                                      2019 IL App (1st) 180771
                                           No. 1-18-0771

                                                                             SECOND DIVISION
                                                                                  July 25, 2019

     ______________________________________________________________________________

                                         IN THE
                             APPELLATE COURT OF ILLINOIS
                                FIRST JUDICIAL DISTRICT
     ______________________________________________________________________________


     MICHAEL TOWNSEND,                                  )     Appeal from the Circuit Court
                                                        )     of Cook County.
            Plaintiff-Appellant,                        )
                                                        )
     v.                                                 )     No. 16L1968
                                                        )
     RICKY ANDERSON; DARRYL WARE; ROBIN                 )     The Honorable
     BEAVERS; THE CITY OF CHICAGO, a                    )     Judge Kathy Flanagan,
     Municipal     Corporation;   JAMES                 )     Judge Presiding.
     LEWANDOWSKI; BRIAN WARCHOL; and                    )
     JASON MARTINO                                      )
                                                        )
            Defendants                                  )
                                                        )
     (The City of Chicago, James Lewandowski, Brian     )
     Warchol, and Jason Martino, Defendants-            )
     Appellees).                                        )

     ______________________________________________________________________________

            JUSTICE PUCINSKI delivered the judgment of the court, with opinion.
            Justice Mason concurred in the judgment and opinion.
            Justice Hyman dissented, with opinion.

                                                OPINION

¶1          Plaintiff Michael Townsend was injured in a car accident when the vehicle in which he

     was a passenger was struck by another vehicle driven by a man who had fled the scene of a

     traffic stop effectuated by several Chicago police officers. Townsend subsequently filed suit
     1-18-0771


     against the City of Chicago and the three of the City’s police officers who involved in the traffic

     stop and subsequent apprehension of the fleeing driver: Brian Warchol, Jason Martino, and

     James Lewandowski (collectively “defendants”). Defendants, in turn, filed a motion for

     summary judgment, arguing that they were immune from liability pursuant to the Local

     Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS

     10/1-101 et seq. (West 2014)). The circuit court granted the motion, finding that defendants were

     immune from liability pursuant to section 4-106(b) of the Tort Immunity Act (745 ILCS 10/4-

     106(b) (West 2014)), a provision that immunizes public entities and their employees from

     liability for injuries inflicted by escaped or escaping prisoners. On appeal, Townsend argues that

     the circuit court erred in finding that his injuries were inflicted by an escaping prisoner and in

     granting defendants’ motion for summary judgment. For the reasons explained herein, we affirm

     the judgment of the circuit court.

¶2                                         I. BACKGROUND

¶3          On March 2, 2015, at approximately 6:30 p.m., Chicago police officers Pete Higgins and

     James Lewandowski effectuated a traffic stop on a red 2007 Toyota Solara near 1227 West

     Garfield Boulevard. At the time of the traffic stop, the vehicle contained four male occupants:

     Arieus Fitch, the driver; Darwin Walls, the front seat passenger; and Ricky Anderson and Cory

     Williams, the two backseat passengers. During the course of the traffic stop, after Fitch and

     Walls had exited the vehicle and were both handcuffed by the officers, Anderson slipped into the

     Solara’s driver’s seat and drove away from the scene. Several minutes later, Anderson struck

     another motor vehicle driven by Vernard Chapman near the intersection of Normal Boulevard

     and 63rd Street. Anderson and Williams were subsequently apprehended by Officers Warchol

     and Martino, who arrived at the scene of the crash shortly after the impact. Townsend, who was a



                                                    -2-
     1-18-0771


     passenger in Chapman’s vehicle at the time of the crash, sustained a number of injuries as a

     result of the collision, including head, neck, back, shoulder, and hand pain.

¶4           Townsend subsequently filed suit against the City of Chicago and several of the City’s

     police officers, alleging that the officers engaged in a wrongful and unsafe pursuit of Anderson,

     which caused Anderson to drive erratically and resulted in him striking Chapman’s vehicle and

     injuring plaintiff. Specifically, in Townsend’s second amended complaint, he included claims of

     willful and wanton conduct against Officers Lewandowski, Warchol, and Martino. Townsend

     also included a willful and wanton conduct claim against the City, citing the conduct of its

     employees in engaging in the unsafe pursuit. 1 In addition to the aforementioned defendants,

     Townsend also named several other individuals as defendants in his second amended complaint,

     including Anderson. 2

¶5           Defendants, in turn, filed a written answer and an amendment thereto. In their amended

     answer, defendants invoked various provisions of the Tort Immunity Act, including section 4-

     106(b), which immunizes public entities and public employees from liability for “[a]ny injury

     inflicted by an escaped or escaping prisoner.” 745 ILCS 10/4-106(b) (West 2014).

¶6           The parties then engaged in discovery. In their discovery depositions, Officers Higgins

     and Lewandowski testified that they were on patrol when they encountered the red Solara driving

     eastbound on 55th Street. Because it was dusk and the vehicle was operating without its

     headlights illuminated, the officers curbed the vehicle. Officer Higgins approached the driver’s

     side of the vehicle, and Officer Lewandowski approached the front passenger’s side of the

             1
               Townsend also included a spoliation of evidence claim against the City in his second amended
     complaint. The basis for the claim was the City’s purported failure to properly retain the global
     positioning system tracking data from the police cars involved in the alleged pursuit. On appeal, he raises
     no argument concerning the circuit court’s ruling on his spoliation of evidence claim, and as such, we
     need not discuss that claim any further.
             2
               Because the other defendants and the claims advanced against them are not relevant to this
     appeal, we will not address those claims in this disposition.


