may please the court again for the record my name is linda out and i represent the plaintiff appellant karen wilkins and issue today is what i respectfully submit is an issue of first impression whether the emergency medical service system act shields the defendants from liabilities for injuries sustained by a non patient third party while the ambulance was driving without its lights or sirens on i submit the answer to that question is no and that the two facts that are critical for the court's consideration today are the status of the victim the fact that she was a non patient not within the ambulance and that the ambulance was driving without its lights and sirens on ok a couple other facts i'd like to highlight first i know the court has the formidable task of reviewing this case under juneau review so i'd like to highlight paragraph eight g b of our complaint where that is where we initially alleged that the defendants were negligent in the operation maintenance and control of the vehicle at issue the ambulance some facts are undisputed that this was a non emergency transport of a psychiatric patient veronica henderson was the emergency medical technician in the back of the ambulance and there is testimony by her that early on she checked the patient's vital signs and then she wrote in the captain's chair rhonda williams however at all relevant times acted as just the driver of this ambulance and she admitted in her deposition testimony that she hit the plaintiff some other points of agreement your honor in getting to the important issues today are first of injuries i think the case law is clear on the apps where it gets unclear is this particular set of facts before the court today whether it provides a shield from liability against the lawsuit my client filed and i think the court always has to start by looking at the course the language of the statute and the case law interpret it to determine the purpose i think a careful examination of the statute and the cases reflect that the purpose is consistent and many many cases that we've  history was discussed in the cases i have i don't know if there's anything outside of they have to mean you know that's always a challenge for us as counsel whether to proffer that whether has any evidentiary value or whatever but it is discussed within the cases and again looking at the bra cases and there's two of on the first one to eighty seven eleven thirty eight sixteen i'm going to first refer to the court to page nineteen where the court discusses the purpose is the purpose of this stanch it was to promulgated a system an emergency medical system to provide pre hospital care that is quote emergency medical services rendered to emergency patients that's important further in the brac decision going to page twenty two of the decision the court says after reviewing the language and purpose of the statute the court has determined that the e m s act applies specifically to providers of emergency medical services and then finally towards the end of the statute in your honor this may answer your question we're going down to page twenty seven twenty eight in the decision the court states however the legislature intended to encourage emergency response by trained medical personnel without the risk of malpractise liability for every bad outcome or unfortunate unfortunate occurrence and then if we look at the statute itself again the per the immunity is  immunity is provided for emergency or non emergency medical services and then later on it says or in an emergency the providers shall not be civil and liable as a result of their acts or omissions in providing such services obviously to whom are they providing the services the patient in the ambulance there's nothing in the statute or in the case law interpreter yet that says they get immunity against the world for negligent conduct that has nothing to do with the provision of medical services now in reviewing today in reviewing the record as the court has i also like to refer the court to some important testimony from miss williams because i think her status as a driver and again keeping in mind the conditions under which this ambulance was travelling it was dark it was around seven o'clock at night clearly a congested area busy intersection traffic was backing up there was testimony in the record that the lane in which the ambulance was traveling was on the outer lane due to inner lanes were stopping if not stopped and that's where the inner and center lane stopped completely to allow my client passage for her left turn but even though this traffic was stopping and stopped the ambulance continued at or what i submit was a pretty hefty pace for these conditions between thirty and forty miles per hour those are important facts and with that in mind i'd like to refer the court to miss williams testimony in her deposition this is at page c three eighty four in the record specifically pages twenty four twenty nine on page twenty four lines eighteen through twenty four and on page twenty five lines two through seven and i'd like the court permits to read those into the record because they're important the question to mr williams was let me ask you if you think of burnett or excuse me this  miss henderson nevada i'm sorry these are questions to miss henderson let me ask you if you think burnett were there any rules when you were approaching an intersection that was busy that you had to slow down or anything like that we were told to drive as if we would normally drive our personal vehicle so if we came to an intersection we would slow down stop if need be question this is when you're not operating an ambulance in an emergency service mode correct correct so w drive under the rules of the road as if you were driving your own car correct so she admits that when not operating as an emergency vehicle her training and understanding was to operate the vehicle in conformity with the rules of the road the illinois motor vehicle co ask you this if you know in terms of the sirens and lights are there certain times where you are required by law to activate the sirens and lights her answer not sure by law she didn't know what her because i think the answer can be found in the purpose that i've articulated in the language of the statute that the statute applies to the with respect to the rendition of the emergency services so that there's not a chilling effect that the paramedic sustains when providing those services and there's we can all we can come up with a million or millions old we can we can envision some hypotheticals where the patients being transported in an emergency condition are in a fragile state bumps on the road they're trying to get you to hospital and so you might sustain additional injuries there's a need to be better these people have to have with respect to the patient to do their jobs but your honor this is where i think the other part of the answer can be found and based miss williams testimony the illinois motor vehicle code she didn't know really at this time when they were not under lights or siren they were not operating as an emergency vehicle they were just a vehicle in the dark like any other car on the road there's no reason unless they're under lights or siren even if they're transporting a patient that they should get the benefit of this immunity statute and here's why because the illinois motor vehicle code specifically says that ambulances ambulance drivers have a duty to put their