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No. 2--04--1017

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE McLAREN delivered the opinion of the court:

On a spring morning in April 2002, State Trooper Erin Gainer raced to respond to a report of a traffic accident at the intersection of Interstate 88 and York Road. Cars yielded as Trooper Gainer drove onto the interstate. Except one. As Trooper Gainer crossed the interstate, plaintiff, Angelita Kawaguchi, crashed into her and collided with Stephon B. Effinger. After crashing into Trooper Gainer, plaintiff sued her. Plaintiff also sued Effinger and the Illinois State Toll Highway Authority (Authority).⁽¹⁾ The suit was filed in the circuit court of Du Page County,⁽²⁾ and Trooper Gainer and the Authority moved to dismiss pursuant to section 2--619 of the Code of Civil Procedure (Code) (735 ILCS 5/2--619 (West 2002)). Trooper Gainer argued, among other things, that, under the doctrine of sovereign immunity, plaintiff's suit should have been filed in the Court of Claims and the circuit court therefore lacked jurisdiction to hear the case. For its part, the Authority argued, among other things, that, because Trooper Gainer was an employee of the State Police and not of the Authority, the Authority was not vicariously liable for her alleged negligence. The court granted defendants' motions to dismiss and denied plaintiff's motion to reconsider. Plaintiff appeals, and we affirm.

I. BACKGROUND

A. Facts

The facts of this case are largely undisputed. On April 6, 2002, Trooper Gainer was conducting a traffic stop on northbound Interstate 294, when she received a radio dispatch of an accident with injuries at the intersection of York Road and Interstate 88. Because Trooper Gainer's patrol area included this intersection, the dispatch was specifically directed at her. An applicable State Police policy and procedure manual instructed Trooper Gainer and her fellow officers to treat a report of an accident with injuries as an emergency.

After receiving the emergency dispatch, Trooper Gainer informed the motorist she had pulled over that "it was his lucky day." She said that she had a more important call, told him to be more careful, and gave him his driver's license back. Then she prepared to respond to the emergency call.

Trooper Gainer was used to getting calls like this one. For most of her more than half a decade with the State Police, she was one of the troopers assigned to District 15, which is responsible for policing the tollways. District 15 exists pursuant to a contract between the Authority and the State Police. That contract was entered into pursuant to a statute, which provides that the State Police are not required to police the tollways except as required by contract and authorizes the State Police and the Authority to enter into such contracts. See 20 ILCS 2610/20 (West 2002). The statute also limits the acceptable terms of such contracts. For example, such contracts must provide that the Authority is financially responsible for claims of injury or illness made by State Police officers assigned to the tollways. Additionally, such contracts must provide that the Authority is responsible for the cost of police uniforms and equipment. 20 ILCS 2610/20 (West 2002). Further, such contracts must provide that the Authority is responsible for the cost of police training and compensation. 20 ILCS 2610/20 (West 2002). Pursuant to the statute, the Authority and the State Police entered into a contract to police the tollways.

Under that contract, although the officers assigned to District 15 enforce tollway regulations, the State Police has the exclusive authority to direct, control, and supervise the manner in which the officers perform their duties. As Trooper Gainer put it, "all supervision and control as to the manner in which I conducted my employment duties was exercised by my superior police officers by means of orders and directives issued in the chain of command of the Department of State Police located at its District #15." The contract also provides that the State Police has the exclusive authority to choose which officers to assign to the district. Pursuant to this provision, the State Police assigns to District 15 only those officers who have been trained consistent with the policies and standards of the State Police.

Trooper Gainer is one of those officers. Shortly after joining the State Police, she attended the police academy, where she was certified as a state trooper. She was then assigned to District 15, where her duties included answering radio calls, making traffic stops, and enforcing traffic laws. Additionally, as a trained first responder, she was required to respond to the scenes of traffic accidents to see if her medical training could be of use. Once there, she was responsible for determining the number of people and vehicles involved, assessing the extent of the injuries, and deciding whether an ambulance was needed.

On the day of the accident with which we are concerned here, Trooper Gainer planned to do exactly that. From the place where she had earlier conducted the traffic stop, there were two routes she could take to get to the scene of the accident. The first route required her to drive through a toll area, then drive an additional mile, then turn around, drive back over the mile she would have just traveled, go back through the toll area again, and then proceed to the accident scene. The second route allowed her to make use of an "authorized vehicles only" turnaround. To do so, she needed to proceed south across the westbound lanes of Interstate 88, a course of action authorized by statute. See 625 ILCS 5/11--205(b), (c)(4) (West 2002) ("The driver of an authorized emergency vehicle, when responding to an emergency call ***, may" "[d]isregard regulations governing direction of movement"). Because of the slow down involved in taking the first route, including having to twice pass through the toll area, Trooper Gainer did not consider that route a valid option for an emergency response.

After selecting her route, Trooper Gainer said, she turned on her flashing lights and siren and started toward the scene of the accident. She headed down an on ramp onto Interstate 88, and then proceeded south across the westbound lanes in the direction of the authorized vehicles turnaround. At this point, Interstate 88 has three westbound lanes. When Trooper Gainer entered the interstate, the morning was bright and clear, and conditions were dry. Traffic in the first two lanes yielded the right-of-way, and Trooper Gainer proceeded toward the turnaround.

She did not make it. As Trooper Gainer entered the third lane, plaintiff smashed into the driver's-side door of her patrol car. At about the same time, there was a collision between plaintiff's car and Effinger's car. According to Effinger, who has also sued Trooper Gainer, Trooper Gainer did not have her flashing lights and siren activated at the time.⁽³⁾ Effinger did not say Trooper Gainer was driving something other than a clearly marked police car.

