2020 IL App (1st) 190577-U
THIRD DIVISION March 4, 2020
No. 1-19-0577
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________
ERNEST DAGGS, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) ) PAN OCEANIC ENGINEERING COMPANY and ) ROBERT CUMMINGS, ) No. 17 L 13056 ) Defendants, ) ) (ROBERT CUMMINGS, ) Honorable ) Moira Johnson, Defendant-Appellee). ) Judge Presiding. _____________________________________________________________________________
JUSTICE McBRIDE delivered the judgment of the court. Justices Howse and Cobbs concurred in the judgment.
ORDER
¶1 Held: Where a factual issue existed as to whether the plaintiff police officer’s injuries arose out of, and in the course of, employment, the trial court’s section 2-619 dismissal of plaintiff’s claims against co-officer defendant was erroneous.
¶2 This appeal concerns the dismissal of claims of plaintiff, Ernest Daggs, a Chicago police
officer, against defendant, fellow officer, Robert Cummings, for injuries arising out of a 2017 car
accident. No. 1-19-0577
¶3 The record shows that plaintiff filed an initial complaint against North Shore Gas
Company and Pan Oceanic Engineering Company. Plaintiff alleged that on October 26, 2017, he
was injured when the vehicle in which he was a passenger traveled over “uneven defective
roadway” and fell into a hole on the 1200 block of East 83rd Street in Chicago. Plaintiff alleged
that the hole in the roadway was caused by North Shore Gas Company and Pan Oceanic
Engineering Company, who were performing work on the roadway at that location.
¶4 On February 21, 2018, plaintiff filed an amended complaint, substituting People’s Gas
Light and Coke Company for North Shore Gas Company, and adding claims against defendant.
Plaintiff alleged that at the time of the accident, defendant was driving the vehicle in which
plaintiff was a passenger. Plaintiff stated that defendant drove the vehicle over the “uneven and
defective roadway, causing his vehicle to crash into a hole in the roadway.” Plaintiff alleged that
defendant acted “[w]illfully, wantonly and recklessly” and “negligently” in operating the motor
vehicle.
¶5 On September 11, 2018, defendant filed a Motion to Dismiss the counts of the amended
complaint directed against him pursuant to section 2-619(a)(9) of the Code of Civil Procedure
(Code). Defendant stated that at “all relevant times, both [plaintiff] and [defendant] were acting
in the course and scope of their duties as Chicago Police Officers,” and that the “Pension Code
bars police officers from suing their fellow officers for injuries that arose out of and in the course
of their employment.” Defendant attached an affidavit, attesting that at the time of the accident,
he was “the driver of a marked Chicago Police Department vehicle in which [plaintiff] was a
passenger.” He further averred that, at that time, he and plaintiff were “on-duty police officers,
acting within the course and scope of [their] employment with the Chicago Police Department.”
He further stated that they had “just completed [their] lunch break” and were “coming from
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Track’s End Restaurant, 8538 S. Holland Rd., and traveling to meet [their] supervising officer,
Sergeant Gochee.” Cummings attested that plaintiff “told [him] that Sergeant Gochee wanted to
meet with [them]” and Cummings “began driving toward a location on Stony Island Avenue to
meet with Sergeant Gochee.” Both officers “were on [their] way to meet Sergeant Gochee at the
time of the subject occurrence.”
¶6 Plaintiff filed a response to defendant’s motion to dismiss on November 20, 2018.
Plaintiff argued the officers were not acting in the scope of their employment at the time of the
accident, and that the accident “was unrelated to their employment duties as police officers.”
Accordingly, plaintiff maintained that the Pension Code did not apply. Plaintiff attached an
affidavit in which he stated that at the time of the accident, the officers were “on [their] lunch
break” and had just finished eating at “Track’s End,” a restaurant “outside of the district [they]
worked in.” Plaintiff agreed that the officers were “on [their] way back [to their] district” and
were “going to meet [their] sergeant” in the third district. However, plaintiff maintained that, at
the time of the accident, he was “not in engaged in any activity that arose out of [his] Chicago
Police Department duties.” Plaintiff averred that the officers “were not on an emergency call,
*** had not been dispatched, *** had no specific assignments, *** were not engaged in any
investigation and *** were not on patrol.” Plaintiff further stated that it was “not an official
police activity to go to lunch. It [wa]s a break from police activities,” and officers were “free to
choose where [they] want to go to lunch.”
