Shirley v. Harmon

SUPREME COURT CASES

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Shirley v. Harmon

State: Illinois

Court: 2nd District Appellate

Docket No: 2-09-0772 Rel

Case Date: 08/11/2010

Preview:No. 2-09-0772 Filed: 8-11-10 ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ______________________________________________________________________________ DIANNA SHIRLEY, ) Appeal from the Circuit Court ) of Kane County. Plaintiff-Appellant, ) ) v. ) No. 08--L--425 ) BRUCE HARMON, ) Honorable ) Robert B. Spence, Defendant-Appellee. ) Judge, Presiding. ______________________________________________________________________________ JUSTICE BOWMAN delivered the opinion of the court: Plaintiff, Dianna Shirley, brought suit against defendant, Bruce Harmon, following a collision between plaintiff's car and defendant's snowplow. Arguing that the doctrine of sovereign immunity applied, defendant moved to dismiss the action pursuant to section 2--619(a)(1) of the Code of Civil Procedure (735 ILCS 5/2--619(a)(1) (West 2008)). The trial court granted defendant's motion to dismiss, and we affirm its decision. I. BACKGROUND Plaintiff filed a complaint on July 31, 2008, alleging the following. On December 1, 2006, she was driving west on Route 72. Defendant was operating a snowplow and traveling east on the same road. Defendant "lost control of his vehicle such that his snow plow blade and/or truck struck" plaintiff's vehicle. Plaintiff alleged that defendant failed to obey various traffic laws, in that he: failed to keep a sufficient lookout; drove his vehicle too fast for conditions; failed to decrease his

No. 2--09--0772 speed in order to avoid a collision; failed to safely pass plaintiff; and drove his vehicle with inadequate brakes and in an unsafe condition. Plaintiff also alleged that defendant knew that he was not adequately trained to operate the snowplow. Defendant moved to dismiss the complaint pursuant to section 2--619(a)(1). He argued that sovereign immunity applied and deprived the trial court of subject matter jurisdiction because at the time of the accident, he was plowing snow pursuant to his job as an Illinois Department of Transportation (IDOT) highway maintainer. Defendant argued that the proper forum for the case was the court of claims. Defendant attached two affidavits to the motion to dismiss. The first, his own, described his employment with IDOT and further stated the following. During defendant's work shift on December 1, 2006, he was "assigned to clean-up the accumulated, compacted snow and ice along" his permanent route, which included Route 72. At the time of the accident, he was plowing snow on Route 72. The vehicle's strobe light was activated and the plow blade was lowered and engaged. The second affidavit was that of Raymond Sidwell, an IDOT supervisor. The affidavit stated that when the accident occurred, defendant was plowing snow for IDOT, in an IDOT vehicle, and on his assigned route. Both affidavits also stated that plowing snow on state roadways was an activity unique to IDOT highway maintainers. Plaintiff filed a motion to strike the affidavits, arguing that they improperly contained conclusive legal statements that plowing snow on state roadways was an activity unique to IDOT maintainers. She alternatively argued that sovereign immunity did not apply because defendant breached duties owed by every driver rather than duties unique to his employment.

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No. 2--09--0772 The trial court denied defendant's motion to dismiss on April 17, 2009, ruling that this court's decision in American Family Insurance Co. v. Seeber, 215 Ill. App. 3d 314 (1991), controlled. Defendant subsequently filed a motion to reconsider with an accompanying memorandum. Relying on Currie v. Lao, 148 Ill. 2d 151 (1992), defendant argued that Seeber was not controlling and was otherwise distinguishable. Plaintiff moved to strike defendant's motion to reconsider as simply rearguing his initial motion to dismiss, and she also sought sanctions. Defendant disputed these assertions. On June 24, 2009, the trial court denied plaintiff's motion for sanctions, granted defendant's motion to reconsider, and dismissed the case with prejudice. On July 16, 2009, plaintiff filed an "emergency" motion to reconsider. Plaintiff requested that the court vacate its June 24 order, grant her motion to strike defendant's affidavits, and grant her leave to file an amended complaint and affidavit. Plaintiff's proposed amended complaint added the allegation that defendant crossed the center dividing line and went into the westbound lane before striking her vehicle. It also alleged that defendant breached his duty by failing to drive on the correct side of the roadway and yield the right of way to plaintiff. Plaintiff's affidavit stated as follows in relevant part. There was one lane of travel in each direction on Route 72. The snowfall had slowed down significantly or stopped, and it appeared that both lanes of traffic were plowed, with snow remaining only on the shoulder. Defendant was traveling east and "plowing the eastbound shoulder and eastbound roadway." Plaintiff did not observe any warning lights on defendant's vehicle. She moved her vehicle to her right, close to the shoulder, and slowed or stopped. Still, defendant's vehicle and its plow came across the yellow diving line, many feet into the westbound lane, and struck her vehicle.

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No. 2--09--0772 The trial court denied plaintiff's motion to reconsider. It agreed that some of the paragraphs in defendant's affidavits were conclusory but stated that even if it struck those paragraphs, the affidavits would still be sufficient. Therefore, the trial court declined to rule on plaintiff's motion to strike the affidavits. The trial court stated that the case remained dismissed with prejudice. Plaintiff timely appealed. II. ANALYSIS On appeal, plaintiff argues that the trial court erred in granting defendant's section 2--619(a)(1) motion to dismiss, because the trial court incorrectly determined that sovereign immunity applied and deprived it of subject matter jurisdiction. Section 2--619(a)(1) provides for the involuntary dismissal of an action based on lack of subject matter jurisdiction. 735 ILCS 5/2--619(a)(1) (West 2008). In reviewing the grant of a section 2--619 motion, we must interpret the pleadings and supporting materials in the light most favorable to the plaintiff. Abruzzo v. City of Park Ridge, 231 Ill. 2d 324, 332 (2008). A section 2--619 dismissal resembles the grant of a motion for summary judgment; we must determine whether a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether the dismissal was proper as a matter of law. Raintree Homes, Inc. v. Village of Long Grove, 209 Ill. 2d 248, 254 (2004). We review de novo the grant or denial of a motion to dismiss under section 2--619(a)(1). Country Mutual Insurance Co. v. D & M Tile, Inc., 394 Ill. App. 3d 729, 735 (2009). The Illinois Constitution of 1970 abolished sovereign immunity but allowed it to remain as the General Assembly provided by law. Ill. Const. 1970, art. XIII,

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