THIRD DIVISION

 December 28, 2007

1-06-3392

RANDAL WILLIAMS and MARCUS BROWN, ) Appeal from the

) Circuit Court of

Plaintiffs-Appellants, ) Cook County.

)

v. )

)

THE CITY OF EVANSTON and JEFFREY )

GONZALES, ) Honorable

) Donald J. Suriano,

Defendants-Appellees. ) Judge Presiding.

PRESIDING JUSTICE QUINN delivered the opinion of the court:

On August 14, 2004, a City of Evanston ambulance driven by

defendant Jeffrey Gonzales, a City of Evanston firefighter/EMT,

collided with a vehicle driven by plaintiff Randall Williams. 

Plaintiff Marcus Brown was a passenger in Williams' vehicle. 

After plaintiffs filed a four-count complaint based solely on

negligence, they filed an amended complaint, which added four

counts based on willful and wanton conduct. 

The circuit court granted defendants' motion to dismiss

plaintiff's four counts based on negligence. Thereafter, the

circuit court granted defendants' motion for summary judgment on

the remaining four counts. The circuit court based its ruling on

its determination that plaintiffs failed to set forth evidence

that Gonzales drove the ambulance in a willful and wanton manner. 
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1The record indicates that traffic was one way southbound on

Sherman Avenue on the south side of the intersection.

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Thus, the circuit court found defendants were immune from

liability under the Local Governmental and Governmental Employees

Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1-101 et seq.

(West 2006)). Plaintiffs now appeal.

BACKGROUND 

On August 14, 2004, plaintiffs Williams and Brown were

traveling westbound on Oakton Street toward the intersection at

Sherman Avenue in Chicago, Illinois. At the same time, defendant

Gonzales was traveling southbound on Sherman Avenue toward the

intersection. Gonzales, a City of Evanston firefighter/EMT, was

driving a City of Evanston ambulance in the midst of an emergency

call. 

Although southbound traffic on Sherman had a stop sign,

westbound and eastbound traffic on Oakton did not have stop

signs.1 The speed limit on Sherman was 25 miles per hour.

During his deposition, Williams testified that his car

windows were up and the radio was off as he drove westward on

Oakton toward Sherman. Williams stated that there was no

traffic. He did not recall whether he heard a siren. 

Williams testified that he was traveling approximately 20 to

25 miles per hour in the right lane of the two westbound lanes

prior to entering the intersection of Oakton and Sherman. He

stated that he knew traffic on Sherman had a stop sign at the
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intersection. He further confirmed that an apartment building on

the northeast corner of Oakton and Sherman blocked his view of

southbound traffic. However, he passed the building prior to

entering the intersection and could see southbound traffic. 

Williams stated he never saw the ambulance before the

collision, and he did not recall hearing a siren or brakes. He

confirmed that he was still driving 20 to 25 miles per hour at

the time of the collision. Williams opined that based on the

impact, the ambulance was traveling about 45 to 50 miles per hour

before the collision.

Williams testified that the ambulance struck the front of

his vehicle. After the initial impact created a bounce, the

ambulance hit the rear of his vehicle as well. The vehicles'

collision sent Williams' car "south to southeast" until it struck

a tree with a heavy impact. 

Williams stated that he did not speak with anyone at the

scene following the accident except to the police officer who

asked for his license. He did not remember speaking to a police

officer at the hospital as he was "out of it." Williams

confirmed that he received a traffic ticket due to the accident. 

Brown testified during his deposition that on August 14,

2004, he was in the passenger seat of the car driven by Williams,

his half-brother. He stated that the vehicle's windows were up

and the music was off as they drove westbound in the right lane

on Oakton toward Sherman. Brown estimated that they were
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traveling about 20 to 25 miles per hour and asserted that he did

not see any other vehicles ahead of their vehicle.

When asked whether he saw another vehicle out of the corner

of his eye before the collision, Brown testified that he did not

recall as he got hit in the head during the collision. He

opined, however, that based on the impact, the ambulance was

traveling 40 or 50 miles per hour prior to the collision. 

