*1 рroperly and advise that settlements in this area be a setoff of the entire settlement. drafted so as to avoid case, Thus, injuries two existed. separate the instant counsel should allocated the amount plaintiff’s have injuries received in the first settlement between the two setoff of the entire amount. In such a preclude so as to case, we note that the consideration received for each the same allocated to that release of claim would be claim, promise supported for each of release would be applies consideration. The same to the Ford separate settlement. reasons, foregoing judgments
For reversed, are and the cause appellate circuit and courts entry circuit court of a setoff of is remanded to the in the settlements with Zieba and the amounts received Ford. reversed; court
Appellate reversed; court circuit with directions. cause remanded (No. 75347. al., CALUMET CITY et et Appellants,
JANE DOE al., Appellees. Rehearing 1994. August denied October
Opinion 1994. filed *5 HEIPLE, J., joined by BILANDIC, C.J., concurring part in t. dissenting par and Nottage Ward, Ward,
Eunice of Stein, & Edward T. Singer Chicago, Cecile Zimmerman, and Clifford all of appellants. for
Gregory Rogus Wojcicki, Segal, E. and Paul E. of McCambridge, Singer Mahoney, Chicago, Ltd., & of for appellee City City. of Calumet O’Toole,
Robert B. Baal and Paul G. of Baal & O’Con- Chicago, appellees nor, of Horka, for James Daniel Su- Beasley. rufka and Kevin Cope DiCianni,
Thomas Ancel, Glink, G. Diamond, (David Chicago Bush, P.C., & Ader, Lincoln counsel), appellees Village Gregory for of Burnham and Giglio. Deutsch,
Michael Joan P. Gibbs and Suzanne L. Shende, York, York, of New Taub, New and Nadine Jersey, Newark, New for amicus curiae The Center for Rights. Constitutional opinion
JUSTICE NICKELS delivered the court: appeal plaintiffs
This reviews whether have stated police officers action defendant cause of conduct while municipalities for respective their (Jane) are Jane Doe call. Plaintiffs to a responding children, Defendants Betty and John. and her two minor Horka, James City and its officers appeal on are Calumet Village of Beasley; and the and Kevin Daniel Surufka An additional Gregory Giglio. and its officer Burnham Valentine, appeal. defendant, subject not a of this Ben circuit court of in the Plaintiffs filed (1) inter alia with: charging defendants County Cook (2) of emotional infliction negligence; intentional (3) under discrimination distress; liability gender (1982). granted The circuit court 42 U.S.C. § *6 for fail all three counts motion to dismiss defendants’ granted. could be which relief upon ure to state claim 615.) (Ill. 1987, 110, appellate par. ch. Rev. Stat. 2— (240 App. Ill. court, dissenting, affirmed. justice with one 911.) appeal to and took leave granted plaintiffs We 3d 315(a) (107 Court Rule Supreme jurisdiction pursuant 315(a)). R. Ill. 2d count, deter we must reviewing negligence
In facts alleged sufficient have plaintiffs mine whether relationship existed between special that a to show Local such and the defendants Betty, John Tort Employees and Governmental Governmental Act) (hereinafter not does Immunity Tort Immunity Act (Ill. 1—101 par. ch. Rev. Stat. liability. preclude an whether addition, determine we must seq.) et willful Act exists for Immunity the Tort exception of On review officer. negligence of wanton count, we distress emotional infliction of intentional alleges sufficient complaint plaintiffs’ whether decide action. We a cause of each element support facts to deter count gender discrimination plaintiffs’ review statutory satisfies mine whether prerequisites for a cause of action under 42 U.S.C. 1983 § (1982). application We also examine the pleading our light rules to section 1983 claims in Supreme Court’s decision striking heightened down pleading stan- dards for rights litigation civil imthe Federal courts.
A motion to legal sufficiency dismiss tests the of a pleading and a accept court must all well-pleaded facts (Szajna v. General Motors as true. Corp. 115 Ill. The following recitation of facts is therefore taken from the plaintiffs’ complaint. At 4:30 a.m. male intruder, Valentine, illegally apartment entered the plaintiffs they slept. while Valentine entered Jane’s her, bedroom and climbed on top grabbing her clothing touching genital her breasts and area. At time, this Valentine declared his rape intention to Jane and also threatened to kill her. children, John,
Jane’s two minor Betty and were in during room Valentine’s attack of Jane. Afraid for safety children, of her pleaded Jane with Valentine not to continue the attack with her present. children got Valentine off the bed and directed the children to leave. Valentine followed the children out of the bedroom, threatening to kill them.
