                                  Illinois Official Reports

                                          Appellate Court



                         Betts v. City of Chicago, 2013 IL App (1st) 123653




Appellate Court              DOMINIQUE BETTS, Plaintiff-Appellant, v. THE CITY OF
Caption                      CHICAGO, a Municipal Corporation, and DARRELL SMITH,
                             Defendants-Appellees.


District & No.               First District, Fifth Division
                             Docket No. 1-12-3653


Filed                        November 22, 2013



                             In an action for the injuries plaintiff suffered when defendant police
Held
                             officer struck plaintiff’s vehicle while backing up his patrol car as he
(Note: This syllabus
                             moved to continue his narcotics surveillance operation, the trial court
constitutes no part of the
opinion of the court but     erred in dismissing plaintiff’s complaint on the ground that the officer
has been prepared by the     was immune from liability under the Tort Immunity Act, since the
Reporter of Decisions        record, including an affidavit provided by the officer, lacked sufficient
for the convenience of       facts to support the officer’s claim that he was engaged in the
the reader.)                 execution or enforcement of the law at the time of the accident and
                             plaintiff was entitled to additional discovery to determine whether the
                             Tort Immunity Act applied; therefore, the dismissal was reversed, the
                             complaint was reinstated, and the cause was remanded for further
                             proceedings.



Decision Under               Appeal from the Circuit Court of Cook County, No. 11-M1-303194;
Review                       the Hon. James E. Snyder, Judge, presiding.



Judgment                     Reversed and remanded.


                             Joseph L. Dombrowski, of Dombrowski & Sorenson, of Chicago, for
     Counsel on                appellant.
     Appeal
                               Stephen R. Patton, Corporation Counsel, of Chicago (Benna Ruth
                               Solomon, Myriam Zreczny Kasper, and Julian N. Henriques, Jr.,
                               Assistant Corporation Counsel, of counsel), for appellees.



     Panel                     JUSTICE McBRIDE delivered the judgment of the court, with
                               opinion.
                               Justices Palmer and Taylor concurred in the judgment and opinion.




