Hogan v. Smith et al
Filing
16
ORDER granting in part and denying in part 9 Motion to Dismiss brought by Defendants Chris L. Smith and City of Cairo, Illinois ("Cairo"). Defendants' motion is GRANTED as to Count I and Count III of Plaintiff Marissa Hogan's c omplaint, in which Hogan asserts negligence against Smith and vicarious liability for Smith's alleged negligence against Cairo, respectively, and Count I and Count III of Hogan's complaint are DISMISSED with prejudice. Defendants' mot ion is DENIED as to Count II of Hogan's complaint, in which Hogan asserts willful and wanton conduct by Smith, Count IV of Hogan's complaint, in which Hogan asserts Cairo's vicarious liability for Smith's allegedly willful and wanton conduct, and Count V of Hogan's complaint, in which Hogan asserts that Cairo negligently trained and supervised Smith; see attached order for details. Signed by Judge G. Patrick Murphy on 4/25/2012. (jhs)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MARISSA HOGAN,
)
)
Plaintiff,
)
)
vs.
)
)
CHRIS L. SMITH and CITY OF CAIRO, )
ILLINOIS,
)
)
Defendants.
)
CIVIL NO. 11-961-GPM
MEMORANDUM AND ORDER
MURPHY, District Judge:
This matter is before the Court on a motion to dismiss for failure to state a claim upon which
relief can be granted brought by Defendants Chris L. Smith and City of Cairo, Illinois (“Cairo”)
(Doc. 9). The facts of this case, taken from the complaint of Plaintiff Marissa Hogan, are as follows.
On December 5, 2010, at approximately 10:00 a.m., an officer with the Mounds Police Department
in Mounds, Illinois, radioed dispatch for Pulaski County, Illinois, for emergency help in pursuing a
possible drunk driver in a silver KIA automobile, at a location just north of the 5.5 mile-marker on
Interstate 57, traveling southbound at approximately 120 miles per hour.
Following the
Mounds Police Department’s call for assistance, Pulaski County Sheriff’s Deputy Gulley brought
his vehicle in behind the Mounds Police Department vehicle in pursuit of the silver KIA vehicle at
mile-marker 5.5 on southbound Interstate 57. A second Pulaski County Deputy, Dintelman, was
waiting at mile-marker 5 on southbound Interstate 57, and began traveling south on the east side of
construction barrels behind the silver KIA automobile. At 10:04 a.m. on December 5, 2010, the
Cairo Police Department logged its first notification of the police chase occurring on Interstate 57
Page 1 of 7
at approximately mile-marker 6. At approximately 10:08 a.m. on December 5, 2010, the silver KIA
automobile, with two Pulaski County Sheriff’s deputies and a Mounds Police officer in pursuit,
crossed the bridge on Interstate 57 into the State of Missouri.
The intersection of Illinois Route 37 and U.S. Route 51 is a “T” intersection, where Route 37
terminates, and is outside of Cairo and outside the jurisdictional limits of the Cairo Police
Department. At all relevant times, the posted speed limit on U.S. Route 51 was forty-five miles per
hour. The intersection of Illinois Route 37 and U.S. Route 51 is and was controlled by traffic signals
governing the movement of traffic in all directions. On December 5, 2010, shortly after 10:00 a.m.,
Ruben Trent Anderson drove a 1995 Toyota Camry southbound on Illinois Route 37, just north of
the intersection of Illinois Route 37 with U.S. Route 51, in Alexander County, Illinois.
Marissa Hogan rode as a back-seat passenger in the vehicle operated by Anderson. As Anderson’s
vehicle approached the intersection of Illinois Route 37 with U.S. Route 51, the traffic signal
governing movement of southbound vehicles on Route 37 was red. Anderson brought his 1995
Toyota Camry to a stop at the traffic signal governing southbound traffic on Illinois Route 37. After
Anderson had fully stopped the 1995 Toyota Camry, the traffic signal governing southbound traffic
on Illinois Route 37 changed to green. After the traffic signal governing the traffic on southbound
Illinois Route 37 changed to green, Anderson’s vehicle proceeded into the intersection.
