The opinion
THIRD DIVISION
December 28, 2007
1-06-3392
RANDAL WILLIAMS and MARCUS BROWN, ) Appeal from the
) Circuit Court of
Plaintiffs-Appellants, ) Cook County.
)
v. )
)
THE CITY OF EVANSTON and JEFFREY )
GONZALES, ) Honorable
) Donald J. Suriano,
Defendants-Appellees. ) Judge Presiding.
PRESIDING JUSTICE QUINN delivered the opinion of the court:
On August 14, 2004, a City of Evanston ambulance driven by
defendant Jeffrey Gonzales, a City of Evanston firefighter/EMT,
collided with a vehicle driven by plaintiff Randall Williams.
Plaintiff Marcus Brown was a passenger in Williams' vehicle.
After plaintiffs filed a four-count complaint based solely on
negligence, they filed an amended complaint, which added four
counts based on willful and wanton conduct.
The circuit court granted defendants' motion to dismiss
plaintiff's four counts based on negligence. Thereafter, the
circuit court granted defendants' motion for summary judgment on
the remaining four counts. The circuit court based its ruling on
its determination that plaintiffs failed to set forth evidence
that Gonzales drove the ambulance in a willful and wanton manner.
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Thus, the circuit court found defendants were immune from
liability under the Local Governmental and Governmental Employees
Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1-101 et seq.
(West 2006)). Plaintiffs now appeal.
BACKGROUND
On August 14, 2004, plaintiffs Williams and Brown were
traveling westbound on Oakton Street toward the intersection at
Sherman Avenue in Chicago, Illinois. At the same time, defendant
Gonzales was traveling southbound on Sherman Avenue toward the
intersection. Gonzales, a City of Evanston firefighter/EMT, was
driving a City of Evanston ambulance in the midst of an emergency
call.
Although southbound traffic on Sherman had a stop sign,
westbound and eastbound traffic on Oakton did not have stop
signs.1 The speed limit on Sherman was 25 miles per hour.
During his deposition, Williams testified that his car
windows were up and the radio was off as he drove westward on
Oakton toward Sherman. Williams stated that there was no
traffic. He did not recall whether he heard a siren.
Williams testified that he was traveling approximately 20 to
25 miles per hour in the right lane of the two westbound lanes
prior to entering the intersection of Oakton and Sherman. He
stated that he knew traffic on Sherman had a stop sign at the
1
The record indicates that traffic was one way southbound on
Sherman Avenue on the south side of the intersection.
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intersection. He further confirmed that an apartment building on
the northeast corner of Oakton and Sherman blocked his view of
southbound traffic. However, he passed the building prior to
entering the intersection and could see southbound traffic.
Williams stated he never saw the ambulance before the
collision, and he did not recall hearing a siren or brakes. He
confirmed that he was still driving 20 to 25 miles per hour at
the time of the collision. Williams opined that based on the
impact, the ambulance was traveling about 45 to 50 miles per hour
before the collision.
Williams testified that the ambulance struck the front of
his vehicle. After the initial impact created a bounce, the
ambulance hit the rear of his vehicle as well. The vehicles'
collision sent Williams' car "south to southeast" until it struck
a tree with a heavy impact.
Williams stated that he did not speak with anyone at the
scene following the accident except to the police officer who
asked for his license. He did not remember speaking to a police
officer at the hospital as he was "out of it." Williams
confirmed that he received a traffic ticket due to the accident.
Brown testified during his deposition that on August 14,
2004, he was in the passenger seat of the car driven by Williams,
his half-brother. He stated that the vehicle's windows were up
and the music was off as they drove westbound in the right lane
on Oakton toward Sherman. Brown estimated that they were
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traveling about 20 to 25 miles per hour and asserted that he did
not see any other vehicles ahead of their vehicle.
When asked whether he saw another vehicle out of the corner
of his eye before the collision, Brown testified that he did not
recall as he got hit in the head during the collision. He
opined, however, that based on the impact, the ambulance was
traveling 40 or 50 miles per hour prior to the collision.
