Hernandez v. Lifeline Ambulance, LLC

• Decision Date: 01 February 2019
• Docket Number: No. 1-18-0696,1-18-0696
• Citation: 2019 IL App (1st) 180696,125 N.E.3d 429,429 Ill.Dec. 723
• Parties: Roberto HERNANDEZ, Plaintiff-Appellant, v. LIFELINE AMBULANCE, LLC and Joshua M. Nicholas, Individually and as an Agent and/or Employee of Lifeline Ambulance, LLC, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

2019 IL App (1st) 180696
125 N.E.3d 429
429 Ill.Dec. 723

Roberto HERNANDEZ, Plaintiff-Appellant,
v.
LIFELINE AMBULANCE, LLC and Joshua M. Nicholas, Individually and as an Agent and/or Employee of Lifeline Ambulance, LLC, Defendants-Appellees.

No. 1-18-0696

Appellate Court of Illinois, First District, FIFTH DIVISION.

Opinion filed: February 1, 2019

JUSTICE HOFFMAN delivered the judgment of the court, with opinion.

429 Ill.Dec. 725

¶ 1 The plaintiff, Roberto Hernandez, filed the instant action seeking to recover damages for injuries he is alleged to have sustained when the vehicle he was driving was struck by an ambulance owned by Lifeline Ambulance, LLC (Lifeline) and being operated by its employee, Joshua M. Nicholas. Nicholas and Lifeline (collectively referred to as the defendants) filed a motion to dismiss both the plaintiff's complaint in the instant case (No. 2017 L 2553) and the complaint of American Access Casualty Company (American) as subrogee of the plaintiff filed against them in a consolidated action (No. 2017 M1 11458). The circuit court entered an order on March 7, 2018, granting the defendants' motion to dismiss counts I and III of the plaintiff's first amended complaint in the instant action and count I of American's amended complaint in the consolidated action. The plaintiff filed a timely notice of appeal from the dismissal of counts I and III of its first amended complaint. However, no appeal has been taken from the dismissal of count I of American's amended complaint in case 2017 M1 11458. For the reasons which follow, we reverse the judgment of the circuit court dismissing counts I and III of the plaintiff's first amended complaint and remand the matter for further proceedings.

¶ 2 In his first amended complaint, the plaintiff alleged that, on March 11, 2016, he was operating his motor vehicle in a westerly direction on Grand Avenue in Chicago when his vehicle was struck by an ambulance traveling southbound on Lake Shore Drive. The complaint alleged that the ambulance was owned by Lifeline and being operated by its employee, Nicholas. The plaintiff's first amended complaint was pled in three counts and sought damages for injuries he is alleged to have sustained as the result of the collision. Count I was a negligence claim against Nicholas, count II was a claim against Nicholas grounded in allegations of willful and wanton conduct, and count III was a claim against Lifeline predicated upon the alleged negligence of Nicholas and based upon the doctrine of respondeat superior .

¶ 3 The defendants filed a combined motion to dismiss pursuant to section 2-619.1 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-619.1 (West 2016) ), Subsequent to the filing of that motion, the plaintiff filed his first amended complaint. Further proceedings were conducted on the defendants' motion to dismiss with the grounds set forth therein asserted as against the claims set forth in counts I and III of the plaintiff's first amended complaint

125 N.E.3d 432

429 Ill.Dec. 726

and count I of American's amended complaint in the consolidated action.

¶ 4 The defendants moved for dismissal of counts I and III of the plaintiff's first amended complaint and count I of American's amended complaint pursuant to section 2-619 of the Code ( 735 ILCS 5/2-619 (West 2016) ) predicated upon the immunity provision of the Emergency Medical Services (EMS) Systems Act (EMS Act) ( 210 ILCS 50/3.150(a) (West 2016) ). The defendants asserted that Nicholas was operating Lifeline's ambulance in the performance of non-emergency medical services at the time of the collision with the plaintiff's vehicle, and as a consequence, they are immune from civil liability unless Nicholas's acts or omissions constituted willful and wanton misconduct. The defendants' motion was supported by the affidavits of Nicholas and Eric Hagman, a Lifeline employee who was a passenger in the ambulance at the time of the collision with the plaintiff's vehicle. The affidavits state that, prior to the collision with the plaintiff's vehicle, they received a radio dispatch call from Lifeline "directing the ambulance crew to proceed to pick up a patient in the western suburbs for transport to a second location."

¶ 5 The plaintiff responded, arguing both that the immunity provision of the EMS Act does not apply to the operation of an ambulance until it is engaged in providing medical services to a patient and that there exists an issue of fact on the question of whether the ambulance driven by Nicholas at the time of the collision was being operated in the performance of non-emergency medical services. The plaintiff supported his response with the affidavit of Fidel Gonzalez. In his affidavit, Gonzalez averred that he witnessed the collision between the ambulance and the plaintiff's vehicle, and that following the accident, he overheard the driver of the ambulance respond to an inquiry from a firefighter stating that "he was not in service."

¶ 6 The defendants filed a reply in further support of their motion to dismiss attached to which was a second affidavit by Nicholas; the affidavit of John Herlily, "a member of Lifeline;" copies of Lifeline's time-stamped dispatch log for March 11, 2016; and a copy of the Chicago Police Department report of the accident. In his second affidavit, Nicholas averred that he was never asked whether the ambulance was "in service" at the time of the collision; rather, he was asked whether the ambulance could be driven from the scene of the accident, and he responded that "the ambulance was out of service due to the amount of damage it sustained." In his affidavit, Herlily authenticated copies of Lifeline's time-stamped dispatch log for March 11, 2016, which states that the ambulance driven by Nicholas was dispatched at 12:30:14 p.m. to pick up a patient in Villa Park, Illinois, and that following the collision with the plaintiff's vehicle, the transport was reassigned to another ambulance at 12:38:22 p.m. The Chicago Police Department report states that the collision occurred at 12:34 p.m.

¶ 7 On March 7, 2018, the circuit court entered an order, granting the defendants' section 2-619 motion and dismissed counts I and III of the plaintiff's first amended complaint and count I of American's amended complaint in the consolidated action "with prejudice." Pursuant to the plaintiff's motion, the circuit court entered an order on March 19, 2018, finding that there is no just reason for delaying appeal from the March 7, 2018 order, dismissing counts I and III of the plaintiff's first amended complaint and count I of American's amended complaint. Thereafter, the plaintiff filed a timely notice of appeal from the dismissal of counts I and III of his first amended complaint, invoking our

429 Ill.Dec. 727

125 N.E.3d 433

jurisdiction pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016). American did not file a notice of appeal.

¶ 8 Counts I and III of the plaintiff's first amended complaint were dismissed under section 2-619 of the Code. A section 2-619 motion to dismiss admits the legal sufficiency of the complaint but asserts an affirmative defense or other matter defeating the plaintiff's claim. Patrick Engineering, Inc. v. City of Naperville , 2012...