                                  Illinois Official Reports

                                          Appellate Court



                        Robles v. City of Chicago, 2014 IL App (1st) 131599




Appellate Court              LUZ YDIRA ROBLES, as Special Administrator of the Estate of Juan
Caption                      Carlos Robles, Deceased, Plaintiff-Appellant, v. THE CITY OF
                             CHICAGO, a Municipal Corporation, and UNKNOWN CITY OF
                             CHICAGO POLICE OFFICERS, Defendants-Appellees.



District & No.               First District, Third Division
                             Docket No. 1-13-1599



Filed                        April 9, 2014
Rehearing denied             June 13, 2014


Held                         The immunity provided by section 2-202 of the Tort Immunity Act
(Note: This syllabus         applied to the police officers who were engaged in enforcing the law
constitutes no part of the   when plaintiff’s decedent was shot in the back, and pursuant to section
opinion of the court but     2-202 of the act, negligent acts are immunized, but willful and wanton
has been prepared by the     misconduct is not; therefore, in view of the existence of a triable issue
Reporter of Decisions        of material fact as to whether the fatal shots were the result of willful
for the convenience of       and wanton misconduct, the entry of summary judgment for the police
the reader.)
                             and defendant city was reversed and the cause was remanded for
                             further proceedings.



Decision Under               Appeal from the Circuit Court of Cook County, No. 10-L-1098; the
Review                       Hon. Kathy M. Flanagan, Judge, presiding.



Judgment                     Reversed and remanded.
     Counsel on               Collins Law Firm, P.C., of Naperville (Edward J. Manzke, of
     Appeal                   counsel), for appellant.

                              Stephen R. Patton, Corporation Counsel, of Chicago (Benna Ruth
                              Solomon, Myriam Zreczny Kasper, and Jonathon D. Byrer, Assistant
                              Corporation Counsel, of counsel), for appellees.




     Panel                    JUSTICE NEVILLE delivered the judgment of the court, with
                              opinion.
                              Presiding Justice Hyman and Justice Pucinski concurred in the
                              judgment and opinion.




                                               OPINION

¶1         Luz Robles, as special administrator of the estate of Juan Robles, sued the City of Chicago
       (City), alleging that City police committed willful and wanton misconduct when they shot and
       killed Juan. The trial court granted the City’s motion for summary judgment, holding that the
       general immunity for discretionary acts barred recovery from the City, even for its officers’
       willful and wanton misconduct. In this appeal, we hold that under section 2-202 of the Local
       Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/2-202
       (West 2008)), the estate may recover damages from the City if its officers acted willfully and
       wantonly when they shot Juan in the course of enforcing the law. We also find that the
       evidence presents a triable issue of fact as to whether police officers acted willfully and
       wantonly. We reverse the judgment entered in favor of the City and remand for proceedings in
       accord with this opinion.

¶2                                           BACKGROUND
¶3         On September 26, 2009, near the corner of 76th Street and Kinzie, Chicago police officer
       Ivan Lopez shot Juan Robles twice in the back. Juan died from his wounds. Police impounded
       Juan’s car and later destroyed it. A camera at a business located at 76th and Kinzie recorded a
       video of the area on September 26, 2009. Two days later, an investigator for the “Independent
       Police Review Authority” (IPRA), a unit of the Chicago police department, viewed that
       videorecording. The videorecording subsequently disappeared.
¶4         On January 26, 2010, a court appointed Luz to act as special administrator of Juan’s estate
       for purposes of prosecuting any cause of action arising from Juan’s death. Luz sued the City,
       alleging that the officers committed willful and wanton misconduct when they shot Juan and
       destroyed his car. She added a count charging the City with failing to preserve the
       videorecording of the scene, but the trial court dismissed that count with prejudice on grounds
       that the business, not the City, had control of the videorecording when it disappeared.

