Hatteberg v. Cundiff

ILLINOIS OFFICIAL REPORTS

Appellate Court

Hatteberg v. Cundiff, 2012 IL App (4th) 110417

Appellate Court JOHN HATTEBERG and ELIZABETH HATTEBERG, Plaintiffs-

Caption Appellants, v. CODY B. CUNDIFF, Defendant-Appellee.

District & No. Fourth District

Docket No. 4-11-0417

Rule 23 Order filed January 25, 2012

Rule 23 Order

withdrawn March 13, 2012

Opinion filed January 25, 2012

Held In an action for the injuries plaintiffs suffered when their car was struck

(Note: This syllabus by defendant’s vehicle, the trial court’s dismissal of the counts alleging

constitutes no part of common-law negligence and the entry of summary judgment for

the opinion of the court defendant on the counts alleging willful and wanton conduct were

but has been prepared affirmed, since defendant was a volunteer firefighter responding to an

by the Reporter of emergency call about a three-vehicle accident at the time of the collision,

Decisions for the he was immune from liability for negligence pursuant to the Tort

convenience of the Immunity Act, and there was no evidence supporting the conclusion that

reader.)

a trier of fact could find defendant’s conduct was willful and wanton.

Decision Under Appeal from the Circuit Court of Champaign County, No. 09-L-71; the

Review Hon. Jeffrey B. Ford, Judge, presiding.

Judgment Affirmed.

Counsel on Michael J. Tague (argued), of Flynn, Palmer & Tague, of Champaign, for

Appeal appellants.

Denean K. Sturino (argued) and Edward C. Eberspacher IV, both of

O’Hagan Spencer LLC, of Chicago, for appellee.

Panel JUSTICE COOK delivered the judgment of the court, with opinion.

Justices Appleton and McCullough concurred in the judgment and

opinion.

OPINION

¶1 In December 2008, plaintiffs, John and Elizabeth Hatteberg, were injured when

defendant, Cody B. Cundiff, collided with their vehicle. The accident occurred while

defendant, a volunteer firefighter, was responding to an emergency call regarding a three-car

motor vehicle accident. Defendant was driving a personal (not an emergency) vehicle at the

time of the accident, as he had just received the call and, pursuant to fire department policy,

was driving to the Thomasboro Fire Station (Station).

¶2 Plaintiffs filed suit against defendant, seeking recovery for personal injuries sustained in

the accident. Defendant moved to dismiss two counts and moved for summary judgment on

the remaining two counts. The trial court dismissed two counts after it determined defendant

fell within the parameters of the Local Governmental and Governmental Employees Tort

Immunity Act (Tort Immunity Act) (745 ILCS 10/5-106 (West 2008)), and therefore was not

subject to liability for negligence. The court entered summary judgment for defendant on the

remaining two counts, finding that the facts of the case would not support a jury finding that

defendant’s conduct was willful and wanton.

¶3 Plaintiffs appeal.

¶4 I. BACKGROUND

¶5 On December 20, 2008, the Champaign County Emergency Dispatch System (METCAD)

sent out an emergency call to Thomasboro firefighters regarding an accident with unknown

injuries and three vehicles off the road on Leverett Road. Defendant, a volunteer firefighter,

received this emergency call. According to Thomasboro Fire Chief Paul Cundiff, the

expectation of all volunteer firefighters was that they would carry their department-issued

pagers with them at all times and respond to any emergency call, so long as they were in the

county and not under the influence of drugs or alcohol. The department protocol was that the

firefighters should report to the fire station upon receiving an emergency call unless their

route to the station would cause them to pass the accident, at which point they could stop,

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render aid, and give information to other responders. Defendant responded to the emergency

call and was en route to the Station in a personal vehicle at the time of the collision.

¶6 Defendant was driving west on County Road 2500 N. at 55 miles per hour, approaching

the United States Highway Route 45 intersection. He observed another vehicle stopped at the

stop sign, and when he was approximately 500 feet from the sign, he applied his brakes to

stop his vehicle behind the one ahead of him. According to defendant’s deposition, when he

applied his brakes, his vehicle began to skid on the ice. Defendant let off the brake and then

applied it again, and even though he had slowed to approximately 35 miles per hour, he

realized he was not going to be able to stop his vehicle in time to avoid colliding with the

vehicle in front of him. When defendant was approximately 100 feet from the vehicle in front

of him, he made the decision to move into the left lane and go around the vehicle. Defendant

stated he did not have enough time to see whether there was any traffic on Route 45 before

going through the intersection at approximately 35 to 40 miles per hour. Defendant collided

with plaintiffs’ vehicle, which was traveling southbound on Route 45. Defendant stated that

he was not aware of the slick road conditions until he first attempted to apply his brakes.