During the collision, Brown suffered a head injury, which
left him dazed and in need of stitches. Paramedics helped him
out of the car and informed him that he was bleeding.
Brown also testified that he went to traffic court with his
brother. The judge threw out the ticket given to Williams.
During his deposition, Gonzales testified that on August 14,
2004, he was a firefighter/EMT and was training to be a
paramedic. He asserted that he had driven the ambulance in
emergency situations a hundred times and that he never drove over
the posted speed limit on those occasions.
Prior to the accident, Gonzales was driving southbound on
Sherman towards Oakton. He confirmed that Sherman is a two-way
street that becomes a one-way southbound street south of Oakton.
He and his partner were in the midst of an emergency call
involving a battery victim. He stated that he knew there was a
stop sign for southbound traffic on Sherman and that there were
no stop signs at the intersection for traffic on Oakton.
Although Gonzales did not bring the ambulance to a complete stop
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at the intersection, he testified that he slowed the vehicle to
15 to 20 miles per hour as he entered the intersection and slowed
the ambulance further to about 5 miles per hour immediately
before the collision. Gonzales asserted that he had activated
the ambulance's lights and siren prior to the collision.
Gonzales stated that he looked left then right before he
entered the intersection at Sherman and Oakton, but he did not
see Williams' vehicle. When asked whether there was anything
that blocked his view, Gonzales acknowledged that a row of trees
and an apartment building obstructed his view of traffic to the
left. However, he asserted that he crept up a little past the
stop sign and looked left for westbound traffic, but he did not
see plaintiffs' vehicle.
Gonzales had no estimate as to Williams' speed. He
testified that the front of Williams' vehicle hit the driver's-
side door of the ambulance. Gonzales denied that his partner
warned him about plaintiffs' vehicle and stated that he told his
partner after the collision that he did not see plaintiffs'
vehicle prior to impact.
Gonzales confirmed that his deposition testimony was similar
to the testimony he provided in traffic court during the
proceedings on Williams' traffic ticket. However, he did not
testify before the City of Evanston Accident Review Board, which
determined that the accident was preventable. Gonzales did not
agree with the review board's finding.
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He stated that the ambulance was propelled 40 to 50 feet to
the right as a result of the collision. He opined that
plaintiffs were speeding.
Ronald Gannon's deposition testimony provided that he was a
fire captain with the Evanston fire department on August 14,
2004, but he was stationed at another fire house on the date of
the accident. Gannon was a division chief at the time of his
testimony.
Gannon asserted that drivers of fire department vehicles
must abide by the Illinois Vehicle Code (625 ILCS 5/1-100 et seq.
(West 2006)). However, Gannon stated that although an ambulance
driver should slow down as he approached a stop sign during an
emergency situation, the driver would not necessarily have to
stop if traffic was not present or had halted in response to the
emergency vehicle. Gannon did not believe that Gonzales did
anything wrong on August 14, 2004, and he did not know why the
review board deemed the accident preventable.
During her deposition, Katherine Kuller testified that she
was at her friend's apartment in the building at 800 Oakton at
the time of the accident. The building is located on the
southwest corner of the intersection of Oakton and Sherman.
Kuller stated that the accident occurred about 6 a.m. on a
Saturday morning. She asserted that it was not raining.
Although Kuller did not see the accident occur, she heard a
"[w]hoop-whoop-whoop-whoop-whoop," which she assumed was a siren
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of a medical vehicle, followed by a "boom." In response, she ran
to a window, saw the two vehicles, got dressed, and ran
downstairs. She confirmed that the windows of the apartment were
open. She did not hear any tire squeals prior to hearing the
collision.
Finally, Mary Lawrence's deposition testimony disclosed that
she lived at 802 Oakton on August 14, 2004. About 6 a.m. that
morning, she was lying in bed when she heard a "siren going off."
