it please the court my name is charles roth and i represent the defendants appellants in this case i would like to move directly to the legal issues involved there are such only for the first is a significant major issue which pertains to all of the governmental units in the state of illinois first is there an irreconcilable direct conflict between the motor vehicle act the illinois motor vehicle code excuse me and the eleanor i governmental tort immunity the bad bradish case in the fifth district indicated that there was and it is from that decision that eventually this appeal was perfect that the second issue is should a reversal of that decision be prospective only or should adopt the general rule that it would be retroactive and prospective the third should be directed verdict on the issue of willful and wanton conduct he affirmed and finally was or adequate evidence for the admission of they aren't hospital bill is there a direct irreconcilable conflict between the two statutes the illinois vehicle code and the governmental tort immunity act our position is that it is not and that is the position that has been taken by the  with the exception of the fifth district in each of the decisions rendered on this point the courts have indicated that each of these two statutes operates in a different sphere a different subject matter if you well we know the vehicle code operates and provides rules on the road governs general vehicle behavior creates duties and provides very specific phenol t's it governs both public and private vehicles and or employees and yet does not provide any immunities it does provide what they call privileges but it also provides duties which negate essentially those privileges and example of a conflict in the motor vehicle act would be if one section of the motor vehicle at said that an ambulance must have four wheels and no more and another section of the motor vehicle act said all ambulances must have six wheels that is a direct irreconcilable conflict and must be resolved one way or the other it is because it operates on the same subject matter to the contrary the illinois governmental toward immunity act provides only one thing i'm unities and it provides only that immunity for emergency vehicles and only for negligence essentially are in different spheres and operate differently from one to the other to further distinguish the operation of the two statutes the post the tort a unity act would not apply because it provides only defenses so a suit brought by a governmental unit would still be controlled by the due regard standard of it defined in black's law dictionary in your cases there is simply no definition of due regard it is a statute which i would like to talk a little bit later about its vagueness and right it permits the interweaving of these two and right as a further grounds not only other not on the same subject but the vagueness of the due regard provision w commit the action and the result intended by the legislature in the governmental tort immunity act the legal authority for the principle that each of these two  statutes operates in its own sphere one being for the operation and governance of public and private vehicles in a very general sense and the other a very specific immunity pr that legal standard is of long standing and is overwhelming precedence in this court the hemorrhage versus liberty bill high school in one nine hundred ninety eight this court held that and a comparison between the two immunity statutes that one was more specific and operated at both operated in different spheres and that that language was then followed by the appellate courts separately so the principle that these two statutes operate in legal spitters can be traced back to this supreme court in its one thousand nine hundred eight decision the legislature simply as this court said there it clearly simply said we're going to grant greater immunity to public and that case schools then to private and with respect to the toward immunity act in the application here the appellate courts have said you know mostly that the government has chosen to give greater immunity to governmental ambulances responding to emergencies than to private the other four districts of the appellate court agree with what i have just said there's only one appellate court that disagrees and that is the fifth district in three all of them all of them without exception specifically rejected the bradshaw fifth district decision all of them said they operate in different spheres there is no conflict and that they each can exist for courts in the appellate district so we come to this point that every recorded decision on this issue favors our client's position there's only one decision to the contrary it is the fifth district decision the rule twenty three decision that brought my case up our case up to the court is not going to be created and therefore the bradshaw decision still  in the fifth district the second reason there are two reasons why these con these statutes are not in conflict and your honor you touched on it very briefly and that is the language of the motor vehicle act is so general and so broad and as i will point out later inconsistent with itself that the due regard language would permit and would clearly allow operation of the governmental toward immunity act which would provide a defined in the act there is no i p i jury instruction there is no definition in the ninth edition of black's law dictionary that is the most current one at least in your library with respect to definitions is not defined in the illinois statutes although the term is used frequently but in other contexts words and phrases which is another resource has a few cases none of them in illinois and the language that is permitted varies all over the lot and with regards to what the meaning is black's law dictionary i had to go back to the fourth edition one thousand nine hundred