*1 HOLDA, KANE, Plaintiff-Appellee, ARTHUR v. THE COUNTY OF J. Defendant-Appellant.
Second District No. 78-252 Opinion September filed 1980.
SEIDENFELD, J., specially concurring. P. WOODWARD,J., dissenting.
Roger Stephen Mrkvicka, Matthews, Dean, W. Eichmeier and J. both of Eichmeier, Mrkvicka, Aurora, appellant. Goodin & for Philip Howard, Chicago, appellee.
WilliamJ. Harte and E. both of for Mr. court: opinion LINDBERG delivered the JUSTICE Defendant, Kane, County appeals judgment entered Illinois, upon a County, verdict the Circuit Court of Kane Holda, $175,000 plaintiff, damages compensatory awarded Arthur J. $500,000 punitive damages injuries alleged for sustained due to negligence operation County jail. sheriff in We affirm of Kane in part and reverse in part. 2,1970, April plaintiff against County
On complaint filed a Kane, seeking its against judgment recover the defendant 16,1969. alleged negligence August alleged that on that date he Plaintiff upon suffered him permanent injuries severe and as the result an attack jail, fellow continued county’s inmates the defendant an attack that period complaint over I many uninterrupted hours. Count of the attack, charged prior to and at the time of the defendant owed safety his provide care duty exercising reasonable a prisoner carelessly while jail, and that defendant’s defendant negligently complaint, failed to exercise II of the reasonable care. count plaintiff alleged that willful miscon- guilty defendant was and wanton duct in operation injured of its so that control proximate direct and complaint result. The requested judgment $250,000 defendant $150,000 in the amount of damages punitive actual damages.
On November the defendant filed answer to the com- *3 plaint as admitted, amended. its alia, answer the defendant inter paragraph officers, alleging through that the its agents, defendant and employees, sheriff, owned, including operated, controlled and main- jail. tained the Kane County The defendant’s answer also admitted that $500,000 the defendant carried a policy. insurance 7,1976, On September plaintiff complaint filed an amended wherein he reiterated the his original requested contents of counts I and II but judgment $500,000 against defendant in the amount of of those each counts, III, charged violating and added count the defendant plaintiff’s rights (1976) requested judgment under 42 U.S.C. and §1983 $500,000 defendant On Sep- the amount of under count III. 27,1977, plaintiff tember moved completely to withdraw the amended amended, complaint proceed complaint and to as original on the original to amend the ad II complaint damnum clause in count $150,000 $500,000. to punitive raise the damages requested The trial court granted the his proceed original motion to on com- plaint and II punitive to amend count as to raise the amount of dam- so ages $500,000. 29, 1977,
On cause of September moved to dismiss defendant as defendant name had failed to plaintiff action on the basis have been suit should argued Defendant proper party parties. defendant’s The court denied County. brought against the sheriff of Kane answer to an amended to file motion. then moved for leave Defendant relation- agency of defendant’s complaint deny plaintiff’s allegations also denied. ship jail. This motion was employees with the Holda, had been Arthur plaintiff, The trial evidence revealed that J. offense for the minor August arrested at his on residence intoxicated had been disorderly previous day, plaintiff On the conduct. cut as a was juke box. His hand glass a tavern and had broken the on a the hand. on result. arresting put The officer some bandaids medicine had problems, for mental history hospitalizations Plaintiff had a with a also born Plaintiff was age stuttered since the of nine or 10. his arm, At time of useless. right deformed which was withered and arrest, plaintiff years was 40 old. afternoon County jail on the plaintiff
The was taken to the Kane he 15,1969. when August August held there until He was to have been for mental evaluation Elgin Hospital was to be State transferred to booked, was plaintiff because of his At the time prior problems. mental right arm and about jailers paralyzed he told the his about deformed up a alone. finger broken on his left Plaintiff asked to be locked hand. was A County jail correctional at Kane when officer August booking procedure an jail’s inmate there testified about the book, with the together 1969. in a incoming prisoners were recorded date, date, booking authority, well as information release and release their nothing about about they imprisoned, the crime for which were but prior prisoner was only prepared record. The on each other record birthdate, name, temporary age, prisoner’s card which would contain the sex, color, address, offense, property. personal and list of occupation, incoming prisoners. Medical There were histories were not obtained from inquire about regulations whereby booking guard no rules or would was might have. There physical deformity incoming prisoner defect or an handicaps. physical no cell jail prisoners block with mental or segregated from charges Persons were not felony confined nor was persons driving charges, confined on misdemeanors or drunk there a regularly established sick call. a cell assigned
On evening August *4 with a block was confined jail, plaintiff on the third where floor the used could be prisoners. number of other A radio-intercom combination the piped was over upstairs jail, to monitor the cells in but when music the in the system, going was on way jailers there was no to hear what and when during day, cells. only rarely The cells were monitored music was being played, it could be difficult from the first-floor desk to hear someone call for help from the third-floor plaintiff cell block where was confined.
