SHIRLEY v. HARMON, 2-09-0772.

• Decision Date: 11 August 2010
• Docket Number: No. 2-09-0772.,2-09-0772.
• Citation: 933 N.E.2d 1225,405 Ill.App.3d 86,342 Ill.Dec. 932
• Parties: Dianna SHIRLEY, Plaintiff-Appellant, v. Bruce HARMON, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

405 Ill.App.3d 86

933 N.E.2d 1225

342 Ill.Dec. 932

Dianna SHIRLEY, Plaintiff-Appellant,

v.Bruce HARMON, Defendant-Appellee.

No. 2-09-0772.

Appellate Court of Illinois,Second District.

Aug. 11, 2010.

COPYRIGHT MATERIAL OMITTED.

Michael W. Rathsack, Law Offices of Michael W. Rathsack, Kevin W. O'Connor, Steven A. Schuetz, Collison & O'Connor, Ltd., Chicago, for Dianna Shirley.

Lisa Madigan, Attorney General, Michael A. Scodro, Solicitor General, Paul Racette, Assistant Attorney General, Chicago, for Bruce Harmon.

Justice BOWMAN delivered the opinion of the court:

Plaintiff, Dianna Shirley, brought suit against defendant, Bruce Harmon, following a collision between plaintiff's car and defendant's snowplow. Arguing that the doctrine of sovereign immunity applied, defendant moved to dismiss the action pursuant to section 2-619(a)(1) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(1) (West 2008)). The trial court granted defendant's motion to dismiss, and we affirm its decision.

I. BACKGROUND

Plaintiff filed a complaint on July 31, 2008, alleging the following. On December 1, 2006, she was driving west on Route 72. Defendant was operating a snowplow and traveling east on the same road. Defendant “lost control of his vehicle such that his snow plow blade and/or truck struck” plaintiff's vehicle. Plaintiff alleged that defendant failed to obey various traffic laws, in that he: failed to keep a sufficient lookout; drove his vehicle too fast for conditions; failed to decrease his speed in order to avoid a collision; failed to safely pass plaintiff; and drove his vehicle with inadequate brakes and in an unsafe condition. Plaintiff also alleged that defendant knew that he was not adequately trained to operate the snowplow.

Defendant moved to dismiss the complaint pursuant to section 2-619(a)(1). He argued that sovereign immunity applied and deprived the trial court of subject matter jurisdiction because at the time of the accident, he was plowing snow pursuant to his job as an Illinois Department of Transportation (IDOT) highway maintainer. Defendant argued that the proper forum for the case was the court of claims.

Defendant attached two affidavits to the motion to dismiss. The first, his own, described his employment with IDOT and further stated the following. During defendant's work shift on December 1, 2006, he was “assigned to clean-up the accumulated, compacted snow and ice along” his permanent route, which included Route 72. At the time of the accident, he was plowing snow on Route 72. The vehicle's strobe light was activated and the plow blade was lowered and engaged. The second affidavit was that of Raymond Sidwell, an IDOT supervisor. The affidavit stated that when the accident occurred, defendant was plowing snow for IDOT, in an IDOT vehicle, and on his assigned route. Both affidavits also stated that plowing snow on state roadways was an activity unique to IDOT highway maintainers.

Plaintiff filed a motion to strike the affidavits, arguing that they improperly contained conclusive legal statements that plowing snow on state roadways was an activity unique to IDOT maintainers. She alternatively argued that sovereign immunity did not apply because defendant breached duties owed by every driver rather than duties unique to his employment.

The trial court denied defendant's motion to dismiss on April 17, 2009, ruling that this court's decision in American Family Insurance Co. v. Seeber, 215 Ill.App.3d 314, 158 Ill.Dec. 829, 574 N.E.2d 1222 (1991), controlled. Defendant subsequently filed a motion to reconsider with an accompanying memorandum. Relying on Currie v. Lao, 148 Ill.2d 151, 170 Ill.Dec. 297, 592 N.E.2d 977 (1992), defendant argued that Seeber was not controlling and was otherwise distinguishable. Plaintiff moved to strike defendant's motion to reconsider as simply rearguing his initial motion to dismiss, and she also sought sanctions. Defendant disputed these assertions. On June 24, 2009, the trial court denied plaintiff's motion for sanctions, granted defendant's motion to reconsider, and dismissed the case with prejudice.

On July 16, 2009, plaintiff filed an “emergency” motion to reconsider. Plaintiff requested that the court vacate its June 24 order, grant her motion to strike defendant's affidavits, and grant her leave to file an amended complaint and affidavit. Plaintiff's proposed amended complaint added the allegation that defendant crossed the center dividing line and went into the westbound lane before striking her vehicle. It also alleged that defendant breached his duty by failing to drive on the correct side of the roadway and yield the right of way to plaintiff. Plaintiff's affidavit stated as follows in relevant part. There was one lane of travel in each direction on Route 72. The snowfall had slowed down significantly or stopped, and it appeared that both lanes of traffic were plowed, with snow remaining only on the shoulder. Defendant was traveling east and “plowing the eastbound shoulder and eastbound roadway.” Plaintiff did not observe any warning lights on defendant's vehicle. She moved her vehicle to her right, close to the shoulder, and slowed or stopped. Still, defendant's vehicle and its plow came across the yellow diving line, many feet into the westbound lane, and struck her vehicle.

