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Kawaguchi v. Gainer9/16/2005
ff injury. Plaintiff also claimed that crashing into Trooper Gainer caused the collision between plaintiff and Effinger, whom plaintiff also sued. Plaintiff further claimed that, although Trooper Gainer was a State Police officer, she was an employee of the Authority or, if not a regular employee, a borrowed one. On this theory, plaintiff sued the Authority too.
Trooper Gainer filed a motion to dismiss, arguing that, although the suit was nominally against her, it was in essence a suit against the State. Therefore, Trooper Gainer argued, the circuit court lacked jurisdiction over the case pursuant to the doctrine of sovereign immunity; the proper forum, Trooper Gainer argued, was the Court of Claims. Plaintiff did not respond to Trooper Gainer's motion within the time allotted. Instead, after that time had expired, plaintiff asked the trial court to allow her more time to respond. The trial court granted plaintiff's request.
In May 2004, the trial court held a hearing on Trooper Gainer's motion to dismiss. Because it found that Trooper Gainer's actions in responding to an emergency call were unique to her position as a member of the State Police, the trial court concluded that sovereign immunity applied. Accordingly, the trial court concluded that it lacked jurisdiction. During the hearing, plaintiff's attorney pointed out that, in an affidavit filed by Effinger in his suit against Trooper Gainer, Effinger claimed that Trooper Gainer's flashing lights and siren were not activated at the time of the accident. However, because Effinger's affidavit was not before the trial court, it did not consider the affidavit.
Just under 30 days later, in June 2004, plaintiff filed a motion to reconsider. In that motion, plaintiff argued that Effinger's affidavit constituted newly discovered evidence that was not earlier available. Plaintiff further argued that Effinger's affidavit created a genuine issue of material fact as to whether Trooper Gainer was acting in a way unique to her employment as a State Police officer. That is, according to plaintiff, if Trooper Gainer was driving without her flashing lights and siren on, then her conduct in responding to an emergency call by driving south through Interstate 88's westbound lanes would not be unique to her position. Plaintiff argued that this was so, notwithstanding that police responding to emergency calls may disobey regulations governing the direction of traffic flow regardless of whether they have their flashing lights and siren on. See 625 ILCS 5/11--205(d) (West 2002).
In July 2004, the trial court held a hearing on plaintiff's motion to reconsider. Although the trial court stated that it was "not sure why [Effinger's affidavit] couldn't have been discovered well before the first go around," it granted plaintiff's request that it consider Effinger's affidavit. Taking the affidavit as true, the trial court found the fact that Trooper Gainer may not have had her flashing lights and siren on did not change the conclusion that she was acting in a way unique to her position when she responded to the emergency call. Thus, the trial court denied plaintiff's motion to reconsider.
In September 2004, the trial court considered the Authority's motion to dismiss. By now, plaintiff had conceded that Trooper Gainer was a member of the State Police and not an employee of the Authority. As plaintiff put it, "[plaintiff] acknowledges that Gainer was employed by the State Police at the time of the incident." Nevertheless, plaintiff claimed that a genuine issue of material fact existed as to whether Trooper Gainer was a borrowed employee of the Authority at the same time. Specifically, plaintiff argued that this was so because the Aut
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