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James Harris, Appellee v. Steven W. Thompson et al

June 21, 2012


The opinion of the court was delivered by: Justice Freeman

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

Justices Thomas, Garman, Karmeier, Burke, and Theis concurred in the judgment and opinion.

Chief Justice Kilbride dissented, with opinion.


¶ 1 Plaintiff, James Harris, brought a personal injury action in the circuit court of Massac County against defendants, Steven W. Thompson and Massac County Hospital District. The circuit court entered judgment on a jury verdict in favor of plaintiff, and the appellate court affirmed. No. 5-09-0625 (unpublished order under Supreme Court Rule 23). We allowed defendants' petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010). We now reverse the judgment of the appellate court.


¶ 3 Defendant Massac County Hospital District employed defendant Steven W. Thompson as an ambulance driver. Between 6:15 and 6:30 p.m. on January 26, 2004, Massac Memorial Hospital received a diabetic emergency call from Southgate Nursing Home to pick up and transport a nursing home resident to another hospital for further care. Thompson was instructed that this was an emergency. Julie Worthen, a hospital emergency medical technician (EMT), accompanied Thompson in the rear of the ambulance to set up supplies for the patient. The nursing home was located east of the intersection of Ninth Street and Butler Road in Metropolis. Thompson was driving east on Ninth Street toward Butler Road.

¶ 4 At that time, plaintiff, James Harris, was driving his 2001 Dodge Caravan south on Butler Road toward Ninth Street. Plaintiff's wife, Vashi, and daughter Chelsea were passengers. They were traveling between 20 and 25 miles per hour. The two vehicles collided in the intersection. Plaintiff never saw the ambulance prior to the impact because he was looking to his left upon entering the intersection, which was away from the direction the eastbound ambulance was traveling. Worthen did not witness anything prior to the collision because the back of the ambulance lacked windows.

¶ 5 The front of plaintiff's vehicle hit the center of the left side of the ambulance. The impact knocked the ambulance over onto its right side. The Harrises, Thompson, and Worthen all sustained injuries.

¶ 6 On January 24, 2005, plaintiff, Vashi, and Chelsea brought a personal injury action against defendants. The Harrises alleged that: Massac County Hospital District was a municipal corporation and Thompson was its employee; Thompson was negligent; therefore, he was liable and the hospital district was vicariously liable based on the theory of respondeat superior. The Harrises separately alleged negligence against defendants, and plaintiff and Vashi each additionally alleged loss of consortium. Their first amended complaint added a jury trial demand for each count.

¶ 7 On June 27, 2006, defendants filed a motion to dismiss pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2002)) asserting an affirmative defense that defeated the negligence claims. According to defendants, the complaint acknowledged that the hospital district was a municipal corporation, and the complaint contained only claims of negligence. Therefore, defendants argued that they were immune from liability based on negligence pursuant to the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act or Act) (745 ILCS 10/1-101 to 10-101 (West 2002)). On December 8, 2006, the circuit court denied the motion. On June 18, 2009, the Harrises filed the instant third amended complaint, which added alternative counts alleging willful and wanton conduct in relation to plaintiff, Vashi, and Chelsea. Responding to each new pleading, including the instant complaint, defendants raised the affirmative defense of the Tort Immunity Act.

¶ 8 On September 11, 2009, pursuant to the parties' stipulation, the claims of Vashi and Chelsea were settled and the circuit court dismissed them with prejudice. On September 28, 2009, the court granted plaintiff's motion to voluntarily dismiss his consortium count with prejudice, and a jury trial began on plaintiff's negligence and willful and wanton counts. At the close of plaintiff's case, the court entered a directed verdict in favor of defendants on the willful and wanton count. Plaintiff's case went to the jury solely on the negligence count. On September 30, 2009, the jury returned a verdict in favor of plaintiff, and the circuit court subsequently entered judgment on the verdict in the amount of $667,216.30.*fn1

¶ 9 Defendants timely filed a posttrial motion pursuant to section 2- 1202(b) of the Code of Civil Procedure (735 ILCS 5/2-1202(b) (West 2002)). Defendants requested a judgment non obstante veredicto (n.o.v.), asserting that the Tort Immunity Act immunized them from liability for negligence. Alternatively, defendants requested a new trial solely on the issue of damages, asserting that the court erroneously admitted into evidence the unpaid portion of plaintiff's hospital bill. On October 30, 2009, the circuit court denied defendants' posttrial motion.

¶ 10 The appellate court affirmed the judgment of the circuit court.

