2013 I L App (1st) 123653 Fifth Division

November

22, 2013

No. 1-12-3653 DOMI NI QUE B ETTS, Plaintiff-Appellant,

v. THE CI TY OF CHI CAGO, a Municipa l Corporation, and DARREL LSMI TH, Def endants-A

ppellees. ) ) ) ) ) ) ) ) ) ) ) Appea l from the Circuit Court of Cook County

11 M1 303194

Honora ble J ames E. Snyder, J udg e Presiding

. J USTI CE McBRI DE deliver ed the judg ment of the c ourt, with opinion. J ustices Palmer a

nd Taylor conc urre d in the judgme nt and opinion.

OP INION ¶ 1 Plaintiff Dominique Be tts appeals the tria l court' s order dismiss ing he r complaint filed ag ainst defe ndants, the City of Chicag o and Da

rre ll Sm ith, alleg ing ne g lige nce in a car acc ident in which Smith, a Chi cag o police off icer , backe d into plaintiff's ve hicle and c aused injury to plaintiff. On appe al, B etts argues that the trial c ourt err ed in dismissi ngher c omplaint because the re cord doe s not support defenda nts' a ssertion of immunity under the L ocal Gove rnmental a nd Gover nmental Employ ees Tor

t I mmunity

Act (Tor t I mmunity

Act) ( 745 I L CS 10/ 1-101 et seq. (West 2010)) and she was de nied her rig ht to discovery

and due pr ocess. ¶ 2 In Dec ember

2011, plaintiff filed he r neg lige nce c omplaint ag ainst defe ndants. The complaint alleg ed that on or a bout Dece mber 4, 2010, plaintiff w as oper atinga motor vehic le that was pa rked f acing east on Cong ress, at or nea r its intersection with Kostner, in Chica g o. Smit h "w as oper ating a motor vehic le in an ea sterly direc tion on the afore said Congr ess and ba cked into1-12-3653

the Plaintiff' s vehicle." At the time of the a ccide nt, Smi th was oper ating the vehicle as an a g ent,

serva nt and employ ee of

the City of Chicag o. Plaintiff alleg ed that def endants ha d a duty

to exercise or dinary

car e in the oper ation of the ve hicle to avoid injury to plaintiff. As a dire ct and proxi mate re sult of defe ndants' neg lige nce, pla intiff was injured a nd suffe red da

mag es of a persona l and pec uniary

nature . Plaintiff sought da mag es not in excess of $9,950, plus the costs of the suit. ¶ 3 In Fe bruar

y 2012, defe ndants filed a motion to dismiss the complaint pursuant to sec tion 2-619(a )(9) of the Code of Civil Procedur e (735 I L CS 5/ 2-619(a )(9) (West 2010)). The motion was set f or hea ringon Marc h 13, 2012, but when plaintiff' s attorney did not appear

at a Ma rch 6 status hear ing, the trial court dismissed the ca se for want of pr osecution. Plaintiff subsequently filed a motion to vacate the dismissal, which the trial cour t gr anted. ¶ 4 In April 2012, defe ndants renotice d their motion to dism iss the complaint. The motion

asser ted that def

endants we re immune fr om the alleg ed neg lige nce unde r sec tions 2-202 and 2- 109 of the Tor

t I mmunity

Act (745 I L CS 10/ 2-202, 2-109 ( West 2010)). Section 2-202 provide s that "[a] public employ ee is not liable for his act or omission in the execution or enfor ceme nt of any law unless such a ct or omission constitutes will ful and wa nton conduct." 745 I L CS 10/ 2-202 (West 2010). Section 2-109 states that " [a] local public entity is not li able f

or an injury

resulting from an a ct or omission of its employ ee where the employ ee is not liable." 745 I L CS 10/ 2-109 (West 2010). Acc ordingto defe ndants, Smit h was e x ecutingthe law at the time of the ac cident beca use he w as an on duty

police off

icer assisting with a na

rcotics surve illance. I f Smith was not liable, then the c ity

cannot be liable. Def

endants attached a

n aff idavit from Smith t o the motion. In the af fidavit, Smit h stated: 21-12-3653 "1. I have pe rsonal knowledg e of the fac ts contained in this aff idavit. 2. At the time of the a ccide nt in question on Dece mber 4, 2010, Iwas on duty

with the City

of Chicag o Police Depa

rtment, actingwithin the scope of my duties as a City

of Chicag o police office r. 3. At the time of the a ccide nt, Iwas on duty as an underc over sur

veillance office r in a na

rcotics tra nsaction. 4. I f sworn to testify , Iwould testify as above ." ¶ 5 The motion was set for a hea ringon J uly

