Petition for Writ of Certiorari — Marine Bank v. Hendrickson

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RZ - ; 9 d Z ‘ Supreme Court, U.S,

FFL ED

In The JUN 1 1988

, ISEPH £. SPANIOL, JR,

Supreme Court of the United, Stateser

Germ, 1988

MARINE BANK OF SPRINGFIELD,

as Special Administrator of the

Estate of PATRICIA WELLER, Deceased,

Plaintiff-Appellant

US.

THOMAS HENDRICKSON, SANGAMON COUNTY,

ILLINOIS, DAMON BARLEY, JOHN GREENAN, II,

HARLAND SANDERS, SCOTT ALLIN,

CITY OF SPRINGFIELD, ILLINOIS,

Defendant-A ppellees.

PETITION FOR CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

THOMAS F.. LONDRIGAN

LONDRIGAN, POTTER

& RANDLE, P.C.

1227 South Seventh Street

Post Office Box 399

Springfield, Mlinois 62705

Telephone: (217) 544-9823

Attorney for Petitioner

Pandick Technologies, Inc., Chicago @ (312) 236-0200

QUESTIONS PRESENTED FOR REVIEW

1) Whether federal courts can create decisional law

which conflicts with substantive state law in a tort action

based on diversity of citizenship.

2) Whether granting summary judgment where a

substantial dispute exists without hearing denies the right

of civil trial by jury guaranteed under the Seventh Amend-

ment to the United States Constitution.

TABLE OF CONTENTS

Page

TABLE OF AUITERUIEMMe 6 cc ccc wnscnaccs iv

PRN on 2 sos ea sy ee ee ae 2

TT a a ee RECS eee 2

APPL SUAIIaG Bee 6 ks widksk ne nn bs ORR a 2

STATEMENT OF THE CASE .................. 3

REASONS FOR GRANTING THE WRIT .......... 4

I. The Seventh Circuit Court of Appeal’s Adop-

tion of the Trial Court’s Opinion Violates

the Doctrine of Erie v. Tompkins, 304 U.S. 64

Pee ee on i pee 4

II. The Adoption of the Trial Court’s Opin-

ion, Constitutes a Violation of the Plaintiff's

Right to Trial by Jury Under the Seventh

Fe rere re eer oe ale 15

CONGARSININ | 5.5 60a ee eee arc ee ies 19

APPENDIX

US. Gamah.. ARE ba oe ee ee ha ees la

itt. Rew. Biel, Ga TB, Bete en ns oc ba wt ows la

ltl. Rev.Stat., Ch. 96 1/2, 911-205 2... ccc es la

TPE BR CRO), FO Bee ie ee ee ans 3a

aera es CRA ee ks a a wd 3a

Springfield Police Department General Order #30... 4a

Sangamon County Sheriffs Department, Department

Rules and Regulations, R.72, No. 11.11, 11.12, Plain-

ig Bo ee SS eee ee rere 5a

ill

Trial Court’s Opinion, February 26, 1987 °......... 6a

Unpublished Order adopting the district court’s order

as its own opinion, March 21, 1988 ............. 22a

Order denying petition for rehearing,

ee 24a

Order granting motion to stay mandate,

a eee ee 26a

Page

TABLE OF AUTHORITIES

STATEMENT OF THE CASE

People v. Mudd, 154 Ill.App.3d 808, 507 N.E. 2d 869,

107 TELBpee. TH COE Bete ROBE) cn ccc ccans 4

REASONS FOR GRANTING THE WRIT

I. The Seventh Circuit Court of Appeal’s Adop-

tion of the Trial Court’s Opinion Violates

the Doctrine of Erie v. Tompkins, 304 U.S. 64

en ira a a acl cn sk oe ee ele eg 4

CASES

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

PE a GP do de a bows kee ae Be S08 8

Armstrong v. Mudd, 655 F.Supp. 853, 858 (C.D. Ill.

ey a eye ee ee ee ee §, 11, 12, 15

Brooks v. Lundeen, 49 [ll.App.3d 1, 364 N.E.2d 423

ec) re ere re 12

Erie v. Tompkins, 304 U.S. 64 (1938) ............. 5

Inland Oil & Transport Co. v. U.S., 600 F.2d 725, 727

CE oi oa nae eden Whee waeek ands 9

Moore v. Cook, 22 [ll.App.2d 48, 159 N.E.2d 496

Ss EE Soka chewed bee eae we 6

Ney v. Yellow Cab Co., 2 [1l.2d 74, 117 N.E.2d 74

Ge. “ase Ga ie eae a en abe ae ee 12, 13, 14

Ray v. Cock Robin, Inc., 57 111.2d 19, 23 310 N.E.2d

DE cx thas edhe ccdw ake a eee eeeceaeens 14

Page

Robertson v. White, 635 F.Supp. 851, 870 (W.D.Ark.

Pere rs ene er a eye Fae 9

Scott and Fetzer Company v. Montgomery Ward and

Company, 112 [1]1.2d 378, 393, 493 N.E.2d 1022,

Se CE a's ree wec dele eee eek asakeeaees 14

State v. Fidelity & Casualty Co., 263 F.Supp. 88, 90-

OE Ga ED i 8's SE a eek oe es 5

Sundin v. Hughes, 107 11l.App.2d 195, 246 N.E.2d 100

CO es SD « 6s ob ik he ee oe ae eee eee 6

STATUTES

Tl. Rev.Stat., Ch. 86, $4-102 ........cccccccccces 6

OTHER AUTHORITIES

The Economic Structure of Tort Law, by M. Landes

and A. Posner, p. 11 Harvard University Press,

Ee 86 65 ban co OS CEE OE CEP ea 10

Law & Order, Vol. 33, No. 7, July 1985, p.15 .... 6,10

Bee I Bes Dv 6.5 9-0 0s 6 sk saw eeeeede or 8

II. The Adoption of the Trial Court’s Opin-

ion, Constitutes a Violation of the Plaintiff's

Right to Trial by Jury Under the Seventh

pO Py ee re re er ea re 15

CASES

A.J. Simler v. Leslie E. Conner, 372 U.S. 221

COE x 00-0 & ve ece cates ks Os Re eee 17

Page

Anderson vs. Liberty Lobby, Inc. 477 U.S. 242

tee ere Se ee ree mr ree 17, 18

Armstrong v. Mudd, 655 F. Supp. 853, 858 (C.D.

0, Perea ry eee reer ere errr 18

Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines,

Ltd., 369 U.S. 355, 359-360 (1962) ............. 18

Briggs v. Kerrigan, 431 F.2d 967 Ist Cir.(1970) .... 19

Celotex vs. Catrett, 477 U.S. 317(1986) ........... 17

Cox v. English-Am. Underwriters, 245 F.2d 330

COG Gee. Wes soc cuncén ston eeeeeusesesuass 19

Duncan v_ Louisiana, 391 U.S. 145, 156 (1968) ..... 15

Galloway v. United States, 319 U.S. 372 (1942) ..... 16

Garcia v. Murphy Pacific Marine Salvaging Company,

476 F.2d 303 (5th Cir. 1973) ...............4.. 19

Giordano v. Lee, 434 F.2d 1227 (8th Cir. 1970) ..... 19

Machinery Center, Inc. v. Anchor Nat. Life Ins. Co.,

434 FDS 3 GROG Gar. BRFED ccc ccccccccccecess 19

Shore v. Parklane Hosiery Co. 565 F.2d 815

> ee rrr ry Pere ee ns 19

OTHER AUTHORITIES

Fon, Bee. «0.4.06 200s Kb eee 15

The Yale Law Journal, Vol. 64, February, 1956, Num-

ber 4, Jury Trial and Mr. Justice Black, by Leon

Green, p. 494, footnote 35 ................-545. 17

No.

