No. 2--03--0357

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE HUTCHINSON delivered the opinion of the court:

In this appeal, we are asked to determine whether, in an action brought by a municipality'ssubrogee for damage to an emergency vehicle, section 5--106 of the Local Governmental andGovernmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/5--106 (West2000)) immunizes the municipality from the defense of comparative negligence. We hold that it doesnot.

Plaintiff, Gallagher Bassett Services, as subrogee of Elk Grove Village (Village), filed acomplaint alleging that on February 24, 2000, a Village ambulance was responding to an emergencycall when it was struck by a truck driven by defendant, Donald Miggins. Plaintiff soughtcompensation for damage to the subrogor's ambulance. Defendant filed an affirmative defense askingthe trial court to reduce his contribution in whole or in part due to plaintiff's contributory fault incausing the accident. See 735 ILCS 5/2--1116 (West 2000). Plaintiff denied the allegations of theaffirmative defense and asserted that it was immune from such a defense under section 5--106 of theTort Immunity Act. See Dix Mutual Insurance Co. v. LaFramboise, 149 Ill. 2d 314, 319 (1992)("One who asserts a right of subrogation must step into the shoes of, or be substituted for, the onewhose claim or debt he has paid and can only enforce those rights which the latter could enforce"). The trial court entered judgment for plaintiff, ruling that the Tort Immunity Act barred defendantfrom asserting a defense based on contributory fault. The trial court denied defendant's posttrialmotions, and defendant timely appealed.

On appeal, defendant argues that the trial court erred in ruling that section 5--106 barred hisdefense of contributory fault. Section 5--106 provides:

"Except for willful or wanton conduct, neither a local public entity, nor a publicemployee acting within the scope of his employment, is liable for an injury caused by thenegligent operation of a motor vehicle or firefighting or rescue equipment, when respondingto an emergency call, including transportation of a person to a medical facility." 745 ILCS10/5--106 (West 2000).

The parties do not dispute that the ambulance was responding to an emergency call when the collisionoccurred.

The primary rule of statutory construction is to ascertain and give effect to the legislature'sintent. Carver v. Sheriff of La Salle County, 203 Ill. 2d 497, 507 (2003). The best indication of thatintent is the statute's language. Carver, 203 Ill. 2d at 507. However, even if the statute's languageis unambiguous, courts should also consider the statutory statements of purpose. See PrimecoPersonal Communications, L.P. v. Illinois Commerce Comm'n, 196 Ill. 2d 70, 86-88 (2001). Courtsmust consider the reason for the law, the evil to be remedied, and the object to be obtained by thestatute. Collins v. Board of Trustees of the Firemen's Annuity & Benefit Fund of Chicago, 155 Ill.2d 103, 111 (1993). We will presume that in enacting the statute, the legislature did not intendabsurdity, inconvenience, or injustice. Carver, 203 Ill. 2d at 508. Statutory construction is a questionof law, so our review is de novo. Carver, 203 Ill. 2d at 506-07.

After reviewing the plain language of section 5--106, we conclude that the immunities grantedin that statute apply only in those situations where a party seeks damages from a local public entityor its employee. The statute provides that a public entity and its employees are not "liable for aninjury caused by the negligent operation of a motor vehicle or firefighting or rescue equipment" whenresponding to an emergency call. 745 ILCS 10/5--106 (West 2000). In this case, defendant does notseek to impose liability upon the Village for an injury caused by the negligent operation of a motorvehicle. Instead, defendant has raised the affirmative defense of comparative negligence in an attemptto reduce plaintiff's recovery proportionate to plaintiff's comparative negligence. Defendant is notpursuing damages, and his affirmative defense would not ultimately subject plaintiff to any liability,but, at most, would reduce or eliminate his own liability. The Tort Immunity Act must be strictlyconstrued against the public entity as its immunities are in derogation of the common law. Van Meterv. Darien Park District, 207 Ill. 2d 359, 368 (2003). Construing the plain language of the statutestrictly against the Village, we hold that the immunities granted in section 5--106 do not apply to bara comparative negligence defense when the public entity has initiated judicial proceedings to recoverdamages for its own injury. Indeed, a contrary interpretation would allow the unjust result of amunicipality recovering damages in full even when the damages were 99% the fault of its employeeand 1% the fault of the defendant.