10, 2012. The trial c ourt allowed pla intiff to propound five inter

rog atories on the que stion of whether the offic er w as within the " scope of duties." D efe ndants filed their a nswers to plaintiff' s interrog atories on June 7, 2012. ¶ 6 Plaintiff filed a re sponse to the motion to dis miss, contending that at the time of the

acc ident, Smit h "ha d not y et begun to execute or e nforc e any law but was me rely

on his way

to take ove r for

the team e ng ag ed in the investig ation" a nd, thus, defenda

nts were not entitled to immunit y under the Tort Immunity Act. De fenda

nts filed a re ply , maintaining that Smi th was actingin a cour se of c onduct aimed a t enforc ing dr

ug laws. ¶ 7 On J uly

10, 2012, the trial cour

t gr anted de fenda

nts' motion to dismis s. On J uly 25, 2012, plaintiff filed a

motion to vacate the ex parteorder of Jul y 10, 2010 and for

rehe aring . Acc ording to the motion, plainti ff' s attorney did not appear

at the hea

ringon J uly

10 beca use his diary

cler k incorre ctly

rec orded the date of

the hea ring . In August 2012, the trial court va cate d the dismissal order and def endants' motion to di smiss was resche duled. On September 25, 2012, the trial cour

t 31-12-3653

denied de fenda

nts' motion and g ave de fenda nts 14 day s to corre ct def ects in the a

nswer to interrog atories a

nd plaintiff was g iven leave to amend her complaint within 28 day s. ¶ 8 On Octobe r 2, 2012, def endants filed the corr ecte d answe rs to interrog atories. The

answe rs ar e substantially

the same, e x cept the a

nswers w ere now dra fted in the fir st-person f or Offic er Smith and the ce rtification wa s corr ecte d to name Smith. The corr ecte d interrog atories and answ ers pr ovided the following :

"1. D escr ibe in detail the police a ction y ou wer e takingon Dec ember

4, 2010 when you place d y our automobile in reve rse at approximately

1:00 p.m. and collided with Plaintiff Dominique Be tts' ve hicle. Iwas c onducting surveillance pursuant to a na rcotics investigation. Our team wa s following the targ et northbound on Kostner a nd Iwas pre paringto do a ' take- awa y ' , moving out of my parkingspot to turn northbound onto Kostner and take over f or the surveillance team. I

had bee n waiting for a

pproxi mately

ten minutes and rec eived a

communication from the N extel Direct Connect sy stem to take over the surveillanc e. As I

left my parking spot on Congre ss Parkway , Ibacke d into plaintiff's ve hicle. We had identified the ta

rg et from pr evious underc over dr ug buy s from the tar g et or his associates. The tar g et was pa rt of a g roup that wa s under investig ation for distributing na rcotics. 2. I dentify

y our destination by

name a nd addre ss had the 41-12-3653 collision with P laintiff Dominique B etts' vehicle not oc curr ed. Iwas on my

way to take over

surveillance by

following the targ et, meetingup with my team by turning northbound onto Kostner. In my

experience , the time period spent f ollowing a targ et var ies and c an last as long as seve ral hours. 3. Desc ribe by

RD number and na

me of de fenda

nt any

arr ests made a s a re sult of surveillance alleg edly undertaken immediately

befor e your collision with Pl aintiff Dominique B etts' vehicle. The RD number

for this investiga

tion is HS 645892. The RD number wa s marked c onfidential, mea ning that the investigation was still ongoing at the time of the a ccide nt. 4. Desc ribe a ll items of food in Defe ndant' s vehicle at the time of the collision with Pl aintiff Dominique B etts' vehicle. Ido not rec all havingany items of food inside my

vehicle a t the time of the c ollisi on. 5. Desc ribe a

ny repr imands rec eived by

Offic er D arr ell Smit h as a r esult of the occ urre nce w ith Pl aintiff Dominique B etts' vehicle a nd state and de scribe the g ener al orde r De fenda nt Darr ell Smit h was to follow bef

ore pla cinghis automobile in rever se on Dec ember

4, 2010. Idid not rece ive any

officia l reprimand. B eca use this was 51-12-3653 my only acc ident that y ear , Ionly rec eived a

verba l warningfrom Serg eant Mostek, Star #1058. My assig nment for the da

y was to ac t as part of

a surveillance team for

the g roup of tar g ets suspecte d of distributing

narc otics in the vicinity

of Kostner

and F ifth Avenue . The plan was to obser

ve the tar g et in order

to asce rtain whe re he was purcha sing na

rcotics f rom and to use that infor

mation in prepa ration for a planne d uncover

[ sic ] drug buy

from the tar g et, meant to take pla ce later that da y ." ¶ 9 Also in October 2012, de fenda nts filed a motion to dism iss plaintiff's c omplaint. This motion st ated that it was pur suant to section 2-615(d) of the Code of Civil Procedur e (735 I L CS 5/2-615(d) ( West 2010)), but made the same ar guments as the pre vious moti ons to dismi ss. On November

