Betts v. City of Chicago, 2013 IL App (1st) 123653 (McBride)
Facts: Plaintiff was injured in her parked car when an undercover police officer backed into her vehicle while he was trying to pull out of his parking space while on duty in an undercover surveillance. Defendant presented a motion to dismiss on the basis that section 2-202 of the Tort Immunity Act immunized the officer from a negligence suit because he was in the execution and enforcement of the law at the time of the collision. Defendant produced an affidavit that merely concluded that the officer was on duty and “in the scope of his duties” at the time of the incident. The plaintiff requested a limited discovery deposition to develop facts detailing what the officer was actually doing at the time of the occurrence, but the trial court denied the request and instead permitted 5 interrogatories to be submitted to the defendant. The defendants answers to interrogatories described his activity as conducting surveillance pursuant to a narcotics investigation but, as plaintiff argued, were equivocal and unclear on the specific activities that were underway to determine whether it met threshold for execution and enforcement of the law. The trial court granted defendant’s motion to dismiss based solely upon the affidavit and answers to interrogatories and plaintiff appeals.
Holding: Trial court lacked sufficient facts to support defendant’s claim that officer was engaged in the execution and enforcement of the law at the time of the accident and plaintiff was entitled to additional discovery to determine whether the Tort Immunity Act applied.
Filed in Trial Book Under: Tort Immunity – Section 2-202, Execution and Enforcement of Law, Affidavit, SCR 191, 735 ILCS 5/2-619
Commentary: Although it does not reach any conclusions relating to the facts present in this case, the opinion has a pretty good summary of cases interpreting the law on execution and enforcement of the law. Not everything that an officer does while on duty is worthy of immunity and the appellate court needs sufficient facts to make a determination of whether the immunity applies or not. The affidavit provided by the defendant was conclusory in nature and therefore violated SCR 191 and was not considered. The interrogatory answers provided were equivocal and the appellate court was not able to determine exactly what the officer was doing at the time he backed his vehicle up so they reversed the trial courts dismissal and remanded the case for further development of facts on the issue. Clearly, a deposition would be the easiest way to ferret out this issue and I’m not sure why the trial court was reluctant to permit it to go forward in the first place. I have never had a judge not permit a deposition of an affiant on a motion to dismiss, but in the event that happens some time in the future this will be a good case to provide to the court to try to convince them to reconsider.
Stoelting v. Betzelos, 2013 IL App (2d) 120651 (Schostock)
Facts: Plaintiff filed a medical malpractice claim against her dentist with an expert’s report attached to the complaint setting forth his opinion that the defendant was negligent but not the attorneys affidavit required by 735 ILCS 5/2-622. Defendant moved to dismiss the complaint for plaintiff’s failure to comply with 2-622 and further that there was no good faith showing to establish cause for the failure to attach an attorney affidavit. Plaintiff responded that she attempted in good faith to comply with the Code because her attorney signed the complaint and that if the court should find the signature on the complaint was insufficient then she should be given leave to file an attorney affidavit. At the initial hearing, the plaintiff’s attorney did not appear, apparently because he was in a different room attending to another matter, and the motion to dismiss was granted. At a later hearing, the plaintiff’s attorney argued that the trial court should vacate the dismissal order and permit the plaintiff to file an attorney affidavit or dismiss the complaint without prejudice such that plaintiff could refile within one year. The trial court determined that it did not have the authority to grant any additional extensions because the 90 day period set forth in the Code had already expired and dismissed the complaint with prejudice. Plaintiff appealed.
Holding: The trial court incorrectly determined that it had no discretion to grant any additional extensions for plaintiff to file an attorney affidavit and therefore the dismissal with prejudice on that basis was improper. Reversed and remanded for the trial court to determine any good cause for failure to file an attorney affidavit.
Filed in Trial Book Under: Medical Malpractice – Affidavit; 735 ILCS 5/2-622
Commentary: Unfortunately, the plaintiff’s attorney created a predicament here that was unnecessary. The hard part of the case, i.e. obtaining the expert’s report, was already done, and it was just the pro forma attorneys affidavit that needed to be filed. Cases involving 2-622 affidavits usually involve the failure to attach an experts report, not filing the expert’s report and not the corresponding attorneys affidavit. If the failure to file the affidavit was inadvertent where the attorney simply did not notice that it wasn’t included with the materials filed, it probably would not be a problem, particularly given the appellate court’s analysis in this case that the language contained in the code does not mandate dismissal and gives the court discretion with regards to dismissing with or without prejudice. However, this attorney took an approach where he argued that he was not required to attach an affidavit because he signed the complaint, which indicates a deliberate action on his part to not include the affidavit. 6-222(a)(1) is pretty clear that a medical malpractice complaint is to include the expert’s report and an attorneys affidavit, so the attorney was mistaken in this belief. It will be interesting to see what the trial court does with this case on remand. Hopefully, there will be a “no harm, no foul” approach and the case will be permitted to continue. The important part of 2-622 is that an expert verify that the complaint has merit. That was done here so it would be a shame to see this case get dismissed with prejudice solely on the basis that the attorney failed to attach the pro forma attorneys affidavit.