Lohman v. Bemis

                                        FOURTH DIVISION
                                        MAY 29, 1997













No. 1--96--2194

ROBERT LOHMAN and CRAIG DERAEDT,

          Plaintiffs-Appellants,

               v.

JOEL BEMIS and RONALD SCHMUCK,

          Defendants-Appellees.)
)
)
)
)
)
)
)
)Appeal from the
Circuit Court of
Cook County

No. 94--L--13704

Honorable
Michael Hogan,
Judge Presiding.


     JUSTICE CERDA delivered the opinion of the court:
     Two Chicago police officers, Robert Lohman and Craig
Deraedt, filed a complaint against two fellow officers, Joel
Bemas and Ronald Schmuck, for personal injuries they sustained
when defendants' vehicles collided.  The trial court dismissed
plaintiffs' willful and wanton claims on the basis that section
22--307 of the Illinois Pension Code (40 ILCS 5/22--307 (West
1994)) prohibits a police officer from bringing a cause of action
against another police officer for willful and wanton conduct. 
For the following reasons, we affirm.
     The issue in this case is whether under the Illinois Pension
Code, a Chicago police officer is barred from suing a fellow
officer for personal injuries caused by willful and wanton
conduct while responding to an emergency call.
     On June 12, 1994, plaintiff Deraedt was a passenger in a
vehicle being driven by defendant Schmuck.  At the same time,
plaintiff Lohman was a passenger in a vehicle being driven by
defendant Bemas.  All the officers were on duty in Chicago Police
Department vehicles.  They were responding to an emergency call
when the vehicles collided in the intersection of Keeler Street
and Armitage Avenue in Chicago.  As a result of the collision,
plaintiffs sustained injuries.  
     Plaintiffs filed a complaint against defendants for personal
injuries they sustained in the collision, alleging willful and
wanton misconduct.  Defendants filed a section 2--619 motion to
dismiss the first amended complaint (735 ILCS 5/2--619 (West
1992)) on the basis that (1) the allegations in the complaint of
willful and wanton conduct were speculative, conclusory, and
devoid of factual support; and (2) the complaint was barred by
the Pension Code.  The trial court granted the motion to dismiss
because the claims were barred by the Pension Code.  The purpose
of a 2--619 motion to dismiss is to afford litigants a means to
dispose of legal issues and easily proved factual issues at the
outset of a case, reserving disputed questions of fact for a
trial.  Zedella v. Gibson, 165 Ill. 2d 181, 185, 650 N.E.2d 1000
(1995).  The granting of a section 2--619 motion to dismiss is
given de novo review on appeal because the motion does not
require the trial court to weigh facts or determine credibility. 
Kedzie & 103rd Currency Exchange v. Hodge, 156 Ill. 2d 112, 116,
619 N.E.2d 732 (1993).  
     We base our decision on section 22--307 of the Pension Code
and Mitsuuchi v. City of Chicago, 125 Ill. 2d 489, 497, 532 N.E.2d 830 (1988), where the Illinois supreme court held that
section 22--307 bars a police officer from bringing a cause of
action for negligence against another police officer.  
     Section 22--307 of the Pension Code provides:
               "Common law or statutory rights barred.  Whenever
          any city or village enacts an ordinance pursuant to
          this Division, no common law or statutory right to
          recover damages against such city or village for injury
          or death sustained by any policeman or fireman while
          engaged in the line of his duty as such policeman or
          fireman, other than the payment of the allowances of
          money and of the medical care and hospital treatment
          provided in such ordinance, shall be available to any
          policeman or fireman who is covered by the provisions
          of such ordinance, or to anyone wholly or partially
          dependent upon such policeman or fireman, or to the
          legal representative of the estate of such policeman or
          fireman, or to anyone who would otherwise be entitled
          to recover damages for such injury or death."  40 ILCS
          5/22--307 (West 1994).
     The City of Chicago enacted section 22--19 of the City of
Chicago Municipal Code, which provides:
               "The committee on finance of the city council is
          hereby authorized, directed and empowered to provide
          for payment for proper medical care and hospital
          treatment for accidental injuries sustained by any
          policeman * * * while in the performance of his duties
          * * *."  Chicago Municipal Code Sec. 22--19 (1969).
     Thus, the City of Chicago enacted an ordinance pursuant to
the Illinois Pension Code and was protected under the Code from
common law actions for accidental injuries incurred by police
