2019 IL App (1st) 181152
Ill. App. Ct.2019Background
- On Jan. 1, 2013 Marianne Romito rear-ended a double-parked, marked Chicago Police Department vehicle driven by Officer Sandra Leverett; Romito sued the City and Leverett.
- Romito originally pleaded negligence; she later added willful-and-wanton counts in a first amended complaint (Feb. 2018). The willful-and-wanton counts (III & IV) were dismissed on defendants’ motion (Feb. 26, 2018).
- Defendants moved for summary judgment on the remaining negligence counts (I & II), asserting immunity under the Tort Immunity Act (sections 2-202 and 2-109) and section 4-102, because Leverett was responding to a domestic violence call and completing required reports.
- The trial court initially denied summary judgment (May 3, 2018) but, on reconsideration after recognizing the dismissal of counts III & IV, granted summary judgment for defendants (May 8, 2018), finding Leverett was engaged in a course of conduct executing/enforcing the law.
- Romito moved (postjudgment) for leave to file a second amended complaint to reassert willful-and-wanton counts; the trial court denied leave. Romito appealed both the denial to amend and the grant of summary judgment.
- The appellate court affirmed: (1) denial of leave to amend was not shown to be an abuse of discretion (record incomplete and proposed willful-and-wanton allegations insufficient), and (2) summary judgment was proper because Leverett was engaged in a course of conduct executing the law (Domestic Violence Act duties), so she and the City were immune.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court abused discretion in denying leave to file a second amended complaint after summary judgment | Romito: dismissal of willful-and-wanton counts left room to amend; new complaint would cure defects and not prejudice defendants | City/Leverett: amendment filed after final judgment; prior opportunity to amend existed; proposed counts mirror dismissed allegations and fail to state willful-and-wanton conduct | Denial affirmed — record shows no abuse of discretion; appellant failed to provide hearing record and proposed counts did not allege the requisite conscious indifference or intent |
| Whether defendants were immune under the Tort Immunity Act (sections 2-202 and 2-109) at time of collision | Romito: immunity does not extend to post-emergency paperwork; officers had completed emergency response and were performing routine patrol work | City/Leverett: responding to domestic violence call included completing statutory reports (Domestic Violence Act §§303, 304), so officers remained in course of executing/enforcing law and are immune | Grant of summary judgment affirmed — evidence showed officers were completing statutory duties as part of a course of conduct enforcing law, so immunity applied |
| Whether Romito may invoke Domestic Violence Act §305 (good-faith standard) instead of Tort Immunity Act on appeal | Romito (for first time on appeal): immunity should be analyzed under §305 requiring good faith | Defendants: issue not raised in trial court; cannot be raised first on appeal | Argument waived — appellate court declined to consider new statute-based theory raised for first time on appeal |
| Whether the proposed second amended complaint sufficiently pleaded willful-and-wanton conduct | Romito: amended pleadings substituted “intentionally and/or recklessly” for negligence allegations to allege willful-and-wanton conduct | Defendants: allegations mirror negligence counts and do not show deliberate intent or conscious disregard | Court: proposed allegations insufficient; willful-and-wanton requires deliberate intent or utter indifference — allegations did not meet that threshold |
Key Cases Cited
- Fitzpatrick v. City of Chicago, 112 Ill. 2d 211 (Ill. 1986) (enforcing the principle that executing/enforcing a law is often a course of conduct for immunity analysis)
- Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494 (Ill. 1967) (standard for directed verdict where evidence overwhelmingly favors one party)
- Foutch v. O'Bryant, 99 Ill. 2d 389 (Ill. 1984) (appellant bears burden to provide adequate record; absent record, trial court's ruling presumed correct)
- Loyola Academy v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263 (Ill. 1992) (factors to consider for amendment of pleadings after summary judgment)
- Hayes Mechanical, Inc. v. First Industrial, L.P., 351 Ill. App. 3d 1 (Ill. App. Ct.) (standard for showing abuse of discretion when seeking leave to amend)
- Barnard v. City of Chicago Heights, 295 Ill. App. 3d 514 (Ill. App. Ct.) (summary judgment review is de novo; view evidence in light most favorable to nonmoving party)