In re Scales Mound Fire Protection District

OPINION

Sprague, C.J.

This Claim was filed on August 16, 2010, arising from the death of Kurt M. Meusel on May 22, 2010 from injuries sustained as a volunteer firefighter with the Scales Mound Fire Protection District. 820 ILCS 315/1 et seq (Line of Duty Compensation Act) mandates that the Attorney General's (AG's) Office investigate claims for compensation under the Act. In accordance with this mandate, the AG's Office filed its Report on September 28, 2010, which included such documents as the Scales Mound Fire Protection District Statement of Beneficiary [*295] naming Firefighter Meusel's fiancée Kara Ann Homb as beneficiary, the Medical Examiner's Certificate of Death, the Jo Daviess County Coroner's Report, Autopsy Report, Toxicology Analysis, and various other reports made by the Scales Mound Fire Protection District and the Jo Daviess County Sheriff.

In its Report of September 28, 2010, the Attorney General recommended that the Court

determine through assignment to a Commissioner, and a hearing if necessary, whether

Firefighter Meusel was "killed in the line of duty," as defined in section 2(e) of the Act

On October 15, 2010 this Court ordered that this cause be assigned to a Commissioner to

take and file evidence as to whether Firefighter Meusel was "killed in the line of duty," as

defined in section 2(e) of the Act, and to resolve other matters as may be necessary to reach a

determination of this claim. A hearing was held before a Commissioner on April 5, 2011.

Firefighter Meusel's fiancée Kara Homb, her father Paul Homb, Firefighter Meusel's parents,

Susan and Mike Meusel, Chief Carl Winter of Scales Mound Fire Protection District, and

Lieutenant Joanne Zito of Scales Mound Fire District were all given an opportunity to speak on

the record at the hearing.

FACTUAL BACKGROUND

The Jo Daviess Sheriff’s Office Report indicates that on May 22, 2010, at about 8:44 p.m., officers had been dispatched to 6508 North Pea Ridge Rd, Scales Mound, IL in reference to a missing elderly man. While en route to the residence, the officers instructed the dispatch center to "page out" the Scales Mound Fire District and the Jo Daviess County K9 Unit for assistance with the search. According to the Sheriff’s Office Report, when the officers arrived at the residence around 8:58 p.m., several members from the Scales Mound Fire District were already on the scene. Chief Winters concurred that he received a page around 8:44 p.m. and [*296] indicated that he arrived at 6508 North Pea Ridge Rd. between 8:54 and 8:59. However, he stated that the Jo Daviess Sherriff’s officers had arrived before anyone from Scales Mound Fire District arrived.

Chief Winters recalled that he received another page around 9:14 p.m. This page was regarding Volunteer Firefighter Kurt Meusel, who had left his home on his four-wheel ATV in response to the page. While en route to search for the lost man, Firefighter Meusel got into a fatal accident in his ATV on North Mill Creek Road, a gravel road in Thompson Township. His body was found face down on the east edge of the roadway. His ATV was found upside down in a ditch with deer hair in the radiator, and was located 30 to 50 feet ahead of Firefighter Meusel.

The body of a deer was found in the ditch in close proximity to Firefighter Meusel. Chief Winters stated that Firefighter Meusel's house was about half a mile from the accident scene and about six miles from 6508 North Pea Ridge Rd.

The Medical Examiner's Certificate of Death states that Firefighter Meusel was pronounced dead at the scene of the accident on May 22, 2010 and that the cause of his death was blunt trauma to the head. The Jo Daviess County Coroner's Report, Autopsy Report, and Toxicology Analysis contain laboratory findings that Firefighter Meusel's blood alcohol level was 0.191 %.

