the next case our call of the docket is agenda number twelve ok summer one zero nine five four one christopher recent michael martinez versus the city of chicago coun officer came upon a scene found some kind of a disturbance going on put an individual in the back of his squad car the individual decided that he would escape he had been cough so he would be able to escape rather than running away he noticed that the keys are in the car and he took off in the squad car one and then another police officer joined in pursuing that individual lol who ultimately caused the accident at about a mile away that  anticipating that is not my first question your honor but that question was never resolved in the trial court it's pretty clear that plant a five year that he was put under arrest it's also clear that there was testimony by one of the supervisors think was from polo that he wasn't in custody and he wasn't under arrest and the jury was never asked to decide that point and no one ever actually called for a ruling by the court on that point so we don't know what the jury thought and i don't know if i could tell this court i can argue both ways that he was under arrest very was not under arrest it simply hasn't been determined i know that during the course of the trial played this counsel said he's under arrest but i think if you look at volume eleven page thirty four we also pointed out to the court and i think that's pretty late in the process that the jury doesn't know when it was made that decision for maybe he was just there so it's very difficult to say if he's under arrest or not under arrest and if he's not under arrest then the whole four dash one of six escaping prisoner argument i think falls for that a long answer but that's about the best i can do because i don't have a record that just me a better answer it just wasn't there on the first issue i want that i was the plaintiff prevailed in the trial court on a general verdict the issues that went to the jury were leaving the key in the car to facilitate  question of whether or not the the person in custody was actually in custody was an escaped prisoner assuming he wasn't escaping prisoner for dash one of six of course provides immunity for injuries inflicted by an escaped prisoner the  inquiry but our point is that that does not in the end end the inquiry because there was more to this then an escapee prisoner we have the conduct of the other people that were involved that were separate and apart from that we have the conduct of the officer leaving the keys in the car that facilitated or led to the gentleman using the car as a means to escape and maybe more importantly we had the conduct of the two police officers who pursue music isn't there always some which in and of itself and i know you have arguments somehow and as you get to that later we employ a willful want an exception from another section sort of unity act of section that doesn't have it in it but you're saying we have more than the kind of the gaping prisoner yes and my question is there is an escaping prisoner exception if you think about if there's some reason that the prisoners able to escape right then again for the officer was something i did yes i would think that and i would think why is this any different probably frankly there's going to be some some element somewhere he should to escape if you've escaped somewhat he's made a mistake someplace along the line the mistake here was not restraining him and our point is that you don't look to only the conduct of the officer in this case or leave who did not put cuffs on the prisoner thus allowing him to escape you look to the other conduct different conduct for example i think the strongest point the pursuit did not have that the pursuit the pursuing officers did not allow him to escape so once you get the pursuing officers involved you have a new conduct separate from just gaping prisoner and that's why i went to the cases from the foreign jurisdictions it's very difficult to find a that anytime somebody makes a mistake in the in the law enforcement and somebody is released into the community the city can be sued for everything that person dawson i cited i think it's another texas case where somebody's car was stolen by an escaped prisoner and he the damage to the car but this situation once he escapes you've got a new element to the escapee and that's the pursuit and that changes the picture and now you've got the question of and yet you have a law enforcement  liability if you have an escaped prisoner pennsylvania says there's just no liability at all at all if you have a criminal act of a third party wrong if you if you look at pennsylvania law in this case law was a criminal but the case before it did not only involve acts a criminal acts with third party they also involve pursuit and the court said we're going to on monday if you would these two things and we'll play the toward immunity they can argue the immunity they can argue toward immunity maybe they can argue toward a military unity about escape but they cannot argue toward immunity on the law enforcement side it's a separate question it was the same situation in a texas case where somebody left the key in the car john escaped from jail and obviously this justice thomas point out somebody left somebody's law allowed that person to escape when he got outside to ricky's in the car he took off in the car and again the court said we're going to look at two different issues the new jersey court felt the same way new jersey court said that we can on bundle these things that the conduct of later actor and that would be the pursuers can change what happened on the stage when the later actors come into play i think that sort of fits right in with th court's holding