Plaintiff testified shortly 16,1969, that after August breakfast on day after he jail, was confined plaintiff another inmate accused being police a spy. About three other plaintiff inmates told the they going were kangaroo to hold a court. They dragged plaintiff out to a table for the They “trial.” plaintiff found the guilty. they Then dragged him over to the barred wall and tied his They arms to the bars. his tied neck tightly to They the bars. ropes used strips. made of braided blanket Plaintiff his worked arm loose and hit his one of assailants. The other two assailants began fighting kicking him. Another inmate came over and began beating and kicking him. him They beat in the head and face for screamed, several plaintiff minutes. The but responded no one to his screams. Then guard a appeared plaintiff and took the downstairs to bond call judge, $1,000. before a who set the bond at The other inmates had plaintiff warned the before he went downstairs that if he talked about what happened, had they kill him. would
Plaintiff was call, returned to the cell block after the bond and he was again by attacked the other cell subjected inmates. Plaintiff was then ato vicious attack which lasted approximately six hours. The details of the second here; attack need not be recited say suffice it to that the on assault plaintiff was brutal degrading.
At p.m. about 5 August on jailer responded call for help to a from the third-floor cell block. jailer up The went to the cell block and saw plaintiff black, was bloody eyes and his were that he had received a beating. dazed, half-conscious, terrific Plaintiff was and inco- herent, and was hospital taken to a by ambulance where he was admitted.
A physician plaintiff testified that he hospital saw the emer- gency August room on 1969. An examination numerous revealed head, arms, back, bruises and abrasions to legs, trunk and The chest. plaintiff was unable give history, doctor a medical which was provided escorting instead police officers. The doctor observed plaintiff pain had when X he breathed and moved the extremities. rays revealed fractures of the cheek and surrounding eye, bones jawbone face, right side of the as well as two fractures of the nose. A scalp laceration down to the skull bone and three or four inches long required suturing. plaintiff’s body spots had various small burn caused very hot object. He sustained fractures of the 10th front rib and of the 11th and 12th rear ribs. his lungs punctured by One of broken rib. The required days hospitalization. five In the physician’s opinion, nose would fractures sustained permanent cause damage; jaw and the and facial fractures could cause a *5 nose, plaintiff’s testified that the permanent chewing problem. He also of trial were consistent jaw, problems and back at the time injuries beating. a 1969 in the expert as an witness plaintiff
A criminologist was called on var- question based hypothetical field of corrections. He was asked a County jail was not the Kane opinion sious facts in this case. It was his that standards including in the correctional up to minimum standards detailed issued Association. The witness by the American Corrections sur- prisoner in proper jail manpower, prisoner systems, standards as to so that segregation prisoners monitoring, complete veillance and and “kangaroo County jail’s pris- courts” He cited the Kane could occur. because, alia, it not take system oner intake inter did of 1969defective stuttering into a withered arm and plaintiff consideration had condition, problem. expert plaintiff, The with a mental stated that the by jail 30 minutes kept every should have been under observation personnel. Among
A number of correctional officers testified for the defense. them was the sheriff at the of the assault who testified time 1969he At the had never heard of the American Corrections Association. time One plaintiff, County jail of the assault on Kane had rules. rule 20 to inspection by guards every was that jail of the was to made 30 minutes.
A deputy jail at security sheriff testified that checks were made of the in question time at testified that he deputy least once an hour. The also was advised jail pertaining security only by rules checks what he heard jailers. from other Cor- 1969he had not heard of the American County jail rections Association. There were no standards the Kane special placement plaintiff as to who had a prisoners like the paralyzed prisoners arm. or segregating The had no written rules as to taking medical histories inmates. evidence,
At the directed verdict close of all the motion for granted. as to count I motion as to (ordinary negligence) was Defendant’s jury directed verdict on each count was denied. The court directed find in I of the against favor of defendant on count complaint.
The the defend- following interrogatory given jury: to the “Was ant, Kane, and at County guilty of willful and wanton conduct before proximately time of the occurrence contributed described injury plaintiff.” jury cause The found The answered: “Yes.” presented issues both the defendant under the following count I dam- complaint and count II of the and assessed the $175,000 ages: $500,000 damages. actual damages punitive as county appeals.