                                                        -3-
     1-18-0771


     vehicle. When Fitch, the driver of the Solara, was unable to produce a driver’s license, Officer

     Higgins ordered him out of the vehicle and handcuffed him. Officer Lewandowski, in turn,

     noticed Walls, the front seat passenger, making furtive movements toward the floor of the

     vehicle and observed an opened container of alcohol near his person. As such, Officer

     Lewandowski ordered Walls out of the vehicle and began handcuffing him. At that point, Officer

     Higgins observed Anderson “jump[ ]” into the driver’s seat and alerted his partner that Anderson

     “was getting in the front seat.” When Officer Lewandowski looked over, Anderson was “already

     in the front seat and he was putting the car in gear and trying to take off while [Officer Higgins]

     was grabbing at him.” Officer Higgins explained that he grabbed at Anderson because neither of

     the two backseat passengers was free to leave at that point. In response to Officer Higgins’s

     efforts to “grab at him,” Anderson said “something *** like [‘]why are you grabbing me.[’] ”

     Officer Higgins testified that Anderson was ultimately able to elude his efforts to restrain him

     and that he “dropped the car in gear and took off eastbound on 55th Street.” Officer Higgins then

     relayed what had occurred over his radio, providing details about the fleeing car and the direction

     in which it was heading.

¶7          Shortly after making the radio broadcast, the officers’ watch commander “gave a

     termination order,” which Officer Anderson described as “an order from a supervisor saying not

     to pursue or not to chase a vehicle.” Accordingly, Officers Anderson and Lewandowski did not

     immediately follow the Solara; rather, they remained at the scene where they had handcuffed

     Fitch and Walls. Approximately five minutes later, they heard a radio broadcast that Anderson

     and Williams were in custody. At that point, they relocated to the scene where Anderson and

     Williams had been detained by Officers Martino and Warchol after the Solara had struck another

     vehicle. The accident site was approximately two miles away from the scene of the initial traffic




                                                    -4-
     1-18-0771


     stop. Upon arriving at the scene, the officers confirmed that the two men in custody were the

     occupants of the fleeing car.

¶8          Neither Officer Anderson nor Officer Lewandowski had any firsthand knowledge as to

     whether Officers Martino and Warchol had been engaged in a “pursuit” of the Solara at the time

     of the accident. Officer Anderson explained that, if the officers were simply in the general area

     when they encountered the vehicle, there was no “pursuit.” He emphasized that a pursuit

     termination order does not preclude officers from driving in a safe manner without their lights

     and sirens activated to the area in which a suspect was last seen and looking for him. He did not

     recall hearing sirens or observing flashing lights at the scene of the crash. Similarly, Officer

     Lewandowki explained that, pursuant to his understanding of department policy, whether a

     “pursuit” occurs “depends on the circumstances” and that officers who observe a vehicle

     matching a radio broadcast description may follow behind that vehicle in an effort to confirm the

     identity of the vehicle or the suspects without necessarily “pursuing” the vehicle.

¶9          In their discovery depositions, Officers Warchol and Martino testified that they were on

     patrol in the same general vicinity of the aforementioned traffic stop when they heard a radio

     dispatch message relaying that a vehicle that had been stopped by another unit had fled from the

     scene. A short time later, the officers observed a vehicle matching the description of the red

     Solara from the dispatch message. According to Officer Warchol, the vehicle was driving

     eastbound on Garfield Boulevard at a “high rate of speed.” Neither officer, however, was able to

     estimate the rate of speed at which the Solara was traveling. At the time of the sighting, the

     officers were stopped at a red light on an unknown “north-south street.” When the light changed,

     Officer Warchol, the driver of the patrol vehicle, turned onto Garfield and traveled east. By that

     time, however, the Solara had turned southbound onto another street, and the officers lost sight



                                                    -5-
       1-18-0771


       of the vehicle. Officer Warchol contacted dispatch about the sighting and relayed the direction in

       which the vehicle was traveling. After losing sight of the vehicle, the officers continued driving

       around the area. Officer Warchol could not recall if he activated his vehicle’s lights and sirens,

       but he testified that it was not his standard practice to “automatically throw [his] lights and

       sirens” on. Officer Warchol testified that, at the time they were looking for the vehicle, he was

       not driving in excess of the speed limit. Officer Martino estimated that they were actually

       traveling “at or below” the posted speed limit because they were looking down intersections to

       see if they could spot the Solara. During their search, the officers “happened upon” the accident

       site. The officers did not observe the actual collision. When they arrived at the scene, the Solara

       was unoccupied. Eyewitnesses informed them that Anderson and Walls had fled on foot

       eastbound on 63rd Street. Officers Warchol and Martino ultimately apprehended the two men,

       who had boarded a Chicago Transit Authority bus located several blocks away. Other officers

       arrived at the accident scene shortly thereafter.

¶ 10          Both officers denied that they were engaged in a “pursuit” of the Solara prior to the

       accident. Officer Warchol emphasized that “there’s a difference between following somebody

       and pursuing somebody.” According to Officer Warchol, a pursuit occurs when an officer

       follows a vehicle that is not complying with the officer’s active efforts to curb the vehicle. In this

       case, however, he and his partner lost sight of the vehicle shortly after encountering it. They then

       came upon the accident site after driving around the area in which they had last seen the Solara.

       Officer Martino, in turn, emphasized that their conduct was not in contravention of their

       department’s pursuit termination policy, explaining that a termination order does not preclude

       officers from being “diligent” and “touring the area” in an effort to observe a suspect vehicle and

       its occupants.