                                                  OPINION

¶1         Plaintiff Dominique Betts appeals the trial court’s order dismissing her complaint filed
       against defendants, the City of Chicago and Darrell Smith, alleging negligence in a car
       accident in which Smith, a Chicago police officer, backed into plaintiff’s vehicle and caused
       injury to plaintiff. On appeal, Betts argues that the trial court erred in dismissing her complaint
       because the record does not support defendants’ assertion of immunity under the Local
       Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745
       ILCS 10/1-101 et seq. (West 2010)) and she was denied her right to discovery and due process.
¶2         In December 2011, plaintiff filed her negligence complaint against defendants. The
       complaint alleged that on or about December 4, 2010, plaintiff was operating a motor vehicle
       that was parked facing east on Congress, at or near its intersection with Kostner, in Chicago.
       Smith “was operating a motor vehicle in an easterly direction on the aforesaid Congress and
       backed into the Plaintiff’s vehicle.” At the time of the accident, Smith was operating the
       vehicle as an agent, servant and employee of the City of Chicago. Plaintiff alleged that
       defendants had a duty to exercise ordinary care in the operation of the vehicle to avoid injury to
       plaintiff. As a direct and proximate result of defendants’ negligence, plaintiff was injured and
       suffered damages of a personal and pecuniary nature. Plaintiff sought damages not in excess of
       $9,950, plus the costs of the suit.
¶3         In February 2012, defendants filed a motion to dismiss the complaint pursuant to section
       2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2010)). The motion
       was set for hearing on March 13, 2012, but when plaintiff’s attorney did not appear at a March
       6 status hearing, the trial court dismissed the case for want of prosecution. Plaintiff
       subsequently filed a motion to vacate the dismissal, which the trial court granted.
¶4         In April 2012, defendants renoticed their motion to dismiss the complaint. The motion
       asserted that defendants were immune from the alleged negligence under sections 2-202 and
       2-109 of the Tort Immunity Act (745 ILCS 10/2-202, 2-109 (West 2010)). Section 2-202
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     provides that “[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 2010). Section 2-109 states that “[a] local public entity is not liable
     for an injury resulting from an act or omission of its employee where the employee is not
     liable.” 745 ILCS 10/2-109 (West 2010). According to defendants, Smith was executing the
     law at the time of the accident because he was an on duty police officer assisting with a
     narcotics surveillance. If Smith was not liable, then the city cannot be liable. Defendants
     attached an affidavit from Smith to the motion. In the affidavit, Smith stated:
                  “1. I have personal knowledge of the facts contained in this affidavit.
                  2. At the time of the accident in question on December 4, 2010, I was on duty with
             the City of Chicago Police Department, acting within the scope of my duties as a City
             of Chicago police officer.
                  3. At the time of the accident, I was on duty as an undercover surveillance officer in
             a narcotics transaction.
                  4. If sworn to testify, I would testify as above.”
¶5       The motion was set for a hearing on July 10, 2012. The trial court allowed plaintiff to
     propound five interrogatories on the question of whether the officer was within the “scope of
     duties.” Defendants filed their answers to plaintiff’s interrogatories on June 7, 2012.
¶6       Plaintiff filed a response to the motion to dismiss, contending that at the time of the
     accident, Smith “had not yet begun to execute or enforce any law but was merely on his way to
     take over for the team engaged in the investigation” and, thus, defendants were not entitled to
     immunity under the Tort Immunity Act. Defendants filed a reply, maintaining that Smith was
     acting in a course of conduct aimed at enforcing drug laws.
¶7       On July 10, 2012, the trial court granted defendants’ motion to dismiss. On July 25, 2012,
