Wolf v. Liberis

• Decision Date: 09 March 1987
• Docket Number: Nos. 85-3640,86-0072,s. 85-3640
• Parties: , 106 Ill.Dec. 411 Margaret B. WOLF, Administrator of the Estate of Paul C. Wolf, Deceased, Plaintiff-Appellee, v. Linda LIBERIS and the City of Chicago, a municipal corporation, Defendants-Appellants, and Nick Liberis, Defendant.
• Court: United States Appellate Court of Illinois

Page 1202

505 N.E.2d 1202

153 Ill.App.3d 488, 106 Ill.Dec. 411

Margaret B. WOLF, Administrator of the Estate of Paul C Wolf, Deceased, Plaintiff-Appellee, v. Linda LIBERIS and the City of Chicago, a municipal corporation, Defendants-Appellants and Nick Liberis, Defendant.

Nos. 85-3640, 86-0072.

Appellate Court of Illinois First District, First Division.

March 9, 1987.

Querrey, Harrow, Gulanick & Kennedy, Ltd., Victor J. Piekarski, Michael Resis, Chicago, for defendant-appellant Linda Liberis.

Corporation Counsel, City of Chicago, Mary K. Rochford, John T. Maher, Chicago, for defendant-appellant City of Chicago.

Ronald S. Fishman, Chicago, for plaintiff-appellee.

Justice O'CONNOR delivered the opinion of the court:

This consolidated appeal arises out of an action for damages brought by plaintiff Margaret Wolf, administrator of the estate of Paul C. Wolf, deceased, against defendants Linda Liberis, the city of Chicago and Nick L. Liberis, who is not a party to this appeal. The trial court denied separate motions for summary judgment on behalf of Linda Liberis and the city of Chicago. This court granted both leave to appeal pursuant to Supreme Court Rule 308 (94 Ill.2d R. 308).

The plaintiff's decedent, Paul C. Wolf, was killed on May 16, 1979, while driving eastbound on Belmont, as the result of a head-on collision with a car westbound on Belmont owned and operated by Nick L. Liberis, an off-duty Chicago policeman.

The following series of undisputed events preceeded the collision. Liberis and his fiancee, Linda Manno (now Linda Liberis), had dinner at a restaurant and had a personal argument. Manno testified that she had several glasses of wine during the meal and several more after Liberis drove her home. At about 2:00 a.m. she drove to Liberis' apartment where they resolved their argument. Because Manno had been drinking, Liberis offered to follow her while she drove home. Manno took a wrong turn, drove through a red light, and then lost control of her vehicle at Central and Belmont and drove her car part way through a store window. Liberis then parked his car, backed Manno's car out of the window and parked it. He told Manno to stay there while he went to call the police, but did not arrest her.

As Liberis attempted to get back into his own car, he was approached by three men who attempted to restrain or attack him. While he was struggling to get away, Liberis reached for his wallet where he kept his police badge and said "I'm on the job." He was not able to get the badge out. In the meantime, Manno had left the scene of the original accident and driven home. Liberis got back into his own car and began to drive away. One of his assailants pulled open his car door and attempted to wrest control of the steering wheel, causing Liberis to lose control and drive head-on into the vehicle driven by plaintiff's decedent.

Liberis was knocked unconscious by the collision and when he woke up, asked bystanders to call police and an ambulance. Following the incident, he was discharged from the police department for his misconduct involving the collision. He was also criminally charged and pled guilty to a misdemeanor of reckless conduct and sentenced to a year probation.

The administrator of decedent Wolf's estate filed suit against Nick Liberis, Linda Liberis and the city of Chicago. Claims against the city were based on the theory that Liberis was acting as an agent of the city at the time of the incident that led to Mr. Wolf's death. Count V of plaintiff's second amended complaint against Linda Liberis alleged that she and Nick Liberis were involved in a tortious concert of action and a joint venture, or that Nick Liberis was the agent or a representative of Linda Liberis and that she was, therefore, vicariously liable for his negligent driving. Plaintiff also alleged that Linda Liberis knew or should have known that when she left the scene of the initial accident it was reasonably foreseeable that Nick Liberis would also leave the scene, follow her, and present a danger to other persons traveling on the highway.