¶7 Elizabeth Hatteberg, a passenger in the vehicle driven by John Hatteberg, testified in her

deposition that the country roads they had been traveling seemed “all right,” but when they

turned on Route 45, the road seemed “very slick.” She did not see defendant or his vehicle

prior to the accident. John Hatteberg testified in his disposition that when he turned onto

southbound Route 45, he slowed his vehicle to 40 or 45 miles per hour because the road

seemed slick. He stated it had not been snowing prior to the accident. He only saw

defendant’s vehicle a second before the collision and was not able to estimate the speed it

was traveling.

¶8 In April 2009, plaintiffs filed four causes of action seeking recovery for their injuries.

Counts I and II were based on common-law negligence and counts III and IV were premised

upon the theory of willful and wanton conduct. In December 2009, defendant filed a motion

to dismiss counts I and II, arguing that those claims were barred because he was a public

employee acting within the scope of his employment at the time of the accident and, thus,

was not liable for any injury caused by the negligent operation of his motor vehicle while

responding to an emergency call pursuant to the Tort Immunity Act. In February 2010, the

trial court dismissed counts I and II, finding defendant immune from a negligence claim

under the Tort Immunity Act because he was (1) a public employee; (2) acting within the

scope of his employment; (3) while operating a motor vehicle; and (4) acting in response to

an emergency call. In January 2011, defendant filed a motion for summary judgment on

counts III and IV, arguing that no record evidence supported plaintiffs’ claims that

defendant’s conduct constituted willful and wanton behavior or exhibited conscious

disregard for safety, which it must do for defendant to be liable under the Tort Immunity Act.

In April 2011, the court granted summary judgment in favor of defendant.

¶9 This appeal followed.

¶ 10 II. ANALYSIS

¶ 11 Plaintiffs argue on appeal that (1) the trial court erred in granting defendant’s motion to

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dismiss counts I and II (735 ILCS 5/2-619(a)(9) (West 2008)) based upon a determination

that defendant could not be liable to plaintiffs on a theory of negligence due to tort immunity

because he was not responding to an emergency at the time of the accident, and (2) the court

erred in awarding summary judgment to defendant on counts III and IV (735 ILCS 5/2-

1005(b) (West 2008)) because reasonable minds could draw different inferences as to

whether defendant’s conduct was willful and wanton. We disagree.

¶ 12 A. Negligence Claims

¶ 13 Section 5-106 of the Tort Immunity Act provides:

“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 an person to a medical

facility.” 745 ILCS 10/5-106 (West 2008).

Therefore, in order for defendant to be immune under the Tort Immunity Act, he must

demonstrate the following: (1) he was a public employee; (2) acting within the scope of his

employment; (3) while operating a motor vehicle; (4) when responding to an emergency call;

and (5) his conduct was not willful and wanton.

¶ 14 1. Defendant Was Responding to an Emergency

¶ 15 Plaintiffs first argue that defendant does not qualify for immunity under the Tort

Immunity Act because he was not “responding to an emergency” at the time of the collision.

Plaintiffs contend that because defendant was actually en route to the Station, rather than the

accident scene at the time of the collision, the fourth element is not satisfied. As such,

plaintiffs assert that the trial court erred in dismissing counts I and II, which were both based

on common-law negligence. We disagree.

¶ 16 This court has previously stated that “[p]ublic entities and their firefighting employees

are generally immune from negligence liability for decisions made and actions taken while

operating a motor vehicle in response to an emergency call.” Young v. Forgas, 308 Ill. App.

3d 553, 558, 720 N.E.2d 360, 363 (1999). The general policy behind the Tort Immunity Act

is to shield emergency responders “from personal liability for decisions made and actions

taken while responding to an emergency. If the operator is haunted by the possibility of

facing devastating personal liability for actions taken in the course of responding to an

emergency, then employee performance will be hampered.” Buell v. Oakland Fire Protection

District Board, 237 Ill. App. 3d 940, 944, 605 N.E.2d 618, 621 (1992). The only relevant

inquiry is whether the public employee has been summoned to respond to an emergency,

which is commonly defined as an “ ‘urgent need for assistance or relief.’ ” Young, 308 Ill.

