Romito v. City of Chi.

2019 IL App (1st) 181152

126 N.E.3d 671

430 Ill.Dec. 583

Marianne ROMITO, Plaintiff-Appellant,

v.CITY OF CHICAGO, a Municipal Corporation, and Sandra Leverett, Defendants-Appellees.

No. 1-18-1152

Appellate Court of Illinois, First District, FIFTH DIVISION.

Filing Date March 29, 2019

Tim Biasiello, of Park Ridge, for appellant.

Edward N. Siskel, Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and Kerrie Maloney Laytin, Assistant Corporation Counsel, of counsel), for appellees.

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

¶ 1 On January 23, 2013, plaintiff Marianne Romito filed a two-count negligence complaint against defendants City of Chicago (City) and Chicago Police Officer Sandra Leverett for injuries she sustained after rear ending a double-parked, marked Chicago Police Department vehicle on January 1, 2013. Plaintiff subsequently amended the complaint to include two counts of willful and wanton conduct in February 2018; however those counts were dismissed with prejudice on defendants' motion on February 26, 2018. Defendants then filed a motion for summary judgment on plaintiff's remaining negligence counts based on immunity. After initially denying defendants' motion for summary judgment on the belief that the willful and wanton counts of plaintiff's complaint were set for trial, the trial court granted defendants' motion for reconsideration and entered summary judgment on the remaining negligence counts of plaintiff's first amended complaint.

¶ 2 After the trial court granted summary judgment in favor of defendants, it denied plaintiff's motion for reconsideration and her motion for leave to file a second amended complaint. Plaintiff appeals from an order of the circuit court of Cook County denying her motion to reconsider the grant of summary judgment to defendants and from the denial of leave to file a second amended complaint. On appeal, plaintiff contends that: the trial court abused its discretion in denying her leave to amend her complaint and the trial court erred in granting defendants' motion for summary judgment. For the reasons that follow, we affirm.

¶ 3 BACKGROUND

¶ 4 On January 23, 2013, plaintiff filed a two-count complaint for negligence in the circuit court of Cook County against the City and Chicago Police Officer Leverett. On March 1, 2013, defendants filed their answer to plaintiff's complaint, affirmative defenses and a counterclaim. In their answer, defendants denied that plaintiff accurately stated the duty owed to her; denied that it breached any duty and denied any allegations of negligence. The answer raised the affirmative defense that the City was not liable for any injury resulting from an act or omission of its employee where the employee was not liable and further that Leverett's acts or omissions as a City employee were not negligent. As such, the City was immune from liability under section 2-109 of the Local Government and Governmental Employees Tort Liability Act (Tort Liability Act). 745 ILCS 10/2-109 (West 2012). The answer raised the second affirmative defense that Leverett was not liable for her act or omission in the execution or enforcement of any law because her act or omission did not constitute willful or wanton misconduct. Thus, Leverett was immune from liability under section 2-202 of the Tort Liability Act. 745 ILCS 10/2-202 (West 2012). Additionally, defendants raised the affirmative defense that they were not liable for plaintiff's own negligence which contributed in whole or in part to the injury that she claimed. Defendants also filed a counterclaim for property damage against plaintiff, seeking $ 4577.55 as reimbursement for the repair costs to the police vehicle damaged in the collision. Defendants' counterclaim was voluntarily dismissed on November 1, 2016.

¶ 5 On January 29, 2018, defendants were granted leave to file a dispositive motion and plaintiff was granted leave to amend her "most recent" complaint. On February 5, 2018, plaintiff filed her first amended complaint, which contained two counts of negligence, similar to those alleged in plaintiff's original complaint, and two counts of willful and wanton conduct.

