The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3978
DAWN E. CARTER, now known as
DAWN E. TROJAOVICH, Plaintiff-Appellant,
v.
RANDALL SIMPSON, now known as
DUDLEY RANDALL R. SIMPSON,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 5785—James B. Zagel, Judge.
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ARGUED APRIL 23, 2003—DECIDED MAY 13, 2003
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Before BAUER, MANION, and DIANE P. WOOD, Circuit
Judges.
BAUER, Circuit Judge. In the early morning of Novem-
ber 20, 1995, a squad car driven by Randall Simpson, a
DuPage County Sheriff’s Deputy, collided in an intersec-
tion with an automobile driven by Dawn Carter. Carter
sued Simpson in federal court, raising two state-law claims
and one federal claim: negligence, willful and wanton
conduct, and liability under 42 U.S.C. § 1983 for depriving
her of substantive due process. The district court granted
summary judgment for Simpson on all three claims. For
the reasons explained below, we affirm in part and reverse
and remand in part.
2 No. 02-3978
The parties do not dispute the following facts. Shortly
before 7:00 a.m. a police dispatcher radioed to Sheriff’s
Deputy Richard Morgan to investigate a “2-11” call, which
refers to a reported death. Simpson, who was “acting
sergeant” at the time, overheard the dispatch and also
proceeded to the reported location. He activated his lights
and sirens as he was heading eastbound on Butterfield
Road. Traffic on Butterfield was stopped at a red light
at Park Boulevard. To avoid the stopped traffic, Simpson
crossed a median and proceeded east in the westbound
lanes. He attempted to drive through the intersection at
Park against the red light. Carter, meanwhile, was driving
through the intersection northbound on Park. Other
automobiles traveling on Park had stopped. (There is
some dispute, however, as to whether another automobile
passed through the intersection directly ahead of Carter.)
In the intersection the front of Simpson’s squad car col-
lided with the driver’s side of Carter’s automobile (which
was traveling at approximately 30-35 mph); both cars
then collided with other cars stopped in the westbound
lanes on Butterfield.
The parties dispute whether Simpson slowed down be-
fore entering the intersection and the speed at which
he was traveling when he entered the intersection and
collided with Carter. In his deposition, Simpson estimated
that he was traveling at 15-25 mph as he approached the
intersection, slowed to 3-5 mph as he moved closer, and
came to a “rolling stop” but did not stop completely. He
explained that he checked the intersection, and believing
it to be clear, accelerated again to 15-25 mph and pro-
ceeded through the intersection. He saw Carter’s automo-
bile for a “split second” only, just before impact.
Three witnesses, however, testified at depositions and
gave accounts that differed from Simpson’s. First, Sheila
Willis (whose car was stopped in the left-turn lane on
Park) testified that Simpson never stopped or slowed down
No. 02-3978 3
before entering the intersection, and she estimated his
speed to be 40-50 mph. Second, Hao Zhong (whose car
was stopped in a westbound lane on Butterfield) testified
that Simpson was traveling at approximately 50 mph as
he approached the intersection. But he explained that he
did not see the collision and could not be certain whether
Simpson stopped or slowed down before entering the
intersection. Third, Emily Vesely (whose car also was
stopped in a westbound lane on Butterfield) testified that
Simpson never stopped or slowed before entering the
intersection. She also testified that Simpson was “driving
like a maniac”—which she explained meant that he was
driving fast. She first estimated his speed to be 40-45 mph,
but she later explained that she could not be sure of the
precise speed and that it might have been 35-40 mph. In
addition to these witnesses, the officer who investigated
the crash explained that the stopped traffic on Butterfield
may have obstructed Carter’s ability to see Simpson enter
the intersection.
Carter originally filed a lawsuit in state court against
Simpson, DuPage County, and the DuPage County Sheriff.