                                                       -6-
       1-18-0771


¶ 11          An incident report completed by law enforcement personnel following the arrest of

       Anderson and Williams reveals that cannabis was recovered from Williams’s pants pocket.

       Officers also recovered a loaded, unregistered, .45-caliber handgun. Anderson and Fitch were

       both subsequently charged with traffic offenses, and Williams was charged with possession of a

       controlled substance. Walls, in turn, was ultimately released without charges.

¶ 12          Various lay witnesses were also deposed during the discovery process and provided

       details about the events that transpired on the evening of March 2, 2015. Charles Johnson

       testified that he was traveling east on 55th Street that evening when he observed a red car that

       had been curbed by a police truck. Shortly thereafter, he saw the red car “barreling down” behind

       him. As the red car tried to maneuver around him, the car sideswiped the passenger side of his

       vehicle. Johnson estimated that the vehicle was traveling approximately 60 miles per hour.

       Approximately 40 seconds to 1 minute later, Johnson observed a police truck drive past him and

       travel in the same direction of the red vehicle. He did not know if the truck that was following

       the car was the same one that he observed at the traffic stop, but he testified that the truck

       appeared to be the same model as the police truck he had seen earlier. He estimated that the

       police truck was traveling at approximately 45 to 50 miles per hour. Johnson did not recall

       whether the police truck’s lights and sirens were activated. After he was sideswiped, Johnson

       pulled into a nearby gas station, called 911, and reported what had occurred.

¶ 13          During his discovery deposition, Townsend recalled that he and his friend Vernard

       Chapman were traveling south on Normal when he felt an impact and heard a “boom” as a red

       car struck the rear passenger side of Chapman’s vehicle. The red car then continued on and hit a

       parked car and a light pole. Townsend, who was sitting in the front passenger seat of Chapman’s

       car at the time of the impact, hit his head on the door frame. He did not recall observing any



                                                      -7-
       1-18-0771


       police vehicles prior to the accident but testified that one “zoomed up *** right after the

       accident.” He estimated that the police car arrived two to three seconds after the impact.

       Townsend did not recall whether the police car had its lights and sirens activated. Shortly after

       that police car arrived at the scene, “quite a few” other police cars arrived at the crash site.

¶ 14          Darryl Ware, owner of the parked car damaged by the Solara, talked to a police officer

       who was in the area shortly after the accident. He was told that his car was damaged during the

       course of an “auto theft chase.”

¶ 15          Townsend’s friend, Chapman, was not deposed but submitted an affidavit. In his

       affidavit, Chapman averred that his vehicle was struck by a red car traveling south on Normal “at

       a very high rate of speed.” A police truck also operating “at a high rate of speed” arrived at the

       scene “within a couple of seconds” of the accident. The truck “had its lights activated.” Chapman

       further averred that he heard police sirens before the accident.

¶ 16          After completing the aforementioned discovery, defendants filed a motion for summary

       judgment. In the motion, defendants again asserted that they were entitled to immunity pursuant

       to section 4-106(b) of the Tort Immunity Act because Anderson was an “escaped prisoner” at the

       time of the traffic accident and, thus, they could not be subject to liability for Townsend’s

       injuries. Alternatively, defendants argued that there was no evidence that they proximately

       caused the accident and Townsend’s injuries. They noted that Anderson had not been deposed

       and, as such, there was no evidence as to why he fled the scene of the traffic stop, why he

       traveled at a high rate of speed, or whether he ever saw any police officers following him.

¶ 17          In response to defendants’ motion, Townsend disputed the applicability of section 4-

       106(b) of the Tort Immunity Act. He also argued that there were genuine issues of material fact

       as to whether the defendant officers had been engaged in a dangerous and unauthorized high-



                                                        -8-
       1-18-0771


       speed pursuit of Anderson at the time of the accident and whether their conduct was a proximate

       cause of his injuries.

¶ 18           In a detailed written order, the court granted defendants’ motion for summary judgment.

       In doing so, the court initially found that there was “conflicting” evidence “as to whether a

       pursuit occurred” and “whether any acts on the part of the City and the officers proximately

       caused the accident.” As such, the court rejected defendants’ argument that lack of probable

       cause was a basis to enter summary judgment in their favor. The court, however, found that

       defendants were nonetheless immune from liability because Anderson was an “escaping

       prisoner” within the meaning of section 4-106(b) of the Tort Immunity Act at the time that he

       caused Townsend’s injuries. The court reasoned:

                   “Here, the police curbed a vehicle and began to question the occupants. The officers

               were in the process of handcuffing the driver and front seat passenger, when a backseat

               passenger, Anderson, jumped into the driver’s seat to get away. The testimony of both

               Officer Higgins and Officer Lewandowski indicates that as Anderson got into the driver’s

               seat, Officer Higgins grabbed him to stop him from leaving, but then he stepped on the

               gas and fled. Even applying the broadest interpretation of ‘custody,’ Anderson was a

               prisoner attempting to escape within the meaning of section 4-106. Consequently, the

               injuries the Plaintiff sustained from the collision with the vehicle that Anderson was

               driving were caused by an escaping prisoner, and the immunity afforded under section 4-

               106 applies. On the basis of the application of this immunity, summary judgment in favor

               of the City of Chicago and the individual officers would be appropriate.”

¶ 19           This appeal followed.

¶ 20                                           II. ANALYSIS



                                                      -9-
       1-18-0771


¶ 21          On appeal, Townsend argues that the circuit court erred in concluding that Ricky

       Anderson was an “escaping prisoner” pursuant to the Tort Immunity Act and in granting

       defendants’ motion for summary judgment.

