In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-3978

DAWN E. CARTER, now known as

DAWN E. TROJAOVICH, Plaintiff-Appellant,

v.

RANDALL SIMPSON, now known as

DUDLEY RANDALL R. SIMPSON,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 01 C 5785—James B. Zagel, Judge.

____________

ARGUED APRIL 23, 2003—DECIDED MAY 13, 2003

____________

Before BAUER, MANION, and DIANE P. WOOD, Circuit

Judges.

BAUER, Circuit Judge. In the early morning of November 20, 1995, a squad car driven by Randall Simpson, a

DuPage County Sheriff’s Deputy, collided in an intersection with an automobile driven by Dawn Carter. Carter

sued Simpson in federal court, raising two state-law claims

and one federal claim: negligence, willful and wanton

conduct, and liability under 42 U.S.C. § 1983 for depriving

her of substantive due process. The district court granted

summary judgment for Simpson on all three claims. For

the reasons explained below, we affirm in part and reverse

and remand in part.
2 No. 02-3978

The parties do not dispute the following facts. Shortly

before 7:00 a.m. a police dispatcher radioed to Sheriff’s

Deputy Richard Morgan to investigate a “2-11” call, which

refers to a reported death. Simpson, who was “acting

sergeant” at the time, overheard the dispatch and also

proceeded to the reported location. He activated his lights

and sirens as he was heading eastbound on Butterfield

Road. Traffic on Butterfield was stopped at a red light

at Park Boulevard. To avoid the stopped traffic, Simpson

crossed a median and proceeded east in the westbound

lanes. He attempted to drive through the intersection at

Park against the red light. Carter, meanwhile, was driving

through the intersection northbound on Park. Other

automobiles traveling on Park had stopped. (There is

some dispute, however, as to whether another automobile

passed through the intersection directly ahead of Carter.)

In the intersection the front of Simpson’s squad car collided with the driver’s side of Carter’s automobile (which

was traveling at approximately 30-35 mph); both cars

then collided with other cars stopped in the westbound

lanes on Butterfield.

The parties dispute whether Simpson slowed down before entering the intersection and the speed at which

he was traveling when he entered the intersection and

collided with Carter. In his deposition, Simpson estimated

that he was traveling at 15-25 mph as he approached the

intersection, slowed to 3-5 mph as he moved closer, and

came to a “rolling stop” but did not stop completely. He

explained that he checked the intersection, and believing

it to be clear, accelerated again to 15-25 mph and proceeded through the intersection. He saw Carter’s automobile for a “split second” only, just before impact.

Three witnesses, however, testified at depositions and

gave accounts that differed from Simpson’s. First, Sheila

Willis (whose car was stopped in the left-turn lane on

Park) testified that Simpson never stopped or slowed down
No. 02-3978 3

before entering the intersection, and she estimated his

speed to be 40-50 mph. Second, Hao Zhong (whose car

was stopped in a westbound lane on Butterfield) testified

that Simpson was traveling at approximately 50 mph as

he approached the intersection. But he explained that he

did not see the collision and could not be certain whether

Simpson stopped or slowed down before entering the

intersection. Third, Emily Vesely (whose car also was

stopped in a westbound lane on Butterfield) testified that

Simpson never stopped or slowed before entering the

intersection. She also testified that Simpson was “driving

like a maniac”—which she explained meant that he was

driving fast. She first estimated his speed to be 40-45 mph,

but she later explained that she could not be sure of the

precise speed and that it might have been 35-40 mph. In

addition to these witnesses, the officer who investigated

the crash explained that the stopped traffic on Butterfield

may have obstructed Carter’s ability to see Simpson enter

the intersection.

Carter originally filed a lawsuit in state court against

Simpson, DuPage County, and the DuPage County Sheriff.

After a number of proceedings, see Carter v. DuPage County

Sheriff, 710 N.E.2d 1263 (Ill. App. Ct. 1999), and a voluntary dismissal, Carter brought this lawsuit against Simpson

in July 2001. She alleged Simpson’s conduct was negligent, willful and wanton, and deprived her of substantive

due process. The district court granted summary judgment

for Simpson, concluding that Simpson had immunity for

any alleged negligent conduct and that Simpson’s conduct

could qualify as neither willful and wanton nor a deprivation of substantive due process.

On appeal Carter challenges the district court’s decision

with respect to all three claims. At oral argument, counsel

for both parties explained that the state-law claims are

the primary claims in this lawsuit (we note that diversity

jurisdiction exists); therefore, we discuss those claims first
4 No. 02-3978

and then discuss the federal claim. We review the district

court’s decision de novo, construing the evidence and

drawing reasonable inferences in Carter’s favor. Chapman

v. Keltner, 241 F.3d 842, 845 (7th Cir. 2001).

The Illinois Local Governmental and Governmental

Employees Tort Immunity Act provides immunity for

government employees responding to emergency calls:

Except for willful or wanton conduct, 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; see Young v. Forgas, 720 N.E.2d 360,

364 (Ill. App. Ct. 1999). On appeal Carter challenges

immunity on the ground that Simpson was not responding

to an “emergency call.” Simpson testified that as “acting

sergeant” he was required to respond to “2-11” death calls

and that “2-11” calls were indeed emergency calls, which

under the circumstances required him to proceed with

lights and sirens. He also testified that he received a

dispatch that the fire department had requested an officer “expedite to the scene.” Another officer also testified

that it would be appropriate to proceed to a “2-11” call with

lights and sirens. Carter failed to offer any evidence

to contradict these conclusions. See Young, 720 N.E.2d at

365-66. In addition, she admitted in her response to

Simpson’s statement of facts under Local Rule 56.1 that

Simpson was responding to a death call and that death calls

are emergency calls. See Smith v. Lamz, 321 F.3d 680, 682-

83 (7th Cir. 2003). Thus, the district court concluded

correctly that Simpson was responding to an emergency

call and therefore had immunity for any alleged negligence

on his part.
No. 02-3978 5

But such immunity does not extend to conduct that is

willful and wanton. 745 ILCS 10/5-106. Carter argues that

three witnesses—Willis, Zhong, and Vesely—provided

sufficient evidence from which a reasonable jury could

conclude that Simpson’s conduct was willful and wanton

in driving through the intersection, in the wrong lane,

against the red light, without stopping or slowing down.

