Lorenz v. Siano

• Decision Date: 17 June 1993
• Docket Number: No. 1-91-3187,1-91-3187
• Citation: 248 Ill.App.3d 946,618 N.E.2d 666
• Parties: , 188 Ill.Dec. 96 Herbert LORENZ & Grace Lorenz, Plaintiffs-Appellants, v. Joseph SIANO, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 666

618 N.E.2d 666

248 Ill.App.3d 946, 188 Ill.Dec. 96

Herbert LORENZ & Grace Lorenz, Plaintiffs-Appellants, v. Joseph SIANO, Defendant-Appellee.

No. 1-91-3187.

Appellate Court of Illinois,

First District, Fourth Division.

June 17, 1993.

Rehearing Denied July 21, 1993.

Propp & Schultz, Chicago, for appellants.

Roland W. Burris, Atty. Gen., Chicago, for appellee (Rosalyn B. Kaplan, Sol. Gen. and Alison E. O'Hara, Asst. Atty. Gen., of counsel).

Justice HOFFMAN delivered the opinion of the court:

Plaintiffs, Herbert and Grace Lorenz, appeal from an order of the circuit court of Cook County denying their motion for a new trial following the entry of judgment on a jury verdict in favor of defendant, Joseph Siano.

The Lorenzes filed a complaint in negligence against Siano arising from a vehicular accident which occurred on Illinois Route 53 south of Euclid Road in Palatine, Illinois, on September 11, 1984. Herbert Lorenz sought damages for injuries he sustained as a result of the accident. Grace Lorenz requested damages for loss of consortium by reason of the injuries suffered by her husband, Herbert.

Between 9 and 9:30 a.m. on September 11, 1984, Herbert Lorenz was driving north on Route 53 at a speed of about 55 miles per hour in the far-right lane. At the place of the occurrence, Route 53 has three northbound traffic lanes. As Lorenz approached Euclid Road, the two cars in front of him in his lane moved into the center northbound lane, leaving Lorenz directly behind a "front-end loader" driven by Siano, an employee of the Illinois Department of Transportation (IDOT). In an effort to avoid colliding with Siano who was travelling at a speed of 12 to 15 miles per hour, Lorenz turned his vehicle abruptly to the left. During the execution of this evasive maneuver, Lorenz lost control of his vehicle and crossed all three northbound lanes of traffic, hit the center median, flipped over a guard rail and landed in the southbound lanes of traffic. Lorenz's vehicle did not make contact with Siano's or any other vehicle.

The "front-end loader" driven by Siano was an IDOT vehicle, a large tractor-like construction implement with a seven foot wide bucket on the front. The vehicle is capable of a maximum speed of 18 miles per hour.

At trial, there was conflicting testimony as to the location of Siano's vehicle on the roadway. Siano testified that he was driving on the shoulder of the road and at no time did any portion of his vehicle enter a traffic lane. Lorenz, on the other hand, testified that Siano was driving in the right traffic lane rather than on the shoulder of the road.

The Lorenzes raise two issues on appeal. First, they maintain that the verdict in favor of Siano was against the manifest weight of the evidence. Second, they contend that the prejudicial behavior of defense counsel had the cumulative effect of depriving them of a fair trial. In addition to these issues, Siano has raised two arguments for review. First, Siano contends that the circuit court of Cook County lacked subject-matter jurisdiction over the Lorenzs' action. Second, he argues that, assuming the circuit court possessed jurisdiction, the judgment in his favor should be affirmed because at the time of the occurrence he was cloaked with public official immunity.

As a preliminary matter, we note that Siano has not filed a cross-appeal. However, that circumstance does not preclude our consideration of either of his contentions in this case. An alleged lack of subject-matter jurisdiction may be raised at any time, even on appeal by a party who has failed to include it in a notice of appeal. (Talandis Construction Corp. v. Illinois Building Authority (1978), 60 Ill.App.3d 715, 18 Ill.Dec. 84, 377 N.E.2d 237.) Additionally, Siano's official immunity argument, having been interposed by Siano as appellee in support of the judgment on appeal, is a proper subject for consideration as long as a factual basis for the point was before the trial court. Jackson v. Chicago Board of Education (1989), 192 Ill.App.3d 1093, 140 Ill.Dec. 178, 549 N.E.2d 829.

We first address Siano's jurisdictional issue.

Section 4 of article XIII of the Illinois Constitution provides that "[e]xcept as the General Assembly may provide by law, sovereign immunity in this State is abolished." (Ill. Const.1970, art. XIII, § 4; see also Ill.Rev.Stat.1991, ch. 127, par. 801.) Acting under its constitutional grant of authority, the Illinois legislature has enacted the Court of Claims Act which provides that the court of claims has exclusive jurisdiction to hear and determine all claims against the State of Illinois for damages in cases sounding in tort. Ill.Rev.Stat.1991, ch. 37, par. 439.8.