Jane then made a break for the front door and caught Valentine her on the leading stairs from the apartment. Valentine and Jane fell down the stairs and Valentine then beat again Jane and threatened to kill her. grabbed Jane railing hold of the and would not let go. Valentine then left Jane and reentered the apart- *7 ment Betty remained, where locking and John the door behind him. Jane unsuccessfully attempted gain entry apartment to the by kicking pushing and the door. Jane, only clothed in undergarments, then left the building screaming. neighbors, having Several heard screams, Giglio dialed 911. Officer was the first arrive at the scene. Officer Horka arrived short time later and assumed a supervisory role. Jane happened. Jane what had
Officer Horka asked and apartment, was a man in her told him that there and had threatened rape man had tried to her that Officer Horka Jane also told to kill her and her children. and she aрartment in the that her children were still with Horka to safety. pleaded Jane feared for their Several and rescue her children. break down the door to break down with the officers neighbors pleaded also the door. door, down the declined to break
Officer Horka for the responsible want to be stating that he did not that she would damage. repeatedly Jane stated property herself would damage screamed that she any and pay for rescue her attempted Jane her children. When save her to children, officers ordered police defendant several her. The restrained physically and then stay put po- defendant alleges that complaint also breaking down neighbors from prevented officers lice door, an un- breaking down the door. Instead of who called the landlord officer known defendant Holland, Illinois, key. requested in South resided Officer Horka alleges that complaint accusatory rude, demeaning and in a Jane questioned asked questions. Horka inappropriate manner and asked you know the "Do your is husband?” Jane: "Where in the children you your leave "Why would guy?” "Why did man there?” strange if there was apartment Officer Horka key?” without you apartment leave the and stated woman” hysterical "an Jane as also described also freaking out.” girl "this not Jane Horka stated alleges that Officer fully comprehend coherent, neighbors could while statements. Jane’s Jane, checked Officer Horka questioning
Aftér Officer buzzers. rang apartment several front door around walked Giglio then and Officer Horka.
383 rear and windows checking Jane’s building allegedly balcony rear claims complaint door. level, were ground doors, above 12 feet sliding glass addition, In ajar. and unlocked and the back building of the alleges that the rear door were unlocked. apartment Jane’s door to stay at the Giglio to Officer Officer Horka ordered of the to the front then walked Officer Horka back door. Surufka, just had who building he met Officer where by radio to his spoke at the scene. Officer Horka arrived to Targonski, who directed Horka Sergeant supervisor, at the Beasley then arrived Officеr break down the door. arrived and told officers paramedics scene. Several locksmith, avail- and ladder were pick,” "lock Officers apartment. gaining entry into able for attempt to Horka, Beasley and did not Giglio, Surufka Beasley and Officers gain entry apartment. into Jane’s rang the doorbell to on windows and tapped Surufka apartment. a.m., Miller of the Investigator At approximately scene arrived at the City police department Calumet officers, by several Accompanied interviewed Jane. through the apartment entered the Investigator Miller back door of the building and the rear door When the officers which were unlocked. apartment, arrived, Betty. From the they raping found Valentine Investigator Miller until time the officers arrived Betty and interceded, raped repeatedly Valentine had during acts. Also perform deviate sexual forced her John. time, and threatened this Valentine choked facts, framed three plaintiffs’ complaint From these injuries their transferring the cost of theories for municipal- respective аnd their police officers defendant count brought negligence Betty and John ities. defendants’ duty exception alleging special addition, count negligence immunity. statutory alleged also willful and wanton misconduct. Jane brought alleging count intentional infliction Jane, emotional Betty distress. joined John all in a seeking count recovery gender pursu- discrimination (1982). ant to 42 U.S.C. § I Section examines Betty whether and John have al- *9 leged sufficient a facts to state cause of for action negligence. II Section examines whether Jane has stated a cause of action for intentional infliction of emotional distress. Section III questions whether com- plaint satisfies statutory prerequisites personal for (1982). and municipal liability under 42 U.S.C. 1983 § Negligence I. has a "Duty count entitled to
Protect/Special relationship.” This count frames a the- ory simple negligence of special duty based on the exception to the statutory common law and immunities granted police officers and their In municipalities. addition alleging simple negligence, the count also an allegation contains the officers’ conduct was willful negligence and wanton. As the simple count and issues, the willful allegation and wanton raise distinct we them separately. address Simple Negligence
A. In order to state a cause of action a negligence, plaintiff’s complaint must establish that defendant owed plaintiff duty, duty, a that defendant breached that plaintiff’s injury proximately caused (Curtis County v. Cook (1983), 158, breach. 98 2d Ill. of 162.) A legal sufficiency motion to dismiss tests the of a (1991), (Aguilar Safeway v. Insurance Co. pleading. 1100.) 1095, App. determining legal Ill. 3d suffi ciency a all complaint, well-pleaded facts are taken as true and all inferences from those facts are reasonable v. Stein (1980), plaintiff. (Sharps drawn in favor 90 Ill. 438.) However, of law or 435, mere conclusions App. 3d in a com allegations factual unsupported by specific fact (Groen to dismiss. disregarded on motion plaint are 295, (1991), App. 215 Ill. 3d St. Charles ings City v. 299.) must determine reviewing court appeal, On in a when viewed allegations complaint, whether are sufficient plaintiff, to the light most favorable granted. relief can be upon action which state cause of (1978), 66 Ill. Education McCauley Chicago v. Board of 676, 677. App. 3d law, no in Illinois owed municipalities
At common protection. or fire duty public supply to the 661.) (1984), Ill. 3d This (Santy App. v. Bresee recovery for duty” prevented plaintiff’s rule "public (Porter App. 88 Ill. negligence. City Urbana 445.) protection This common law afforded statutory immunities municipalities became embodied (The Immunity Act. Illinois Con granted under the Tort sovereign 1970 abolished the doctrine of stitution of Assembly may immunity "[ejxcept as the General XIII, The Tort provide by law.” Ill. Const. art. § *10 Immunity provides: Act public entity public a nor a 4—102. Neither local