14, 2012, the trial cour

t entere d an orde r g rantingplaintiff' s motion and dismi ssing plaintiff' s complaint with prejudice. ¶ 10 This appea l followed. ¶ 11 Plaintiff argues that the trial c ourt err ed in g rantingdefe ndants' motion and dismi ssing the complaint with prejudice beca use the re cord doe s not support defenda nts' c laims for immunity under the Tort Immunity

Act. ¶ 12 First, we note that def endants' motion st ated that it was br oug ht pursuant to section 2-615, which " challeng es only

the leg al suffic iency

of a c omplaint and alleg es only defe cts on the fa ce of the c omplaint." Sandholm v. Kuec ker , 2012 I L111443, ¶ 54. " A motion to dis miss based on the immunity

confe rre d by

the Act, howe ver, is more appropr iately raised in a

section 2-619( a)( 9) 61-12-3653

motion, which allows for dismissal when the c laim asserte d ag ainst the defe ndant is ' barr ed by other a ffirmative matter avoiding the le g al ef fec t of or def

eatingthe claim' (735 I L CS 5/ 2- 619(a) (9) ( West 2008))." Id. We point out t hat def endants' previous motions to dism iss had been f iled under se ction 2-619(a )(9) and the motion at issue made the same substantive arguments as the pre vious moti ons. Since the substance of the motion, rather than the labe l, deter mines what the motion is, we will consider de fenda nts' motion to dismis s under se ction 2- 619(a) (9). See id. ; Loman v. Free man , 375 I ll. App. 3d 445, 448 (2006). ¶ 13 When ruling on the motion to di smiss, t he trial c ourt " should construe the ple ading s and supporting doc uments in the light most favora ble to the nonmoving pa

rty " a nd "a cce pt as true a ll well-plea ded fa cts in plaintiff' s complaint and all infer ence s that may rea sonably

be dra wn in plaintiff' s favor ." Sandholm , 2012 I L111443, ¶ 55. " The que stion on appeal is ' whether the exis tence of a g enuine issue of materia l fac t should have pre cluded the dismissal or, abse nt such an issue of f

act, whe ther dismissal is proper a s a matter of law.' " Id. (quoting Kedzie &103rd Currency Ex change, I

nc. v. H odge , 156 I ll. 2d 112, 116-17 (1993)). We r eview the section 2-619 dismiss al of a

complaint de novo

. Sandholm , 2012 I L111443, ¶ 55. ¶ 14 A motion for involuntary dismiss al pursuant to sec tion 2-619(a) admits the leg al sufficie ncy

of the c omplaint, but raises defe cts, defe nses, or other aff irmative matter which avoids the leg al ef

fec t or defe ats a plaintiff' s claim. 735 I L CS 5/ 2-619(a ) (West 2010). An "a ffirmative matter" under se ction 2-619(a )(9) is "somethingin the nature of a de fense that neg ates the c ause of

action complete ly

or re futes cr

ucial conc lusions of law or conc lusions of materia l fac t contained in or infe rre d from the c omplaint." In re Estate of Schle nker , 209 I ll. 2d 456, 461 (2004). " Once a def endant satisfies the initial burden of pre senting aff irmative matter, 71-12-3653

the burde n then shifts to the plaintiff to establish that the defe nse is ' unfounded or require s the resolution of an e ssential element of materia l fac t before it is proven.' " Reilly v. W yeth , 377 I ll. App. 3d 20, 36 (2007) ( quoting Kedzie &103rd Currency Ex change, I nc. , 156 I ll. 2d at 116). ¶ 15 Affida

vits in support of moti ons to dismi ss under sec tion 2-619 are controlled by I llinois Supreme Court Rule 191 (e ff. July 1, 2002). Rule 191(a ) provides that affidavits submi tted in