     plaintiff filed a motion to vacate the ex parte order of July 10, 2010 and for rehearing.
     According to the motion, plaintiff’s attorney did not appear at the hearing on July 10 because
     his diary clerk incorrectly recorded the date of the hearing. In August 2012, the trial court
     vacated the dismissal order and defendants’ motion to dismiss was rescheduled. On September
     25, 2012, the trial court denied defendants’ motion and gave defendants 14 days to correct
     defects in the answer to interrogatories and plaintiff was given leave to amend her complaint
     within 28 days.
¶8       On October 2, 2012, defendants filed the corrected answers to interrogatories. The answers
     are substantially the same, except the answers were now drafted in the first-person for Officer
     Smith and the certification was corrected to name Smith. The corrected interrogatories and
     answers provided the following:
                  “1. Describe in detail the police action you were taking on December 4, 2010 when
             you placed your automobile in reverse at approximately 1:00 p.m. and collided with
             Plaintiff Dominique Betts’ vehicle.
                  I was conducting surveillance pursuant to a narcotics investigation. Our team was
             following the target northbound on Kostner and I was preparing to do a ‘take-away’,
             moving out of my parking spot to turn northbound onto Kostner and take over for the
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              surveillance team. I had been waiting for approximately ten minutes and received a
              communication from the Nextel Direct Connect system to take over the surveillance.
              As I left my parking spot on Congress Parkway, I backed into plaintiff’s vehicle.
                  We had identified the target from previous undercover drug buys from the target or
              his associates. The target was part of a group that was under investigation for
              distributing narcotics.
                  2. Identify your destination by name and address had the collision with Plaintiff
              Dominique Betts’ vehicle not occurred.
                  I was on my way to take over surveillance by following the target, meeting up with
              my team by turning northbound onto Kostner. In my experience, the time period spent
              following a target varies and can last as long as several hours.
                  3. Describe by RD number and name of defendant any arrests made as a result of
              surveillance allegedly undertaken immediately before your collision with Plaintiff
              Dominique Betts’ vehicle.
                  The RD number for this investigation is HS 645892. The RD number was marked
              confidential, meaning that the investigation was still ongoing at the time of the
              accident.
                  4. Describe all items of food in Defendant’s vehicle at the time of the collision with
              Plaintiff Dominique Betts’ vehicle.
                  I do not recall having any items of food inside my vehicle at the time of the
              collision.
                  5. Describe any reprimands received by Officer Darrell Smith as a result of the
              occurrence with Plaintiff Dominique Betts’ vehicle and state and describe the general
              order Defendant Darrell Smith was to follow before placing his automobile in reverse
              on December 4, 2010.
                  I did not receive any official reprimand. Because this was my only accident that
              year, I only received a verbal warning from Sergeant Mostek, Star #1058.
                  My assignment for the day was to act as part of a surveillance team for the group of
              targets suspected of distributing narcotics in the vicinity of Kostner and Fifth Avenue.
              The plan was to observe the target in order to ascertain where he was purchasing
              narcotics from and to use that information in preparation for a planned uncover [sic]
              drug buy from the target, meant to take place later that day.”
¶9        Also in October 2012, defendants filed a motion to dismiss plaintiff’s complaint. This
       motion stated that it was pursuant to section 2-615(d) of the Code of Civil Procedure (735
       ILCS 5/2-615(d) (West 2010)), but made the same arguments as the previous motions to
