Jones v. Board of Trustees of the Police Pension Fund of the City of Bloomington

NO. 4-07-0687 Filed 9/15/08

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

PATRICK JONES, ) Appeal from

Plaintiff-Appellee, ) Circuit Court of

v. ) McLean County

THE BOARD OF TRUSTEES OF THE POLICE ) Nos. 06MR243

PENSION FUND OF THE CITY OF ) 06MR276

BLOOMINGTON; an Illinois Administra- )

tive Agency and KAREN BAKER, DAN )

DONATH, CHARLES CROW, FRANK HAINES, )

and CURT OYER, Members of the Board ) Honorable

of Trustees, ) Charles G. Reynard,

Defendants-Appellants. ) Judge Presiding.

_________________________________________________________________

JUSTICE MYERSCOUGH delivered the opinion of the court:

Plaintiff, Patrick Jones, applied to the Board of

Trustees of the Police Pension Fund of the City of Bloomington

(Board) for a disability pension pursuant to article III of the

Illinois Pension Code (Pension Code) (40 ILCS 5/3-101 through 3-

152 (West 2006)). The Board denied Jones a line-of-duty disabil-

ity pension but granted him a nonduty disability pension.

In August and October 2006, Jones filed complaints for

administrative review naming the Board and members of the Board--

Karen Baker, Dan Donath, Charles Crow, Frank Haines, and Curt

Oyer--all collectively referred to as "the Board," as defendants.

On administrative review, the circuit court reversed

the Board's decision. The Board appeals, arguing that its

decision to deny Jones a line-of-duty disability pension was

proper because Jones was not disabled as the result of an injury

incurred in the performance of an act of duty. We disagree and

affirm the circuit court's reversal of the Board's decision.

I. BACKGROUND

On February 24, 2006, Jones filed an application for

disability benefits. Jones alleged he could no longer perform

full duties as a police officer due to an injury received in a

automobile accident that occurred while Jones was on duty.

On July 26, 2006, the Board held a hearing on the

application. At the hearing, the Board admitted into evidence

the application for benefits, the notice of hearing, the job

description for patrol officer, the employee-injury report, the

Illinois traffic-crash report, the incident report, medical

records, and the independent medical-examination reports from

three doctors.

Jones testified that he had been a patrol officer for

the City of Bloomington for 12 years. On June 13, 2005, at

approximately 8 a.m., Jones was involved in a motor-vehicle

accident. Jones was on routine patrol in unit 51, the transport

van, which Jones described as a one-ton Chevrolet van. The

record does not reflect whether the van was a marked police

vehicle. However, the accident report indicates the vehicle was

black and white.

When asked where he was headed when the accident

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occurred, Jones testified:

"I was going out towards Airport Road,

which I believe they had complaints about

some speeders or whatever. I was just on

routine patrol, just to investigate something

of that nature."

As Jones drove toward Airport Road, a man driving a Buick "shot

out" in front of Jones' vehicle. Jones made an evasive maneuver

that kept from hitting the Buick broadside. Due to oncoming

traffic, however, Jones had to pull back into the right-hand

lane. The Buick then hit the side of the transport van. Jones

suffered injuries to his shoulder and back and later underwent

back surgery. The Board adjourned after the hearing.

On August 30, 2006, Jones filed a complaint for admin-

istrative review in McLean County case No. 06-MR-243. The

complaint alleged that the Board had not yet filed a decision on

Jones' application for a line-of-duty disability pension. The

complaint further alleged that the president of the Board told

Jones, ex parte, that the Board was granting Jones a nonduty

disability pension. Defendants filed as their answer a copy of

the administrative record.

On September 20, 2006, the Board issued its written

decision. The Board found Jones physically disabled for service

in the police department so as to render necessary his retire-

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ment. The Board concluded, however, that Jones' disability was a

nonduty disability pursuant to section 3-114.2 of the Pension

Code (40 ILCS 5/3-114.2 (West 2006)) rather than a line-of-duty

disability pension (40 ILCS 5/3-114.1(a) (West 2006)). The Board

concluded, relying primarily on White v. City of Aurora, 323 Ill.

App. 3d 733, 753 N.E.2d 1244 (2001), that Jones was not entitled

to a line-of-duty disability pension because driving a van did

not involve a "special risk" as required by the definition of

"act of duty." As such, the Board awarded Jones a pension

totaling 50% of his salary as opposed to the 65% he would have

received from a line-of-duty disability pension.