Saint Francis Hospital is about a block from her apartment, and
the siren sounded as if it was coming from the north and heading
toward the hospital. Lawrence testified, "I, you know, I heard a
squealing of tires and then I heard the crash." Upon hearing the
crash, Lawrence got out of her bed and ran to her dining room
window. She saw the ambulance had knocked over a light pole and
was up against a tree. After calling 9-1-1, Lawrence got dressed
and went outside. She heard one of the "paramedics" tell the
other "paramedic" that he had not seen the other driver.
Following the completion of the parties' depositions,
defendants filed a motion for summary judgment. Therein,
defendants argued that no evidence existed that Gonzales acted in
a willful and wanton manner prior to the collision with
plaintiffs. As such, defendants argued that plaintiffs could not
establish that defendants violated a duty of care to plaintiffs
under sections 2-202 (745 ILCS 10/2-202 (West 2006)) and 5-106
(745 ILCS 10/5-106 (West 2006)) of the Tort Immunity Act.
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Plaintiffs countered that a genuine issue of material fact
existed as to whether Gonzales acted in a willful and wanton
manner, and thus the circuit court should deny defendants'
motion.
At a hearing on the motion, plaintiffs presented photographs
of the vehicles following the collision and argued that the
photographs demonstrated that the ambulance had been speeding
prior to the accident. Following arguments, the circuit court
granted the motion for summary judgment. In doing so, the
circuit court stated:
"If it's a question of speed, you're asking
to Court to [sic] -- I can't conclude what
speed they're going.
Maybe if you had an expert or something
come in and say what these photographs
depict, but the only evidence I have is that
he's creeping through the stop sign.
You allege that he is violating a
traffic law. Apparently he is, but I don't
think it may be negligence. I don't think
that is conduct that rises to willful and
wanton conduct when an emergency vehicle is
creeping through the stop sign.
As far as these pictures, I can't make
any determination as to circumstantial
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evidence. I am going to grant the motion
based on the fact that there is no evidence
of any willful and wanton conduct. Thank
you."
Plaintiffs have appealed.
ANALYSIS
In this court, plaintiffs contend that the circuit court
erroneously granted defendants' motion for summary judgment.
Plaintiffs argue that a genuine issue of material fact existed as
to whether Gonzales operated the ambulance in a willful and
wanton manner.
Summary judgment is appropriate where the pleadings,
affidavits, depositions, admissions, and exhibits on file, when
viewed in the light most favorable to the nonmovant, reveal that
there is no genuine issue of material fact and that the nonmovant
is entitled to judgment as a matter of law. Abrams v. City of
Chicago, 211 Ill. 2d 251, 257 (2004). Our review is de novo.
Abrams, 211 Ill. 2d at 258.
We initially note that although defendants filed their
motion for summary judgment pursuant to sections 2-202 and 5-106
of the Tort Immunity Act, only section 5-106 applies to the case
at bar. Whereas section 2-202 concerns the execution or
enforcement of law, which was not an issue here, section 5-106
provides:
"Except for willful or wanton conduct,
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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 person to a medical
facility." 745 ILCS 10/5-106 (West 2006).
In the case at bar, there was no dispute that Gonzales was a
public employee in the midst of an emergency call within the
meaning of the Tort Immunity Act. As such, plaintiffs had to
present evidence that Gonzales operated the ambulance in a
willful and wanton manner.
Section 1-210 of the Tort Immunity Act defines "willful and
wanton conduct" as "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." 745 ILCS 10/1-210 (West
2006). Our supreme court has similarly defined "willful and
wanton conduct" as "a course of action which shows actual or
deliberate intent to harm or which, if the course of action is
not intentional, shows an utter indifference to or conscious
disregard for a person's *** safety or property of others."