"§ police depart employee liable for failure to establish a is or, provide police protection service if ment or otherwise provided, provide failure to police protection service is service, police prevent adequate protection or failure to crimes, crimes, of failure to detect or solve commission identify apprehend criminals.” Ill. Rev. and failure to or 1987, 85, par. Stat. ch. 4—102. publiс entity public 4—107. Neither local nor
"§ injury an caused the failure to employee is liable for custody.” by releasing person in Ill. make an or arrest 85, par. Stat. ch. 4—107. Rev. duty public
An the common law exception to both where statutory immunities has evolved rule and agent special showed a municipality’s the actions of the duty relationship plaintiff with the that created 386
different from the duty general public. owed to the (Gardner v. Village Chicago Ridge (1966), 71 Ill. App. of (finding 2d "special duty” exists to exercise rea sonable care where call plaintiff position into of peril).) This court has created a four-part test determine plaintiffs whether can avail themselves of (1) special duty exception: municipality must be uniquely particular danger aware of the or risk to which (2) plaintiff exposed; there must be specific acts or (3) omissions on the part municipality; specific (4) nature; acts must be affirmative or willful injury plaintiff must occur while the is under the direct and immediate municipal employees control or Village Burdinie v. Glendale Heights agents. (1990), Ill. 2d 508. The trial court Bеtty dismissed the action because and John were not under the direct and immediate argue control of the officers. Plaintiffs their com- plaint satisfies the direct and immediate control ele- allegations ment based on the officers were in building control of the scene and the where the attack Betty on In particular, plaintiffs and John occurred. argue that Officer control the other Horka’s over officers, Jane, potential and other rescuers satisfies the prong. control interpreted
This court has the control element require public employee that "the initiates the circum (Burdi dangerous stances which create the situation.” 525-26.) nie, standard, Ill. Applying 2d at this this court has found the control element satisfied where an officer ordered a driver to halt in an active traffic lane inspect plate and then directed her to her license where (1993), 156 Ill. City Chicago Leone v. injured. she was Jackson 33, 40; County see also Gordon v. (officer initiating dangerous situa App. 231 Ill. 3d 1017 *11 intoxicated, bringing unrestrained man known by tion Chicago City v. Anthony a hospital); to to be viоlent initiating (firefighter (1988), 3d 733 App. 168 Ill. by to assist ordering civilian by dangerous situation (1977), 49 Ill. Lundeen door); Brooks opening elevator (officers by dangerous situation initiating App. 3d when to road block park to next ordering motorist Village Gardner v. approaching); motorist was speeding (officer initi 2d 373 Chicago Ridge App. 71 Ill. identify by bringing witness dangerous situation ated witness). to beat proceeded who four defendants allege not does plaintiffs’ find that We were under Betty and John to show that sufficient facts Defen- of defendants. and immediate control the direct the circumstances officers did not initiate police dant and John. The officers danger Betty the that created or or- home bring plaintiffs’ the intruder to the did not not there. Plaintiffs were the children to remain der Therefore, peril” by police. position "called into special duty different plaintiffs did not owe duty general public. owed the from the of the scene argument that control unavailing. Police and element satisfies the control are organizations, departments, paramilitary fire as over a scene to exercise control expected their nature duty rule and the public The requiring their services. on the officers rest granted police immunities statutory these undertake municipalities public policy sound Applying becoming insurers. services without element would cause of the control definition make the rule and would to swallow exception negligence whenever simple liable for municipalities duty rule emergency. public an respond officers liability. paralyzing just this sort protects duty rule as discussed special We find the interests proper balance between strikes municipality’s public. and the Where municipality *12 agent does not initiate the circumstances that creates dangerous situation, the control element is not special satisfied and no duty can come into existence. Therefore, plaintiffs’ count alleging simple negligence on behalf of Betty against and John the defendant po- lice officers and their municipalities was properly by dismissed the trial court.
B. Willful and Wanton Conduct In addition to simple negligence, plaintiffs’ negli gence alleges count that defendants were liable for willful and wanton conduct. We acknowledge that carving a willful and wanton plaintiffs’ count from negligence presents count a technical violation of our practice requiring rules that each cause of action be (Ill. stated in a separate 1987, 110, count. Rev. Stat. ch. 603(b).) However, par. a motion to dismiss should be 2— stated, denied where a cause of action is even if it is not (Luethi the cause of action intended plaintiff. 833.) Yellow Cab Co. (1985), App. 136 Ill. 3d Given concerning confusion whether willful and wanton conduct constitutes a separate cause of action that could officer, be police stated plaintiffs’ we consider claim. Immunity
The Tort provides public Act em "[a] ployee is not liable for his act or in omission the execu law unless act or omis any tion or enforcement of such sion constitutes wanton conduct.” (Emphasis willful added.) (Ill. 202.) 85, par. Rev. Stat. ch. We 2— exception must decide whether this applies police owing addition, special duty plaintiff. officers no if exception аpplies, we must determine whether alleges sufficient facts to create a jury question regarding the willful and wanton nature of defendants’ conduct. applied approaches
Courts have various in constru- ing language the willful and wanton of section 2—202 and the duty exception special common law