I. that, Defendant first argues under section 2 — 102 of the Local Governmental Employees Governmental Tort Immunity (Ill. Act Rev. Stat. ch. par. 102), a county cannot be held liable for 2 — punitive damages in any law, tort action as a matter of and that such immunity is not purchase waived policy of a of insurance under section 9 — 103 of the Act Rev. Stat. 103). I 9 — disagree.
Section 2—102 states:
“Notwithstanding any law, other provision of public entity a local is not liable to pay punitive exemplary damages any action brought directly against it by injured party.” This clearly section and unequivocally prohibits puni the assessment of *6 tive damages against public which, a “local entity,” under the definitions set forth in 1975, 85, section 1 — 206 (Ill. of the Act par. Rev. Stat. ch. 206), includes counties. 1 — However, it equally clear that a public entity local waives the “defenses and provided immunities” by the Act by purchasing policy a liability 1975, 85, insurance 103; Rev. Stat. Kobylanski v. par. ch. 9 — Chicago Board Education 165, 705). 347 N.E.2d Defendant, recognizing principle, replies this immunity provided in section 2 — 102 of the Act is by purchase not waived of insurance because phrase law,” “notwithstanding any provision other precedes which grant immunity modifies the set forth in that section. No other prefatory phrase; section of the Act this it is contains unique to singular section 2 — 102. this a interprets phrase Defendant as “categorical mandate” punitive damages may not be awarded an brought action against public entity any a local under circumstances. Thus, we are faced with apparently co-equal provisions calling two for apparently contradictory results. In my opinion, the resolution of this issue lies in the determination of the proper meaning and construction to given be phrase, to the A “notwithstanding any provision other of law.” (I clue is provided by special definition set forth section 1—205 ll. word, Rev. Stat. 205) ch. for the word “law.” This as 1 — Act, used in section 2 — 102 and the other sections of the includes “consti provisions, statutes, ordinances, tutional and case law.” When the word “law” is given expansive required definition under section 1 — 205 of Act, meaning phrase prefatory phrase of this becomes clear. The “notwithstanding any provisions by other of law” was the Gen intended Assembly Act, eral clarify relationship Immunity between Tort which prohibits punitive damages against public the assessment of a local entity, and all other may statutes common law actions which allow the punitive assessment of damages in example, certain circumstances. For Motorola, Kelsay v. 74 Ill. 2d 384 N.E.2d Inc. supreme where an punitive damages may court held that be awarded employee a workmen’s wrongfully discharged filing retaliation for compensation any provision phrase “notwithstanding claim. The other law” authorizing mandates that an award of Kelsay should not be read as punitive Thus, damages against an action is municipal employer. a where brought provision of against public entity statutory a on a local based damages, section punitive common law action an award of which allows drafted, think, or case presently I makes it clear that the statute 2— upon permitting
which the action is not be construed as may based punitive entity. assessment of damages against public the local Hence, agree argument phrase I do not that this defendant’s prohibit public intended a punitive damages the award of local entity municipality purchased policy liability where the has insurance. If result, Assembly General it could accomplish had intended to easily by entity have done so not waive specifying public that a local does its immunity punitive damages by purchasing policy of insurance so, section Exemptions 9 — 103 of the Act. It did not do however. exceptions specified cannot be read an act or can into where none inferred implication. City clear Harvey Firemens Association 151, 153. Harvey (1979), 358,363, 75 Ill. 2d 389 N.E.2d Finally, procures it public entity should be that a noted policy liability agrees, of section express insurance under the terms “ * * * 9—103(b) (I 85, par. 103(b)), Rev. Stat. to waive ll. 9 — immunity from suit provided reason of the defenses and immunities this Act.” Since section provided by 2 — 102is a the Tort Immun defense Act, ity it is policy of upon purchase waived of a (See Kobylanski Chicago insurance. Board Education *7 705, Thus, 63 Ill. 709.) 2d I conclude 347 N.E.2d argument defendant’s regard is without merit. in submit
Alternatively, that the trial court erred defendant contends ting county’s exemp if punitive damages the issue of to even the tion payment by procurement from the of damages of such is waived 1975, 85, liability insurance. Stat. Section 2 — 111 of the Act Rev. 111) states: 2 — “Nothing deprive any public operate contained herein shall to entity any existing of herein.” defense heretofore and not described (Emphasis added.) argues punitive county
Defendant from immunity because the of damages City Immunity (e.g., antedates the enactment of Act the Tort 256; Chicago v. Langlass (1869), Chicago 52Ill. Transit Author George ity (1978), preserved 58 Ill. 679), 3d 374N.E.2d such a defense terms, by operation I its section again disagree. By very of section 2 — 111. 2 — 111 applies only to existing prior defenses to the enactment of the Tort Immunity Act and immunity punitive not described therein. As the to "damage Act, awards is in fact described in 2 — 102 of the section section 2 — 111 is operative. not Defendant’s citation Lansing County McLean inapposite, 372 N.E.2d as the defense asserted by the county that case Immunity was not set forth the Tort Act.
