JACKELYNA ODISHOO v. THE STATE OF ILLINOIS (2001)

ORDER

This cause comes before the Court on Respondent's Motion for Summary Judgment, and the Court having reviewed the entire court file, and the Court being fully advised in the premises,

WHEREFORE, the Court Finds:

1. That Claimant filed his Complaint sounding in tort on July 6, 1992.

2. That Respondent filed its Motion for Summary Judgment on September 22, 2000.

3. That there are no genuine issues of material fact.

4. That Respondent is entitled to a judgment as a matter of law.

The Facts

On July 6, 1992, Claimant, Jackelyna Odishoo, individually and as Administrator of the Estate of Stewart M. Odishoo, deceased, brought this action alleging that the Respondent breached their duty of care to Claimant's decedent by releasing him from police custody. At 1:20 a.m. on July 4, 1991, Trooper Welcome was on duty patrolling ten and one-half miles of Interstate 90. The traffic was very heavy due to people leaving downtown Chicago following the holiday fireworks display. As Trooper Welcome was monitoring the heavy flow of traffic from a crossover point just west of Cumberland Avenue in his patrol car, he observed a Chrysler LeBaron speeding down the left shoulder of the roadway which nearly hit his patrol car as it passed by. Trooper Welcome pursued the LeBaron approximately one-half mile before it pulled over on the left shoulder.

Inside the car, Stewart M. Odishoo was behind the wheel. Trooper Welcome approached the LeBaron and requested Mr. Odishoo's driver's license and immediately noticed a strong odor of alcohol from Mr. Odishoo. Trooper Welcome requested that Mr. Odishoo exit the LeBaron and perform four field sobriety tests. Mr. Odishoo complied, and although polite and cooperative, he nevertheless failed the field sobriety tests.

Trooper Welcome placed Mr. Odishoo under arrest and ordered a tow truck to tow the LeBaron. Trooper Welcome and Mr. Odishoo traveled in the patrol car together approximately one and one-half miles to the M3 Maintenance Building where the Illinois State Police maintain a squad room complete with a breathylizer machine. At 2:00 a.m., Trooper Welcome prepared and read the Warning to Motorists form to Mr. Odishoo. Mr. Odishoo consented to taking the Intoxylizer test. Pursuant to policy, Trooper Welcomer waited twenty minutes before performing the Intoxylizer test on Mr. Odishoo. At 2:21 a.m., Trooper Welcome administered the Intoxylizer test which established that Mr. Odishoo's blood alcohol content registered at .15, a level in excess of the legal limit.

Because of Mr. Odishoo's polite and cooperative behavior, Trooper Welcome, in his discretion, decided Mr. Odishoo was eligible to post bond for his arrest rather than be incarcerated over the holiday weekend. However, Mr. Odishoo did not have adequate funds on his person to post bond, nor a family member or friend to call to assist him. Trooper Welcome decided, in his discretion, to issue Mr. Odishoo a personal recognizance bond, or I-bond, because Mr. Odishoo would otherwise be placed in jail over the holiday.

After completing the arrest process, Mr. Odishoo stated he had no one to call for a ride home. Trooper Welcome radioed that he was leaving his patrol area briefly to take Mr. Odishoo to a safe, public place off the highway. Trooper Welcome went six miles off his patrol toward the direction of Mr. Odishoo's home, delivering Mr. Odishoo to a Wag's restaurant south of Interstate 90 on Barrington Road at approximately 3:00 a.m. The Wag's restaurant was open for business. As Trooper Welcome and Mr. Odishoo arrived at Wag's. Mr. Odishoo stated that he was going to call his uncle for a ride home. Trooper Welcome watched as Mr. Odishoo walked away from the patrol car and entered the restaurant through the glass doors. Mr. Odishoo was quiet, oriented and coherent throughout his arrest, and walking with normal motor function by the time he entered Wag's restaurant. At that point, Trooper Welcome was called by radio to proceed to an accident scene in his patrol area and departed.