First, the appellate court acknowledged that the Tort Immunity Act immunized defendants from liability in negligence, but concluded that the Tort Immunity Act did not apply to defendants in this case. Rather, the court held that the Illinois Vehicle Code (Vehicle Code or Code) (625 ILCS 5/1-100 et seq. (West 2002)) applied to defendants, and that the Code imposes a duty to refrain from negligence. Second, the appellate court held that defendants forfeited their contention regarding the admission into evidence of plaintiff's hospital bill by "failing to object on the record to the nature of plaintiff's presentation of medical bills." No. 5-09-0625 (unpublished order under Supreme Court Rule 23).

¶ 11 Defendants appeal to this court. We subsequently granted the Illinois Municipal League leave to submit an amicus curiae brief in support of defendants. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010). We will refer to additional pertinent background in the context of our analysis of the issues.


¶ 13 We first address (A) defendants' contention that the Tort Immunity Act immunized them from liability for negligence. If we conclude that the Tort Immunity Act controls in this case, plaintiff contends that (B) our decision should apply only prospectively; and (C) the circuit court erred in directing a verdict in favor of defendants on plaintiff's claim of willful and wanton conduct.

¶ 14 A. Governmental Tort Immunity

¶ 15 This matter is before us on the denial of defendants' request for a judgment n.o.v. "[V]erdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on the evidence could ever stand." Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967). Where the uncontradicted evidence, viewed in the light most favorable to the plaintiff, establishes a complete defense, a court is justified in granting the defendant's motion for a judgment n.o.v. Merlo v. Public Service Co. of Northern Illinois, 381 Ill. 300, 311 (1942); see, e.g., Ries v. City of Chicago, 242 Ill. 2d 205, 215 (2011) (Tort Immunity Act). An adverse ruling on a motion for a directed verdict or a judgment n.o.v. is reviewed de novo. Evans v. Shannon, 201 Ill. 2d 424, 427 (2002). In other words, the reviewing court applies the same Pedrick standard as did the circuit court. See, e.g., Schmidt v. Archer Iron Works, Inc., 44 Ill. 2d 401, 405 (1970).

¶ 16 Defendants contend that the Tort Immunity Act (745 ILCS 10/1- 101 to 10-101 (West 2002)) applies to the instant case and operates to bar plaintiff's cause of action. Pursuant to the Act, Illinois adopted the general principle that local governmental units are liable in tort, but limited this liability with an extensive list of immunities based on specific government functions. Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 489 (2001); Barnett v. Zion Park District, 171 Ill. 2d 378, 385-86 (1996). Also, article XIII, section 4, of the 1970 Illinois Constitution provides: "Except as the General Assembly may provide by law, sovereign immunity in this State is abolished." Ill. Const. 1970, art. XIII, § 4. This constitutional provision "now makes the General Assembly the ultimate authority in determining whether local units of government are immune from liability." DeSmet v. County of Rock Island, 219 Ill. 2d 497, 506 (2006). "Based on these developments, governmental units are liable in tort on the same basis as private tortfeasors unless a tort immunity statute imposes conditions upon that liability." In re Chicago Flood Litigation, 176 Ill. 2d 179, 192 (1997).

¶ 17 The purpose of the Tort Immunity Act is to protect local public entities and public employees from liability arising from the operation of government. By providing immunity, the General Assembly sought to prevent public funds from being diverted from their intended purpose to the payment of damage claims. The Act grants only immunities and defenses. In other words, the Act does not create duties. Rather, the Act merely codifies existing common law duties, to which the delineated immunities apply. Arteman v. Clinton Community Unit School District No. 15, 198 Ill. 2d 475, 479-80 (2002); Village of Bloomingdale, 196 Ill. 2d at 490; 745 ILCS 10/1-101.1(a) (West 2002). Therefore, whether a local public entity owed a duty of care and whether that entity enjoyed immunity are separate issues. Once a court determines that a duty exists, it then addresses whether the Act applies. Arteman, 198 Ill. 2d at 480; Village of Bloomingdale, 196 Ill. 2d at 490.

¶ 18 In the case at bar, the parties do not dispute that Thompson was a public employee and the hospital district was a municipal corporation and, therefore, a local public entity. 745 ILCS 10/1-202, 1-206, 1-207 (West 2002). Defendants rely on two provisions of the Act. Section 2-109 provides: "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 2002). Also, section 5-106 provides as follows:

"Except for willful or wanton conduct, neither a local public entity, nor a public employee acting within the scope of his employment, is liable for an injury caused by the negligent operation of a motor vehicle or firefighting or rescue equipment, when responding to an emergency call, including ...

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