2013 IL App (1st) 123653
Fifth Division November 22, 2013
No. 1-12-3653
DOMINIQUE BETTS, ) Appeal from the Circuit Court ) of Cook County Plaintiff-Appellant, ) ) v. ) ) 11 M1 303194 THE CITY OF CHICAGO, a Municipal Corporation, and ) DARRELL SMITH, ) ) Honorable Defendants-Appellees. ) James E. Snyder, ) Judge Presiding.
JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justices Palmer and Taylor concurred in the judgment and opinion.
OPINION
¶ 1 Plaintiff Dominique Betts appeals the trial court's order dismissing her complaint filed
against defendants, the City of Chicago and Darrell Smith, alleging negligence in a car accident
in which Smith, a Chicago police officer, backed into plaintiff's vehicle and caused injury to
plaintiff. On appeal, Betts argues that the trial court erred in dismissing her complaint because
the record does not support defendants' assertion of immunity under the Local Governmental and
Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1-101 et seq.
(West 2010)) and she was denied her right to discovery and due process.
¶ 2 In December 2011, plaintiff filed her negligence complaint against defendants. The
complaint alleged that on or about December 4, 2010, plaintiff was operating a motor vehicle that
was parked facing east on Congress, at or near its intersection with Kostner, in Chicago. Smith
"was operating a motor vehicle in an easterly direction on the aforesaid Congress and backed into 1-12-3653
the Plaintiff's vehicle." At the time of the accident, Smith was operating the vehicle as an agent,
servant and employee of the City of Chicago. Plaintiff alleged that defendants had a duty to
exercise ordinary care in the operation of the vehicle to avoid injury to plaintiff. As a direct and
proximate result of defendants' negligence, plaintiff was injured and suffered damages of a
personal and pecuniary nature. Plaintiff sought damages not in excess of $9,950, plus the costs
of the suit.
¶ 3 In February 2012, defendants filed a motion to dismiss the complaint pursuant to section
2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2010)). The motion
was set for hearing on March 13, 2012, but when plaintiff's attorney did not appear at a March 6
status hearing, the trial court dismissed the case for want of prosecution. Plaintiff subsequently
filed a motion to vacate the dismissal, which the trial court granted.
¶ 4 In April 2012, defendants renoticed their motion to dismiss the complaint. The motion
asserted that defendants were immune from the alleged negligence under sections 2-202 and 2-
109 of the Tort Immunity Act (745 ILCS 10/2-202, 2-109 (West 2010)). Section 2-202 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 2010). Section 2-109 states 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." 745 ILCS 10/2-109
(West 2010). According to defendants, Smith was executing the law at the time of the accident
because he was an on duty police officer assisting with a narcotics surveillance. If Smith was not
liable, then the city cannot be liable. Defendants attached an affidavit from Smith to the motion.
In the affidavit, Smith stated:
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"1. I have personal knowledge of the facts contained in this
affidavit.
2. At the time of the accident in question on December 4,
2010, I was on duty with the City of Chicago Police Department,
acting within the scope of my duties as a City of Chicago police
officer.
3. At the time of the accident, I was on duty as an
undercover surveillance officer in a narcotics transaction.
4. If sworn to testify, I would testify as above."
¶ 5 The motion was set for a hearing on July 10, 2012. The trial court allowed plaintiff to
propound five interrogatories on the question of whether the officer was within the "scope of
duties." Defendants filed their answers to plaintiff's interrogatories on June 7, 2012.
¶ 6 Plaintiff filed a response to the motion to dismiss, contending that at the time of the
accident, Smith "had not yet begun to execute or enforce any law but was merely on his way to
take over for the team engaged in the investigation" and, thus, defendants were not entitled to
immunity under the Tort Immunity Act. Defendants filed a reply, maintaining that Smith was
acting in a course of conduct aimed at enforcing drug laws.
¶ 7 On July 10, 2012, the trial court granted defendants' motion to dismiss. On July 25, 2012,
plaintiff filed a motion to vacate the ex parte order of July 10, 2010 and for rehearing. According
to the motion, plaintiff's attorney did not appear at the hearing on July 10 because his diary clerk
incorrectly recorded the date of the hearing. In August 2012, the trial court vacated the dismissal
order and defendants' motion to dismiss was rescheduled. On September 25, 2012, the trial court
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denied defendants' motion and gave defendants 14 days to correct defects in the answer to
interrogatories and plaintiff was given leave to amend her complaint within 28 days.