Respondent and Claimant were given the opportunity to present accident reconstruction testimony but declined. Also, both Claimant and Firefighter Meusel's beneficiary declined to have an attorney represent them in this claim. At this Court's Request, Claimant produced the Scales Mound Fire Protection District Standard Operating Procedures in effect at the time of the incident.6

6 In wake of this tragedy, the Fire Protection District enacted new Bylaws of the Volunteer Fire Departments

of the Scales Mound Fire Protection District, which were provided to the Court (the previous bylaws were from [*297]

Paragraph 3 of Provision 2 of the Scales Mound Fire Protection District Standard Operating Procedures states, "The drivers of the emergency vehicles and Firefighters responding in personal vehicles will obey all traffic laws." Paragraph 2 of Provision 15.0 states, "Emergency vehicle drivers will not drink and drive." Paragraph 13 of the same provision addresses firefighters responding to calls in their personal vehicles and reiterates, "Driver's must obey all traffic laws." Paragraph 13 also states that firefighters responding in their personal vehicles must attach a flashing blue strobe light to alert the public that the vehicle is responding to an emergency. Pursuant to Provision 1, all members of the Volunteer Fire Department must read and understand the Scales Mound Fire Protection District Standard Operating Procedures.

Chief Winters testified at the hearing that the Scales Mound Fire District was totally voluntary and that the volunteers were on call "24/7." All of the volunteer firemen got voice/tone pagers that they were to carry at all times. He explained that when there was an emergency, the Jo Daviess County Sherriff’s Department would page the members of the Fire District, and then the volunteer firemen who were available responded. By "available" Chief Winters clarified that responding to a call was a "personal decision that a volunteer firefighter made based on whether he was in the area, whether he felt that he could respond to that cause."

Winters noted that when a call was over and volunteers were no longer needed, the volunteers 1949 and, according to Chief Winter, were a paragraph long). Section 3 of the new Bylaws states, "There will be no alcohol or illegal substance abuse allowed or tolerated while responding to an emergency situation or responding to the Fire Station."

Also in the wake of this tragedy, the District added provision #57.0, "Personal Vehicle Operations" to the Standard Operating Procedures in July 2010 to emphasize its position regarding drinking and driving and safe vehicle operation. The relevant paragraphs under the heading "Responsibility" state the following:

1. It is the sole responsibility of the individual to properly drive and operate their personal vehicle while

responding to the station and emergency incident.

2. The individual is expected to operate the vehicle safely, obey all applicable State or Illinois Rules of the Road,

and show due regard for public safety.

3. It is not implied that the Fire Department personnel shall at anytime be encouraged or authorized to operate

their personal vehicle unsafely and without due regard especially when responding to an emergency incident.

4. There will be no alcohol or illegal substance abuse allowed or tolerated while responding to an emergency

situation or responding to the Fire Station (this paragraph reiterates verbatim Section 3 of the Bylaws of the

Volunteer Fife Departments of the Scales Mound Fire Protection District).

[*298] were all notified on their pagers.

Claimant offered statistics compiled by the Illinois Department of Natural Resources reporting that 3,945 deer were removed in Jo Daviess County during the 2010 Deer hunting /archery season. Claimant also offered Jo Daviess County Sheriff's Traffic Accident statistics for 2010, reporting 401 total traffic accidents, of which 132 (about 32.92%) involved deer. Further, Claimant submitted a letter written by Roselynn Y. Marsh, who wrote that she has lived in Jo Daviess County for approximately 35 years and can personally attest to the dangerousness the deer population presents by suddenly running into the direct path of oncoming vehicles. Mrs.

Marsh recalled that during a fourteen week period, she had two collisions with two different deer in two different vehicles while driving at night in Jo Daviess County. Both collisions caused extensive front-end damage and had been reported to the police.

Claimant submitted several other letters into evidence as well. Letters admitted into evidence written by Firefighter Meusel's mother Sue Meusel, and by his younger brother and younger brother's wife, Sean and Katie Meusel, indicate that on May 22, 2010 Firefighter Meusel was with Scales Mound Fire District helping with a triathlon from morning until noon.

Chief Winter confirmed this when he testified at the April 5 hearing, explaining that Firefighter Meusel and other members of the fire crew were watching the triathlon route for accidents and things of that nature.