The trial court denied plaintiff's motion to reconsider. It agreed that some of the paragraphs in defendant's affidavits were conclusory but stated that even if it struck those paragraphs, the affidavits would still be sufficient. Therefore, the trial court declined to rule on plaintiff's motion to strike the affidavits. The trial court stated that the case remained dismissed with prejudice. Plaintiff timely appealed.

II. ANALYSIS

On appeal, plaintiff argues that the trial court erred in granting defendant's section 2-619(a)(1) motion to dismiss, because the trial court incorrectly determined that sovereign immunity applied and deprived it of subject matter jurisdiction. Section 2-619(a)(1) provides for the involuntary dismissal of an action based on lack of subject matter jurisdiction. 735 ILCS 5/2-619(a)(1) (West 2008). In reviewing the grant of a section 2-619 motion, we must interpret the pleadings and supporting materials in the light most favorable to the plaintiff. Abruzzo v. City of Park Ridge, 231 Ill.2d 324, 332, 325 Ill.Dec. 584, 898 N.E.2d 631 (2008). A section 2-619 dismissal resembles the grant of a motion for summary judgment; we must determine whether a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether the dismissal was proper as a matter of law. Raintree Homes, Inc. v. Village of Long Grove, 209 Ill.2d 248, 254, 282 Ill.Dec. 815, 807 N.E.2d 439 (2004). We review de novo the grant or denial of a motion to dismiss under section 2-619(a)(1). Country Mutual Insurance Co. v. D & M Tile, Inc., 394 Ill.App.3d 729, 735, 334 Ill.Dec. 191, 916 N.E.2d 606 (2009).

The Illinois Constitution of 1970 abolished sovereign immunity but allowed it to remain as the General Assembly provided by law. Ill. Const.1970, art. XIII, § 4; see Currie, 148 Ill.2d at 157, 170 Ill.Dec. 297, 592 N.E.2d 977. Using this authority, the legislature created the State Lawsuit Immunity Act, which provides that the State cannot be made a defendant or other party in court except as provided in the Court of Claims Act (705 ILCS 505/1 et seq. (West 2008)). 745 ILCS 5/1 (West 2008). The Court of Claims Act gives the court of claims exclusive jurisdiction over particular matters, including all tort claims against the State for damages. 705 ILCS 505/8(d) (West 2008).

Whether an action is against the State does not depend on the formal designation of the parties, because plaintiffs could otherwise circumvent state immunity by naming only state employees as defendants. Brandon v. Bonell, 368 Ill.App.3d 492, 504, 306 Ill.Dec. 668, 858 N.E.2d 465 (2006). Rather, whether an action is against the State depends on the issues raised and the relief sought. Currie, 148 Ill.2d at 158, 170 Ill.Dec. 297, 592 N.E.2d 977. Regarding the issues raised, an action will be considered against the State where: (1) there are no allegations that a state employee acted beyond the scope of his authority through wrongful acts; (2) the employee did not allegedly breach a duty owed to the public generally independent of his state employment; and (3) the complained-of actions involve matters ordinarily within the employee's normal and official functions with the State. Jinkins v. Lee, 209 Ill.2d 320, 330, 282 Ill.Dec. 787, 807 N.E.2d 411 (2004). Regarding the relief sought, “[a]n action brought nominally against a State employee in his individual capacity will be found to be a claim against the State where a judgment for the plaintiff could operate to control the actions of the State or subject it to liability.” Currie, 148 Ill.2d at 158, 170 Ill.Dec. 297, 592 N.E.2d 977; see also Jinkins, 209 Ill.2d at 330, 282 Ill.Dec. 787, 807 N.E.2d 411.

For the three-pronged “issues” test, the first prong is not disputed here, because plaintiff does not argue that defendant acted beyond the scope of his authority as a highway maintainer. She also does not dispute the third prong, that defendant's actions involved matters ordinarily within defendant's normal and official state functions. Rather, plaintiff contests the second prong and argues that defendant breached a duty that every motorist owes to drive with due care, rather than a duty arising solely out of his employment.

The second prong is analyzed by the “source of duty” test created by the supreme court in Currie. Jinkins, 209 Ill.2d at 331, 282 Ill.Dec. 787, 807 N.E.2d 411. Under this test, the court must look at the source of the duty the employee allegedly breached in committing the negligent act. Currie, 148 Ill.2d at 159, 170 Ill.Dec. 297, 592 N.E.2d 977. If the alleged negligent act arose out of the employee's breach of a...