ninety eight defines to regard his consideration in a degree appropriate to the demands of a particular case consideration and agree appropriate to the demands of the case and my argument here is that surely consideration of those other factors would include other statutes and here we have the toward immunity act in the state of illinois it would also of course consider the a merge and see situation so we come to the conclusion that if the motor vehicle act does not use the terms of due care doesn't use that it doesn't use the term negligence it says due regard for these vehicles due regard there is no specific now my next point on this issue is that there is an internal inconsistency in the motor vehicle act itself on this point two zero five section two all five the motor vehicle act which contains the do  to regard language is into system with section two hundred seven and the reason i say that is that section two all five requires a driver to operate the motor vehicle w on the other hand section nine zero seven contains three due regard language but does not contain a language of reckless operation no prohibition and nine zero seven against reckless and neither of them use the term worldful in one our approach the subject so the question must be if you do regard always as the fifth district must say if due regard always means negligence what additional relief is provided by adding the term and you can't be reckless we all know what the standard much easier to determine and to prove negligence than to approve a higher state of mind cause of action so why would you include the term reckless if you already have if you already are precluding ne and why didn't you include the terms willful and wanton or is that to be considered as permitted perhaps under do under the due regard so we're suggesting to the court that there is perhaps we're not saying you have to make that decision that's not an issue here that you have to decide but there is a statutory conflict within the motor vehicle code between these two statutes now does that affect whether or not the governmental totem unity act is in conflict we think it simply indicates that the motor vehicle act has its own problems is vague enough is general enough to clearly permit the application of a very specific governmental tort i'm unity or as we noted the fifth district stands alone in this decision where they indicated that there was a conflict and that as a result of that they then had to overcome another hurdle because when you have a conflict between the two they said well you have to look at first which is more specific and then which is more recent and of course specific because there is it's clear we're only talking about immunity and are only talking about negligence and the motor vehicle act on the other hand has displayed language of due regard plus in compas both privately and publicly owned vehicles clearly a much more broader concept covers everything from the size of signs that paint color that you use on the street what color the taillights are it's no wonder it gets changed curry article secondly not only is the immunity difference but the parties covered are different the governmental act of course applies only to publicly owned vehicles and their employees while the general illinois motor vehicle code applies to a public and privately owned motor vehicle codes and secondly they conditions under the application a motor vehicle code applies under all conditions apparently reckless no mention of wolf alone rotten and whatever due regard is well on the other hand the very general excuse me very specific governmental todd munity act applies for emer conditions only so let's say that you're not convinced with this argument and you decide to take the position that the fifth district case was correct which is the appendix one two three four and five we attached copies of the illinois session laws and would they show that both the sections of the motor vehicle act to all five and nine zero seven both contain the due regard language the same as it is today what's the got the governmental toward immunity act we have a chance to given a context a six seven eight nine and ten a copies of the nineteen eighty six session was a public act eighty four days form four three one which creates the current governmental immunity st hundred eighty six seventeen years after at least seventeen years after the language of the motor vehicle code which is the most recent clearly governmental toward immunity or the fifth district appellate court in its rule twenty three opinion at page eleven said well  there was an amendment in one thousand nine hundred four to one of the provisions of the statute that pertains to the due regard but it didn't tell us what that amendment was to that the decision the appellate courts rule twenty three decision with were peeling from didn't say what that amendment was we looked what that of the statute not a significant change not a significant adaption no clarification they simply moved the statute that provision language is still no definition it still applies in this situation it still would be the language which would be operative and so we're suggesting to the court that i bring myself to a close as i see my time is running out not it hasn't been it's the same language so it's nineteen sixty nine this court said but you look at that probative language and you don't change yourself or you don't consider something as more recent simply because another provision was changed in this court said in my two ninety four in the john vs troy fire protection district and i've suggest this court should have the same opinion today you don't even need to get it yes you a medical bill we don't have that first your honor you're on you're on the right point on me on this one it was a discovery deposition discovery depositions where they now can be admitted in some situations of course that will change