A state appeals panel has ruled a man cannot sue a suburban police officer for not arresting him for drunken driving, which the man said would have saved him from crashing his SUV shortly after his encounter with the officer and suffering injuries, saying the driver should not be rewarded for his own criminal act.
The Aug. 19 ruling was penned by Justice LeRoy Martin Jr., with concurrence from justices Bertina Lampkin and Robert Gordon, of Illinois First District Appellate Court. The decision favored the village of Park Forest and village police officer James Kessler, in an action brought by Marcos Rodriguez.
The ruling was filed under Illinois Supreme Court Rule 23, which limits its use as precedent.
On Dec. 7, 2017, Rodriguez became intoxicated at a friend's house in Park Forest, court papers said. He then tried to drive at 5:30 a.m. to his home in New Lenox, but rear ended a vehicle that was stopped at a red light in Park Forest. There were no injuries and slight damage. Officer James Kessler was called to the scene by the other driver, who told Kessler that Rodriguez's SUV had been weaving.
Kessler approached Rodriguez, who remained in his car, asking for proof of insurance. Rodriguez twice handed over wrong papers, including a utility bill, before providing his insurance card. Kessler asked Rodriguez where he lived, with Rodriguez "rattling off" several numbers, according to court papers. Kessler said he did not smell alcohol, although his sense of smell was impaired by congestion caused by a cold.
Rodriguez clearly recited his phone number after he was asked. Kessler then told Rodriguez to pay better attention and to drive away. Rodriguez did not immediately heed Kessler's direction, but eventually drove away. About 20 minutes later and 12 miles away, Rodriguez fell asleep and crashed. He had a blood alcohol content of .24, which is three times above the legal intoxication limit. Rodriguez' spine and ribs were injured, causing him to undergo back surgery. He pleaded guilty to driving under the influence, according to court documents.
In 2018 in Cook County Circuit Court, Rodriguez sued Kessler and Park Forest for negligence and willful and wanton conduct. Rodriguez alleged Kessler should have noticed he was drunk and arrested him, which would have prevented Rodriguez from later crashing and injuring himself.
Cook County Circuit Judge Christopher Lawler threw out the case, finding Kessler and the village were immune because they could not be held liable for failing to furnish protection or service.
On appeal, Justice Martin agreed.
"Rodriguez’s injury resulted from his own criminal conduct. Illinois courts have recognized the 'long-standing principle that we should not assist parties whose own illegal acts have contributed in the cause of damages. Rather, we must leave [such plaintiffs] where they chose to place themselves,'" Martin said, quoting a 1925 Illinois Supreme Court opinion.
Martin elaborated, "As Rodriguez stated in his deposition, he made the decision to take his chances when he drove away from" his friend's "house after consuming an entire bottle of whiskey, despite knowing he was intoxicated. Beyond that, after Kessler allowed him to drive away, Rodriguez made the 'hardheaded' [Rodriguez' word] decision to continue driving notwithstanding his own realization, at that time, that it was unsafe. Thus, since he chose to place himself in a position to be injured, we must leave him there."
Martin also echoed Lawler's view that Kessler owed no duty under the law to Rodriguez. Martin further said that even if a duty was owed, the state Tort Immunity Act confers immunity from liability to police if they fail to provide adequate protection or service.