lights and siren on when conditions warrant it i think here is the big question of fact number one under these conditions congested dire did conditions warrant put your lights and siren on absolutely had they done it i submit a jury could find this accident never would have happened and that's negligent but more importantly we have to stand to tear the code and the immunity statute clearly the legislature did not seek to promulgating a conflict in the law these two statutes if our position in our interpretation as we proffered is accepted are completely consistent the driver driver who's not rendering emergency medical services has a duty to act reasonably given the circumstances and her failure put on the lights i don't care what the training was the law is the low off based on the conditions she had a duty to put the lights and siren on only you know had she done that she would've been acting as an ambulance driver and then standard would you suggest as well there were an emergency situation what would be the liability or her excellent question or thank you because i've actually thought about that i in preparing for today i was thinking of three scenarios trying to see what the court might ask me the first being would say this ambulance was under lights and siren and we had this collision i don't even think we get to the immunity statute because under the illinois motor vehicle code that ambulance has the right of way my client if she got an accident that ambulance under lights and siren there's no cause of action ambulance has the right of way scenario number two no lights and siren now one patient here we are with this unique set of facts and they're seeking they're seeking just because the driver was in an ambulance that nobody could see she has some immunity that the world doesn't know about that's dead that goes against everything the ra stands for putting people on notice reasonable foreseeable conduct traffic slowing down you know you have an obligation to drive reasonably and i think that scenario number three if this wasn't an ambulance and just another car or van clearly we have a lawsuit that goes to a jury so the real question for the court to hone in on just because she was in an ambulance do they get the absolute immunity against liability incurred by their negligence and their will for one conduct motor vehicle code says there's nothing that relieves the driver of an ambulance from acts of negligence negligence or will wanton conduct the legislature had both statutes around for decades that could have caused cross in stem they could have said in the n s which they invented a couple times that it it applies to drivers they could have said in the motor vehicle code that there is some type of immunity they didn't give that to drivers so i think we you know we the law is the legislative scheme cannot be promulgated to create a conflict that they have to be interpreted consistently and our position gives consistent interpretation but minimally and this brings us won and i understand and so then the issue becomes is there a need or an obligation to raise an affirmative defense to an affirmative defense and i submit in record i think maybe that maybe that would have been the better practice but the abundant that affirmative defense is can be raised by way of summary judgment proceedings dozens and dozens of cases to say that because again the fundamental question is always did the trial court have an opportunity to pass on this argument and it did the work for and won an argument with four corners of the summary judgment proceeding and again the courts interpret in this law and the record you know follow and i submit there are facts to support it will form one cause of action unless the court has any furthe if if the purpose and the reason for the end must act is to be given any real fact than it has to apply in this circumstance and i'd like to first state why i think that generally but i also think that during that on opponents argument this morning we've gone somewhat astray from what the real issues are as they were presented and as they should be looked at in this case and i'd like to try to get us by back on to the right track s act has been recognized by our supreme court as a comprehensive scheme to regulate the provision of services by emergency responders throughout the state the supreme court in both the responders are dealing with medically fragile patients which is why they needed emergency or i'm sorry a medical transports as opposed to just any other car or cab they're dealing with medically fragile situations even when what they are operating in a non emergency medical transport situation there's always the chance that that patient in the back of the ambulance who is being monitored who's vital signs are being checked who receiving that sort of medical care and attention there's always the chance that that can turn into an emergency at any time and it's a high risk profession potentially and the product case that was cited recognize that we want to encourage residents to become an emergency responders becoming mts it's an important function for our state and unless these is can operate with this sort of limited immunity then they will be discouraged from entering the profession and they will be competed in during their job and that's true whether we're talking about the patient is receiving patients that's as to whether or not a provide some unity to third parties would wouldn't you agree the statute indeed is silent on that point well if you ask if it explicitly references third parties that's correct but i'm the first so it's that i would say that it's implicit in the statute that it applies to third parties the driver of this emergency or not an emergency situation can act like a lunatic on the highways and drive on the wrong side of the road well driving like a  parties and we're going to excuse them from maintaining the due regard for the safety of others isn't that what you're saying the vehicle code no longer applies only the u no i'm not saying that at all because if you look for example at and this brings up an issue that the plaintiff has raised now as a highlight of the argument of the world was not really s five slash twelve dash to fifty million it basically provides that vehicles are prohibited from using flashing lights unless there's certain exceptions one exception  if you're an ambulance that's actually in an emergency situation so first of all just to clarify something that appellant's repeated raising of this issue the driver cannot just simply turn the flashing lights on it has to be required under the vehicle code yes the drivers do have to comply but the vehicle code and the vehicle code if you look at various sections for example that section there's five slash twelve dash six or one point one that deals with traffic control signal preemptions of faces and there's five dash dash of heaven dash fourteen twenty one conditions for operating your vehicle each of those statutes and i'm sure there are others i just will town a few as examples each of those recognizes that you have a responsibility to follow the rules of the road and there's limited exceptions and if you're an e m t and once under the act and if you're responding to an emergency then you do get certain exceptions like you don't have to make a full stop at a stop sign or you can exceed the speed limit but you're still supposed to use due care so those conditions are still