App. 3d at 561, 720 N.E.2d at 365 (quoting Merriam-Webster’s Collegiate Dictionary 377

(10th ed. 1998)). In Young, we explicitly rejected the plaintiff’s argument that the defendant

(driver of the fire truck) was not responding to an emergency call at the time of the accident,

determining instead that, based on the plain language of the Tort Immunity Act, an automatic

alarm directed to the fire station was sufficient to constitute an “emergency call” even if the

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alarm turned out to be false. Id. at 562, 720 N.E.2d at 366.

¶ 17 Here, defendant was clearly responding to an emergency call he received from METCAD

regarding an accident involving three vehicles. Pursuant to department policy, and verified

by Fire Chief Cundiff, following the receipt of an emergency call, all firefighters, including

defendant, were expected to report to the Station. The sole exception to this policy applies

when a firefighter’s normal route to the Station would cause him or her to pass the accident

scene. Here, defendant’s normal route to the Station would not have taken him past the

accident site; therefore, he was reporting first to the Station per department policy.

¶ 18 Plaintiffs argue that because defendant’s deposition testimony was that he was “driving

as he normally would,” he was not driving as if he was responding to an emergency, e.g.,

driving faster to get to the scene of the emergency sooner. Plaintiffs analogize defendant’s

situation to that of firefighters responding to a call “to rescue a cat from a tree.” Obviously,

this is not what happened here. Defendant received an emergency call about an accident

involving three vehicles with unknown injuries, not a cat in a tree. Although defendant was

not on his way to the scene of the accident at the time of the collision, he was still responding

to the emergency call. He would not have been on the road at that time, in that particular

location, had it not been for the emergency call he received.

¶ 19 Plaintiffs also argue that because defendant was driving a personal family vehicle en

route to the Station, rather than an authorized emergency vehicle in route to an emergency,

his actions were more akin to “driving to work” or “driving to the holiday party.” They assert

that persons operating private vehicles in an attempt to get to the police or fire station in non-

emergency situations are not granted the same privilege to bend the rules as are persons

operating emergency vehicles to make up time. However, we have already determined that

defendant was responding to an emergency. Defendant was a volunteer firefighter who did

not have the advantage of a fire truck on hand to respond to the emergency call. The only

source of transportation that defendant had to respond was a personal vehicle. Further, the

plain language of section 5-106 of the Tort Immunity Act refers to the “operation of a motor

vehicle” and makes no distinction between the type of motor vehicle a public employee is

operating. 745 ILCS 10/5-106 (West 2008). Thus, section 5-106 of the Tort Immunity Act

applies to all vehicles, not just authorized emergency vehicles, such as police cars,

ambulances, or fire trucks.

¶ 20 2. Vehicle Code

¶ 21 Section 11-205(c)(2) of the Illinois Vehicle Code (Vehicle Code) provides that the driver

of an emergency vehicle may proceed past a stop signal, “but only after slowing down as may

be required and necessary for safe operation.” 625 ILCS 5/11-205(c)(2) (West 2008). Section

11-205(e) also states:

“The foregoing provisions do not relieve the driver of an authorized emergency vehicle

from the duty of driving with due regard for the safety of all persons, nor do such

provisions protect the driver from the consequences of his reckless disregard for the

safety of others.” 625 ILCS 5/11-205(e) (West 2008).

¶ 22 Section 11-907 of the Vehicle Code governs operation of vehicles and streetcars on

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approach of authorized emergency vehicles. This section establishes that drivers shall yield

the right-of-way to emergency vehicles, but specifically states that it “shall not operate to

relieve the driver of an authorized emergency vehicle from the duty to drive with due regard

for the safety of all persons using the highway.” 625 ILCS 5/11-907(b) (West 2008).

