{ "id": 2593487, "name": "PATRICIA AIKENS, Plaintiff-Appellee, v. EUGENE MORRIS et al., Defendants-Appellants", "name_abbreviation": "Aikens v. Morris", "decision_date": "1990-06-29", "docket_number": "No. 1-89-0844", "first_page": "404", "last_page": "410", "citations": [ { "type": "official", "cite": "201 Ill. App. 3d 404" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "410 N.E.2d 1025", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "88 Ill. App. 3d 760", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3171445 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/88/0760-01" ] }, { "cite": "513 N.E.2d 72", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "159 Ill. App. 3d 1054", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3610574 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/159/1054-01" ] }, { "cite": "484 N.E.2d 1086", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1088" } ], "opinion_index": 0 }, { "cite": "108 Ill. 2d 429", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3130185 ], "weight": 2, "pin_cites": [ { "page": "433" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/108/0429-01" ] }, { "cite": "492 N.E.2d 1292", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "1296" } ], "opinion_index": 0 }, { "cite": "112 Ill. 2d 211", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5538322 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "221" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/112/0211-01" ] }, { "cite": "331 N.E.2d 243", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "248" } ], "opinion_index": 0 }, { "cite": "29 Ill. App. 3d 971", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2503465 ], "weight": 2, "pin_cites": [ { "page": "977" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/29/0971-01" ] }, { "cite": "282 N.E.2d 144", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "147" }, { "page": "148" }, { "page": "149" } ], "opinion_index": 0 }, { "cite": "52 Ill. 2d 27", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5395825 ], "weight": 4, "pin_cites": [ { "page": "33" }, { "page": "34" }, { "page": "35" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/52/0027-01" ] }, { "cite": "127 Ill. 2d 642", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 1 }, { "cite": "540 N.E.2d 342", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 1 }, { "cite": "184 Ill. App. 3d 241", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2637388 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "247, 251" }, { "page": "247" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/184/0241-01" ] }, { "cite": "484 N.E.2d 1086", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "108 Ill. 2d 429", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3130185 ], "weight": 2, "pin_cites": [ { "page": "433" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/108/0429-01" ] }, { "cite": "492 N.E.2d 1292", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1985, "opinion_index": 1 }, { "cite": "112 Ill. 2d 211", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5538322 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "221" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/112/0211-01" ] }, { "cite": "331 N.E.2d 243", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "29 Ill. App. 3d 971", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2503465 ], "weight": 3, "pin_cites": [ { "page": "977" }, { "page": "975" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/29/0971-01" ] }, { "cite": "282 N.E.2d 144", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "52 Ill. 2d 27", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5395825 ], "weight": 2, "pin_cites": [ { "page": "34" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/52/0027-01" ] } ], "analysis": { "cardinality": 679, "char_count": 14989, "ocr_confidence": 0.771, "pagerank": { "raw": 7.345432909102184e-08, "percentile": 0.4406154567312612 }, "sha256": "49055d5213a4ab26ab84e48e869c22873afdadeb3cd318534fc06d7c22d20757", "simhash": "1:9ae58f50364d17a4", "word_count": 2514 }, "last_updated": "2023-07-14T22:48:55.467533+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "PATRICIA AIKENS, Plaintiff-Appellee, v. EUGENE MORRIS et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE SCARIANO\ndelivered the opinion of the court:\nPlaintiff 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 \u2014 202 and 2 \u2014 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.\nOn 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\u2019s 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\u2019 actions amounted to willful and wanton misconduct, for which both defendants are liable.\nA bench trial was held on February 24, 1989, and at the close of plaintiff\u2019s 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\u2014 202 and 2 \u2014 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\u2019 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.