No. 2-09-0772 F iled: 8-11-10

______________________________________________________________________________ I N THE APPEL L ATE COURT OF I L L I NOI S SECOND DI STRI CT

______________________________________________________________________________ DI ANNA SHI RL EY, ) Appea l from the Circuit Court ) of Ka ne County

. Plaintiff-Appellant, ) ) v. ) No. 08--L --425 ) BRUCE HARMON, ) Honora ble ) Robert B . Spence, Def endant- Appellee

. ) J udg e, Presiding

.

______________________________________________________________________________ J USTI CE BOWMAN deliver ed the opinion of the c ourt: Pl a in ti f f , Dianna Shirley , broug ht suit ag ainst defe ndant, Br u c e H a r mo n , f o ll o w in g a c o ll is io n betwee n plaintiff' s car and defe ndant' s snowplow. Arg uing that the doctrine of sovere ign immunit y applied, defe ndant moved to dismiss the action pursuant to section 2--619( a)( 1) of the Code of Civil Procedur e (735 I L CS 5/2--619(a )(1) (West 2008)). The trial cou rt grante d defe ndant' s motion to dismiss , and we aff

irm its decision. I . BA CKGROUND Plaintiff filed a complaint on J uly 31, 2008, alleg ing the following

. On Dec ember 1, 2006, she was driving west on Route 72. Def endant was opera

ting a snowplow and trave ling east on the

same road. Def

endant "lost control of his vehicle such that his snow plow blade and/or truck struck" plaintiff' s vehicle. Plaintiff alleg ed that defe ndant fa i l ed t o obey various traff ic laws, in that he: failed to keep a s ufficie nt lookout; drove hi s v eh i cle too fast for conditions; failed to decr ease hisNo. 2--09- -0772

speed in order to avoid a collision; failed to s af el y p as s plaintiff; and drove his vehicle with inadequa te brake s and in an unsafe condition. Plaintiff also alleg ed that defe ndant knew that he was not adequa tely

trained to ope rate the snowplow. Def endant moved to dismiss the complaint pursuant to section 2--619( a)( 1). He arg ued that

sovere ign immunit y applied and deprive d the trial court of subject matter jurisdiction beca use at the time of the acc ident, he was plowing snow pursuant t o h is job as an I llinois Depa rtment of Transpor tation (I DOT) highwa

y maintainer. Def

endant arg ued that the proper forum fo r t h e case was the c ourt of cla ims. Def endant attache d two aff

idavits to the motion to dismiss

. The first, his own, descr ibed his

em ploy ment with I DOT and further stated the following

. During defe ndant' s work shi ft o n Dec ember 1, 2006, he was "a ssigne d to clea n-up the acc umulated, compac ted snow and ice along " his permane nt route, which inc luded Route 72. At the t ime of t he accident, he was plowing snow

on Route 72. The vehicle' s strobe light was activate d and the plow blade was lowere d and eng ag ed. The sec ond aff

idavit was t hat of Ray

mond Sidwell, an I DOT super visor. The a ffidavit stated tha t when the acc ident occur

red, defe ndant was plowing snow for I DOT, in an I DOT vehicle, and on his assig ned route. Both aff idavits als o stated that plowing snow on state roadw ay s was an activity unique to I DOT hig hway maintainers. Plaintiff filed a motion to strike the aff idavits, arg uing that t h ey improperly contained

co n cl u s i v e leg al s tatements t hat pl owing snow on state roadway s was an activity unique t o I DOT maintainers. She alterna tively arg ued that sov ereig n immunit y did not apply beca use defe ndant brea ched duties ow ed by

ever y driver r ather

than duties unique to his employ ment.