¶ 23 Plaintiffs urge this court to adopt the view of the Fifth District in Bradshaw v. City of

Metropolis, 293 Ill. App. 3d 389, 395, 688 N.E.2d 332, 335-36 (1997), and a dissent from

the Third District’s decision in Lanning v. Harris, 342 Ill. App. 3d 965, 968-69, 796 N.E.2d

667, 669-70 (2003) (Holdridge, J., dissenting), and find that sections 11-205 and 11-907 of

the Vehicle Code (625 ILCS 5/11-205(d), 11-907(c) (West 2010)) not only apply in this case,

but also trump section 5-106 of the Tort Immunity Act, which would disgorge defendant of

his immunity. The Fifth District’s decision and Third District’s dissent are not only contrary

to our holding in Young, but also contrary to the decisions of the First, Second, and Third

Districts. See Sanders v. City of Chicago, 306 Ill. App. 3d 356, 363, 714 N.E.2d 547, 553

(1999) (First District, holding that both statutes apply but that the Vehicle Code did not

abrogate the Tort Immunity Act); Carter v. Du Page County Sheriff, 304 Ill. App. 3d 443,

450, 710 N.E.2d 1263, 1267-68 (1999) (Second District, holding that the Vehicle Code does

not trump the Tort Immunity Act but that both statutes were applicable); Lanning v. Harris,

342 Ill. App. 3d 965, 967-68, 796 N.E.2d 667, 668-69 (2003) (Third District, holding that

the Vehicle Code and the Tort Immunity Act address different actors under different

circumstances). In Young, we rejected the Fifth District’s Bradshaw decision and agreed with

the Second District that “the Vehicle Code applies to all drivers of emergency vehicles while

the Tort Immunity Act applies only to public employees.” Young, 308 Ill. App. 3d at 560,

720 N.E.2d at 364 (citing Carter, 304 Ill. App. 3d at 450, 710 N.E.2d at 1267-68).

¶ 24 Plaintiffs also point out that the cases they cite above (Carter, Sanders, Lanning,

Bradshaw, and Young) are all factually distinguishable from the case at bar, because those

cases involved emergency vehicles, whereas this case involves a personal vehicle.

¶ 25 Defendant responds that plaintiffs’ argument “is an attempt to fit a square peg in a round

hole” because whether a conflict between the Tort Immunity Act and the Vehicle Code exists

is misplaced and irrelevant to the facts of this case. We agree with defendant.

¶ 26 As stated in Young, the Vehicle Code and the Tort Immunity Act are not in conflict

because the Vehicle Code applies to all drivers of emergency vehicles while the Tort

Immunity Act applies only to public employees. Under the plain language of the Tort

Immunity Act, the legislature has chosen to grant immunity from negligence liability to

public employees like Cundiff (745 ILCS 10/5-106 (West 2008)). Public employees may still

be liable for willful and wanton conduct, however, under section 5-106.

¶ 27 B. Willful and Wanton Claims

¶ 28 Plaintiffs next argue that the trial court erred in awarding summary judgment to

defendant on counts III and IV because reasonable minds could draw different inferences as

to whether defendant’s conduct was willful and wanton. We disagree.

¶ 29 We review the trial court’s grant of summary judgment de novo. Illinois State Chamber

of Commerce v. Filan, 216 Ill. 2d 653, 661, 837 N.E.2d 922, 928 (2005). Summary judgment

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is appropriate when the pleadings, depositions and admissions on file, together with any

affidavits, show that no genuine issue exists as to any material fact such that the moving

party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2010).

¶ 30 The Tort Immunity Act provides:

“ ‘Willful and wanton conduct’ as used in this Act means a course of action which 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 or their property. This

definition shall apply in any case where a ‘willful and wanton’ exception is incorporated

into any immunity under this Act.” 745 ILCS 10/1-210 (West 2010).

Whether conduct is willful and wanton is ultimately a question of fact. Young, 308 Ill. App.

3d at 562, 720 N.E.2d at 366. However, a court may “hold as a matter of law that a public

employee’s actions did not amount to willful and wanton conduct when no other contrary

conclusion can be drawn [from the record presented].” Id. (citing Urban v. Village of

Lincolnshire, 272 Ill. App. 3d 1087, 1094, 651 N.E.2d 683, 688-89 (1995)).

¶ 31 Willful and wanton conduct has been defined by our supreme court as “ ‘a failure, after

knowledge of impending danger, to exercise ordinary care to prevent’ the danger, or a

‘failure to discover the danger through *** carelessness when it could have been discovered

by the exercise of ordinary care.’ ” (Internal quotation marks omitted.) Young, 308 Ill. App.

3d at 563, 720 N.E.2d 360 at 366 (quoting Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 274,

641 N.E.2d 402, 406 (1994)). Willful and wanton conduct is a “state of mind different from

that needed in ordinary and gross negligence” and “can be found where aggravating

circumstances are present, such as where there is a ‘conscious and deliberate disregard for

the rights of others.’ ” (Internal quotation marks omitted.) Burke v. 12 Rothschild’s Liquor

Mart, Inc., 148 Ill. 2d 429, 449, 593 N.E.2d 522, 531 (1992).