Pfister v. Shusta, 167 Ill. 2d 417, 421 (1995). Further, our
supreme court has described willful and wanton conduct as " 'a
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hybrid between acts considered negligent and behavior found to be
intentionally tortious. *** Under the facts of one case, willful
and wanton misconduct may be only degrees more than ordinary
negligence, while under the facts of another case, willful and
wanton acts may be only degrees less than intentional
wrongdoing.' " Pfister, 167 Ill. 2d at 422, quoting Ziarko v. Soo
Line R.R. Co., 161 Ill. 2d 267, 275-76 (1994).
Whether conduct is willful and wanton is ultimately a
question of fact. Young v. Forgas, 308 Ill. App. 3d 553, 562
(1999), citing Calloway v. Kinkelaar, 168 Ill. 2d 312, 326
(1995); Doe v. Calumet City, 161 Ill. 2d 374, 390 (1994).
Nonetheless, a court may hold as a matter of law that a public
employee's actions do not amount to willful and wanton conduct
where no other contrary conclusion may be drawn from the record
presented. Young, 308 Ill. App. 3d at 562.
Illinois law is unsettled as to what actions taken by an
emergency vehicle driver constitute willful and wanton conduct.
See Carter v. Simpson, 328 F.3d 948, 951 (7th Cir. 2003). The
parties discussed the leading Illinois cases in their briefs. As
such, we review those cases in analyzing the circuit court's
ruling.
In Hampton v. Cashmore, 265 Ill. App. 3d 23 (1994), an
ambulance passenger sued the ambulance operator and the City of
Waukegan for damages when she was injured in a collision between
the ambulance and a truck. The circuit court granted defendants'
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motion for summary judgment based on the Tort Immunity Act. The
plaintiff appealed based on her contention that a genuine issue
of material fact existed as to whether the defendants' conduct
was willful and wanton.
On appeal, the court upheld the trial court's ruling. The
reviewing court noted that two eyewitnesses testified that they
saw the ambulance's lights and siren were activated as it entered
the intersection against a red light at of a rate of speed of 30
to 35 miles per hour. Hampton, 265 Ill. App. 3d at 27-28. A
third eyewitness testified that the ambulance entered the
intersection when the light was green, but also asserted the
ambulance was traveling about 30 to 35 miles per hour. Hampton,
265 Ill. App. 3d at 28-29. The plaintiff testified that he
neither saw the ambulance's lights nor heard its siren and that
he had the green light. Hampton, 265 Ill. App. 3d at 28. The
ambulance operator admitted that he ran the red light, but
asserted that he slowed the ambulance from 35 miles per hour to
about 15 miles per hour when entering the intersection. Hampton,
265 Ill. App. 3d at 28. Viewing that evidence in a light most
favorable to the plaintiff, the reviewing court upheld the
circuit court's ruling. In doing so, the reviewing court stated:
"We conclude, as a matter of law, that the
record presents insufficient evidence to
raise a question of fact relating to whether
[the ambulance operator] willfully and
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wantonly failed to slow upon reaching the
intersection or maintain a proper lookout for
other traffic." Hampton, 265 Ill. App. 3d at
31.
Similarly, in Young v. Forgas, 308 Ill. App. 3d 553 (1999),
a motorist involved in a collision with a City of Springfield
fire department vehicle filed a multicount complaint against the
firefighter who drove the vehicle and the City of Springfield.
Like Hampton, the trial court granted the defendants' motion for
summary judgment on the counts based on willful and wanton
conduct due to the Tort Immunity Act. The plaintiff appealed.
On appeal, in analyzing the counts based on willful and
wanton conduct, the court disagreed with Hampton. Young, 308
Ill. App. 3d at 563-64. The court noted that as in Hampton, an
eyewitness testified that she saw the fire department vehicle
enter the intersection against a red light without slowing from a
speed of 30 to 40 miles per hour. Young, 308 Ill. App. 3d at
564. This testimony contradicted the testimony of the defendant
driver, who testified he stopped and checked the intersection
before proceeding against the red light, and two eyewitnesses,
who stated that defendant slowed before the accident. Young,
308, Ill. App. 3d at 564.
