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 Docket No. 96210-Agenda 6-March 2004.

PATRICIA ABRAMS, Indiv. and as Special Adm'r of the Estate of
Georgia Sabrina White, Deceased, et al., Appellees, v. THE CITY OF
CHICAGO et al. (The City of Chicago, Appellant).

Opinion Filed May 20, 2004.
 

JUSTICE THOMAS delivered the opinion of the court:

Plaintiff, Patricia Abrams, individually and as special administrator ofthe estate of Georgia Sabrina White, brought this negligence action againstdefendant, the City of Chicago, to recover for injuries sustained in anautomobile accident. The trial court granted summary judgment for theCity, finding that the City's conduct was not a proximate cause ofplaintiff's injuries. The appellate court reversed. 338 Ill. App. 3d 179. Weallowed the City's petition for leave to appeal (177 Ill. 2d R. 315(a)), andnow reverse the judgment of the appellate court.

BACKGROUND

The relevant facts are not in dispute. In the early morning hours ofNovember 18, 1997, plaintiff called the City's 911 service, requesting anambulance to take her to the hospital because she had gone into labor withher seventh child. Her labor pains were 10 minutes apart, and she did nothave a vehicle of her own to drive to the hospital. The 911 dispatcher,later identified as Vicki Hernandez, told plaintiff that the situation was notan emergency and then hung up the phone.

A few minutes later, plaintiff's sister, Dorothy Brown, placed another911 call on behalf of plaintiff. The dispatcher for this second call, lateridentified as Antoinette Cacioppo, explained to Brown that labor pains at10-minute intervals did not constitute a medical emergency. She then gaveBrown the number of a private ambulance service.

Vicki Hernandez, the dispatcher who handled the first call, testifiedin her deposition that the City's Office of Emergency Communications(OEC) uses a system of flip cards to determine whether to send anambulance. When pains are less than five minutes apart in a secondpregnancy, birth is considered imminent. If a woman called without a wayto get to the hospital and her contractions were more than five minutesapart, an ambulance would not be sent. Hernandez acknowledged that thephrase "when in doubt, send" appears on all the cards.

OEC flip card No. 26 lists the dispatch priorities for pregnancy-related matters. Priority I calls for an ambulance to be sent under thefollowing conditions: bleeding in the third trimester; fainting; more than fourmonths pregnant with pains less than five minutes apart; pregnant andhemorrhaging; and delivery or postpartum. Priority III provides that anambulance will not be sent under the following conditions: pains greaterthan five minutes apart if private transport is immediately available; or ifpregnant but no hemorrhage or pain.

Daniel Bull, a third dispatcher on duty at the time 911 calls werehandled, testified that, although it was not covered by the rules, if a womancalled for an ambulance with pains 10 minutes apart on a successivepregnancy and private transport was not available, he personally wouldhave sent an ambulance in that situation. He based his opinion on the"when in doubt, send" policy and on the fact that labor pains at 10-minuteintervals for a second or later child means that the baby is closer to beingborn than a first child would be.

After the second 911 call, Brown called a private ambulance serviceand was told that they did not have an ambulance available. Plaintiffapparently did not call back the 911 dispatcher and inform her that privatetransport was not available. Instead, plaintiff telephoned her friend,Henrietta Young, who agreed to leave work to take her to the hospital.Young arrived at plaintiff's residence five minutes later. As theydrove to the hospital, Young generally observed the speed limit andobeyed traffic signals. However, when Young came to the intersection atKing Drive and Pershing, she held down her horn and went through a redlight. According to Young's deposition, she looked both ways beforeproceeding, but did not see any traffic coming. In the intersection, Young'scar collided with a vehicle driven by Gregory Jones. Jones was speedingat the time, traveling between 75 and 80 miles per hour. In a handwrittenstatement to police, Jones admitted that he had a beer, two double shotsof rum, and crack cocaine, before getting behind the wheel of his car. Healso admitted that he was driving on a suspended licence. Plaintiff wasseriously injured in the collision. She spent two weeks in a coma, and herbaby, Georgia Sabrina White, died after delivery.

