Stubblefield v. City of Chicago

• Decision Date: 16 March 1971
• Docket Number: No. 43060,43060
• Citation: 48 Ill.2d 267,269 N.E.2d 504
• Parties: Allen STUBBLEFIELD et al., Appellants, v. The CITY OF CHICAGO, Appellee.
• Court: Illinois Supreme Court

Page 504

269 N.E.2d 504

48 Ill.2d 267

Allen STUBBLEFIELD et al., Appellants, v. The CITY OF CHICAGO, Appellee.

No. 43060.

Supreme Court of Illinois.

March 16, 1971.

Rehearing Denied May 26, 1971.

Philip E. Howard and Jerome H. Torshen, Ltd., Chicago (Jerome H. Torshen, Chicago, of counsel), for appellants.

Richard L. Curry, Corp. Counsel, Chicago (Marvin E. Aspen and Daniel Pascale, Asst. Corp. Counsels, of counsel), for appellee.

GOLDENHERSH, Justice:

Plaintiff appeals from the judgment of the circuit court of Cook County entered upon allowance of defendant's motion for judgment on the pleadings.

Plaintiff, a minor, was watching defendant, City of Chicago's fire department fight a fire when a fireman lost control of a fire hose which struck and injured him. The amended complaint alleges numerous acts of negligence by the firemen. The city pleaded section 5--103 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill.Rev.Stat.1969, ch. 85, par. 5--103(b)) as an affirmative defense and plaintiff moved to strike the defense on the ground that the statute is unconstitutional. Section 5--103(b) provides that '* * * neither a local public entity nor a public employee acting in the scope of his employment, is liable for an injury caused by an act or omission of a public employee while engaged in fighting a fire.' The circuit court held the statute constitutional and granted the city's motion for judgment on the pleadings. Pursuant to our Rule 302, Ill.Rev.Stat.1969, c. 110A, § 302, plaintiff appeals directly to this court.

Plaintiff contends that section 5--103(b) arbitrarily and unreasonably discriminates among persons injured during fire fighting operations, and thus is unconstitutional. He points out that this statute purports to bar recovery against municipalities for personal injuries 'caused by an act or omission of a public employee while engaged in fighting a fire', while section 1--4--4 of the Illinois Municipal Code (Ill.Rev.Stat.1969, ch. 24, par. 1--4--4) permits recovery for injuries caused 'by the negligent operation of a motor vehicle by a member of a municipal fire department while the member is engaged in the performance of his duties as fireman,' and section 1 of 'An Act in relation to the tort liability of firemen of fire protection districts or corporations' (Ill.Rev.Stat.1969, ch. 127 1/2, par. 46) permits recovery for injuries caused 'by the negligent operation of any motorized fire fighting equipment by a compensated fireman or authorized volunteer fireman * * * while he is engaged in the performance of his duties * * *.' He argues there is no rational difference between a person injured by a motor vehicle, one injured during a phase of a firefighting operation not involving a motor vehicle, or one injured by motorized fire fighting equipment. Further, he contends, there is no rational difference between the entities involved, or their functions, which warrants such discrimination. Finally, he argues, there is neither a valid classification in terms of types of municipal functions nor by classification among the different governmental agencies that perform the same functions. In such circumstances, section 5--103(b) fails to satisfy the standards required by section 22 of article IV of the constitution of the State of Illinois, S.H.A.

In Harvey v. Clyde Park District, 32 Ill.2d 60, 203 N.E.2d 573, this court reviewed legislation enacted subsequent to the decision in Molitor v. Kaneland Community Unit District, 18 Ill.2d 11, 163 N.E.2d 89. Harvey holds that valid classifications for purposes of municipal tort liability may be created but they must relate to the types of municipal functions involved and may not rest upon the differences between the governmental agencies which perform the same function. The rationale of Harvey was followed in Hutchings v. Kraject, 34 Ill.2d 379, 215 N.E.2d 274, and Lorton v. Brown County Community Unit School District, 35 Ill.2d 362, 220 N.E.2d 161. As stated in Harvey, the operation of motor vehicles is common to all governmental units and we hold, therefore, that the statutory classification created by section 1--4--4 of the Illinois Municipal Code and section 5--103(b) of the Local Governmental and Governmental Employees Tort Immunity Act is reasonable and does not violate section 22 of article IV of the constitution.

Plaintiff's contention...