¶ 8 On October 2, 2012, defendants filed the corrected answers to interrogatories. The
answers are substantially the same, except the answers were now drafted in the first-person for
Officer Smith and the certification was corrected to name Smith. The corrected interrogatories
and answers provided the following:
"1. Describe in detail the police action you were taking on
December 4, 2010 when you placed your automobile in reverse at
approximately 1:00 p.m. and collided with Plaintiff Dominique
Betts' vehicle.
I was conducting surveillance pursuant to a narcotics
investigation. Our team was following the target northbound on
Kostner and I was preparing to do a 'take-away', moving out of my
parking spot to turn northbound onto Kostner and take over for the
surveillance team. I had been waiting for approximately ten
minutes and received a communication from the Nextel Direct
Connect system to take over the surveillance. As I left my parking
spot on Congress Parkway, I backed into plaintiff's vehicle.
We had identified the target from previous undercover drug
buys from the target or his associates. The target was part of a
group that was under investigation for distributing narcotics.
2. Identify your destination by name and address had the
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collision with Plaintiff Dominique Betts' vehicle not occurred.
I was on my way to take over surveillance by following the
target, meeting up with my team by turning northbound onto
Kostner. In my experience, the time period spent following a
target varies and can last as long as several hours.
3. Describe by RD number and name of defendant any
arrests made as a result of surveillance allegedly undertaken
immediately before your collision with Plaintiff Dominique Betts'
vehicle.
The RD number for this investigation is HS 645892. The
RD number was marked confidential, meaning that the
investigation was still ongoing at the time of the accident.
4. Describe all items of food in Defendant's vehicle at the
time of the collision with Plaintiff Dominique Betts' vehicle.
I do not recall having any items of food inside my vehicle at
the time of the collision.
5. Describe any reprimands received by Officer Darrell
Smith as a result of the occurrence with Plaintiff Dominique Betts'
vehicle and state and describe the general order Defendant Darrell
Smith was to follow before placing his automobile in reverse on
December 4, 2010.
I did not receive any official reprimand. Because this was
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my only accident that year, I only received a verbal warning from
Sergeant Mostek, Star #1058.
My assignment for the day was to act as part of a
surveillance team for the group of targets suspected of distributing
narcotics in the vicinity of Kostner and Fifth Avenue. The plan
was to observe the target in order to ascertain where he was
purchasing narcotics from and to use that information in
preparation for a planned uncover [sic] drug buy from the target,
meant to take place later that day."
¶ 9 Also in October 2012, defendants filed a motion to dismiss plaintiff's complaint. This
motion stated that it was pursuant to section 2-615(d) of the Code of Civil Procedure (735 ILCS
5/2-615(d) (West 2010)), but made the same arguments as the previous motions to dismiss. On
November 14, 2012, the trial court entered an order granting plaintiff's motion and dismissing
plaintiff's complaint with prejudice.
¶ 10 This appeal followed.
¶ 11 Plaintiff argues that the trial court erred in granting defendants' motion and dismissing the
complaint with prejudice because the record does not support defendants' claims for immunity
under the Tort Immunity Act.
¶ 12 First, we note that defendants' motion stated that it was brought pursuant to section 2-615,
which "challenges only the legal sufficiency of a complaint and alleges only defects on the face
of the complaint." Sandholm v. Kuecker, 2012 IL 111443, ¶ 54. "A motion to dismiss based on
the immunity conferred by the Act, however, is more appropriately raised in a section 2-619(a)(9)
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motion, which allows for dismissal when the claim asserted against the defendant is 'barred by
other affirmative matter avoiding the legal effect of or defeating the claim' (735 ILCS 5/2-
619(a)(9) (West 2008))." Id. We point out that defendants' previous motions to dismiss had
been filed under section 2-619(a)(9) and the motion at issue made the same substantive
arguments as the previous motions. Since the substance of the motion, rather than the label,
determines what the motion is, we will consider defendants' motion to dismiss under section 2-
619(a)(9). See id.; Loman v. Freeman, 375 Ill. App. 3d 445, 448 (2006).