On October 19, 2006, Jones filed a second complaint for

administrative review in McLean County case No. 06-MR-276. This

complaint alleged the Board issued its written decision on

September 20, 2006, awarding Jones only a nonduty pension. Jones

sought reversal of the Board's decision and an award of a line-

of-duty pension.

In November 2006, defendants filed an answer in case

No. 06-MR-276 and a motion to dismiss case No. 06-MR-243. In

February 2007, the parties stipulated and agreed to consolidate

the two cases. On February 19, 2007, the trial court consoli-

dated the two cases.

In July 2007, the trial court entered a written order

reversing the Board's decision. The court entered judgment for

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Jones, finding him eligible for a line-of-duty pension.

This appeal followed.

II. ANALYSIS

On appeal, the Board argues that its decision to deny

Jones a line-of-duty pension was proper because Jones was not

disabled as the result of an injury incurred in the performance

of an act of duty.

A. Standard of Review

This court reviews the Board's decision, not the

decision by the circuit court. Marconi v. Chicago Heights Police

Pension Board, 225 Ill. 2d 497, 531, 870 N.E.2d 273, 292 (2006).

The parties dispute the appropriate standard of review. The

Board argues it was required to weigh the evidence and make

factual determinations when considering whether Jones sustained

his burden of proof to establish that his disability arose from

an "act of duty." Therefore, the Board argues, the manifest-

weight-of-the-evidence standard is the appropriate standard of

review. Jones argues that where the relevant facts are undis-

puted, and the dispute hinges on the term "act of duty," this

court's review is de novo. .

The applicable standard of review depends upon

whether the issue presented is one of fact, one of law, or a

mixed question of law and fact. Marconi, 225 Ill. 2d at 532, 870

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N.E.2d at 292. This court will reverse a ruling on a question of

fact only if it is against the manifest weight of the evidence.

Marconi, 225 Ill. 2d at 532, 870 N.E.2d at 292-93. Questions of

law are reviewed de novo. Marconi, 225 Ill. 2d at 532, 870

N.E.2d at 293. Mixed questions of law and fact are reviewed

under the clearly erroneous standard. Marconi, 225 Ill. 2d at

532, 870 N.E.2d at 293.

Here, the issue is whether this case involves (1) the

interpretation of the statutory term "act of duty," which re-

quires de novo review, or (2) an examination of the legal effect

of a given set of facts, which is a mixed question of law and

fact requiring review under the clearly erroneous standard. See

Sarkis v. City of Des Plaines, 378 Ill. App. 3d 833, 836, 882

N.E.2d 1268, 1270 (2008) (examining whether an officer injured

while lifting a malfunctioning railroad crossing gate was injured

in the performance of an act of duty). Under the clearly errone-

ous standard, the reviewing court will reverse the administrative

agency only where the court is "'left with the definite and firm

conviction that a mistake has been committed.'" AFM Messenger

Service, Inc. v. Department of Employment Security, 198 Ill. 2d

380, 395, 763 N.E.2d 272, 282 (2001), quoting United States v.

United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 766,

68 S. Ct. 525, 542 (1948).

Courts have generally held that when the facts are

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undisputed, the interpretation of the term "act of duty" in the

Pension Code is an issue of statutory construction to be reviewed

de novo. See Sarkis, 378 Ill. App. 3d at 836, 882 N.E.2d at

1270; White, 323 Ill. App. 3d at 735, 753 N.E.2d at 1246 (where

the facts are undisputed, and the Board interpreted the meaning

of "act of duty" contained in the statute, the issue was one

purely of statutory interpretation); Fedorski v. Board of Trust-

ees of the Aurora Police Pension Fund, 375 Ill. App. 3d 371, 373,

873 N.E.2d 15, 17 (2007) (finding the dispute hinged on the

determination of "act of duty" and, therefore, de novo review

applied); Alm v. Lincolnshire Police Pension Board, 352 Ill. App.

3d 595, 598, 816 N.E.2d 389, 391 (2004) (de novo review applied

where the facts were undisputed and the only issue was the

meaning of "act of duty"). However, in Merlo v. Orland Hills

Police Pension Board, No. 1-06-3729 (June 4, 2008), Ill. App.

