No. 2--07--0938 Filed: 11-4-08

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DISTRICT

______________________________________________________________________________ PIERIN O DeROSE, ) Appeal from the Circuit Court ) of Lak e C ou nt y. Plaintiff-Appellee, ) ) v. ) No. 06--MR--436 ) THE CITY OF HI

GHLAND PARK, ) Honorab le ) Ray mond J. McKo ski, Defend ant-App ellant. ) Judge , Pres idin g.

___________________________________________ __________

___________________________ _ JUSTICE O'MAL LEY d elivere d the opini on of the c ourt: Defend ant, the City

of Highland

Park, appeals the trial court's judgment in fa vor of plaintiff, Pierino DeRose, on p lain tiff's c omplaint seeking b enefits f rom defe ndant und er the Pub lic Safe

ty Employee

Be ne fi ts Ac t ( Em pl oye e Benefi ts Act) (820 IL CS 320/1 et seq. (West 2000)), which entitles cer

tain pu blic employees in ce rtain situations to recover their health care pre miums from their employers. On a

ppeal, defendant argues that plaintiff w as notre sp on di ng to an "e me rg en cy" (as that term

is used in the Employee B enefits Act) when he was injured and is theref ore ineligib le for benefits under the Employ ee Benefits Act. For the re asons that follow, we affirm the judgment of the trial court. At the bench trial on this action, plaintiff testified that, on the night of September 21, 2001, he was employed a s a patrolman for the Highland Park police department, a

position he had held for eight years. Plaintiff

recalled receiving a c all regarding a residential burglary

alarm that had beenNo. 2--07--0938

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triggered. Plaintiff acknowledg ed t he call and "got there as quic kly as [he could] and in a safe manner"; he testified that he did not activate the siren or

the over head lig hts on his po lice ca

r becau se doing so might have alerted any intruders in the residence he was approaching . Plaintiff testified that the weather was rainy

or "pretty

much of a thun derst orm," a nd th at the re was v ery littl e light ing, when he parked his police car in the dr iveway in front o f the re sidence . Plaintiff stated tha

t,
no rm al ly, two officers would respond to thetype of alar m he was investigating, but he addressed the situation alone because th e police departm ent was understaffedthat night. He recalled that he "sur veilled the fro nt of the house" while holding a flashlight befor e going around the side of the house, near

the garage, to "see if [he] could hear any thing." Plaintiff then "proceeded *** to the back" to check if anyone wa s behind th e house a nd to chec

k for ope n doors or

broken windows. When he reached the

back of the house, plaintiff noticed "a wood deck that had a c ouple steps going up that led to " a sliding glass door. Plai ntiff approa ched the sli ding glass doo r, "l ooki ng for any movement

in the house," and, as he approached, he slipped , fell, a nd sustained an inju

ry to his shoulder. Plaintiff continued his investigation and dete rmined tha

t the alar m had bee n a false alarm. Plaintiff testified that he did not know of any increa ses in fa

lse alar ms on stormy

nights. O n crossexamination, plaintiff agreed that he did not unholster his sidearm during his investiga tion. The parties s t ipulated

th at a city administrator would testify that the Highland Park police department

received 4,672 alarm calls in 2001 and 4,863 in 2000 and that less than 1% of those ca lls
were "bona fide." The administrator also would testify that the Highl and Park p olice department received "more than20 alarm calls" on September 21, 2001, a number that was not unusual "during
a power ou

tage or strong s torm." T

he witnes s would als o testi fy that the we ather that night was "stormy."No. 2--07--0938

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Matthew Malone y, wh o w as pl ai nt if f' s p ol ic e c om ma nd er th e n ig ht of pl ai nt if f' s i nj ur y, testified that he did no t consid er panic alarms a

lway s to constit

ute emer gencie s, becau se "[o]verw helming ly

they are fa lse alarms." Healso testi fied tha t electr ical stor ms or thund

erstorms
cause false a larms. On cross-examination, he initially said that he had a practice of telling officers not to trea

t alarms a s urgen

t if police had alre ady

investig ated sev eral fa

lse alar ms the same

night, but he later revers ed his ans wer and said that h

e did not in struct of

ficers not to take

alarm c all s seriously if police had alre ady

investig ated sev eral fa

lse alar ms the same

night. The trial court ruled that plaintiff reasonably and actually be

lieved that he was responding to an emergency

at the time he was inj ured, becau se the alarm required "immediate action." Defend ant timely

appeals
. Section 10

of the Emp loy ee Benefits Ac t provide s as follow s, in pert inent par t: "In orde r for [a] law enforcement *** officer *** to be eligible f or insurance
covera ge under thi s Act, the injury *** must ha

