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Kawaguchi v. Gainer9/16/2005
y this State with respect to such policing service, including, but not limited to, the costs of: (1) compensation and training of the State policemen *; and (2) uniforms, equipment, supplies and housing used by such personnel; and (3) reimbursement of such sums as the State expends in connection with payments of claims for injuries or illnesses suffered by such personnel in the line of duty"). Plaintiff fails entirely to explain how, by merely complying with applicable law, the Authority and State Police created a borrowed employment situation.
Fourth, no evidence suggests that the Authority had the power to discharge Trooper Gainer from District 15. On the contrary, the evidence demonstrates that the State Police had the power to assign, substitute, or discharge officers assigned to District 15.
Fifth, in patrolling the tollway, Trooper Gainer performed the type of duty entrusted to her by her general employer; that is, the duty of policing. See Restatement (Second) of Agency §227, Comment b (1957).
In sum, the evidence shows that the State Police, rather than the Authority, had the right to control Trooper Gainer. Indeed, the only factor that marginally favors a different conclusion, i.e., that the Authority provided equipment and wages for Trooper Gainer, is unconvincing in light of the statutory framework that controlled the dealings between the Authority and the State Police. In short, plaintiff has failed to meet her burden of establishing that a borrowed employment relationship existed here. See Restatement (Second) of Agency §227, Comment b (1957); see also Foster v. Englewood Hospital Ass'n, 19 Ill. App. 3d 1055, 1060 (1974) ("The relationship of employer-employee is not an ephemeral one to be imposed or removed lightly").
Because plaintiff has not met her burden of establishing a borrowed employment relationship, the Authority is not vicariously liable for any negligence on Trooper Gainer's part. This being so, it is unnecessary to consider the Authority's contention that, even if Trooper Gainer was its employee, it did not waive sovereign immunity as to her actions. Rather, having concluded that Trooper Gainer was an employee of the State Police, we turn now to consider whether sovereign immunity applies.
D. Sovereign Immunity
The trial court dismissed plaintiff's claims against Trooper Gainer pursuant to the doctrine of sovereign immunity. Under the Illinois Constitution of 1970, sovereign immunity exists as the General Assembly provides by law. Ill. Const. 1970, art. XIII, §4; see also Currie v. Lao, 148 Ill. 2d 151, 157-58 (1992). Pursuant to this authority, the General Assembly enacted the State Lawsuit Immunity Act, which provides that the State may not be made a defendant in any court except as provided in the Court of Claims Act (705 ILCS 505/1 et seq. (West 2002)). 745 ILCS 5/1 (West 2002). The Court of Claims Act, in turn, provides that the Court of Claims has exclusive jurisdiction over tort claims for damages against the State. 705 ILCS 505/8(d) (West 2002).
The determination of whether an action is in fact against the State does not necessarily depend on whether the State is named as a party to the action. Hickey v. Huber, 263 Ill. App. 3d 560, 562 (1994). Rather, the determination turns on whether judgment for the plaintiff could operate to control the actions of the State or subject it to liability. Postich v. Hendrichs, 267 Ill. App. 3d 236, 239 (1994). If so, then the action must be found to be a claim against the State, even if the action is nominally brought against a State employee in his or her individual capacity. Currie, 148 Ill. 2d at 158. The rationale for this rule is simple: were it otherwi
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