officers.
     Mitsuuchi is the controlling case because its rationale is
broad enough to bar actions brought by police officers against
fellow police officers for allegedly willful and wanton conduct.
In Mitsuuchi, the plaintiff, a Chicago police officer, was a
passenger in a Chicago Police Department squad car being driven
by another police officer.  Mitsuuchi, 125 Ill. 2d  at 490.  While
the officer was trying to avoid a vehicle that had gone through a
stop sign, the squad car swerved, went off the road, and struck a
pole.  Mitsuuchi, 125 Ill. 2d  at 490.  The plaintiff was injured
and filed a lawsuit for negligence against her fellow officer. 
Mitsuuchi, 125 Ill. 2d  at 490.  
     Our supreme court compared the Pension Code to the Workers'
Compensation Act, which provides that an employee receiving
workers' compensation cannot maintain a common law negligence
action for an injury sustained in the course of employment
against a fellow employee.  Mitsuuchi, 125 Ill. 2d  at 493-94. 
The court relied on Kelsay v. Motorola, Inc., 74 Ill. 2d 172,
180, 384 N.E.2d 353 (1978), which discussed how the statutory
scheme of the Workers' Compensation Act established a tradeoff
between an employer and employee, whereby the employee enjoys the
automatic right to be compensated and the employer receives the
right to fixed liability. 
     The Mitsuuchi court stated:
          "In view of the fact that a considerable portion of
          industrial injuries can be traced to the negligence of
          a coworker, [litigation between coworkers] could reach
          staggering proportions, and would not only tend to
          encourage corrupt and fraudulent practices but would
          also disrupt the harmonious relations which exist
          between coworkers."  Mitsuuchi, 125 Ill. 2d  at 495,
          quoting O'Brien, 10 Ill. 2d  at 174, 139 N.E.2d 222.
     Our supreme court has also decided that the Workers'
Compensation Act bars an employee from bringing a common law
action against a co-worker for injuries arising from willful and
wanton conduct.  Meerbrey v. Marshall Field and Co., Inc., 139 Ill. 2d 455, 469, 564 N.E.2d 1222 (1990); Fregeau v. Gillespie,
96 Ill. 2d 479, 484, 451 N.E.2d 870 (1983); Collier v. Wagner
Castings Co., 81 Ill. 2d 229, 241, 408 N.E.2d 198 (1980);
Sjostrom v. Sproule, 33 Ill. 2d 40, 43, 210 N.E.2d 209 (1965). 
In addition, the Workers' Compensation Act provides for limited
liability on the part of the employer for any "accident"
resulting in injury to an employee while at work, whether that
accident and injury are a result of negligence or willful and
wanton misconduct.  Lannom v. Kosco, 158 Ill. 2d 535, 541, 634 N.E.2d 1097 (1994).
     Willful and wanton conduct is a hybrid between negligence
and intentionally tortious behavior.  Calloway v. Kinkelaar, 168 Ill. 2d 312, 323, 659 N.E.2d 1322 (1995); Ziarko v. Soo Line,
R.R., 161 Ill. 2d 267, 275, 641 N.E.2d 402 (1994).  Illinois law
defines willful and wanton conduct as "a course of action that
shows an actual or deliberate intention to cause harm or, if not
intentional, shows an utter indifference to or conscious
disregard for the safety of others."  Calloway, 168 Ill. 2d  at
323; Doe v. Calumet City, 161 Ill. 2d 374, 390, 641 N.E.2d 498
(1994).  In Illinois, there is no independent tort of willful and
wanton conduct.  Ziarko v. Soo Line R.R., 161 Ill. 2d  at 174.
     The City of Chicago ordinance 22--19 provides:
               "for payment...for accidental
               injuries sustained by any
               policeman...while in the
               performance of his duties." 
               Chicago Municipal Code Sec. 22--19
               (1969).
               Thus, if an officer is injured accidentally while in the
performance of his duties, he is only entitled to receive
compensation as provided under the Illinois Pension Code and the
Chicago Municipal Code.  The ordinance does not distinguish
between accidental injuries from negligent or willful and wanton
conduct.  We therefore decline to distinguish between negligent
and willful and wanton conduct.  We believe both are covered by
the Codes.
     We decline to apply sections 2-202 or 5-106 of the Tort
Immunity Act because those sections of the Tort Immunity Act
apply to torts against non-governmental persons or property, not
co-workers.
     Since we have decided that plaintiffs are barred from
bringing a cause of action for willful and wanton conduct against
defendants, we need not address whether the complaint adequately
stated a claim for willful and wanton conduct.  According to the
record, the circuit court never made a ruling whether the
complaint stated a cause of action for willful and wanton
conduct.
     Based on the foregoing, we affirm the circuit court
judgment.
     Affirmed.
     McNamara, J., and Burke, J., concur.