FIFTH DIVISION
MARCH 28, 2003

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Plaintiff Patricia Abrams, individually and as the special administrator of the estate ofGeorgia Sabrina White, appeals an order of the circuit court of Cook County granting summaryjudgment to the defendant City of Chicago (City) in a personal injury action. Plaintiff DorothyBrown did not sue the City; she and defendants Henrietta Young and Gregory Jones are notparties to this appeal.

The record on appeal shows that in deposition testimony, plaintiff claimed that at 1:30and 1:40 a.m. on November 18, 1997, she telephoned the City's 911 service, asking for anambulance because she had gone into labor with her seventh pregnancy. Plaintiff testified thatshe told the operators that her contractions were 10 minutes apart and that she did not have avehicle. According to plaintiff, the operators told her it was not an emergency case and hung upon her.

A Chicago Fire Department (CFD) event query record shows that a call was receivedfrom plaintiff's address at 1:47 a.m. on November 18, 1997, which lasted 1 minute and 22seconds, was handled by a person with the initials "VH," and given a priority of 1. VickiHernandez, a licensed emergency medical technician and paramedic, testified that she was the"VH" referred to in the CFD record. Hernandez had been in training with the Office ofEmergency Communications (OEC) since April 1997. Hernandez had no specific recollection ofthe 1:47 a.m. telephone call.

Hernandez stated that a priority 1 code meant an ambulance was to be sent. Hernandezalso noted that the CFD record showed that the disposition of the call was "Advised," whichmeant that an ambulance was not going to be sent and would be a priority 3 call. According toHernandez, she was not responsible for entering the priority code; this was supposed to be doneby the computer based on the disposition.

Hernandez testified that OEC used a system of flip cards to determine whether to send anambulance in response to a telephone call. Hernandez believed she had a good knowledge of flipcard No. 26 - the card relating to pregnancy, childbirth and miscarriage - on November 18, 1997. The record shows that flip card No. 26 provided in part as follows:

"In general, primagravida patients (initial pregnancy) progressthrough labor much slower than multigravida (second-pluspregnancy). Therefore labor pains two minutes apart in a thirdpregnancy are considered more urgent than in a first pregnancy. When pains are less than two minutes apart in first pregnancy orless than five minutes apart in second-plus pregnancy, birth isconsidered imminent.

NOTE: Presentation of the cord, hands, or feet is a dire emergency. Oftenthe only chance for survival of the infant is at the hospital.

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Hernandez initially testified that if a woman called with contractions more than five minutesapart with no complications, but no way to get to a hospital, an ambulance would not be sentbecause it was not indicated on the flip card. Hernandez later testified that she did not knowwhether she would send an ambulance in such a case. Hernandez testified that the phrase "whenin doubt, send" appears on all of the flip cards. Hernandez also stated that she could ask herwatch commander in cases where she was unsure.

Plaintiff testified she awakened her sister, Dorothy Brown. According to plaintiff, Brownthen telephoned 911 and was told that it was not an emergency. Plaintiff testified that she thendecided to call Capitol Ambulance, which informed plaintiff that they did not have an availablecar and that it would be two to three hours before they could send a car for plaintiff.

Brown testified that plaintiff awakened her after the first 911 call, she told plaintiff to callagain, and she was present for the second call. Brown testified that she then telephoned 911, wastold that it was not an emergency, and she was given the telephone number of an ambulanceservice. Brown believed the name of the service was Capitol. Brown testified that she thencalled Capitol Ambulance and was told they did not have an ambulance available. According toBrown, Capitol Ambulance did not indicate that they would have an ambulance available later.

A CFD event query record shows that a call was received from plaintiff's address at 1:53a.m. on November 18, 1997, which lasted 48 seconds, was handled by a person with the initials"AC," and was disposed of as "Advised," though again showing a priority code of 1. AntoinetteCacioppo testified that she was the "AC" referred to in this CFD record. Like Hernandez,Cacioppo had been in training with the OEC since April 1997. According to Cacioppo, 911 calltakers had to be licensed emergency medical technicians. Cacioppo was also aware of the "whenin doubt, send" policy.