it just met when somebody comes in and changes what's happening and that's what this court required as a prerequisite for tort immunity that somebody come and change the status quo these two pursuing officers change the status quo because they caused liability that the texas i think the texas case said would not exist if i escape and then simply as a result of my being an escaped prisoner i harm someone i can sue the city because i'm out of jail i rob someone's store they can sue the city because i'm out of jail i get out of jail and i steal a car they can sue the city my closes car that's one conduct so i don't know why it only applies then to immunize the city when the escape  exactly that's precisely my point that we have more than one proximate cause here that's what the other cases around the country have basically held if you got more than one proximate cause you've got you've got the escaping prisoner and you've got the content of the police officers which caused him to flee recklessly and that's that's an issue that's been decided as a fact question that's been decided for the planet and when that happens we're saying that the legislature didn't mean to immunize the city for that separate conduct it's pretty clear that the i think it's pretty clear that chasing this gentleman aggravator exacerbated or changed the risk what if we would if we look at these two clauses in which either one could apply certainly the act deals with the facts at hand because before the court feels the need to find out one rules over the other think the first question is can you should both be applied and if you have two kinds of conduct escape plowing escape and pursue it then why do we write is the court need to pick one and apply it over the other i think the court's been loath to do that for the most part is that the general rule has been to try to apply these statutes as best the court can to make both of them happen if you will to make both of the goals come true and it seems pretty clear that the legislature was concerned that when you're recklessly enforcing the law you're going to create problems and the police pursuit cases are the epitome of reckless and forstmann to the why me that's almost always where these cases come from i could just as easily argue that when the legislature was looking at two days to go to that had you know this pursuit in mind that's making it the more percent but the more specific conduct i'm sure there's more final language that could be used to do that but they didn't they left these two statutes side by side and they lease three other states have been able to take this concept and carry it forward because there's a motivation behind it they don't want the legislature does not want officers using reckless force at least the injuries that was the testimony here even the defendant agreed if you pursue here under these circumstances officer beth through another witness said you should be drawn and quartered it's a violation of my oath to do it under the circumstances so the if the court's going to make this a four dash one of six cases in a police pursuit case then the court is going to have to take the other goal of the legislature which is to safeguard people at least to some extent in enforcing the law and put it to the side and th two dash two all two enforcing the law liability for the immunity for enforcing the law and then it's exception does not apply if the plaintiff does not name the individual police officers as defen there are other cases that have come to the same conclusion the porch collapse case where an anthony the e two case tonight called case of the differences and to end violence this question of whether you need to name the individual police officer deck that everybody's agreed to that and where the plaintiff there was trying to use to dash to want to create a duty because because the court where starts with the premise there was no duty owed so plaintiff tried to take two or two and prisoner hit the exactly exactly the injury was directly inflicted if if the police let's assume the police officer had struck our car because the injuries i'm sure the city would use for dash one o six and say it's still a rose i was it was it was inflicted by the conduct of in the city has agreed with that you're out of the city has agreed here that to dash tomorrow to a price the city's only argument is that for one of the six trips that the city's already apparently it's not apparently they have agreed with what your honor just said that but this is a police and force me case and that if this court they don't have any trouble with that as i understand it this court ruling in favor of the plates was said that the police can be liable for police pursuit well that's always been a long illinois unless the court's going to chase that that's how we prevailed in the hudson case i don't think i mean that's a misunderstanding that and i have to make a difference is that in this case unlike some of the other chase cases in illinois it's an escaped prisoner as opposed to just somebody on the street and i recognize that distinction but then my question is does the legislature really me that if there are two events and that that gets me back to the that's a gato analogy which it is my argument than a nutshell that's where the police officers come to the house  same set of facts and after the accident fatta gado and the second hypothetic my hypothetical they find out that the drunk driver happened to be an escaped prisoner under your what your honor just said the first case where he's not an escaped prisoner there is liability on the part of the city entered to test to go to and the second case even though all the facts are the same and are still in force in the law there won't be