ve occu rred asthe result

of the office r's response to fresh pursuit, th

e offic er or fir

efight er's r esponse t o what is r

easonab ly believed to be an emergency , an unlawful act perpetrated by another, or

during the investigation of a criminal act." 820 IL

CS 320/10(b) (West 2000). On appeal, defenda

nt challe nges the trial cou rt's c onclusi on that pla

intiff wa s injured

while responding "to wha

t [was] rea sonably

believe d to be an e

merge ncy " so as to qual

ify him for be

nefits under the Employee B enefits Act. To the extent d efenda nt direc ts its argume

nt at the d efinition to be ascribed

the term "emergency " as used in the Employee Benefits Act and the application of that definition to the facts of this case, it presents questions of law, whi ch we re view de novo
. In re Marri age of Best , 228 Ill. 2d 107, 116 ( 2008) (c onstruct ion of a st atute pr esents a legal q uestion, t oNo. 2--07--0938

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be reviewed de novo ). To the extent defendant challenges the trial cour t's factual finding reg arding plain tiff's subjective belief that he was responding to an eme rgency , we r eview the t rial c ourt's finding to determine whether it is against the manifest weig htof the evidence. See Franz v. Calaco Development

Corp. , 352 Ill. App. 3d

1129, 1139 (2004) (questions of fact receive manife st-weight review). Our first task is to interpret the meaning of the term "emergency " as used in the Employe e Benef its Act. The goal of statutory interpretation is to a scertain and give effect to the legislative intent, and the best indication of the legislative intent is the languag e used in the statute. Bigelow Group, Inc. v. Rickert , 377 Ill. App. 3d 165, 169 (2007). A court must give the languag e of a statute its plain , ordi nary, and p opul arly under stoo d mean ing ( Alvarez v. Pappas , 229 Ill. 2d 217, 228 (2008)), and, whe

re the la nguag e is unamb iguous, the statut e must be g

iven eff ect witho ut resor t to other aids of construction ( Krautsack v. Anderson , 223 Ill. 2d 541, 553 (2006)). Alth ough the Employee B enefits Act does not provide a definition for th e w or d " em er ge nc y"
as it is used in section 10, the parties essentially ag ree on the meaning to be accorded it. Defendant directs us to dictiona

ry definitio ns that ind

icate that the word "emergency" mea ns "the 'urgent need for assistance or relief,' " or

" 'an unforeseen c ombination of circumstances that calls for immediate action.' " Plaintif

f cites a dictionary def

ining the term as " 'a sudden c ondition or state of affairs calling for immediate action.' " Our own re sort to the dictionary y ields a similar de fini tion: Webs ter's Third New Interna tional Dictionary def

ines the word "eme rgency " primarily a s "an unforeseen

combination o f circumstances or the resulting state that ca lls for immediate action." Webs ter's Third New Interna tional Dictionary 741 (1993). We a gree withthe parties that the above definitions ar e a pp ro pr ia te , a nd we in te rp re t t he wo rd "e me rg en cy" as used in the Employ ee BenefitsNo. 2--07--0938

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Act consiste ntly with the wo rd's dictionary def inition. A situation is therefore an "emergency" unde r the Employee B enefits Act where it is urgent and ca lls for immediate action. Our second task is to apply the above de finition to the case at hand to determine (1) whether plaintiff believed that he was facing an emer gen cy an d (2 ) wh eth er t hat bel ief was rea son abl e. In arguingt hat plaint iff did not face an urgent situation requiring immediate action, defendant emphasizes that he di d not use hi s overhe ad light s or siren to expedite his arrival on the sce ne, did not draw his gun, and did not call for backup assistance be fore beginning his investigation. We take defendan t 's recitation of these facts as a c hallenge to the trial court's finding regarding plaintiff 's subjective belief that

he was f acing a n emerg ency , and we b egin ou r analy sis withthat issue . Regar

ding the last two of the above facts, plaintiff's drawing his weapon or requesting backup might have indicated his belief that the si

tuation wa s more da

ngerous, but those factors are n ot dispositi ve of his view of the exigenc y of

the situat ion. (We a

lso note th at the las t basis for crit

icism--p laintiff

's fail ure to request bac

kup--se ems to derive from a trial exhibit in which the chief of police concluded in a memorandum that plaintiff did not fac e an emergency because, among other things, he did not use his overhead lights or siren and " did notawait a back-up officer." These criticisms seem inconsistent; they assert that he should have expedited his arrival at the scene but waited before investigating.) As for plaintiff's decision

not to activate his lights or siren, he explained that he opted not to do so because he feared ale rting any intruders in the residence but that he nonetheless traveled to the
scene as quickl

y and safely

as po ssible. We agree with plaintiff that it is possible that an officer would respond t o an emergency