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The trial court denied defe ndant' s motion to dismiss on April 17, 2009, ruling that this court' s decision in Americ an Family I n s u ra n ce Co. v. Seeber , 215 I ll. App. 3d 314 (1991), controlled. Def endant subsequently filed a motion to rec onsider with an acc ompany ing memorandum. Rely ing

on Currie v. L ao, 148 I ll. 2d 151 (1992), defe ndant arg ued that Seeber was not controlling and was otherwise distinguishable. Pla i n t i ff moved to strike defe ndant' s motion to rec onsider as simply

rea rg uing his initial motion to dismiss , and she also soug ht sanctions. Def endant disputed these

asser tions. On J une 24, 2009, the trial court denied p l ai n t i ff' s motion for sanctions, g rante d defe ndant' s motion t o rec onsider, and dismissed the c ase w ith prejudice. On J uly 16, 2009, plaintiff fil ed an "e merg ency " motion to rec onsider. Plaintiff reque sted that the court vacate its J une 24 order , g rant her motion to strike defe ndant' s aff idavits, and g rant her leave to file an amende d complaint and aff idavit. Plaintiff's proposed amende d complaint added the alleg ation that defe ndant cr ossed the ce nter dividing line and we nt into the westbound lane befor e striking her vehicle. I t also alleg ed that defe ndant brea ched his duty by failing to drive on the corr ect side of the r oadwa

y and y ield the rig ht of way to plaintiff. Plaintiff's affida vit stated as follows in rele vant part. There was one lane of trave l in eac h direc tion on Route 72. The snowfall had slowed down signific antly or stopped, and i t ap p ea red that both lanes of traff ic wer e plowed, with snow

rema ining only on the shoulder. Def endant was trave ling east and "plowing the eastbound shoulder and eastbound roadw ay ." Plaintiff did not observe any war ning lights on defe ndant' s vehicle. She moved her vehi cl e to her rig ht, close to the shoulder, and slowed or stopped. Stil l, defe ndant' s vehicle and its plow came acr oss the y ellow diving line, many fee t into the westb o u n d l an e, an d struck her vehicle.

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The trial court denied plaintiff' s motion to rec onsider. I t ag ree d that some of the para g raphs in defe ndant' s aff

idavits wer e conclusory but stated that even if it struck t h o s e p arag raphs, the aff idavits would stil l be sufficient. There fore , the t rial court declined to rule on plaintiff' s motion to strike the aff

idav i t s . T h e trial court stated that the case rema ined dismiss ed with prejudice

. Plaintiff timely

appea led. I I . ANAL YSI S On appea l, plaintiff arg ues that the trial court err ed i n granting defe ndant' s section 2--619( a)( 1) motion to dismiss , beca use the trial court incorre ctly d et er mined that sovere ign immunit y applied and deprive d it of subject matter jurisdiction. Section 2--619( a)( 1) provides f or the involuntary dismiss al of an action b as ed o n l ack of subject matter jurisdiction. 735 I L CS 5/2--619(a )(1) (West 2008). I n revie wing the gra nt of a section 2

-- 619 motion, we must interpre t the pleading s and supporting materia ls in the light most favor able to the plaintiff. Abruzzo v. City

o f P ar k Ridge , 231 I ll. 2d 324, 332 (2008). A section 2--619 dismiss al rese mbles the g rant of a motion for summary judgme nt; we must deter mine whether a g enuine issue of materia l fac t should have prec luded t he dis missal or, absent such an issue of fact, whether t he dis missal was proper as a matter of law. Raintre e Homes, I nc. v. Villag e of L ong Grove , 209 I ll. 2d 248, 254 (2004). We

re v i ew d e novo the g rant or denial of a motion to dismiss under section 2--619( a)( 1). Coun t ry Mutual I nsuranc e Co. v. D & M Tile, I nc., 394 I ll. App. 3d 729, 735 (2009). The I llinois Constit ution of 1970 abolished sovere ign immunit y but allowed it to rema in as the Gene ral Assembly provided by law. I ll. Const. 1970, art. XI I I , §4; see Currie, 148 I ll. 2d at 157. Using this authority , the leg islature cre ated the State L awsuit I mmunity Act, which provides that the State cannot be made a defe ndant or other party in c ourt except as provided in the Court of Claims