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¶5         In 2010, Luz took depositions from several officers who saw the shooting. IPRA
       investigators recorded statements from several of the officers in December 2011. The City
       moved for summary judgment, and it attached excerpts from the depositions to its motion. Luz
       responded with a number of documents, including diagrams of the scene she said police made
       near the time of the shooting and a document which purportedly showed that Juan did not own
       the gun police said he held when Lopez shot him.
¶6         The depositions and statements of the officers describe the framing events fairly
       consistently. A call went out to officers on September 26, 2009, telling them that officers
       chasing Juan as he drove needed help with the chase. At least four cars, with nine officers, took
       part in the chase. Juan’s car headed north on Kedzie, sustaining severe damage when it hit a
       pickup truck north of 79th Street. The car stopped near the corner of 76th Street and Kedzie,
       and Juan got out and started running. All of the officers said they saw a gun in Juan’s right
       hand. Some of the officers heard one shout, “police,” and “drop the gun.” Some heard no
       speech. Lopez and some other officers said they saw Juan turn to his right and raise his gun,
       pointing it at the officers.
¶7         When he had come within about five feet of Juan, Lopez started shooting. The medical
       report said that one bullet entered Juan’s back 1.2 inches to the right of the midline, 24.5 inches
       from the top of his head, and it exited his chest 2.0 inches to the right of the midline, 24.1
       inches from the top of his head. A second bullet entered Juan’s back 2.8 inches to the left of the
       midline and lodged in the right side of Juan’s chest, coursing from left to right and upward.
¶8         In the order granting the motion for summary judgment, the court found that Luz had not
       presented an adequate foundation for several of the exhibits she attached to her response to the
       motion for summary judgment. The court ignored those exhibits, but said, “the remaining
       evidence in the record is such that a reasonable person could conclude that either the officers’
       belief and acts were reasonable or that they were not. In addition, the question of whether the
       officers’ acts were willful and wanton are questions of fact.” The court held that the possible
       finding of willful and wanton misconduct made no difference, because section 2-201 of the Act
       (745 ILCS 10/2-201 (West 2008)) immunized the City from liability for the officers’ actions,
       even if they committed willful and wanton misconduct in the course of enforcing the law. Luz
       now appeals.

¶9                                             ANALYSIS
¶ 10                                         Tort Immunity
¶ 11      We review de novo the order granting the motion for summary judgment. Outboard
       Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). The trial court’s
       decision rests on its interpretation of sections 2-201 and 2-202 of the Act. Those sections
       provide:
              “Except as otherwise provided by Statute, a public employee serving in a position
              involving the determination of policy or the exercise of discretion is not liable for an
              injury resulting from his act or omission in determining policy when acting in the
              exercise of such discretion even though abused.” 745 ILCS 10/2-201 (West 2008).
       And:




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                “A public employee is not liable for his act or omission in the execution or enforcement
                of any law unless such act or omission constitutes willful and wanton conduct.” 745
                ILCS 10/2-202 (West 2008).
¶ 12       When section 2-201 applies, it provides immunity for willful and wanton misconduct, as
       well as negligence. Murray v. Chicago Youth Center, 224 Ill. 2d 213, 230 (2007). By including
       the prefatory language in section 2-201, “Except as otherwise provided by Statute,” the
       legislature indicated that “section 2-201 immunity is contingent upon whether other
       provisions, either within the Act or some other statute, creates exceptions to or limitations on
       that immunity.” Murray, 224 Ill. 2d at 232.
¶ 13       Section 2-202 creates an explicit exception to the immunities granted in section 2-201. A
       public entity or public employee has immunity for acts in the course of enforcing any law,
       “unless such act or omission constitutes willful and wanton conduct.” 745 ILCS 10/2-202
       (West 2008); see Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 491
       (2001). When the officers chased Juan in response to the call from officers seeking to arrest
       Juan, they engaged in enforcement of the law. See Morton v. City of Chicago, 286 Ill. App. 3d
       444, 455 (1997); Davis v. City of Chicago, 2014 IL App (1st) 122427, ¶¶ 105, 117.
¶ 14       The City argues that section 2-201 applies, with its immunity for willful and wanton
       misconduct, and section 2-202 does not apply, because the officers’ acts in pursuit of Juan
       required the exercise of discretion. The City has not suggested how any City personnel could
       ever engage in execution or enforcement of any law without also exercising some discretion.
       Thus, under the City’s construction of the Act, section 2-202 can never apply to any situation,
       since the broader immunities of section 2-201 will always prevail over the lesser immunity the
       legislature granted for execution or enforcement of the law in section 2-202. Moreover, the
       City’s construction of the Act ignores the prefatory language of section 2-201, which specifies
       that its broad immunity does not apply if any other law or statute applies. The City does not
       deny that its officers were engaged in enforcing the law when they killed Juan and destroyed
       his car. Thus, under the express terms of sections 2-201 and 2-202 of the Act, the immunities of
       section 2-202 apply, and not the broader immunities of section 2-201. Under section 2-202,
       Juan’s estate may recover damages from the City if the officers acted willfully and wantonly
       when they shot and killed Juan and when they destroyed his car.