with the officers sections granted police immunities specific showing The trial court added 4—102 and 4—107. needed requirements conduct to the willful and wanton then dismissed duty. The trial court special to show a el the lack of the control negligence count based on duty. panels Several special needed to show a ement approach taken a different appellate court have specific provide 4—102 and 4—107 found that sections prevails over immunity blanket officers (See, City Highland 2—202. Luber v. e.g., section 758, 763; (1986), City Jamison v. App. 151 Ill. 3d Under this rea App. 48 Ill. Chicago *13 immunity even from officers receive soning, police contrast, In and wanton conduct. allegations of willful willful and wanton conduct some courts have considered Immunity the Tort Act statutory exсeption to be a judicially special from the created completely separate (1992), (See, Ill. duty v. Poole exception. e.g., Sank (1989), 780; App. Trepachko Village 3d v. Westhaven 249.) reasoning, a App. 184 Ill. 3d Under this simple negligence a of action for plaintiff can state cause exists, allege willful by showing special duty a or can and wanton conduct alone. recent find this issue to be settled this court’s
We
(1993),
We must therefore allega determine whether plaintiffs’ tions in the complaint, light when viewed in a a prima facie most favorable plaintiffs, present to the showing any defendant officers’ conduct was willful and wanton. Willful and wanton conduct is defined under the Tort "a Immunity Act as course of action an which shows actual or deliberate which, intentional, intention to cause harm or if not shows an utter disregard indifference to or conscious (Ill. safety property.” of others or their Rev. Stat. 210.) 85, par. ch. Whether conduct is "willful 1— ultimately question wanton” of fact for the (Glover City Chicago jury. App. 106 Ill. However, court must first decide as matter of law whether a plaintiff alleged has sufficient jury question cоncerning facts such that a the willful and wanton nature of defendant’s conduct is created. presents jury
We find that *14 question as to whether Officer Horka’s conduct was willful and complaint repeatedly wanton. The states that Officer Horka was the officer in control at the scene. alleges Horka complaint Officer was surrounding aware of the facts the intrusion into home, the plaintiffs’ including the assault of Jane and in with presence plaintiffs’ of the intruder home alleges also Betty complaint and John. Plaintiffs’ Officer Horka should have acted under these circum- John, did not because Betty and but protect
stances to trier damage. A rational liability property fear of conduct showed Officer Horka’s could find that of fact disregard for or conscious an "utter indifference Therefore, was the trial court and John. safety Betty of’ plaintiffs’ to dismiss granted it the motion in error when alleging Betty and John brought on behalf of count Horka and against Officer and wanton conduct willful City. Calumet complaint in are insufficient allegations
The wanton regarding the willful and jury question creatе a Surufka, Beasley of defendants nature of the conduct allegations complaint in the Giglio. only and arrived at they are that regarding those officers positions take scene, Horka’s orders to followed Officer Betty and and failed to rescue apartment, around the paramilitary operation. police department John. A (See Matthys Martin v. App. 149 Ill. 3d to a chain of subject officers are police Individual subjectively "A rule each officer permitting command. an order to be lawful whether he believes determine necessarily destroy discipline and reasonable would po organization such as paramilitary inherent 808.) A (Martin, at App. 149 Ill. department.” lice Surufka, Beasley find that jury reasonable could not in their conduct for Giglio were willful and wanton following superior the orders of their nothing more than Therefore, alleging willful and wanton the count officer. Surufka, Beasley Giglio was part conduct on dismissed. properly Distress Infliction of Emotional
II. Intentional whether next consider We intentional infliction of action for states cаuse behalf of brought That on count emotional distress. and their officers all the defendant Jane granted defendants’ The trial court municipalities. *15 392 (Ill. 1987, 110,
section 2—615 motion Rev. Stat. ch. par. 615), (240 appellate and the court affirmed App. Ill. 2— 911). 3d On review of a dismiss, section 2—615 motion to we examine the face of to determine whether there any is set of facts which may proved be Us, that would Toys "R” plaintiff entitle the relief. Inc. v. Adelman (1991), 561, App. 215 Ill. 3d 564.
In order to state a cause of action for intentional distress, infliction of emotional a party allege must facts (1) which establish that: the defendant’s conduct was (2) outrageous; extreme and the defendant either intended that his conduct should inflict severe emotional distress, or knew that a high probability there was (3) distress; his conduct would cause severe emotional the defendant’s conduct in fact caused severe emotional (Public Finance v. Corp. Davis (1976), distress. 66 Ill. 2d 85.) Applying principles above, of review stated we each in review element turn.
First, defendants’ conduct must be extreme and out rageous. Conduct is of an outrageous extreme and character average where "recitation of the facts to an community member of the would arouse his resentment actor, exclaim, and lead him to 'Outra ” (Restatement (Second) geous!’ 46, of Torts Comment § (1965).) d, at 73 Such conduct must be differentiated insults, threats, indignities, from the "mere annoyances, petty or other oppressions, part trivialities” that are complex society the costs of from which provides the law (Restatement (Second) protection. 46, no of Torts § (1965).) d, Comment at 73 Whether conduct is extreme outrageous judged objective on an standard based on all the facts and circumstances of a particular case. (1988), Fahey McGrath v. Ill. 2d 90. outrageous
The extreme and character of the con position power. duct can of a arise from the abuse (Kolegas Broadcasting Corp. Ill. Heftel officers, lists school The Restatement authorities, collecting creditors as landlords exercising their who examples types individuals for extreme abuses of their authority can become liable (Restatement (Second) positions. of Torts Comment § *16 (1965).) e, authority a is position at 74 When abuse of issue, at also examine whether the defendant courts legitimate. was reasonably objective believed that his (McGrath (1988), all Fahey 126 Ill. 2d While immunized, given to a conduct is not more latitude is See, e.g., legitimate objectives. his pursuing defendant ("A Finance, Public at 92 creditor must be Ill. 2d given latitude reasonable methods of pursue some to collecting though may debts even such methods result inconvenience, in annoyance some embarrassment or to Gibson v. Card Services Corp. debtor”); Chemical App. (noting employer 157 Ill. 3d 211 that had le gitimate objective conducting investigation in theft in finding outrageous). conduct was not determining