Unlike Hampton, the reviewing court determined that the
conflicting testimony resulted in the dispute of material facts.
Young, 308 Ill. App. 3d at 564. As such, the reviewing court
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found that the issue was one for a jury and, thus, reversed the
circuit court's grant of summary judgment on the counts of
willful and wanton conduct. Young, 308 Ill. App. 3d at 564.
The United States Court of Appeals for the Seventh Circuit
addressed the disagreement between Hampton and Young in Carter,
328 F.3d at 948. Therein, a motorist filed a three-count suit,
including one count of willful and wanton conduct, against a City
of Evanston police officer for damages suffered in a vehicular
collision with the police officer's car. After the district
court granted the defendants' summary judgment, the plaintiff
appealed.
On appeal, the Seventh Circuit addressed the district
court's ruling of summary judgment on the count of willful and
wanton conduct. In doing so, the Seventh Circuit noted that the
agreed facts showed that the police officer activated his
vehicle's emergency lights and siren, crossed a median, drove
eastbound in westbound lanes to avoid traffic stopped at a red
light, and collided with the plaintiff's vehicle in the
intersection at the light. Carter, 328 F.3d at 949. The
parties, however, disputed whether the police officer slowed down
before he drove into the intersection. Although the police
officer testified that he slowed from 15 to 25 miles per hour to
3 to 5 miles per hour when he entered the intersection, three
eyewitnesses testified that the police officer was driving
anywhere from 35 to 50 miles per hour at all times. Carter, 328
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F.3d at 950.
In analyzing Illinois case law on what actions by an
emergency vehicle driver constituted willful and wanton conduct,
the Seventh Circuit acknowledged the disagreement between Hampton
and Young. Carter, 328 F.3d at 951-52. The court stated:
"And given the disagreement between Young and
Hampton, we disagree with [the defendant]
that his conduct, when construing the
evidence in [the plaintiff'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."
Carter, 328 F.3d at 952.
In this court, plaintiffs, relying on Young and Carter,
contend that given their testimony and the testimony of Kuller
and Lawrence, there remains a genuine issue of material fact as
to whether Gonzales drove in a willful and wanton manner.
Defendants, relying on Hampton, counter that summary judgment was
appropriate given Gonzales' testimony and the speculative nature
of plaintiffs' testimony as to the ambulance's speed.
We agree with defendants. Even viewing the evidence in the
light most favorable to plaintiffs, we cannot agree with their
contention that a genuine issue of material fact existed
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regarding willful and wanton conduct.
In reaching that conclusion, we first address the circuit
court's dismissal of plaintiffs' photographs of the damaged
vehicles as evidence of the ambulance's rate of speed prior to
the vehicles' collision. The admissibility of photographs
normally falls within the discretion of the trial court.
DiCosola v. Bowman, 342 Ill. App. 3d 530, 534 (2003), citing
Bullard v. Barnes, 102 Ill. 2d 505, 519 (1984). Given that
standard, this court has previously upheld circuit court rulings
dismissing photographic evidence of a plaintiff's vehicle damaged
in a collision where the circuit courts found the photographs to
be irrelevant absent expert testimony and thus inadmissible as
evidence of the extent of a plaintiff's injuries suffered in the
collision. DiCosola, 342 Ill. App. 3d at 534-38; Baraniak v.
Kurby, 371 Ill. App. 3d 310, 317-18 (2007).
Although plaintiffs at bar sought to introduce photographs
of the damaged vehicles as evidence of the ambulance's speed
prior to the crash, and not as evidence of their injuries, we
find DiCosola and Baraniak instructive since no expert testimony
was presented in this case to support the photographs. As such,
we find no error with the circuit court's decision not to rely
upon the photographs when it ruled on defendants' summary
judgment motion.