withoutusing lig

hts or a sir

en beca use doing otherwis e might p ose the typ e of addi

tional da nger p laintiff

describ ed, and w e therefore do not c o nsider dispositiveNo. 2--07--0938

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plain tiff's failure

to use his lights or siren. In any

event, we see a distinction between a situation that requires "immediate action" andone that requires immediate and hurried action, and we think that the term "e

merge ncy " is broa

d enough to encompass not only a situation that nece ssitates the use of lights o r sirens to expedite police response, but also a situation in which police must respond immedi a tely

but need not expedite their arrival through such disruptive means. Plaintiff may not have viewed the situation here as requiring that he use his lights or siren to expedite his arrival at the scene, but, by traveling

to the scene without pause, he noneth eless acted in a ma

nner con sistent wit

h
a belief tha t the si tuation required his immediate response. We therefore will not disturb the trial
co ur t' s f in di ng th at pl ai nt if

f b el ie ve d h e w as re sp on di ng to an em er ge nc y. Defendant also disp utes that plaintiff's belief was reasonable, because there was evidence tha t most of the alarms the police department received were false, es pe ci al ly during storms. (Indeed, defendant notes, the alarm to which plaintiff was responding at the time of his injury was itself later revealed to have been a false alarm.) At oral argument, defendant continued this statistical argument to its logical terminus, by a sserting that a re asonable

office r would not ascribe

emerg ency

status to any type of call that is bona fide less than 50% of the time. We disagree with defendant' s approach. Even if a such

a call is eventually deter

mined not to be bona fide , an officer inv estiga ti ng the c all cannot know whe

ther it is bona fide until he has completed his investigation. Until the officer is able to eliminate the possibility of dange r, even if remote, h e must conclude that the call req uires his im me di at e a tt en ti on an d t hu s t ha t t he ca ll pr es en ts an em er ge nc y. Defend ant's contrary

approach would lead to at least two unfortunate results. First, defendant would have off icers de lay their re sponses to

potentia lly dangerous situations based on the notion that many simil ar situat

i ons in fact presented no bona fide need for response--it would have office rsNo. 2--07--0938

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assume that no em

ergen cy exists befo

re ruling out the pos sib ility of dang er. Second, defendant would have the st at is ti ca ll y li ke ly o ut co me of a c al l c on tr ol wh et he r t he ca ll is an em er ge nc y, regar dless of what a

ctually happenson the ca

ll. For example, under the facts of this case, if plaintiff hadslip ped on the d eck adjoining the house but afterwards discove red an intruder in the house, defendant would nonetheless assert that plaintiff's injury was not incurred in response to an
em er ge nc y, because, ev en if the call was bona fide , it was the typ e of call that wasstatistica lly unlikely to be bona fide . We do not think the Empl oye e Bene fits Act supports either result; we instead hold that a

callrequires an officer's immediate r esponse, and is therefore

an emer gency , until the offic er elimin ates the

possibility

that the c all is bona fide
. For the same reason, we

reject d efenda nt's ar gument t hat plain tiff's b elief wa s not rea sonable b ecause, even if t

he alar m initially

present ed an eme

rgency, t he situati on had ce ase d bein g a n emergency

by the time plaintiff was injured, w hen plaintiff had already

investigated and found no signs of burglary . Although plaintiff had discovered no signs of burgla ry by t he time of his fall, he hadonly partially

completedhis investi gation. In fa ct, he fe ll while trying to a scertain whether an intruder had gained entry

into the house via the sliding glass door adjoining the deck . Becaus e plaintiff had not

ye t eliminated the possi

bility of dang er, the s ituation st ill requir ed his immediate response, and his belief that he continued to face a n emergency

was reasonable. In urging a contrary

result, defendant cites several cases inter preting the word

"e me rg en cy" in the context of the Local Governmental a nd Governmental Employees Tort Immunity Act (Tort Immun ity Act) (745 IL

CS 10/1--101 et seq. (West 2006)) and

in th e c on te xt of

so ve re ig n i mm un it y. See Sande rs v. C ity of Ch icago , 306 Ill. App. 3d 356 (1999) (Tort I mmunity Act); Currie v. Lao , 148 Ill. 2d 151 (19 92) (so vereign immunity ). Under the Tort I

mmunity Act, whic

h immunizes p

ublicNo. 2--07--0938

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employeesfor their acts or omissions "in the execution or enforc ement of

any law unles s such act
or omission constitutes willful and wanton conduct" (745 I LCS 10/2--202 (West 2006)), the immunity provided to police of

ficers " extends onl

y to neglig ent actsor omissions done while in the actual execution or enforcement of a law a nd notto every

act or om

ission done

while on d

uty as a public employee" ( Morri s v. C ity of Ch icago , 130 Ill. App. 3d 740, 743 (1985)). Thus, an offic er may be immunize d from lia

