Court of Appeals of Illinois, First District, Fifth Division
Appeal from the Circuit Court of Cook County 11 M1 303194 Honorable James E. Snyder, Judge Presiding.
JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justices Palmer and Taylor concurred in the judgment and opinion.
¶ 1 Plaintiff Dominique Betts appeals the trial court's order dismissing her complaint filed against defendants, the City of Chicago and Darrell Smith, alleging negligence in a car accident in which Smith, a Chicago police officer, backed into plaintiff's vehicle and caused injury to plaintiff. On appeal, Betts argues that the trial court erred in dismissing her complaint because the record does not support defendants' assertion of immunity under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1-101 et seq. (West 2010)) and she was denied her right to discovery and due process.
¶ 2 In December 2011, plaintiff filed her negligence complaint against defendants. The complaint alleged that on or about December 4, 2010, plaintiff was operating a motor vehicle that was parked facing east on Congress, at or near its intersection with Kostner, in Chicago. Smith "was operating a motor vehicle in an easterly direction on the aforesaid Congress and backed into the Plaintiff's vehicle." At the time of the accident, Smith was operating the vehicle as an agent, servant and employee of the City of Chicago. Plaintiff alleged that defendants had a duty to exercise ordinary care in the operation of the vehicle to avoid injury to plaintiff. As a direct and proximate result of defendants' negligence, plaintiff was injured and suffered damages of a personal and pecuniary nature. Plaintiff sought damages not in excess of $9, 950, plus the costs of the suit.
¶ 3 In February 2012, defendants filed a motion to dismiss the complaint pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2010)). The motion was set for hearing on March 13, 2012, but when plaintiff's attorney did not appear at a March 6 status hearing, the trial court dismissed the case for want of prosecution. Plaintiff subsequently filed a motion to vacate the dismissal, which the trial court granted.
¶ 4 In April 2012, defendants renoticed their motion to dismiss the complaint. The motion asserted that defendants were immune from the alleged negligence under sections 2-202 and 2-109 of the Tort Immunity Act (745 ILCS 10/2-202, 2-109 (West 2010)). 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 2010). Section 2-109 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 2010). According to defendants, Smith was executing the law at the time of the accident because he was an on duty police officer assisting with a narcotics surveillance. If Smith was not liable, then the city cannot be liable. Defendants attached an affidavit from Smith to the motion. In the affidavit, Smith stated:
"1. I have personal knowledge of the facts contained in this affidavit.
2. At the time of the accident in question on December 4, 2010, I was on duty with the City of Chicago Police Department, acting within the scope of my duties as a City of Chicago police officer.
3. At the time of the accident, I was on duty as an undercover surveillance officer in a narcotics transaction.
4. If sworn to testify, I would testify as above."
¶ 5 The motion was set for a hearing on July 10, 2012. The trial court allowed plaintiff to propound five interrogatories on the question of whether the officer was within the "scope of duties." Defendants filed their answers to plaintiff's interrogatories on June 7, 2012.
¶ 6 Plaintiff filed a response to the motion to dismiss, contending that at the time of the accident, Smith "had not yet begun to execute or enforce any law but was merely on his way to take over for the team engaged in the investigation" and, thus, defendants were not entitled to immunity under the Tort Immunity Act. Defendants filed a reply, maintaining that Smith was acting in a course of conduct aimed at enforcing drug laws.
¶ 7 On July 10, 2012, the trial court granted defendants' motion to dismiss. On July 25, 2012, plaintiff filed a motion to vacate the ex parte order of July 10, 2010 and for rehearing. According to the motion, plaintiff's attorney did not appear at the hearing on July 10 because his diary clerk incorrectly recorded the date of the hearing. In August 2012, the trial court vacated the dismissal order and defendants' motion to dismiss was rescheduled. On September 25, 2012, the trial court denied defendants' motion and gave defendants 14 days to correct defects in the answer to interrogatories and plaintiff was given leave to amend her complaint within 28 days.
¶ 8 On October 2, 2012, defendants filed the corrected answers to interrogatories. The answers are substantially the same, except the answers were now drafted in the first-person for Officer Smith and the certification was corrected to name Smith. ...