\nIn 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 \u2014 202 of the Act provides: \u201cA 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.\u201d (Ill. Rev. Stat. 1979, ch. 85, par. 2\u2014 202.) Further, \u201c[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.\u201d (Ill. Rev. Stat. 1979, ch. 85, par. 2 \u2014 109.) Thus, if Morris is entitled to immunity pursuant to section 2 \u2014 202, the City cannot be found liable.\nIn 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\u2019s holding that any action taken by a police officer while on duty is entitled to immunity under section 2 \u2014 202. The court noted that only acts done \u201cwhile in the actual execution or enforcement of a law\u201d 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 \u201cis a factual determination which must, in every case, be made in the light of the circumstances involved\u201d (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\u2019s conduct at the time of the accident.\nRelying 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\u2019s finding that \u201calthough 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.\u201d 29 Ill. App. 3d at 977, 331 N.E.2d at 248.\nDefendants dispute plaintiff\u2019s 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 \u2014 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\u2019s 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 \u201c[ejnforcing the law is rarely a single, discrete act, but is instead a course of conduct.\u201d 108 Ill. 2d at 433, 484 N.E.2d at 1088.\nThe 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\u2019s argument that the Tort Immunity Act did not apply:\n\u201cThus, 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 \u2014 202 and 2 \u2014 109 of the Tort Immunity Act (111. Rev. Stat. 1979, ch. 85, pars. 2\u2014 202, 2 \u2014 109) should be available to the governmental employee and his employer.\u201d (Fitzpatrick, 112 Ill. 2d at 221, 492 N.E.2d at 1296.)\nThe 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.\nDefendants 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\u2019s position, as both cases are distinguishable on their facts.\nMoreover, 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.\nFor the foregoing reasons, we affirm the judgment of the trial court.\nAffirmed.\nDiVITO, P.J., concurs.", "type": "majority", "author": "JUSTICE SCARIANO" }, { "text": "JUSTICE BILANDIC,\ndissenting:\nThe majority concludes that an Evanston police officer transporting a prisoner who is under arrest, from the Skokie lockup to the Evanston lockup at 2:45 a.m., is not engaged \u201cin the execution or enforcement of any law\u201d and, therefore, cannot invoke section 2 \u2014 202 of the Local Governmental and Governmental Employees Tort Immunity Act. To reach this conclusion the majority erroneously states that the court in Anderson v. City of Chicago (1975), 29 Ill. App. 3d 971, 331 N.E.2d 243 held \u201cthat 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\u2019s finding that \u2018although 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.\u2019 \u201d 201 Ill. App. 3d at 406, quoting Anderson, 29 Ill. App. 3d at 977.\nOn the contrary, in Anderson, there is no reference to any arrest or the destination of any prisoners. In the case at bar, the defense vigorously asserts that the transportation of a prisoner under arrest at 2:45 a.m. is the \u201cexecution or enforcement\u201d of the law which supports tort immunity for the officer. In Anderson the defense did not assert that Officer Vivrin was engaged in the transport of two prisoners when his squad car and plaintiff, a pedestrian, were involved in an accident. The court held that\n\u201cdefendants\u2019 argument is directed primarily toward the issue of contributory negligence. *** The fact that two police officers testified that plaintiff was not in the crosswalk and that she turned back into the car does not, of itself, show that the decision for plaintiff was against the manifest weight of the evidence. Plaintiff\u2019s testimony that she was in the crosswalk was corroborated expressly by Johnnie Mae Thomas and inferentially by Officer Mugnolo. The trial judge saw and heard the witnesses and we are unable to state that his judgment is against the manifest weight of the evidence.\u201d (Emphasis added.) Anderson, 29 Ill. App. 3d at 975.\nIt is therefore wrong to assert that Anderson stands for the principle that the transportation of a prisoner under arrest at 2:45 a.m. by a police officer is not the \u201cexecution or enforcement\u201d of any law that would support tort immunity for the officer.\nThe majority states that Anderson relied on Arnolt v. City of Highland Park (1972), 52 Ill. 2d 27, 282 N.E.2d 144. In Arnolt, the court used a hypothetical illustration in deciding an issue dealing with pleadings. The example stated \u201c[a] policeman, while merely cruising in a vehicle in the line of duty, may not be afforded immunity under the Tort Immunity Act in that the factual determination of the situation may indicate that he was not at the time executing or enforcing a law.