Plaintiff sued the City, alleging willful and wanton misconduct in thefailure to provide ambulance service. The City filed a motion for summaryjudgment, contending that it had no duty to provide an ambulance and, inany event, the failure to provide an ambulance was not the proximatecause of plaintiff's injury and her child's death. Plaintiff filed a response tothe motion for summary judgment, attaching the affidavit of Dr. FrankBaker. Dr. Baker's affidavit stated that it was his opinion that plaintifflikely would not have been involved in an automobile accident had the Citysent an ambulance. The trial court granted the City's motion, finding thatits conduct was not the proximate cause of plaintiff's and her daughter'sinjuries. The trial court found it unnecessary to reach the duty issue.

The appellate court reversed. 338 Ill. App. 3d at 188. Without citingany authority on point, it found that the trial court "erred in ruling oncausation while declining to rule on the issue of whether the City owedplaintiffs a duty of care." 338 Ill. App. 3d at 186. The appellate court thenproceeded to resolve the case on the proximate cause issue, withoutreaching the merits of the duty issue. The appellate court found that "thedispatchers (the 'first wrongdoers') reasonably might have anticipated theefficient intervening cause (Brown running the red light and being struck byJones's car) as a natural and probable result of the dispatcher's ownnegligence. The plaintiff arguably showed legal cause because the Cityarguably could have reasonably foreseen the disregard of a traffic signalby someone attempting to transport a woman in labor to a hospital, afterthe City refused to send an ambulance." 338 Ill. App. 3d at 187.According to the appellate court, the cases cited by the City were"distinguishable, as they did not involve drivers transporting women inlabor to the hospital." 338 Ill. App. 3d at 187.

After allowing the City's petition for leave to appeal, we granted theIllinois Municipal League, the Park District Risk Management Agency andthe Illinois Association of Governmental Pools leave to submit an amicuscuriae brief in support of the City. We also granted the Illinois TrialLawyers Association leave to submit an amicus curiae brief in support ofplaintiff.

ANALYSIS

The primary issue raised by the parties on appeal is whether theCity's failure to send an ambulance to transport plaintiff to the hospital wasthe proximate cause of the injuries sustained on the way to the hospital.The parties' arguments also raise questions about whether the City oweda duty to plaintiff under the circumstances and whether any duty owed wasbreached. We may, however, assume the existence of a duty and itsbreach for the sake of discussion in order to address the proximate causeissue. Thompson v. County of Cook, 154 Ill. 2d 374, 382 (1993).Because we resolve this case in favor of the City on proximate causegrounds, we need not address the merits of the parties' duty arguments.Thompson, 154 Ill. 2d at 384.

To recover damages based upon a defendant's alleged negligenceinvolving willful and wanton misconduct, a plaintiff must allege and provethat the defendant owed a duty to the plaintiff, that the defendant breachedthis duty, and that the breach was the proximate cause of the plaintiff'sinjuries. See Harrison v. Hardin County Community Unit SchoolDistrict No. 1, 197 Ill. 2d 466, 475 (2001) (Harrison, C.J., speciallyconcurring, joined by Kilbride, J.); First Springfield Bank & Trust v.Galman, 188 Ill. 2d 252, 256 (1999).