       dismiss. On November 14, 2012, the trial court entered an order granting plaintiff’s motion and
       dismissing plaintiff’s complaint with prejudice.
¶ 10      This appeal followed.
¶ 11      Plaintiff argues that the trial court erred in granting defendants’ motion and dismissing the
       complaint with prejudice because the record does not support defendants’ claims for immunity
       under the Tort Immunity Act.
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¶ 12        First, we note that defendants’ motion stated that it was brought pursuant to section 2-615,
       which “challenges only the legal sufficiency of a complaint and alleges only defects on the face
       of the complaint.” Sandholm v. Kuecker, 2012 IL 111443, ¶ 54. “A motion to dismiss based on
       the immunity conferred by the Act, however, is more appropriately raised in a section
       2-619(a)(9) motion, which allows for dismissal when the claim asserted against the defendant
       is ‘barred by other affirmative matter avoiding the legal effect of or defeating the claim’ (735
       ILCS 5/2-619(a)(9) (West 2008)).” Id. We point out that defendants’ previous motions to
       dismiss had been filed under section 2-619(a)(9) and the motion at issue made the same
       substantive arguments as the previous motions. Since the substance of the motion, rather than
       the label, determines what the motion is, we will consider defendants’ motion to dismiss under
       section 2-619(a)(9). See id.; Loman v. Freeman, 375 Ill. App. 3d 445, 448 (2006).
¶ 13        When ruling on the motion to dismiss, the trial court “should construe the pleadings and
       supporting documents in the light most favorable to the nonmoving party” and “accept as true
       all well-pleaded facts in plaintiff’s complaint and all inferences that may reasonably be drawn
       in plaintiff’s favor.” Sandholm, 2012 IL 111443, ¶ 55. “The question on appeal is ‘whether the
       existence of a genuine issue of material fact should have precluded the dismissal or, absent
       such an issue of fact, whether dismissal is proper as a matter of law.’ ” Id. (quoting Kedzie &
       103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116-17 (1993)). We review the
       section 2-619 dismissal of a complaint de novo. Sandholm, 2012 IL 111443, ¶ 55.
¶ 14        A motion for involuntary dismissal pursuant to section 2-619(a) admits the legal
       sufficiency of the complaint, but raises defects, defenses, or other affirmative matter which
       avoids the legal effect or defeats a plaintiff’s claim. 735 ILCS 5/2-619(a) (West 2010). An
       “affirmative matter” under section 2-619(a)(9) is “something in the nature of a defense that
       negates the cause of action completely or refutes crucial conclusions of law or conclusions of
       material fact contained in or inferred from the complaint.” In re Estate of Schlenker, 209 Ill. 2d
       456, 461 (2004). “Once a defendant satisfies the initial burden of presenting affirmative
       matter, the burden then shifts to the plaintiff to establish that the defense is ‘unfounded or
       requires the resolution of an essential element of material fact before it is proven.’ ” Reilly v.
       Wyeth, 377 Ill. App. 3d 20, 36 (2007) (quoting Kedzie & 103rd Currency Exchange, Inc., 156
       Ill. 2d at 116).
¶ 15        Affidavits in support of motions to dismiss under section 2-619 are controlled by Illinois
       Supreme Court Rule 191 (eff. July 1, 2002). Rule 191(a) provides that affidavits submitted in
       connection with a motion for involuntary dismissal “shall be made on the personal knowledge
       of the affiants; shall set forth with particularity the facts upon which the claim, counterclaim, or
       defense is based; shall have attached thereto sworn or certified copies of all papers upon which
       the affiant relies; shall not consist of conclusions but of facts admissible in evidence; and shall
       affirmatively show that the affiant, if sworn as a witness, can testify competently thereto.” Ill.
       S. Ct. R. 191(a) (eff. July 1, 2002).
¶ 16        Plaintiff argues that the record does not support the order dismissing her case because
       answers to the interrogatories and Smith’s affidavit did not clearly establish that Smith was
       executing or enforcing the law at the time of the accident, as required under section 2-202 of