I thus public immunity conclude that a entity local waives from punitive damages by procuring policy insurance. Accord- ingly, I am opinion refusing correctly that the trial court acted plaintiff’s strike punitive claim damages. for
II. argues Defendant next denying that the trial court erred in its motion dismiss complaint proper party for failure to sue the parties that, as defendants in this Specifically, action. defendant contends since the sheriff is an independent constitutional officer whose actions are subject county, county control liable on a cannot be held vicarious liability injuries theory by county sustained inmate due to negligence operation jail. the sheriff or his of the We deputies disagree. sheriff,
The statutory and common law duties of the and the author ity, responsibilities, purpose county organization, and of a must necessar ily given is a long close attention here. It been held that a has public corporation govern connected with the administration of State ment and which solely public purposes. (Clare exists v. Bell 812.) supreme County 37 N.E.2d As court in stated our 239-40, City Cook v. Chicago (1924), 311 Ill. 142 N.E. 513: “Quasi municipal corporations, townships, such as counties and are law, at most organizations, but local by general which are created thereof, without the consent purpose inhabitants political they the civil and government, administration of and They invested with but corporate few characteristics of existence. are, words, other created local subdivisions of the State sovereign power County * * * of the State of its own will township organizations in this with a view to are created State in carrying aid policy large out the of the State at for the adminis finance, education, political government, tration of matters tax ing, poor, military organizations, care of the means of travel functions of justice. powers administration of therefore, munici distinguished township organizations, pal corporations, bearing and refer have a direct and exclusive
531 local, government policy the general, ence the rather than to the State.” given a number policy, county has been the execution of State the to the administration specific responsibilities pertaining duties and in revise the law justice.
criminal to 26 of “An Act to Pursuant section 34, 1975, 432), county par. the relation to counties” Rev. Stat. ch. courthouse, repair jail, a and required provide keep board is to: and for the county buildings, provide proper other accommodations and to 24, sheriff, Pursuant to sections county State’s officers. Attorney, and other 25, jailers” (Ill. to and jails and 27 of “An to the relation Act revise law 1975, 75, 24, 27): par. Rev. Stat. ch. 26 and main- keeping, expense of (a) county The must cost and bear the maintain- jail, keeping and taining, furnishing county and and of thereof; ing prisoners jail each examine
(b) county grand inspect and must court; county report term and to the obligation (c) county grand jury’s the circuit court must enforce the copy inspect with a jail provide county board and must of the jail report. long
It law enforcement is also sheriff the chief established that the 12, 94 249 Ill. rel Davis v. Nellis officer (People ex. county. of the constitution, the same “Sheriffs, have 165.) N.E. as elected under (Dahnke v. Peo powers they at common law.” with which were clothed ple 137, of the 141.) While the duties (1897), 168 Ill. 48 N.E. statutes, statutory sheriff duties are to have been set forth these great authority. degree of the sheriff’s common law merely declaratory (People ex rel. 195.) These statu Rexses Cermak tory duties following: include the has his
(a) peace county sheriff is of the The the conservator riots, prevent power suppress duty keep peace, crime, (Section “An Act to revise 17 of arrest offenders. sheriffs,” ch. law in Ill. Rev. Stat. relation to Act”).) (hereafter “Sheriff’s court custody of the
(b) sheriff is with the care and entrusted Section prisoners jail. of the county, house and of the Act, par. 14. 14 of the Sheriff’s Ill. Stat. Rev. authorities, apparent it is Upon these we believe consideration of statutorily law and that the sheriff is common county officer whose Therefore, imposed county as whole. duties intended benefit negli superior theory respondeat must be held liable on a true, as gence It is his official duties. sheriff the execution of direct no power supervise, argues, defendant board has or control the actions (See of the sheriff in the operation jail. v. People Dahnke 137; People (1897), 168 ex rel. Walsh Ill. 48 N.E. Board Commissioners However, 503.) 74 N.E.2d we do not believe that it automatically proposition follows from this *9 the county may not be held liability liable on a theory inju vicarious ries occasioned the sheriffs negligence. merely test is one “control” of a number of justifications theory offered for the vicarious liability doctrine of respondeat superior. (Prosser, §69, (4th 459 Torts at ed. 1971).) degree While the to which is of employee subject to the control the employer important remains an in determining whether consideration employer will employee’s be held liable for the a negligence on vicar ious liability not, facto, theory, absence ipso of direct control does negate liability. officer, This is particularly respect true to a county sheriff, such as the great whose actions and a discre duties involve deal of tion, yet but performed are entirely the county on behalf of itself.