After a number of proceedings, see Carter v. DuPage County
Sheriff, 710 N.E.2d 1263 (Ill. App. Ct. 1999), and a volun-
tary dismissal, Carter brought this lawsuit against Simpson
in July 2001. She alleged Simpson’s conduct was negli-
gent, willful and wanton, and deprived her of substantive
due process. The district court granted summary judgment
for Simpson, concluding that Simpson had immunity for
any alleged negligent conduct and that Simpson’s conduct
could qualify as neither willful and wanton nor a depriva-
tion of substantive due process.
On appeal Carter challenges the district court’s decision
with respect to all three claims. At oral argument, counsel
for both parties explained that the state-law claims are
the primary claims in this lawsuit (we note that diversity
jurisdiction exists); therefore, we discuss those claims first
4 No. 02-3978
and then discuss the federal claim. We review the district
court’s decision de novo, construing the evidence and
drawing reasonable inferences in Carter’s favor. Chapman
v. Keltner, 241 F.3d 842, 845 (7th Cir. 2001).
The Illinois Local Governmental and Governmental
Employees Tort Immunity Act provides immunity for
government employees responding to emergency calls:
Except for willful or wanton conduct, neither a local
public entity, nor a public employee acting within the
scope of his employment, is liable for an injury caused
by the negligent operation of a motor vehicle or
firefighting or rescue equipment, when responding to
an emergency call, including transportation of a per-
son to a medical facility.
745 ILCS 10/5-106; see Young v. Forgas, 720 N.E.2d 360,
364 (Ill. App. Ct. 1999). On appeal Carter challenges
immunity on the ground that Simpson was not responding
to an “emergency call.” Simpson testified that as “acting
sergeant” he was required to respond to “2-11” death calls
and that “2-11” calls were indeed emergency calls, which
under the circumstances required him to proceed with
lights and sirens. He also testified that he received a
dispatch that the fire department had requested an offi-
cer “expedite to the scene.” Another officer also testified
that it would be appropriate to proceed to a “2-11” call with
lights and sirens. Carter failed to offer any evidence
to contradict these conclusions. See Young, 720 N.E.2d at
365-66. In addition, she admitted in her response to
Simpson’s statement of facts under Local Rule 56.1 that
Simpson was responding to a death call and that death calls
are emergency calls. See Smith v. Lamz, 321 F.3d 680, 682-
83 (7th Cir. 2003). Thus, the district court concluded
correctly that Simpson was responding to an emergency
call and therefore had immunity for any alleged negligence
on his part.
No. 02-3978 5
But such immunity does not extend to conduct that is
willful and wanton. 745 ILCS 10/5-106. Carter argues that
three witnesses—Willis, Zhong, and Vesely—provided
sufficient evidence from which a reasonable jury could
conclude that Simpson’s conduct was willful and wanton
in driving through the intersection, in the wrong lane,
against the red light, without stopping or slowing down.
Simpson argues that as a matter of law his conduct was
not willful and wanton. Under Illinois law conduct is will-
ful and wanton if it “shows an actual or deliberate intention
to cause harm or which, if not intentional, shows an utter
indifference to or conscious disregard for the safety of
others.” 745 ILCS 10/1-210; Chapman, 241 F.3d at 847.
Whether conduct is willful and wanton is a factual ques-
tion. Young, 720 N.E.2d at 367-68.
Illinois case law is unclear on what conduct by a driver
of an emergency vehicle may qualify as willful and wanton.
Simpson relies on two Illinois cases, both involving auto-
mobile accidents by officials responding to emergency
calls, to support his contention that summary judgment
was proper: Sanders v. City of Chicago, 714 N.E.2d 547 (Ill.
App. Ct. 1999) and Hampton v. Cashmore, 637 N.E.2d 776
(Ill. App. Ct. 1994). Sanders, however, is inapposite. In
Sanders the court was reviewing whether sufficient evi-
dence supported a jury’s finding that conduct by a police
officer—striking a pedestrian with his squad car—was
not willful and wanton. 714 N.E.2d at 555. The court
construed conflicting evidence in the officer’s favor, con-
cluding that the officer slowed down and checked for
oncoming cars and that “a jury could determine from
such evidence that [the officer] was not behaving in a
willful and wanton manner.” Id. This case, by contrast,
arises not at a post-verdict stage but rather at summary
judgment, and consequently Simpson (as movant) does
not receive the benefit of having conflicting evidence
construed in his favor.