During the collision, Brown suffered a head injury, which

left him dazed and in need of stitches. Paramedics helped him

out of the car and informed him that he was bleeding. 

Brown also testified that he went to traffic court with his

brother. The judge threw out the ticket given to Williams.

During his deposition, Gonzales testified that on August 14,

2004, he was a firefighter/EMT and was training to be a

paramedic. He asserted that he had driven the ambulance in

emergency situations a hundred times and that he never drove over

the posted speed limit on those occasions. 

Prior to the accident, Gonzales was driving southbound on

Sherman towards Oakton. He confirmed that Sherman is a two-way

street that becomes a one-way southbound street south of Oakton. 

He and his partner were in the midst of an emergency call

involving a battery victim. He stated that he knew there was a

stop sign for southbound traffic on Sherman and that there were

no stop signs at the intersection for traffic on Oakton. 

Although Gonzales did not bring the ambulance to a complete stop
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at the intersection, he testified that he slowed the vehicle to

15 to 20 miles per hour as he entered the intersection and slowed

the ambulance further to about 5 miles per hour immediately

before the collision. Gonzales asserted that he had activated

the ambulance's lights and siren prior to the collision.

Gonzales stated that he looked left then right before he

entered the intersection at Sherman and Oakton, but he did not

see Williams' vehicle. When asked whether there was anything

that blocked his view, Gonzales acknowledged that a row of trees

and an apartment building obstructed his view of traffic to the

left. However, he asserted that he crept up a little past the

stop sign and looked left for westbound traffic, but he did not

see plaintiffs' vehicle.

Gonzales had no estimate as to Williams' speed. He

testified that the front of Williams' vehicle hit the driver'sside door of the ambulance. Gonzales denied that his partner

warned him about plaintiffs' vehicle and stated that he told his

partner after the collision that he did not see plaintiffs'

vehicle prior to impact.

Gonzales confirmed that his deposition testimony was similar

to the testimony he provided in traffic court during the

proceedings on Williams' traffic ticket. However, he did not

testify before the City of Evanston Accident Review Board, which

determined that the accident was preventable. Gonzales did not

agree with the review board's finding.
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He stated that the ambulance was propelled 40 to 50 feet to

the right as a result of the collision. He opined that

plaintiffs were speeding.

Ronald Gannon's deposition testimony provided that he was a

fire captain with the Evanston fire department on August 14,

2004, but he was stationed at another fire house on the date of

the accident. Gannon was a division chief at the time of his

testimony. 

Gannon asserted that drivers of fire department vehicles

must abide by the Illinois Vehicle Code (625 ILCS 5/1-100 et seq.

(West 2006)). However, Gannon stated that although an ambulance

driver should slow down as he approached a stop sign during an

emergency situation, the driver would not necessarily have to

stop if traffic was not present or had halted in response to the

emergency vehicle. Gannon did not believe that Gonzales did

anything wrong on August 14, 2004, and he did not know why the

review board deemed the accident preventable.

During her deposition, Katherine Kuller testified that she

was at her friend's apartment in the building at 800 Oakton at

the time of the accident. The building is located on the

southwest corner of the intersection of Oakton and Sherman. 

Kuller stated that the accident occurred about 6 a.m. on a

Saturday morning. She asserted that it was not raining. 

Although Kuller did not see the accident occur, she heard a

"[w]hoop-whoop-whoop-whoop-whoop," which she assumed was a siren
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of a medical vehicle, followed by a "boom." In response, she ran

to a window, saw the two vehicles, got dressed, and ran

downstairs. She confirmed that the windows of the apartment were

open. She did not hear any tire squeals prior to hearing the

collision.

Finally, Mary Lawrence's deposition testimony disclosed that

she lived at 802 Oakton on August 14, 2004. About 6 a.m. that

morning, she was lying in bed when she heard a "siren going off." 