                                                    -5-
       the Tort Immunity Act. Plaintiff also contends that she should have been allowed to conduct a
       limited deposition of Smith to more fully detail the circumstances at the time of accident.
¶ 17       As we previously noted, section 2-202 provides that “[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 2010)) and section 2-109
       states that “[a] local public entity is not liable for an injury resulting from an act or omission of
       its employee where the employee is not liable” (745 ILCS 10/2-109 (West 2010)). Betts’
       complaint does not include any allegations of willful and wanton conduct; therefore, our
       review is limited to whether defendants are immune for their alleged negligent conduct.
¶ 18       Illinois courts have held that the Tort Immunity Act “ ‘is in derogation of the common law
       action against local public entities, and must be strictly construed against the public entity
       involved.’ ” Hudson v. City of Chicago, 378 Ill. App. 3d 373, 388 (2007) (quoting Aikens v.
       Morris, 145 Ill. 2d 273, 278 (1991)). “The immunity provided by section 2-202 does not
       extend to all activities of police officers while on duty, but only to acts or omissions while in
       the actual execution or enforcement of a law.” Id. “The question of whether a police officer is
       executing and enforcing the law is a factual determination which must be made in light of the
       circumstances involved in each case.” Id. “The words ‘in execution or enforcement of any
       laws’ must be given their ‘plain and commonly ascribed meaning.’ ” Stehlik v. Village of
       Orland Park, 2012 IL App (1st) 091278, ¶ 19 (quoting Thompson v. City of Chicago, 108 Ill.
       2d 429, 433 (1985)). “However, where the evidence is undisputed or susceptible to only one
       possible interpretation, the question may be decided as a matter of law.” Hudson, 378 Ill. App.
       3d at 388.
¶ 19       The supreme court has found that “[e]nforcing the law is rarely a single, discrete act, but is
       instead a course of conduct.” Thompson, 108 Ill. 2d at 433. “Therefore, where the evidence
       establishes a police officer was engaged ‘in a course of conduct designed to carry out or put
       into effect any law’ at the time his alleged negligence occurred, sections 2-202 and 2-109 of the
       Act provide an affirmative defense to the officer and his employer.” Stehlik, 2012 IL App (1st)
       091278, ¶ 20 (quoting Fitzpatrick v. City of Chicago, 112 Ill. 2d 211, 221 (1986)). “[V]irtually
       every police function or duty is pursuant to some legal authorization in the broadest sense.
       [Citation.] Arguably, then the performance of any task while on duty is in enforcement or
       execution of the law. We do not believe, however, as we have previously stated, that the
       legislature intended such a result.” Aikens v. Morris, 145 Ill. 2d 273, 285 (1991).
¶ 20       Illinois courts have explored whether an officer was executing or enforcing the law, as
       required for immunity under section 2-202. These courts have concluded that the officer in
       question was immune when he was investigating a traffic accident (see Fitzpatrick v. City of
       Chicago, 112 Ill. 2d 211, 221 (1986)), responding to a radio report of a crime in progress (see
       Morris v. City of Chicago, 130 Ill. App. 3d 740, 744 (1985)), responding to a call of shots fired
       (see Bruecks v. County of Lake, 276 Ill. App. 3d 567, 569 (1995)), responding to a reported
       burglary alarm (see Bosen v. City of Collinsville, 166 Ill. App. 3d 848, 849 (1987)), and
       escorting a witness to a “showup” identification (see Stehlik, 2012 IL App (1st) 091278, ¶ 29).
¶ 21       In contrast, Illinois courts have declined to find that an officer was executing or enforcing
       the law when transporting prisoners (see Aikens, 145 Ill. 2d at 286), responding to a call for a
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       missing person (see Simpson v. City of Chicago, 233 Ill. App. 3d 791, 792-93 (1992)),
       investigating a crowd for suspected criminal activity (see Leaks v. City of Chicago, 238 Ill.
       App. 3d 12, 17-18 (1992)), responding to a radio call after the police dispatcher confirmed that
       additional backup was not needed (see Sanders v. City of Chicago, 306 Ill. App. 3d 356,
       361-62 (1999)), and attempting to offer unrequested assistance to a high-speed pursuit (see
       Hudson, 378 Ill. App. 3d at 392-93).
¶ 22       In Simpson, the police officer struck and injured a child while responding to a call about a
       missing person. The trial court granted summary judgment after finding that immunity applied.
       However, the reviewing court reversed, pointing out that the officer “did not consider the call
       an emergency and there was no indication that any crime had been committed or that any law
       required execution or enforcement.” Simpson, 233 Ill. App. 3d at 793. The court concluded that
       “it is apparent that the fact that [the officer’s] activities were governed by some legal
       requirement is insufficient to raise them to the level of executing or enforcing the law.”
       Simpson, 233 Ill. App. 3d at 793.
¶ 23       In Leaks, the officer was on patrol when he encountered a large crowd and suspected they
       might be engaged in narcotics transactions. When he backed up to investigate, he struck the
       plaintiffs’ vehicle. The trial court concluded that the officer was engaged in the enforcement of
       the law at the time of the accident and that the plaintiffs could only recover if the jury found the
       officer’s conduct to be willful and wanton. The jury found in favor of the defendants. Leaks,
       238 Ill. App. 3d at 14-15. On appeal, the reviewing court disagreed with the trial court’s
       determination that the officer was enforcing the law at the time of the accident. “It is
       undisputed that [the officer] was not engaged in the execution or enforcement of a law while he
       was routinely cruising the neighborhood.” Leaks, 238 Ill. App. 3d at 17. The court found that
       there was “absolutely no indication that [the officer] observed the exchange of any money or
       the transfer of any drugs, or for that matter any crime at all.” Leaks, 238 Ill. App. 3d at 17. The