6 No. 02-3978
More to the point, Simpson also analogizes his conduct
to that of an ambulance driver in Hampton, whose con-
duct was held as a matter of law to be not willful and
wanton. 637 N.E.2d at 782. The driver, responding to an
emergency call with lights and siren activated, entered an
intersection and collided with another automobile. Id. The
driver testified that he slowed to 15-25 mph before enter-
ing the intersection; another witness testified that the
ambulance was traveling at approximately 35 mph and
did not slow down before entering the intersection. Id.
The court concluded that even if the driver did not slow
down and was traveling at 35 mph, these facts could not
establish that the driver proceeded with utter indifference
or conscious disregard for the plaintiff’s safety. Id.
However, a more recent, and highly analogous, Illinois
appellate case “disagreed” with Hampton. See Young, 720
N.E.2d at 367. In Young, the driver of a fire-department
vehicle, on an emergency call, collided with another auto-
mobile after proceeding through an intersection against
a red light. Id. The driver testified that he stopped and
checked the intersection before proceeding; one witness
testified that the driver never came to a complete stop
and traveled at approximately 15 mph through the inter-
section; and a second witness testified that the driver
never slowed down or stopped and was traveling 30-40 mph
as he entered the intersection. Id. The court concluded
that the trier of fact should examine this evidence to
“determine whether [the driver] consciously made a decision
to proceed against a red light into a crowded intersection”
because “[s]uch conduct would constitute willful and wanton
conduct.” Id. The court discussed Hampton, explaining
that it could be interpreted to hold that a “driver of an
emergency vehicle may proceed through an intersection
against a red light between 10 and 35 miles per hour
without fear of liability.” Id. The court “disagreed,” conclud-
ing that a jury could find that such conduct reflected
“conscious disregard for the safety of others.” Id.
No. 02-3978 7
Like Young, there is conflicting evidence here as to
whether Simpson slowed down before entering the inter-
section against the red light and the speed at which he
was traveling. Testimony that Simpson never slowed
down and was “driving like a maniac”—regardless of
whether that means he was traveling 35, 40, or 45
mph—plainly conflicts with Simpson’s account that he
slowed to 3-5 mph and came to a “rolling stop.” And given
the disagreement between Young and Hampton, we dis-
agree with Simpson that his conduct, when construing
the evidence in Carter’s favor, as a matter of law could
not qualify as “conscious disregard.” We conclude that
a reasonable jury could find such conduct willful and
wanton. Therefore, the district court erred in granting
summary judgment on this claim.
Finally, Carter contends that Simpson’s conduct also
deprived her of substantive due process. Conduct by a
government official creates a cognizable substantive-due-
process claim when it “shocks the conscience.” County of
Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998); Bublitz
v. Cottey, No. 02-3400, 2003 WL 1826554, at *4 (7th Cir.
April 9, 2003). In situations where actual deliberation is
possible, conduct that is “deliberately indifferent” may in
certain circumstances “shock the conscience”; in emergency
situations (such as high-speed chases), however, conduct
“shocks the conscience” only if there was intent to cause
harm. Lewis, 523 U.S. at 849; see also Bublitz, 2003 WL
1826554, at *5; Schaefer v. Goch, 153 F.3d 793, 798 (7th
Cir. 1998). Although Simpson was not engaged in a high-
speed chase (as in Lewis), he was responding to an emer-
gency call. Because there was no evidence that he intended
to cause any harm, the district court correctly granted
summary judgment for Simpson on this claim.
In sum, the district court’s judgment on the negligence
and substantive-due-process claims is AFFIRMED; the
judgment on the willful-and-wanton-conduct claim is
8 No. 02-3978
REVERSED and REMANDED for further proceedings con-
sistent with this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-13-03