Saint Francis Hospital is about a block from her apartment, and

the siren sounded as if it was coming from the north and heading

toward the hospital. Lawrence testified, "I, you know, I heard a

squealing of tires and then I heard the crash." Upon hearing the

crash, Lawrence got out of her bed and ran to her dining room

window. She saw the ambulance had knocked over a light pole and

was up against a tree. After calling 9-1-1, Lawrence got dressed

and went outside. She heard one of the "paramedics" tell the

other "paramedic" that he had not seen the other driver.

Following the completion of the parties' depositions,

defendants filed a motion for summary judgment. Therein,

defendants argued that no evidence existed that Gonzales acted in

a willful and wanton manner prior to the collision with

plaintiffs. As such, defendants argued that plaintiffs could not

establish that defendants violated a duty of care to plaintiffs

under sections 2-202 (745 ILCS 10/2-202 (West 2006)) and 5-106

(745 ILCS 10/5-106 (West 2006)) of the Tort Immunity Act. 
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Plaintiffs countered that a genuine issue of material fact

existed as to whether Gonzales acted in a willful and wanton

manner, and thus the circuit court should deny defendants'

motion. 

At a hearing on the motion, plaintiffs presented photographs

of the vehicles following the collision and argued that the

photographs demonstrated that the ambulance had been speeding

prior to the accident. Following arguments, the circuit court

granted the motion for summary judgment. In doing so, the

circuit court stated:

"If it's a question of speed, you're asking

to Court to [sic] -- I can't conclude what

speed they're going.

Maybe if you had an expert or something

come in and say what these photographs

depict, but the only evidence I have is that

he's creeping through the stop sign.

You allege that he is violating a

traffic law. Apparently he is, but I don't

think it may be negligence. I don't think

that is conduct that rises to willful and

wanton conduct when an emergency vehicle is

creeping through the stop sign.

As far as these pictures, I can't make

any determination as to circumstantial
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evidence. I am going to grant the motion

based on the fact that there is no evidence

of any willful and wanton conduct. Thank

you."

Plaintiffs have appealed. 

ANALYSIS

In this court, plaintiffs contend that the circuit court

erroneously granted defendants' motion for summary judgment. 

Plaintiffs argue that a genuine issue of material fact existed as

to whether Gonzales operated the ambulance in a willful and

wanton manner. 

Summary judgment is appropriate where the pleadings,

affidavits, depositions, admissions, and exhibits on file, when

viewed in the light most favorable to the nonmovant, reveal that

there is no genuine issue of material fact and that the nonmovant

is entitled to judgment as a matter of law. Abrams v. City of

Chicago, 211 Ill. 2d 251, 257 (2004). Our review is de novo. 

Abrams, 211 Ill. 2d at 258. 

We initially note that although defendants filed their

motion for summary judgment pursuant to sections 2-202 and 5-106

of the Tort Immunity Act, only section 5-106 applies to the case

at bar. Whereas section 2-202 concerns the execution or

enforcement of law, which was not an issue here, section 5-106

provides:

"Except for willful or wanton conduct,
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neither a local public entity, nor a public

employee acting within the scope of his

employment, is liable for an injury caused by

the negligent operation of a motor vehicle or

firefighting or rescue equipment, when

responding to an emergency call, including

transportation of a person to a medical

facility." 745 ILCS 10/5-106 (West 2006).

In the case at bar, there was no dispute that Gonzales was a

public employee in the midst of an emergency call within the

meaning of the Tort Immunity Act. As such, plaintiffs had to

present evidence that Gonzales operated the ambulance in a

willful and wanton manner. 

Section 1-210 of the Tort Immunity Act defines "willful and

wanton conduct" as "a course of action which shows an actual or

deliberate intention to cause harm or which, if not intentional,

shows an utter indifference to or conscious disregard for the

safety of others or their property." 745 ILCS 10/1-210 (West

2006). Our supreme court has similarly defined "willful and

wanton conduct" as "a course of action which shows actual or

deliberate intent to harm or which, if the course of action is

not intentional, shows an utter indifference to or conscious

disregard for a person's *** safety or property of others." 