       reviewing court remanded for a trial on the negligence count. Leaks, 238 Ill. App. 3d at 18.
                “Our holding, we stress, is not intended to establish a rule that facts establishing that an
                actual crime or violation of law was taking place must be shown to prevail upon the
                affirmative defense, or that investigatory procedure may never bring police personnel
                within the ambit of section 2-202. Rather, our holding is bottomed upon defendants’
                failure to support their affirmative defense with facts. At best, [the officer’s] testimony
                was conclusory in nature as to suspected violation of state law or municipal ordinance.”
                Leaks, 238 Ill. App. 3d at 17-18.
¶ 24       Here, the only evidence on the question of whether Smith was actually executing or
       enforcing the law at the time of the accident is the answers to the interrogatories and Smith’s
       affidavit. We point out that Smith’s affidavit partially consists of conclusions that he was
       acting within the scope of his duties as a police officer as part of an undercover surveillance
       narcotics investigation. The affidavit contains no additional facts. To the extent that the
       statements in the affidavit violate Rule 191(a), we will disregard any inadmissible conclusory
       statements.
¶ 25       In comparison to the instant case, the cases referenced above were decided either at trial,
       after a jury verdict (see Hudson, 378 Ill. App. 3d at 386; Fitzpatrick, 112 Ill. 2d at 215; Aikens,
                                                      -7-
       145 Ill. 2d at 275), a bench trial (see Bosen, 166 Ill. App. 3d 848), or a directed verdict (see
       Stehlik, 2012 IL App (1st) 091278, ¶ 12; Leaks, 238 Ill. App. 3d at 15; Morris, 130 Ill. App. 3d
       at 742), or on a motion for summary judgment after depositions had been taken (see Simpson,
       233 Ill. App. 3d at 792; Bruecks, 276 Ill. App. 3d at 568; Sanders, 306 Ill. App. 3d at 359).
       None of the cases were determined based on the evidence provided from the answers to
       interrogatories and an affidavit.
¶ 26       In the interrogatories, Smith stated that on the day of the accident he was “to act as part of
       a surveillance team for the group of targets suspected of distributing narcotics in the vicinity of
       Kostner and Fifth Avenue.” Smith explained that “[t]he plan was to observe the target in order
       to ascertain where he was purchasing narcotics from and to use that information” for a future
       undercover drug buy from the target. He had received a call to take over for the surveillance
       team on Kostner and follow the target. Smith said that the target had been identified from
       previous undercover drug buys “from the target or his associates” and the target was under
       investigation for distributing narcotics.
¶ 27       Smith’s answers do not contain any details about any observations made by Smith or other
       members of the surveillance team regarding the target, his associates or any narcotics activity.
       There is no information as to whether Smith or the other members of the surveillance team had
       actually observed the commission of a crime on that date or whether they were following the
       target in hopes to see him engage in a narcotics transaction. Nor do we know where on Kostner
       the surveillance team was when Smith was to join the team. The interrogatories generally state
       that the team was traveling northbound. Similar to the situation in Leaks, defendants have not
       set forth enough facts to make a determination as to whether immunity is applicable. There
       does not appear to have been an immediate emergency, but the officers’ plan was to follow the
       target to gather information for a future drug purchase and arrest. The record does not disclose
       any details about the investigation and Smith’s involvement. At the time of the accident, he
       was waiting in a parked vehicle for a call to participate in the surveillance and upon backing
       out of the parking space, he struck plaintiff’s parked vehicle.
¶ 28       Plaintiff asserts in her brief that she requested the opportunity to conduct a limited
       deposition of Smith, but the trial court denied her request and instead allowed the submission
       of five interrogatories. Defendants do not contest that this request was made. We believe that a
       limited deposition could disclose the circumstances of Smith’s surveillance beyond the
       conclusory statements in his interrogatories. We do not reach the ultimate question that
       surveillance does not qualify as executing or enforcing the law. Rather, on the record before us,
       we cannot make that determination at this stage and additional discovery would be helpful to
       develop the facts of this case.
¶ 29       After viewing this evidence in the light most favorable to plaintiff, Smith’s account of his
       conduct does not provide sufficient detail and is susceptible to more than one interpretation as
       to whether he was actually executing or enforcing a law at the time of the accident. Because the
       interrogatories consist mostly of legal conclusions and lack sufficient facts, the dismissal was
       not appropriate at this stage. Since section 2-202 only applies to acts or omissions that occur
       while in the execution or enforcement of a law (745 ILCS 10/2-202 (West 2010)), we conclude
       that the dismissal of plaintiff’s complaint was premature at this point in the case and plaintiff
                                                    -8-
       should be given the opportunity for additional discovery to determine whether section 2-202 is
       applicable. Therefore, we reverse the trial court’s order dismissing the complaint with
       prejudice and reinstate plaintiff’s complaint.
¶ 30       Since we have reversed the dismissal order, we need not reach plaintiff’s additional claims
       raised on appeal.
¶ 31       Based on the foregoing reasons, we reverse the decision of the circuit court of Cook
       County and remand for further proceedings.

¶ 32      Reversed and remanded.




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