There holding are apparently considering no cases or whether county may be held liable on theory negligence a vicarious for the of the sheriff. This is v. to Molitor Kaneland surprising, not prior because Community Unit 11, 163 School District No. 302 18 Ill. (1959), 2d N.E.2d 89, counties and other municipal corporations totally were immune to suit under the of governmental doctrine In of immunity.1 tort the absence such immunity we it is county may believe self-evident that the be liable aon liability vicarious theory occurring for the of its sheriff negligence the course of his county duties. The sheriff is a clearly officer whose actions performed county. corporation, on behalf of the Like a a servants, county through officers, can Village only agents (see act v. Corp. (1978), Wilsonville Earthline App. 65 Ill. 3d 382 689, 691); therefore, N.E.2d corporation, county like a a be held should officers, servants, liable for the negligence agents occurring of its the course of county, business. argues
Defendant also Act to the law in that section 22.1 “An revise 1975, 34, 301.1), requires relation to counties” Rev. Stat. ch. which indemnify judgment the sheriff in the event a valid civil against deputies, rendered him or his impliedly grants immunity to county from liability any argument direct tort action. A similar was rejected by in Krieger Village Carpentersville (1972), court 243, App. However, 289 supreme 481. we that the N.E.2d believe 27, court’s City Highland Arnolt v. Park (1972), decision 52 282 Ill. 2d 1 occasionally We note a proposition number of cases are for the cited respondeat superior (See doctrine municipal corporations. & apply does Ill. L. not 14 §52, alia, citing, County Winnebago Prac. Counties inter Hollenbeck However, 551, 90 645.) a Ill. Savoie v. Town N.E.2d Bourbonnais be sued close examination of could these cases demonstrates that the town governmental immunity because of tort from suit. Arnolt, passenger automobile In an this issue. dispositive N.E.2d Park for Highland city of of the police officer against an action a brought driven car patrol with the in motor vehicle accident injuries sustained a upon grounded purportedly complaint One count of the the officer. (Ill. Rev. Stat. Code Municipal Illinois 1 — 4—6of the sections 1 — 4—5and entity to public a 4—6), requires pars. 1 — 4—5and 1 — him in a civil recovered any judgment policeman for indemnify a officer. police a his duties as performance of the arising action out this count striking correctly court acted holding that the trial court reasoned: complaint, the pertains Code Municipal Illinois indemnity provision of
“The imposes entity. It neither municipal an indemnification prescribes It municipality. immunity to liability upon, grants nor judg policeman indemnify a entity will only public when added.) (52 Ill. 2d (Emphasis against him.” ment rendered 144, 147.) 282 N.E.2d sheriff here; indemnity provision clearly controlling
Arnolt is immunity provides nor stated in the counties act neither creates *10 upon forth the conditions merely in It sets any suit civil action. Thus, we conclude county. by which the will be indemnified sheriff merit. argument regard that in this without defendant’s it to allow refusing court erred argues Defendant also that the trial first filed deny agency. to amend its In the answer answer to county, complaint that the plaintiff’s allegation defendant admitted the owned, sheriff), officers, (including through agents, employees its and Immediately County jail. operated, and maintained the Kane controlled file an amended for leave to began before trial defendant moved The motion allegation. admit this deny answer which would rather than court’s the trial correctness of was denied. We need not consider the apparent It is however, ruling, resulted to the defendant. prejudice as no defendant in this court that brief from the record and from defendant’s legal argument its solely preserve its requested leave to amend answer negligence of that as a matter of law not liable motion to however, by a raised argument, properly sheriff. This was for dismiss, result, preserved was legal argument and as a defendant’s denial of Hence, from the resulted to defendant prejudice review. no motion to amend.