¶ 15                          Evidence of Willful and Wanton Misconduct
¶ 16       The City claims that the trial court should have granted summary judgment in favor of the
       City on grounds that the evidence cannot support a finding of willful and wanton misconduct,
       because the officers all said that they saw a gun in Juan’s hand. In her reply to the City’s
       argument on this issue, Luz refers to a number of documents she presented to the trial court,
       including documents that, according to the trial court, lacked adequate foundation. The City
       asks us to strike several sections of Luz’s reply brief because of the references to the
       documents without foundation. We grant the motion in part. We will ignore all references to
       the documents that, according to the trial court, lacked adequate foundation. We see no need to
       strike the remaining parts of Luz’s arguments. See Rice v. Merchants National Bank, 213 Ill.
       App. 3d 790, 796 (1991); Black v. Iovino, 219 Ill. App. 3d 378, 386 (1991).
¶ 17       “Whether a person is guilty of wilful and wanton conduct is a question of fact for the jury
       and should rarely be ruled upon as a matter of law. [Citation.] In determining whether a charge
       of wilful and wanton conduct ought to have been submitted to the jury, neither the trial court

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       nor a reviewing court may resolve conflicts in the evidence, decide what weight to apply to the
       evidence or decide the relative credibility of the witnesses.” Glover v. City of Chicago, 106 Ill.
       App. 3d 1066, 1075 (1982).
¶ 18       We agree with the trial court that the potential conflicts between the testimony of the
       officers and potential conflicts with the physical evidence leave unresolved issues that could
       support a finding of willful and wanton misconduct. We will not bar the case before Luz has an
       opportunity to have experts review the physical evidence and to compare it with the testimony
       and statements of the officers.
¶ 19       The City cites Davis, 2014 IL App (1st) 122427, as authority for depriving Luz of the
       opportunity to complete discovery and have a trier of fact consider the evidence in this case. In
       Davis, a police officer shot Darryl Hamilton in the back, killing him. Hamilton’s mother sued
       the City, alleging that the officer acted willfully and wantonly. The case went to trial. The
       officer testified that as Hamilton ran from the officer, Hamilton turned and pointed a gun at the
       officer. The officer said he shot Hamilton because he feared for his life. Medical experts gave
       conflicting testimony about whether the course of the bullet showed that Hamilton had his
       back to the officer, or whether he could have turned and pointed a gun at the officer before the
       officer shot him. Davis, 2014 IL App (1st) 122427, ¶¶ 32-37. The court instructed the jurors
       that to find the City liable for willful and wanton misconduct, they needed to find that the
       officer deliberately harmed Hamilton without legal justification. Davis, 2014 IL App (1st)
       122427, ¶¶ 109-13.
¶ 20       We agree with the City that the case now on appeal bears considerable similarity to Davis.
       We find that the evidence here, like the evidence in Davis, leaves a triable issue of fact of
       whether the officer committed willful and wanton misconduct when he shot a fleeing person in
       the back.

¶ 21                                          CONCLUSION
¶ 22       Because the officers engaged in enforcing the law when they pursued and shot Juan,
       section 2-202 of the Act, rather than 2-201, establishes the applicable immunity. Section 2-202
       immunizes the City and the officers from liability for negligent acts, but not for willful and
       wanton misconduct. The evidence presents a triable issue as to whether the police acted
       willfully and wantonly when they shot Juan twice in the back and destroyed Juan’s car.
       Accordingly, we reverse the decision granting summary judgment in favor of the City and
       remand for proceedings in accord with this opinion.

¶ 23      Reversed and remanded.




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