Inu The

Supreme Court of the United States

Cerm, 1988

MARINE BANK OF SPRINGFIELD,

as Special Administrator of the

Estate of PATRICIA WELLER, Deceased,

Plaintiff-Appellant

8 .

THOMAS HENDRICKSON, SANGAMON COUNTY,

ILLINOIS, DAMON BARLEY, JOHN GREENAN, II,

HARLAND SANDERS, SCOTT ALLIN,

CITY OF SPRINGFIELD, ILLINOIS,

Defendant-Appellees.

PETITION FOR CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

MARINE BANK OF SPRINGFIELD, as Special

Administrator of the Estate of PATRICIA WELLER,

Deceased, prays that a Writ of Certiorari issue to review

the judgment of the United States Court of Appeals for the

Seventh Circuit entered on March 21, 1988, to resolve the

issue of the applicability of federal decisional law to tort

liability of local police agencies in diversity actions and

whether the decision of the federal district court in grant-

ing the Defendants’ motion for summary judgment without

hearing denies the Plaintiff the constitutionally protected

right of civil trial by jury.

OPINION BELOW

The judgment at issue is an unreported order adopting,

in toto, a district court opinion reported at 655 F.Supp 853.

The order of the Court of Appeals and the published opin-

ion of the District Court are reproduced in the appendix

hereto.

JURISDICTION

The decision of the Seventh Circuit Court of Appeals

was issued on March 21, 1988. A timely Petition for

Rehearing en banc was filed on April 4, 1988. Petition for

Rehearing was denied on April 18, 1988. A stay of man-

date to allow the filing of this Petition for Certiorari was

granted until June 6, 1988. This Court’s jurisdiction is

invoked pursuant to 28 U.S.C. §1254(1).

APPLICABLE CONSTITUTIONAL PROVISIONS,

STATUTES, REGULATIONS

Ill.Rev.Stat., Ch. 85, §4-102

Ill.Rev.Stat., Ch. 95 1/2, §11-205

IPI 2d (1961), No. 10.01

IPI 2d (1961), No. 60.01

Springfield Police Department General Order #30

Sangamon County Sheriffs Department, Department Rules

and Regulations, R.72, No. 11.11, 11.12

(All of the foregoing are set forth in the Appendix to

this brief.)

STATEMENT OF THE CASE

Federal jurisdiction for the underlying action is based

upon diversity of citizenship under 28 U.S.C.A. §1332.

The action is brought by the Marine Bank of

Springfield (now known as Springfield Marine Bank),

as special administrator of the Estate of PATRICIA

WELLER, deceased, against Sangamon County, Illinois,

City of Springfield, [linois, and individual police officers

employed either by the Sangamon County Sheriff's office

or the Springfield Police Department.

On May 8, 1982, based upon a telephone report,

Wayne Mudd was suspected of stealing a tire. (Police

transcript, record 72, Plaintiff’s Exhibit 2) When initially

observed by the police, Mudd was on foot, unarmed and

alone in a used car lot. The officer did not observe Mudd

commit any criminal act. (Deposition of John Greenan,

record 75, Plaintiff’s Exhibit 8I, pages 11-13.) When con-

fronted, Mudd ran to his vehicle and began to drive away

at a high rate of speed and the officer initiated pursuit.

(Deposition of John Greenan, record 75, Plaintiff’s Exhibit

8I, pages 10-11.)

In addition to a physical description obtained by

the original investigating officer, the police observed the

license number of Mudd’s vehicle and communicated that

information by radio to the dispatcher and the other

officers engaged in and monitoring the pursuit. (Deposition

of John Greenan, record 75, Plaintiff’s Exhibit 81, page 26.)

Despite the fact that Mudd did not exhibit any dan-

gerous conduct prior to the pursuit, the police continued to

pursue Mudd at high rates of speed over 9 miles through

the corporate limits of the City of Springfield. The original

Springfield police pursuit car went out of control, hit a curb

and it was reported disabled to the dispatcher. Mudd con-

tinued to run stop signs, red lights, and ultimately collided

with Plaintiff’s decedent, Patricia Weller.

Patricia Weller was a single parent supporting two

young sons who rose early that Saturday morning to drive

to a nearby laundromat. Patricia Weller, a totally innocent

bystander, remained in a coma for several years before her

death. Her children became charges of the state of Illinois

and later the states of California and Washington. Mudd

was successfully prosecuted for reckless homicide and he

remains in the custody of the State of Illinois. People v.

Mudd, 154 I1l.App.3d 808, 507 N.E.2d 869, 107 Ill.Dec. 716

(4th Dist. 1987).

Kenneth Katsaris, a law enforcement expert the trial

judge recognized as having “... qualifications to lengthy

too mention ...”, testified in his deposition that the Defen-

dants were negligent in participating in a high risk pursuit

of Mudd after a physical description and vehicle identifica-

tion was obtained. (Deposition of Kenneth Katsaris, record

74, Plaintiff’s exhibit 8A, pages 98-115.) The Defendants

presented experts who gave depositions that they believed

that the officers acted reasonably.

On February 26, 1987, the court granted the motions

for summary judgment of all the Defendants without hear-

ing, pursuant to an Opinion Order of that date.

ARGUMENT

REASONS FOR GRANTING THE WRIT

THE SEVENTH CIRCUIT COURT OF

APPEAL’S ADOPTION OF THE TRIAL

COURT’S OPINION VIOLATES THE DOC.

TRINE OF ERIE v. TOMPKINS, 304 U.S. (1938).

Introductory Argument

The trial court misstated the issue raised by the

Defendants’ Motions for Summary Judgment.

Reduced to a minimum, Plaintiff claims that pur-

suing a criminal through city streets on the suspi-

cion of simple theft is negligence per se where the

police officer possesses a description of the culprit

and the vehicle’s license number. Such an asser-

tion, however, is not-nor should it be-the law in

Illinois.

Armstrong v. Mudd, 655 F.Supp. 853, 858 (C.D.

Ill. 1987)

Pursuit of a theft suspect under the facts of this case

need not be negligence per se under Illinois law to pre-

sent a question of fact for a jury. In opposing a motion for

summary judgment, the Plaintiff only needed to show that

continuation of high risk pursuit under the facts of this

case created an issue of fact for jury determination. How-

ever, the trial court refused to call Defendants’ motions

for hearing, but instead used its own misstatement of the

Plaintiff’s position to peremptorily conclude this case with-

out a hearing.

The trial court published an opinion based largely

upon a broad policy statement expressed in another pub-

lished opinion by a federal district court. State v. Fidelity &

Casualty Co., 263 F.Supp. 88, 90-91 (S.D.W.Va.1967). The

trial court ruled that since initiating a high risk pursuit

is not negligence per se, a jury can never find negligence,

as a matter of law. This is a classic non-sequitur. Never-

theless, the trial court’s published opinion was adopted, in

toto, by the Seventh Circuit Court of Appeals.

This result ignores controlling precedent of the [linois

Supreme Court and intermediate appellate courts. The

district court opinion adopted by the Seventh Circuit carves

out an exception to the Illinois common law and statutory

duty of reasonable care imposed upon its police officers.

A. The law of Illinois requires reasonable

care by its police officers.

The evidence submitted to the trial court created a

question for the jury on the issue of whether the Defen-

dants negligently engaged in a high risk pursuit of a per-

son suspected of simple theft. The trial court was bound

to examine this case under Illinois law. Erie v. Tompkins,

304 U.S. 64 (1938)

At the outset of its opinion the trial court pays lip

service to the Erie doctrine (1938). However, the opinion

itself departs from Illinois law in an effort to immunize

police officers from the foreseeable result of their question-

able conduct. In Illinois, the decision to pursue a suspect

at high speed is a discretionary police function requiring

the exercise of reasonable care under both statutory and

common law. I[ll.Rev.Stat., Ch. 95 1/2, 811-205. Moore v.

Cook, 22 Tll.App.2d 48, 159 N.E.2d 496 (4th Dist. 1959);

Sundin v. Hughes, 107 1l.App.2d 195, 246 N.E.2d 100 (1st

Dist. 1969) There is no statutory mandate compelling an

officer to chase down every “suspect” at all costs. In fact,

the Illinois statutes support the exercise of restraint in

law enforcement by immunizing police officers and agen-

cies from any liability based upon the “failure to identify

or apprehend criminals.” //l.Rev.Stat., Ch. 85, §4-102

B. A genuine issue of disputed fact exists in

all high speed police chases.

The facts in this case are not unique. High speed

police chases and the resultant carnage caused to innocent

bystanders is a problem recognized by responsible police

agencies and has been discussed in police publications and

professional studies for the past twenty years.

For example, more than ten years ago, the

Physicians for Automotive Safety estimated that

more than 500 persons were killed annually in

pursuit-related crashes throughout the United

States. At about the same time, the Center

for the Environment and Man, Inc., a study

funded by the U.S. Department of Transportation,

estimated that 300-400 pursuit-related fatalities

occurred annuallv, that between 2,500-5,000 pur-

suit-related injuries occurred annually, and that

between 250,000-500,000 pursuits occur annually

in the United States.

(Law & Order, Vol. 33, No. 7, July 1985, p. 15)

The trial court’s published opinion, adopted by the Sev-

enth Circuit, gives an absolute license to police agencies

to engage in high speed chases in all cases. It is a judi-

cial paraphrase of a recent controversial California study,

rejected even by the Defendants’ expert on police proce-

dures.

Q. All right. Go ahead and tell me what the results

of that study were and the conclusions they

reached?

A. They studied six months, 683 pursuits if I remem-

ber correctly, and they looked at an incredible

number of pre-chase and post-chase variables and

came to the conclusion — it’s not their words, but

I'm going to interpret it, that it’s worth chas-

ing everyone so that the deterrent effect of law

enforcement is to be seen in the community.

They worded it much better than I can at this

point. But people are going to get injured and

people are going to get killed and that’s the price

we have to pay for protected law enforcement.

Do you agree with the conclusions reached?

Not totally, no, sir.

Q. Explain to me the exceptions that you take or

the differences that you, based on your experi-

ence and expertise, have with the conclusions

that were reached in the California study?

A. They appear to be willing to get involved with

high risk chases that endanger property and life

to a greater degree than I would.

(Deposition of Geoffrey Alpert, R.74, Plaintiff’s

Exhibit 8b, pp. 40-41, emphasis added)

High speed police chases are not warranted in all

cases, nor is it universally recognized by society as“... the

price we have to pay for protected law enforcement.” The

high price Illinois citizens pay to support this type of irre-

sponsible police conduct is borne by an innocent public,

rather than the police agencies creating the risk. The soci-

etal and economic costs are enormous. Illinois has deter-

mined that irresponsible police conduct must be deterred

rather than condoned. Federal judicial activism which

ignores a legitimate state interest in requiring reasonable

conduct by Illinois police agencies flies in the face of the

Erie doctrine.

Reasonable care is a question of fact to be determined

by a jury, not legally defined by a judge. This is evident

from the Illinois Pattern Jury Instructions.

When I use the words “ordinary care”, I mean the

care a reasonable careful person would use under

circumstances similar to those shown by the evi-

dence. The law does not say how a reasonably care-

ful person would act under those circumstances.

That is for you to decide.

I.P.I. Instruction No. 10.02 (emphasis added)

As recently observed by this court, it is not the func-

tion of a federal judge to determine the proper inference

to be drawn from evidentiary facts, nor to ignore the testi-

mony of law enforcement authorities.

Credibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences

from the facts are jury functions, not those of a

judge, whether he is ruling on a motion for sum-

mary judgment or for a directed verdict. The evi-

dence of the nonmovant is to be believed, and all

justifiable inferences are to be drawn in his favor.

Adickes, 398 U.S., at 158-159, 90 S.Ct., at 1608-

1609.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986) (emphasis added)

Some federal district courts have expressed a willing-

ness to adhere to this Court’s rule that summary judgment

must not be used to circumvent the Seventh Amendment.

...Summary judgment should be “cautiously

invoked” so that no person will be improperly

deprived of his Seventh Amendment right to a jury

trial where there is no genuine issue as to any

material fact. Cf. Inland Oil & Transport Co. v.

U.S., 600 F.2d 725 (8th Cir. 1979), cert. denied,

444 U.S. 991, 100 S.Ct. 522, 62 L.Ed.2d 420 (1980).

Robertson v. White, 635 F.Supp. 851, 870

(W.D.Ark. 1986)

The Inland Oil case relied upon by the Arkansas

district court’s published opinion was based upon earlier

expressions of this Court’s warning against the abuse of

summary judgment.

... We recognize at the outset that summary judg-

ment is an extreme remedy which may not be

granted unless the movant has established his

right to the judgment beyond controversy and

that summary judgment is not appropriate where

material facts remain in dispute. Moreover, in rul-

ing on a motion for summary judgment, the dis-

trict court must view the facts in the light most

favorable to the party opposing the motion and

give that party the benefit of all reasonable infer-

ences to be drawn from the evidence. Adickes v.

S.H. Kress & Co., 398 U.S. 144, 153-59, 90 S.Ct.

1598, 26 L.Ed.2d 142 (1970).

Inland Oil & Transport Co. v. U.S., 600 F.2d 725,

727 (8th Cir. 1979)

The trial court’s summary disposition of the substan-

tial claims of an innocent bystander is a signal to Illi-

nois police agencies that the economic consequences of ill-

considered police chases will not be allocated among those

that participate in the misadventure, but will instead be

borne by its innocent victims. Instead of being deterred by

the scrutiny of fellow citizens they are sworn to protect,

Illinois police officers are granted unquestioned discretion

by a federal court to determine whether a high speed chase

should be initiated and the circumstances under which

it should be continued. This unlimited license does not

require a weighing of the relative risk to life and property

of others and ignores state law. If police agencies are not

held responsible for their conduct under state law, they

will continue to act irresponsibly.

... if the incentive to take care is reduced because

the scope of liability is reduced, people will be

less careful, and the infrequent but cumulatively

significant result will be more fatal accidents. A

recent survey of the empirical literature relating

to the effects of tort law on automobile accidents

contains additional evidence that tort law leads to

lower accident rates.

by W.M. Landes and R.A. Posner, The Economic

Structure of Tort Law, p. 11 Harvard University

Press (1987).

C. Law enforcement authorities disagree as

to when high risk police chases are war-

ranted.

The consensus of opinion in the law enforcement com-

munity does not support a duty to engage in high speed

pursuits in all cases. All of the experts retained by the

Defendants in this case acknowledged that the need to cap-

ture a suspect had to be carefully weighed against the dan-

ger to the public inherent in a high speed pursuit. Police

agency commentators analogize a high speed chase to Rus-

sian Roulette.

A situation similar to this occurs hundreds, if

not thousands, of times somewhere in the United

States on a daily basis. Unfortunately virtually

every time it occurs the police officer is play-

ing “Russian Roulette” with the lives of innocent

citizens.

Considering that officers are supposed to be pro-

tecting the lives and property of innocent citizens,

it is indeed paradoxical that in the performance of

their duties they should place lives and property

in jeopardy.

(Law & Order, Vol. 33, No. 7, July, 1985, p. 15)

The employment of high risk pursuits in all cases is a

controversial minority view, even among police agencies.

Whether the police acted reasonably in initiating a high

speed vehicular chase through populated city streets is not

a factual issue that can be disposed of summarily by a

single federal judge.

The great weight of contemporary authority holds that

high risk police chases are only justified in those few cases

where police officers reasonably believe immediate appre-

hension is necessary to prevent further risk to the public.

The facts of each case require a weighing of such risks. The

police agencies refused to weigh those risks in this case.

The trial court also refused to weigh those risks before

denying the Plaintiff a right to a jury trial and the Sev-

enth Circuit has embraced the trial court’s opinion as its

own. This is not the law of Illinois.

D. Negligence and Proximate Cause Under

Illinois Law

The trial court acknowledged that the police “caused”

a high speed chase, yet held that the police agency had

no responsibility for the foreseeable result of their actions.

The rationale for this conclusion was because, under /ndi-

ana law, “police cannot be made insurers.” The trial court

again ignored Illinois law to search out obscure authority

from foreign jurisdictions.

... Undoubtedly the officers’ actions caused Mudd

to drive recklessly. Still, the conclusion that the

patrolmen are responsible for the results of the

criminal’s behavior does not follow. “Police can

not be made insurers of the conduct of the cul-

prits they chase.” Bailey v. L.W. Edison Charita-

ble Foundation, 152 Ind.App. 460, 468, 284 N.E.2d

141, 146 (3d Dist. 1972).

Armstrong v. Mudd, 655 F.Supp. 853, 859 (C.D.Tll.

1987) (emphasis added)

The trial court also found solace in one Illinois appel-

late court decision dealing with a directed verdict where

the injured party was a willing participant in an attempt

to escape the police, rather than an innocent bystander.

From that case the trial court seized upon a single quote,

“The officers’ conduct was reasonably foreseeable, As such,

their conduct could not be the proximate cause of the acci-

dent. /d. at 1080-81, 99 Ill.Dec. at 19-20, 495 N.E.2d at

84-85.” Armstrong v. Mudd, 655 F.Supp. 853, 860 (C.D.iIl.

1987).

This is also a classic non sequitur. “Foreseeable” con-

duct by police officers certainly does not negate proof of

causation. The Illinois Rule is: if the officers’ conduct pro-

duces foreseeable injury, the issue of causation must be

submitted to the jury. The trial court disposed of the impor-

tant appellate case of Brooks v. Lundeen, 49 [1l.App.3d

1, 364 N.E.2d 423 (2nd Dist. 1977) in a footnote, and

completely ignored the controlling decision of the [linois

Supreme Court. Ney v. Yellow Cab Co., 2 [l.2d 74, 117

N.E.2d 74 (1954).

The preeminent case in Illinois on the issue of when

negligence and proximate cause are jury questions in cases

involving a fleeing criminal is Ney. The [Illinois Supreme

Court’s opinion in Ney mandated that questions of reason-

able care and proximate cause be determined by a jury

where reasonable men could differ as to a result.

Questions of negligence, due care and proximate

cause are ordinarily questions of fact for a jury to

decide. The right of trial by jury is recognized in

the Magna Charta [sic], our Declaration of Inde-

pendence and both our State and Federal constitu-

tions. It is a fundamental right in our democratic

judicial system. Questions which are composed of

such qualities sufficient to cause reasonable men

to arrive at different results should never be deter-

mined as matters of law. The debatable quality

of issues such as negligence and proximate cause,

the fact that fair-minded men might reach dif-

ferent conclusions, emphasize the appropriateness

and necessity of leaving such questions to a fact-

finding body. The jury is the tribunal under our

legal system to decide that type of issue. To with-

aniline tt

draw such questions from the jury is to usurp its

function (citation omitted),

Ney v. Yellow Cab Co., 2 Tll.2d 74, 84, 117 N.E.2d

74 (1954).

In Ney, the Defendant left his cab unattended and it

was stolen by a third party who “while in flight ran into

the Plaintiff’s vehicle.” The defendant’s conduct in Ney

merely facilitated the theft of the vehicle. There was no

initiation of a pursuit, nor any action on the part of the

defendant that “caused” the flight that resulted in an acci-

dent. [To follow the rationale of the trial court adopted by

the Seventh Circuit, leaving a cab unattended was foresee-

able and, therefore could not be the proximate cause of the

accident.] Yet the Illinois Supreme Court held that such

conduct could constitute a proximate cause of the accident

and, therefore, the evidence was sufficient to submit that

issue of fact to the jury.

The law of probable cause holds that an injury

which is the natural and probable consequence of

an act of negligence is actionable and such an act

is the proximate cause of the injury.

Ney v. Yellow Cab Co., 2 Tl.2d 74, 80, 117 N.E.2d

74 (1954).

In holding that a jury must determine whether leaving

a vehicle unattended was a proximate cause of the acci-

dent, the Illinois Supreme Court recognized that the jury

expresses the state’s common law on that issue.

The common law has established itself in the his-

tory of jurisprudence because of its flexibility in its

recognition of and adaptation to changing times

and mores; and, as adopted by our legislature, “is a

system of elementary rules and of general declara-

tions of principles, which are continually expand-

ing with the progress of society, adapting them-

selves to the gradual changes of trade, commerce,

arts, inventions and the exigencies and usages of

the country.”

* - *

Justice requires that we do more than honor and

respect prior judicial decisions, for if only these

two considerations were our guideposts then the

path of jurisprudence would never change irre-

spective of a changing world. Cases similar in

facts to the one at bar have reached the higher

courts of this State, of Massachusetts, Minnesota,

Indiana, Michigan, Louisiana, New York, New

Jersey, and the District of Columbia, wherein

experienced and learned lawyers and judges have

differed on this question of probable cause. That

reasonable minds can and have disagreed on this

question cannot be denied. With these incontro-

vertible facts before us, we recall the reasoning

of Justice Cardozo, that the range of reasonable

apprehension is at times for the court, and at

times, if varying inferences are possible, a ques-

tion for the jury. The possibility of varying infer-

ences in a case such as the one before us has

been amply demonstrated. Certain facts may exist

which a jury of reasonable men would consider

as determinative in leading to a conclusion of lia-

bility or nonliability, all according to the circum-

stances of the particular case.

Ney v. Yellow Cab Co., 2 [ll.2d 74, 81, 82, 117

N.E.2d 74 (1954)

If the reckless operation of a stolen car by the thief in

Ney could be a foreseeable consequence of thoughtlessly

leaving a vehicle unattended, the intentional pursuit of

a suspected thief which admittedly “causes” his reckless

flight, must necessarily create a jury question on the issue

of proximate cause. The Ney rationale of foreseeability has

been repeatedly cited by the Illinois Supreme Court as the

law applicable to the issue of proximate cause for the past

thirty years. Ray v. Cock Robin, Inc., 57 111.2d 19, 310

N.E.2d 9 (1974); Scott and Fetzer Company v. Montgomery

Ward and Company, 112 111.2d 378, 393, 493 N.E.2d 1022,

1028 (1986).

The trial court’s opinion failed to even mention Ney

———— eee

and its progeny. Instead, the trial court cited opinions from

the Sixth Circuit Court of Appeals and the District Court

of West Virginia. (See trial court’s opinion, Armstrong v.

Mudd, 655 F.Supp. 853, 856-857 (C.D.Ill. 1987) There has

been no applicable body of substantive federal common law

in federal diversity cases since the Erie decision in 1938.

Unless this Court abandons Frie it should not approve the

redevelopment of such a body of law.

Il.

THE ADOPTION OF THE TRIAL

COURT’S OPINION, CONSTITUTES A

VIOLATION OF THE PLAINTIFF'S RIGHT

TO TRIAL BY JURY UNDER THE SEV-

ENTH AMENDMENT.

“In suits at common law...the right of trial by jury

shall be preserved...” U.S. Constitution, Amend-

ment VII.

Twenty years ago this Court reminded us that our

founding fathers were reluctant to abandon jury trials and

wanted constitutional protection against a single judge or

group of judges usurping that function.

Beyond this, the jury trial provisions in the Fed-

eral and State Constitutions reflect a fundamen-

tal decision about the exercise of official power — a

reluctance to entrust plenary powers over the life

and liberty of the citizen to one judge or to a group

of judges.

Duncan v. Louisiana, 391 U.S. 145, 156 (1968)

Our founding fathers were even more explicit in their

reasons for including the right of civil trial by jury in

our Bill of Rights. Patrick Henry argued strongly against

adoption of the U.S. Constitution without an amendment

guaranteeing the right of civil trial by jury.

Patrick Henry:

“Trial by jury is the best appendage of

freedom ...We are told that we are to part with

that trial by jury with which our ancestors secured

their lives and property ...I1 hope we shall never

be induced, by such arguments, to part with that

excellent mode of trial.”*

These arguments were answered in the Federalist,

No. 83, assuring the states that a federal government

would never abridge the right of civil jury trial.

“The friends and adversaries of the plan of the

convention, if they agree in nothing else, concur

at least in the value they set upon the trial by

jury; or if there be any difference between them it

consists in this: the former regard it as a valuable

safeguard to liberty; the latter represent it as the

very palladium of free government.”*

Both Jefferson and Madison reaffirmed their strong

convictions that the provisions of the Seventh Amendment

guaranteeing civil trial jury would remain inviolate.

Thomas Jefferson:

“I consider trial by jury as the only anchor ever

yet imagined by man, by which a government can

be held to the principles of its constitution.” 3

Writing of Thomas Jefferson (Washington ed.) 71.*

James Madison

“Independent tribunals of justice will consider

themselves in a peculiar manner the guardians of

those rights; . . . they will be naturally led to resist

every encroachment upon rights expressly stipu-

lated for in the Constitution by the Declaration of

right.”*

There was no question but that the federal judiciary was

constitutionally precluded from removing genuine issues of

fact from the province of a civil jury.

Justice Hugo Black championed the right of jury trial

* All of the foregoing quotes are found in the diasent of Justice

Black in Galloway v. United States, 319 U.S. 372, 396-411 (1942).

eee

against judicial usurpation, and in the February 1956

issue of the Yale Law Journal in commemoration of his

70th birthday, Professor Leon Green traced briefly the his-

tory of civil jury trial and Mr. Justice Black’s position. In

a closing footnote, Professor Green noted:

“Fortunately there are other devoted

guardians of jury trial and of the integrity of trial

courts to be found in the state and federal systems.

... But such judges are rare and they may well be

the last great judges who intelligently fight the

battle for the jury. For the power of organiza-

tion, the volume and haste of the flow of business,

and the mesh of doctrine are steadily and remorse-

lessly taking jury trial (except for the formality)

out of play as a mechanism for the protection of

the individual’s rights in civil matters.”

The Yale Law Journal, Volumn 64, Febru-

ary, 1956, Number 4, Jury Trial and Mr. Justice

Black, by Leon Green, p. 494, footnote 35.

However, this Court has reaffirmed its position that

civil jury trial is a federally protected constitutional right

in diversity actions filed in federal courts.

We agree with respondent that the right to

a jury trial in the federal courts is to be deter-

mined as a matter of federal law in diversity as

well as other actions. The federal policy favoring

jury trials is of historic and continuing strength.

[Citation omitted.} Only through a holding that

the jury trial right is to be determined according

to federal law can the uniformity in its exercise

which is demanded by the Seventh Amendment be

achieved.

A.J. Simler v. Leslie E. Conner, 372 U.S. 221

(1963)

The trial court cited two recent expressions of this Court,

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) and

Celotex Corp. v. Catrett, 477 U.S. 317 (1986), as if federal

district courts had been given additional discretion to sum-

marily dispose of civil litigation. (See trial court’s opinion

Armstrong v. Mudd, 655 F.Supp. 853, 856-857.) However,

this Court made clear that it did not intend to vest a judge

with fact finding functions constitutionally reserved to a

civil jury.

Our prior decisions may not have uniformly

recited the same language in describing genuine

factual issues under Rule 56, but it is clear enough

from our recent cases that at the summary judg-

ment stage the judge’s function is not himself to

weigh the evidence and determine the truth of the

matter but to determine whether there is a gen-

uine issue for trial.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986)

The proper use of summary judgment has been repeat-

edly approved by this Court where no genuine issue of

material fact exists, however, it has never authorized a

predetermination of disputed facts.

... But neither we nor the Court of Appeals can

redetermine facts found by the jury any more than

the District Court can predetermine them. For the

Seventh Amendment says that “no fact tried by a

jury, shall be otherwise reexamined in any Court

of the United States, than according to the rules

of the common law.”

... As we recently stated in another diversity

case, it is the Seventh Amendment that fashions

“the federal policy favoring jury decision of dis-

puted fact questions.” Byrd v. Blue Ridge Rural

Elec. Cooperative, 356 U.S. 525, 538, 539. And see

Herron v. Southern Pac. Co., 283 U.S. 91, 94-95.

Atlantic & Gulf Stevedores, Inc. v. Ellerman

Lines, Ltd., 369 U.S. 355, 359-360 (1962) (empha-

sis added)

Most federal circuits have adhered to this Court’s

admonition regarding the preemptory use of summary

judgment.” However, the Seventh Circuit refuses even

superficial scrutiny of either the trial court’s summary dis-

position of contested issues of fact or its refusal to recognize

controlling precedent of the Illinois Supreme Court.

CONCLUSION

This decision is not compatible with [Illinois law

and, therefore, is at variance with this Court’s doctrine

expressed in Erie. Neither is the use of summary judg-

ment consistent with the Seventh Amendment’s guarantee

of civil jury trial as it has been interpreted by this Court

and the majority of federal circuit courts of appeal.

For the reasons stated herein, Petitioner prays that

this Court issue a writ of certiorari to the Seventh Circuit

Court of Appeals.

Respectfully submitted,

THOMAS F. LONDRIGAN

LONDRIGAN, POTTER

& RANDLE, P.C.

1227 South Seventh Street

Post Office Box 399

Springfield, Nlinois 62703

Telephone: (217) 544-9823

Attorney for Petitioner

** The First Circuit, Briggs v. Kerrigan, 431 F.2d 967 (ist Cir.

1970); the Second Circuit, Shore v. Parklane Hosiery Co., 565

F.2d 815 (2d Cir. 1977); the Fifth Circuit, Garcia v. Murphy

Pacific Marine Salvaging Company, 476 F.2d 303, (5th Cir. 1973);

the Eighth Circuit, Giordano v. Lee, 434 F.2 1227 (8th Cir. 1970),

cert. den. 403 US. 931 (1971); the Ninth Circuit, Coz v.

English-Am. Underwriters, 245 F.2d 330 (9th Cir. 1957); the

Tenth Circuit, Machinery Center, Inc. v. Anchor Nat. Life Ins.

Co., 434 F.2d 1 (10th Cir. 1970).

APPENDIX

U.S. Const. Amendment VII.

In Suits at common law, where the value in contro-

versy shall exceed twenty dollars, the right of trial by jury

shall be preserved, and no fact tried by a jury, shall be

otherwise re-examined in any Court of the United States,

than according to the rules of the common law.

Ill.Rev.Stat., Ch.85, §4-102 Police protection

§4-102. Neither a local public entity nor a public

employee is liable for failure to establish a police depart-

ment or otherwise provide police protection service or, if

police protection service is provided, for failure to provide

adequate police protection or service, failure to prevent the

commission of crimes, failure to detect or solve crimes, and

failure to identify or apprehend criminals. This immunity

is not waived by a contract for private security service, but

cannot be transferred to any non-public entity or employee.

Laws 1965, p. 2983,§ 4-102, eff. Aug. 13, 1965. Amended

by P.A. 84-1431, Art. 1, § 2, eff. Nov. 25, 1986.

Ill.Rev.Stat., Ch. 95/2, 811-205 Public officers and

employees to obey act—Exceptions

(a) The provisions of this Chapter applicable to the

drivers of vehicles upon the highways shall apply to the

drivers of all vehicles owned or operated by the United

States, this State or any county, city, town, district or any

other political subdivision of the State, except as provided

in this Section and subject to such specific exceptions as set

forth in this Chapter with reference to authorized emer-

gency vehicles.

(b) The driver of an authorized emergency vehicle,

when responding to an emergency call or when in the pur-

suit of an actual or suspected violator of the law or when

responding to but not upon returning from a fire alarm,

may exercise the privileges set forth in this Section, but

subject to the conditions herein stated.

1. Park or stand, irrespective of the provisions of this

Chapter;

2. Proceed past a red or stop signal or stop sign, but

only after slowing down as may be required and necessary

for safe operation;

3. Exceed the maximum speed limits so long as he does

not endanger life or property;

4. Disregard regulations governing direction of move-

ment or turning in specifed directions.

(d) The exceptions herein granted to an authorized

emergency vehicle, other than a police vehicle, shall apply

only when the vehicle is making use of either an audi-

ble signal when in motion or visual signals meeting the

requirements of Section 12-116 of this Act.

(e) 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.

(f) The provisions of this Chapter, with the exception of

Articles [V and V of this Chapter,’ do not apply to persons,

teams, motor vehicles and other equipment while actually

engaged in work upon the suface of the highway but apply

to such persons and vehicles when traveling to or from such

work.

P.A. 76-1586, § 11-205, eff. July 1, 1970. Amended by P.A.

76-1737, § 1; P.A. 76-1997, § 1, eff. July 1, 1970.

* Chapter 95 2, §§ 11-401 et seq., 11-501 et seq.

ILLINOIS PATTERN JURY INSTRUCTIONS (IPI 2d)

10.01 Negligence-Adult-Definition

When I use the word “negligence” in these instuctions,

I mean the failure to do something which a reasonably

careful person would do or the doing of something which

a reasonably careful person would not do, under circum-

stances similar to those shown by the evidence. The law

does not say how a reasonably careful person would act

under those circumstances. That is for you to decide.

60.01 Violation or Statute of Ordinance

There was in force in the [State of Dlinois] [City

of ______] at the time of the occurrence in question a

certain [statute] [ordinance] which provided that:

[Quote, or paraphrase, applicable part of statute

or ordinance as constructed by the courts.]

If you decide that [a party] [the parties] violated the

[statute] [ordinance] on the occasion in question, then you

may consider that fact together with all the other facts and

circumstances in evidence in determining whether or not [a

party] [the parties] [was] [were] [contributorily] negligent

before and at the time of the occurrence.

SPRINGFIELD POLICE DEPARTMENT

GENERAL ORDER #30 7-9-75 7-24-75

Date of Issue Effective Date

SUBJECT: High Speed Pursuits

DISTRIBUTION: Rescinds, Amends and Updates

all other special instructions

ALL POLICE PERSONNEL

PLAINTIFF'S EXHIBIT 3

It is not expected that a person will be pursued to the point

where the life of the officer or violator or other persons be

placed in jeopardy. It shall be considered impracticable to

continue a vehicle chase through areas of high traffic con-

gestion, through school zones where children are going to

and from schools, or in other areas where a speeding motor

vehicle can obviously become involved in an accident.

The radio unit should be utilized to its fullest extent in

informing other police vehicles of the chase and location,

and if possible, the license number and identification of the

auto, driver or passengers. Once an identification has been

made, the pursuit should be discontinued with the prose-

cution eventually being concluded by means of a warrant

of arrest.

Deadly force can result in the loss of life, therefore, the use

of deadly force is to be avoided in all cases except forcible

felonies (murder, rape, robbery, etc.). Suspicion alone is

not sufficient enough for the use of deadly force. Just as a

gun is considered deadly force, so is an automobile used to

force another vehicle off the road. There will be no attempt

to slow or stop a suspect vehicle by positioning the police

unit directly in front of the suspect vehicle, nor will the

bumping of the suspect vehicle in an effort to force him off

the road be allowed.

Under no conditions is an unmarked police vehicle to

become involved in a high speed pursuit. Barricading of

a roadway by the use of a police vehicle will be used only

as a last resort in felony cases and under no circumstances

will the road be barricaded by occupied vehicles or the use

of private vehicles. The police vehicle may be used as a

barricade only if no other suitable equipment is available.

SANGAMON COUNTY SHERIFF’S DEPARTMENT -

DEPARTMENT RULES AND REGULATIONS

Operating Vehicles Under Emergency Conditions

11.11 When responding to an emergency assignment, the

officer will not operate his vehicle at a speed or in a manner

that interferes with his complete control of it at all times.

