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FIRST DIVISION
SEPTEMBER 24, 2001

No. 1-99-2381

JUSTICE TULLY delivered the opinion of the court:

Plaintiff, Joey Watts, appeals the circuit court's order granting summary judgment for thedefendant, the City of Chicago. On appeal, Plaintiff argues that the circuit court erred in finding thatthe defendant owed no duty to the plaintiff under either a negligence or willful and wanton standardof care. We affirm.

Raising several theories of liability, the plaintiff sought recovery for the alleged misconductof two paramedics employed by the City of Chicago. The case was initially filed in the MunicipalDivision of the circuit court. The City filed a motion for summary judgment which was denied bythe Municipal Division judge who found that a genuine issue of material fact existed. The case wasthen transferred to the Law Division and the City filed a second motion for summary judgment. Thecircuit court granted the second motion for summary judgment in favor of the City of Chicago.

BACKGROUND

The following factual summary is derived from the allegations in the plaintiff's ThirdAmended Complaint with attached exhibits, along with deposition testimony. We must notehowever that the deposition testimony is not exactly harmonious as each witness has a very differentperspective of what occurred.

On September 19, 1993, at approximately 2:30 a.m., the plaintiff, Joey Watts, was involvedin an automobile accident at the intersection of 120^th Street and State Street in Chicago. Thecollision occurred in front of a City of Chicago firehouse. After the collision, Watts exited hisvehicle and engaged in an argument with the occupants of the other automobile involved in theaccident. At some point during the altercation, Watts was struck in the head with a hubcap by thedriver of the other automobile. The passenger in Watts' vehicle, Sandra Bullock, was trapped in thevehicle.

Shortly after the incident, a City of Chicago ambulance with two Chicago Fire Departmentparamedics arrived. The paramedics helped Bullock onto a stretcher and into the back of theambulance and administered emergency medical treatment. Both paramedics state that they askedWatts if he needed medical attention and Watts eventually entered the back of the ambulance.

Watts states that after he got in the ambulance, a group of individuals including the occupantsof the other vehicle appeared at the rear door of the ambulance and began threatening him. Theybegan striking him and he responded by pushing them away. Watts maintains that the paramedicsordered him to exit the ambulance and threatened to eject Bullock if he did not leave.

One of the paramedics, Gloria Medina, states that Watts was arguing with the individualswho had returned to the scene and that she told him to "take the fight outside [of the ambulance]." She said that she told him "if you are not going to stop fighting, we need to treat [Bullock], you needto fight outside with them. You can't fight in here with them." Medina said that she went to thefirehouse in order to get help from the firemen and when she returned from the firehouse, Watts wasno longer inside the ambulance.

The other paramedic, Roland Obafemi, states that Watts was fighting with the occupants ofthe other vehicle when the ambulance arrived on the scene. Obafemi states that he and Medina putBullock in the ambulance and asked Watts several times whether he wanted to go to the hospital butWatts did not reply. Obafemi states that Watts got in and out of the ambulance numerous times ashe continued arguing with the others involved in the accident.

Watts exited the ambulance and was struck in the face with a bottle by one of the occupantsof the other car. As a result, Watts lost sight in his left eye.

DISCUSSION

In a cause of action based on negligence, the plaintiff must establish the existence of a duty,a breach of that duty and an injury proximately resulting from a breach of that duty. Reynolds v.Decatur Memorial Hospital, 277 Ill.App.3d 80, 85, 214 Ill.Dec. 44, 660 N.E.2d 235 (1996). Whether a duty of care exists is a question of law to be determined by the court and thus may bedetermined on a motion for summary judgment. Wojdyla v. City of Park Ridge, 148 Ill.2d 417, 421,592 N.E.2d 1098 (1992). In reviewing the entry of summary judgment, an appellate court exercisesde novo review and construes all evidence strictly against the movant and liberally in favor of therespondent. Barnett v. Zion Park District, 171 Ill. 2d 378, 385 (1996). Summary judgment isappropriate if there is no genuine issue of material fact and the movant is entitled to judgment as amatter of law. 735 ILCS 5/2-1005(c) (West 1998); Barnett, 171 Ill. 2d at 385.