The trial court denied separate motions for summary judgment by Linda Liberis and the city and certified the following question of law:

Whether a police officer is acting within the scope of his employment when he is involved in an automobile accident at a time when he is:

a) off-duty;

b) out of uniform; and

c) driving his own vehicle

and where the accident occurs as the result of the following sequence of events:

a) the officer had spent the evening with a friend;

b) the officer undertook to follow the friend home in his own car while the friend drove her car;

c) the friend was involved in a one-car accident at approximately 2:00 a.m.;

d) the officer stopped and backed the friend's auto out of the store display window it had broken whereupon the friend drove her auto away;

e) the officer stated to bystanders "I'm on the job" and reached for his wallet;

f) the officer struggled with a bystander who attempted to restrain him;

g) the officer returned to his own car, then attempted to drive away although a second bystander was partially in his car trying to restrain him from leaving the scene of the accident;

h) the officer drove his car, with the second bystander still in the open door of the car, on the wrong side of the street, heading westbound in the east-bound lanes;

i) the officer collided with an east-bound vehicle;

j) the officer stated in a deposition that he left the scene of the first accident to call the police emergency number 911.

These appeals arise out of separate motions for summary judgment. Summary judgment should be granted to a party only if the pleadings, depositions, admissions and affidavits reveal no genuine issue of material fact and only if the movant is entitled to judgment as a matter of law. (110 Ill.Rev.Stat.1985, par. 2-1005.) Because summary judgment is a drastic measure, it should be granted only when the movant's right to it is free from doubt. (United Security Insurance Co. v. Mason (1978), 59 Ill.App.3d 982, 984, 17 Ill.Dec. 507, 376 N.E.2d 653.) Cases in which an employer's or principal's liability depends upon whether an individual was acting within the scope of his employment or agency are usually not appropriate to resolve by way of summary judgment. See e.g., Wallace v. Smith (1979), 75 Ill.App.3d 739, 748, 31 Ill.Dec. 463, 394 N.E.2d 665; Marlaire v. Smith (1978), 62 Ill.App.3d 995, 997, 19 Ill.Dec. 891, 379 N.E.2d 763.

The general rule in Illinois is that a municipality may be held liable for the tortious acts of police officers in the scope of their employment. (Andrews v. City of Chicago (1967), 37 Ill.2d 309, 311, 226 N.E.2d 597.) Although the general orders of the Chicago Police Department provide that policemen are "on duty" 24 hours a day, that fact does not necessitate the conclusion that all acts taken by an off- duty police officer are deemed to be in the performance of his duties as a police officer. (Karas v. Snell (1957), 11 Ill.2d 233, 251-52, 142 N.E.2d 46; Banks v. City of Chicago (1973), 11 Ill.App.3d 543, 550, 297 N.E.2d 343, appeal denied, 54 Ill.2d 591.) A municipality is liable only for those acts of an off-duty policeman that fall within the scope of his employment, specifically those acts he performs to enforce the law and preserve the peace. Karas v. Snell (1957), 11 Ill.2d 233, 253, 142 N.E.2d 46; Banks v. City of Chicago (1973), 11 Ill.App.3d 543, 550, 297 N.E.2d 343, appeal denied, 54 Ill.2d 591.

Liability will not be imposed on the municipality when the conduct of the off-duty police officer is so reckless and outrageous that it is deemed to be outside the scope of employment. In that situation, summary judgment is proper. Examples of conduct outside the scope of employment have included a police officer intentionally threatening to kill and then killing a complainant's son so as to cause the complainant great emotional distress (Nelson v. Nuccio (1971), 131 Ill.App.2d 261, 268 N.E.2d 543, appeal denied, 47 Ill.2d 590); off-duty police officers falsely arresting, falsely imprisoning and sexually assaulting a complainant, even though their status as off-duty police officers was what enabled them to retain custody of the complainant (Gambling v. Cornish (N.D.Ill.1977), 426 F.Supp. 1153); and an off-duty policeman breaking down the door of a neighbor's apartment and shooting the occupant in the mistaken belief that he was entering his own apartment and shooting a burglar. Dzing v. City of Chicago (1980), 84 Ill.App.3d 704, 40 Ill.Dec. 420, 406 N.E.2d 121, appeal denied, 81 Ill.2d 590.

Circumstances in the present case similarly warrant a finding that Nick Liberis was acting outside the scope of his employment. While off-duty, Liberis spent the evening with his fiancee who became intoxicated. He followed her home in his car and when she drove her car through a store display window, he backed her car out of the window, left the engine running, and allowed her to leave the scene of the accident. When bystanders attempted to restrain Liberis from leaving, he announced "I'm on the job" and reached for his wallet. He broke away from his assailants, returned to his own vehicle and with one of the assailants hanging onto the steering wheel through the open door of the vehicle, drove down the wrong side of the road into decedent's vehicle. His conduct was entirely in pursuit of personal goals and cannot create liability in the city.

The trial court based its denial of summary judgment on the fact that Liberis said he was "on the job" shortly before the accident leading to Wolf's death. In our opinion that remark, standing alone, does not bring his subsequent conduct within the scope of his employment. The law is well-settled in Illinois that an agent cannot confer power himself and his agency or authority cannot be established by showing what he said or did. (Kapelski v. The Alton & Southern R.R. (1976), ...