Simpson argues that as a matter of law his conduct was

not willful and wanton. Under Illinois law conduct is willful and wanton if it “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.” 745 ILCS 10/1-210; Chapman, 241 F.3d at 847.

Whether conduct is willful and wanton is a factual question. Young, 720 N.E.2d at 367-68.

Illinois case law is unclear on what conduct by a driver

of an emergency vehicle may qualify as willful and wanton.

Simpson relies on two Illinois cases, both involving automobile accidents by officials responding to emergency

calls, to support his contention that summary judgment

was proper: Sanders v. City of Chicago, 714 N.E.2d 547 (Ill.

App. Ct. 1999) and Hampton v. Cashmore, 637 N.E.2d 776

(Ill. App. Ct. 1994). Sanders, however, is inapposite. In

Sanders the court was reviewing whether sufficient evidence supported a jury’s finding that conduct by a police

officer—striking a pedestrian with his squad car—was

not willful and wanton. 714 N.E.2d at 555. The court

construed conflicting evidence in the officer’s favor, concluding that the officer slowed down and checked for

oncoming cars and that “a jury could determine from

such evidence that [the officer] was not behaving in a

willful and wanton manner.” Id. This case, by contrast,

arises not at a post-verdict stage but rather at summary

judgment, and consequently Simpson (as movant) does

not receive the benefit of having conflicting evidence

construed in his favor.
6 No. 02-3978

More to the point, Simpson also analogizes his conduct

to that of an ambulance driver in Hampton, whose conduct was held as a matter of law to be not willful and

wanton. 637 N.E.2d at 782. The driver, responding to an

emergency call with lights and siren activated, entered an

intersection and collided with another automobile. Id. The

driver testified that he slowed to 15-25 mph before entering the intersection; another witness testified that the

ambulance was traveling at approximately 35 mph and

did not slow down before entering the intersection. Id.

The court concluded that even if the driver did not slow

down and was traveling at 35 mph, these facts could not

establish that the driver proceeded with utter indifference

or conscious disregard for the plaintiff’s safety. Id.

However, a more recent, and highly analogous, Illinois

appellate case “disagreed” with Hampton. See Young, 720

N.E.2d at 367. In Young, the driver of a fire-department

vehicle, on an emergency call, collided with another automobile after proceeding through an intersection against

a red light. Id. The driver testified that he stopped and

checked the intersection before proceeding; one witness

testified that the driver never came to a complete stop

and traveled at approximately 15 mph through the intersection; and a second witness testified that the driver

never slowed down or stopped and was traveling 30-40 mph

as he entered the intersection. Id. The court concluded

that the trier of fact should examine this evidence to

“determine whether [the driver] consciously made a decision

to proceed against a red light into a crowded intersection”

because “[s]uch conduct would constitute willful and wanton

conduct.” Id. The court discussed Hampton, explaining

that it could be interpreted to hold that a “driver of an

emergency vehicle may proceed through an intersection

against a red light between 10 and 35 miles per hour

without fear of liability.” Id. The court “disagreed,” concluding that a jury could find that such conduct reflected

“conscious disregard for the safety of others.” Id.
No. 02-3978 7

Like Young, there is conflicting evidence here as to

whether Simpson slowed down before entering the intersection against the red light and the speed at which he

was traveling. Testimony that Simpson never slowed

down and was “driving like a maniac”—regardless of

whether that means he was traveling 35, 40, or 45

mph—plainly conflicts with Simpson’s account that he

slowed to 3-5 mph and came to a “rolling stop.” And given

the disagreement between Young and Hampton, we disagree with Simpson that his conduct, when construing

the evidence in Carter’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.

Finally, Carter contends that Simpson’s conduct also

deprived her of substantive due process. Conduct by a

government official creates a cognizable substantive-dueprocess claim when it “shocks the conscience.” County of

Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998); Bublitz

v. Cottey, No. 02-3400, 2003 WL 1826554, at *4 (7th Cir.

April 9, 2003). In situations where actual deliberation is

possible, conduct that is “deliberately indifferent” may in

certain circumstances “shock the conscience”; in emergency

situations (such as high-speed chases), however, conduct

“shocks the conscience” only if there was intent to cause

harm. Lewis, 523 U.S. at 849; see also Bublitz, 2003 WL

1826554, at *5; Schaefer v. Goch, 153 F.3d 793, 798 (7th

Cir. 1998). Although Simpson was not engaged in a highspeed chase (as in Lewis), he was responding to an emergency call. Because there was no evidence that he intended

to cause any harm, the district court correctly granted

summary judgment for Simpson on this claim.

In sum, the district court’s judgment on the negligence

and substantive-due-process claims is AFFIRMED; the

judgment on the willful-and-wanton-conduct claim is
8 No. 02-3978

REVERSED and REMANDED for further proceedings consistent with this opinion.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-13-03