any liability because there was this partial quote is that he was an escaped prisoner that's that's the difficulty i see with arguing and stiffed i'm not going to criticize a brief they have their way of arguing they want to trump case a trump speed we're just saying this court can live with both side by side without doing any harm to anybody and still carrying out what i presume would be the legislature's intent that the police chase cases have been on the books for a long time and people around the country at least three other states we've been able to locate don't have a trouble don't have a problem in toward immunity with on bungling the case which it at least with your eyes now as you would be contrary to which i think would be one step below being a prisoner and all i'm saying to the court is it's just not clear where he was if i was on the jury i would have found he was in escaping prison or very very frank with you but i don't know that i wasn't on the jury and we don't know what they did it's just not a clear point this court has repeatedly made clear that the provisions of the toward immunity act are to be applied as written without exceptions or limit limitations the legislature did not express this morning i will explain why one provision of the acts action for one of six p bars of pla when their car was struck by low who had escaped police custody and was fleeing the stolen police car was a prisoner he was a prisoner prisoner your honor and this was an issue that was was not the first time any question has been raised about in the back of a mark squad car after he had caused an accident and was trying to flee of course officer leave briefly forgot that the car that he was driving to didn't have a protective screen between the front and the back of a car ordinarily just putting him in the back would would prevent him from leaving it was that as officer leave admitted mistake that allowed lho to jump over the front seat and steal the car no plaintiffs now say the low status whether he was arrested or not or whether he's in custody is a fact question the jury needed to resolve this is frivolous and i think disingenuous in light of the way the case has been litigated because that trial the plan to specifically took the position that low status as a prisoner was a question of law it was established beyond question and that it actually said the jury should not have the jury should be told this is an issue that they that they don't need to decide their position was that for one of the six applied but that it didn't extend a willful and conduct because they believe that there was an exception based on two twelve two which we discussed in our brief will discuss further here but that was their position a trial and they were correct to make that concession because whether a person is in custody is an objective legal question depending on whether a reasonable person would feel free to leave under the circumstances court's regularly make that determination as a matter of law in criminal cases dealing with motions to suppress or in civil cases that that was the conduct  that there was the actually there was no there should be two findings one livea was the conduct of the police officer but the conduct regarding the escaped prisoner and then the conduct of the other officers is another  agree with that potentially we don't agree that the pursuit was a proximate cause we certainly agree that officer leavis conduct was a proximate cause but but what what caused the damage to the plant i think there's a dispute about their conduct was the damage that's the plaintiff's argument right but the as far as the issue of whether livia did he's out anyway right that's right that's right but as to whether for one of six be applies it does depend on low status whether he was whether he was put in custody it was an escaping prisoner and that issue you know was is can be determined as a matter of law it's not something the jury needed to be to decide and the plaintiff's position the trial was that was was that was the case now had the plaintiffs made an issue of custody no reasonable person in los position would feel free to leave so that if he was if you asked that question of whether it was custody he was in the police car driving it by other police officers any person who's taken a police car and pursued by police officers i think what you're asking us to do is to have this exam from our jesus no no that's not true your honor i mean he but the thing that brings low as an escaping prisoner within the meaning for one of six is that he was held in custody in other cases the you know in most police pursuit cases the police the police you know are pursue if the person that was not in custody before the pursuit was started then for a one of six doesn't apply so so nothing is changed in cases that don't involve escaped or escaping prisoners but as far as the question of low status as an escape for escaping prisoner  that i think there really shouldn't be any legitimate question about that at this point i think plaintiffs primary argument is that you know assuming losen escaping prisoner for one of six doesn't apply because they're complaining about something other than allowing him to escape  the problem with the plane is positions completely disregards the language of the statute section for one of six because clear it applies when the injuries are inflicted by escape or escaping prisoner it doesn't matter what conduct by the defendants are alleged is alleged to have contributed to the injuries whether it was allowing skate whether it's in this instance of course there was the means of escape the car which made load more dangerous and the pursuit in this respect for a section from one of six is notably different