but typically are not but the party said agreed that we were going to submit both parties agree that we're going to submit the bills in a summary provision not the actual bills themselves she had to have some knowledge of the reasonableness of the charge mr pierce who's deposition was taken clearly was a functionary she was a minion she didn't even remember when the deposition was taken who told her the amounts to charge she didn't know if they are reasonable she had no idea that was our objection to you using that i'm sorry or do you feel that we position that there is absolutely correct stated and i want to start right off by by getting into the issue about which of these statutes contro those a motor vehicle code control the operation of an emergency vehicle by an ambulance driver or a firefighter or is that individual excused from the ordinary negligence standard that we've started in this case it was a result of the jury's verdict to answer that question you have to engage in a two step process the first step is is there in irreconcilable conflict between the two statutes and the answer is an unequivocal yes there's a conflict it's not reconcilable defense have gone to great lengths to try to go to great lengths to try to  reason volved to immunity statute this case and the other cases the appellate districts looked at incorrectly involved a provision of motor vehicle code eleven two hundred five that imposes a duty to exercise due regard for the safety of other persons that's a negligent standard not comment on that in just a little bit and is the reason why we believe it is and then secondly the they talk about well there's a difference between duty and an immunity and since there's no immunity statute the motor vehicle code that doesn't really stand with your conflict that it can be read together because the subject matters are essentially the same it just applies to different people the the one case that this court can look at they can resolve completely the issue about a conflict is the john case and that case this court considered the provisions of the firefighters act at that time and that since now been repealed that said that firefighters had to drive with the observation of ordinary negligence if they were negligent operation their vehicle they could be held accountable the tour immunity act at that time said we're going to immunize you from that behavior the court found an ir conflict if you've got the legislature on one hand saying you've got to drive with due regard for the care and safety of others but there were on the other hand the acted toward me that were going to immunize you from that that is a irreconcilable conflict and one that is repugnant these statutes cannot stand and so as a consequence the court had engaged in the second step of this analysis which is which one of these two trumps the other which one holds sway over the cause of action is before the court and there's there were good reasons why that was a case that i can comment on a second particularly i was going to do that in the section about which one of the legislative intent factor should be a pleasurable and i'd like you to explain this mr johnson if we enforce the  immunity here right the vehicle code section is not rendered wholly mean right there by contrast if we allow a negligent suit to go forward against the driver of unauthorized emergency vehicle the relevant section services that's the general article this section that at issue five zero six five dash one of six about emergency calls it talks about motor vehicle and then it says are fire fighting or rescue equipment so there's lots of firefighting rescue equipment that would not be trying by this particular case and that is things like the jaws of life stretchers firefighter hoses things that could hurt people on a regular basis still would have that immunity because they're not addressed obviously in a motor vehicle code but the motor vehicle code section two zero zero five has no relevance if you don't look at it it's important to consider the sequencing of how they all know motor vehicle code is constructed it says to emergency drivers it says we're going to way you violate the law basically we're going to got you do things other people can't do or unless you speed we're going to let you're on a stop sign we're going to let you do all these things that of unity act right you know if we don't look at the form of unity act in this case what happens to the public emergency section i think i think the confusion may be section two five of the actor on or applies to both public and private about the whole meeting was this ok if you steve if this court struck the provision of the motor vehicle code you're going to separate areas and drivers i'm talking about driver's views of the drivers in the sort of unity under the conflict with a motor vehicle code the point i was trying to make me got into such an artful job earlier was to say that you castles are getting from the defense that we have an implied repeal of the torah meaning x action five one hundred six much like history but what stays in place under five one hundred six are because of actions or based upon the operation use of firefighting equipment or rescue equipment that would stay in place and not be trumped by this particular and i hope i've answered that question then ok thank you sir let me let me continue on then and get one of the questions about what is due regard i'm somewhat mystified that for a couple reasons one the first time we ever heard the defendant talk about or really not sure what do you regard means is that really negligence was the first time we've heard it was in the reply brief every other appellate district this looks bad it and even the seventh circuit has found that that we had the same review of blacks while dictionary about they were guard out but the reality is here's where the confusion comes from that argument do regard