Another factor relevant in whether outrageous conduct is extreme or is defendant’s aware plaintiff particularly susceptible ness that is to physical emotional of a or mental distress because (Public Finance Corp., peculiarity. condition or 66 Ill. 2d (Second) f, 94; at Restatement at of Torts Comment § (1965).) might Conduct which otherwise be considered merely may outrageous rude or abusive be deemed where the defendant knows that plaintiff particu McGrath, larly susceptible to emotional distress. 126 Ill. 88; Kolegas, at 2d at 21. 154 Ill. considerations, Applying these we now determine plaintiffs’ complaint adequately alleges whether extreme outrageous part any conduct on the of the defen- alleges police complaint dant officers. Plaintiffs’ apartment police Jane was in her and the assaulted Horka, supervising were summoned to assist her. officer, Jane that an advised there was intruder in her home who had attacked her and threatened alleges kill her children. rude, questioned demeaning, Officer Horka Jane in manner, accusatory dismissing her "hysterical.” as addition, inappropriate questions, Officer Horka asked as, "Why you your such in did leave children if man apartment strange there was there?” The com- plaint alleges that Officer down Horka declined to break responsible the door because he did not want for be any property damage. sufficiently outrageous
We believe these fаcts are satisfy the first element of cause of action Of- community average ficer Horka. An member of the would no doubt resent a officer who treated a manner, demeaning in a sexual assault victim rude and outrageous and would consider it for an officer to refuse in to break down door such situation because of the fear liability property damage. It is also reason- able to infer that Officer Horka knew that Jane was *17 susceptible an emotional state that would make her severe emotional distress. Jane told Horka that she had a and only recently escaped expressed sexual assault safety her fear for the of her children.
Our conclusion is bolstered the fact that Officer in a the officer in control position power Horka was of as appellate incorrectly The court limited the of the scene. determining factor in application power of the abuse of position outrageous conduct to circumstances where might a coercion was used as means of coercion. While аn position power, the most common abuse of a of be finding a position power a can be factor abuse of example, outrageous regardless conduct of coercion. For a using the medium of radio to insult this court found finding a power supporting to be an abuse of plaintiff Ill. 2d at outrageous (Kolegas, conduct. light in a most complaint
viewing allegations posi- Officer Horka abused plaintiffs, favorable to the assault he a recent sexual power questioned tion of when rude, and refused to save demeaning manner victim in personal liability property fear of for her children for damage. outrageous character of Officer also note that the
We by any is ameliorated reasonable Horka’s conduct not objective. Freedom pursuing legitimate he was belief damage not a le- liability property for personal from gitimate objective protect of a officer summoned to Moreover, dangerous Officer people from a intruder. necessary treatment of Jane was not to deter- Hоrka’s police response. complaint mine Plaintiffs’ appropriate alleged finding adequately support sufficient facts to outrageous. Horka’s conduct was that Officer allege sufficient facts complaint does not any outrageous part conduct on the support only responded other officers to the call. Surufka, allegations regarding Beasley, Officers scene, Giglio they are that arrived at the followed Hor- orders, Betty ka’s and did not act to rescue and John. allegations ques- There are the other officers no Betty in a tioned Jane rude manner or declined to save liability. personal and John out of fear of As complaint allege fails to sufficient facts to plaintiffs’ satisfy outrageous part the element of conduct on the Surufka, Giglio, count Beasley Officers against distress them intentional infliction of emotional properly dismissed. emo- Proceeding with the intentional infliction of Horka, tional distress count Officer we must supports determine whether remaining elements for a cause of action. In order *18 еlement, pleaded be satisfy to the intent there must facts Horka either intended that his conduct inflict that show high severe emotional distress or knew that there was a probability that his conduct would cause severe emo (Public 90.) Finance Corp., tional distress. 66 Ill. 2d at view of the recent assault on Jane and the threat John, Betty jury and a reasonable could find that Officer disregarded high that probability Horka his conduct would cause severe emotional distress when he dismissed her pleas help Jane’s children. allege must also that Jane
actually suffered severe emotional distress. This ele- necessary prevent ment is fictitious claims. The com- plaint alleges psychological that Jane care af- required in mind that "the extreme ter the incident. We also bear outrageous character of the defendant’s conduct important in itself evidence that the distress has (Restatement (Second) of Torts Comment existed.” § (1965).) J, outrageous at find that nature of We conduct, allegations with in the com- Horka’s combined light in a most favorable to the plaint, when taken showing that suffered plaintiff, satisfactory make a Jane severe emotional distress.
Last, complaint must state facts that show a cause of Jane’s emotional Officer Horka’s conduct was already suffering recognize distress. We Jane by Valentine’s attack on her emotional distress caused However, an safety her fear of her children. legal than cause and injury may have more one by claiming escape liability cannot culpable defendant constituted a contrib persons the conduct of other (Phelan v. Santelli Ill. App. uting cause. if with some other A "is sufficient it concurs cause time, which in combination acting at the same cause (Illinois Jury it, Pattern injury.” causes with 1989).) (3d Instructions, Civil, We find that No. 15.01 ed. Officer Horka’s conduct jury could find that a reasonable The fact emotional distress. legal was a cause of Jane’s
397 only aggravated that Officer Horka’s conduct already suffering goes emotional distress Jane was properly damages. to the generally measure of See W. (4th 1971). Prosser, 52, Torts at 320 ed. § Therefore, complaint states a cause оf action on behalf of Jane for intentional infliction of emotional against distress defendant Horka and Calu- City. met dismissing The trial court erred in that claim. The intentional infliction of emotional distress claims Surufka, against Beasley, Giglio Village and the properly Burnham were dismissed.