Chris L. Smith, a policeman with the Cairo Police Department, drove a 2007 Ford Crown Victoria
police cruiser owned by Cairo north on U.S. Route 51, just south of the intersection with Illinois
Route 37, at a speed in excess of seventy-eight miles per hour. Smith’s vehicle collided with
Anderson’s vehicle, resulting in personal injuries to Hogan. Hogan’s complaint against Smith and
Cairo contains the following claims: negligence against Smith (Count I); willful and wanton conduct
Page 2 of 7
against Smith (Count II); negligence against Cairo, based on respondeat superior (Count III); willful
and wanton conduct against Cairo, based on respondeat superior (Count IV); and negligent training
and supervision of Smith against Cairo (Count V). Federal subject matter jurisdiction is alleged on
the basis of diversity of citizenship pursuant to 28 U.S.C. § 1332.1 Smith and Cairo have moved for
dismissal of Hogan’s claims on the grounds that the claims are barred by the
Illinois Local Governmental and Governmental Employees Tort Immunity Act (“Tort Immunity
Act”), 745 ILCS 10/1-101 et seq. The motion to dismiss has been fully briefed, and the Court rules
as follows.
As an initial matter, the Court notes the standard under which it must evaluate the
instant motion to dismiss. In considering a motion to dismiss for failure to state a claim upon which
relief can be granted, the Court accepts all well-pleaded allegations in a plaintiff’s complaint as true.
See Fed. R. Civ. P. 12(b)(6); Cleveland v. Rotman, 297 F.3d 569, 571 (7th Cir. 2002); Whitwell v.
Wal-Mart Stores, Inc., Civil No. 09-513-GPM, 2009 WL 4894575, at *2 (S.D. Ill. Dec. 11, 2009);
S.C. Johnson & Son, Inc. v. Buske, Civil No. 09-286-GPM, 2009 WL 3010833, at *8
(S.D. Ill. Sept. 17, 2009). The purpose of a Rule 12(b)(6) motion is to decide the adequacy of the
complaint, not to determine the merits of the case. See Gibson v. City of Chicago, 910 F.2d
1510, 1520 (7th Cir. 1990); Payne v. Schneider Nat’l Carriers, Inc., Civil No. 09-559-GPM, 2010
WL 685819, at *1 (S.D. Ill. Feb. 22, 2010). A complaint should not be dismissed unless it either
1. Hogan is a Missouri citizen, while Smith and Cairo, a municipal corporation organized under
Illinois law, are Illinois citizens. See 28 U.S.C. § 1332(a)(1); Port of Seattle v. Oregon & Wash. R.R.
Co., 255 U.S. 56, 71 (1921) (for purposes of federal diversity jurisdiction, a municipal
corporation is deemed to be a citizen of the state under the law of which it is organized). Hogan
alleges that the amount in controversy in this case exceeds $75,000, exclusive of interest and costs.
See 28 U.S.C. § 1332(a).
Page 3 of 7
fails to provide adequate notice – as has been required consistently under Rule 8 of the Federal Rules
of Civil Procedure – or does not contain “enough facts to state a claim to relief that is plausible
on its face,” that is, the claim has not been “nudged . . . across the line from conceivable to
plausible[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “While a complaint attacked
by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s
obligation to provide the grounds of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of a cause of action’s elements will not do.” James v. Illinois
Sexually Dangerous Persons Act, Civil No. 09-40-GPM, 2009 WL 2567910, at *2
(S.D. Ill. Aug. 19, 2009) (quoting Bell Atl., 550 U.S. at 555) (brackets, citations, and internal
punctuation omitted). A complaint is plausible on its face “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
As a federal court sitting in diversity jurisdiction, this Court is required to
apply the substantive law of Illinois in ths case, including the Tort Immunity Act.
See Remet Corp. v. City of Chicago, 509 F.3d 816, 817 & n.1 (7th Cir. 2007); Danrich v. Ettling,
No. 09-CV-0176-MJR-DGW, 2010 WL 1707115, at **3-4 (S.D. Ill. Apr. 27, 2010). The Tort
Immunity Act 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. Additionally, “[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. Some question
has arisen among Illinois courts as to whether the proper standard of care in a case involving tort
liability of a municipality arising out of a high-speed chase by a municipal police officer is the
Page 4 of 7
standard of reasonable care set out in a provision of the Illinois Vehicle Code, 625 ILCS 5/11-205(e),
or the standard of willful and wanton misconduct set out in the Tort Immunity Act. However, most
courts have determined that the proper standard for determining the liability of police officers
engaged in a high-speed chase is willful and wanton misconduct, not ordinary negligence. See, e.g.,
Lanning v. Harris, 796 N.E.2d 667, 668-69 (Ill. App. Ct. 2003); Young v. Forgas, 720 N.E.2d
360, 364-65 (Ill. App. Ct. 1999); Sanders v. City of Chicago, 714 N.E.2d 547, 552-53
(Ill. App. Ct. 1999); Carter v. Du Page County Sheriff, 710 N.E.2d 1263, 1267-68
(Ill. App. Ct. 1999); Morton v. City of Chicago, 676 N.E.2d 985, 991-92 (Ill. App. Ct. 1997);
Nelson v. Thomas, 668 N.E.2d 1109, 1116-17 (Ill. App. Ct. 1996). Given that, under the Tort
Immunity Act, public employees can be liable only for willful and wanton conduct, not negligence,
Hogan’s claim against Smith for negligence is due to be dismissed. Similarly, because Smith cannot
be liable to Hogan for negligence, Cairo cannot be vicariously liable to Hogan for Smith’s
negligence.