3d , , 890 N.E.2d 612, 615 (2008), on what appeared to be

undisputed facts, the appellate court found that the issue of

whether the police officer was performing an act of duty pre-

sented a mixed question of fact and law, and therefore the

clearly erroneous standard of review applied. See also Provena

Covenant Medical Center v. Illinois Department of Revenue, No. 4-

07-0763, slip op. at 7 (August 26, 2008), Ill. App. 3d ,

, N.E.2d , (applying the clearly erroneous standard

where the facts were undisputed and the question was whether

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those facts entitled the plaintiff to an exemption under the

Property Tax Code).

This court tends to agree with the Merlo court, that an

examination of the legal effect of a given set of facts presents

a mixed question of fact and law, requiring the clearly erroneous

standard of review. See also City of Belvidere v. Illinois State

Labor Relations Board, 181 Ill. 2d 191, 205, 692 N.E.2d 295, 302

(1998). However, under either the de novo or clearly erroneous

standard, Jones is entitled to a line-of-duty pension.

The primary consideration in construing a statute is to

determine and give effect to the legislature's intent. People v.

Skillom, 361 Ill. App. 3d 901, 906, 838 N.E.2d 117, 122 (2005).

A court must consider the statute in its entirety. People v.

Davis, 199 Ill. 2d 130, 135, 766 N.E.2d 641, 644 (2002). "The

most reliable indicator of legislative intent is the language of

the statute, which, if plain and unambiguous, must be read

without exception, limitation, or other condition." Davis, 199

Ill. 2d at 135, 766 N.E.2d at 644. "Pension statutes are to be

liberally construed in favor of the pensioner." Harroun v.

Addison Police Pension Board, 372 Ill. App. 3d 260, 263, 865

N.E.2d 273, 277 (2007).

B. Jones Is Entitled to a Line-of-Duty Pension

1. Eligibility for Line-of-Duty Pension Depends

Upon Whether the Officer's Injury Occurred as a Result

of the Performance of an Act of Duty

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Section 3-114.1(a) of the Pension Code provides for a

pension equal to 65% of the officer's salary if the officer

becomes disabled as a result of "the performance of an act of

duty." 40 ILCS 5/3-114.1(a) (West 2006). Specifically, section

3-114.1(a) provides, in relevant part, as follows:

"If a police officer as the result of

sickness, accident[,] or injury incurred in

or resulting from the performance of an act

of duty, is found to be physically or men-

tally disabled for service in the police

department, so as to render necessary his or

her suspension or retirement from the police

service, the police officer shall be entitled

to a disability retirement pension equal to

*** 65% of the salary attached to the rank on

the police force held by the officer at the

date of suspension of duty or retirement." 40

ILCS 5/3-114.1(a) (West 2006) (entitled "Dis-

ability pension--Line of duty").

If, however, a police officer "becomes disabled as a result of

any cause other than the performance of any act of duty," he or

she is entitled to a disability pension of 50% of the salary

attached to the officer's rank on the police force at the date of

suspension of duty or retirement. 40 ILCS 5/3-114.2 (West 2006)

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(entitled "Disability pension--Not on duty").

Something more than being "on duty" is required to

receive a line-of-duty pension. Sarkis, 378 Ill. App. 3d at 837,

882 N.E.2d at 1271 ("An officer does not perform an 'act of duty'

merely by being on duty at the relevant time"). Although article

III of the Pension Code, pertaining to police pension funds in

municipalities with populations under 500,000, does not contain a

definition of "act of duty," article V of the Pension Code,

pertaining to police pension funds in municipalities with popula-

tions exceeding 500,000, does. See 40 ILCS 5/5-113 (West 2006).

The act-of-duty definition contained in article V of the Pension

Code applies to the use of that term in article III. See Robbins

v. Board of Trustees of the Carbondale Police Pension Fund, 177

Ill. 2d 533, 541, 687 N.E.2d 39, 43-44 (1997). Section 5-113

defines "act of duty" as follows:

"Any act of police duty inherently in-

volving special risk, not ordinarily assumed

by a citizen in the ordinary walks of life,

imposed on a policeman by the statutes of

this State or by the ordinances or police

regulations of the city in which this

[a]rticle is in effect or by a special as-

signment; or any act of heroism performed in

the city having for its direct purpose the

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saving of the life or property of a person

other than the policeman." 40 ILCS 5/5-113

(West 2006).