III. Gender Discrimination Jane, Betty Plaintiffs all join and John in a count alleging gender against discrimination Officer Horka and Calumet City. brought This count pursuant was (1982). 42 U.S.C. 1983 conferring any While not itself § (see Baker v. McCollan rights (1979), substantive 443 137, n.3, 433, n.3, U.S. 144 61 L. Ed. 2d 442 99 S. Ct. n.3), 2694 section 1983 a establishes cause of action for "the deprivation any rights, privileges, or immuni- by ties secured the Constitution and any person laws” acting statute, any ordinance, "under color of regulation, (42 custom, usage, or any Territory.” State or U.S.C. (1982).) As there are substantial § differences be- tween the prerequisites personal liability and mu- nicipal liability under section we treat those separately. defendants
A. Against Plaintiffs’ Section 1983 Claim Officer Horka
In order to state section 1983 claim Officer Horka, plaintiffs allege support must sufficient facts to First, two elements. the plaintiffs allege must Officer Horka has deprived right. them of Federаl Second, plaintiffs allege must that Officer Horka acted (Fellhauer City Geneva under color of State law. (1991), 495, 514, Gomez v. Toledo quoting Ill. 2d 572, 577, 635, 640, 100 S. 446 U.S. 64 L. Ed. to a call responding As a officer Ct. doubt that Officer Horka duty, while on there is no law, he raises no issue acting under color of State Therefore, pre- element. the sole issue regard to this when complaint, facts in plaintiffs’ sented is whether show light plaintiffs, favorable to the viewed in most right. of a Federal deprivation alleges gender discrimination clause of the equal protection in violation XIV.) (U.S. Const., amend. amendment. fourteenth protects clause equal protection amendment fourteenth *20 by made State classifications individuals from invidious (Personnel v. Administrator governments. local 99 S. Ct. Feeney (1979), 442 U.S. 60 L. Ed. 2d 2282.) only applies not guarantee equal protection classifications, discriminatory but also to legislative (Smith v. of the law. and enforcement administration Barloga (6th 33, 36-37; Huey 1973), 482 F.2d Ross Cir. (N.D. gender 1967), Where Supp. 277 F. Ill. of issue, treatment at the differential discrimination rela a and substantial must bear close men and women Craig v. governmental objective. legitimate a tionship to 397, 407, 190, 197, 50 L. Ed. 2d 429 U.S. Boren S. Ct. 457. claim, gender discrimination support
In violated Officer Horka alleges that complaint plaintiffs’ treating protection by right equal aby made if it were differently than complaint Jane’s stereotypes acting gender-based on male and action for a cause of to state purport Plaintiffs females. Jane, Betty and on behalf discrimination gender are in However, allegations John. by Jane. suffered gender discrimination only directed contention for their support no provided have Plaintiffs that injury for an redress provide can section 1983 right of a constitutional deprivation from the resulted Therefore, Jane as the sole we treat person. of another 1983 claim. analysis in our of the section plaintiff when allegations complaint, in the We find make light plaintiffs, to the viewed in a most favorable claim Ini- cognizable gender a discrimination. out Jane in Officer Horka treated tially, the manner which Jane was gender raises an inference of discrimination. undergarments just and had suffered only clothed her attacker. She escape sexual assault and a battle to children, mercy at the her who remained also feared for situation, being After informed of this of her attacker. in a allegedly questioned Horka Jane rude Officer demeaning why apart- tone she would leave her as to without a strange ment with a man there and leave that he could not key. allegedly Horka also stated "coherent,” while Jane and that she was not understand Jane at all times. neighbors present could understand Jane, addition, old Officer Horka described woman children, "girl.” A reasonable enough to have two as trier of fact could determine that such conduct shows and dis- Officer Horka discredited Jane’s statements gender. her on her complaints missed based Against backdrop of Officer Horka’s treatment Jane, give alleged Officer Horka’s comments addi finding gender of action for support tional cause *21 potential equal discrimination. cases have found Several fail to re protection adequately violations where spond complaints lodged by to domestic violence women. (D. 1984), (See, Thurman v. Conn. e.g., City of Torrington 1521; v. Police Supp. 595 F. Balistreri Pacifica 696.) (9th 1990), Despite being F.2d Cir. 901 Department her against attack on Jane and the threats told of the children, asked, your Horka is husband?” "Where determining that he you guy?” "Do know the before door. Whether the attacker would not break down the was Jane’s husband or someone she knew would not change danger the nature of the on Jane attack or the to Betty and John. acknowledge
We are capable these comments However, an against innocent construction. the back- Jane, drop alleged of Officer Horka’s a treatment rea- sonable trier of fact could find that Officer Horka plea dismissed Jane’s for swift action because he contin- ually a believed this was domestic situation less deserv- ing of his attention. Such conduct is not at all related to governmental Therefore, any purpose. the complaint adequately gender states a cause of action for discrimi- against nation behalf on of Jane Officer Horka.
We also note that
court was in
appellate
error
showing
when it
a
a
incorrectly
required
culpable
municipal policy
impose personal
liability
on Officer
a
Horka under
section 1983. This error
resulted from
failure to determine the
in which Officer Horka
capacity
government
A
against
was sued.
suit
a
official in his
liability
for
personal capacity
impose personal
seeks
(See
Kentucky
actions taken under color
State law.