According to Sean and Katie's letter, Firefighter Meusel returned from the triathlon to his home (the one he shared with Kara at 1521 North Hoppe, Elizabeth, IL) to help with the installation of a DISH satellite. He then went to Scales Mound with Sean to get a skid loader, and they returned to Schapville to do landscaping work. Around 5 p.m. Firefighter Meusel, Sean, and their father Mike went to buy an old boat needing repair. They came back to Mike [*299] and Sue's house (627 E. Schapville Road, Scales Mound, IL) around 6 p.m. and started working on the motor until almost dusk. When Mike started grilling steak and potatoes around 8:45 p.m., Firefighter Meusel got the page regarding the missing elderly man.

Since Firefighter Meusel's truck was hooked up to the trailer that the skid loader was on, he took the ATV he had at his parents' house. Sean and Katie Meusel noted in their letter that the ATV would be easy to take into the woods where he was going to search for the elderly man.

Before proceeding to search for the man, however, Firefighter Meusel drove to his house so he could pick up his fire jacket and affix the blue strobe light to his ATV. He then drove past his parents' home on his way to begin the search. Sue Meusel recalled in her letter that, as he passed her house, he quickly stopped and asked Kara for his pack of cigarettes and said, "I know where he is; I'll be right back - love ya!"

Chief Winters noted at the hearing that two days prior to the incident in question, the Scales Mound Fire District, including Firefighter Meusel, conducted a search and rescue with the neighboring Elizabeth Fire Department. From 5:30 p.m. to midnight, they were using ATV's to search for a missing person in the Galena territory. Winters opined, "I can only imagine what went through Kurt's head knowing that he needed to respond like we did just two nights prior to that using ATVs for my search." Winters also stated that Firefighter Meusel knew that area very well - better than he did even.

In two other letters Claimant submitted into evidence, written by Jeffrey Korte, Firefighter Meusel's employer at Korte Farms, and William B. Miller, Coroner of Jo Daviess County, both men indicate that Firefighter Meusel was very familiar with the area where the accident occurred. Miller also offered his personal feelings that, "[e]ven though Kurt Meusel had alcohol in his system, I believe this accident could not be avoided due to location, dark [*300] surroundings with no street lights, and the ATV vehicle being struck by a deer coming from the field/ditch area." At the hearing, Chief Winters also noted that the grass in the field was very tall - that is why it was not so easy to immediately find the deer carcass.

We must note that despite numerous people describing the events of the day that preceded Firefighter Meusel's tragic accident, none mentioned anything about an event that, based on the toxicology report, obviously occurred: Firefighter Meusel's consumption of a sufficient quantity of alcoholic beverages that placed his blood alcohol level in an amount in excess of twice the legal limit in Illinois.

ANALYSIS

The decedent having been "killed in the line of duty" is a precondition to granting a claimant compensation under the Line of Duty Compensation Act. The relevant portion of 820 ILCS 315/2(e) provides the following definition for "killed in the line of duty"

"Killed in the line of duty" means losing one's life as a result of injury received in

the active performance of duties as a law enforcement officer, civil defense

worker, civil air patrol member, paramedic, fireman, or chaplain if the death

occurs within one year from the date the injury was received and if that injury

arose from violence or other accidental cause...The term excludes death

resulting from the willful misconduct or intoxication of the officer, civil

defense worker, civil air patrol member, paramedic, fireman, chaplain, or

State employee. However, the burden of proof of such willful misconduct or

intoxication of the officer, civil defense worker, civil air patrol member,

paramedic, fireman, chaplain, or State employee is on the Attorney General.

(emphasis added).

Here, Firefighter Meusel was responding to a call when his fatal accident occurred, and he was pronounced dead at the scene of the accident; so his death occurred within a year of an injury that arose in the active performance of his duties as a volunteer fireman. Further, his injury arose from an accidental cause: he suffered blunt trauma to the head in an ATV accident.

However, the Jo Daviess County Coroner's Report, Autopsy Report, and Toxicology Report [*301] contain laboratory findings that Firefighter Meusel's blood alcohol content was .191%. The issue before this Court is whether Claimant's claim should be denied because Firefighter Meusel's death was the result of intoxication or willful misconduct. Pursuant to 820 1LCS 315/2(e), the burden of proving such willful misconduct or intoxication is on the AG's Office.