Therefore, Count I and Count III of Hogan’s complaint will be dismissed.
However, the Court concludes that Count II and Count IV of Hogan’s complaint, which, as noted,
allege willful and wanton conduct on the part of Smith and Cairo’s vicarious liability for Smith’s
willful and wanton conduct, respectively, withstand scrutiny under Rule 12(b)(6). Whether the
conduct alleged by Hogan against Smith in Count II and Count IV of Hogan’s complaint rises to the
level of willful and wanton conduct is a matter that can be addressed at a later stage of this case, on
a more fully developed record.2
2. To the extent Hogan suggests that Smith was not engaged in police work at the time of the
accident giving rise to this case because he joined the chase that resulted in the accident voluntarily
and without orders, the Court does not agree. There is no serious question that Smith was on duty
and engaged in the execution or enforcement of state laws against drunk driving when the
accident occurred.
Page 5 of 7
The Court turns to Count V of Hogan’s complaint, which, as noted, alleges negligent training
and supervision of Smith by Cairo. Pursuant to the Tort Immunity Act, “a public employee serving
in a position involving 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 I LCS 10/2-201. Section 2-201 bars a plaintiff’s claim if the
action leading to the plaintiff’s injury involved both a policy decision and a discretionary act. See
Harineck v. 161 North Clark St. Ltd. P’ship, 692 N.E.2d 1177, 1181 (Ill. 1998). A policy decision
is one that requires the public employee to balance competing interests and make a judgment call as
to which course of action will best serve those interests. See Van Meter v. Darien Park Dist., 799
N.E.2d 273, 281-82 (Ill. 2003). A discretionary act is one that is unique to a particular public office
and performed with a degree of flexibility. See Snyder v. Curran Twp., 657 N.E.2d 988, 993
(Ill. 1995). By contrast, Section 2-201 does not cover the performance of ministerial actions. See
In re Chicago Flood Litig., 680 N.E.2d 265, 272 (Ill. 1997). A ministerial act is one that is
performed on a given state of facts in a prescribed manner, under the mandate of legal authority,
without reference to an official’s discretion regarding the propriety of the act. See Snyder, 657
N.E.2d at 993. Ministerial acts do not involve any sort of judgment or determination but instead
involve the execution of a set task that is “absolute, certain, and imperative.” Chicago Flood
Litig., 680 N.E.2d at 272 (quoting City of Chicago v. Seben, 46 N.E. 244, 246 (Ill. 1897)).
Immunity, of course, is a defense, and thus the issue before the Court is whether Hogan’s complaint
itself establishes as a matter of law that statutory immunity bars her negligent training and
supervision claim. It does not. Specifically, the Court cannot determine from the complaint alone
that Cairo’s training and supervision of Smith required both a determination of policy and an
Page 6 of 7
exercise of discretion. Though both often are involved in supervising employees, this is not enough
to require dismissal. Rather, the complaint must “set forth everything necessary to satisfy [an]
affirmative defense, such as when a complaint plainly reveals that an action is untimely under the
governing statute of limitations.” United States v. Louis, 411 F.3d 838, 842 (7th Cir. 2008).
See also Patton v. Chicago Heights, No. 09 C 5566, 2010 WL 1813478, at *3
(N.D. Ill. May 3, 2010) (noting that “while intuitively, it would seem that the training of police
officers would require discretion and involve policy determinations, cases are not to be decided on
the basis of intuition”). The act of training and supervision in question could easily be ministerial
rather than discretionary, and Cairo and Smith do not point to any allegations in the complaint to
contradict this possibility. Count V of Hogan’s complaint withstands dismissal on the pleadings
pursuant to Rule 12(b)(6)..
To conclude, Defendants’ motion to dismiss (Doc. 9) is GRANTED in part
and DENIED in part. Defendants’ motion to dismiss is GRANTED as to Count I and Count III
of Hogan’s complaint, and Count I and Count III of Hogan’s complaint are DISMISSED with
prejudice. Defendants’ motion to dismiss is DENIED as to Count II, Count IV, and Count V of
Hogan’s complaint.
IT IS SO ORDERED.
DATED: April 25, 2012
/s/ G. Patrick Murphy
G. PATRICK MURPHY
United States District Judge
Page 7 of 7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?