*1 Deceased, BOSEN, Rupp, Ex’r of Estate of Hermann EDWARD J. COLLINSVILLE, Defendant-Appel Plaintiff-Appellee, THE CITY OF lant. Fifth District No. 5 - 86-0217 September EARNS, P.J., dissenting. Blaine, (David Dugan, of Alton Carter, Schrempf &
Coppinger, counsel), appellant. Cain, counsel), appel- Cain, (Richard R.
Cadagin & lee. of the court: delivered
JUSTICE KASSERMAN en- sitting jury without The circuit court Collinsville, defendant, lia- City of it which found tered of a negligent operation of Hermann ble to the estate officers. city’s police of the by one motor vehicle be held liable asserting the instant cannot perfected appeal, Plaintiff has filed a for the mere of the officer. the city’s police in which he contends that the actions of officer constituted misconduct rather than negligence. appeal Since our determination on the merits of each and Gov dependent of the Local Governmental upon applicability *2 ernmental Tort Act ch. Employees Immunity seq.), 1—101 we will discuss this matter first. par. et time a It is at the of the accident the was city undisputed Associa League Management member of the Illinois Risk Municipal (IMLRMA). Antiporek Village tion Hillside the Intergov our court held that supreme Management (IRMA), apparently ernmental Risk which is Agency IMLRMA, identical the self-insurance and does not pooled sub ject its to the of those immunities Ill. Rev. (see members waiver Stat. the par. 103(c)) granted municipalities by Local and Employees Immunity Governmental Governmental Tort 251-52, Act. 2d at (Antiporek, 1309.) Ill. 499 N.E.2d at Conse quently, the can be held if the instant accident re sulted from the officer’s and See police wanton conduct. 2—202. pars. 2—
The facts pertinent this determination are as follow: On Satur- 3, 1983, day, a.m., December at 9:55 officer Robert Vecchetti was in his marked car to a resi- dispatched squad private dence a burglar sounding. where alarm Vecchetti was aware that was this particular residence had sounded false alarms on six previously Street, He on then separate proceeded occasions. south Vandalia turned and on with his right proceeded west Street Clay activated, using the siren The traffic at this time fairly heavy and the was wet. Vecchetti testi- pavement fied that as he the at the intersection of approached three-way stop Streets, he and no more than Clay Hesperia 15 miles hour. Less than 100 feet before he reached the intersec- per tion, the proceed through Vecchetti noticed a red Falcon automobile tried to Hesperia. Although intersection southbound on Vecchetti intersection, striking he slid into the stop, through stop sign, left The of the collision panel impact rear of the red Falcon. quarter driver, red Hermann onto Rupp, partially forced the Falcon with its intersection, causing injuries at the corner of the curb southwest damage to Mr. to his automobile. regarding speed.
Two testified Vecchetti’s rate eyewitnesses ve- impact Mark Kaiser testified that while at the time of Vecchetti’s hour, he estimated per to 20 miles travelling at 15 hide was to be 50 from the intersection at 350 feet speed Vecchetti’s vehi- Vecchetti’s testified that when hour. Harold Schotter per miles collision, Vecchetti from the one block approximately cle went himby related that shortly hour. Schotter 30 to 40 miles travelling per Kaiser went on. Both lights brake Vecchetti’s passed, Vecchetti on flashing lights the emergency testified and Schotter Clay The limit on Vecchetti’s vehicle 25 miles hour. per Street was apparently determine the of the trial court to province
It is within the given. is to be testimony their weight credibility witnesses the trial has a to reverse A court reviewing manifest that the court where determines determination, reviewing this making evidence. In weight of the inferences at trial and the introduced the evidence court must view prevailing party. to the most favorable light drawn therefrom 368, 370-71, 413 N.E.2d (Sorenson v. Fio Rito (1980), claim, an action for to an In contrast 50-51.) showing injury requires wilful and dis exhibiting under circumstances or intentionally caused Mooningham (1986), Hough of others. 1018, 1021, 487 N.E.2d *3 agreed trial court that Vecchetti while the In the instant case to for the colli limit in excess of the driving not actions, did although negligent, sion, that Vecchetti’s it found misconduct. and wilful constitute wanton in the trial court erred cross-appeal in his
Plaintiff asserts and wan- not of wilful guilty employee finding that defendant’s Vecchetti, re- while The evidence establishes ton misconduct. had his emer- in may progress, be burglary a call that sponding using his siren activated and was gency into proceeding notice the Moreover, Vecchetti did therefore We try did avoid and Vecchetti intersection to the level of wanton not rise actions did that Vecchetti’s conclude urged as by plaintiff. and wilful County of the circuit court Therefore, . judgment only of guilty that Officer Vecchetti finding in sought plain- the relief and, a consequence, as was not erroneous of such However, judgment that portion is denied. tiff’s con- negligent for the the defendant liability against assessing therefore, erroneous; such duct of Officer Vecchetti reversed. reasons,
For of the circuit court of foregoing is re- plaintiff Madison in favor of defendant versed.
Reversed.
LEWIS*, J., concurs. EARNS,
PRESIDING JUSTICE dissenting: of 205(e) 907(b) Sections the Illinois Vehicle Code 11— 11— (Ill. 95%, are ex pars. 205(e), 907(b)) 11— 11— press enactments that as establish the standard of care the operation of vehicles by police officers. 205(e) provides:
Section 11— “(e) The foregoing provisions do not the driver of an relieve authorized emergency vehicle from the of with duty due of safety persons, all nor do such provisions the driver protect from of his disre- consequences for gard of safety others.”
Section 907(b) provides: 11— “(b) This Section shall not operate to of an relieve driver
authorized emergency vehicle from drive with due regard for the of all persons using the highway.” In Mayfield v. City Springfield 3d of 432 N.E.2d Bouhl v. Smith (1985), 475 N.E.2d it was held the ordinary negligence standard applies of operators emergency vehicles. City from would be immune liability the provision section 2—109 the Local Governmental
and Governmental Employees Tort Immunity Act 85, par. 109), which provides that a “local public entity is not injury resulting an from act or omission of its em ployee where the employee is not as liable.” Inasmuch the officer is not immune from liability negligence, not ordinary City im mune. surface, On the Thompson City Chicago (1985), 484 N.E.2d and Fitzpatrick City Chicago (1986), 1292, might seem to require contrary hold *4 however,
ing; operation neither involves * Jones, replaces Justice Lewis Justice who retired cause was taken under advisement. Thompson,
on the In the vehicle used highways. being public in Chi gate Amphitheater crowd at the International control near a Fitzpatrick, cago parked minor the vehicle was prevent riot. instances, in a at of an accident. In both the officers median the scene act the law.” “enforcing par. 2—202. STEIN, Cross- Petitioner-Appellant and
In re HAZEL C. MARRIAGE OF STEIN, Cross-Appellant.— Respondent-Appellee and Appellee, JAY STEIN, Ap STEIN, Cross-Appellee, v. JAY W. Appellant HAZEL C. pellee Cross-Appellant. 3-87-0213, - 0245 cons.
Third Nos. District 3-87 19, 1988. Rehearing April denied February and reissued withdrawn This Supreme order unpublished as an n Court Court, Appellate by Rule 23 District, 23,1988. on May Third