159, 165-66,
114,
Graham
473 U.S.
87 L. Ed. 2d
121-22,
3099,
(distinguishing
105 S. Ct.
personal
suits).)
capacity
judgment
and official
Where
is
against
government
personal
obtained
official in his
capacity,
judgment
only against
must be executed
contrast,
against
assets. In
a suit
personal
official’s
government
capacity
essentially
official in his official
against
entity
an action
pleading
another manner of
(Graham,
agent.
an
473 U.S. at
of which the official is
121,
judgment
Ct. at
A
401
"it
liability,
personal
1983. In order to estаblish
section
official, acting under color of
enough
that the
is
to show
law,
right.”
the
federal
deprivation
state
caused
at-122,
(Graham,
166,
105 S. Ct.
In order to
pleaded
as official
municipal
liability
whether
liability, a
must make the further
capacity
plaintiff
showing
underlying deprivation
that
resulted from
municipal
or
The doctrine of
policy
respon-
custom.
litigation,
in
superior
apply
deat
does not
section 1983
municipal
liability
premised merely
cannot be
on
employment relationship
between the actor and
(Monell
municipality.
Social Services
Department
(1978),
658, 691,
611, 636,
436 U.S.
56 L. Ed. 2d
98 S. Ct.
2036.)
2018,
Instead,
liability under section
municipal
requires
by having
1983
that the
be at fault
municipality
municipal policy,
usage
some
custom or
is the
"moving
deprivation
force” behind the
Federal
Monell,
right.
694,
638,
at
S.
does not
state that
brought against
personal capacity.
was
him in his
acknowledged
Supreme
complaints
Court has
that some
brought
may
clearly specify
not
whether
the suit is
against
personal capacity.
a defendant
in his official or
(Graham,
n.14,
n.14,
L.
2d at 122
Plaintiffs have
the
facts to
or
culpable municipal policy
the existence of
custom
First,
gender
plaintiffs allege
discrimination.
that
the
during
conduct of Officer Horka
the incident
is evidence
Second,
municipal
gender
of a
custom of
discrimination.
City’s past policy
strip-
Calumet
plaintiffs point
females,
males,
nonfelony
searching
but not
for
offenses.
by the District
policy
This
was found unconstitutional
(Doe v.
Court
for the Northern District
of Illinois.
(mem.
(N.D.
& op.
1990),
City
Calumet
Ill.
No. 87—3594
order).)
allege
policy
Plaintiffs
this
institutionalized
Third, plaintiffs
treatment
of women.
disparate
disparate
ratified
argue
municipality
failing
policies
to institute
by
treatment of women
strip
discriminatory
effects of
counteract
City
Fourth,
argue that Calumet
plaintiffs
searches.
by
bringing
not
Officer
ratified Officеr Horka’s conduct
gender
charges
specifically related to
up
Horka
on
Last,
out sexist com-
plaintiffs point
discrimination.
woman,”
ments,
allegedly
just
as “Isn’t this
like
such
officers at the scene.
made
unidentified
clarity,
important
it is
analytical
As a matter of
at-
plaintiffs
manner
in which
have
determine
policy.
custom or
tempted
municipal
to demonstrate the
show that
way
policy
One
to establish official
is to
deprivation
policy put
results from the execution of a
***
by high
or
place
level officials such as “lawmakers
may fairly
repre-
those whose edicts or acts
be said to
(Monell,
policy.”
sent official
Where the conduct of officials is not level implicated, plaintiffs municipal must establish fault through training.” “custom” or In order to “inadequate custom, establish a a a particular plaintiff must show рractice widespread policymaking is so settled and that officials can be said to actual or constructive have either (1st (See practice. notice of the Bordanaro v. McLeod 1156-58.) 1989), Therefore, Cir. 871 F.2d it is nec- essary repeated to show that the conduct has been with the makers. Where the apparent acquiescence policy of attempts to that the plaintiff deprivation establish by policy inadequate training, deficiency caused a of the “moving deprivation must be the force” behind the rights amount to "deliberate indifference” to the City persons the come into contact with. of Canton v. Harris (1989), 378, 389, 489 U.S. 103 L. Ed. 2d 412, 427, 109 S. Ct. 1205.
Plaintiffs cannot that Officer Horka’s establish gender by any policy put discrimination was caused in place by high ranking policymakers. Officer Horka is high ranking policymaker represent not a whose edicts Moreover, municipal policy. policy strip searching the women, meeting if an only requirements even the policy, official was not the "cause” of Officer Horka’s dep- be the cause of the poliсy conduct. order for to rivation, an link the there must be "affirmative between constitutional violation policy particular City Oklahoma v. Tuttle (City involved.” 791, 804, 808, 823, Ct. U.S. 85 L. Ed. 2d 105 S. acknowledge strip-search policy we While alleged and the conduct of Officer Horka were both discrimination, gender Officer Horka was not forms alleged attempting strip to search Jane when Therefore, deprivation place. plain- constitutional took place by municipal policy put tiff cannot show a of her high ranking deprivation official caused rights. allegations are insufficient to
Similarly, plaintiffs’ liability on a failure to train. impose municipal based to train is that allegation relating to failure only policy institute to counteract City Calumet failed to deficiency if amounted policy. Even this strip-search rights of to the constitutional deliberate indifference with the it was not police, who came into contact those gender discrimination "moving force” behind implement policy Failure suffered Jane. *25 not discriminatory strip simply searches counteract of the proximate cause enough related to be the closely Jane. by suffered gender discrimination implicated is not policymakers As the conduct of failure to train are allegations regarding and the insufficient, rely showing must on a of custom. plaintiffs pleaded Plaintiffs have facts from which reasonable gender trier of fact could determine that discrimination general widespread poli- in was so settled and the cymakers had either constructive or actual notice of allege plaintiffs such conduct. The did not one isolated by rogue Against officer. instance of discrimination one strip-search policy, alleged backdrop Horka and the discriminatory actions of both Officer allegations other officers at the provide scene sufficient Moreover, gender discrimination was widespread. complaint charges City acquiesced that Calumet in discriminatory by failing conduct to either establish an policy strip-search policy effective to counteract investigate charges or discrimination this case. allegations These were sufficient to prevent the dis- against missal of the City action Calumet based on the pleadings.