¶ 22          Defendants, in turn, respond that the court properly found that they were immune from

       liability under the Tort Immunity Act because the record clearly establishes that Anderson was

       an escaping prisoner when he fled the scene of a traffic stop, struck another vehicle, and caused

       Townsend’s injuries.

¶ 23          Summary judgment is appropriate when “the pleadings, depositions, 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 judgment as a matter of law.” 735 ILCS 5/2-1005(c)

       (West 2014). In reviewing a motion for summary judgment, a court must construe the pleadings,

       depositions, admissions, and affidavits strictly against the moving party to determine whether a

       genuine issue of material fact exists. Williams v. Manchester, 228 Ill. 2d 404, 417 (2008). A

       genuine issue of fact exists where the material relevant facts in the case are disputed or where

       reasonable persons could draw different inferences and conclusions from undisputed facts.

       Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004). To survive a motion for summary

       judgment, the nonmoving party need not prove his case at this preliminary stage of litigation;

       however, the plaintiff must present some evidentiary facts, not mere speculation or conjecture, to

       support each element of his cause of action, which would arguably entitle him to a judgment.

       Garcia v. Nelson, 326 Ill. App. 3d 33, 38 (2001); Peters v. R. Carlson & Sons, Inc., 2016 IL App

       (1st) 153539, ¶ 13; Richardson v. Bond Drug Co. of Illinois, 387 Ill. App. 3d 881 (2009).

       Although summary judgment has been deemed a “drastic means of disposing of litigation”

       (Purtill v. Hess, 111 Ill. 2d 229, 240 (1986)), it is nonetheless an appropriate mechanism to



                                                       - 10 -
       1-18-0771


       employ to expeditiously dispose of a lawsuit when the moving party’s right to a judgment in its

       favor is clear and free from doubt (Morris v. Margulis, 197 Ill. 2d 28, 35 (2001)). The circuit

       court’s ruling on a motion for summary judgment is subject to de novo review. Weather-Tite,

       Inc. v. University of St. Francis, 233 Ill. 2d 385, 389 (2009).

¶ 24          The Tort Immunity Act was enacted by the Illinois legislature in 1965 in response to the

       Illinois Supreme Court’s abolishment of the common-law doctrine of sovereign immunity in its

       decision in Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11, 20 (1959).

       Zimmerman v. Village of Skokie, 183 Ill. 2d 30, 43 (1998). Pursuant to that common-law

       doctrine, governmental entities were “afforded blanket immunity from all tort liability.” Id. In

       enacting the Tort Immunity Act, the legislature “adopted the general principle from Molitor ‘that

       local governmental units are liable in tort but limited this with an extensive list of immunities

       based on specific government functions.’ ” Id. (quoting Burdine v. Village of Glendale Heights,

       139 Ill. 2d 501, 506 (1990)). The various immunities afforded to governmental entities pursuant

       to the Tort Immunity Act essentially serve as affirmative defenses, which if properly raised and

       proven by a public entity, bar a plaintiff’s right to recover for a tort claim (id. at 44) and

       “ ‘ “prevent the diversion of public funds from their intended purpose to the payment of damages

       claims” ’ ” (DeSmet v. County of Rock Island, 219 Ill. 2d 497, 505 (2006) (quoting Village of

       Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 490 (2001), quoting Bubb v. Springfield

       School District 186, 167 Ill. 2d 372, 378 (1995))). One of the immunities set forth in the Tort

       Immunity Act that “protect[s] local public entities and public employees from liability arising

       from the operation of government” (745 ILCS 10/1-101.1(a) (West 2014)) is the “escaped or

       escaping prisoner” provision set forth in section 4-106(b) (745 ILCS 10/4-106(b) (West 2014)).

       That provision provides, in pertinent part, that “[n]either a local public entity nor a public




                                                       - 11 -
       1-18-0771


       employee is liable for *** [a]ny injury inflicted by an escaped or escaping prisoner.” 745 ILCS

       10/4-106(b) (West 2014).

¶ 25          The Tort Immunity Act’s “escaped or escaping prisoner” provision was discussed in

       detail by the supreme court in Reis v. City of Chicago, 242 Ill. 2d 205 (2011). In that case, a

       Chicago police officer placed Demario Lowe, a man who was suspected of fleeing the scene of

       an accident, in the backseat of a squad car. While he was left briefly unsupervised, Lowe, who

       had not been handcuffed, managed to gain control of the police car and drove away from the

       scene. Officers subsequently pursued the fleeing vehicle, and during the course of that pursuit,

       Lowe struck another vehicle. The occupants of the vehicle were injured and subsequently

       brought suit against the City of Chicago. The cause subsequently proceeded to a jury trial, which

       resulted in a verdict in the plaintiffs’ favor. Following the circuit court’s denial of the City’s

       motion for a judgment notwithstanding the verdict, the City appealed and argued that it could not

       be held liable for the plaintiffs’ injuries because their injuries were caused by an escaping

       prisoner within the meaning of section 4-106(b) of the Tort Immunity Act. Id. at 208-12.

¶ 26          Upon review, our supreme court agreed with the City that it was immune from liability

       for plaintiffs’ injuries, concluding that Lowe had been a prisoner who escaped police custody at

       the time that he stole the police vehicle and caused the accident. In doing so, the court began

       with the recognition that “[t]he Act does not require a formal arrest or imprisonment, but rather

       defines ‘prisoner’ as a ‘person held in custody.’ ” Id. at 216 (quoting 745 ILCS 10/4-101 (West

       2008)). After noting that the Tort Immunity Act did not define the term “custody,” the court

       referred to Black’s Law Dictionary. The court noted:

                   “Black’s defines [custody] as ‘the detention of a person by virtue of lawful process or

              authority.’ Black’s Law Dictionary 442 (9th ed. 2009). Black’s further defines ‘physical



                                                      - 12 -
       1-18-0771


              custody’ as ‘custody of a person (such as an arrestee) whose freedom is directly

              controlled and limited.’ Black’s Law Dictionary 1263 (9th ed. 2009). *** [A]n earlier

              edition of Black’s explained that ‘ “The term [custody] is very elastic and may mean

              actual imprisonment or physical detention or mere power, legal or physical, of

              imprisoning or of taking manual possession.” ’ ” Id. at 216 (quoting People v. Campa,

              217 Ill. 2d 243, 254 (2005), quoting Black’s Law Dictionary 347 (5th ed. 1979))).

¶ 27          After reviewing dictionary definitions, the court then looked at how the term “custody”

       had been applied in different legal contexts. For example, in the context of the speedy trial

       statute, the court noted that the term “custody” was construed to be sufficiently broad to include

       a defendant who was in a day reporting center program. Id. at 216-17 (citing Campa, 217 Ill. 2d

       at 255). Moreover, the court noted that, “[i]n the Miranda context [(Miranda v. Arizona, 384

       U.S. 436 (1966))], in which custodial interrogation triggers the requirement of the Miranda

       warnings, a person is considered in custody when a reasonable person would have felt that he or

       she was not at liberty to terminate the interrogation and leave.” Id. at 217 (citing People v.

       Braggs, 209 Ill. 2d 492, 506 (2003)).

¶ 28          Ultimately, after considering the aforementioned sources and authorities, the court

       concluded: “If the legislature had meant the term ‘custody’ to be so restrictive as to include only

       imprisonment, the legislature almost certainly would have used the term ‘imprisonment’

       instead.” Id. Although the court found it unnecessary to determine how broadly the term

       “custody” could be construed, it determined that that the term was “certainly broad enough” to

       encompass the scenario at issue. Id. Accordingly, the court concluded that Lowe was in custody

       when he was placed in the back of the squad car. At that point, his freedom of movement was

       limited, and no reasonable person would have felt free to leave. Id. Because Lowe was in



                                                     - 13 -
       1-18-0771


       custody, he “met the definition of a prisoner under the statute,” and he was thus an escaping

       prisoner at the time that he stole the police car, struck plaintiffs’ vehicle, and caused their

       injuries. Id. at 218. Therefore, the court determined that the City was immune from liability

       pursuant to section 4-106(b) of the Tort Immunity Act.

¶ 29          Both parties rely on Reis to support their respective claims. Townsend notes that

       Anderson, unlike Lowe, was not under arrest and placed in the back of a police car at the time

       that he absconded with a vehicle and caused a traffic accident. He emphasizes that “Anderson

       was never told that he was suspected of committing any crime and, in fact, was never even

       spoken to by either officer.” Defendants acknowledge that Anderson had not been arrested when

       he fled the scene of the traffic stop, but they submit that he was nonetheless in custody at that

       time because no reasonable person in his position would have felt free to leave the scene of the

       traffic stop. In support, defendants note that Anderson was sitting in the “back seat of a car that

       had been pulled over by police, with both the driver and front seat passenger physically

       restrained by the officers at the scene. At that point, the car and its occupants were under the

       officers’ control.”

¶ 30          Upon review, we agree with defendants. Initially, we note that neither Anderson nor any

       of the other three occupants of the Solara at the time of the traffic stop have been deposed.

       Accordingly, the only accounts of the circumstances of the traffic stop contained in the record

       are the accounts provided by Officers Higgins and Lewandowski. We reiterate that, in order to

       survive a motion for summary judgment, a plaintiff need not prove his case at this preliminary

       stage of litigation; however, he must nonetheless present some evidentiary facts, not mere

       speculation or conjecture, to support his cause of action. Garcia, 326 Ill. App. 3d at 38. Here,

       given Townsend’s failure to provide a competing account of the traffic stop and the events that



                                                     - 14 -
       1-18-0771


       transpired during that stop, this court’s review is necessarily limited to the uncontradicted

       accounts provided by Officers Higgins and Lewandowski.

¶ 31           According to the deposition testimony provided by those officers, they curbed the Solara

       because it was operating without its headlights illuminated. After effectuating the stop, Officers

       Higgins and Lewandowski took positions on both sides of the vehicle, with Officer Higgins

       approaching the driver’s side and Officer Lewandowski approaching the passenger’s side of the

       car. The positioning of the officers effectively curtailed Anderson’s and the other three

       occupants’ freedom of movement. 3 See Reis, 242 Ill. 2d at 217 (explaining that an individual is

       in custody for purposes of the Tort Immunity Act when his “freedom of movement had been

       directly controlled and limited” by an officer’s exercise of his “lawful authority”). Shortly after

       approaching the vehicle, the officers then ordered Fitch, the driver of the vehicle, and Walls, the

       front seat passenger, out of the Solara and placed both men in handcuffs. Officer Higgins

       handcuffed Fitch when he was unable to produce a valid driver’s license, and Officer

       Lewandowski, in turn, handcuffed Walls when he observed Walls make several furtive

       movements and observed an open container of alcohol near his person.

¶ 32           Although it is true that there was no evidence that the officers suspected Anderson, one of

       the backseat passengers, of any criminal activity at that point, we do not believe that a reasonable

       person in his position would have objectively felt free to leave, given that two of the four

       occupants of the vehicle were physically restrained and the traffic stop had not yet concluded. Id.