¶7 On February 22, 2019, the trial court entered a written order granting defendant’s Section
2-619 Motion to Dismiss the Amended Complaint against him, and dismissing the claims against
defendant with prejudice. In the written order, the court found that “Plaintiff should have filed a
Worker’s Compensation claim,” and that the “administrative agency must determine whether this
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incident occurred within the scope of employment.” The Court stated that “[w]ithout such a
determination, prior to filing this negligence action,” it was required to “grant the motion to
dismiss.” The court further found there was “no just reason to delay enforcement or appeal of
this judgment.”
¶8 Plaintiff filed a timely notice of appeal on March 19, 2019. Meanwhile, People’s Gas
Light and Coke Company was voluntarily dismissed from the case on October 1, 2018, pursuant
to an agreed order. Following the dismissal of the claims against defendant, plaintiff’s case
against Pan Oceanic Engineering Company continued in the trial court. This court has
jurisdiction over this appeal pursuant to Supreme Court Rule 304(a) (eff. Mar. 8, 2016).
¶9 In this court, plaintiff challenges the dismissal of his claims against defendant under
section 2-619 of the Code. A motion pursuant to section 2-619 of the Code admits the legal
sufficiency of the plaintiff’s complaint, but asserts an affirmative defense or other matter that
avoids or defeats the plaintiff’s claim. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156
Ill. 2d 112, 115 (1993); DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). 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. Zedella v. Gibson, 165 Ill. 2d 181, 185 (1995).
¶ 10 Specifically, section 2-619(a)(9) allows a defendant to move to dismiss on the basis that
the claim is barred by “other affirmative matter avoiding the legal effect of or defeating the
claim.” 735 ILCS 5/2-619(a)(9) (West 2016). The affirmative matter brought to the attention to
the court in a section 2-619 motion may be “something in the nature of a defense that completely
negates the cause of action or refutes crucial conclusions of law or conclusions of material fact
contained in or inferred from the complaint.” Golden v. Mullen, 295 Ill. App. 3d 865, 869
(1997). Our supreme court has emphasized, however, that the affirmative matter is not “merely
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evidence upon which defendant expects to contest an ultimate fact stated in the complaint.”
Smith v. Waukegan Park District, 231 Ill. 2d 111, 121 (2008), as modified on denial of reh'g
(Sept. 22, 2008). This court reviews the circuit court’s dismissal of a complaint pursuant to
Section 2-619 de novo. Evanston Insurance Co. v. Riseborough, 2014 IL 114271, ¶ 13.
¶ 11 In ruling on a section 2-619 motion to dismiss, the circuit court considers external
submissions of the parties, including affidavits. Lopez v. Clifford Law Offices, P.C., 362 Ill.
App. 3d 969, 974 (2005) (citing Zedella, 165 Ill. 2d at 185). The court construes the pleadings
and any supporting documentary evidence in the light most favorable to the nonmoving party.
Van Meter v. Darien Park District, 207 Ill. 2d 359, 367-68 (2003). When ruling on a section 2-
619 motion, the circuit court may, in its discretion, decide questions of fact, but cannot determine
disputed factual issues solely on affidavits and counter-affidavits. Hampton v. Chicago Transit
Authority, 2018 IL App (1st) 172074, ¶ 22, citing Consumer Electric Co. v. Cobelcomex, Inc.,
149 Ill. App. 3d 699, 703 (1986); see also Glass Specialty Co. v. Litwiller, 147 Ill. App. 3d 653,
655 (1986) (“Where conflicting affidavits in support of a section 2–619 motion are presented to a
trial court, the court has a duty either to hear other proof bearing on the material facts, or to deny
the motion without prejudice to the right of the defendant to raise the subject matter thereof by
answer. It is improper to simply weigh the conflicting affidavits.”). “If a cause of action is
dismissed during hearing on a section 2-619 motion on the pleadings and affidavits, the question
on appeal is whether there is a genuine issue of material fact and whether defendant is entitled to
judgment as a matter of law.” Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 494 (1994).
