dissenting:
The majority concludes that an Evanston police officer transporting a prisoner who is under arrest, from the Skokie lockup to the Evanston lockup at 2:45 a.m., is not engaged “in the execution or enforcement of any law” and, therefore, cannot invoke section 2 — 202 of the Local Governmental and Governmental Employees Tort Immunity Act. To reach this conclusion the majority erroneously states that the court in Anderson v. City of Chicago (1975), 29 Ill. App. 3d 971, 331 N.E.2d 243 held “that a pedestrian who was struck by a police officer transporting two prisoners in a squad car was not required to show willful or wanton negligence by the Tort Immunity Act. The court affirmed the trial judge’s finding that ‘although Officer Vivrin was on duty and in the course of his employment at the time of the occurrence, he was not enforcing or executing any laws.’ ” 201 Ill. App. 3d at 406, quoting Anderson, 29 Ill. App. 3d at 977.
On the contrary, in Anderson, there is no reference to any arrest or the destination of any prisoners. In the case at bar, the defense vigorously asserts that the transportation of a prisoner under arrest at 2:45 a.m. is the “execution or enforcement” of the law which supports tort immunity for the officer. In Anderson the defense did not assert that Officer Vivrin was engaged in the transport of two prisoners when his squad car and plaintiff, a pedestrian, were involved in an accident. The court held that
“defendants’ argument is directed primarily toward the issue of contributory negligence. *** The fact that two police officers testified that plaintiff was not in the crosswalk and that she turned back into the car does not, of itself, show that the decision for plaintiff was against the manifest weight of the evidence. Plaintiff’s testimony that she was in the crosswalk was corroborated expressly by Johnnie Mae Thomas and inferentially by Officer Mugnolo. The trial judge saw and heard the witnesses and we are unable to state that his judgment is against the manifest weight of the evidence.” (Emphasis added.) Anderson, 29 Ill. App. 3d at 975.
It is therefore wrong to assert that Anderson stands for the principle that the transportation of a prisoner under arrest at 2:45 a.m. by a police officer is not the “execution or enforcement” of any law that would support tort immunity for the officer.
The majority states that Anderson relied on Arnolt v. City of Highland Park (1972), 52 Ill. 2d 27, 282 N.E.2d 144. In Arnolt, the court used a hypothetical illustration in deciding an issue dealing with pleadings. The example stated “[a] policeman, while merely cruising in a vehicle in the line of duty, may not be afforded immunity under the Tort Immunity Act in that the factual determination of the situation may indicate that he was not at the time executing or enforcing a law.” (Emphasis added.) (52 Ill. 2d at 34.) Even if this is not dicta, the court did not say that “cruising in a vehicle while on duty” is not “executing or enforcing a law” that would not afford immunity. The court merely said that under the example it “may” or may not be an act of “executing or enforcing a law.” The court obviously recognized that there is a factual difference between cruising in the vicinity of the county jail immediately after two convicted murderers escaped and cruising in a crime-free residential area.
In my opinion, the majority continues to interpret section 2 — 202 in the narrowest possible manner, contrary to recent decisions of our supreme court broadening the protection afforded to police officers against liability for negligent acts committed while carrying out and upholding the law.
Fitzpatrick v. City of Chicago (1986), 112 Ill. 2d 211, 492 N.E.2d 1292, and Thompson v. City of Chicago (1985), 108 Ill. 2d 429, 484 N.E.2d 1086, are recent pronouncements of our supreme court that the narrow construction the courts placed upon section 2 — 202 in cases such as Anderson and Arnolt will no longer be accepted.
In Thompson, our supreme court expressed the view that “[e]n-forcing the law is rarely a single, discrete act, but is instead a course of conduct.” (108 Ill. 2d at 433.) Approximately one year later, our supreme court commented on this new attitude toward section 2 — 202 when it decided Fitzpatrick:
“[In Thompson] [w]e expressed the view that an interpretation of section 2 — 202 of the Tort Immunity Act *** which granted immunity only where the specific, allegedly negligent act was one of execution or enforcement was ‘overly narrow.’ [Citation.] Thus, where the evidence establishes that at the time of his alleged negligence a public employee was engaged in a course of conduct designed to carry out or put into effect any law, an affirmative defense based upon sections 2 — 202 and 2— 109 of the Tort Immunity Act [citation] should be available to the governmental employee and his employer.” Fitzpatrick v. City of Chicago (1986), 112 Ill. 2d 211, 221, 492 N.E.2d 1292.
The only fair reading of Fitzpatrick is that Anderson and the line of cases it represents are no longer good law. In Trepachko v. Village of Westhaven (1989), 184 Ill. App. 3d 241, 540 N.E.2d 342, appeal denied (1989), 127 Ill. 2d 642, the defendant police officer stopped a motorist for a traffic violation on a divided highway. The motorist stopped in the right-hand traffic lane and the officer directed him to move the car across the other lane to the median strip. During the movement, the car was struck by a motorcycle. The driver and passenger of the motorcycle suffered fatal injuries.
Their estates sued the village and the officers for damages caused by the negligence of the police officer.
Defendants contended that section 2 — 202 conferred immunity against the claims. This court affirmed the dismissal of the claims on the basis of Fitzpatrick. (Trepachko, 184 Ill. App. 3d at 247, 251.) Our supreme court denied leave to appeal.
Trepachko is particularly relevant because of a significant fact it has in common with the case at bar. In each case, the accident occurred during movement of a person under police control from one place to another. In Trepachko, the officer directed the person stopped for a traffic violation to drive from one side of the road to the other. In the case at bar, the officer was driving the squad car in which the prisoner was being transported to a lockup. Citing Fitzpatrick, this court held that the police officer in Trepachko was immune from liability under 2 — 202 of the Tort Immunity Act and noted that the concept of immunity is expanding where police officers are “providing police services [citations] or executing, enforcing or implementing any law. [Citations.]” Trepachko, 184 Ill. App. 3d at 247.
Based on the foregoing, I would reverse the judgment of the circuit court of Cook County and remand this cause with directions to enter judgment for the defendants.