noting that “unlike an ordinary citizen, the policeman has no option as to whether to respond” (emphasis in original)
How later courts described this case
- noting that “unlike an ordinary citizen, the policeman has no option as to whether to respond” (emphasis in original)
- noting that, like the officer in Johnson, the officer in White was acting in a capacity that required him to have his " 'attention and energies directed towards being prepared to deal with any eventuality' "
- finding “no comparable civilian occupation to that of a traffic patrolman responding to the call of a citizen”
- noting that an officer responding to a citizen “must have his attention and energies directed towards being prepared to deal with any eventuality”
Written by the judges who cited it.
The opinion
JUSTICE RYAN, dissenting:
I do not agree with the majority’s conclusion that the plaintiff was engaged in an “act of duty” as prescribed by statute as a requirement of the enhanced pension when he was injured. The opinion emphasizes the part of the Pension Code that awards duty disability when an officer is disabled as a result of an injury incurred “in the performance of an act of duty.” (Ill. Rev. Stat. 1983, ch. IO8V2, par. 5 — 154.) The majority seems to tie the “act of duty” standard to the nature of the work to which the policeman is assigned, and not to the nature of the work in which he was engaged when injured. I do not agree. The Code defines what is meant by an act of duty. It is “[a]ny act of police duty inherently involving special risk, not ordinarily assumed by a citizen in the ordinary walks of life.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 108x/2, par. 5 — 113.) I do not think that the act of slipping and falling while walking across the street inherently involves a special risk, not ordinarily assumed by a citizen in the ordinary walks of life.
The majority opinion searches for the legislative intent embodied in the statute. However, it fails to discuss an earlier judicial decision and an opinion of this court, which obviously prompted the definition of an act of duty set forth in the present language of the Code. In People ex rel. Donovan v. Retirement Board of the Policemen’s Annuity & Benefit Fund (1927), 326 Ill. 579 , a policeman had been walking across a street in Chicago, as in the case now before us. While doing so he was hit by an automobile. In that case, as in this one, the retirement board argued that the “act of duty” must be a hazardous duty peculiar to police service, and not an act of crossing the street. This court rejected that argument. Almost immediately after the opinion in Donovan was filed, the Pension Code was amended to include the language of the present definition of an act of duty, requiring that the act be one inherently involving a special risk not ordinarily assumed by a citizen in the ordinary walks of life. In response to the board’s argument in this case that the amendment reflected an intent of the legislature to change that holding, the amicus brief in this case argues that the amendment was not in response to this court’s decision in Donovan because the amendment had been introduced prior to the filing of the opinion. I cannot accept this argument because the opinion of this court in Donovan affirmed an order of the circuit court of Cook County awarding a writ of mandamus directing the retirement board to restore the enhanced pension. I find that the amendment was in response to the holding of the circuit court "and to this court’s holding in Donovan, and was meant to change the law as announced in those holdings.
The majority’s opinion may prove to be a serious drain on pension funds because, according to the majority opinion, almost all policemen, excepting those engaged in clerical duties, who are injured at work will be entitled to the enhanced pension. Aside from this danger, however, the majority’s opinion probably will not create too large a rent in the body of the law. If the legislature does not agree with the majority’s holding, it can reject that holding by amending the Code again, as it did in response to this court’s holding in Donovan. However, I would prefer the holding which I have urged herein because I find such a construction is clearly dictated by the language of the Code and by the fact that this language was added following this court’s holding in Donovan. If the legislature were to find that the holding for which I urge does not comport with its present sentiments, then that holding likewise could be easily changed by an amendment to the Pension Code.
JUSTICE MILLER joins in this dissent.