when you define each of these words it's not a term anymore in the ninth edition but when you look up do it can be is defined as reasonable regard is defined as care that's reasonable care that's i p i ten point zero one ten point two on negligence and or use of ordinary care that language is similar to basically what the common law in the states always been is that is you have to operate your motor vehicle with due regard for the safety of others that is in fact a negligence standard it can well for one says it's either intentional or it's with rest reckless disregard for the safety of others that's section two hundred five the same ambulance drivers if you're driving then you're going to violate the law you're going to rest stop by you're going to speed you've got to have water inconsistent counsel misses a point here two zero five is the application of the motor vehicle code toward the driver emergency vehicle nine o seven is directed to the rest of us the fact that the legislature put in nine o seven well we have to do to yield to the right of way of emergency drivers but they also said that that doesn't relieve the driver from exercising due regard they are apples and oranges those are two different sections both of which contain the legislature affirmation that negligence is the standard of care by which they drive a motor vehicle in this case it handles driver's measure now if there's a conflict as we continue and it's an irreconcilable and interestingly if that's the case then the next question becomes well what do we do how do we discern legislative intent and one of the things you give the and that was maybe reverence meant to go with john and back down to the toward me act trumped and the reason it did is straight forward to districts and as well as a municipal code it went on to say the fact that the legislature did not seem to remove it from the books altogether was clear that it was inadvertent and as a  consequence we're going to find an implicit repeal because if it were that repugnant now in this case we've got to go look at if this irreconcilable conflict as we submit in this john holds then how do we resolve it then this court has to look at legislative intent as a paramount or sometimes expressed as a cardinal rule and then you look at rules of statutory construction and this is a three step process that we submit is a political here the first is a legislative intent you look to the purpose media and the common thread that is in those cases is that more of a fan of those those statutes contained an omnibus source for rules that govern the particular behavior that was an issue in the case nothing nothing gets to the point of telling an endless driver how he can behave wofully what he can do under circumstances and what conditions he can do them on and under what standard of care he's to exercise them they t didn't consider this course decision and john they could we misapplied high rates that compared immunity with the muni and then step that into somehow distinction so that's one of the second one is they did not consider the clear comparison in john of a of a duty to act with without negligence and immunisation from that same act so as a consequence that that is a total dispositive point on these other four appellate districts they simply didn't understand or appreciate the fact that john had previously held that and it a lemon to a fine i'm says it applies to both private and public employees are entities in this case the two five says that it makes a point  in conflict this much repugnant to one another there's two rules of statutory construction both of which favor the affirmation of the fifth district here and one is the specific versus general point and the other is the recency argument in articulated or contain and i'm not the source of rules and they're very specified to the particular cause of action that's an issue that's going to govern over a more general statement the motor vehicle code says plainly what happened that's what have in this case we have an ambulance driver responding to a call at a at a nursing home that drives through a blind intersection without a siren on there now under that statute that is that is without due regard for the safety of others that is this court has never held that you have to act that the legislature discern its intent you have to go look at did they look at the specific subsection it was an issue that would be unreasonable if we're trying to draw a reasonable inference about what the legislature intended they've looked at eleven to zero five and eleven nine zero seven seven times we set those forth in our brief they said those seven times they've looked at it they've changed the conditions by which they can operate these vehicles they they took in a row provision and took out put in took out there have been numerous times that they've had an opportunity to look at the import of these motor vehicle code is bassinets in its application all of us every day are coming into contact with those rules of the road those are far more specific far more a political on rescue equipment and firefighting equipment it just is trumped by two o five when and those drivers driving for the safety and care of others we don't measure the behavior of others by how many people are affected school district and they said i we're going to change the law and we're going to make a prospect even this application because school districts may not have insured itself in that liability but we're going to reward the plaintiff for bringing that to our attention in this case it's the opposite decision and follow the other four district we think wrongly but if it does that we think that application should be prospective because interest racks a perfect balance that massacre house middle district continues to get the protection is from now on that's a reward the pla act in reckless disregard for the safety of others has to do with