       (a finding that an individual is in custody is supported by the fact that no reasonable person in his

       position would have felt free to leave). Indeed, courts reviewing traffic stops have recognized
               3
                We note that neither officer specified whether the 2007 Solara was a two-door or a four-door
       vehicle. Moreover, the parties do not discuss the specific design of the car. A Wikipedia search reveals
       that the second generation Toyota Solara was manufactured between 2003 and 2008. Pictures of the
       second generation model depict a two-door design. See https://en.wikipedia.org/wiki/Toyota_Camry_
       Solara (last visited July 23, 2019) [https://perma.cc/FXM4-WXED].


                                                        - 15 -
1-18-0771


that police officers exercise control over all of the occupants of a vehicle that is subjected to a

traffic stop. See, e.g., Brendlin v. California, 551 U.S. 249, 255, 257 (2007) (recognizing that

“during a traffic stop an officer seizes everyone in the vehicle, not just the driver” because “[a]

traffic stop necessarily curtails the travel a passenger has chosen just as much as it halts the

driver, diverting both from the stream of traffic to the side of the road”); People v. Johnson, 408

Ill. App. 3d 107, 119 (2010) (“[T]he rule is clear that when an automobile is apprehended for a

traffic stop, police have valid right to detain passengers as well as the driver.”). Given the

exercise of police authority during a traffic stop, courts have further recognized that a reasonable

passenger involved in a traffic stop would not feel free to leave before the stop is concluded and

permission to depart is given. See Brendlin, 551 U.S. at 257 (explaining that “[a]n officer who

orders one particular car to pull over acts with an implicit claim of right based on fault of some

sort, and a sensible person would not expect a police officer to allow people to come and go

freely from the physical focal point of an investigation into faulty behavior or wrongdoing. If the

likely wrongdoing is not the driving, the passenger will reasonably feel subject to suspicion

owing to close association; but even when the wrongdoing is only bad driving, the passenger will

expect to be subject to some scrutiny, and his attempt to leave the scene would be so obviously

likely to prompt an objection from the officer that no passenger would feel free to leave in the

first place.”); see also Arizona v. Johnson, 555 U.S. 323, 333 (2009) (recognizing “[a] lawful

roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The

temporary seizure of a driver and passengers ordinarily continues, and remains reasonable, for

the duration of the stop. Normally, the stop ends when the police have no further need to control

the scene, and inform the driver and passengers they are free to leave.”). Although we are not

equating the term “custody” as used in the Tort Immunity Act with “seizures,” we nonetheless




                                               - 16 -
       1-18-0771


       find that the aforementioned fourth amendment jurisprudence provides further support for our

       conclusion that Anderson, as a passenger subjected to an ongoing vehicle stop in which both the

       driver and front seat passenger had been handcuffed, would not have reasonably felt free to leave

       the scene of that stop.

¶ 33          Moreover, Anderson’s own conduct supports the conclusion that he did not subjectively

       feel free to simply exit the Solara and walk away from the scene of the traffic stop. Instead of

       doing so, Anderson maneuvered into the driver’s seat when the officers’ attention was diverted,

       evaded Officer Higgins’s attempts to “grab at” him, and drove away at a high rate of speed.

       Based on Officer Higgins’s uncontradicted deposition testimony, Anderson was evidently aware

       of the officer’s efforts to physically restrain him after relocating to the driver’s seat because

       Anderson inquired “why” Officer Higgins was attempting to do so. The mere fact that Anderson

       had not been handcuffed or formally arrested prior to fleeing the scene of the traffic stop does

       not, as Townsend appears to suggest, preclude a finding that he was in custody within the

       meaning of section 4-106(b) of the Tort Immunity Act because the term is not limited to

       situations involving “formal arrest or imprisonment.” Reis, 242 Ill. 2d at 216 (citing 745 ILCS

       10/4-101 (West 2008)).

¶ 34          Ultimately, given the elasticity afforded to the term, we conclude that Anderson was in

       custody at the time that he fled the scene of the ongoing traffic stop and that he was thus an

       escaping prisoner when he caused the traffic accident that resulted in Townsend’s injuries.

       Although we acknowledge that the record contains discrepant evidence as to whether there was

       an unauthorized police “pursuit” of the Solara, these discrepancies have no bearing on the key

       issue concerning Anderson’s status as an escaped or escaping prisoner. As our supreme court

       noted, “[t]he legislature chose not to focus on the conduct of law enforcement officials in



                                                    - 17 -
       1-18-0771


       enacting [section 4-106(b) of the Tort Immunity Act], but rather worded it broadly to provide

       immunity for all injuries inflicted by escaping prisoners.” Id. at 219. Because Townsend’s

       injuries were caused by an escaping prisoner within the meaning of section 4-106(b) of the Tort

       Immunity Act, there is no genuine issue of material fact that defendants are immune from

       liability. The circuit court thus properly granted their motion for summary judgment.

¶ 35                                          III. CONCLUSION

¶ 36          The judgment of the circuit court is affirmed.

¶ 37          Affirmed.

¶ 38          JUSTICE HYMAN, dissenting:

¶ 39          I respectfully disagree with the majority’s conclusion that Anderson was in custody for

       purposes of the Tort Immunity Act. The parties and the majority look to Ries v. City of Chicago,

       242 Ill. 2d 205 (2011), as the centerpiece of the analysis, but Ries does not provide as much

       guidance as they suggest. Certainly the supreme court in Ries thought so by not answering the

       question about how to define custody. Id. at 217 (“For purposes of this case, it is not necessary to

       define how broad the term ‘custody’ may be ***.”). The court went on to expressly limit its

       conclusion to the facts before it. Id. (however defined, the word custody “is certainly broad

       enough to include situations such as this”). Nonetheless, the situation in Ries differs considerably

       from the situation here.