Our conclusion is bolstered by the legislative intent expressed in the Tort Immunity Act'sstatements of purpose. The Tort Immunity Act states that its purpose "is to protect local publicentities and public employees from liability arising from the operation of government. It grants onlyimmunities and defenses." 745 ILCS 10/1--101.1 (West 2000). The Act does not affect "the rightto obtain relief other than damages against a local public entity or public employee." 745 ILCS 10/2--101 (West 2000). Such legislative expressions of intent clearly demonstrate that the purpose of theTort Immunity Act is to limit the amount of public money spent to satisfy damages awarded in tortcases. See Van Meter, 207 Ill. 2d at 368 (noting that the legislature's intent in enacting the TortImmunity Act was "to prevent the dissipation of public funds on damage awards in tort cases"). Thisgoal would not be furthered by prohibiting defendant from using a comparative fault defense. Rather,the legislature plainly intended that the reach of the Tort Immunity Act would be limited to protectingpublic entities from liability; the legislation was not intended to affect a defendant's right to obtainrelief other than damages. 745 ILCS 10/2--101 (West 2000).

While our conclusion is based upon the plain language of section 5--106, we note that ourholding is consistent with other cases that limit the government's immunity when the governmentseeks to recover damages. In Department of Public Works & Buildings v. Decatur Seaway MotorExpress Co., 5 Ill. App. 3d 28 (1972), the Department of Public Works sued the defendant for bridgedamage allegedly caused by the defendant's negligence. The evidence showed that the Departmentwas guilty of contributory negligence through its employees' actions. The trial court granted thedefendant a directed verdict. Decatur Seaway Motor Express Co., 5 Ill. App. 3d at 29-30. Onappeal, the Department argued that it was not subject to a defense of contributory fault because it wasnot bound by statements made by its employees. The appellate court disagreed, stating that "whenthe State brings an action to recover for damages to property, it stands in the same position as torights and remedies as any other litigant." Decatur Seaway Motor Express Co., 5 Ill. App. 3d at 31. Cases from other states have reached similar results. See City of Kalamazoo v. Priest, 331 Mich. 43,49 N.W.2d 52 (1951) (contributory negligence defense allowed when municipality sought damagesfor injuries to firemen and fire truck); Faulk v. City of Tyler, 389 S.W.2d 706 (Tex. Civ. App. 1965)(contributory negligence of municipality's police officer available as a defense in property damageaction brought by municipality). But cf., Mayor & Aldermen of the City of Paterson v. Erie R.R. Co.,78 N.J.L. 592, 75 A. 922 (1910) (city's action for damages to fire truck not barred by city employee'scontributory negligence in driving fire truck).

In reaching our holding, we reject plaintiff's assertions that, because the immunities providedby the Tort Immunity Act prevail over the right to contribution under the Joint TortfeasorContribution Act (Contribution Act) (740 ILCS 100/0.01 et seq. (West 2002)), they should likewisetrump the defense of contributory fault. In Buell v. Oakland Fire Protection District Board, 237 Ill.App. 3d 940, 943 (1992), the appellate court held that the immunities of section 5--106 prevailedover the defendant's Contribution Act claim against a local public entity. Plaintiff argues that in bothBuell and the instant case, the defendants sought to have some of their liability apportioned to thelocal government entities. We find Buell distinguishable. If the protections of the Tort Immunity Actwere not available to a municipality in a contribution action against it, the municipality could berequired to pay damages. In contrast, if a comparative fault defense is allowed when a municipalityhas brought suit, the municipality's potential award may be reduced, but the municipality will not berequired to pay damages. Therefore, it is not inconsistent to hold that section 5--106 does notpreclude the defense of comparative fault when the municipality seeks to recover damages, eventhough the municipality can use the statute as a defense against a claim brought under theContribution Act.

For the foregoing reasons, the judgment of the circuit court of Du Page County is reversed,and the cause is remanded for a new trial during which defendant may assert the defense ofcomparative negligence.

Reversed and remanded.

McLAREN and BOWMAN, JJ., concur.