Plaintiff testified that after being refused by Capitol Ambulance, she telephoned herfriend, Henrietta Young, who agreed to leave work to take her to the hospital. According toplaintiff, Young arrived approximately five minutes later to transport plaintiff and Brown to thehospital. Plaintiff testified that Young generally drove at the speed limit and obeyed trafficsignals, but she went through a red light at King Drive and Pershing, holding down her car horn.

At the intersection of King Drive and Pershing, Young's car became involved in acollision with a car driven by Gregory Jones. Plaintiff estimated that Jones had been travelingbetween 75 and 80 miles per hour. In a handwritten statement, Jones admitted that he had a beer,two double shots of rum, and crack cocaine before getting behind the wheel of his car. Thecollision ejected Brown from Young's car. Plaintiff testified that her head went into thewindshield of the car. Plaintiff testified that she lapsed into a coma for two weeks shortly afterdelivering her child, Georgia Sabrina White; when she regained consciousness, she learned thatthe child was dead. Plaintiff also required surgery to have her right ovary removed and a rod andscrews put in her right leg. Plaintiff was in a wheelchair for a year. It has been recommendedthat plaintiff undergo surgery to put a plate in her forehead.

Daniel Bull, the 911 dispatcher who dispatched fire equipment to the scene of thecollision at 2:19 a.m., testified that he would have sent an ambulance to plaintiff in the firstinstance, as private transportation was unavailable.

An affidavit by Dr. Frank Baker, submitted by plaintiff as an expert in emergency medicalcare, opined to a reasonable degree of medical certainty that the applicable standard of carerequired the CFD to dispatch an ambulance in this case, and that the CFD's failure to do sodemonstrated a conscious disregard for plaintiff's safety. The Baker affidavit also opined that,had an ambulance been sent, the transportation by trained professionals probably would not haveresulted in the collision that injured plaintiff and caused her child to be stillborn.

Abrams filed suit against the City, Young and Jones on November 18, 1998. Brown wasadded as a plaintiff bringing claims against Young and Jones a year later. On December 3, 1999,Abrams voluntarily dismissed her claim of ordinary negligence against the City, leavingallegations of willful and wanton misconduct. Abrams' claim against Young was dismissed withprejudice on December 5, 2000, as the result of a settlement with the estate of Georgia SabrinaWhite.

The City filed its motion for summary judgment on December 14, 2000, arguing that theCity owed no duty to transport plaintiff and that its failure to do so was not the proximate causeof plaintiff's injury and her child's death. On April 20, 2001, the trial court entered an ordergranting the City's motion on the issue of proximate causation. The order stated that it was "finalappealable pursuant to Supreme Court Rule 304(a) and the case continues as to defendantGregory Jones." Abrams filed a notice of appeal to this court on May 14, 2001.⁽¹⁾ Abrams andBrown voluntarily dismissed their claims against Jones on June 4, 2001.

First, there is the question of jurisdiction. The City argues that the order at issue does notfall within the scope of Rule 304(a). Plaintiff relies on cases such as Kucharski v. Floro, 191 Ill.App. 3d 1032, 548 N.E.2d 483 (1989), to argue that the language quoted above was sufficient. Kucharski was disapproved in some respects by the supreme court in In re Application of DuPage County Collector, 152 Ill. 2d 545, 605 N.E.2d 567 (1992), but the court therein stated that"where appeal is sought pursuant to Rule 304(a) from a judgment which defeats a claim or is inthe nature of a dismissal, the written finding is sufficient only if it refers to appealability."Application of Du Page County Collector, 152 Ill. 2d at 551, 605 N.E.2d at 570. The order hererefers to appealability, but does not include the language stating that there is no just reason todelay appeal. The City relies on cases such as Coryell v. Village of La Grange, 245 Ill. App. 3d1, 5, 614 N.E.2d 148, 151 (1993), but that case noted that the order merely stated that it was finaland appealable without reference to Rule 304(a) or the "no just reason" language. Here, the orderrefers to being appealable pursuant to Rule 304(a), which is sufficient to confer jurisdiction onthis court.