Trooper Gainer was apparently injured in the accident. As required by both contract and statute, she filed a workers' compensation claim with the Authority. At the time of her deposition, Trooper Gainer remained an employee of the State Police.
 

B. Procedural History

In February 2003, about a year after she crashed into Trooper Gainer, plaintiff filed suit against her. In her complaint, plaintiff claimed that crashing into Trooper Gainer caused plaintiff injury. Plaintiff also claimed that crashing into Trooper Gainer caused the collision between plaintiff and Effinger, whom plaintiff also sued. Plaintiff further claimed that, although Trooper Gainer was a State Police officer, she was an employee of the Authority or, if not a regular employee, a borrowed one. On this theory, plaintiff sued the Authority too.

Trooper Gainer filed a motion to dismiss, arguing that, although the suit was nominally against her, it was in essence a suit against the State. Therefore, Trooper Gainer argued, the circuit court lacked jurisdiction over the case pursuant to the doctrine of sovereign immunity; the proper forum, Trooper Gainer argued, was the Court of Claims. Plaintiff did not respond to Trooper Gainer's motion within the time allotted. Instead, after that time had expired, plaintiff asked the trial court to allow her more time to respond. The trial court granted plaintiff's request.

In May 2004, the trial court held a hearing on Trooper Gainer's motion to dismiss. Because it found that Trooper Gainer's actions in responding to an emergency call were unique to her position as a member of the State Police, the trial court concluded that sovereign immunity applied. Accordingly, the trial court concluded that it lacked jurisdiction. During the hearing, plaintiff's attorney pointed out that, in an affidavit filed by Effinger in his suit against Trooper Gainer, Effinger claimed that Trooper Gainer's flashing lights and siren were not activated at the time of the accident. However, because Effinger's affidavit was not before the trial court, it did not consider the affidavit.

Just under 30 days later, in June 2004, plaintiff filed a motion to reconsider. In that motion, plaintiff argued that Effinger's affidavit constituted newly discovered evidence that was not earlier available. Plaintiff further argued that Effinger's affidavit created a genuine issue of material fact as to whether Trooper Gainer was acting in a way unique to her employment as a State Police officer. That is, according to plaintiff, if Trooper Gainer was driving without her flashing lights and siren on, then her conduct in responding to an emergency call by driving south through Interstate 88's westbound lanes would not be unique to her position. Plaintiff argued that this was so, notwithstanding that police responding to emergency calls may disobey regulations governing the direction of traffic flow regardless of whether they have their flashing lights and siren on. See 625 ILCS 5/11--205(d) (West 2002).

In July 2004, the trial court held a hearing on plaintiff's motion to reconsider. Although the trial court stated that it was "not sure why [Effinger's affidavit] couldn't have been discovered well before the first go around," it granted plaintiff's request that it consider Effinger's affidavit. Taking the affidavit as true, the trial court found the fact that Trooper Gainer may not have had her flashing lights and siren on did not change the conclusion that she was acting in a way unique to her position when she responded to the emergency call. Thus, the trial court denied plaintiff's motion to reconsider.

In September 2004, the trial court considered the Authority's motion to dismiss. By now, plaintiff had conceded that Trooper Gainer was a member of the State Police and not an employee of the Authority. As plaintiff put it, "[plaintiff] acknowledges that Gainer was employed by the State Police at the time of the incident." Nevertheless, plaintiff claimed that a genuine issue of material fact existed as to whether Trooper Gainer was a borrowed employee of the Authority at the same time. Specifically, plaintiff argued that this was so because the Authority paid Trooper Gainer's salary and because Trooper Gainer had filed her worker's compensation claim with the Authority. Additionally, plaintiff stressed that the Authority had provided Trooper Gainer with a uniform, squad car, and radio. Plaintiff argued that these facts, coupled with District 15 troopers' enforcement of tollway regulations, created a genuine issue of material fact as to whether Trooper Gainer was a borrowed employee of the Authority.

The trial court found that Trooper Gainer was not a borrowed employee of the Authority and granted the motion to dismiss. At that point, the cases against Trooper Gainer and the Authority had been disposed of, but the case against Effinger was still pending. So that plaintiff could appeal the decision as to Trooper Gainer and the Authority, the trial court entered an order in which it stated that there was no just reason to delay an appeal. See 155 Ill. 2d R. 304(a). This timely appeal followed.
 

II. ANALYSIS

A. Introduction

Plaintiff argues that the circuit court erred in granting Trooper Gainer's motion to dismiss because a genuine issue of material fact exists as to whether Trooper Gainer was acting in a way unique to her position as a state trooper at the time of the accident. Thus, plaintiff questions whether sovereign immunity deprived the trial court of jurisdiction over her claim against Trooper Gainer. With regard to the Authority, plaintiff argues that the trial court erred in dismissing her claim because a genuine issue of material fact exists as to whether Trooper Gainer was a borrowed employee of the Authority. For her part, Trooper Gainer argues that, in addition to sovereign immunity, public official immunity bars plaintiff's claim against her. For its part, the Authority, while conceding that under some circumstances it has waived sovereign immunity, argues that Trooper Gainer was not its employee and that, even if she was, it has not waived sovereign immunity under the circumstances of this case.

Although the parties discuss plaintiff's claim against the Authority last, we do not believe this is the most analytically cohesive way to proceed. If Trooper Gainer was a borrowed employee of the Authority at the time of the accident, then the State Police could not be liable for any negligence on her part. 27 Am. Jur. 2d Employment Relationship