Not all police functions involve "special risk." See,

e.g., Morgan v. Retirement Board of the Policeman's Annuity &

Benefit Fund, 172 Ill. App. 3d 273, 277, 526 N.E.2d 493, 496

(1988) (holding that an officer who was injured in fall from

chair while taking a police report at the front desk of the

police station was not entitled to line-of-duty pension because

the act of taking a police report did not involve a special risk

not ordinarily assumed by an ordinary citizen). However, "spe-

cial risk" is not limited to "'inherently dangerous' activities."

Johnson v. Retirement Board of the Policemen's Annuity & Benefit

Fund, 114 Ill. 2d 518, 521, 502 N.E.2d 718, 720 (1986).

In Johnson, a police officer on traffic-control duty

slipped and fell while crossing the street in response to a

citizen's request for assistance. Johnson, 114 Ill. 2d at 520,

502 N.E.2d at 719. The supreme court rejected the argument that

the officer did not assume a special risk because he merely

crossed the street as any ordinary citizen would do. Johnson, 114

Ill. 2d at 520, 502 N.E.2d at 719. Instead, the supreme court

focused on the capacity in which the officer was acting at the

time of injury. Johnson, 114 Ill. 2d at 521-22, 502 N.E.2d at

720.

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The supreme court found that the officer performed an

"act of duty" because when he suffered the injury, the officer

was discharging his sworn duties by responding to a citizen's

call. Johnson, 114 Ill. 2d at 522, 502 N.E.2d at 720. The

officer had no choice but to respond, and no comparable civilian

occupation existed. Johnson, 144 Ill. 2d at 522, 502 N.E.2d at

720 (noting that an officer responding to a citizen "must have

his attention and energies directed towards being prepared to

deal with any eventuality").

The supreme court also noted that for a line-of-duty

pension, the officer need not be injured "by [the] act of duty"

but rather that the injury occur "'in the performance of an act

of duty.'" (Emphasis in original.) Johnson, 114 Ill. 2d at 522,

502 N.E.2d at 720, quoting Ill. Rev. Stat. 1983, ch. 108 1/2,

par. 5-154 (now 40 ILCS 5/5-154.1 (West 2006)). The court

concluded that the officer's "act of duty was the act of respond-

ing to the call of a citizen for assistance." Johnson, 114 Ill.

2d at 522, 502 N.E.2d at 720. While performing that duty, the

officer was injured. Johnson, 114 Ill. 2d at 522, 502 N.E.2d at

720. As such, he was eligible for a line-of-duty disability

pension. Johnson, 114 Ill. 2d at 522, 502 N.E.2d at 720.

Since Johnson, courts have found the police officer

injured in the performance of an act of duty where the officer

(1) fell through a porch while serving a notice to appear (Wagner

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v. Board of Trustees, 208 Ill. App. 3d 25, 29, 566 N.E.2d 870,

873 (1991)); (2) was riding a bicycle on patrol (Alm, 352 Ill.

App. 3d at 601, 816 N.E.2d at 394); (3) injured his shoulder

while raising a railroad crossing gate (Sarkis, 378 Ill. App. 3d

at 841, 882 N.E.2d at 1274); and (4) responded to a civilian call

reporting juveniles stacking concrete parking blocks in a parking

lot and suffered an injury when he attempted to remove the hazard

by unstacking the concrete blocks (Merlo, slip op. at 2, Ill.

App. 3d at , 890 N.E.2d at 617). Other courts have found the

officer was not injured in the performance of an act of duty

where (1) the officer was injured when he attempted to sit down

in a chair at his desk to fill out a police report and the chair

rolled out from underneath him (Morgan, 172 Ill. App. 3d at 276-

77, 526 N.E.2d at 496); (2) the officer was injured while exiting

his police vehicle to place a parking citation on an illegally

parked car (White, 323 Ill. App. 3d at 736, 753 N.E.2d at 1247

(where police department also employed civilians to issue parking

citations)); and (3) the evidence technician was injured when the

unmarked police vehicle in which he was riding as a passenger was

struck while stopped at a red light (Fedorski, 375 Ill. App. 3d

at 375, 873 N.E.2d at 19). This court has never addressed

whether an officer injured while on patrol duty was injured in

the performance of an act of duty and entitled to a line-of-duty

pension.