\u201d (Emphasis added.) (52 Ill. 2d at 34.) Even if this is not dicta, the court did not say that \u201ccruising in a vehicle while on duty\u201d is not \u201cexecuting or enforcing a law\u201d that would not afford immunity. The court merely said that under the example it \u201cmay\u201d or may not be an act of \u201cexecuting or enforcing a law.\u201d The court obviously recognized that there is a factual difference between cruising in the vicinity of the county jail immediately after two convicted murderers escaped and cruising in a crime-free residential area.\nIn my opinion, the majority continues to interpret section 2 \u2014 202 in the narrowest possible manner, contrary to recent decisions of our supreme court broadening the protection afforded to police officers against liability for negligent acts committed while carrying out and upholding the law.\nFitzpatrick v. City of Chicago (1986), 112 Ill. 2d 211, 492 N.E.2d 1292, and Thompson v. City of Chicago (1985), 108 Ill. 2d 429, 484 N.E.2d 1086, are recent pronouncements of our supreme court that the narrow construction the courts placed upon section 2 \u2014 202 in cases such as Anderson and Arnolt will no longer be accepted.\nIn Thompson, our supreme court expressed the view that \u201c[e]n-forcing the law is rarely a single, discrete act, but is instead a course of conduct.\u201d (108 Ill. 2d at 433.) Approximately one year later, our supreme court commented on this new attitude toward section 2 \u2014 202 when it decided Fitzpatrick:\n\u201c[In Thompson] [w]e expressed the view that an interpretation of section 2 \u2014 202 of the Tort Immunity Act *** which granted immunity only where the specific, allegedly negligent act was one of execution or enforcement was \u2018overly narrow.\u2019 [Citation.] 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 \u2014 202 and 2\u2014 109 of the Tort Immunity Act [citation] should be available to the governmental employee and his employer.\u201d Fitzpatrick v. City of Chicago (1986), 112 Ill. 2d 211, 221, 492 N.E.2d 1292.\nThe only fair reading of Fitzpatrick is that Anderson and the line of cases it represents are no longer good law. In Trepachko v. Village of Westhaven (1989), 184 Ill. App. 3d 241, 540 N.E.2d 342, appeal denied (1989), 127 Ill. 2d 642, the defendant police officer stopped a motorist for a traffic violation on a divided highway. The motorist stopped in the right-hand traffic lane and the officer directed him to move the car across the other lane to the median strip. During the movement, the car was struck by a motorcycle. The driver and passenger of the motorcycle suffered fatal injuries.\nTheir estates sued the village and the officers for damages caused by the negligence of the police officer.\nDefendants contended that section 2 \u2014 202 conferred immunity against the claims. This court affirmed the dismissal of the claims on the basis of Fitzpatrick. (Trepachko, 184 Ill. App. 3d at 247, 251.) Our supreme court denied leave to appeal.\nTrepachko is particularly relevant because of a significant fact it has in common with the case at bar. In each case, the accident occurred during movement of a person under police control from one place to another. In Trepachko, the officer directed the person stopped for a traffic violation to drive from one side of the road to the other. In the case at bar, the officer was driving the squad car in which the prisoner was being transported to a lockup. Citing Fitzpatrick, this court held that the police officer in Trepachko was immune from liability under 2 \u2014 202 of the Tort Immunity Act and noted that the concept of immunity is expanding where police officers are \u201cproviding police services [citations] or executing, enforcing or implementing any law. [Citations.]\u201d Trepachko, 184 Ill. App. 3d at 247.\nBased on the foregoing, I would reverse the judgment of the circuit court of Cook County and remand this cause with directions to enter judgment for the defendants.", "type": "dissent", "author": "JUSTICE BILANDIC," } ], "attorneys": [ "Dowd & Dowd, Ltd., of Chicago (Robert C. Yelton III and Philip J. McGuire, of counsel), for appellants.", "Beerman, Swerdlove, Woloshin & Barezky, of Chicago (Michael A. Burr, of counsel), for appellee." ], "corrections": "", "head_matter": "PATRICIA AIKENS, Plaintiff-Appellee, v. EUGENE MORRIS et al., Defendants-Appellants.\nFirst District (2nd Division)\nNo. 1-89-0844\nOpinion filed June 29, 1990.\nRehearing denied July 31, 1990.\nBILANDIC, J., dissenting.\nDowd & Dowd, Ltd., of Chicago (Robert C. Yelton III and Philip J. McGuire, of counsel), for appellants.\nBeerman, Swerdlove, Woloshin & Barezky, of Chicago (Michael A. Burr, of counsel), for appellee." }, "file_name": "0404-01", "first_page_order": 424, "last_page_order": 430 }