¶ 13 When ruling on the motion to dismiss, the trial court "should construe the pleadings and
supporting documents in the light most favorable to the nonmoving party" and "accept as true all
well-pleaded facts in plaintiff's complaint and all inferences that may reasonably be drawn in
plaintiff's favor." Sandholm, 2012 IL 111443, ¶ 55. "The question on appeal is 'whether the
existence of a genuine issue of material fact should have precluded the dismissal or, absent such
an issue of fact, whether dismissal is proper as a matter of law.' " Id. (quoting Kedzie & 103rd
Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116-17 (1993)). We review the section 2-619
dismissal of a complaint de novo. Sandholm, 2012 IL 111443, ¶ 55.
¶ 14 A motion for involuntary dismissal pursuant to section 2-619(a) admits the legal
sufficiency of the complaint, but raises defects, defenses, or other affirmative matter which
avoids the legal effect or defeats a plaintiff's claim. 735 ILCS 5/2-619(a) (West 2010). An
"affirmative matter" under section 2-619(a)(9) is "something in the nature of a defense that
negates the cause of action completely or refutes crucial conclusions of law or conclusions of
material fact contained in or inferred from the complaint." In re Estate of Schlenker, 209 Ill. 2d
456, 461 (2004). "Once a defendant satisfies the initial burden of presenting affirmative matter,
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the burden then shifts to the plaintiff to establish that the defense is 'unfounded or requires the
resolution of an essential element of material fact before it is proven.' " Reilly v. Wyeth, 377 Ill.
App. 3d 20, 36 (2007) (quoting Kedzie & 103rd Currency Exchange, Inc., 156 Ill. 2d at 116).
¶ 15 Affidavits in support of motions to dismiss under section 2-619 are controlled by Illinois
Supreme Court Rule 191 (eff. July 1, 2002). Rule 191(a) provides that affidavits submitted in
connection with a motion for involuntary dismissal "shall be made on the personal knowledge of
the affiants; shall set forth with particularity the facts upon which the claim, counterclaim, or
defense is based; shall have attached thereto sworn or certified copies of all papers upon which
the affiant relies; shall not consist of conclusions but of facts admissible in evidence; and shall
affirmatively show that the affiant, if sworn as a witness, can testify competently thereto." Ill. S.
Ct. R. 191(a) (eff. July 1, 2002).
¶ 16 Plaintiff argues that the record does not support the order dismissing her case because
answers to the interrogatories and Smith's affidavit did not clearly establish that Smith was
executing or enforcing the law at the time of the accident, as required under section 2-202 of the
Tort Immunity Act. Plaintiff also contends that she should have been allowed to conduct a
limited deposition of Smith to more fully detail the circumstances at the time of accident.
¶ 17 As we previously noted, section 2-202 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 2010)) and section 2-109
states 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" (745 ILCS 10/2-109 (West 2010)). Betts'
complaint does not include any allegations of willful and wanton conduct; therefore, our review
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is limited to whether defendants are immune for their alleged negligent conduct.
¶ 18 Illinois courts have held that the Tort Immunity Act " 'is in derogation of the common law
action against local public entities, and must be strictly construed against the public entity
involved.' " Hudson v. City of Chicago, 378 Ill. App. 3d 373, 388 (2007) (quoting Aikens v.
Morris, 145 Ill. 2d 273, 278 (1991)). "The immunity provided by section 2-202 does not extend
to all activities of police officers while on duty, but only to acts or omissions while in the actual
execution or enforcement of a law." Id. "The question of whether a police officer is executing
and enforcing the law is a factual determination which must be made in light of the
circumstances involved in each case." Id. "The words 'in execution or enforcement of any laws'
must be given their 'plain and commonly ascribed meaning.' " Stehlik v. Village of Orland Park,
2012 IL App (1st) 091278, ¶ 19 (quoting Thompson v. City of Chicago, 108 Ill. 2d 429, 433
(1985)). "However, where the evidence is undisputed or susceptible to only one possible
interpretation, the question may be decided as a matter of law." Hudson, 378 Ill. App. 3d at 388.