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2. Jones Was Injured in the Performance of an Act of Duty

The Board argues Jones only encountered the general

risks attendant to driving a car and driving the vehicle on

routine patrol did not involve a special risk. The Board relied

below and relies on appeal on White, 323 Ill. App. 3d 733, 753

N.E.2d 1244, to conclude that Jones was not eligible for a line-

of-duty disability pension.

In White, a divided panel of the Appellate Court,

Second District, concluded that the officer was not entitled to a

line-of-duty disability pension. White, 323 Ill. App. 3d at 736,

753 N.E.2d at 1247. The officer, who was on patrol, slipped

while exiting his vehicle to place a parking citation on an

illegally parked vehicle. White, 323 Ill. App. 3d at 734, 753

N.E.2d at 1245. Although the police department required its

officers to issue parking tickets, the department also employed

civilians to issue tickets. White, 323 Ill. App. 3d at 736, 753

N.E.2d at 1247.

The White court concluded that exiting a vehicle to

place a traffic ticket on an illegally parked car did not involve

a special risk not assumed by ordinary citizens. White, 323 Ill.

App. 3d at 736, 753 N.E.2d at 1247. The court noted such an act,

exiting a vehicle to place a flyer or notice on another vehicle,

is one performed by ordinary citizens. White, 323 Ill. App. 3d

at 736, 753 N.E.2d at 1247.

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Approximately three years later, another divided panel

of the Second District specifically rejected White and found that

the majority in White focused on the act performed rather than

the capacity in which the officer was acting. Alm, 352 Ill. App.

3d at 602, 816 N.E.2d at 395. In Alm, the officer injured his

knee while pedaling a bicycle on bicycle patrol, although the

injury was not the result of any "specific, identifiable, physi-

cal trauma." Alm, 352 Ill. App. 3d at 601, 816 N.E.2d at 394.

The Alm court rejected the argument that the officer

was simply riding a bicycle. Alm, 352 Ill. App. 3d at 602, 816

N.E.2d at 394. Instead, the court noted that the focus was not

on the specific act at the time of the injury--riding a bike--but

on the capacity in which the officer was acting--bicycle patrol

officer. Alm, 352 Ill. App. 3d at 602, 816 N.E.2d at 394. The

Alm court found that in the capacity of bicycle patrol officer,

the officer faced special risks not faced by ordinary citizens,

including (1) riding the bicycle at night over varying terrain;

(2) looking out for his own personal safety while also remaining

diligent in the performance of his patrol duties; and (3) carry-

ing a significant amount of additional weight. Alm, 352 Ill.

App. 3d at 601, 816 N.E.2d at 393. These facts elevated the

risks of falls, collisions, and dangerous encounters. Alm, 352

Ill. App. 3d at 601, 816 N.E.2d at 393. As such, even though the

officer did not face those special risks at the exact time he

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suffered the injury, the officer was performing an act of duty

when he suffered his injury and was entitled to line-of-duty

benefits. Alm, 352 Ill. App. 3d at 601, 816 N.E.2d at 393.

We agree with the reasoning of Alm and reject the

reasoning of White. As stated by the supreme court in Johnson,

the "crux is the capacity in which the officer was acting."

Johnson, 114 Ill. 2d at 522, 502 N.E.2d at 720. In White, the

court improperly focused on the specific act--exiting a car--and

not the capacity in which the officer was acting.

In the instant case, as in Alm, the capacity in which

Jones was acting when he was injured was one involving special

risk. The job description for a patrol officer, which was part

of the administrative record, provides:

"The job of [p]atrol [o]fficer is gen-

eral duty police work in the protection of

life and property and the enforcement of laws

and ordinances. The work involves preventive

patrol, preliminary investigation, traffic

enforcement and regulation, and preservation

of social order and public peace by means of

patrolling in cars or on foot in a designated

area where the officer is accountable."