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Act (705 I L CS 505/ 1 et s eq. (W est 2008)). 745 I L CS 5/1 (West 2008). The Court of C laims Act g ives the court of claims exclusive jurisdi ction over particula r matters, including all tort claims ag ainst the State for da

mag es. 705 I L CS 505/ 8(d) ( West 2008). Whether an action is ag ainst the State does not depend on the formal desig nation of the parties, beca

use plaintiffs could otherwise circ umvent state immunit y by naming only state employ ees as defe ndants. Br andon v. Bone ll, 368 I ll. App. 3d 492, 504 (2006). Rather, whether an action is ag ainst the State depe nds on the issues raised a nd the re lief soug ht. Currie, 148 I ll. 2d at 158. Reg arding the issues raised, an action will be considere d ag ainst the State wher e: (1) there are

no alleg ations that a state employ ee acte d bey ond the scope of his authority throug h wrong ful acts; (2) the employ ee did not alleg edly brea ch a duty owed to th e p u b lic g ener ally independe nt of his state employ

m en t ; an d (3) the complained- of actions involve matters ordinarily within the employ ee' s normal and officia l functions with the State. J inkins v. L ee, 209 I ll. 2d 320, 330 (2004). Reg arding the relief soug ht, "[a]n action broug ht nominally ag ainst a State employ ee in his individual capac ity

will be found to be a claim ag ainst the State wher e a judg ment for the pla intiff could opera te to control the actions of the State or subject it to liability ." Currie, 148 I ll. 2d at 158;

see a lso J inkins, 209 I ll. 2d at 330. For the three -prong ed "issues" test, the first prong is not disputed here , beca use plaintiff does not arg ue that defe ndant acte d bey ond the scope of his authority as a highw ay maintainer. She also does not dispute the third prong , that defe ndant' s actions i n v o l v ed matters ordinarily within defe ndant' s normal and officia l state functions. Rather , plaintiff contests the second prong and arg ues t hat defendant breac hed a duty that ever y motorist owes to drive with due care , rathe r t han a duty arising solely

out of his employ

ment.

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The second prong is analy zed by the "sour ce of duty " tes t cre ated by the supreme court in Currie. J inkins, 209 I ll. 2d at 331. Under this test, the court must look at the source of the duty the employ ee alleg edly b re ache d in committing the neg lige nt act. Currie, 148 I ll. 2d at 159. I f the alleg ed neg lige nt act arose out of the employ ee' s brea ch of a duty that is imposed solely by virtue of his state employ

ment, sovere ign immunit y will apply and bar the circ uit court' s jurisdiction. Currie, 148 I ll. 2d at 159. On the other hand, if the employ ee alleg edly brea ched a d u t y imposed on him independe nt of his state employ ment, sovere ign immunit y does not apply

. Currie, 148 I ll. 2d at 159. The rationale for this distinction is that sovere ign immunit y serve s to pr event the State' s immunit y from being circ umvented in situations wher e the S t ate is acting throug h its employ ee' s officia l actions. Currie, 148 I ll. 2d at 159-6 0

. I n co n trast, if the employ ee brea ches a duty he owes reg ardle ss of his employ

ment, he is not entitled to immunit y any more than a private individual who brea ches t h e s am e d u ty , and the simple fac t that he is a state employ ee will not provide him with heig htened pr otection. Currie, 148 I ll. 2d at 160. Alleg ations that a st ate employ ee neg lige ntly oper at ed an automobil e gene rally do not fall wit h i n t h e doctrine of sovere ign immunit y , beca use "ne g lige nce that arises from the ordinary opera tion of a motor vehicle is b as ed o n t h e brea ch of the dut ies ever y driver owes t o ever

y other driver." Currie, 148 I ll. 2d at 160. Howeve r, sovere ign immunit y will apply if the state employ ee' s

manner of driving a vehicle is unique to his employ ment such that a lawsuit alleg ing neg lige nt driving could serve to control the State' s actions and policies. Currie, 148 I ll. 2d at 160. The Currie court cited with approva l Campbell v. Whit e, 207 I ll. App. 3d 541 (1991), wher e the appellate court h eld that sovere ign immunit y applied to a police office r who neg lige ntly cause d the death of a suspect during a high- speed chase