The issue on review is whether the trial court erred in granting summary judgment to theCity. Where there are no genuine issues of material fact, summary judgment is a proper methodof disposing of a cause. E.g., Gober v. State Farm Mutual Automobile Insurance Co., 263 Ill.App. 3d 846, 847-48, 636 N.E.2d 1016, 1018 (1994). However, summary judgment is a drasticremedy and should be allowed only when the moving party has a clear and certain right tojudgment as a matter of law. Gober, 263 Ill. App. 3d at 848, 636 N.E.2d at 1018. The trial courtmay grant summary judgment: (1) when the movant disproves the nonmovant's case byintroducing evidence that, if uncontroverted, would entitle the movant to judgment as a matter oflaw (see Purtill v. Hess, 111 Ill. 2d 229, 240-41, 489 N.E.2d 867, 871 (1986)); or (2) when themovant can establish the nonmovant lacks sufficient evidence to prove an essential element ofthe cause of action (see Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 273, 106S. Ct. 2548, 2552 (1986); Rice v. AAA Aerostar, Inc., 294 Ill. App. 3d 801, 805, 690 N.E.2d1067, 1070 (1998); Kimbrough v. Jewel Cos., 92 Ill. App. 3d 813, 817, 416 N.E.2d 328, 331(1981)). Summary judgment is properly entered when the pleadings, depositions, admissions,and affidavits fail to establish a genuine issue of material fact and the movant is entitled tojudgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2000). In ruling upon a summaryjudgment motion, the evidence is reviewed de novo and construed in the light most favorable tothe nonmovant. E.g., Walker v. Rogers, 272 Ill. App. 3d 86, 89, 650 N.E.2d 272, 274 (1995).

The trial court's order granted summary judgment on the issue of proximate causation and"[b]ased on the determination of this issue, there [was] no reason to consider the other issues inthis case." For the reasons that follow, the circuit court erred in both of these conclusions.

First, the circuit court erred in ruling on causation while declining to rule on the issue ofwhether the City owed plaintiffs a duty of care. In order to state a cause of action in negligence,a plaintiff must plead sufficient facts to establish that defendant owed plaintiff a duty of care, abreach of that duty, and an injury proximately caused by that breach. E.g., Sisk v. WilliamsonCounty, 167 Ill. 2d 343, 346, 657 N.E.2d 903, 905 (1995). If there was no duty, there simplycannot be a breach of duty that is a proximate cause of the plaintiffs' injuries.

Second, had the circuit court ruled that the City breached a duty it owed to the plaintiffs,there would have been a genuine issue of material fact as to causation. The trial court held thatthe events that ultimately resulted in plaintiff's injury and her child's death were not reasonablyforeseeable.

In First Springfield Bank & Trust v. Galman, 188 Ill. 2d 252, 257, 720 N.E.2d 1068, 1071(1999), our supreme court held: "Illinois courts draw a distinction between a condition and acause."

"Indeed, if the negligence charged does nothing more than furnisha condition by which the injury is made possible, and thatcondition causes an injury by the subsequent, independent act of athird person, the creation of the condition is not the proximatecause of the injury. [Citations.] The test that should be applied inall proximate cause cases is whether the first wrongdoer reasonablymight have anticipated the intervening efficient cause as a naturaland probable result of the first party's own negligence. [Citation.]" Galman, 188 Ill. 2d at 257, 720 N.E.2d at 1071.

The Galman court also explained that the term "proximate cause" describes two distinctrequirements: cause in fact and legal cause.

"Cause in fact exists where there is a reasonable certainty that adefendant's acts caused the injury or damage. [Citation.] Adefendant's conduct is a cause in fact of the plaintiff's injury only ifthat conduct is a material element and a substantial factor inbringing about the injury. [Citation.] A defendant's conduct is amaterial element and a substantial factor in bringing about aninjury if, absent that conduct, the injury would not have occurred.[Citation.] 'Legal cause,' by contrast, is essentially a question offoreseeability. [Citation.] The relevant inquiry here is whether theinjury is of a type that a reasonable person would see as a likelyresult of his or her conduct. [Citation.]" Galman, 188 Ill. 2d at258, 720 N.E.2d at 1072.

Applying Galman to the facts of this case, Dr. Frank Baker averred that had an ambulancebeen sent, the transportation by trained professionals probably would not have resulted in thecollision that injured plaintiff and caused her child to be stillborn. Consequently, the conduct ofthe dispatchers could be a cause in fact, as it was a material element and substantial factor inbringing about the injuries.