Summary judgment is proper where the pleadings, affidavits,depositions, admissions, and exhibits on file, when viewed in the light mostfavorable to the nonmovant, reveal that there is no issue as to any materialfact and that the movant is entitled to judgment as a matter of law. 735ILCS 5/2-1005(c) (West 2002); Harrison, 197 Ill. 2d at 470. If theparty moving for summary judgment supplies facts that, if not contradicted,would warrant judgment in its favor as a matter of law, the opposing partycannot rest on its pleadings to create a genuine issue of material fact.Harrison, 197 Ill. 2d at 470. Proximate cause is generally an issue ofmaterial fact in a negligence suit. Gatlin v. Ruder, 137 Ill. 2d 284, 293(1990). Although the issue of proximate cause is ordinarily a question offact determined by the trier of fact, it is well settled that it may bedetermined as a matter of law by the court where the facts as allegedshow that the plaintiff would never be entitled to recover. See Harrison,197 Ill. 2d at 476 (Harrison, C.J., specially concurring, joined by Kilbride,J.); DiBenedetto v. Flora Township, 153 Ill. 2d 66, 71 (1992) (affirmeddismissal of a negligence complaint on the basis of a lack facts establishingproximate cause); Merlo v. Public Service Co. of Northern Illinois, 381Ill. 300, 318 (1942); Bermudez v. Martinez Trucking, 343 Ill. App. 3d25, 30-31 (2003). We conduct de novo review of a ruling on a motionfor summary judgment. Harrison, 197 Ill. 2d at 470-71.

The City argues that the circuit court correctly entered summaryjudgment on its behalf because plaintiff cannot satisfy the "legal cause"requirement of the proximate cause test. In First Springfield NationalBank & Trust v. Galman, 188 Ill. 2d 252 (1999), this court harmonizedthe proximate cause test articulated in Lee v. Chicago Transit Authority,152 Ill. 2d 432, 455 (1992), with other long-standing precedentarticulating proximate cause concepts (see Briske v. Village of Burnham,379 Ill. 193, 199 (1942); Merlo, 381 Ill. at 316; see also Thompson, 154Ill. 2d at 383). In Galman and Lee, this court found that "the term'proximate cause' describes two distinct requirements: cause in fact andlegal cause." Galman, 188 Ill. 2d at 257-58, citing Lee, 152 Ill. 2d at455. A defendant's conduct is a "cause in fact" of the plaintiff's injury onlyif that conduct is a material element and a substantial factor in bringingabout the injury. Galman, 188 Ill. 2d at 258; Lee, 152 Ill. 2d at 455. Adefendant's conduct is a material element and substantial factor in bringingabout the injury if, absent that conduct, the injury would not haveoccurred. Galman, 188 Ill. 2d at 258; Lee, 152 Ill. 2d at 455. "Legalcause," by contrast, is largely a question of foreseeability. The relevantinquiry is whether "the injury is of a type that a reasonable person wouldsee as a likely result of his or her conduct." (Emphasis in original.)Galman, 188 Ill. 2d at 260, citing Lee, 152 Ill. 2d at 456.

Galman reconciled the above-stated proximate cause precepts ofLee with a special subset of proximate cause cases involving injuriescaused by the intervening acts of third persons-as was the case in Briske,Merlo, and Thompson. Galman rejected the notion that Briske, Merlo,and Thompson are distinct from and wholly incompatible with Lee.Galman, 188 Ill. 2d at 258. Instead, it found that those three casesaddress a situation where the plaintiff's injury results not from thedefendant's negligence directly but from the subsequent, independent actof a third person. In that type of case, it has been stated that the test is"whether the first wrongdoer reasonably might have anticipated theintervening efficient cause as a natural and probable result of the firstparty's own negligence." Galman, 188 Ill. 2d at 257, citing Merlo, 381Ill. at 317. If the negligence charged does nothing more than furnish acondition by the which the injury is made possible, and that conditioncauses an injury by the subsequent, independent act of a third person, thecreation of the condition is not the proximate cause of the injury. Galman,188 Ill. 2d at 257, citing Thompson, 154 Ill. 2d at 383, Briske, 379 Ill.at 199, and Merlo, 381 Ill. at 316. Galman noted that when Briske,Merlo, and Thompson ask whether the defendant might have reasonablyanticipated the intervening efficient cause as a natural and probable resultof his own negligence, they are in effect asking, as Lee did, whether theintervening efficient cause was of a type that a reasonable person wouldsee as a likely result of his conduct. Galman, 188 Ill. 2d at 259.