bility to third par

ties for d amage

caused by hi s disreg arding traffic rules when he does so in response to an emergency, but not when he does so wh en th er e i s n o e me rg en cy. See Sanders , 306 Ill. App. 3d at 361 ("the eme rgency was over and * ** a responding officer no longer had the right to disregard traf fic rules"). Like

wise, under

the ru le of s overei gn immunity, an officer may be immune from

damages for unsafe driving where the officer's " manner of operating
a vehi cle may be

so unique to h

is employ ment that a

lawsuit a imed at hisneglig ent driving could operate to con trol the act ions and po licies of t he State." Currie , 148 Ill. 2d at 160. The logic in

herent t o the rule that of ficers should not be held liable to third parties for responses to emergencies is that officers must respond to emergencie s, and, in emergency situations , officers will not have time to take the precaution s normal citizens would take. Thus, the Tort Immunity Act andthe rule of sovereign immunity take the extraordinary

step of shielding officers from liability even for their da ngerous acts in

responding to eme

rgenc ies. The E

mployee Benefits Act, on the other hand, extends coverage to office rs not only in emerg ency situations that can necessi tateunsafe conduct, but also where officer s are injured r esponding

to unlawful acts or "during the investigation of" criminal acts. 820 IL CS 320/10(b) (West 2000). The coverage provided by the Employee

B enefit s Act is thus not limited to situations that force officers to act without due care, andwe can read

the defin ition of "e merg ency " in t

his context

more bro adly

than we mi ght in a c aseNo. 2--07--0938

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in which an officer seeks immunity (under the Tort Immunity Act or un de r s ov er ei gn im mu ni ty) on the ground that a situation was the ty pe of "emergency" that necessitated a dangerous response. Further, we disag

ree with defend ant's assertion that the Tort Immunity Act and the Employee Benef its Act have a common purpose. Accord ing to de fendant , "the pu

rpose of both [statut

es] is to protect public safety e

mployees from the c onsequences of the high-risk actions that they must take, in the course of their employ ment, in furtheranc e o f the p ubli c safet y and welfa re." Def endan t's characterization of

the purpo se of the

Tort I mmunity Act is ove

rly broad. T he purpo se of the Tort Immun ity Act, as indicated

by t he legi slature, is "to protect loca l public e

ntities and public employeesfrom liabilit

y arising from the o

peratio n of gov ernment " (emph asis added) (745 I LCS 10/1--101.1(a) (West

2006)). S ince the

above la nguag e is excer

pted fro m the Tort

Immun ity A ct, the typ e of "lia

bility " it prosc

ribes is obviously

tort liabi lity , and the Tort I mmunity Act has nothing to do with the issue of liability for an injured off icer's health care costs. The policy behind the

Tort Immunity

Act is that

public of ficials s hould not be

liable to third parties for act

ions their office s requir

e; a cont rary rulewould chi ll officia

ls' ability t o serve t he public good. See Young v. Forgas , 308 Ill. App. 3d 553, 559 (1999) (if officials fa ced liability for performing th ei r d ut ie s, th ei r p er fo rm an ce wo ul d b e h am pe re d) . Li ke wi se , t he po li cy behind t he doctrine of sovereign immunity is the ide a that the threat of lawsuit should not be allowedto control Stateaction. See Currie , 148 I ll. 2d at 15 9 ("The

rati onale[for] extend

ing the immunity

to State employees*** is that a suit against that employee could ope rate to control the actions of the State " (emphas is in original)). This policy is quite distinct from the policy underly ing statutes such as the Employee

Benef its Act, wh

ich provi de contin

uing med ical benefits to pu

blic servants injured in the line of duty. See Phalin

v. McHenry

County Sheriff' s Department , 381 Ill. App. 3d 185, 189 (2008)No. 2--07--0938

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( "the Act was designed to provide continuing hea lth coverage for law enf

orcement officer s an d police officers who are disabled in the line of dut y and for t heir f amil ies"), citi ng Krohe v. City of Bloomington , 204 Ill. 2d 392, 398 (2003). We therefore do nottake g uidance from the Tort Immun ity Act and sovereign immunity cases on which d efenda

nt r elies, a

nd we inste ad adhe

re to the analysis we

laid out above. Based on that analy sis, we conclude that plaintiff was in fact injured while responding to wha

t he rea sonably

believe d to be an e

merge ncy , and he istheref

ore entitled to benefit s under th

e Employ ee Benefits Ac t. Fo r t he fo re go in g r ea so ns , w e a ff ir m t he ju dg me nt of

th e c ir cu it co ur t o f La ke Co un ty. Affirmed. JORGENSEN and SCHOSTOK, JJ., concur.