Pfister v. Shusta, 167 Ill. 2d 417, 421 (1995). Further, our

supreme court has described willful and wanton conduct as " 'a
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hybrid between acts considered negligent and behavior found to be

intentionally tortious. *** Under the facts of one case, willful

and wanton misconduct may be only degrees more than ordinary

negligence, while under the facts of another case, willful and

wanton acts may be only degrees less than intentional

wrongdoing.' " Pfister, 167 Ill. 2d at 422, quoting Ziarko v. Soo

Line R.R. Co., 161 Ill. 2d 267, 275-76 (1994). 

Whether conduct is willful and wanton is ultimately a

question of fact. Young v. Forgas, 308 Ill. App. 3d 553, 562

(1999), citing Calloway v. Kinkelaar, 168 Ill. 2d 312, 326

(1995); Doe v. Calumet City, 161 Ill. 2d 374, 390 (1994). 

Nonetheless, a court may hold as a matter of law that a public

employee's actions do not amount to willful and wanton conduct

where no other contrary conclusion may be drawn from the record

presented. Young, 308 Ill. App. 3d at 562. 

Illinois law is unsettled as to what actions taken by an

emergency vehicle driver constitute willful and wanton conduct. 

See Carter v. Simpson, 328 F.3d 948, 951 (7th Cir. 2003). The

parties discussed the leading Illinois cases in their briefs. As

such, we review those cases in analyzing the circuit court's

ruling. 

In Hampton v. Cashmore, 265 Ill. App. 3d 23 (1994), an

ambulance passenger sued the ambulance operator and the City of

Waukegan for damages when she was injured in a collision between

the ambulance and a truck. The circuit court granted defendants'
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motion for summary judgment based on the Tort Immunity Act. The

plaintiff appealed based on her contention that a genuine issue

of material fact existed as to whether the defendants' conduct

was willful and wanton. 

On appeal, the court upheld the trial court's ruling. The

reviewing court noted that two eyewitnesses testified that they

saw the ambulance's lights and siren were activated as it entered

the intersection against a red light at of a rate of speed of 30

to 35 miles per hour. Hampton, 265 Ill. App. 3d at 27-28. A

third eyewitness testified that the ambulance entered the

intersection when the light was green, but also asserted the

ambulance was traveling about 30 to 35 miles per hour. Hampton,

265 Ill. App. 3d at 28-29. The plaintiff testified that he

neither saw the ambulance's lights nor heard its siren and that

he had the green light. Hampton, 265 Ill. App. 3d at 28. The

ambulance operator admitted that he ran the red light, but

asserted that he slowed the ambulance from 35 miles per hour to

about 15 miles per hour when entering the intersection. Hampton,

265 Ill. App. 3d at 28. Viewing that evidence in a light most

favorable to the plaintiff, the reviewing court upheld the

circuit court's ruling. In doing so, the reviewing court stated:

"We conclude, as a matter of law, that the

record presents insufficient evidence to

raise a question of fact relating to whether

[the ambulance operator] willfully and
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wantonly failed to slow upon reaching the

intersection or maintain a proper lookout for

other traffic." Hampton, 265 Ill. App. 3d at

31. 

Similarly, in Young v. Forgas, 308 Ill. App. 3d 553 (1999),

a motorist involved in a collision with a City of Springfield

fire department vehicle filed a multicount complaint against the

firefighter who drove the vehicle and the City of Springfield. 

Like Hampton, the trial court granted the defendants' motion for

summary judgment on the counts based on willful and wanton

conduct due to the Tort Immunity Act. The plaintiff appealed.

On appeal, in analyzing the counts based on willful and

wanton conduct, the court disagreed with Hampton. Young, 308

Ill. App. 3d at 563-64. The court noted that as in Hampton, an

eyewitness testified that she saw the fire department vehicle

enter the intersection against a red light without slowing from a

speed of 30 to 40 miles per hour. Young, 308 Ill. App. 3d at

564. This testimony contradicted the testimony of the defendant

driver, who testified he stopped and checked the intersection

before proceeding against the red light, and two eyewitnesses,

who stated that defendant slowed before the accident. Young,

308, Ill. App. 3d at 564.

Unlike Hampton, the reviewing court determined that the

conflicting testimony resulted in the dispute of material facts. 