¶ 32 Illinois appellate courts have affirmed several trial court decisions allowing summary

judgment or directed verdict based on a finding that the factual circumstances in the cases

did not constitute willful and wanton conduct as a matter of law. See, e.g., Williams v. City

of Evanston, 378 Ill. App. 3d 590, 601, 883 N.E.2d 85, 94 (2007) (rejecting the plaintiff’s

argument that the defendant firefighter engaged in willful and wanton conduct because there

was no evidence he was traveling at a high rate of speed when he drove through the

intersection); Shuttlesworth v. City of Chicago, 377 Ill. App. 3d 360, 367, 879 N.E.2d 969,

975-76 (2007) (affirming summary judgment for police officers and the city on a willful and

wanton claim where the police pursuit that led to the collision was done in little traffic, was

of short duration, and the police car was presumed to go fast).

¶ 33 Plaintiffs argue that a trier of fact could disbelieve defendant’s sworn deposition

testimony and, as such, urge this court to reverse the trial court’s grant of summary judgment.

Their argument is based on a number of inferences and speculation drawn from

unsubstantiated facts. Further, plaintiffs offer no record evidence to contradict defendant’s

testimony.

¶ 34 Plaintiffs first posit that a trier of fact could conclude the weather conditions on Route

45 also existed within defendant’s short drive from his home to the intersection, and because

of that, defendant knew or should have known of the adverse pavement conditions. Plaintiffs

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assert that their testimony indicates freezing rain and icy road conditions existed on Route

45, and that defendant admitted there were icy road conditions on County Road 2500 N. at

the Route 45 intersection. However, the fact that adverse road conditions existed on Route

45 and at the intersection of Route 45 and County Road 2500 N. does not necessarily mean

that defendant would have experienced the same adverse road conditions on his journey from

his house to the intersection.

¶ 35 Defendant testified in his disposition that as he was traveling westbound on County Road

2500 N., he did not encounter any precipitation. He did not use his windshield wipers.

Defendant stated he did not notice the road was slick until he attempted to apply his brakes

and began to slide. To avoid hitting the car in front of him, defendant moved into the passing

lane to go around the car, went through the stop sign, and collided with plaintiffs at

approximately 35 to 40 miles per hour. John Hatteberg testified that the roads were not slick

until he turned onto Route 45, at which point he reduced his speed to between 40 and 45

miles per hour. John stated that at some point before the accident, but not at the time of the

collision, it was raining but he could not remember where or how soon before. He stated it

was not snowing at the time of the collision. Elizabeth Hatteberg testified that driving

conditions on the country roads they had been traveling prior to turning on Route 45 seemed

all right to drive and that the roads did not become slick until they turned onto Route 45.

John testified he only saw defendant’s car a second before the collision, and Elizabeth stated

she did not see his car at all.

¶ 36 If the party moving for summary judgment supplies facts that, if not contradicted, would

warrant judgment in its favor as a matter of law, the opposing party cannot rest on its

pleadings to create a genuine issue of material fact. Abrams v. City of Chicago, 211 Ill. 2d

251, 257, 811 N.E.2d 670, 674 (2004). The testimony given by plaintiffs here does not

contradict the testimony of defendant regarding the road conditions.

¶ 37 Plaintiffs also argue that the emergency call itself–a motor vehicle accident involving

three cars off the road–is further circumstantial evidence that defendant had knowledge of

the road conditions. No evidence in the record shows that the three-car accident was caused

by adverse weather conditions, and again, plaintiffs’ argument requires us to make an

assumption that the accident involving the three cars was caused by weather conditions. As

such, this is not a material fact either.

¶ 38 Plaintiffs next argue that a trier of fact could find that defendant made a conscious

decision to act with such indifference and recklessness so to constitute willful and wanton

behavior. Specifically, plaintiffs posit that defendant “made a conscious decision to not take

a one car accident by driving towards the ditch or rear-ending a stationary vehicle after he

thinks he slowed down some, but to risk a collision with a highway speed cross traffic or a

head-on collision with eastbound County Road 2500 traffic.” We agree that defendant did

make a conscious decision to pass the stationary car and proceed through the intersection;

however, such a decision does not necessarily constitute willful and wanton behavior.