. Currie, 148 I ll. 2d at 160. The Currie court stated that the office r

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in Campbell was driving a vehicle in a manner in which only a g overnme ntal officia l was authorized to act. Currie, 148 I ll. 2d at 163; see al s o Ka waguc hi v. Gainer , 361 I ll. App. 3d 229, 244 (2005) (sover eig n immunit y applied wher e state trooper was dispatche d to an emer g ency and driving in a

manner unique to her employ ment in that it was authorized only for emer g ency personne l); Posti ch

v. Henr ichs, 267 I ll. App. 3d 236, 240-41 (1994) (sover eig n immunit y applies to case s wher e a police office r is char g ed with driving neg lige ntly while responding to an emer g ency ; in such situations, the office r may exercise cer

tain driving privileg es that do not apply to private citizens and are there fore uniquely rela ted to the offic er' s employ ment). The Currie court contra sted Campbell to the case befor e it, which also involved a car acc ident betwee n an office r and a motorist. The state police office r claimed that he was proce eding to a call for assistance outside his jurisdiction, but: there was some doubt about the vera city of his claim; responding to such a municipal call was not part of his normal and officia l functions; his contention that he was trave ling to a scene of an emer g ency was neg ated by the fac t that he admittedly trave led close to the spee d limit ; the re w as testimony that he did not have his fla shing lig hts activated; a nd any emer g ency would have diffused by the time he arr ived. Currie, 148 I ll. 2d at 162-63. There fore , the court rea soned that the office r' s activity when the acc ident occur red fell wi t h i n t h e ro u tine opera tion of a motor vehicle on a public street. Currie, 148 I ll. 2d at 163. The court stated that the office r' s "ma

nner of opera ting his vehicle at the time of the collision was not so uniquely rela ted to his employ

ment as a State trooper that he should be immuniz ed for his neg lige nce in car ry ing it out." C u rr i e, 1 4 8 I ll. 2d at 163. The court stated that its conclusion was supported by the plaint i ff 's alleg ations that the office r was neg lige nt in driving the wrong way on a o n e- way street, failing to

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maintain a proper lookout, and failing to control his vehicle, which wer e duties all drivers owed to

eac h other. Currie , 148 I ll. 2d at 163. W hile the afor ementioned case s involved motor vehicle acc idents with police off i ce rs , sever al case s have examined the applicability of sovere ign immunit y in acc idents with I DOT employ ee s . I n S eeber, a pre- Currie case that the trial court here relied on in initially deny ing defe ndant' s motion to dismiss , the defe ndant was also opera ting a snowplow. He was trave ling east

on Route 137, a road that had two lanes in eac h direc tion. At the intersec tion with Butter field Road, Route 137 also had a westbound l eft-tur n lane. Seeber , 215 I ll. App. 3d at 316. As the def endant approa ched the intersec tion, he noticed a disabled car on the median of the west side of the intersec tion. The car was partially blocking the inner westbound lane of Route 137. The defe ndant turned left at the intersec tion, stopped his snowplow part-w ay th ro u gh t h e turn, and reve rsed the truck in order to park next to the car and cre ate a more visible barr icade of the inner westbound lane to approa ching westbound t raf fic. Seeber , 215 I ll. Ap p . 3 d at 3 1 6

. As the defendant was turning throug h the intersec tion, he collided with a nother vehicle tha t was trave ling we st. Seeber, 215 I ll. Ap p. 3d at 317. Rely ing on the principle that claims based on neg lige nt driving are ou t s i d e t h e doctrine of sovere ign immuni ty , this court held that jurisdiction was proper ly in the circuit court. Seeber , 215 I ll. App. 3d at 318, 320. I n L andon v. J arvis, 255 I ll. App. 3d 439, 441 (1993), the plaintiff collided with an I DOT tow truck that wa s parke d in a lane of traff ic. The defe ndant submitt ed an aff idavit stating that he was

an I DOT highw ay maintainer whose job require d him to patrol expressway s and assi s t m o t orists involved in acc idents. He aver red that on the day in question, he saw an acc ident and there fore stopped his t o w t ru ck , activate d its emer g ency lights, and exit ed the truck to investiga te. The

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plaintiff then re ar- ended the truck. L andon, 255 I ll. App. 3d at 443. The a ppellate c ourt held that

sovere ign immunit y applied. I t stated that the plaintiff' s neg lige nce claim challeng ed the nature of the defendant' s job, which was to assist stranded motorists on the hi g hway

