                                      2013 IL App (1st) 123653

                                                                     Fifth Division
                                                                     November 22, 2013


No. 1-12-3653

DOMINIQUE BETTS,                                               )   Appeal from the Circuit Court
                                                               )   of Cook County
       Plaintiff-Appellant,                                    )
                                                               )
                v.                                             )
                                                               )   11 M1 303194
THE CITY OF CHICAGO, a Municipal Corporation, and              )
DARRELL SMITH,                                                 )
                                                               )   Honorable
       Defendants-Appellees.                                   )   James E. Snyder,
                                                               )   Judge Presiding.

       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
1-12-3653

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 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:

                                                  2
1-12-3653

                          "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

                                                     3
1-12-3653

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

               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

                                                4
1-12-3653

            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

                                              5
1-12-3653

               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.

¶ 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)

                                                 6
1-12-3653

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,

                                                 7
1-12-3653

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 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

                                                   8
1-12-3653

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.

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

                                                  9
1-12-3653

a result." (Citation omitted.) Aikens v. Morris, 145 Ill. 2d 273, 286 (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

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

                                                 10
1-12-3653

"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

                                                 11
1-12-3653

               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,

145 Ill. 2d at 275), a bench trial (see Bosen, 166 Ill. App. 3d 848), or 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

                                                  12
1-12-3653

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

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

                                                13
1-12-3653

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 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.




                                                 14