¶ 12 In this court, plaintiff contends that the court erred in dismissing the action against
defendant, because it erroneously determined that he should have filed a Workers’ Compensation
claim. Plaintiff also maintains that a determination of whether his injuries “arose out of and in
5 No. 1-19-0577
the course of employment” should have been made by the circuit court, rather than leaving the
adjudication of that issue to the Workers’ Compensation Commission. Accordingly, plaintiff
asks this court to reverse the granting of defendant’s motion to dismiss, and to remand the case
for further proceedings in which the circuit court can consider whether the officers were acting in
the course of employment at the time of the accident.
¶ 13 Defendant acknowledges that the trial court’s reasoning was erroneous, and that the
circuit court “could have and should have adjudicated the ‘scope of employment issue’ itself as a
matter of law.”
¶ 14 The fundamental purpose of the Illinois Workers’ Compensation Act is “to afford
protection to employees by providing them with prompt and equitable compensation for their
injuries.” Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 180-81 (1978). However, the express language
of the Workers’ Compensation Act provides that “any duly appointed member of a police
department in any city whose population exceeds 500,000 according to the last Federal or State
census” does not qualify as an employee covered by the Workers’ Compensation Act. 820 ILCS
305/1(b) (West 2016). Instead, police officers employed by municipalities with populations
exceeding 500,000 are covered by the “analogous” system “created for the compensation of
injured police officers under the Illinois Pension Code.” Sweeney v. City of Chicago, 131 Ill.
App. 2d 537, 542 (1971); see also McNamee v. Federated Equipment & Supply Co., Inc., 181 Ill.
2d 415, 424-25 (1998).
¶ 15 In this case, there is no question that plaintiff is a duly appointed member of the Chicago
Police Department, and that the population of Chicago exceeds 500,000. See Quick Facts, U.S.
Census Bureau, https://www.census.gov/quickfacts/chicagocityillinois (last visited Jan. 29,
2020); In re Marriage of Aud, 142 Ill. App. 3d 320, 325 (1986) (appellate court “may take
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judicial notice of census materials”); Lacny v. Police Board of the City of Chicago, 291 Ill. App.
3d 397, 403 (1997) (taking judicial notice that Chicago’s population is more than 500,000).
Accordingly, plaintiff is not an employee covered by the Workers’ Compensation Act, and the
trial court’s conclusion that plaintiff was required to file his claims under that Act was erroneous.
¶ 16 We also agree with the parties that the issue of whether the officers were acting within
the scope of their employment at the time of the accident “was for the Circuit Court to answer.”
“An employee is precluded from maintaining a common law action against a co-employee only
if the injured employee was ‘engaged in the line of his duty’ at the time the injury was
sustained.” Unger v. Continental Assurance Co., 107 Ill. 2d 79, 85 (1985). Courts assessing
common law actions brought in the circuit court have considered the question of whether an
employee was acting within the scope of employment before determining whether a remedy is
available in the circuit court, or only under the Workers’ Compensation Act or the Pension Code.
See, e.g., Mitsuuchi v. City of Chicago, 125 Ill. 2d 489, 497 (1988); Unger, 107 Ill. 2d at 81-84;
Lohman v. Bemis, 289 Ill. App. 3d 139, 140-42 (1997); Fligelman v. City of Chicago, 275 Ill.
App. 3d 1089, 1092-95 (1995). Likewise, here, the circuit court should have assessed whether
plaintiff’s claims against defendant arose out of or in the course of employment, and were thus
barred by the Pension Code.
¶ 17 Defendant, however, contends that the trial court’s errors are of no consequence because
this court can affirm on any basis supported by the record, pursuant to our de novo review.
Specifically, defendant asserts the circuit court properly dismissed the complaint because
plaintiff’s claims against him are barred by the Pension Code’s exclusivity provision, asking this
court to determine, as a matter of law, that plaintiff’s injuries arose out of, and in the course of,
employment. Plaintiff, however, maintains that the affidavits submitted by the parties illustrate
7 No. 1-19-0577
that issues of material fact exist regarding whether plaintiff’s injuries occurred in the scope of
employment, such that dismissing the complaint pursuant to section 2-619 was inappropriate.