To prove that a decedent's blood alcohol concentration rendered him intoxicated at the time of his death, Respondent must establish the legal significance of said concentration. See In re Application of Warren H. Yoho and Maridell A. Yoho (1989), 42 Ill. Ct. Cl. 249 (finding that the State had failed to prove that decedent's fatal fall off a balcony was the result of intoxication because the State did not establish the significance of decedent's .225 blood alcohol level in a non-vehicle-related accident).

Here, Respondent has introduced the significance of Firefighter Meusel's .191% blood alcohol level. Respondent notes in its Report, pursuant to 625 ILCS 5/11-501 (a)(1), a person shall not drive or be in actual physical control of any vehicle within this State while the alcohol concentration in the person's blood or breath is .08 or more. Firefighter Meusel's blood alcohol concentration was more than twice this legal limit.

Respondent also references Section 11-501.2(b)(3), which provides that upon any criminal or civil proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a vehicle while under the influence of alcohol, "if there was at that time an alcohol concentration of .08 or more, it shall be presumed that the person was under the influence of alcohol." Although this presumption does not limit the admission of other relevant evidence regarding whether the decedent was under the influence of alcohol at the time of his fatal accident, no such evidence was presented to rebut this legal presumption in the case at bar. Thus, we find that Firefighter Meusel was intoxicated when his [*302] fatal accident occurred. See In re Application of Reininger, (finding that the decedent's death was the result of intoxication where his blood alcohol level was .207 (which was .207 times the .1 limit at the time) when he drove his unmarked police car into the rear of a truck).

However the AG's Office still needs to prove that Firefighter Meusel's death was a result of his intoxication. Here, the evidence gathered at the accident scene indicated that Firefighter Meusel had an accident with a deer. But the AG offers no evidence (such as accident reconstruction reports or testimony) indicating how, if at all, Firefighter Meusel's accident with the deer was the result of his intoxication. Further, Claimant introduced evidence that deer accidents are not uncommon in Jo Daviess County, which has a large deer population - almost one third of the 401 traffic accidents reported in Jo Daviess County in 2010 involved deer. Thus, there was at least a possibility that Decedent's accident could have occurred even absent his intoxication. This fact coupled with the lack of any evidence presented by the AG's Office showing how Firefighter Meusel's intoxication caused his death, leaves us to find that the burden of proof that Firefighter Meusel died as a result of his intoxication has not been met.

We next turn to whether Firefighter Meusel's death was the result of willful misconduct.

In In Re: Application of Louise E. Jobe (1982), 35 Ill.Ct.Cl. 404, the most recent case discussing the meaning of "willful misconduct" under the Act, the Court found that no willful misconduct occurred where a police officer responding as backup to a domestic violence call waited at a railroad intersection for a southbound train to pass and immediately drove past the still lowered railroad-crossing gates and was struck and killed by a northbound train that he could not see before crossing the railroad tracks. The Court reached this holding despite the Des Plaines Police Department rule stating that emergency calls should be answered "consistent with normal safety precautions and vehicle laws;" the Illinois Motor Vehicle Code provision proscribing [*303] driving through, under, or around railroad-crossing gates; and the fact that there was no exception to this rule under the emergency-vehicle exceptions provision of the Code.

Since the Act does not define '"willful misconduct," the AG's Office in Jobe submitted a memorandum noting that willful or wanton misconduct was a prerequisite in several statutory causes of action in Illinois. Specifically, the AG's Office recommended using the definition of "willful and wanton misconduct" used in cases regarding the "Guest Statute" in the Illinois Motor Vehicle Code: "willful and wanton misconduct is a conscious disregard for one's own safety and that of others."7

This definition is consistent with definitions in other tort-related contexts. See Oelze v.