He will nct proceed through intersections or traffic signals

until he is sure that all other traffic has yielded the right-

of-way. The basic rules of traffic safety will be adhered to

at all times regardless of the nature of the assignment.

11.12 When operating an emergency vehicle in pursuit of a

known or suspected offender, the officer will always weigh

the risks involved against the nature of the offense which

caused the pursuit. Pursuit will be terminated when, in

the officer’s best judgment, the risks of high-speed pursuit

outweigh the desirability of apprehension. This is espe-

cially true when the only known offense is a traffic mis-

demeanor violation. Pursuit shall always be terminated

when the officer’s safety or the sefety of others on the high-

way is in jeopardy.

ARMSTRONG v. MUDD

Cite as 655 F.Supp.853 (C.D.Tll. 1987)

APPENDIX A

Wanda Parker ARM-

STRONG, as Special

Administrator of the

Estate of Patricia Weller,

Deceased, Incompetent,

Plaintiff,

United States District Court,

v. | C.D Illinois,

ingfield Division.

Wayne MUDD, Officer \ ee

Thomas Hendrickson, | No. 85-3478.

Sergeant Damon Barley, —

Sangamon County, Illi- Feb. 26, 1987.

nois, Officer John J.

Greenan II, Officer Har-

land Sanders, Officer

Scott Allin, and City of

Springfield, Illinois,

Defendants.

Special administrator for driver’s estate filed suit seek-

ing recovery for the injury to and subsequent death of the

driver as a result of a collision with the vehicle being

driven by a fleeing criminal suspect. City and County

police officers filed motions for summary judgment. The

District Court, Mills, J., held that: (1) the applicable stan-

dard of care was reasonable care; (2) the city and county

police officers used reasonable care in their pursuit of a

theft suspect; and (3) even if the officers were initially neg-

ligent, that negligence was too remote to be considered a

proximate cause of the accident.

Motions for summary judgment allowed.

1. Automobiles 187

City and county officers had duty to exercise reason-

able care for safety of other persons when officers engaged

in pursuit of suspected law violator. [11.S.H.A. ch. 95 ¥2,

2. Automobiles 244(1)

General guidelines referring only to use of due care

in line of city and county officers’ duty were insufficient

to establish that officers breached their duty of reasonable

care in pursuing criminal suspect. [11.S.H.A. ch. 95 2,

3. Automobiles 244(1)

Fact that city and county patrolmen ran red lights,

proceeded in wrong directio on one-way streets and sur-

passed speed limit did not establish that officers used

less than reasonable care in pursuing criminal suspect.

N1.S.H.A. ch. 95 Y2, ¢ 11-205.

4. Automobiles 187

It was not negligence per se for city and county officers

to pursue criminal suspect through city streets on mere

suspicion of simple theft. 111.S.H.A. ch. 95 ¥2, € 11-205.

5. Automobiles 201(1)

Direct and proximate cause of driver’s death was utter

disregard by criminal suspect of authority in running from

police and his lack of due care in recklessly operating his

vehicle, not any alleged breach of duty of due care on part

of city and county officers.

6. Automobiles 201 (7)

Even if city and county patrolmen were initially negli-

gent in pursuing criminal suspect, their negligence was too

remote to be considered proximate cause of accident which

occurred when suspect’s vehicle collided with driver’s auto-

mobile after city officers had abandoned pursuit and after

county officers had significantly reduced their speed and

Alexandra de Saint Phalle, Springfield, Ill., for

plaintiff.

Frederick P. Velde, Robert E. Gillespie, Sue

Myerscough, Springfield, [l., Asher Geisler, Decatur, II1.,

for defendants.

OPINION ORDER

MILLS, District Judge:

High speed chase.

The fleeing criminal suspect hits decedent’s car.

Her administrator sues the police.

The police all move for summary judgment.

Motions allowed.

Plaintiff, special administrator for the estate of

Patricia Weller, brings this lawsuit pursuant to the IIli-

nois Wrongful Death, Ill. Rev.Stat. ch. 70, § 1, and

Survival Acts, Ill.Rev.Stat. ch. 110 /2, ¢ 27-6.' She seeks

recovery in sixteen counts for the injury to and subse-

‘The Wrongful Death Act reads in relevant part:

Whenever the death of a person shall be caused by

wrongful act, neglect or default, and the act, neglect or

default is such as would, if death had not ensued, have

entitled the party injured to maintain an action and

recover damages in respect thereof, then and in every

such case the person who or company or corporation

(Footnote continued on the following page)

quent death of the deceased as a result of a 1982 vehi-

cle collision with Defendant Wayne Mudd, a fleeing crim-

inal suspect.? The complaint alleges negligence not only

against Mudd, but also the pursuing patrolmen and their

respective employers.’

Jurisdiction is premised upon diversity of citizenship,

28 U.S.C. § 1332(a)* , and Illinois substantive law gov-

erns. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct.

817, 82 L.Ed. 1188 (1938).

Now before the Court are the Defendant police officers’

motions for summary judgment under Fed.R.Civ.P. 56. The

underlying events appear not in dispute. Rather, the query

1 (continued)

which would have been liable if death had not ensued,

shall be liable to an action for damages, notwithstand-

ing the death of the person inured, and although the

death shall have been caused under such circumstances

as amount in law to felony.

Ill.Rev.Stat. ch. 70, 4 1.

Likewise, the survival statute states: “In addition to the

actions which survive by the common law, the following also sur-

vive: ... actions to recover damages for an injury to the person

(except slander and libel),....” Ill.Rev.Stat. ch. 110 /2, § 27-6.

2In the wrongful death counts, Plaintiff, on behalf of the

deceased’s two minor sons and herself as mother, seeks compen-

sation in exceas of $ 15,000 for the deprivation of love, affection,

society, services, and earnings.

Similarly, she requests a like amount in the survival claims

for decedent’s less of income and injury compensation during a

three year period of incapacitation.

3 The parties agree that the police officers were acting within

the scope of their employment at the time of the occurrence.

*Complete diversity is present in this instance. ll the

Defendants reside in Illinois while the special administrator

and estate beneficiaries are domiciled in either California or

Washington. See Wilsey v. Eddingfield, 780 F.2d 614 (7th

Cir.1985), cert. denied, _. US. , 106 S.Ct. 1660, 90 L.Ed.2d

202 (1986).

10a

is whether such circumstances give rise to genuine issues

of material fact regarding (1) the officers’ alleged breach of

the appropriate care standard, and (2) the proximate cause

of the deceased’s peril.

The Court finds that they do not. Summary judgment

is proper.

Background

At approximately 6:00 a.m. on May 8, 1982, Spring-

field Police Officers John Greenan and Harland Sanders

responded separately to a report of theft in progress at the

OK Corral, a used car lot near the intersection of Taylor

Avenue and Stevenson Drive in the southeast corner of the

city. According to the complaint, both men observe the sus-

pect, later identified as Wayne Mudd, enter a green Mer-

cury Marquis and begin to flee. Siren and lights activated,

Officer Greenan pursued Mudd north on Taylor, followed

by Officer Sanders. Subsequently, the pursuit proceeded

east on South Grand Avenue, southeast on Rochester Road,

and south on Dirksen Parkway. Returning to Stevenson

Drive, the accused then advanced west to Sixth Street,

where he traveled north. (See Appendix.) During this peri-

od, both patrolmen were in constant communication with

the city’s dispatch officer. Greenan relayed the suspect’s

license number and requested assistance.