Because a circuit court cannot determine disputed factual issues solely on affidavits and counter-
affidavits (Hampton, 2018 IL App (1st) 172074, ¶ 22) in dismissing a complaint pursuant to
section 2-619, we must determine whether there is any disputed factual issue that would preclude
dismissal.
¶ 18 Pursuant to the Illinois Pension Code:
“Whenever any city or village enacts an ordinance pursuant to this Division, no
common law right to recover damages against such city or village for injury or
death sustained by any policeman *** while engaged in the line of his duty ***
shall be available to any policeman *** who is covered by the provisions of such
ordinance.” 40 ILCS 5/22-307 (West 2016) (emphasis added).
Instead, an officer subject to the Pension Code who is “injured accidentally while in performance
of his duties *** is only entitled to receive compensation as provided under the Illinois Pension
Code and the Chicago Municipal Code.” Lohman, 289 Ill. App. 3d at 142.
¶ 19 As the plain language of the Pension Code makes clear, an officer is precluded from
maintaining a common law action against a co-officer only if the injured officer was “engaged in
the line of his duty” at the time the injury was sustained. 40 ILCS 5/22-307 (West 2016); see also
Unger, 107 Ill. 2d at 85.
¶ 20 The Act and the Code serve similar purposes, and courts properly use the Act to aid
interpretation of the Code. Mitsuuchi, 125 Ill. 2d at 493-93. Cases under the Act establish that an
employee is “engaged in the line of his duty” at the time of his injury if the injury arises both out
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of, and in the course of, the employment. Caterpillar Tractor Co. v. Industrial Commission
(1989), 129 Ill. 2d 52, 57.
¶ 21 An injury arises in the course of employment if the time, place and circumstances of the
injury show that the employee was engaged in the line of his duty when injured. Scheffler
Greenhouses, Inc. v. Industrial Commission, 66 Ill. 2d 361, 366 (1977); County of Cook v.
Industrial Commission, 165 Ill. App. 3d 1005, 1007 (1988). The injury arises out of the
employment if a risk incidental to the employment led to the injury. Id., at 1009; see also
Sangster v. Keller, 226 Ill. App. 3d 535, 539 (1992) (“[A]n injury arises out of the employment if
the conditions or nature of the employment increase the employee’s risk of harm beyond that to
which the general public is exposed.”).
¶ 22 Whether an injury arises out of, and in the course of, the employment, is generally a
factual question. Aaron v. Industrial Commission, 59 Ill.2d 267, 269 (1974) (“The question of
whether an injury arose in the course of employment is a question of fact.”). “Generally
speaking, a deviation for purely personal reasons takes an employee out of the course of his
employment.” Johnson v. Illinois Workers’ Compensation Commission, 2011 IL App (2d)
100418WC, ¶ 24; see also Aaron v. Industrial Commission, 59 Ill. 2d 267, 269 (1974) (“[A]
personal deviation by an employee can break the link with his employment.”); C. Iber & Sons,
Inc. v. Industrial Commission, 81 Ill. 2d 130, 135; Archer Daniels Midland Co. v. Industrial
Commission, 91 Ill. 2d 210, 215 (1982); Checker Taxi Cab Co. v. Industrial Commission, 45 Ill.
2d 4, 6–7 (1970); Public Service Co. of Northern Illinois v. Industrial Commission, 395 Ill. 238,
242 (1946).
¶ 23 Particularly in cases where an employee is injured going to or from the place of
employment, or during a lunch break, whether the injury arises out of, and in the course of, the
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employment “will depend largely on the particular facts and circumstances of each case. There
must necessarily be a line beyond which the liability of the employer cannot not [sic] continue,
and the question where that line is to be drawn has been held to be usually one of fact.” Wabash
Ry. Co. v. Indus. Commission, 294 Ill. 119, 123 (1920); see also City of Springfield v. Industrial
Commission, 244 Ill. App. 3d 408, 410 (1993) (lunchtime injuries “can be characterized as
governed by the rules applicable to injuries suffered while going to or from work.”).