¶ 39 Here, defendant had to make a split-second decision of whether to (1) rear-end the

stationary vehicle in front of him, which would cause certain property damage and high

potential of personal injury to himself and the passengers in the other vehicle; (2) careen into

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the ditch on the right, which would certainly cause property damage to his vehicle and a high

chance of personal injury to himself; or (3) move into the left lane to pass the stationary

vehicle, and attempt to make it through the intersection, where property damage and personal

injury were only possibilities, not certainties. Defendant made the only decision that had any

chance of not causing damage or injuries. This does not amount to willful and wanton

conduct. In fact, defendant made a conscious and deliberate choice to protect the safety of

the passengers in the stationary car by going around them.

¶ 40 The facts of this case are very similar to those in Joiner v. Birch, 21 Ill. App. 2d 249, 157

N.E.2d 676 (1959). In Joiner, the evidence presented on a motion for a directed verdict

indicated that the defendant was not aware of any ice on a bridge until he hit a patch of ice

and began to skid, resulting in the defendant losing control of the car and consequently, a

fatal accident. Id. at 250, 157 N.E.2d at 677. We held that after considering all evidence in

the light most favorable to the plaintiff, no record evidence indicated the defendant’s conduct

was willful and wanton. Id. at 251, 157 N.E.2d at 677-78. Specifically, we stated, “Evidence

of skidding on the highway alone does not constitute evidence of wilful and wanton

misconduct.” Id., 157 N.E.2d at 678.

¶ 41 Here, no evidence was provided in the record that defendant’s conduct was willful and

wanton. As previously stated, defendant testified that he was unaware of the road conditions

until first applying his brakes and sliding. Plaintiffs did not experience slick road conditions

until turning on Route 45. Plaintiffs cite Young for the proposition that the trier of fact must

determine whether a defendant’s actions are willful and wanton. In Young, this court did

reverse the trial court’s grant of summary judgment on some counts; however, we did so only

after finding that a number of material factual issues were in dispute regarding the

defendant’s actions leading up to the collision. Young, 308 Ill. App. 3d at 564, 720 N.E.2d

at 367.

¶ 42 Contrary to plaintiffs’ contention, Young only holds that where a record presents multiple

factual disputes concerning whether a party acted willfully or wantonly, summary judgment

is not appropriate. In Young, the defendant testified he came to a complete stop before going

through the red light, but another witness testified that the defendant never came to a

complete stop and proceeded through the intersection at approximately 15 miles per hour.

Id. Yet another witness testified that the defendant did not even attempt to slow down or stop

and was traveling approximately 30 to 40 miles per hour as he went through the intersection.

Id. In this case, neither plaintiffs nor any witness has offered any evidence–other than

speculation and assumptions–that would contradict defendant’s testimony.

¶ 43 “[O]n a motion for summary judgment, a fact will not be considered in dispute if raised

by circumstantial evidence alone unless the circumstances or events are so closely related to

each other that the conclusions therefrom are probable, not merely possible.” Jewish Hospital

of St. Louis v. Boatmen’s National Bank of Belleville, 261 Ill. App. 3d 750, 755, 633 N.E.2d

1267, 1272 (1994). Further, “where the proven facts demonstrate that the nonexistence of the

fact to be inferred appears to be just as probable as its existence, then the conclusion that

exists is a matter of speculation, surmise, and conjecture, and the trier of fact cannot be

permitted to make that inference.” Keating v. 68th & Paxton, L.L.C., 401 Ill. App. 3d 456,

473, 936 N.E.2d 1050, 1066 (2010).

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¶ 44 Here, plaintiffs contend that a jury could conclude the following: (1) “that in the absence

of any effective braking maneuver that [defendant’s] speed was not reduced: from 55 to 35-

40 miles per hour”; (2) that defendant “consciously chose a path without regard to traffic on

Route 45 to attempt to get through the intersection as quickly as he could”; (3) and that

defendant’s “failure to try the brakes again was consistent with his prior knowledge of the

existence or probable existence of icy pavement.” No evidence supports the conclusion that

a trier of fact could find defendant’s conduct was willful and wanton. Because no contrary

conclusion can be drawn from the record that defendant acted willfully and wantonly and no

material facts are in dispute, summary dismissal of counts III and IV was proper.

¶ 45 III. CONCLUSION

¶ 46 For the reasons stated, we affirm the trial court’s judgment.

¶ 47 Affirmed.

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