¶ 19 The supreme court has found that "[e]nforcing the law is rarely a single, discrete act, but
is instead a course of conduct." Thompson, 108 Ill. 2d at 433. "Therefore, where the evidence
establishes a police officer was engaged 'in a course of conduct designed to carry out or put into
effect any law' at the time his alleged negligence occurred, sections 2-202 and 2-109 of the Act
provide an affirmative defense to the officer and his employer." Stehlik, 2012 IL App (1st)
091278, ¶ 20 (quoting Fitzpatrick v. City of Chicago, 112 Ill. 2d 211, 221 (1986)). "[V]irtually
every police function or duty is pursuant to some legal authorization in the broadest sense.
Arguably, then the performance of any task while on duty is in enforcement or execution of the
law. We do not believe, however, as we have previously stated, that the legislature intended such
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a result." (Citation omitted.) Aikens v. Morris, 145 Ill. 2d 273, 286 (1991).
¶ 20 Illinois courts have explored whether an officer was executing or enforcing the law, as
required for immunity under section 2-202. These courts have concluded that the officer in
question was immune when he was investigating a traffic accident (see Fitzpatrick v. City of
Chicago, 112 Ill. 2d 211, 221 (1986)), responding to a radio report of a crime in progress (see
Morris v. City of Chicago, 130 Ill. App. 3d 740, 744 (1985)), responding to a call of shots fired
(see Bruecks v. County of Lake, 276 Ill. App. 3d 567, 569 (1995)), responding to a reported
burglary alarm (see Bosen v. City of Collinsville, 166 Ill. App. 3d 848, 849 (1987)), and escorting
a witness to a "showup" identification (see Stehlik, 2012 IL App (1st) 091278, ¶ 29).
¶ 21 In contrast, Illinois courts have declined to find that an officer was executing or enforcing
the law when transporting prisoners (see Aikens, 145 Ill. 2d at 286), responding to a call for a
missing person (see Simpson v. City of Chicago, 233 Ill. App. 3d 791, 792-93 (1992)),
investigating a crowd for suspected criminal activity (see Leaks v. City of Chicago, 238 Ill. App.
3d 12, 17-18 (1992)), responding to a radio call after the police dispatcher confirmed that
additional backup was not needed (see Sanders v. City of Chicago, 306 Ill. App. 3d 356, 361-62
(1999)), and attempting to offer unrequested assistance to a high-speed pursuit (see Hudson, 378
Ill. App. 3d at 392-93).
¶ 22 In Simpson, the police officer struck and injured a child while responding to a call about a
missing person. The trial court granted summary judgment after finding that immunity applied.
However, the reviewing court reversed, pointing out that the officer "did not consider the call an
emergency and there was no indication that any crime had been committed or that any law
required execution or enforcement." Simpson, 233 Ill. App. 3d at 793. The court concluded that
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"it is apparent that the fact that [the officer's] activities were governed by some legal requirement
is insufficient to raise them to the level of executing or enforcing the law." Simpson, 233 Ill.
App. 3d at 793.
¶ 23 In Leaks, the officer was on patrol when he encountered a large crowd and suspected they
might be engaged in narcotics transactions. When he backed up to investigate, he struck the
plaintiffs' vehicle. The trial court concluded that the officer was engaged in the enforcement of
the law at the time of the accident and that the plaintiffs could only recover if the jury found the
officer's conduct to be willful and wanton. The jury found in favor of the defendants. Leaks, 238
Ill. App. 3d at 14-15. On appeal, the reviewing court disagreed with the trial court's
determination that the officer was enforcing the law at the time of the accident. "It is undisputed
that [the officer] was not engaged in the execution or enforcement of a law while he was
routinely cruising the neighborhood." Leaks, 238 Ill. App. 3d at 17. The court found that there
was "absolutely no indication that [the officer] observed the exchange of any money or the
transfer of any drugs, or for that matter any crime at all." Leaks, 238 Ill. App. 3d at 17. The
reviewing court remanded for a trial on the negligence count. Leaks, 238 Ill. App. 3d at 18.
"Our holding, we stress, is not intended to establish a rule that facts
establishing that an actual crime or violation of law was taking
place must be shown to prevail upon the affirmative defense, or
that investigatory procedure may never bring police personnel
within the ambit of section 2-202. Rather, our holding is bottomed
upon defendants' failure to support their affirmative defense with
facts. At best, [the officer's] testimony was conclusory in nature as
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to suspected violation of state law or municipal ordinance." Leaks,
238 Ill. App. 3d at 17-18.
¶ 24 Here, the only evidence on the question of whether Smith was actually executing or
enforcing the law at the time of the accident is the answers to the interrogatories and Smith's
affidavit. We point out that Smith's affidavit partially consists of conclusions that he was acting
within the scope of his duties as a police officer as part of an undercover surveillance narcotics
investigation. The affidavit contains no additional facts. To the extent that the statements in the
affidavit violate Rule 191(a), we will disregard any inadmissible conclusory statements.