¶ 24 In general, “lunchtime injuries suffered away from the employer’s premises by
employees with fixed hours and places of employment and unpaid lunches, and who are not
engaged in employer errand running or other employment-related activity, are not compensable.”
Id.; see also Pearce v. Industrial Commission, 299 Ill. 161, 164 (1921) (“Ordinarily, where the
lunch period is not subject to the employer’s control or restricted in any way, and the employee
is free to go where he will at that time, if he is injured on the public street, off the premises of the
employer, the authorities hold that the injury does not arise out of the employment.”). However,
the guiding principle as to whether the injury is compensable is “whether ‘the employer, in all
the circumstances, including duration, shortness of the off-premises distance, and limitations on
off-premises activity during the intervals can be deemed to have retained authority over the
employee * * *.’ ” City of Springfield, 244 Ill. App. 3d at 410 (citing Lynch Special Services v.
Industrial Commission, 76 Ill. 2d 81, 90 (1979)).
¶ 25 Here, however, the circuit court never considered the question of whether the police
department had retained authority over the officers under the circumstances presented here.
Construing the pleadings and supporting affidavits in the light most favorable to plaintiff, as we
must at this juncture (Van Meter, 207 Ill. 2d at 367-68), we do not find the facts to so
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overwhelmingly support the conclusion that plaintiff’s injuries occurred out of, and in the course
of, employment, to allow this court to make that determination as a matter of law.
¶ 26 Instead, defendant’s arguments in favor of dismissal highlight a factual dispute
surrounding whether the officers were acting “in the scope of employment” at the time of the
accident. See Smith, 231 Ill. 2d at 121–22. Whether the exclusivity provision of the Pension
Code applies in this case depends on the resolution of that disputed question of fact. See id.;
Illinois Graphics Co., 159 Ill. 2d at 494 (the question on appeal of a dismissal pursuant to section
2-619 “is whether there is a genuine issue of material fact and whether defendant is entitled to
judgment as a matter of law.”); Hampton, 2018 IL App (1st) 172074, ¶ 22 (a court cannot
determine disputed factual issues solely on affidavits and counter-affidavits).
¶ 27 Defendant relies on two cases, Johnson and Springfield, to support his contention that the
officers were acting within the scope of their employment at the time of the accident. However,
we find those cases distinguishable from the case at bar.
¶ 28 In Johnson, 2011 IL App (2d) 100418WC, a deputy sheriff was injured in a car accident
after performing a personal errand outside of his patrol area. The Commission concluded that the
claimant’s injuries did not arise out of and in the course of his employment. Id., ¶ 29. The
appellate court’s Workers’ Compensation Division, however, concluded that the deputy sheriff
was acting in the course of employment, and was “no longer embarked upon a personal
deviation,” after he “received instructions from his dispatcher, prior to his injuries, directing him
to proceed to a specific location and assist a co-employee, and he was involved in the accident
while in route to that location.” Id., ¶ 25.
¶ 29 Similarly, in City of Springfield, 244 Ill. App. 3d 408, a police officer was injured in an
automobile accident while returning to the police station from lunch. Like here, the facts showed
11 No. 1-19-0577
that the officer was able to do whatever he wanted during his lunch break, and that he was not
responding to a call or emergency situation at the time of the accident. However, the facts in
Springfield also showed that the officer was assigned an unmarked police car for 24 hours per
day, that he was required to monitor the radio while using the car at all times, and that he was to
respond to any calls he received, even if he was off duty. The court noted that the officer “was
not only subject to being ‘on call’; he had his radio turned on and was ‘on call’ to the extent he
would have responded in the normal course to any request for assistance or emergency he
encountered.” City of Springfield, 244 Ill. App. 3d at 411. In those circumstances. the court
found that the Commission’s decision that the officer’s injury arose out of the scope of
employment was not against the manifest weight of the evidence. Id. “Actively monitoring the
police radio during the course of claimant’s return trip to the station is sufficient evidence upon
which the Commission could draw the conclusion that the employer intended to retain authority
over claimant at the time his injuries arose.” Id.