Conclusion holdings Our are summarized as follows. Plaintiffs’ alleging simple negligence Betty count towards John was Plain- properly dismissed the trial court. however, allegations, tiffs’ support cause of action on behalf of Betty and John for willful and wanton miscon- against duct Officer City. Horka and Calumet brought alleging count on behalf of Jane intentional infliction of emotional distress states a cause of action against City. Officer Horka and Calumet Plaintiffs’ count alleging gender discrimination states cause of action on personal behalf of Jane Officer Horka in his Calumet capacity City. stated, judgments
For the reasons of the appel- late and circuit are in part courts affirmed and reversed *26 in The is remanded to the circuit court for part. cause proceedings. further affirmed, court in Appellate in
part part; and reversed in part circuit court affirmed part; and reversed in remanded. cause HEIPLE, concurring in and dissent- part JUSTICE ing part: in in all its join majоrity opinion aspects except
I ruling plaintiffs’ gender Up on claim of discrimination. majority offers a point, until it addresses this and could not analysis jury reasoned of what could true, we allegations are taken as as plaintiffs’ find when pleadings. a dismissal on the must do when faced with recognize that a cause of action does Courts should frictions someone is offended not lie whenever Taking day-to-day human contact. that occur from value, subject Jane Doe was allegations at face plaintiffs’ person might a sensitive have found language to which offensive, for a which cannot be the basis section but (42 1983, 1988 1988 claim U.S.C. 1983 or section §§ (1988)). gist of com- plaintiffs’
If asked to summarize Horka regard, in it would be that: Officer plaint this Doe, her Jane he described plaintiff his voice to raised officers, arguably his and he asked hysterical as to fellow facts. attempt in an to find out the demeaning questions was alleged gender discrimination City’s Calumet any plaintiffs’ facts related not from committed from a in but rather undeniably day question, horrific searching women but strip long-since-ceаsed policy According for certain crimes. men who were arrested not other than Horka this induced officers plaintiffs, jokes. tell distasteful however, complaint, insufficiency allegations, but by summarizing not best illustrated I therefore do so setting them forth. by simply rather here, eliminating many their conclusions law which we accept claim, need not as true. In support of their plaintiffs alleged following facts: HORKA, JANE, questioning
"34. Defendant rude, demeaning, accusatory and raised his voice.” (a) questions your "35. HORKA’s included: Where is (b) (c) you guy? Why husband? leave strange Do you know the would your apartment children in the if there was (d) Why man you your there? and did leave apartment key?” without the HORKA, "77. describing Defendant when the incident to his arriving commander to other officers at the and/or scene, plaintiff described JANE phrases DOE with such as *27 hysterical woman’, 'an girl out’, freaking 'this is and 'she’s anymore’ not coherent and said that he could not under- stand her.” neighbors scene, times, "78. Several at the at all could
fully comprehend understand and saying what JANE was and was concerned about.” That, least, through August
"[81]b. at of the de- City fendant policy, practice Calumet had a or custom of strip searching females, males, but not who were arrested non-felony charges for any without for a basis belief that concealing arrestee was weapon or a controlled substance.” That policy strip searching women,
"[81]c. this as fl81(b),fostered, described in condoned and institutional- amongst ized City officersof the Depart- Calumet Police ment the differential treatment of women.” 20, 1987,
"[81]d. Prior to December the defendant City Calumet did not act in an effective manner fostered, previously counteract the condoned and institu- tionalized differential treatment of women officers City the Calumet Department.” Police "[81]e. That brought defendant Horka up on charges however, question], [the incident in none of charges gender these were for any discrimination or in way addressed Horka’s differential treatment of women. This constituted ratification of Horka’s conduct.” That, upon belief, "[81]f. information and several (not HORKA) City Calumet officers defendant at the scene jokes regard- blatantly 1987 made sеxist on December developing These ing Doe and the situation. plaintiff Jane you expect jokes of 'what would were to the effect sexist just to be in and 'isn’t it like woman’ from a woman’ were hand. None of these officers like the one at situation charges reprimanded for these com- brought up or on ments, similarly their conduct.” which ratified guarantee that does not amendment The fourteenth Amy Emily arrive or Vanderbilt will Post student assistance. the scene when one calls at provide action when- a cause of 1983 does not Section spoken happens phrase to be on which ever a word or politically Nei- incorrect utterances. current list of require statutes nor the Federal ther the Constitution deferentially person tactfully speak ato or officers to gender. of his or her because finding of action for a cause I believe that
Because by plaintiffs pleadings gender filed on the discrimination wholly ridiculous, I dissent and, indeed, is untenable ruling. join majority’s portion I the bal- from thought presented out and well of an otherwise ance opinion. partial joins in this BILANDIC
CHIEF JUSTICE partial dissent. concurrence