We next turn to the testimonial evidence. In doing so, we
acknowledge that Gonzales admitted he did not stop the ambulance
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at the stop sign at Oakton and Sherman. However, section 11-205
of the Illinois Vehicle Code provides that a driver of an
emergency vehicle may proceed past a stop sign or red light after
slowing (625 ILCS 5/11-205 (West 2006)).
That said, plaintiffs contend that Gonzales did not slow the
ambulance as he drove through the intersection. The basis of
plaintiffs' contention is their testimony that the ambulance was
traveling 50 to 60 miles per hour. In addition, plaintiffs rely
on Kuller's and Lawrence's testimony regarding sounds they heard.
As plaintiffs assert, our supreme court has found that
laymen may express an opinion as to a vehicle's speed. Watkins
v. Schmitt, 172 Ill. 2d 193, 207 (1996). Unlike Watkins and the
other cases upon which plaintiffs' rely, such as Young and
Carter, however, plaintiffs, Lawrence, and Kuller did not testify
that they saw the ambulance prior to the collision. Plaintiffs
simply opined that the ambulance was traveling at a rate of speed
of 50 to 60 miles per hour based on the impact they felt and the
distance their vehicle traveled upon their collision with the
ambulance. Further, neither Kuller nor Lawrence saw the
collision but only heard it.
As such, we are left with Gonzales' testimony regarding the
ambulance's rate of speed prior to the collision. He testified
that he slowed the ambulance to 15 to 20 miles per hour as he
entered the intersection and to 5 miles per hour immediately
before the collision.
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Next, plaintiffs argue that conflicting evidence existed as
to whether Gonzales activated the emergency lights and siren of
the ambulance. We do not agree.
In response to Gonzales' testimony that he activated the
emergency equipment, and Kuller's and Lawrence's testimony that
they heard a siren, plaintiffs merely testified that they did not
recall hearing the sirens prior to the accident. Their simple
failure to recollect hearing the sirens does not directly
contradict the testimony of the other witnesses.
Even if the testimony on this point was contradictory, this
court has held that the failure to activate emergency equipment
does not constitute willful and wanton conduct. Shuttlesworth v.
City of Chicago, No. 1-06-3433, slip op. at 11 (November 5,
2007). Plaintiffs misconstrue the holdings in Young and Carter
to conclude otherwise. Unlike the case at bar, as asserted
above, the holdings in those cases relied heavily on eyewitness
testimony that the defendant drivers were driving their vehicles
at high rates of speed at the time of the collisions.
Finally, plaintiffs argue that Gonzales' failure to stop the
ambulance at the stop sign was evidence of willful and wanton
conduct since he knew his view of westbound traffic would be
partially obstructed as he entered the intersection. For
support, plaintiffs rely upon the Evanston fire department policy
that required an emergency driver to slow down or stop at traffic
signs during an emergency situation.
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First, this court has stated that the "[v]iolation of self-
imposed rules or internal guidelines *** 'does not normally
impose a legal duty, let alone constitute evidence of negligence,
or beyond that, willful and wanton conduct.' " Wade v. City of
Chicago, 364 Ill. App. 3d 773, 781 (2006), quoting Morton v. City
of Chicago, 286 Ill. App. 3d 444, 454 (1997). Thus, a violation
of the Evanston fire department policy would not constitute
evidence of willful and wanton conduct.
Second, as stated above, the record does not support
plaintiffs' contention that Gonzales was driving at a high rate
of speed as he drove through the intersection. As such, even if
Gonzales did not have a clear view of the intersection, his
alleged failure to stop prior to entering the intersection,
despite an obstructed view, would have been at most negligent
conduct. We cannot conclude that Gonzales' conduct demonstrated
an utter indifference to or conscious disregard for others'
safety. Pfister, 167 Ill. 2d at 421.
Accordingly, even viewing the evidence in a light most
favorable to plaintiffs, we conclude there was no genuine issue
of material fact regarding whether Gonzales' actions constituted
willful and wanton conduct.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
circuit court of Cook County.
Affirmed.
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THEIS and CUNNINGHAM, JJ., concur.
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