Score Sports Venture, LLC 401 Ill.App.3d 110, 123, 927 N.E.2d 137, 149, 339 Ill.Dec. 596, 608 (Ill.App. 1 Dist. 2010) (discussing willful and wanton acts in the context of plaintiffs challenge to a release of liability and finding, "Willful and wanton acts show actual or deliberate intent to harm or, if not intentional, show an utter indifference to or conscious disregard for a person's own safety or the safety or property of others."); Burke v. 12 Rothschild's Liquor Mart, Inc., 148 Ill.2d 429, 452, 593 N.E.2d 522, 532, 170 Ill.Dec. 633, 643 (Ill. 1992) (discussing "willful and wanton conduct" in the context of contributory negligence and finding, "Willful and wanton conduct is found where an act was done with actual intention or with a conscious disregard or indifference for the consequences when the known safety of other persons was involved."); see also 745 ILCS 10/1-210 (Illinois Local Governmental and Governmental Employees Tort Immunity Act)(defining willful and wanton conduct as "a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to

The Guest Statute in place during that time period limited a driver's liability to a gratuitous automobile passenger to only those situations where the driver was guilty of willful misconduct. In Re: Application of Louise E. Jobe, (1982), 35 Ill.Ct.Cl. 404.

[*304] or conscious disregard for the safety of others or their property).

The Court in Jobe declined to accept this standard definition to the extent that it included "disregard for one's own safety." The Court reasoned that, "[t]he very nature of a law enforcement officer's duties require that he take risks to which the ordinary public is not even exposed...To hold that a law enforcement officer was engaged in willful misconduct when he exhibited a disregard for his own safety would be contrary to the purposes of the Act and disqualify many deserving officers." Nonetheless, the Court declined to set a standard definition for "willful misconduct," noting that "the determination should be made on a case-by-case basis which allows for taking into consideration all of the attendant circumstances of the incident."

In finding that Officer Jobe had not engaged in willful misconduct under the Act, the Court noted that even though he violated a provision of the Illinois Motor Vehicle Code, he did not endanger anyone's safety but his own; he was not intentionally trying to hurt himself; and he was responding as a backup officer to a domestic disturbance call, which he thought it imperative to answer immediately.8 The Court noted that although Officer Jobe may have been negligent and with perfect hindsight perhaps exhibited poor judgment, under the circumstances, he was not engaged in willful misconduct as contemplated in the Act.

In the case at bar, Volunteer Firefighter Meusel violated Illinois motorist laws against intoxicated driving. Unlike the provision violated by the officer in Jobe, which was a petty offense, the provision violated here was, at a minimum, a Class A misdemeanor.9 Further, in Jobe, the officer's decision to bypass the lowered gate only exposed him to danger - and that also for a small segment of time, the time it took to cross the railroad tracks. Conversely, Firefighter

Counsel for both sides agreed (the call was dangerous. According to an F.B.I, report, domestic disturbance calls were responsible for the highest percentage of police officer fatalities between 1970 and 1979.

Pursuant to 625 ILCS 5/11-1201 "Obedience to signal indicating approach of train or railroad track equipment," a violation of this Section, "is a petty offense for which a fine of $250 shall be imposed for a first violation."

[*305] Meusel drove his ATV intoxicated: driving while intoxicated exposes not only the intoxicated driver to danger, but also to the people and property around him - the entire time the intoxicated driver is on the road.

Given the totality of these circumstances, we find that Firefighter Meusel exhibited a conscious disregard for his own safety and that of others when he drove his ATV while over twice the legal limit - in direct violation of Illinois traffic safety laws as well as Scales Mound Operating Procedures aimed at ensuring the safety of firefighters and the public at large. When he got the page, it was his decision whether he could be available to take the call. It was his personal decision to get on the ATV after he had been drinking alcohol. Had he decided not to take the call because he wanted to obey the Scales Mound Standard Operating Procedures and Illinois law, and not drive intoxicated, he would not have driven the ATV, and the accident would not have occurred. Therefore, we find that Firefighter Meusel's death was the result of willful misconduct.

Firefighter Meusel's effort to help find an elderly man was undoubtedly noble and in the highest tradition of volunteer service. Our finding of willful misconduct on his part should in no way be interpreted as detracting from his heroic and longstanding commitment to serving his community. Benefits under the Illinois Line of Duty Compensation Act, like everything else, have limitations. The Illinois Legislature in its deliberation has sought fit to limit compensation under this Act by precluding deaths that are the result of will fill misconduct or intoxication. We must therefore deny Claimant's claim.