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.