connec tion with a motion for involuntary dismiss al " shall be made on the per sonal knowledg e of the af fiants; shall set forth with par ticularity the fa cts upon which the c laim, counterc laim, or defe nse is based; shall have attache d there to sworn or c ertified c opies of all pape rs upon which the af fiant re lies; shall not consist of conclusions but of fac ts admissibl e in evidenc e; and sha ll aff irmatively

show that the af

fiant, if sworn a s a witness, ca n testify competently

there to." I ll. S. Ct. R. 191(a) (e ff. July

1, 2002). ¶ 16 Plaintiff argues that the re cord doe s not support the order dismiss ing he r ca se bec ause

answe rs to the interrog atories a nd Smit h' s aff

idavit did not clearly

establish that Smit h was executing or

enfor cingthe law at the time of the ac cident, as r equire d under se ction 2-202 of the Tort Immunity

Act. Plaintiff also conte nds that she should have be en allowe d to conduct a limit ed deposition of Smith to m ore f ully detail the cir cumstance s at the time of ac cident. ¶ 17 As we pr eviously

noted, sec tion 2-202 provides that " [a] public employ ee is not liable for his act or omission in the execution or enfor ceme nt of any law unless such a ct or omission constitutes willful and wanton conduc t" ( 745 I L CS 10/ 2-202 (West 2010)) a nd section 2-109 states that " [a] local public entity is not li able f

or an injury

resultingfrom an a ct or omission of its employ ee where the employ ee is not liable" (745 I L CS 10/ 2-109 (West 2010)). B etts' complaint does not include a ny alleg ations of willful and wa nton conduct; there fore , our re view 81-12-3653

is lim ited to whether

defe ndants are immune for their a lleg ed neg lige nt conduct. ¶ 18 I llinois courts have held that the Tort Immunity Act " ' is in derog ation of the c ommon law action ag ainst local public entities, and must be strictly construed a g ainst the public entity involved.' " Hudson v. City of Chicago , 378 I ll. App. 3d 373, 388 (2007) (quoting Aikens v

. Morris , 145 I ll. 2d 273, 278 (1991)). " The immunity provided by

section 2-202 doe s not ex tend to all activities of police of fice rs while on duty , but only to acts or omissions while in the actua l execution or enfor ceme nt of a law ." Id. "T he question of whe ther a police off

icer is ex ecuting and enf orcingthe law is a f

actua l determination which must be made in light of the circ umstances involved in ea ch ca se." Id. "T he wor ds ' in execution or enfor ceme nt of any laws' must be g iven their ' plain and commonly ascr ibed meaning .' " Stehlik v. Village of Orland Park, 2012 I LApp (1st) 091278, ¶ 19 ( quoting Thompson v. City of Chi cago , 108 I ll. 2d 429, 433 (1985)) . "H oweve r, whe re the evidenc e is undisputed or susce ptible to only one possible interpre tation, the question may be dec ided as a

matter of la

w." Hudson , 378 I ll. App. 3d at 388. ¶ 19 The supre me cour t has found that " [e] nforc ing the law is rar ely a sing le, discre te ac t, but is instead a cour se of c onduct." Thompson , 108 I ll. 2d at 433. "The ref ore, where the evidenc e establishes a police office r wa s eng ag ed ' in a cour se of c onduct desig ned to ca rry out or put into eff ect a ny law' at the time his alleg ed neg lige nce oc curr ed, sec tions 2-202 and 2-109 of the Act provide a n aff irmative def

ense to the of

fice r and his employ er." Stehlik , 2012 I LApp (1st) 091278, ¶ 20 (quoting Fitzpatri ck v . City of Chi cago , 112 I ll. 2d 211, 221 (1986)). " [V] irtually

ever y police func tion or duty

is pursuant to some leg al authorization in the broade st sense. Arguably , then the per formanc e of a ny task while on duty

is in enforc ement or e x ecution of the law. We do not believe, how ever , as we have pr eviously stated, that the leg islature intended suc h 91-12-3653

a re sult." (Citation omitt ed.) Aikens v . Morris , 145 I ll. 2d 273, 286 (1991). ¶ 20 I llinois courts have explored whether an off icer was e x ecutingor enf

orcingthe law, a s require d for immunity

under se ction 2-202. These courts have conclude d that the offic er in question was immune when he was investig ating a tra ffic a ccide nt (see Fitzpatri ck v . City of Chicago , 112 I ll. 2d 211, 221 (1986)), re sponding to a radio re port of a c rime in prog ress (se e Morris v. City of Chicago , 130 I ll. App. 3d 740, 744 (1985)), r espondingto a ca ll of shots fired (see Brueck

s v. County of Lake , 276 I ll. App. 3d 567, 569 (1995)), r espondingto a re ported burg lary alar m (see Bosen v. City of Collinsvill e , 166 I ll. App. 3d 848, 849 (1987)), a nd escor ting a witness to a " showup" identification (se e Stehlik , 2012 I L App (1st) 091278, ¶ 29)