Among the listed duties and skills, the patrol officer must (1)

"[p]ossess safety-minded driving ability and be conscious of all

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types of road conditions either in the course of normal patrol or

when responding to emergency call by use of the red light and

siren" and (2) control and regulate vehicular and pedestrian

traffic as needed. The job description also recognizes that a

patrol officer is a "visible and tangible around-the-clock

representative of the city government process and can be summoned

to respond on short notice" and is expected by citizens to

provide a variety of social services. Such social services

include assisting persons who have no one to whom they can turn

to for help, mediating neighborhood conflicts, maintaining

"constant vigilance" patrolling assigned areas, helping stranded

motorists, providing transportation services for those in need,

and giving directions to out-of-town motorists.

While job title alone is insufficient to establish

performance of an act of duty (Fedorski, 375 Ill. App. 3d at 375,

873 N.E.2d at 19), Jones was performing the duties of patrol

officer at the time of the injury, and those duties involved

special risk. As the job description reflects, Jones had to,

like the officer in Johnson, have his "attention and energies

directed toward being prepared to deal with any eventuality."

Johnson, 114 Ill. 2d at 522, 502 N.E.2d at 720. Like the officer

in Alms on bicycle patrol, Jones faced special risks on patrol,

risks not assumed by the ordinary citizen driving down the

street. Those risks included being prepared to respond to

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emergency calls, deterring crime, responding to citizen requests,

controlling and regulating traffic, and maintaining constant

vigilance. Moreover, Jones testified he was going to investigate

complaints about speeders on Airport Road.

The Board asserts that Jones only encountered the

general risk attendant to driving a car. But even if driving a

car involves only an ordinary risk, Jones was acting in a capac-

ity that involved special risk when he was injured--routine

patrol. See, e.g., Fedorski v. Board of Trustees of the Aurora

Police Pension Fund, 375 Ill. App. 3d 371, 873 N.E.2d 15 (2007)

(noting that the fact that the injury could have befallen anyone

traveling in an automobile does not by itself foreclose a line-

of-duty disability pension; the focus is not on the mechanism of

the injury but on the capacity in which the officer was acting

while injured).

The Board also argues this case is almost identical

factually to Fedorski, 375 Ill. App. 3d 371, 873 N.E.2d 15,

another Appellate Court, Second District, case that denied the

officer a line-of-duty pension. However, Fedorski is distin-

guishable on its facts.

In Fedorski, the plaintiff, an evidence technician, was

riding as a passenger in an unmarked police car when it was

struck from behind at a red light. Fedorski, 375 Ill. App. 3d at

372, 873 N.E.2d at 16. The plaintiff was returning to the police

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station after assisting in a murder investigation and taking

photographs for a lineup. Fedorski, 375 Ill. App. 3d at 372, 873

N.E.2d at 16. He planned to contact the State's Attorney, enter

evidence, and complete a report once he returned to the station.

Fedorski, 375 Ill. App. 3d at 372, 873 N.E.2d at 16.

The appellate court determined the plaintiff was not

entitled to a line-of-duty disability because he was not acting

in a capacity that entailed any special risk when the injury

occurred. Fedorski, 375 Ill. App. 3d at 375, 873 N.E.2d at 19

(but also noting that the decision was consistent with White).

The plaintiff was not performing any activity relating to his

duties as an evidence technician that created a special risk not

ordinarily assumed by any automobile passenger. Fedorski, 375

Ill. App. 3d at 376, 873 N.E.2d at 20.

In contrast, Jones was performing an act of police duty

involving a special risk. See 40 ILCS 5/5-113 (West 2006)

(defining "act of duty"). Jones was driving a police transport

van on patrol intending to investigate an area that had reports

of speeders. Although Jones was not responding to a call, he was

conducting his patrol and an investigation, and he did face

special risks associated with being on patrol duty. See, e.g.,

Senese v. Village of Buffalo Grove, No. 2-07-1017, slip op. at 1-

2 (June 5, 2008), Ill. App. 3d , , 890 N.E.2d 628, 629

(2008) (although involving another issue, noting that the police

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officer received a line-of-duty pension after being injured when,

while monitoring traffic, his parked squad car was struck from

behind by another vehicle). Jones had to have his attention

directed toward being prepared to deal with any eventuality.

Applying the liberal construction of pension statutes in favor of

the pensioner, Jones is entitled to a line-of-duty pension.

III. CONCLUSION

For the reasons stated, we affirm the circuit court's

judgment reversing the Board.

Affirmed.

KNECHT and TURNER, JJ., concur.

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