As a result, County Officer Thomas Hendrickson,

accompanied in his squad car by Sergeant Damon Barley,

received notice of the pursuit via the Illinois State Police

Emergency Radio Network. Proceeding to the intersection

of Sixth and Ash Streets, they joined in a roadblock with

two city units.

Apparently spotting the barrier, Mudd turned west

onto Cornell Avenue, one block south of Ash. Unable to

make the corner, Officer Greenan progressed north to Ash

where his attempted left turn resulted in the police car

striking the curb. His vehicle inoperable, Greenan aban-

lla

doned the chase.

In the meantime, Officer Sanders had advanced west

onto Broad Place, one street prior to Cornell, hoping to cut

off the fleeing suspect. He then heard over the radio that

Mudd was northbound on Fourth Street. Having lost his

quarry, Sanders shut off his siren and slowed down. He,

too, abandoned the chase.

Officer Hendrickson and Sergeant Barley, however,

continued the pursuit when Mudd averted the roadblock.

Followed by city officer Scott Allin, the county car pro-

ceeded to Conell, becoming the lead unit behind the sus-

pect. According to Allin, the chase endured at a speed of

approximately 45 m.p.h.° Both cars activated their emer-

gency equipment-flashing lights and sirens.

Within a few seconds, Mudd had gained over a one

block lead on Officer Hendrickson. Officer Allin reported

that when the county car reached Laurel Street, on which

the suspect had proceeded west, both patrolmen had lost

sight of the Mercury. Allin then terminated his emergency

apparatus and withdrew from the hunt.

The uncontradicted police report filed by Officer Hen-

drickson and supported by his deposition describes the final

seconds of Mudd’s nine mile adventure:

R/0 [Reporting Officer] turned onto Cornell just in

time to see Mudd turn north on 4th St. R/O almost

came to a dead stop at 5th St. due to parked vehi-

5 The Court notes that counsel for the city and its officers has

done a less than desirable job of supplementing the record with

the relevant facts. Thus, the events leading to the accident have

been extracted in large part from the depositions of the county

officer and Plaintiff’s expert.

The Court reminds all litigants that motions for summary

judgment are fact-based. Counsel should set forth the circum-

stances underlying the dispute in a memorandum, supported by

the appropriate affidavits, despositions and documents. Only

then can the Court apply the law.

12a

cles on 5th St. blocking R/O’s view. R/O then pro-

ceeded across 5th St. to 4th St. As R/O turned

north on 4th, R/O saw Mudd’s vehicle already

across Ash St. and still proceeding north at a high

rate of speed on 4th St. R/O approached Ash and

again came to almost a complete stop as two (2)

autos were approaching side by side on Ash from

the west. These two (2) vehicles stopped and R/O

crossed Ash still northbound on 4th. R/O then saw

the Mudd vehicle turn west on Laurel. Imme-

diately Sgt. Barley reported, on County channel

on (1) that the suspect vehicle was westbound on

Laurel. R/O then said, “we’ve lost him, Damen”.

When the Mudd vehicle turned west on Laurel,

R/O had just crossed Ash St. At that time R/O

believed that the only chance of keeping track of

the vehicle was if another officer was on Laurel

and could see the Mudd vehicle. R/O proceeded to

Laurel on 4th and looked west but did not see the

Mudd vehicle on Laurel. R/O drove west on Laurel

crossing the 3rd St. railroad tracks and saw the

Mudd vehicle sitting in a gasoline station lot at

Spring and Laurel Streets. R/O quickly proceeded

to Spring and Laurel as Sgt. Barley radioed the

message of a traffic accident involving the suspect

vehicle.

Mudd had collided with an auto driven by Patricia Weller

at the intersection of Spring and Laurel Streets.

The decedent was rendered incompetent for the dura-

tion of her life.

She died July 28, 1985.

Summary Judgment

Under Rule 56(c), summary judgment should enter “if

the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a mat-

ter of law”. Fed.R.Civ.P. 56(c). Unquestionably, in deter-

mining whether a genuine issue of material fact exists,

13a

the evidence is to be taken in the light most favorable to

the nonmoving party. Adickes v. S.H. Kress & Co., 398

U.S. 144, 158-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142

(1970). Nevertheless, the rule is also well established that

the mere existence of some factual dispute will not frus-

trate an otherwise proper summary judgment. Anderson

v. Liberty Lobby, Inc., __.U.S.__, 106 S.Ct. 2505, 2510,

91 L.Ed.2d 202 (1986); Federal Deposit Ins. Corp. v. Meyer,

781 F.2d 1260, 1267 (7th Cir.1986). Thus, the “preliminary

question for the judge [is] not whether there is literally no

evidence, but whether there is any upon which a jury could

properly proceed to find a verdict for the party producing

it, upon whom the onus of proof is imposed.” Anderson,

106 S.Ct. at 2511, quoting Improvement Co. v. Munson, 81

U.S. (14 Wall.) 442, 448, 20 L.Ed. 867 (1872); see also

Celotex Corp. v. Catrett, _. U.S. __, 106 S.Ct. 2548, 2553,

91 L.Ed.2d In other words, the Court must consider the

evidence “through the prism of the substantive evidentiary

burden” in deciding Defendant’s motion. Anderson, 106

S.Ct. at 2513; Carson v. Allied News Co., 529 F.2d 206,

210 (7th Cir.1976). Applying this standard, the Court now

turns to an analysis of the case at bar.

Discussion

In essence, Plaintiff maintains each officer involved

in the chase was negligent in pursuing Mudd through the

streets of Springfield on a mere suspicion of theft.® She

claims the Defendants failed to exercise due care in disre-

garding proper police procedures, thereby jeopardizing the

lives of innocent people. As a result of their actions, Plain-

tiff concludes the officers proximately caused the death of

Patricia Weller.

® Proof of negligence consists of evidence showing a duty to the

injured party, a breach of that duty and an injury proximately

resulting from the breach. Neering v. Illinois Central R.R. Co.,

383 Ill. 366, 382, 50 N.E.2d 497, 504 (1943).

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With her conclusion, however, no reasonable jury

could agree.

A. The Standard of Care

{1] The Administrator is correct in stating that police

officers must exercise a degree of care for the safety of other

persons when engaged in the pursuit of a suspected law

violator. This principle has been established in Illinois at

least since the decision in Moore v. Cook, 22 [ll.App.2d 48,

159 N.E.2d 496 (4th Dist.1959). See also Sundin v. Hughes,

107 ll.App.2d 195, 246 N.E.2d 100 (1st Dist.1969). In

fact, the Illinois General Assembly had codified the precept

together with certain privileges applicable during a police

chase at Ill.Rev.Stat. ch. 95/2, § 11-205:

(b) The driver of an authorized emergency vehicle,

when responding to an emergency call or when in

the pursuit of an actual or suspected violator of

the law... may exercise the privileges set forth

in this Section, but subject to the condition herein

stated.

may:

1. Park or stand, irrespective of the provisions of

this Chapter;

2. Proceed past a red or stop signal or stop sign, but

only after slowing down as may be required and

necessary for safe operation;

3. Exceed the maximum speed limits so long as he

does not endanger life or property;

4. Disregard regulations governing direction of

movement or turning in specified directions. ...

(e) 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.

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