III. allegedly pertain to the which arguments Defendant has raised two in the occurring counsel prejudicial plaintiff’s improper and conduct of (1) plaintiff’s argues that: presence jury. Specifically, defendant counsel (2)plaintiff’s and closing argument improper prejudicial; was 534 jail the old by jury view of requesting
committed reversible error (where presence jury. of the We find no plaintiff’s injury occurred) in the magnitude require error of the reversal. closing argument was argument is that
Defendant’s first However, the comments objection made to improper. unfair and no was defendant, result, issue has been singled by we out and as a believe 708, 712; McElroy waived. 232 N.E.2d Force County 67, 153 Corp. Cook v. Oil N.E.2d Colonial 15 Ill. 2d 848. next argues
Defendant by plaintiff’s that the motion made counsel for a jury view of the old was prejudicial in view of the denial subsequent this motion the trial court. It is generally improper for considered trial request counsel jury presence jury, view while of the because jury may incorrectly party infer objecting that the to the motion (Annot., wishes damaging (1961); conceal facts. A.L.R.2d Snell v. W. see However, Evans Son & App. 670.) we J. agree cannot that prejudicial error trial counsel either or was view, constitutes reversible In denying jury error here. the motion for trial court jury announced to the it full accepted responsibility that motion; denying plaintiff’s thus, no adverse motion inference could be Moreover, attributed objected to defendant. pres defendant out jury, ence of the it unlikely so is that the even aware of a defense objection to the Consequently, preju motion. defendant could not diced by plaintiff’s motion. reasons,
For these defendant’s claims of trial error are without merit.
IV. separate which, in arguments general, Three are raised defendant weight relate to sufficiency argues (1) of the evidence. Defendant court directing the trial erred a verdict for on that count of the complaint alleged negligence ordinary part jailers, on the (2) jury’s willful alleging verdict the count wanton supported by misconduct is not and is evidence evidence, weight (3) damages manifest compensatory *11 in by awarded the are excessive. These contentions are considered turn below.
First, agree we trial court did not err plaintiff’s argument that the plaintiff in verdict count I directing charging for the defendant with ordinary It at negligence. proper plaintiff to direct verdict for a the the has out a case plaintiff close all evidence when the made (Pedrick & Eastern Peoria overwhelming weight the of the evidence. 494, 229 504; (1963), 43 v. Cocci R.R. Co. Houchins (1967), 37 Ill. 2d N.E.2d Bros., Ryan v. Goldblatt App. citing Ill. N.E.2d 2d 193
535 case, 239, 242, 164 280, 282.) In instant App. Inc. 24Ill. N.E.2d 2d plaintiff there was negligence, made out a case establishing the sheriffs no contradicting plaintiff’s evidence evidence. tending to contradict the It only power duty then was not the court to direct but also the plaintiff. verdict for Ill. Sughero v. Tea Co. 2d Jewel 28; N.E.2d (1967) Calvetti v. 227N.E.2d 758. Seipp 2d Plaintiff’s an inmate custody evidence demonstrated that he was jail, person that it was as a of mental observation who was need jail taken to the temporary three-day period for a until he could be taken to the Elgin mentally Hospital, plaintiff physically State was that the handicapped custody. injured and was at time he was taken into Consequently, care jailers charged duty providing were with the his protect while he was incarcerated and unable to own health and safety. jailers Plaintiff’s care- evidence also established lessly and negligently operated following facts jail, shown introduced plaintiff: evidence at trial (a) segregate prisoners plaintiff, failed to violent from the who placed was younger the same cell block with much men aggressive troublemakers; who were (b) there periodic was no inspection jail; of the (c) when was first upon by set other inmates the morn- ing 16,1969, hours August repeatedly help, he cried for but no jail employee responded cries; to his (d) jailers supervise failed to day the cell block room where plaintiff mingle forced prisoners with numerous other most day;
(e) despite the fact that a system radio-intercom was available to blocks, monitor the cell system exclusively was used almost pipe blocks, music to cell prevented guards which music hearing plaintiff’s screams help. and cries for sum, plaintiff made out establishing a case sheriff was guilty of negligence, and defendant offered no evidence which contra- dicted court, therefore, case. The trial properly directed a ver- dict for plaintiff on the charging ordinary negli- count defendant with gence.