Young, 308 Ill. App. 3d at 564. As such, the reviewing court
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found that the issue was one for a jury and, thus, reversed the

circuit court's grant of summary judgment on the counts of

willful and wanton conduct. Young, 308 Ill. App. 3d at 564. 

The United States Court of Appeals for the Seventh Circuit

addressed the disagreement between Hampton and Young in Carter,

328 F.3d at 948. Therein, a motorist filed a three-count suit,

including one count of willful and wanton conduct, against a City

of Evanston police officer for damages suffered in a vehicular

collision with the police officer's car. After the district

court granted the defendants' summary judgment, the plaintiff

appealed. 

On appeal, the Seventh Circuit addressed the district

court's ruling of summary judgment on the count of willful and

wanton conduct. In doing so, the Seventh Circuit noted that the

agreed facts showed that the police officer activated his

vehicle's emergency lights and siren, crossed a median, drove

eastbound in westbound lanes to avoid traffic stopped at a red

light, and collided with the plaintiff's vehicle in the

intersection at the light. Carter, 328 F.3d at 949. The

parties, however, disputed whether the police officer slowed down

before he drove into the intersection. Although the police

officer testified that he slowed from 15 to 25 miles per hour to

3 to 5 miles per hour when he entered the intersection, three

eyewitnesses testified that the police officer was driving

anywhere from 35 to 50 miles per hour at all times. Carter, 328
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F.3d at 950. 

In analyzing Illinois case law on what actions by an

emergency vehicle driver constituted willful and wanton conduct,

the Seventh Circuit acknowledged the disagreement between Hampton

and Young. Carter, 328 F.3d at 951-52. The court stated:

"And given the disagreement between Young and

Hampton, we disagree with [the defendant]

that his conduct, when construing the

evidence in [the plaintiff's] favor, as a

matter of law could not qualify as 'conscious

disregard.' We conclude that a reasonable

jury could find such conduct willful and

wanton. Therefore, the district court erred

in granting summary judgment on this claim." 

Carter, 328 F.3d at 952.

In this court, plaintiffs, relying on Young and Carter,

contend that given their testimony and the testimony of Kuller

and Lawrence, there remains a genuine issue of material fact as

to whether Gonzales drove in a willful and wanton manner. 

Defendants, relying on Hampton, counter that summary judgment was

appropriate given Gonzales' testimony and the speculative nature

of plaintiffs' testimony as to the ambulance's speed. 

We agree with defendants. Even viewing the evidence in the

light most favorable to plaintiffs, we cannot agree with their

contention that a genuine issue of material fact existed
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regarding willful and wanton conduct.

In reaching that conclusion, we first address the circuit

court's dismissal of plaintiffs' photographs of the damaged

vehicles as evidence of the ambulance's rate of speed prior to

the vehicles' collision. The admissibility of photographs

normally falls within the discretion of the trial court. 

DiCosola v. Bowman, 342 Ill. App. 3d 530, 534 (2003), citing

Bullard v. Barnes, 102 Ill. 2d 505, 519 (1984). Given that

standard, this court has previously upheld circuit court rulings

dismissing photographic evidence of a plaintiff's vehicle damaged

in a collision where the circuit courts found the photographs to

be irrelevant absent expert testimony and thus inadmissible as

evidence of the extent of a plaintiff's injuries suffered in the

collision. DiCosola, 342 Ill. App. 3d at 534-38; Baraniak v.

Kurby, 371 Ill. App. 3d 310, 317-18 (2007). 

Although plaintiffs at bar sought to introduce photographs

of the damaged vehicles as evidence of the ambulance's speed

prior to the crash, and not as evidence of their injuries, we

find DiCosola and Baraniak instructive since no expert testimony

was presented in this case to support the photographs. As such,

we find no error with the circuit court's decision not to rely

upon the photographs when it ruled on defendants' summary

judgment motion. 