¶ 40          In Ries, an officer went to put gas in his supervisor’s car. Id. at 208. He saw a group of

       people standing around a man, Demario Lowe, who members of the group said had been

       involved in a traffic accident and had tried to flee the scene. Id. The officer put Lowe in the back

       of his squad car. Id. Lowe was not handcuffed, and the car did not have a screen separating the

       back and the front, so he was able to get to the front and drive away. Id. As Lowe drove away,



                                                      - 18 -
       1-18-0771


       the supervisor arrived and pursued Lowe. Id. During the pursuit, Lowe hit several parked cars

       and eventually blew a red light and hit the plaintiff’s car, causing injuries to the plaintiff. Id.

¶ 41           The escapee in Ries knew he was under suspicion of a crime, having been identified to

       the officer as attempting to leave the scene of an accident. See 625 ILCS 5/11-402(a) (West

       2008) (leaving scene of accident with vehicle damage a Class A misdemeanor). Here, the

       officers made no indication to Anderson or the other backseat passenger that they were the

       subjects of suspicion. The driver had been pulled over for a traffic infraction, and only the front

       seat passenger had been asked to get out of the car. The officer in Ries moved the escapee to the

       squad car, a location within the officer’s control. Here, the officers left Anderson in the car in

       which he had originally been riding. The majority also suggests that Anderson was “aware of the

       officer’s efforts to physically restrain him” because he asked “why” they were attempting to do

       so. In my view, this connotes Anderson’s belief that he was otherwise free to leave, as he

       expressed surprise at the officer’s efforts to detain him.

¶ 42           The majority correctly points out that the evidence in the record limits our review, but at

       the summary judgment stage we are to construe that evidence against the moving party (the

       City). Keating v. 68th & Paxton, LLC, 401 Ill. App. 3d 456, 470 (2010) (evidence viewed “in the

       light most favorable to the nonmoving party”). Given the record we have, construing the

       evidence in Townsend’s favor requires us to presume Anderson’s questioning of the officer, and

       even the simple act of his driving away, indicate a belief that he was free to leave.

¶ 43           I do not believe our supreme court directly imported the “free to leave” custody standard

       into the escaped prisoner provision of the Tort Immunity Act to the extent of the majority’s

       interpretation. The court alluded to this possibility in Reis by citing cases that define custody in

       the context of an officer’s requirement to give Miranda warnings (see People v. Braggs, 209 Ill.



                                                        - 19 -
       1-18-0771


       2d 492 (2003)) and the speedy trial statute. See People v. Campa, 217 Ill. 2d 243 (2005),

       abrogated on other grounds by People v. Clark, 2019 IL 122891. These standards do not work

       so well for the purpose of defining “custody” as it is used in the Tort Immunity Act.

¶ 44          To determine whether a person is held in “custody” for the purpose of requiring Miranda

       warnings, asking whether a reasonable person would feel free to leave is only half of a two-part

       test. Braggs, 209 Ill. 2d at 506. Before even asking that question, a court must determine whether

       the circumstances surrounding an interrogation indicate a custodial event. Id. Our supreme court

       has enumerated at least 11 factors that go into this calculation. Id. In other words, “custody” in

       the context of Miranda warnings becomes largely self-defining. See id. (“a court should first

       ascertain and examine the circumstances surrounding the interrogation, and then ask if, given

       those circumstances, a reasonable person would have felt he or she was not at liberty to ***

       leave” (emphasis added)). The 11 factors inform the analysis of whether a person is free to leave.

       Indeed, those 11 factors are related to the precise ills that Miranda sought to remedy—an overly

       coercive interrogation. These factors are not helpful in the context of the Tort Immunity Act,

       which uses “custody” in a different sense.

¶ 45          Broader definitions of custody, employed by our supreme court in Campa, also fall short.

       For example, one of the definitions of “custody” is “ ‘control of a thing or person with such

       actual or constructive possession as fulfills the purpose of the law or duty requiring it.’ ”

       (Emphasis added.) Campa, 217 Ill. 2d at 253 (quoting Webster’s Third New International

       Dictionary 559 (1993)). Legal dictionaries split custody into two types: “physical custody,”

       requiring a subject’s freedom to be “ ‘directly controlled and limited’ ” (emphasis added), and

       “constructive custody,” only requiring a subject’s freedom to be “ ‘controlled by legal

       authority’ ” without direct physical control. Id. at 253-54 (quoting Black’s Law Dictionary 412,



                                                     - 20 -
       1-18-0771


       1193 (8th ed. 2004)). The court in Campa found that the definition of custody is “elastic” and

       can “encompass lesser forms of restraint than confinement.” Id. at 254.

¶ 46          The facts of Campa give us some idea of what a “lesser form” of confinement looks like

       and, again, involve a much greater restriction of liberty than the officers’ actions here. In Campa,

       the defendant was required to report to a day reporting program as a condition of his bail. Id. at

       245-46. As part of the program, he was required to report Monday through Friday from 8 a.m.

       until 1:30 p.m. Id. at 246. In finding the program constituted an example of “custody,” the court

       emphasized that the program required participants to “adhere to a schedule and engage in

       productive activities,” subjected the participants to mandatory drug testing, and mandated

       anywhere from three to nine hours of physical presence at the center each day. Id. at 254-55. In

       Campa, as in Ries, a critical aspect of “custody” incorporates notice to the person subject to

       custody that he or she is under “ ‘a legal duty to submit.’ ” (Emphasis omitted.) Campa, 217 Ill.