On the following day, Trooper Welcome received a telephone call from Assistant State's Attorney Larry Menassa. Trooper Welcome then learned that the citations which he had issued to Mr. Odishoo the previous night had been found in Mr. Odishoo's pockets after he'd been hit from behind by a van driven by a drunk driver while he was walking in the middle of Barrington Road's southbound lane at approximately 3:40 a.m. Investigation of the accident established that Mr. Odishoo was walking alone on Barrington Road when hit by the van causing his injuries. Mr. Odishoo was taken to Humana Hospital where he later died from his injuries on July 10, 1991.

The Law

In ruling on a Motion for Summary Judgment, the Court must grant such a motion where the pleadings, affidavits, depositions and admissions on file show no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. 735 ILCS 45/2-1005(b)(c). Whether there is a relationship between the parties, requiring that a legal duty be imposed upon one for the benefit of the other, is a question of law which the Court may properly decide on a Motion for Summary Judgment. Marshall v. Ellison, (1985), 132 Ill.App.3d 732, 734.

The Public Duty Rule provides that a government and its employees owe no duty to provide police or fire protection services to individual members of the general population and therefore cannot be held liable for claims alleging breach of such duty. Zimmerman v. Village of Skokie, et al., (1998), 183 Ill.2d 30, 44. In this case, the Public Duty Rule establishes that no duty of specific police protection was owed to Mr. Odishoo, an individual of the general public, and thus Respondent cannot be held liable for Mr. Odishoo's injuries and resulting death.

The Special Duty Doctrine, a judicially-created exception to the Public Duty Rule, provides for liability to attach only where four requirements are met by the claimant, namely: (1) the government must be uniquely aware of the particular danger or risk to which the plaintiff is exposed; (2) there must be allegations of specific acts or omissions; (3) the specific acts or omissions must be either affirmative or willful in nature, and; (4) the injury must occur while the plaintiff is under the direct and immediate control of the employees or agents of the governmental entity. Marshall v. Ellison, (1985), 132 Ill.App.3d 732, 737.

In the instant case, several facts established that Claimant cannot meet the requirements of the Special Duty Exception to the Public Duty Rule. First, Trooper Welcome repeatedly suggested that Mr. Odishoo call a friend or family member for a ride home and Mr. Odishoo stated that he would call his uncle for a ride from the Wag's restaurant. Second, throughout his arrest process, Mr. Odishoo had been oriented, coherent, polite and cooperative. Third, Trooper Welcome observed that by the time Mr. Odishoo was delivered to Wag's restaurant, his motor control appeared normal. These facts established that Trooper Welcome was not aware of the particular danger or risk to which Mr. Odishoo ultimately exposed himself. In addition, Trooper Welcome's departure from Wag's, in response to a radio dispatch of an accident on his patrol, cannot be construed as an affirmative or willful act or omission. Indeed, Trooper Welcome's response to that radio dispatch call was one for which he was under a duty to the general public to answer.

Most importantly, it is undisputed that Mr. Odishoo was not under the direct and immediate control of Trooper Welcome when the injury which led to his death occurred. As it is undisputed that Mr. Odishoo was not under the direct or immediate control of Trooper Welcome when Claimant's decedent suffered his injuries which resulted in his death, the Respondent is entitled to summary judgment as a matter of law.

Even if the Court were to follow Claimant's argument that Trooper Welcome was not acting as a police officer, Claimant has failed to establish that any special relationship of voluntary custodian-protectee was created. Trooper Welcome was not a carrier, innkeeper, business invitee or custodian-protectee for Claimant's decedent. Once the Trooper saw Mr. Odishoo enter the Wag's Restaurant, any possible relationship between Trooper Welcome and Mr. Odishoo ended as a matter of law.

THEREFORE, IT IS ORDERED:

A. That Respondent is entitled to a judgment as a matter of law.

B. That judgment is entered in favor of Respondent and against Claimant.

C. That Claimant's claim is denied.

FREDERICK, J.