Siano asserts that although only he is named as a defendant, this is in fact a claim against the State. Whether a particular action is in fact one against the State, and hence one that must be brought in the court of claims, depends upon the issues involved and the relief sought rather than the formal identification of the parties. (See Herget National Bank v. Kenney (1985), 105 Ill.2d 405, 86 Ill.Dec. 484, 475 N.E.2d 863.) A plaintiff may not avoid the exclusive jurisdiction of the court of claims by suing only an individual defendant. (Healy v. Vaupel (1990), 133 Ill.2d 295, 140 Ill.Dec. 368, 549 N.E.2d 1240.) The court of claims has exclusive jurisdiction over tort claims against State agents for acts committed in the discharge of their normal and official duties; such jurisdiction does not lie, however, where the agent has acted outside the scope of his authority or in violation of law, or where the agent's duty to the plaintiff arose independent of his State employment. Healy, 133 Ill.2d at 308, 140 Ill.Dec. 368, 549 N.E.2d 1240; Herget National Bank, 105 Ill.2d at 411-12, 86 Ill.Dec. 484, 475 N.E.2d 863.

There is no question that at the time of the occurrence giving rise to this litigation, Siano was operating the "front-end loader" in the course of his normal and official duties for IDOT. Because the vehicle being operated by Siano was an off-road construction vehicle unsuited for normal highway driving, any duty owed by Siano to Lorenz arose directly from Siano's official duties for the State and not independent thereof. The very nature of this vehicle distinguishes this case from those finding that the duty owed by a State employee in the normal operation of an ordinary motor vehicle is a duty arising independent of the agent's State employment. (See Currie v. Lao (1992), 148 Ill.2d 151, 170 Ill.Dec. 297, 592 N.E.2d 977.) As a consequence, unless Siano acted in violation of statute in the manner in which he performed his State duties, exclusive jurisdiction over this action would lie with the court of claims.

In their complaint, the Lorenzes have charged that Siano acted in violation of statute in the operation of the "front-end loader"; specifically, they have alleged a number of violations of the Illinois Vehicle Code (Ill.Rev.Stat.1983, ch. 95 1/2, par. 1-100 et seq. (Code)). However, section 11-205(f) of the Code exempts vehicle operators such as Siano from compliance with those portions of the Code referenced by plaintiff while they are "actually engaged in work upon a highway." But, no such exemption exists when the operator is "traveling to or from such work." Ill.Rev.Stat.1983, ch. 95 1/2, par. 11-205(f).

The determinative question becomes whether Siano was actually engaged in work upon a highway at the time of the occurrence. If the answer is in the affirmative, he could not be said to have acted in violation of statute by virtue of the section 11-205(f) exemption; and, exclusive jurisdiction over the Lorenzs' action against him would lie in the court of claims. If, on the other hand, he was in the act of traveling to his work site at the time of the occurrence, he was not exempt from compliance with the Code; and, because the Lorenzes have alleged negligence predicated in part upon Siano's violation of Code provisions in the manner in which he operated the "front-end loader", the circuit court had jurisdiction over the action.

The circuit court is a court of general jurisdiction (Ill. Const.1970, art. VI, § 9), and as such, is presumed to have jurisdiction to render any judgment until the contrary is shown. (Bartunek v. Lastovken (1932), 350 Ill. 380, 183 N.E. 333.) As the party asserting error in the circuit court's exercise of jurisdiction in this case, it was incumbent upon Siano to furnish this court with a record illustrating the error of which he complains. (Willard v. Northwest National Bank (1985), 137 Ill.App.3d 255, 92 Ill.Dec. 92, 484 N.E.2d 823.) It was Siano's burden to direct this court to evidence establishing that at the time of the occurrence he was "actually engaged in work upon a highway" and thus exempt from the Code provisions he was alleged to have violated.

Siano's testimony reveals that he picked up the "front-end loader" from the IDOT yard on I-290 and was driving along the shoulder of the road when the events at issue transpired. Siano was never questioned regarding the location of his assigned work site. Three eyewitnesses to the occurrence, Mr. Rawlinson, who was an IDOT employee, Mr. Ball, and Mr. Peace, all testified to the presence of other State highway equipment in both northbound and southbound lanes of Route 53. Although Rawlinson testified that IDOT was scheduled to do work along the shoulder of both the northbound and southbound lanes of Route 53 north and south of Euclid Road, the trial transcript is silent as to the work site to which Siano was assigned. However, the record contains the transcript of Siano's discovery deposition submitted in support of his pre-trial motion to dismiss. In that...