. Also , as t he driver of

an emer g ency vehicle, the defe ndant was permitted to park his truck on the highw ay , and his actions of stopping and investiga ting an acc ident wer e uniquely re l at ed to his employ ment such that the plaintiff' s suit alleg ing neg lige nt driving could opera te to control the State' s actions and polici es . L andon, 255 I ll. App. 3d at 443. The L andon court stated t hat u nlike the officer in Currie, whose opera tion of his vehicle was not unique ly rela ted to his position as a state trooper, the "de fenda nt's actions [could not] be divorc ed fr om his S tate employ ment." L andon, 255 I ll. App. 3d at 446. I n Kostopoulos v. Poladian, 25 7 I l l

. App. 3d 95, 97 (1993), the defe ndant was an I DOT highw ay maintenanc e worke r who wa s , p u rs u ant to his duties, parke d in a backup truck behind a

cre w patching potholes on the highw ay . The plaintiff collided with the defe ndant's vehicle. Kostopoul o s , 2 57 I ll. App. 3d at 96. The appellate court held that the defe ndant had no statutory duty to ref

rain from parking on the hi g hway , beca use t here was a statutory exemption for persons and vehicles working on the highw ay . Ko s t o p o u l o s , 2 5 7 I ll. App. 3d at 100. I t further held that

sovere ign immunit y applied beca use driving and stopping a backup truck o n t h e highw ay wer e unique to road repa ir work and the defe ndant' s employ ment, and a lawsuit aimed at the defe ndant' s neg lige nt driving could opera te to control the State' s actions and p o l i cies, in particula r I DOT' s policies and proce dures rela ting to road repa ir work. Kostopoulos, 257 I ll. App. 3d at 101; cf. L orenz v. Siano, 248 I ll. App. 3d 946, 952-53 (1993) (sover eig n immunit y did not apply , beca use I DOT employ ee was driving front l o ad er to work sit e and not y et enga g ed in work, as require d to be exempt from traf

fic law s).

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I n Starr v. Wa rd , 2 8 9 I l l. App. 3d 299, 300 (1997), an I DOT employ ee was mowing a highw ay median when the mower hit a concr ete ro ck , whi ch then flew up and hit the plaintiffs' windshield, causing injury

. The a ppellate c ourt held that sover eig n immunit y applied bec ause the defe nd an t 's o b l i g ation to mow the median arose only by virtue of his employ ment, only state employ ees would have the responsibility or authority to mow that particula r are a, and the defe ndant perf ormed his duty

in the manner

instructed by

his supervisors. Starr, 289 I ll. App. 3d at 305-06. The court also rea soned that allowing the plaintiff to bring a suit for failing to inspect the are a befor e mowing would aff

ect the State' s policies and activities reg arding mowing proce dures. Starr, 289 I ll. App. 3d at 306. Plaintiff arg ues as follows. Although defe ndant was driving his snowplow in the course of his employ

ment, his conduct in striking her car had nothing to do with plowing snow. This was also not a situation wher e his plow partially enter ed the opposite lane as h e t ried to clea r the snow. I nstead, he veer ed acr oss the cente r lane into oncoming traff ic and struck plaintiff even though she h ad pulled over to the side of her lane. Unlike police office rs responding to emer g ency ca l l s , defe ndant was not doing any thing pursuant to a specia l statutory g rant of authority applicable only to snowplow drivers, nor did he have the statutory authority to drive into other traff ic lanes or ignor e g ener al traff

ic laws. I n other words, defe ndant was not eng ag ed in a situation that would allow him to be driving on the wrong side of the road or in an unsafe manner . This fac tor distinguishes the case fr o m L andon and Kostopoulos, wher e the defe ndants wer e statutorily permitted to park on t h e highw ay , which would otherwise be an illega l and unsafe driving prac tice. Def endant' s duty to clea

r

snow was separ ate from his duty to drive with due car e. Thus, his conduct brea ched a duty imposed

on him independently of state employ ment, and under Currie, sovere ign immunit y does not a pply

.

