to do that." With his emergency lights still activated, Officer Kelly drove eastbound on 143rd Street toward Greenland Avenue. When he reached Greenland Avenue, Officer Kelly turned on his left-hand turn signal and then veered to the right with the intention to make a three-point left turn onto westbound 143rd Street. Officer Kelly said he checked his mirrors and felt he had adequate clearance to make a safe turn because the vehicles on 143rd Street still appeared to be stopped. As he was turning left with his emergency lights still activated, plaintiffs' vehicle struck his squad car. Officer Kelly explained he had to make a three-point turn because 143rd Street was not wide enough for him to make a U-turn. Officer Kelly denied telling Officer Secula after the accident that he had made a U-turn.
¶ 8 Orland Park police officer David Palgen testified he contacted Officer Kelly on the radio and asked him to locate the driver of the blue Ford and bring her to the scene of the white minivan to identify the driver and vehicle. Officer Palgen said that with regard to the moving traffic altercation, there was an ongoing investigation as to whether or not a violation had occurred. Officer Palgen testified Officer Kelly eventually told him that he had located the blue Ford, and that he was going to bring the driver to the suspect's location. Officer Palgen said police officers escort complaining witnesses to the location of the offender as part of the process of identifying offenders.
¶ 9 Orland Park police officer Warren Sekula testified he was dispatched to the scene of the accident involving Officer Kelly and the plaintiffs. Officer Sekula said that on the night of the accident, Officer Kelly told him his emergency lights and siren were activated while he attempted to make a U-turn on 143rd Street.
¶ 10 Plaintiff Jerome Stehlik testified he was driving eastbound on 143rd Street when he saw a squad car with its emergency lights activated stop in the middle of the eastbound lane. Plaintiff watched the officer get out of his car and walk over to a blue Ford Taurus parked in the westbound lane. After the officer returned to his squad car, the blue Ford started to drive west. Plaintiff said the squad car then proceeded to drive eastbound on 143rd at around 20 or 25 miles per hour while its emergency lights were still activated. Plaintiff said westbound traffic remained stopped. Plaintiff testified he was around two car lengths behind the squad car while keeping pace with it. Plaintiff said that as the squad car approached Greenland Avenue, it started to turn right and plaintiffs continued to proceed eastbound. According to plaintiff, the squad car then immediately turned in front of the plaintiffs' car and the two vehicles collided. Plaintiff testified the squad car struck his vehicle. Photographic evidence presented at trial, however, showed the front of plaintiffs' vehicle was damaged and the driver's side door of the squad car was damaged. When asked what his understanding of what a driver was suppose to do when a police vehicle has it lights activated in the area was, plaintiff said "if it's moving, you pull over on the side." When asked if he stayed pulled over to the side when the squad car began moving again with its lights still activated, plaintiff responded no. Dolores Stehlik's trial testimony regarding the circumstances of the accident was substantially similar to her husband's.
¶ 11 Dennis Waller, plaintiffs' expert witness, admitted Officer Kelly was engaged in the execution and enforcement of the law while instructing the driver of the blue Ford to proceed to the location of the white minivan to identify the other driver and vehicle because he was assisting another officer. Waller opined, however, that Officer Kelly was no longer engaged in the execution and enforcement of the law once he completed his instructions to the driver. Waller also testified that even if Officer Palgen had expected Officer Kelly to accompany the driver to the white minivan's location, Officer Kelly would not have been engaged in the execution and enforcement of the law. Waller explained that in his opinion, an "unsaid expectation doesn't put that into the category of executing or carrying out a law, putting a law into effect." When asked whether Officer Kelly's intention to follow the driver to the scene of the traffic stop to ensure she arrived there would constitute execution and enforcement of the law, Waller responded "[n]o" because there would be "no rational law enforcement basis for doing that." Waller admitted, however, that Officer Kelly would have been engaged in the execution and enforcement of the law if he led the driver to the traffic stop location. Waller agreed that Officer Kelly had the ability to assign himself or volunteer to respond to the call, and that an officer is still executing or enforcing the law when he self-assigns or volunteers for a call.
¶ 12 Following the close of plaintiffs' case-in-chief, defendants moved for a directed verdict. In their motion, defendants argued the evidence presented at trial, even when viewed in the light most favorable to the plaintiffs, demonstrated Officer Kelly was engaged in the execution and enforcement of the law when the accident occurred. Defendants also argued no evidence supported plaintiffs' allegation that Officer Kelly's conduct amounted to wilful and wanton conduct.
¶ 13 Following a hearing, the trial court granted the motion for a directed verdict on all counts. In granting the motion, the trial court found plaintiffs' expert witness lacked sufficient foundation for his opinion that Officer Kelly was not engaged in the execution and enforcement of the law when the accident occurred. The trial court also found Officer Kelly's decision to follow the complaining witness to the scene of the traffic stop in order to conduct a "show up" identification was "undeniably logical and consistent with enforcement circumstances." The court noted that given the circumstances of the case, Officer Kelly's "course of conduct, all the way up to the time of the accident, was reasonably related to enforcement of a law." With regard to the wilful and wanton conduct allegation, the court noted the evidence reflected that Officer Kelly was traveling at a speed below 20 miles per hour, Officer Kelly was unaware of the presence of plaintiffs' vehicle behind him, westbound traffic was still stopped ...