We next turn to the testimonial evidence. In doing so, we

acknowledge that Gonzales admitted he did not stop the ambulance
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at the stop sign at Oakton and Sherman. However, section 11-205

of the Illinois Vehicle Code provides that a driver of an

emergency vehicle may proceed past a stop sign or red light after

slowing (625 ILCS 5/11-205 (West 2006)). 

That said, plaintiffs contend that Gonzales did not slow the

ambulance as he drove through the intersection. The basis of

plaintiffs' contention is their testimony that the ambulance was

traveling 50 to 60 miles per hour. In addition, plaintiffs rely

on Kuller's and Lawrence's testimony regarding sounds they heard.

As plaintiffs assert, our supreme court has found that

laymen may express an opinion as to a vehicle's speed. Watkins

v. Schmitt, 172 Ill. 2d 193, 207 (1996). Unlike Watkins and the

other cases upon which plaintiffs' rely, such as Young and

Carter, however, plaintiffs, Lawrence, and Kuller did not testify

that they saw the ambulance prior to the collision. Plaintiffs

simply opined that the ambulance was traveling at a rate of speed

of 50 to 60 miles per hour based on the impact they felt and the

distance their vehicle traveled upon their collision with the

ambulance. Further, neither Kuller nor Lawrence saw the

collision but only heard it. 

As such, we are left with Gonzales' testimony regarding the

ambulance's rate of speed prior to the collision. He testified

that he slowed the ambulance to 15 to 20 miles per hour as he

entered the intersection and to 5 miles per hour immediately

before the collision. 
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Next, plaintiffs argue that conflicting evidence existed as

to whether Gonzales activated the emergency lights and siren of

the ambulance. We do not agree. 

In response to Gonzales' testimony that he activated the

emergency equipment, and Kuller's and Lawrence's testimony that

they heard a siren, plaintiffs merely testified that they did not

recall hearing the sirens prior to the accident. Their simple

failure to recollect hearing the sirens does not directly

contradict the testimony of the other witnesses. 

Even if the testimony on this point was contradictory, this

court has held that the failure to activate emergency equipment

does not constitute willful and wanton conduct. Shuttlesworth v.

City of Chicago, No. 1-06-3433, slip op. at 11 (November 5,

2007). Plaintiffs misconstrue the holdings in Young and Carter

to conclude otherwise. Unlike the case at bar, as asserted

above, the holdings in those cases relied heavily on eyewitness

testimony that the defendant drivers were driving their vehicles

at high rates of speed at the time of the collisions. 

Finally, plaintiffs argue that Gonzales' failure to stop the

ambulance at the stop sign was evidence of willful and wanton

conduct since he knew his view of westbound traffic would be

partially obstructed as he entered the intersection. For

support, plaintiffs rely upon the Evanston fire department policy

that required an emergency driver to slow down or stop at traffic

signs during an emergency situation. 
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First, this court has stated that the "[v]iolation of selfimposed rules or internal guidelines *** 'does not normally

impose a legal duty, let alone constitute evidence of negligence,

or beyond that, willful and wanton conduct.' " Wade v. City of

Chicago, 364 Ill. App. 3d 773, 781 (2006), quoting Morton v. City

of Chicago, 286 Ill. App. 3d 444, 454 (1997). Thus, a violation

of the Evanston fire department policy would not constitute

evidence of willful and wanton conduct. 

Second, as stated above, the record does not support

plaintiffs' contention that Gonzales was driving at a high rate

of speed as he drove through the intersection. As such, even if

Gonzales did not have a clear view of the intersection, his

alleged failure to stop prior to entering the intersection,

despite an obstructed view, would have been at most negligent

conduct. We cannot conclude that Gonzales' conduct demonstrated

an utter indifference to or conscious disregard for others'

safety. Pfister, 167 Ill. 2d at 421.

Accordingly, even viewing the evidence in a light most

favorable to plaintiffs, we conclude there was no genuine issue

of material fact regarding whether Gonzales' actions constituted

willful and wanton conduct. 

CONCLUSION

For the foregoing reasons, we affirm the judgment of the

circuit court of Cook County. 

Affirmed.
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THEIS and CUNNINGHAM, JJ., concur.