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Plaintiff further arg ues t hat t here was e v i d en ce that defe ndant di d not have his emer g ency lights on, in that plaintiff aver red that she did not see any . Acc ording to plaintiff, the absenc e of lights would further mean that defe ndant was not car ry ing out any uniquely g overnme ntal function, beca use any exemption from traff ic laws would depend on comply ing with emer g ency reg ulations. See 625 I L C S 5/11--205(d) (West 2008). Plaintiff arg ues that the L andon court would not have provided the dr iver with sover eig n immunit y if the plaintiff ha d proper ly raised an issue of fa ct as to whether

the truck' s lights wer e oper ating

. Plaintiff notes that defe ndant arg ued below that Se eb er was distinguishable beca use that driver left his p lowing duties to assist a motorist wher eas defe ndant was still plowing when the

acc ident occur

red. Plaintiff ma intains that such a distinction is irrele vant beca use both de fenda

nts

rema ined within the scope of their employ ment at the time of the acc idents. Plaintiff contends that defe ndant simil arly abandone d his plowing duties when he veer ed onto the wrong side of the road, which the law does not permit and which was not part of defe ndant' s job. Plaintiff also arg ues that defe ndant could not have been plowing at the moment of the acc ident, considering her aff idavit that the road surfa ce was alre ady clea r. Acc ording to plaintiff, even if he was plowing at the moment of impact, it is immaterial beca use there is no specia l authority that would allow h i m to drive into oncoming traff

ic. Def endant provides the following arg ument. This case is like Kostopoul os, L andon, and Starr, beca

use at the time of the collision, he had been assig ned to plow snow on a state roadw ay and

was actively eng ag ed in plowing. Only an I DOT highw ay maintainer would have the responsibility and authority to plow snow from a state roadw ay . The fac t that his plow was lowere d and eng ag ed at the ti me of the colli sion rende rs L orenz and S eebe r inapposite. Plaintiff' s action cha lleng es the

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very nature of his job, and as in L andon, his actions cannot be divorce d from his state employ ment. The duties h e alleg edly brea ched wer e not owed to the public g ener ally independe nt of his state employ ment, and if the circ uit court ultimately enter ed judgme nt in plaintiff' s favor , it could control state policies and proce dures. Particularly , the State could decide to stop or chang e plowing methods to avoid simil ar litigation; close highw ay s to the public until plowing was complete, to the public' s g rea t inconvenienc e; or, based on the alleg ation that he was plowing too fast, the State could reduc e the spee d of snowplows, re sulting in long er de lay s befor e route s are clea red. Def endant arg ues that, contra

ry to plaintiff' s asser

tion that his conduct in striking her car had nothing to do with plowing snow, her complain t alleg es, at most, that he acted neglig ently (ra ther than intentionally ) while plowing snow and that his neg ligen ce cause d him to lose control of the snowplow, which in turn cause d the acc ident. Def endant further arg ues that, contra ry to plaintiff' s statement that at the time of the collision he was n o t ac t i n g p u rs uant to any statutory g rant of authority to state snowplow driver s, I DOT ha s authority over the g ener al s upervision of highwa y s constructe d with state funds (see 605 I L CS 5/4--101.1 (West 2008)) and the duty to determine the best methods of maintaining highw ay s (see 605 I L CS 5/4--101.5 (West 2008)), which would include removing snow and ice. Def endant arg

ues that I DOT cannot discharg e these duties itself but rathe r must ex erc ise them throug h its employ ees. Reg arding plaintiff' s arg ument that defe ndant was not exempt from traff ic laws as the driver of an emer g ency vehicle, g iven that he did not have his emer g ency flasher s on, defe ndant states that he never claimed that a snowplow is an emer g ency vehicle. He further notes that his aff idavit stated that his strobe li g ht was activated, and he ar g ues that plaintiff' s statement that she did not observe any lights is insuff

icient counter

evidenc e. See Hickey v. Huber , 263 I ll. App. 3d 560, 565 (1994)