       2d at 257 (quoting People v. Simmons, 88 Ill. 2d 270, 273-74 (1981)). As I have said, no notice

       was given to Anderson.

¶ 47          Campa and Braggs demonstrate that the definition of “custody” is context specific and

       related to the purposes of the particular custodial situation. Indeed, Campa expressly says as

       much. Campa, 217 Ill. 2d at 254 (“The legislature intended that the term ‘custody’ evolve with

       the changing programs in our correctional institutions.”); see also Webster’s Third New

       International Dictionary 559 (1993) (“control of a thing or person with such actual or

       constructive possession as fulfills the purpose of the law or duty requiring it” (emphasis added)).

¶ 48          I believe we should not separate “custody” from the statutory context in which it arises—

       here, the Tort Immunity Act.




                                                      - 21 -
       1-18-0771


¶ 49          Construing definitions in statutes, “the task is not always properly accomplished by the

       mechanical application of the dictionary definitions of the individual words and phrases.”

       Whelan v. County Officers’ Electoral Board, 256 Ill. App. 3d 555, 558 (1994).Often, we read

       definitions in the context of the statutory scheme as a whole. Courts have struggled in other

       statutes to derive the meaning of “custody” in a statutory scheme that lacks context. See People

       v. Smith, 2014 IL App (3d) 130548, ¶ 26 (discussing definition of “custody” in section 5-8-7 of

       the Unified Code of Corrections (730 ILCS 5/5-8-7 (West 2004))). We, however, are not adrift

       like the court in Smith. The Tort Immunity Act provides contextual clues about the proper

       construction of the word “custody.” The provision that refers the reader to “custody” states:

       “Neither a local public entity nor a public employee is liable for *** [a]ny injury inflicted by an

       escaped or escaping prisoner.” (Emphasis added.) 745 ILCS 10/4-106(b) (West 2014).

¶ 50          Here the meaning of “custody” must be understood by the word it seeks to define:

       “prisoner.” The word “prisoner” means “[a] person who has been apprehended by a law

       enforcement officer *** regardless of whether the person has yet been put in prison.” (Emphasis

       added.) Black’s Law Dictionary 1314 ( 9th ed. 2010). The most natural reading of both the word

       “prisoner” and “apprehend” suggests a custodial situation much closer to formal arrest. See

       People v. Maxey, 2018 IL App (1st) 130698-B, ¶ 118 (we give language in statutes their natural

       and ordinary meaning). Only a highly strained definition of “custody,” when read in the context

       of “prisoner,” would apply to a backseat passenger in a car pulled over for a run-of-the-mill

       traffic stop—and even more so here, where the officers made no attempt to communicate to

       Anderson that he could not leave.

¶ 51          This interpretation also unites with the purpose of the Tort Immunity Act, which is to

       protect local public entities from liability under some circumstances. Monson v. City of Danville,



                                                     - 22 -
       1-18-0771


       2018 IL 122486, ¶ 15. But the Tort Immunity Act only provides these protections when liability

       arises “from government operations.” Id. We construe the Tort Immunity Act strictly against the

       entity seeking immunity because it departs from the common law. Id. We want officers to focus

       on their duties in the moment without fear of liability for the unpredictable actions that an

       apprehended person might take to frustrate the exercise of those duties. But to benefit from

       immunity, officers must ensure they have communicated to the person that he or she is subject to

       their control. Otherwise, an officer is not truly performing a “government operation,” at least as

       to that person. This is particularly salient here, where Townsend’s injury was caused by an

       accident allegedly related to a police chase. Is it reasonable for an officer to engage in a high-risk

       pursuit of a person that he or she has failed to adequately secure in the first place?

¶ 52          Furthermore, a reasonable backseat passenger traveling in a car pulled over for a traffic

       violation would not understand the term “prisoner” applied to him or her. Similarly, no

       reasonable person in this position would think he or she was “escaping” from any type of

       custody by leaving the scene. Absent direct communication or action by the officers, like the

       ones they took for the driver and front seat passenger, I cannot agree that Anderson and the other

       backseat passenger were in “custody” within the meaning of this provision of the Tort Immunity

       Act.

       The General Assembly made a conscious choice when it linked the words “prisoner” and

       “custody.” If the legislature intended section 4-106(b) to apply to a broader range of situations, it

       had broader language available. By borrowing words associated with fourth amendment traffic

       stop cases (e.g., “seizure,” “detention,” etc.), the majority has suggested terms that could apply.

       Unless and until the legislature itself chooses those words, however, I would find that Anderson

       was not in “custody” and would reverse.



                                                       - 23 -
1-18-0771



                                 No. 1-18-0771


Cite as:                 Townsend v. City of Chicago, 2019 IL App (1st) 180771


Decision Under Review:   Appeal from the Circuit Court of Cook County, No. 16-L-1968;
                         the Hon. Kathy Flanagan, Judge, presiding.



Attorneys                Robert A. Langendorf, of Robert A. Langendorf, P.C., of
for                      Chicago, for appellant.
Appellant:


Attorneys                Edward N. Siskel, Corporation Counsel, of Chicago (Benna Ruth
for                      Solomon, Myriam Zreczny Kasper, and Sara K. Hornstra,
Appellee:                Assistant Corporation Counsel, of counsel), for appellees.




                                      - 24 -