However, agree I argument with defendant’s issue of defendant’s liability on alleging willful count and wanton misconduct should not have been jury. submitted to the To constitute “willful and wanton” misconduct, the acts or omissions of must the defendants only negligent but must disregard also exhibit a conscious safety of (Turner others. Commonwealth Edison Co. 488, 493; 341N.E.2d see also Schneiderman v. Interstate
536 Lines,
Transit 293, Inc. (1946), (automobile 394 Ill. 69 N.E.2d 300 accident); Myers 328-29, 134 277, Krajefska (1956), Ill.8 2d N.E.2d (automobile 280 accident).) It is at clear from the evidence introduced trial that jury properly the could jailers infer that the themselves were guilty of “willful and plaintiff wanton” misconduct. After was beaten the inmates, cell other by jailer he was removed from the cell block cell, to be taken to a bail hearing. bond He was later returned to the same though even it was him jailer transported evident to the who that “some thing was wrong” plaintiff looked like he had been beaten. Under circumstances, such jailers the were aware or should have been aware that plaintiffs safety cell, endangered, by returning was him to the same the quite reasonably could jailers consciously disregarded infer that the safety the of plaintiff.
However, that, it employer’s liability predicated is settled an where solely upon a liability theory, employer vicarious the is not liable for punitive damages resulting from willful wanton misconduct of the authorized, the employee unless employer approved, or ratified act. In Mattyasovszky West Towns Bus Co. (1975), 61 Ill. 2d N.E.2d our supreme approval court indicated its of the rule set forth requires (Second) Agency Restatement §217C proof puni “complicity” by employer employee’s tort before damages tive may imposed. be Section 217C states: damages properly against
“Punitive can be awarded a master or if, principal other if: agent only because of an act an but act, (a) the principal doing authorized the and the manner of the or
(b) agent employ- principal was unfit and the was reckless him, ing or
(c) agent employed managerial capacity in a and was acting in scope employment, or
(d) ratified principal managerial agent principal or a approved or the act.” in three approval
The rule set forth in cited with the Restatement has been (E.g., v. Field Mattyasovszky. Sherman subsequent cases decided Lenox 154; Oakview New Clinic 392 N.E.2d App. 74 Ill. 3d School No. 122 v. Ford Motor Co. App. 3d District Lines, Inc. 544; (1976), 42 Ill. Systems v. Interstate Truck Tolle N.E.2d I that the views 625.) opinion 356 N.E.2d am of the cited cases expressed reasoning the above the Restatement and the sound, accordingly adopt and I tests set forth therein. case, is a total failure applying instant there principles these to the authorized, condoned, ratified, proof county, principal, as the jury’s approved consequence, As a verdict jailers. of the acts of the part on misconduct and wanton alleging the count willful and must of the evidence weight manifest county is clearly reversed.2 jury’s verdict argument
Finally, agree plaintiff’s we is not excessive. $175,000 damages compensatory awarding assault, adduced and the evidence brutal Plaintiff endured vicious and injuries showed pertaining at trial and nature the extent amount permanent duration. they serious in nature and were question a factual primarily damages sustained *13 the determine, support to there is sufficient evidence the to and where its verdict. jury’s findings, this court will not disturb the jury for judgment entered on the verdict Accordingly, the reversed; balance is the misconduct alleging count willful and wanton judgment is affirmed. part, part. Affirmed reversed SEIDENFELD, concurring: specially
Mr. PRESIDING JUSTICE I concur in the disagree result but reasoning with some of Lindberg’s enacting decision. I do not think that legislature Justice section 9 — 103 of the Local Employees Governmental and Governmental seq.) 1 — 101 et Tort Immunity (Ill. Act Rev. Stat. ch. par. intended to abolish the common law government rule a local is not punitive liable for damages.