¶ 25 In comparison to the instant case, the cases referenced above were decided either at trial,
after a jury verdict (see Hudson, 378 Ill. App. 3d at 386; Fitzpatrick, 112 Ill. 2d at 215; Aikens,
145 Ill. 2d at 275), a bench trial (see Bosen, 166 Ill. App. 3d 848), or directed verdict (see Stehlik,
2012 IL App (1st) 091278, ¶ 12; Leaks, 238 Ill. App. 3d at 15; Morris, 130 Ill. App. 3d at 742),
or on a motion for summary judgment after depositions had been taken (see Simpson, 233 Ill.
App. 3d at 792; Bruecks, 276 Ill. App. 3d at 568; Sanders, 306 Ill. App. 3d at 359). None of the
cases were determined based on the evidence provided from the answers to interrogatories and an
¶ 26 In the interrogatories, Smith stated that on the day of the accident he was "to act as part of
a surveillance team for the group of targets suspected of distributing narcotics in the vicinity of
Kostner and Fifth Avenue." Smith explained that "[t]he plan was to observe the target in order to
ascertain where he was purchasing narcotics from and to use that information" for a future
undercover drug buy from the target. He had received a call to take over for the surveillance
team on Kostner and follow the target. Smith said that the target had been identified from
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previous undercover drug buys "from the target or his associates" and the target was under
investigation for distributing narcotics.
¶ 27 Smith's answers do not contain any details about any observations made by Smith or other
members of the surveillance team regarding the target, his associates or any narcotics activity.
There is no information as to whether Smith or the other members of the surveillance team had
actually observed the commission of a crime on that date or whether they were following the
target in hopes to see him engage in a narcotics transaction. Nor do we know where on Kostner
the surveillance team was when Smith was to join the team. The interrogatories generally state
that the team was traveling northbound. Similar to the situation in Leaks, defendants have not set
forth enough facts to make a determination as to whether immunity is applicable. There does not
appear to have been an immediate emergency, but the officers' plan was to follow the target to
gather information for a future drug purchase and arrest. The record does not disclose any details
about the investigation and Smith's involvement. At the time of the accident, he was waiting in
parked vehicle for a call to participate in the surveillance and upon backing out of the parking
space, he struck plaintiff's parked vehicle.
¶ 28 Plaintiff asserts in her brief that she requested the opportunity to conduct a limited
deposition of Smith, but the trial court denied her request and instead allowed the submission of
five interrogatories. Defendants do not contest that this request was made. We believe that a
limited deposition could disclose the circumstances of Smith's surveillance beyond the
conclusory statements in his interrogatories. We do not reach the ultimate question that
surveillance does not qualify as executing or enforcing the law. Rather, on the record before us,
we cannot make that determination at this stage and additional discovery would be helpful to
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develop the facts of this case.
¶ 29 After viewing this evidence in the light most favorable to plaintiff, Smith's account of his
conduct does not provide sufficient detail and is susceptible to more than one interpretation as to
whether he was actually executing or enforcing a law at the time of the accident. Because the
interrogatories consist mostly of legal conclusions and lack sufficient facts, the dismissal was not
appropriate at this stage. Since section 2-202 only applies to acts or omissions that occur while
in the execution or enforcement of a law (745 ILCS 10/2-202 (West 2010), we conclude that the
dismissal of plaintiff's complaint was premature at this point in the case and plaintiff should be
given the opportunity for additional discovery to determine whether section 2-202 is applicable.
Therefore, we reverse the trial court's order dismissing the complaint with prejudice and reinstate
plaintiff's complaint.
¶ 30 Since we have reversed the dismissal order, we need not reach plaintiff's additional
claims raised on appeal.
¶ 31 Based on the foregoing reasons, we reverse the decision of the circuit court of Cook
County and remand for further proceedings.
¶ 32 Reversed and remanded.