Under the facts of this case, the dispatchers (the "first wrongdoers") reasonably mighthave anticipated the efficient intervening cause (Brown running the red light and being struck byJones's car) as a natural and probable result of the dispatcher's own negligence. The plaintiffarguably showed legal cause because the City arguably could have reasonably foreseen thedisregard of a traffic signal by someone attempting to transport a woman in labor to a hospital,after the City refused to send an ambulance. The cases cited by the City are distinguishable, asthey did not involve drivers transporting women in labor to the hospital. See, e.g., Quirke v.City of Harvey, 266 Ill. App. 3d 664, 669-70, 639 N.E.2d 1355, 1359 (1994) (and cases citedtherein). Arguably, it was also reasonably foreseeable that such disregard of the traffic signalcould result in a collision with another automobile, regardless of whether the other driver wasunder the influence of drugs or alcohol. Indeed, disregarding a traffic signal often will result inencountering traffic which is obeying the traffic signal.

The City urges this court to affirm the judgment of the circuit court on grounds other thancausation. It is within the discretion of a reviewing court to affirm the circuit court's decision onany ground warranted, regardless of whether that ground was relied on by the trial court orwhether the reasons given by that court were correct. Busch v. Graphic Color Corp., 169 Ill. 2d325, 347-48, 662 N.E.2d 397, 409 (1996); 155 Ill. 2d R. 366(a)(5). However, a reviewing courtis not required to determine questions upon which the trial court expressly refused to rule. Reidelberger v. Bi-State Development Agency, 8 Ill. 2d 121, 124, 133 N.E.2d 272, 274 (1956). In this case, the circuit court expressly declined to reach the grounds now urged by the City.

Moreover, the City's presentation of its argument that it owed no duty to the plaintiffs isinadequate. The City's brief primarily argues that under the common law "public duty" rule,units of local government are not liable for failing to provide adequate governmental servicessuch as police and fire protection. E.g., Harinek v. 161 North Clark Street Ltd. Partnership, 181Ill. 2d 335, 692 N.E.2d 1177 (1998); Huey v. Town of Cicero, 41 Ill. 2d 361, 243 N.E.2d 214(1968). Yet the City failed to cite, let alone discuss, American National Bank & Trust Co. v.City of Chicago, 192 Ill. 2d 274, 735 N.E.2d 551 (2000), in which our supreme court allowed aclaim of willful and wanton misconduct where 911 dispatchers failed to keep a caller on thephone while the paramedics responded, and the paramedics failed to try the caller's unlockeddoor to enter the apartment. The dissenting justices concluded that the public duty rule shouldapply. American National Bank & Trust Co., 192 Ill. 2d at 288-90, 735 N.E.2d at 559-90(Heiple, Bilandic and Rathje, JJ., dissenting). The majority apparently did not. It seems unlikelythat the City was unaware of American National Bank & Trust Co., as it was a named defendantin the case.

During oral argument, the City suggested the case was distinguishable because anambulance was not dispatched in this case. However, that fact is relevant to the issue of breach,not the issue of duty. "It is basic that a breach of duty can consist of either an act of commissionor an act of omission ***." Hoffman v. Yack, 57 Ill. App. 3d 744, 747, 373 N.E.2d 486, 489(1978). Similarly, plaintiffs cited American National Bank & Trust Co. in their reply brief, buttheir discussion of the case was limited to a parenthetical description that referred to an issue ofimmunity, not the issue of duty.

A reviewing court is not a repository into which an appellant can dump the burden ofresearch. County of McHenry v. Thoma, 317 Ill. App. 3d 892, 892, 741 N.E.2d 337, 338 (2000). We conclude that the same principle may apply where an appellee urges this court to affirm on anissue upon which the trial court expressly declined to rule. Accordingly, this court will exerciseits discretion to decline to affirm the summary judgment on the other grounds urged by the City,without prejudice to the City raising them fully and properly on remand.

For all of the aforementioned reasons, the judgment of the circuit court of Cook County isreversed and the case is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

QUINN and REID, JJ., concur.

1. Brown was also listed in the notice of appeal, though the pleadings do not show that shefiled suit against the City.