¶ 6 Count I of the first amended complaint alleged that on January 1, 2013, plaintiff was operating her vehicle westbound on Foster Avenue near 6836 West Foster in Chicago when she collided with a Chicago police vehicle operated by defendant Leverett. Leverett was dispatched to respond to a domestic call at 6836 West Foster and arrived at approximately 5:39 a.m.; Leverett never activated any audible or visual emergency lights on the police vehicle; she double-parked the police vehicle in the westbound lane of Foster; Leverett found no threat or emergency situation and was performing routine patrol duties. Plaintiff alleged that the police vehicle did not have its mars or other lights on prior to or during the collision, thus she had insufficient warning that the police vehicle was there and was unable to stop in time to avoid a collision with that vehicle. According to the allegation, Leverett carelessly and negligently failed to exercise ordinary care in the operation of the police vehicle in that she failed to safely park the vehicle and instead obstructed traffic; failed to engage headlights or taillights; violated Chicago Police Department general and special orders regarding the safe operation of a police vehicle and failed to operate said vehicle in a reasonably safe manner so as not to cause injury to plaintiff. As a result, plaintiff was injured and sought damages in excess of $ 50,000 from Leverett.

¶ 7 Count II of the first amended complaint alleged similar theories of negligence against the City. Count II alleged that Leverett was an agent, servant and/or employee of the City and was operating said vehicle in the course and scope of such agency, servitude or employment. As a result, plaintiff was injured and sought damages in excess of $ 50,000 from the City.

¶ 8 Count III alleged that Leverett intentionally and/or recklessly: failed to park her vehicle at the edge of the roadway and thus obstructed traffic; failed to engage headlights or taillights; violated Chicago Police Department general and special orders regarding operating a police vehicle safely; double-parked her police vehicle in the single, westbound lane of traffic; failed to activate emergency lights or siren while double-parked; allowed the unattended police vehicle to remain double-parked without lights activated after any threat related to the domestic call was extinguished; and allowed the vehicle to remain double-parked while Officer Burg completed his report. In Count IV against the City, plaintiff made similar allegations as in Count III but through Leverett, as an employee, agent or servant of the City.

¶ 9 On February 23, 2018, defendants filed a motion to dismiss Counts III and IV of plaintiff's first amended complaint. Defendants initially noted that plaintiff was only given leave to amend her "most recent complaint to add more facts," not to add new, additional counts. Defendants accordingly requested that the two new counts (Counts III and IV) be stricken. Alternately, defendants contended that Counts III and IV should be dismissed because they did not support willful and wanton conduct on their face and instead simply repeated the allegations of Counts I and II (negligence). The record does not indicate that plaintiff filed a response to defendants' motion, and the motion to dismiss was granted on February 26, 2018.¹

¶ 10 On March 15, 2018, defendants filed a motion for summary judgment on plaintiff's remaining Counts I and II of the first amended complaint. Defendants alleged that they were immune under the Tort Liability Act, namely sections 10/2-109, 10/2-202, and 10/4-102. 745 ILCS 10/2-109, 2-202, 4-102 (West 2018). Defendants contended that Leverett was in the course of a domestic violence call and executing and enforcing the law at the time of the collision. Defendants noted that under section 60/303 of the Domestic Violence Act, completing a written police report is included as part of the duties of a police officer investigating a domestic violence incident, and is not routine patrol work as plaintiff alleged. 750 ILCS 60/303 (West 2018). As such, defendants claimed immunity under sections 2-109 and 2-202 of the Tort Liability Act. See 745 ILCS 10/2-109, 2-202 (West 2018). Additionally, defendants claimed immunity under the blanket provisions of section 4-102 of the Tort Liability Act ( 745 ILCS 10/4-102 (West 2018) ) because Leverett was providing a police service before and at the time of the accident by completing the required reports under the Domestic Violence Act. Defendants also contended that summary judgment was warranted because they did not proximately cause plaintiff's injuries; rather they were the result of plaintiff's own actions or inactions. They noted that plaintiff's failure to perceive the visible, white police vehicle with reflective materials under the streetlights and the light from her headlights was the proximate cause of the accident. Thus, defendants contended that there was no genuine issue of material fact as to whether any action by Leverett or the City caused the accident and plaintiff's injuries.

¶ 11 Plaintiff responded that defendants should not be immunized because the emergency had already concluded at the time of the accident.

¶ 12 On May 3, 2018, a hearing was held on defendants' motion. At the hearing, plaintiff argued that there was an issue of fact as to whether Leverett and her partner were actively executing or enforcing a law at the time of the accident. Plaintiff equated the requirement that police fill out paperwork after a domestic violence call to filling out a missing person's report because the perpetrator was unknown. Defendants responded that there was no emergency requirement in section 2-202 of the Tort Immunity Act, which covers their course of...