The City essentially concedes that the refusal to provide ambulanceservice was a cause in fact of the collision. But it argues that its conductcan in no way be considered the legal cause of plaintiff's injuries. CitingGalman, Thompson, and DiBenedetto, the City contends thatmunicipalities should not be exposed to liability for injuries that would nothave occurred but for someone else's decision to break the law. Itmaintains that the reckless driving of Young and Jones were interveningcauses that broke the causal connection between its conduct and the injurysuffered.

We agree with the City's contention that its conduct was not the legalcause of plaintiff's tragic and unfortunate injuries. The cases cited by theCity provide strong support for its position. Galman reversed the denialof defendants' motion for judgment notwithstanding the verdict on thebasis of a lack of probable cause. Galman, 188 Ill. 2d at 262. There, oneof the defendants had parked a tanker truck in a no parking zone, 41 feetfrom an intersection with a crosswalk. The plaintiff's decedent, apedestrian, walked the 41 feet from the intersection and attempted tocross the designated trucking street at mid-block near the tanker. Thepedestrian was struck by a car in the street and killed. Galman found thatthe defendant's conduct in parking the truck was a "cause in fact" of thedecedent's fatal injuries, but then held that it clearly was not the "legalcause" of those injuries:

"We have no quarrel with [the plaintiff's] assertion that 'it wasreadily foreseeable that at school closing time school childrenmight be crossing the street, and [a driver] might need both lanesof traffic to avoid an accident.' That, however, is not thequestion. The question is whether it was reasonably foreseeablethat violating a 'no parking' sign at mid-block would likely resultin a pedestrian's ignoring a marked crosswalk at the corner,walking to mid-block, and attempting to cross a designated truckroute blindly and in clear violation of the law. Clearly, it wouldnot. [Decedent's] decision to jaywalk, while undeniably tragicand regrettable, was entirely of her own making. [Defendants]neither caused [decedent] to make that decision, nor reasonablycould have anticipated that decision as a likely consequence oftheir conduct. One simply does not follow from the other."Galman, 188 Ill. 2d at 260-61.

Similarly, in Thompson v. County of Cook, 154 Ill. 2d 374 (1993),this court also concluded that proximate cause was lacking as a matter oflaw. There, the driver of an automobile was speeding, drunk and eludingpolice when he left the road at a curve. Thompson held that CookCounty's failure to maintain a sign warning of the curve was not aproximate cause of the plaintiff passenger's injuries. Rather, the driver'straffic violations were the sole proximate cause of the accident.Thompson, 154 Ill. 2d at 383. The court noted that "[p]roximate causeis also absent where the independent acts of a third person break thecausal connection between the alleged original wrong and the injury.When that occurs, the independent act itself becomes a proximate orimmediate cause." Thompson, 154 Ill. 2d at 383.

DiBenedetto v. Flora Township, 153 Ill. 2d 66 (1992), is alsoinstructive. There, the decedent's vehicle crossed the oncoming lane oftraffic, left the roadway and landed in a drainage ditch erected by thedefendant township. The plaintiff argued that the township located theditch so as to pose a danger to traffic and it was foreseeable that amotorist could deviate from the roadway and wind up in the ditch. Theappellate court found that the proximate cause of the accident was a juryquestion. This court, however, reversed the appellate court'sdetermination and affirmed the circuit court's dismissal of the plaintiff'scomplaint. DiBenedetto, 153 Ill. 2d at 72. We succinctly concluded that"[t]he proximate cause of the accident in this case was not the ditch. Theproximate cause of the accident was the loss of control of the vehicle andits being driven off the traveled way." DiBenedetto, 153 Ill. 2d at 71.