imposed on the driver now if the important that they have the same unity because they are often called upon to drive under on in a manner and under circumstances that are different than a regular driver of just an ordinary vehicle not to mention that they're if you think about it if we are going to carve out right ability to third parties then we're exposing the e m t is to the very risk that we're saying they're supposed to be protected against because when we're driving on the public roads and you're driving with the rest of the public and most accidents are not single car or accidents it would make a difference i was not a person that ambulance yes that would make a difference literally yes big difference here is that there was a person in the ambulance but there was no mercy situation better than the fact that person was then and it changed i know what what changes a is that there was non emergency medical transportation going on and that's right the statu reference says the statute applies to anyone who in good faith about its emergency birth non emergency medical services in the normal course of conducting their duty is then they're not civilly liable as a result of the medical services the statute which is three point one zero subsection g says that there is medical services rendered to patients whose conditions don't meet the definition of emergency during transportation of such patients to at issue there but the quote talks about is that the transportation of the patient is part and parcel of the services that redish it and that's why the court takes the next step in that case and says well  transporting is part and parcel of the services then certainly locating the patient in the first place is part and parcel of it so i think that our supreme court has made it clear that the transportation part of this is encompassed with and we act now the court i'm sorry the legislature specifically included the phrase non emergency medical transports within the statute so that now it is clear explicitly that it's the intent of the legislation to provide systems for emergency medical services within the state and it talks about it's for the purpose of quote a nation and integration of all activities within the state concerning pre hospital and enter hospital emergency medical services as well as non emergency medical transports and the overall planning of valuation and regulation of pre hospital emergency medical s at the ones in particular that deal with section two dash two zero two that's the section that talks about having immunity for acts or missions in the execution or enforcement of an iraq well if you look at all the cases that involve for example high speed chases and this is the typical scenario right where the police officer is chasing the suspect and what the plaintiff here would call the innocent third party is the one who ends up getting hurt as a result of the high speed chase  the most cases and we cited just a few of them and i preach shutters worth urban crack and i'm sure there's many more but in each of those cases the crate never questioned whether the third party whether the immunity applies to the third party although that statute also doesn't explicitly say you have no right ability to anyone including innocent third party weren't the ones that were the intended object of your enforcement of ironic if you look at all those cases the current looks only at what's the police officer enforcing the law yes as to the suspect he was and forcing the locking rez trying to arrest him well i pursuing them whatever he was doing to enforce the law as to that suspect that innocent third party that really had nothing to do with them but the clear type and hesitated to apply the immunity statute in that context to third parties and but isn't it because the purpose behind it toward a new year to immunize government actors we determine there's many many reasons why government should be sued it all because cripple well that the financial aspect of it might be different but you're saying is that the identical purpose i think there's a different purpose which is equally important valid is the one recognized by the legislative intent and recognized by our courts that have interpreted the statute which is that providing these sort of services certain things function in our state and we have to encourage people to become emergency responders and we recognize that they are working in often very existence circumstances and so it's important to provide this immunity in recognition of that and let's not forget as well that these it's the ambulances they're governed by the department of public health that there is a very strict regime of administrative codes and statutes about how they have to operate t's are subject to suspensions or fines if they don't operate properly this isn't just because it's a non emergency transport this is not the same as just any old crush driving black letter case law in illinois that provides that deaf in the firmament of defense has pled and on the face of it would preclude your claim then there is an obligation to amend your complaint to plead around that which the point of never to and  so they never they never preserve the issue properly  if your honor so i will be brief couple of points i'd like to make i agree with counsel that because this was a non emergency transport it's not the same as all the other cases with respect to the troika munity had cases specifically the williams versus brown there the police car was under lights and siren and that is very important and i'm going to tell you why where the e m s ass act is silent the illinois motor vehicle was screaming out why this has to go back to the jury counsel reference section six twenty five i all c s five day ash slash eleven days fourteen twenty one i would refer the quote to this and that deals with the conditions for operating ambulances and rescue vehicles and i'm going to be very succinct se three dealing with lights and sirens they call them lamps in the statute it states the air force said siren and lamp or lamps shall be in operation at all times when it is reasonabl necessary to warn pedestrians and other drivers of the approach they arrive during such trip a journey doesn't matter the reason if the conditions out on the road weren't lamps or siren it's mandated to turn those minimally miss williams the driver had this obligation possibly you know there might be we could separate miss henderson in the back from mr williams that miss williams was not providing any medical services she was a driver subject to the statute section five b also says the foregoing provisions do not relieve the driver of an ambulance or rescue vehicle from the duty of driving with due regard for the safety of persons nor such per provisions protect the driver from the consequences three resulting from the reckless disregard for the safety of others this statute this provision in the motor vehicle code clearly i submit removes any argument that there is a new unity for the driver for negligence misconduct that statute is screaming out that this goes back had the legislature intended to give immunity they could have done it there or they could have cross reference to set shoot they didn't do it this case had no exit circumstances and with regard to any questions regarding waiver as the court well knows most at best it applies to the parties not to this court were here i'd be half of the plaintiff she's seeking