than most other sections in the act the vast majority of sections say things like for example section four zero one zero two there's no liability for the failure to provide adequate police services other immunities referred to there's no liability for injuries caused by the failure to do one thing or doing another section for one of six very clearly and i think distinctly doesn't have that sort of language about the causation and the plaintiffs i are really trying to read section four one of sixty as if it says that there is not liability for injuries caused by the failure to revenge a prisoner's escape the legislature knows how to write a statute that refers to cause it's done in every other case could have done it here and didn't do it and so alternately what plaintiffs position comes down to saying that it doesn't apply to things that happened after the pursuit or or after the the and of course the you know one of the most important rules of statutory construction is that statutes need to be applied as written unless the result is observed and plaintiffs i think note you know as a reasonably conclude that a skater escaping prisoners are people who are particularly difficult i mean police officers pursuing an escape or escaping prison or these are people we can't expect to watch where they're going they they're probably likely to act especially dangerously and that there's there's you know liability for flowing from the kind of injuries that they can inflict that there shouldn't be liability for now this court might disagree about you know whether the the city's reading of one of six b is so broad that if the officers pursuing had hit someone that we would claim section for one of six b because the pursuit you know the pursuit had to do with an escaping prisoner we wouldn't because the plain language of section four one of sixty wouldn't support that reading the foreman of sixty refers to injuries inflicted by an escape or escaping prisoner so we wouldn't apply because if the police officer says hit someone you know although the escaping prisoners escape would definitely be a cause it wouldn't injuries wouldn't be inflicted by that person and plaintiff might say that that's a logical but it's actually not because police officers in a pursuit even though there's exigent circumstances you know meet can be expected to  you know even if they might violate traffic devices keep an eye out and minimize the risks where there's no such control over the actions of the fleeing person and so for one of sixty seems to you reflect a judgment that immunity it sort of applies this general immunity for failure to provide police services at the court to smash when it was talking about the sort of different factors that play into whether to talk to applies it said two two zero zero two applies you know once once an officer exercises a degree over the control over the situation and could alter the situation for better or worse you're no longer talking about a failure to provide services you know then then you're into the realm of two two of two here we don't disagree but two two of  going back to joe he really doesn't it does not in addressed the interplay of one of two into two or two at the time it was decided the court i think was operating under case law that basically said willful and wanton conduct was an exception to all the provisions of the act and didn't are mutually exclusive or there's very little if any overlap in that if something either is is a failure to write services or it falls into two to up to and here again you have a clear overlap between section four a one of six the and two most of the other statutes you know really bear no resemblance to the illinois statutes and talking about you know different conduct or different can proximately caused things and you can you can separate you know what different causes are of injuries section four of one of six that the new jersey status statute the plaintiffs call a pursuit immunity in fact that the new jersey courts have read is the pursuit immunity that reads very much like section four one of six b it says that public entities aren't liable for injuries caused by escaping or escaped prisoners it's broader however it says not only escaping are state prisoners but are scaping risk persons as well as persons resisting arrest and so in that that is a very broad pursuit immunity because it applies not only to people who are in custody but anyone fleeing from police new jersey courts a look that at that is basically that's a pursuit immunity it looks very much like our for when i was six i'm the only way illinois legislature decided to enact a narrower version i believe both illinois and new jersey's laws were are based on california's turn unity act but illinois decided to limit their suit to people held in custody but again it is just based on the identity of the person inflicting injury not on cause  and it it applies and it the legislature should certainly in basing the immunity on the identity of the actor inflicting injury and not on the conduct you know the difficulties presented by escaping prisoner they also the legislature of refrain from using the word cause they said inflicted to sort of take out that you have course we knowledge that different things can can be a cause of injuries but it is based on the identity of the person inflicting injury and reading section two to zero two and four when i was six to give both of them a fact again it's important to give effect to all statutes reading section two two zero two so that it trumps section of six whenever both apply which seems to be plaintiff's argument other than they're saying that for one of six doesn't apply to this conduct which i think we've explained is meritless of it having to