                                          2014 IL App (1st) 131599
                                               No. 1-13-1599
                                                April 9, 2014


                                                                                      Third Division


                                                  IN THE

                                  APPELLATE COURT OF ILLINOIS

                                             FIRST DISTRICT


     LUZ YDIRA ROBLES, as Special                     )      Appeal from the Circuit Court
     Administrator of the Estate of Juan Carlos       )      Of Cook County.
     Robles, Deceased,                                )
                                                      )
                   Plaintiff-Appellant,               )      No. 10 L 1098
                                                      )
                   v.                                 )      The Honorable
                                                      )      Kathy M. Flanagan,
     THE CITY OF CHICAGO, a Municipal                 )      Judge Presiding.
     Corporation, and UNKNOWN CITY OF                 )
     CHICAGO POLICE OFFICERS,                         )
                                                      )
                   Defendants-Appellees.              )



                   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,
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        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


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          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:

                  "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).

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¶ 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


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          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 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

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          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

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          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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