Jackson v. Kane Cnty.

2021 IL App (2d) 210153

220 N.E.3d 318

468 Ill.Dec. 10

Stacy JACKSON, as Supervised Administrator of the Estate of Marcie Lopez, Deceased, Plaintiff-Appellant,

v.KANE COUNTY, the Kane County Sheriff's Office, Kane County Sheriff's Deputy Matthew Schultz, and Sergeant Paul Warren, Defendants-Appellees.

No. 2-21-0153

Appellate Court of Illinois, Second District.

Filed December 29, 2021

Jeffrey Friedman and Arijana Keserovic, of Law Office of Jeffrey Friedman, P.C., of Chicago, for appellant.

Jamie L. Mosser, State's Attorney, of Geneva (Kathleen K. Watson, Assistant State's Attorney, of counsel), for appellees.

OPINION

PRESIDING JUSTICE BRIDGES delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Stacy Jackson, as supervised administrator of the estate of her sister, Marcie Lopez, deceased, appeals from an order of the trial court granting the motion of defendants, Kane County, the Kane County Sheriff's Office, Kane County Sheriff's Deputy Matthew Schultz, and Sergeant Paul Warren, to dismiss her case with prejudice pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-619(a)(9) (West 2020)). On appeal, plaintiff argues that the motion to dismiss was erroneously granted because (1) a genuine issue of material fact existed as to whether Schultz's and Warren's actions during the police pursuit that resulted in Lopez's death were willful and wanton and (2) the trial court ruled contrary to established case law. For the reasons set forth below, we affirm.

¶ 2 I. BACKGROUND

¶ 3 Plaintiff filed an eight-count amended complaint, charging Schultz and Warren with willful and wanton conduct that proximately resulted in the death of Lopez following the police pursuit. The complaint also sought recovery from Kane County and the Kane County Sheriff's Office, under the doctrine of respondeat superior .

¶ 4 The complaint alleged in part as follows. On June 10, 2019, Schultz attempted to pull Lopez over for squealing her vehicle tires as she made a right turn onto Claim Street. Schultz flashed his emergency lights and chirped his siren; however, Lopez did not stop her vehicle but continued driving eastbound on Liberty Street. At 8:12 p.m., Schultz notified KaneComm (Kane County Emergency Communications Center, a multijurisdictional dispatch center) that the vehicle was "not stopping." Schultz fully activated his emergency lights and sirens and continued to follow Lopez in an eastbound direction toward the intersection of Liberty Street and Farnsworth Avenue. At 8:13 p.m., Lopez activated her left turn signal, stopped at Liberty Street's red light, and waited to make a left turn onto Farnsworth Avenue. Schultz stopped behind her. Once the light turned green, Lopez made a left turn onto Farnsworth and then immediately accelerated her vehicle to 78 miles per hour. Schultz, while pursuing Lopez's vehicle, reached a speed of approximately 67 miles per hour. At this time, Schultz told KaneComm that Lopez was "probably about 80 [miles per hour]" and that he was "falling back." At 8:13 p.m., Lopez lost control of her vehicle, hit the center median on Farnsworth Avenue, and was ejected from her vehicle. Lopez died as a result of the crash.

¶ 5 Defendants filed a motion to dismiss pursuant to sections 2-615(a) and 2-619(a)(9) of the Code (id. §§ 2-615(a), 2-619(a)(9) ). The trial court, without a hearing, granted defendants’ motion with prejudice, pursuant to section 2-619(a)(9),¹ holding that "[p]laintiff's pleadings did not state allegations sufficient that rise to the level of willful and wanton conduct that could avoid dismissal with prejudice under Section 2-619 [a](9)."

¶ 6 II. ANALYSIS

¶ 7 In the matter before us, plaintiff disputes whether the trial court properly granted defendants’ section 2-619(a)(9) motion to dismiss her amended complaint. The trial court found that, when read together, sections 2-109 and 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) ( 745 ILCS 10/2-109, 2-201 (West 2020) immunize a public entity from liability for the discretionary acts or omissions of its employees who are acting within the scope of their employment, whether they function singly or jointly, or in collaboration with other public employees. Smith v. Waukegan Park District , 231 Ill. 2d 111, 118, 324 Ill.Dec. 446, 896 N.E.2d 232 (2008) ; Village of Bloomingdale v. CDG Enterprises, Inc. , 196 Ill. 2d 484, 496, 256 Ill.Dec. 848, 752 N.E.2d 1090 (2001). The court recognized that sections 2-109 and 2-201 did not immunize willful and wanton conduct, and the court granted defendants’ motion to dismiss on the grounds that defendants were acting within the scope of their employment and the amended complaint failed to sufficiently allege facts to support that they acted willfully and wantonly. Thus, the court found that defendants were entitled to immunity under sections 2-109 and 2-201.