talk to control over foreign of six whenever both apply would effectively gut the immunity in section four when i was six feet because any cause of an injury inflicted by an escaping prisoner even if it's just allowing the prisoner to escape there has to be the basis for municipal liability cases giving it full fact playas of written in the in the cases that it applies in doesn't impinge at all on section two to zero two in the broad range of other cases to which it applies certainly to two of two isn't couched as a pursuit immunity to applies to officers shooting by standards when when trying to arrest someone so it's a very broad and the general rule of you know the important rule of construction that more specific provisions govern we think compels inclusion that for  was only an alternative holding in this case that was actually true in the way or case in anthony as well it hasn't been a controlling issue in any case other than barnes which you know plaintiff knowledge is is distinguishable from this case we we don't believe that it matter it should matter whether you know individual employees are sued or not to shouldn't control over section four one of sex vs absolute immunity in this case regardless and so it because you know low status as a prisoner was something that we did that should be determined as a matter of law no no one has ever you know plaintiff never questioned that until this late date he clearly falls this case clearly falls within the pla i will be brief although i know i've said that to this court in the past and it has not been a problem to his and we as bottom line is we have we have two cases one because of the keys in the car one because of the chase we have more than one proximate cause  and each of preach of the proximate causes was a cause in fact if i can go back to justice thomas analogy if he doesn't escape there's no accident but if they don't chase him there's no accident here so we see i think that logically proves there's two causes out there and that  comes the key as to whether he was in custody officers in music as e m y a page two twenty five and falling five said he was not even in custody that was the testimony at least if i have got it right here so even the even the city could to get if he was custody or not what was really going on in the course of the trial was that the city did not want to have this person be an arrestee under arrest because then the rules required him to be cough and they said he could be sure that the trial court was going to throw out the failure to restrain if we find him a prisoner one of the six pieces prisoner causes their accidents you you have no doubt at least to one of your physicians that the proximate cause of this prisoner philine if that's what we find because the you know has the duty of being responsible wouldn't couldn't that be a reason it leads to defeat the absurdity argument as to employing or one of the on the part of the public policy argument that it's not as if we want the court to open the door the police officers still have the immunity and i hope i've had under to dash to go to the only time the police officers conduct is being called into question is when you have a situation like this when they're when they're except again that does that doesn't address what i think is another public policy question that's the question of i place officers going to be totally immune for anything they did during the course of the chase and i suggest to this court that if the city's position is adopted and they've got a pretty broad definition of custody here anytime there's a police stop and i'm stopped and i take off and they chase me once i'm stopped i presume i know i'm not supposed to leave when the police officers walking towards the kind know not to go and i'm chased under the city's theory and this is public policy there's no liability on the police department because two days to go to cannot come into play because you've got somebody who was the sketch and that i've never seen or heard today on more public policy balancing the fact that you have a prisoner on the loose rather than a chase somebody you know it's needing you don't you have no idea why that person the officer has no idea why the person speeding but he's not stopping he's going after him has to be say could the legislature at least to defeat the absurdity argument look at it from the perspective of if there's a danger out there this guy is someone they know to be a bad actor they might have to take further chances as a result of the chances that that prisoner fleeing is taking him as a result of it absolute if if the prisoner causes an accident regardless of the fact that there's pursuit by the officer that that's i cannot argue with the logic of what you know what your honor is suggesting to me i can only argue that there are other forces that come into play in the public town policy question in and maybe in closing if i can just to maybe address it in part form for dash one of the six i would contend is actually the broader in many ways of these two sections can escape in prison or can commit all kinds of crimes for which of six because it's obviously it doesn't come up that often i'm not sure that answers the question but underneath it off somebody has to balance out whether or not we're going to  put the police officers desire till catch laurel over the public safety of those who might be endangered by by those efforts at the police department and that's what to dash to go to did it cures an immunity unless they're reckless and that should be the i think the controlling public policy argument unless the court has for the questions i appreciate the court's time and attention  case number one zero nine five four one researcher says the city