Many other courts also have imposed liability for mere negligence, but placed great emphasis on the circumstances of emergency action. See Rutherford v. Alaska, 605 P.2d 16, 18-19 n. 5 (1979); Torres v. City of Los Angeles, 58 Cal.2d 35, 22 Cal.Rptr. 866, 372 P.2d 906,916 (1962); Bouhl v. Smith, 130 Ill. App.3d 1067, 86 Ill. Dec. 247, 475 N.E.2d 244, 246-47 (1985); Belding v. Town of New Whiteland, 622 N.E.2d 1291, 1293 (1993); Thornton v. Shore, 233 Kan. 737, 666 P.2d 655, 661 (1983); Stenberg v. Neel, 188 Mont. 333, 613 P.2d 1007, 1010 (1980); Lee v. City of Omaha, 209 Neb. 345, 307 N.W.2d 800, 803 (1981); Fielder v. Jenkins, 274 N.J. Super. 485, 644 A.2d 666, 668 (Ct.App. Div. 1994); Siburg v. Johnson, 249 Or. 556, 439 P.2d 865, 870 (1968); Brown v. Spokane County Fire Protection Dist. No. 1, 100 Wn.2d 188, 668 P.2d 571, 574-76 (1983). Of course, a negligence inquiry always considers what a reasonably prudent person would do under the same or similar circumstances.
Finally, Jerelyn argues that Illinois law has held that poor weather conditions are not a valid excuse for one's failure to control a vehicle. Bouhl v. Smith, 130 Ill. App. 3d 1067, 1070 (1985). Therefore, Jerelyn concludes, as a matter of law, the trial court did not err in not giving the sole proximate cause instruction with respect to the weather.
Thus, the statutes are not in conflict, and the Tort Immunity Act bars a cause of action against Ottawa based on alleged ordinary negligent conduct. Plaintiffs argue that our decision in Bouhl v. Smith, 130 Ill.App.3d 1067, 86 Ill.Dec. 247, 475 N.E.2d 244 (1985), belies this result. Although the Bouhl court determined that ordinary negligence was the applicable standard under the vehicle code, it did not consider the provisions of the Tort Immunity Act in its analysis and is not precedential.
However, under the facts of this case it would not appear that an increase of fault or responsibility to Patton and a decrease of Gallier's fault or responsibility as defendant suggests would be clearly evident, plain, or indisputable. Defendants cite Bouhl v. Smith (1985), 130 Ill. App.3d 1067, 475 N.E.2d 244, in which the reviewing court, after reciting that drivers of emergency vehicles are held to ordinary standards of care determined by what a reasonable, prudent driver would do, determined that the trial court should have granted a directed verdict on liability to the plaintiff driver of the nonemergency vehicle. In Bouhl, plaintiff's vehicle was stopped at the end of a line of traffic approaching an intersection.
There was testimony that there were vehicles waiting to turn left which could have obstructed defendant's view. Although the statute imposes a duty upon drivers to yield the right-of-way to emergency vehicles, the evidence must show that defendant was negligent in failing to do so, and that was not shown here. Cf. Bouhl v. Smith (1985), 130 Ill. App.3d 1067, 475 N.E.2d 244. In addition, plaintiff did not establish that its police car siren was sounding prior to the moment the police car entered the intersection or, in other words, in time to prevent defendant from entering the intersection in front of the police car.
"(b) This Section shall not operate to relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway." In Mayfield v. City of Springfield (1982), 103 Ill. App.3d 1114, 432 N.E.2d 617, and Bouhl v. Smith (1985), 130 Ill. App.3d 1067, 475 N.E.2d 244, it was held that the ordinary negligence standard applies to operators of emergency vehicles. The defendant City of Collinsville would be immune from liability only under the provision of section 2-109 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 2-109), which provides that a "local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable."