Aikens v. Morris

JUSTICE SCARIANO delivered the opinion of the court: Plaintiff brought this action to recover damages she incurred when her automobile was struck by a squad car driven by an Evanston police officer. After a bench trial, she was awarded judgment in the amount of $13,000. Defendants appeal on the ground that liability was precluded by sections 2 — 202 and 2 — 109 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act or Act) (Ill. Rev. Stat. 1979, ch. 85, pars. 2-202, 2-109). We affirm. On July 1, 1979, at approximately 2:45 a.m., Evanston police officer Eugene Morris and his partner were transporting a prisoner from the Skokie lockup to the Evanston lockup in their squad car. Before reaching their destination, they collided with plaintiff’s automobile. Defendants do not contend that the patrol car was being operated as an emergency vehicle at the time of the accident. In the first count of her complaint, plaintiff charged Morris with negligent driving and sought to impose liability upon the City of Evanston (the City) under a respondeat superior theory. Count II asserted that Morris’ actions amounted to willful and wanton misconduct, for which both defendants are liable. A bench trial was held on February 24, 1989, and at the close of plaintiff’s case, defendants moved for a finding on the ordinary negligence claim, arguing that since Morris was involved in the transport of an arrestee in custody at the time of the occurrence, sections 2— 202 and 2 — 109 of the Tort Immunity Act foreclose liability for ordinary negligence. The motion was denied on the ground that the officer was not enforcing or executing a law at the time of the accident. However, the judge later granted defendants’ motion for a finding on count II, the willful and wanton misconduct count. The court found in favor of plaintiff on count I of the complaint, assessed damages at $20,000, apportioned negligence 35% to plaintiff and 65% to defendants, and entered judgment in the amount of $13,000. In this appeal, defendants contend that the trial court erred in holding that the Tort Immunity Act does not prohibit application of the ordinary care standard. Section 2 — 202 of the Act provides: “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 negligence.” (Ill. Rev. Stat. 1979, ch. 85, par. 2— 202.) Further, “[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.” (Ill. Rev. Stat. 1979, ch. 85, par. 2 — 109.) Thus, if Morris is entitled to immunity pursuant to section 2 — 202, the City cannot be found liable. In Arnolt v. City of Highland Park (1972), 52 Ill. 2d 27, 282 N.E.2d 144, another police vehicle collision case, the supreme court on direct review reversed the trial court’s holding that any action taken by a police officer while on duty is entitled to immunity under section 2 — 202. The court noted that only acts done “while in the actual execution or enforcement of a law” are entitled to immunity (52 Ill. 2d at 33, 282 N.E.2d at 147), and offered as an illustration that a police officer merely cruising in his car while in the line of duty may not be afforded immunity (52 Ill. 2d at 34, 282 N.E.2d at 148). After holding that the question of whether a police officer is executing and enforcing the law “is a factual determination which must, in every case, be made in the light of the circumstances involved” (52 Ill. 2d at 35, 282 N.E.2d at 149), the court remanded the case for further fact-finding on the nature of the officer’s conduct at the time of the accident. Relying on Arnolt, the court in Anderson v. City of Chicago (1975), 29 Ill. App. 3d 971, 331 N.E.2d 243, held that a pedestrian who was struck by a police officer transporting two prisoners in a squad car was not required to show willful or wanton negligence by the Tort Immunity Act. The court affirmed the trial judge’s finding that “although Officer Vivrin was on duty and in the course of his employment at the time of the occurrence, he was not enforcing or executing any laws.” 29 Ill. App. 3d at 977, 331 N.E.2d at 248. Defendants dispute plaintiff’s contention that Arnolt and Anderson require affirmance, arguing that these decisions have lost their vitality in light of more recent supreme court cases interpreting section 2 — 202. (Fitzpatrick v. City of Chicago (1986), 112 Ill. 2d 211, 492 N.E.2d 1292; Thompson v. City of Chicago (1985), 108 Ill. 2d 429, 484 N.E.2d 1086.) In Thompson, a police vehicle struck plaintiff while backing up when an unruly mob began pelting the car with bottles, rocks, and debris. Plaintiff argued immunity was improper because when the officer reversed the car in an attempt to extricate himself, he ceased being engaged in enforcing the law. The court rejected this argument, holding that the policeman’s action was a mere tactical retreat, and as such, was part of a continuing course of conduct intended to restore the peace. The court reasoned that “[ejnforcing the law is rarely a single, discrete act, but is instead a course of conduct.” 108 Ill. 2d at 433, 484 N.E.2d at 1088. The plaintiff in Fitzpatrick was involved in an automobile accident on an expressway, and a police officer in a squad car stopped nearby to investigate. Another car struck the patrol car, causing it in turn to strike the plaintiff. The supreme court rejected plaintiff’s argument that the Tort Immunity Act did not apply: “Thus, where the evidence establishes that at the time of his alleged negligence a public employee was engaged in a course of conduct designed to carry out or put into effect any law, an affirmative defense based upon sections 2 — 202 and 2 — 109 of the Tort Immunity Act (111. Rev. Stat. 1979, ch. 85, pars. 2— 202, 2 — 109) should be available to the governmental employee and his employer.” (Fitzpatrick, 112 Ill. 2d at 221, 492 N.E.2d at 1296.) The court specifically noted that plaintiff relied on Arnolt and Anderson in arguing that the Act did not apply, but found these cases were inapposite given the relatively strong link to the enforcement of traffic laws present in Fitzpatrick. Defendants here suggest Thompson and Fitzpatrick have implicitly overruled Arnolt. We find no warrant for this contention. In both of these more recent decisions, there was a clear and unmistakable nexus between the conduct of the police officer and the investigation or prevention of an ongoing criminal offense. Such circumstances contrast sharply with an accident involving the cruising patrol car hypothesized by Arnolt or the transportation of prisoners as seen in Anderson and in this case. Accordingly, we believe that Thompson and Fitzpatrick do not support the City’s position, as both cases are distinguishable on their facts. Moreover, traditional principles of statutory construction preclude our giving to this case the broad reading advocated by defendants; having been promulgated in derogation of the common law, the Tort Immunity Act must be strictly construed against defendants. (Lester v. Chicago Park District (1987), 159 Ill. App. 3d 1054, 513 N.E.2d 72; Clark v. City of Chicago (1980), 88 Ill. App. 3d 760, 410 N.E.2d 1025.) The deceptively broad language used in Fitzpatrick cannot be isolated from its proper context and made to serve as a bar to lawsuits against municipal police officers whenever the act complained of is connected with their more routine job duties. For the foregoing reasons, we affirm the judgment of the trial court. Affirmed. DiVITO, P.J., concurs.