. ¶ 21 In contra st, I llinois courts have declined to f ind that an offic er w as executingor enf orcing the law whe n transportingprisoners ( see Aikens , 145 I ll. 2d at 286), respondingto a ca ll for a missing per son (see Simpson v. City of Chicago , 233 I ll. App. 3d 791, 792-93 (1992)) , investigating a

crow d for suspec ted cr iminal activity (see Leaks v. City of Chicago , 238 I ll. App. 3d 12, 17-18 (1992) ), re sponding to a radio c all afte r the police dispatcher confirme d that additional backup w as not nee ded (se e Sanders v. City of Chicago , 306 I ll. App. 3d 356, 361-62 (1999)) , and attemptingto offer unreque sted assistance to a hig h-spee d pursuit (see Hudson , 378 I ll. App. 3d at 392-93). ¶ 22 In Simpson , the police of fice r struck a

nd injured a c hild while respondingto a ca ll about a missing per son. The trial c ourt g rante d summary judgme nt after

finding that immunit y

applied. Howeve r, the re viewingcourt re verse d, pointing out that the off icer "did not conside r the c all an

emer g ency

and ther e wa s no indication that any crime ha d been c ommitt ed or that any law require d execution or enfor ceme nt." Simpson , 233 I ll. App. 3d at 793. The c ourt conc luded that 101-12-3653

"it is appa rent that the f

act that [the offic er' s] activiti es we re g overne d by some leg al re quirement is insufficient to raise the m to the level of e x ecutingor enf orcingthe law." Simpson , 233 I ll. App. 3d at 793. ¶ 23 In Leaks , the offic er w as on patrol whe n he enc ountere d a lar g e cr owd and suspec ted they might be e ng ag ed in nar cotics transa ctions. When he bac ked up to investig ate, he struck the plaintiffs' vehicle. T he trial c ourt conc luded that the off icer was e ng ag ed in the enf

orce ment of the law at the time of the ac cident and that the plaintiffs could only rec over if the jury

found the office r' s conduct to be w illful and wanton. The jur y found in favor

of the de fenda

nts. Leaks , 238 I ll. App. 3d at 14-15. On a ppeal, the r eviewingcourt disagree d with the trial court' s deter mination that the office r wa s enfor cingthe law at the time of the ac cident. " I t is undisput ed that [t he off

icer ] was not eng ag ed in the execution or e nforc ement of a law while he was routinely cruisingthe neig hborhood." Leaks , 238 I ll. App. 3d at 17. The c ourt found that ther e was " absolutely

no indication that [t he off icer ] observed the e x chang e of a ny money or the transfe r of a

ny drug s, or for that matter any crime at all." Leaks , 238 I ll. App. 3d at 17. The revie wing court re manded f or a tria l on the neg lige nce c ount. Leaks , 238 I ll. App. 3d at 18. "O ur holding , we stre ss, is not i ntended to esta blish a rule that fa cts establishing that an ac tual crime or violation of law wa s taking place must be shown to preva il upon the affir mative def

ense, or that investigatory

proce dure ma

y never bringpolice per sonnel within the ambit of section 2-202. Rather , our holding is bottom ed upon defe ndants' failure to support their aff irmative def

ense w ith fac ts. At best, [ the offic er' s] t estimony was c onclusory

in nature a s 111-12-3653 to suspected violation of state la w or municipal ordina

nce." Leaks , 238 I ll. App. 3d at 17-18. ¶ 24 Her e, the only

evidenc e on the que stion of whether Smit h was a ctually

executing or enfor cingthe law at the time of the ac cident is the answe rs to the interrog atories a nd Smit h' s aff idavit. We point out that Smit h' s aff idavit partially

consists of conclusions that he wa s acting within the scope of his duties as a police off

icer as par t of an unde rcove r surve illance na rcotics investigation. The aff

idavit contains no additional fac ts. To the extent that the statements in the aff idavit violate Rule 191(a) , we will disreg ard a ny inadmissible conclusory

statements. ¶ 25 In compar ison to the instant case, the c ases r efe renc ed above wer e dec ided either at trial, afte r a jury