¶ 30 Most importantly, Johnson and Springfield arose after the Commission’s ultimate
decision regarding whether to award Workers’ Compensation benefits. They did not arise from
the same procedural posture as this case, an appeal from a section 2-619 dismissal, wherein this
court must take the well-pleaded facts in the complaint as true, interpret all pleadings, supporting
documents, and reasonable inferences therefrom, in the light most favorable to the plaintiff.
Wackrow, 231 Ill. 2d at 422. See also Snyder v. Heidelberger, 2011 IL 111052, ¶ 8 (a court
cannot grant a motion to dismiss under these sections unless the plaintiff can prove no set of
facts that would support a cause of action).
¶ 31 Moreover, the facts of Johnson and Springfield illustrated the police department’s intent
to retain authority over the officers during their lunch breaks in those cases. Specifically, in
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Johnson, the officer had been dispatched and instructed to go to a particular location when his
injuries occurred, and in Springfield, the officer was injured while actively monitoring the police
radio, as he was required to do, while driving back from his lunch break. Here, there are no facts
contained in the pleading or affidavits that similarly establish the police department’s attempt to
retain authority over the officers before they returned from their lunch. The record does not
contain any evidence regarding police department policies regarding lunch breaks, whether the
officers were required to monitor their radio during that time, or any other facts which would
establish, conclusively and as a matter of law, that the department retained authority over the
officers at the time of the accident.
¶ 32 To avoid this conclusion, defendant asks this court to take judicial notice of the Chicago
Police Department directive entitled “Payroll and Timekeeping – Attendance,” which it attaches
to its appellate brief in an “Appendix.” This directive was never before the trial court, and,
accordingly, it does not otherwise appear in the appellate record. In general, a party may not rely
on matters outside the record to support its position on appeal. Keener v. City of Herrin, 235 Ill.
2d 338, 346 (2009); Wauconda Fire Protection District v. Stonewall Orchards, LLP, 343 Ill.
App. 3d 374, 377 (2003) (“Attachments to briefs not included in the record on appeal are not
properly before the appellate court, and they cannot be used to supplement the record.”). Thus, if
the materials are not taken from the record, they may not generally be placed before the appellate
court in an appendix, and a reviewing court may disregard those materials. Hubeny v. Chairse,
305 Ill. App. 3d 1038, 1042 (1999). See also Keener, 235 Ill. 2d at 346 (when a party disregards
this rule, a reviewing court may strike the brief or “simply disregard the inappropriate material”).
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¶ 33 Nonetheless, even if we were to consider the directive, it raises more questions than
answers, which should be considered by the trial court on remand. This directive provides that
officers are:
“granted one 30 minute meal period each watch and will not be subject to radio
assignments or required to monitor the radio during the meal period. *** Lunch
will normally be taken within the district of assignment. Unit commanding
officers may make exceptions if conditions warrant. In those instances, lunch may
be taken within a reasonable distance in an adjoining district.”
¶ 34 The directive further provides that, when officers take a meal break, they are to “clear
their meal period with the OEMC dispatcher prior to entering the eating establishment and will
notify the OEMC dispatcher of their return to duty status after leaving the eating establishment.”
¶ 35 In this case, there is nothing in the record to establish whether the above policy is
generally followed, or whether the officers actually followed the policy in this case. Specifically,
the pleadings and competing affidavits do not indicate whether the officers requested or were
granted an exception to get lunch outside of the district, whether the location of the restaurant
would be considered “a reasonable distance” from their district, or whether the officers had
notified the dispatcher that they were returning to duty status after leaving the restaurant.
Without any evidence regarding how the directive applied generally or whether it was followed
in this case, this directive does not alter our conclusion that the dismissal of plaintiff’s claims
pursuant to section 2–619(a)(9) was erroneous.
¶ 36 Accordingly, we conclude that the circuit court erred in granting defendant’s section 2–
619(a)(9) motion to dismiss. We reverse and remand for further proceedings consistent with this
order.
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¶ 37 Reversed and remanded.