¶ 8 According to plaintiff, the trial court improperly dismissed her amended complaint when it decided disputed factual issues in granting defendants’ motion under section 2-619(a)(9). Defendants respond that the trial court properly dismissed plaintiff's amended complaint under section 2-619(a)(9) because the complaint did not adequately plead or allege that they committed any willful and wanton conduct, and therefore, as an affirmative matter, they had immunity under the Act. For the reasons discussed below, we hold that the trial court properly dismissed plaintiff's amended complaint.

¶ 9 A. Standard of Review

¶ 10 The purpose of a section 2-619 motion to dismiss is to dispose of issues of law and easily proved issues of fact at the outset of litigation. Van Meter v. Darien Park District , 207 Ill. 2d 359, 367, 278 Ill.Dec. 555, 799 N.E.2d 273 (2003). Specifically, a motion under section 2-619(a)(9) of the Code admits the legal sufficiency of the plaintiff's claim but asserts an affirmative matter outside of the pleading that defeats the claim. Czarobski v. Lata , 227 Ill. 2d 364, 369, 317 Ill.Dec. 656, 882 N.E.2d 536 (2008) (citing 735 ILCS 5/2-619(a)(9) (West 2006)). An " ‘affirmative matter’ [(in a section 2-619(a)(9) motion)] refers to a defense that negates the cause of action completely or refutes crucial conclusions of law or conclusions of material fact." McIntosh v. Walgreens Boots Alliance, Inc. , 2019 IL 123626, ¶ 16, 434 Ill.Dec. 189, 135 N.E.3d 73. Immunity under the Act is an affirmative matter properly raised in a section 2-619(a)(9) motion to dismiss. Van Meter , 207 Ill. 2d at 377, 278 Ill.Dec. 555, 799 N.E.2d 273.

¶ 11 In reviewing the grant of a section 2-619 motion, we must interpret the pleadings and supporting materials in the light most favorable to the plaintiff. Shirley v. Harmon , 405 Ill. App. 3d 86, 90, 342 Ill.Dec. 932, 933 N.E.2d 1225 (2010). Moreover, since "[a] section 2-619 dismissal resembles the grant of a motion for summary judgment[,] we must determine whether a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether the dismissal was proper as a matter of law." Id. Once defendants satisfy their initial burden of going forward on a section 2-619(a)(9) motion, the burden shifts to the plaintiff to establish that the defense is unfounded or that it requires the resolution of an essential element of material fact. Van Meter , 207 Ill. 2d at 377, 278 Ill.Dec. 555, 799 N.E.2d 273. Our review of a section 2-619 dismissal is de novo. Id. at 368, 278 Ill.Dec. 555, 799 N.E.2d 273.

¶ 12 B. Tort Immunity Act

¶ 13 Section 2-202 of the Act 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 2020). The Act further provides 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." Id. § 2-109. A police officer is "executing" or "enforcing" a law, within the meaning of section 2-202, when he is engaged in an investigation in order to enforce traffic laws. Fitzpatrick v. City of Chicago , 112 Ill. 2d 211, 220-22, 97 Ill.Dec. 419, 492 N.E.2d 1292 (1986). There is no dispute here that Schultz and Warren were public employees within the meaning of the Act. See 745 ILCS 10/2-202 (West 2020). Nor is there any dispute that Schultz was engaged in the enforcement of the law in attempting to stop the vehicle that Lopez was driving. Thus, for plaintiff to survive the section 2-619 motion to dismiss, she must establish at least a genuine issue of material fact as to whether Schultz's conduct in attempting to stop Lopez was willful and wanton. See Urban v. Village of Lincolnshire , 272 Ill. App. 3d 1087, 1093-94, 209 Ill.Dec. 505, 651 N.E.2d 683 (1995).

¶ 14 The Act defines willful and wanton conduct as "a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property." 745 ILCS 10/1-210 (West 2020) ; see Vilardo v. Barrington Community School District 220 , 406 Ill. App. 3d 713, 723-24, 346 Ill.Dec. 699, 941 N.E.2d 257 (2010). In an action for willful and wanton conduct, the plaintiff must establish (1) the existence of a duty, (2) a breach of that duty, and (3) an injury proximately resulting from that breach. Urban , 272 Ill. App. 3d at 1094, 209 Ill.Dec. 505, 651 N.E.2d 683. Although whether conduct is willful and wanton is normally a question of fact for the jury, the court must first decide whether the plaintiff has alleged sufficient facts such that a jury could find willful and wanton conduct. Doe v. Calumet City , 161 Ill. 2d 374, 390, 204 Ill.Dec. 274, 641 N.E.2d 498 (1994). When a defendant raises tort immunity in a section 2-619 motion to dismiss, the court views the facts in the light most favorable to the plaintiff ( DeSmet v. County of Rock Island...