First, the plaintiff contends that the trial court erred in granting the defendant's second motionfor summary judgment when a prior motion was denied by a different judge. We disagree. An orderdenying summary judgment is interlocutory in nature and may be modified or vacated at any timebefore final judgment. Towns v. Yellow Cab Co., 73 Ill.2d 113, 382 N.E.2d 1217 (1978). Furthermore, we are not persuaded by the plaintiff's assertion that the defendant engaged in "judgeshopping" merely because the defendant filed the motion to transfer the case from the municipaldivision to the law division. While defendant had previously opposed a motion to transfer, we donot find this to be suggestive of "judge-shopping" and we find no evidence of such in the record.

Next we must determine whether the defendant owed plaintiff a duty. The plaintiff arguesvarious theories under which defendant owed him a duty of due care and attempts to frame the dutyas a "duty to transport." While we agree that the paramedics here owed Watts a duty of due care inthe provision of medical treatment, this is far different from the duty Watts asserts. We find that thedefendant did not owe Watts a duty to protect him from the acts of third parties.

The plaintiff first asserts that defendant, as a common carrier, owed a duty to provide thehighest degree of care. Even if we determine as a matter of law that the defendant operates itsambulances as a common carrier, we cannot find that a duty includes protecting Watts from the actsof third parties. The plaintiff contends that the fundamental duty is to provide "reasonable and safetransport" and the defendant breached this duty by failing to transport him. However, the duty totransport must arise from a medical necessity to transport an individual to the hospital. Plaintiff citescases from foreign jurisdictions which have held that an ambulance is a common carrier. Thereasoning behind those holdings however, stress that the duty to transport arises because theindividual in need of transport is ill or disabled. In other words, there is a duty to transport because a medical necessity to transport to a hospital exists. Here, there is no evidence of a medical necessityto transport Watts to a hospital. We also find the same holds true to plaintiff's argument that thedefendant owes a duty based upon the special relationship of a private carrier of vulnerable persons. Again, there is no evidence that Watts was medically vulnerable and in need of transport to ahospital.

The plaintiff also asserts that the paramedics owe a duty to exercise due care in treating andtransporting a patient based upon a provider-patient relationship. The plaintiff maintains that theparamedics failed to exercise due care because as "trained rescuers," they did not perform inaccordance with training and applicable protocols. The plaintiff asserts that the paramedics failedto "leave a dangerous scene as rapidly as possible" and failed to "protect a patient from harm in adangerous situation."

Again, the plaintiff frames the duty owed as a duty to "transport" a patient away from a"dangerous scene." However, the record does not show a medical necessity for the plaintiff toremain in the ambulance for transportation. The only reason to keep the plaintiff in the ambulancewas to protect him from the third parties. The paramedics did not owe any duty to protect Wattsfrom third parties. Moreover, the record shows that a paramedic's general training includes "gettingthemselves and if possible their patient out of danger." Here, the deposition testimony of theparamedics shows that they believed the plaintiff to be a part of the dangerous situation. Thus, therecord does not support the plaintiff's position that the paramedics failed to follow protocol. Aspreviously stated, nothing in the record suggests that the paramedics were negligent in providingmedical treatment to the plaintiff or that a medical necessity existed to transport the plaintiff to thehospital.

The plaintiff next asserts that the paramedics owed a duty of care based on a voluntaryundertaking. The plaintiff admits that the scope of such a duty is "strictly limited to the extent of theundertaking." The plaintiff maintains that here, the paramedics voluntarily undertook a set ofcomprehensive services consisting of paramedical treatment and transport and "assumed acomprehensive duty of care which included taking reasonable action in furtherance of the plaintiff'shealth and well-being."

The plaintiff also asserts that the defendant owed him a duty of due care based on the "specialrelationship" created by an implied promise. The plaintiff contends that the paramedics offeredmedical treatment and transport and that Watts accepted their offer. The plaintiff argues that thedefendant voluntarily assumed a quasi-contractual relationship with him under which the defendantowed a duty of care based on the implied promise of reasonable care in treatment and transport.

Again, we refrain from extending the scope of the duty of care of treatment and transport toinclude a duty to protect from third parties. There is no evidence that the paramedics failed toprovide reasonable care in treatment or transport.

In conclusion, defendant owed no duty to Watts to protect him from the acts of third parties. Moreover, we cannot find a duty to transport arising from any relationship between the paramedicsand Watts because there is no evidence of a medical necessity to transport Watts. Furthermore, aswe have found that no duty exists, we need not address the issue of immunity. Therefore, we affirmthe circuit court's order granting summary judgment for the defendant.

Affirmed.

TULLY, J., with COHEN, P.J., and O'MARA FROSSARD, J., concurring.