Applying Galman, Thompson and DiBenedetto to the present case,we conclude as a matter of law that the City could not have reasonablyanticipated that a refusal to send an ambulance when labor pains are 10minutes apart would likely result in plaintiff's driver running a red light atthe same time that a substance-impaired driver was speeding through theintersection on a suspended license. Millions of women in labor make itsafely to the hospital each year by private transportation. Thus, plaintiffwas in no peril greater than that faced by women each day who make itsafely to the hospital without the aid of an ambulance. The legal causes ofthe injury here were the two drivers in willful violation of the traffic laws,and not anything the City did or did not do. While all traffic accidents areto some extent remotely foreseeable (DiBenedetto, 153 Ill. 2d at 72), thisis not the kind of harm that was sufficiently foreseeable from the refusal tosend an ambulance so as to satisfy the "legal cause" portion of a proximatecause analysis. In other words, the injury was not of a type a reasonableperson would see as the likely or probable result of the refusal to sendan ambulance. See Galman, 188 Ill. 2d at 260-61; see also Quirke v.City of Harvey, 266 Ill. App. 3d 664, 670 (1994) (the defendant citycould not have reasonably foreseen that one or both drivers would violatetheir statutory duty to treat an inoperable traffic light as a stop sign beforeproceeding into the intersection), citing Ziemba v. Mierzwa, 142 Ill. 2d42, 50 (1991) (defendant landowner could not have reasonably foreseenthat a truck driver who collided with a bicyclist would exit defendant'sdriveway without first ascertaining whether any traffic was approaching).Instead, the City's conduct simply furnished a condition, making possiblethe injury caused by the independent, illegal acts of others. Plaintiff wasendangered by the acts of Young and Jones, not by the City.

Biel v. City of Bridgeview, 335 Ill. App. 3d 526 (2002), andLoCoco v. XL Disposal Corp., 307 Ill. App. 3d 684 (1999), the twocases cited by plaintiff in support of her position, are easily distinguishable.In Biel, the appellate court found that it was foreseeable that thedefendant's failure to repair a broken street light might result in an injuryto a pedestrian crossing at the relevant location, despite the pedestrian'sown illegal conduct. Biel, 335 Ill. App. 3d at 536. The court noted theclose similarity to Galman, but ultimately struggled to distinguish it. Itconcluded that the facts before it differed from Galman because in Bielother pedestrians routinely crossed at the same location and the area wasdark. Biel, 335 Ill. App. 3d at 536. Aside from Biel's questionableattempt to distinguish Galman, we note that the facts of Biel differsignificantly from the case at bar. Here, the City did not do or fail to doanything that made it more difficult to avoid an accident at the scene.

In LoCoco, the township made an incomplete improvement whereit painted stop bar lines on the roadway, but did not install correspondingstop signs. This created a confusing situation that reasonably could haveled the plaintiff's decedent to think that she was at a four-way stop whenin fact cross traffic was not required to stop. The appellate court foundthat placing stop bar lines for the cross traffic when it was not required tostop without corresponding traffic signs was "the type of conduct by whicha reasonable person may foresee an accident as a likely result." LoCoco,307 Ill. App. 3d at 696.

In contrast to both Biel and LoCoco, the City in this case did nothingto make the intersection where the accident occurred dangerous orconfusing.⁽¹⁾

CONCLUSION

For the foregoing reasons, we conclude that the City's refusal to sendan ambulance was not a proximate cause of the accident or of theplaintiff's injuries. Accordingly, we reverse the judgment of the appellatecourt, and we reinstate the judgment of the circuit court, which granted theCity's motion for summary judgment. Because our resolution of theproximate cause issue disposes of the entire claim against the City, it isunnecessary to address the remaining issues.

Appellate court judgment reversed;

circuit court judgment affirmed.

1.  These cases are also distinguishable from the general rule applied at an intersection with merely inoperative traffic signals, where the law requires that the lights be treated as a stop sign (625 ILCS 5/11