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(witnesses' aff

idavits stating that they did not notice a g ree n car wer e insufficient to counter office r' s statement that he w as pursuing a g ree n car ). We ag ree with defe ndant that sovere ign immunit y applies i n t h i s ca s e. The question of flashing lights is a n o n i ssue beca use defe ndant does not asser t that the use of his flashing lights permitted him to operate the snowplow ac cording to the rules of emer g ency vehicles. The centr al question is w hether defe ndant' s alleg edly neg lige nt a cts brea ched a duty imposed on him solely by his state employ

ment or independe nt of his stat e em p l o y m en t. Although plaintiff arg ues that defe n d an t wa s n o t s t atutorily permitted to drive on the wrong side of the road, this is not a case wher e defe ndant is alleg ed to have intentionally driven on the wrong side of the road, like police office rs eng ag ed in high- speed chase s. Rather, plaintiff' s complaint alleg ed only neg lige nce. Plaintiff also arg ues that the law did not permit defe ndant to veer to the wrong side of the road; but no state employ ee has the authority to c ommit a tort, and if sovere ign immunity could be de fea ted by alleg ing a tort, sovere ign immunit y for tort actions could not exis t. J ackson v. Alvere z, 358 I ll. App. 3d 555, 561 (2005). That is, " [b] eca use sovere ign immunit y presuppose s the possibili ty of a leg al wrong by a state employ ee [citation] , and leg al wrong s are , per se, unauthorized, the rele vant question cannot be whether the employ ee had authority to c ommit t he leg al wrong ." J ackson, 358 I ll. App. 3d at 561; see also Welch v. I llinois Supreme Court, 322 I ll. Ap p . 3d 345, 352 (2001) (a state employ ee' s violation o f a p o l i cy , reg ulation, or statute does not nece ssarily prohibit the application of sove reig n immunit y ).

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I t is undisputed that defe ndant was plowing snow when the acc id ent occur red, which 1 distinguishes this case from S eebe r, whe re the defe ndant ce ased his plowing duties and attempted to assist with a disabled car . We believe that as in L andon, Kostopoulos, and Starr, plaintiff' s suit challeng es the very nature of d ef en d ant's job, which is to plow snow from state roadw ay s. Had defe ndant m ere ly been driving the vehicle without the p l o w bl ade lowere d and enga g ed, thi s case would be like L orenz, wher e the defe ndant was driving a front loader to a work site, and sovere ign immunit y would not apply

. Her e, in contra st, defe ndant was plowing snow, and the act of plowing

sno w is intertwined with, and cannot be divorce d from, the act of navig ating the snowplow. See L andon, 255 I ll. App. 3d at 446 (sover eig n immunit y applied wher e the "de fenda nt's actions [could not] be divorce d from his State employ ment")

. Thus, the duty that defe ndant alleg edly brea ched was to plow state roads in a

safe manner , which was a unique duty imposed on him solely by virtue of his state employ

ment. Fur

ther, as an independe nt consideration, we consider the relief soug ht. See Welch, 322 I ll. App. 3d at 3 5 1

. Her e, a judgme nt for plaintiff could operate to control t he S tate' s actions, specific ally

I DOT' s policies and proc edure s relate d to plowing snow, such as the speed or

manner in which snow is plowed. See Kos t o p oulos, 257 I ll. App. 3d at 101 (the plaintiff' s suit ag ainst the driver of a parke d backup truck could opera te to control I DOT' s policies and proce dures rela ting to road repa ir work); Starr, 289 I ll. App. 3d at 300 (the plaintiff' s suit could aff ect the State' s policies and activities reg arding mowing proce dures)

. Ac c o r d in g ly , s o v e r e ig n im mu n it y a pplies, and the trial court corr ectly g rante d defe ndant' s motion to dismiss for lack of subject matter jurisdiction.

Plaintiff's p ro p o sed amended complaint and affidavit allege d that defe ndant was plowing 1

snow on the road' s shoulder and eastbound roadw ay , which still acknow ledg ed that defe ndant was plowing snow

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I I I . CONCL USI ON

For the fore g oing r easons, we aff irm the judg ment of the Ka ne County

circ uit court. Affir med. O' MAL L EY and SCHOSTOK, JJ ., concur .

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