verdic t (see Hudson , 378 I ll. App. 3d at 386; Fitzpatri ck , 112 I ll. 2d at 215; Aikens , 145 I ll. 2d at 275), a be nch trial (se e Bosen , 166 I ll. App. 3d 848), or dire cted ve rdict (se e Stehlik , 2012 I LApp (1st) 091278, ¶ 12; Leaks , 238 I ll. App. 3d at 15; Morris , 130 I ll. App. 3d at 742), or on a motion for summar y judgme nt after

depositions had been ta

ken (se e Simpson , 233 I ll. App. 3d at 792; Brueck

s , 276 I ll. App. 3d at 568; Sanders , 306 I ll. App. 3d at 359). None of the

case s were deter

mined based on the evidenc e provide d from the a nswers to interr og atories a nd an aff idavit. ¶ 26 In the interrog atories, Smith stated that on the day of the a ccide nt he was " to act as pa rt of

a surve illance tea

m for the g roup of tar g ets suspecte d of distributing na rcotics in the vicinity

of Kostner a nd Fifth Ave nue." Smit h explained that "[t] he plan wa s to observe the targ et in order to

asce rtain whe re he was purc hasingnarc otics from and to use that information" f or a f uture underc over dr

ug buy from the tar g et. He ha d rec eived a call to take ove r for

the surveillanc e team on Kostner

and follow the ta

rg et. Smith s aid that the tar g et had be en identified f rom 121-12-3653

previous under cover

drugbuy s "f

rom the targ et or his associates" and the tar g et was unde r investigation for distributing nar cotics. ¶ 27 Smit h' s answer s do not contain any details about any

observations made by

Smit h or other members of

the surveillanc e tea

m reg ardingthe targ et, his associate s or any narc otics activity

. There is no information as to whether Smit h or the other

members of

the surveillanc e team had actua lly observe d the commission of a cr ime on that date or whether they wer e followingthe targ et in hopes to see him eng ag e in a na rcotics tra nsaction. Nor do w e know whe re on K ostner the surveillanc e tea

m was whe n Smit h was to join the team. The interrog atories g ener ally state that the team wa s traveling northbound. Simi lar to the situation in Leaks , defe ndants have not set forth enough fac ts to make a de termination as to whethe r immunity is applicable. The re doe s not appea r to have been a

n immediate emer g ency , but the office rs' plan was to follow the ta rg et to g ather information for a

future dr ug purcha se and a

rre st. The re cord doe s not disclose any details about the investig ation and Smith's involvement. At the time of the a ccide nt, he was w aiting in parke d vehicle f

or a c all to participate in the surveillance and upon bac king out of the par king space , he struck pla intiff' s parke d vehicle. ¶ 28 Plaintiff asserts in her brief that she reque sted the opportunity to conduct a limited deposition of Smit h, but the trial court de nied her reque st and instead allowe d the submission of five interr og atories. De fenda nts do not contest that this request was made . We believe that a limit ed deposition could disclose the c ircumstance s of Smith's surveillanc e beyond the conclusory

statements in his interrog atories. We do not re ach the ultimate question that surveillance does not qualify as executingor enf

orcingthe law. Rathe r, on the re cord be fore us,

we c annot make that determination at this stag e and a dditional discovery would be helpf

ul to 131-12-3653

develop the f

acts of this ca se. ¶ 29 After

viewingthis evidence in the light most favor able to plaintiff, Smith's a ccount of his conduct doe s not provide suffic ient detail and is susce ptible to more than one inter pretation as to whether he wa s actua lly

executing or

enfor cinga law at the time of the ac cident. B eca use the interrog atories c onsist mos tly of leg al conc lusions and lack suff icient fa cts, the dismissal was not appropr iate at this stag e. Since se ction 2-202 only applies to ac ts or omissions that occur while in the execution or enfor ceme nt of a law(745 I L CS 10/ 2-202 (West 2010), we conclude that the dismiss al of plaintiff' s complaint was pre mature at this poi nt in the case and plaintiff should be g iven the opportunity

for a dditional discovery

to determine whether

section 2-202 is applica

ble. There fore , we r ever se the trial c ourt' s order dismiss ing the complaint with prejudice and re instate plaintiff' s complaint. ¶ 30 Since we ha

ve re verse d the dismissal order, we need not r eac h plaintiff' s additional claims raise d on appea l. ¶ 31 Ba sed on the for eg oing r easons, we reve rse the de cision of the cir cuit court of Cook County and re mand for f

urther pr ocee dings. ¶ 32 Reverse d and re manded.

14