the danger a reasonable caution is case by an intersection can't see turns off their own way to war motoring public the siren and the collision occurs other things about speed although should be i'd like to take up my rebuttal time by taking the last item that was mentioned first whether there was a error when the judge granted our motion for directed verdict with full and wanton count which was added to the complaint following the initial negligence count the court granted a directed verdict in favor of the defendant on the willful and wanton count at the close of all of the evidence presented by the plaintiff it was not at the summary judgment phase that was a chance where all the testimony that the plaintiff could bring forward was presented in the court ruled that under even the decision most favorable consideration that there was no evidence of the heightened gross negligence is required such as where there is a conscious and deliberate disregard for the rights or safety of others and clearly there was not in this case the facts of the accident clearly set out in the parishioners very little dispute about them driver went through the stop sign no question he had knowledge that there was a stop sign but he slowed down he looked both ways he still had all the lights flashing on the vehicle and had blocked the siren he turned off the siren because he did not want to bother the nursing home where he was going to pick up the hypoglycemic patient both parties acknowledge there is a tree that blocks the view and to be sure that there was nothing coming he edged past that tree and was struck in the middle of the intersection by the plaintiff vehicle it pushed the end billets some fifty feet down the road and turned over the crowd held after viewing all of the evidence most favorable to the plight of that there was no evidence of a heightened state of mind we cited to the court the bosun fifth district nine hundred eighty seven the williams case first district two thousand and seven no activation of emergency lights or siren not constitute worldful on one didn't stop and didn't have a clear view negligence there of heightened state of mind required are let's talk about the prospective versus retroactive application and interestingly started out with the manure decision with course prop that all of this and the court here said yes we're going to apply it in the future but it's also going to apply to the party that brought it here we brought it here it should apply to us in our brief we cited the major substantial changes made by this court in the past twenty years thirty years for instance comparative negligence used to be met recent no recovery and now we have a course comparative applied both prospectively and retroactive we've had major decisions such as this to the fifth district applied prospectively and retroactively sub rosa of course the plaintiff in this case wants to keep that judgment  say ok the rest of you well you don't get the benefit of this but as for this party that brought the suit this decision is dicta doesn't apply to you although you raise the argument and you brought it to the court you don't get the benefit of that's an equitable the major rule the constant rule the normal rule is that it is both prospective and retroactive there's been no reason shown here why that rule should not be applied to kill counsel for the plaintiff indicates that he doesn't understand what the difference is why there is only no cond why there's no conflict between the two did not answer my did not answer my position with respect to the nature of the act involved one specifically limited itself to negligence and immunities and only in emergency situations while the other clearly is a much broader situation council says well that doesn't make any difference because tool five after all it provides a whole list of privileges which is what's in the code but then follows it with well he didn't say this the due regard so that none of those privileges apply none of those are of benefit to you because you still got to overcome this quote due regard test and counsel says well what you should do is to take it a step at a time and look at it do and then regard but that takes it out of the context if you wanted to hail a statute that said you must operate your vehicles in a non negligent manner then so state if you want to say d regard and prospect of she's going to regard and reckless but not willful and wanton then so state it but don't leave it in the open with the reckless conduct not provided for in two in one zero seven provided for in nine or five that's the problem that the vehicle code has it is a very general standard and on the other hand we have a very specific statute yes and finally counsel said quote it's gone quote it's history but he attempted to say that while you still have other provisions other things left what's left what would prevent the next person from coming up and saying the same thing well here's the fire department it's got the same for visions and you have the same governmental totem unity act and after all you threw it out when it came to ambulances what bad does is to piecemeal approach and completely ignore the intent of the illinois state legislature there is no way that this court if it rules in favor of bradshaw this court is overruling the four other appellate court district cases which came down specifically on this issue plus it is written from the legislative and acme governmental to a munity stetch we suggest that that is inequitable we suggest that that is not a function judicially to be determined that is a function of the state legislature and in this regard we have two statutes they operate in different spheres the judgment of the fifth district should be reversed thank you to both counsel for your arguments today case number one one two five two five james harris versus thompson will be taken under visors agenda number five