The common law Act, rule is codified section 2 — 102 states: law, any
“Notwithstanding provision public other a local entity is not liable pay punitive damages any to or exemplary brought action it directly injured party.” Rev. Stat. 102.) 2 — Lindberg feels that superseded this section is by section
Justice 9 — which has interpreted been to mean public that a local entity waives defenses and immunities set forth in Act when it purchases liability Kobylanski v. Chicago Board (See insurance. Education 2d 165, 173-74.) Since section 2 — 102 is an immunity provided Act, in is waived. the argument it goes,
But the cases so holding have dealt with other II sections articles through Act, VI of the and not the interaction of sections 2—102 and 2 In disposition issue, view of our of this we need not determine whether the trial court refusing erred in permit present to mitigation punitive defendant to certain evidence in damages. * * simply “A public public employee local is not or “A is entity liable * *”* not public entity public employee liable nor a is “Neither local * * any provi liable * ” None other prefatory “notwithstanding have the pro Lindberg interprets sion section to exclude of law.” Justice meaning. language plain give visions of Act itself. But I would Therefore, superseded it is section provision Section 9 — 103 is a of law. law section interpretation supported by 2 — 102. This the definition of law. This only but also case which includes not enactments 1 — intended a comprehensive clearly legislature definition indicates damages in liability punitive government local for remain immune all circumstances. interpretation
This long-established public pol consistent with the icy that public punitive (See entities are not liable damages. City for Chicago Langlass 256, 259; (1869),52 Ill. George Chicago Transit Authority (1978), CTA, 692.) held that a munic George ipal corporation, is not for punitive damages. immunity liable This Act, based upon not Immunity inapplicable, Tort court which the held but upon “long that, standing specifi rule” in the absence of a statute cally authorizing recovery, corporations such are not municipal liable punitive damages. illogical grant immunity municipal It is those corporations deny it covered the Act but to to those covered. And it is illogical to legislature assume that the intended to this rule overturn permitted when it corporations municipal obtain insurance. Finally, this interpretation imposes liability punitive damages only *14 money pocket governmental when will not come out of of the the unit. If damages limits, greater policy the unit does not than the the have to pay surplus. longer liability coverage the If unit the can no obtain large punitive award, because of damage again the unit will never punitive liable for is damages. approach It true this eliminates one of that the objections governmental punitive damages traditional to from local they entities: unjust taxpayers are an burden innocent which do not directly it punish the effect. But wrongdoers and have little deterrent remains purpose punitive damages. inconsistent The imposing with the of purpose damages punish of deter others such is an offender and to from unacceptable similar Towns Bus (Mattyasovszky conduct. West 31, 35;Prosser, §2, (4th 1971).)Clearly Co. 9 61 Torts at Ed. this purpose is punished is not when the because furthered offender cost, deterred, his if company is for he loses pay insurance will the nor he mis protection insurance he the cost his further will be immune from of conduct. permit damages against no local punitive There reason governmental See companies will bear the cost. entities when insurance (1979),48 Indemnity Village Hempstead Co. v. Accident & Hartford of 737; National 397 N.E.2d Northwestern 422 N.Y.S.2d N.Y.2d 432. McNulty 1962), Cir. F.2d Casualty (5th Co. v. grants 2—102 reasons, I would hold that section
For the above damages punitive for from immunity public to local entities insurance. regardless purchased liability they of whether have WOODWARD, dissenting: Mr. JUSTICE this colleagues in by my respectfully I dissent the result reached county of a sharp case. in this the status bring The issues case into focus Illinois; link case under both sheriff in of the State an essential relationship agency complaint counts his establishment of an of was the County Kane sheriff county principal between defendant as and the the The County of Kane. defendant jailors agents the sheriff’s as of the and/or owned, it controlled and originally operated, its admitted answer officers, agents and em- through its County jail maintained the Kane statements were ployees. began opening but before After selection made, action, contending that the suit county the moved the to dismiss the brought County should have been the sheriff of Kane and/or sought jailors; county this leave motion was denied. Then the defendant county, the deny agency relationship amend answer to between the county; as the principal, jailors agents and the sheriff and/or discretion, who, this in his judge, motion was also the trial denied county con- determined that the came too late. Counsel for motion that, in the spite agency tended as contained the admission answer, relationship not exist this case. as a matter of law such a could plaintiff, principle response, Counsel asserted that that, respondeat depending superior applied; judge trial then stated upon case, opportunity to party the outcome of the would have an each present question on appeal. predicated I on the judgments
Plaintiff’s both counts and II are under presented by principle respondeat The threshold issue superior. appeal theory respondeat superior county whether is liable under jailors county his in the the acts omissions of the sheriff and/or and/or administration, jail. operation county Whether and conduct requires not this trial an examina- properly issue was court decided County tion legal and the relationship between sheriff (County Board) Kane and conduct of reference to the maintenance county jail. powers duty respect sheriff in (HI. followingprovisions Rev. specified
inmates were when the therein *15 2) Stat. cfa. were enacted: in this warden county
“The sheriff of State shall each 540 jail * * of the county, and custody prisoners have the of all such
jail V’ Section 14 of “An Act to revise the law in (Ill. relation to sheriffs” Rev. Stat. ch. par. 14) provides further as follows:
“He shall custody have the and care the court house [sheriff] jail of his county, except as is provided.” otherwise The foregoing provisions are codifications of the common law duties and powers of the in respect sheriff operation to the and maintenance of the county jail and prisoners the care of supreme therein. Our court has held only may the sheriff persons hire such necessary as are for the care and maintenance of the jail. (People courthouse and ex rel. Walsh v. Board Commissioners Ill. 293.) supreme The court has also held that the county board has right no janitor dismiss hire a jail. courthouse or County McDonough v. Thomas 408; County Edgar v. Sanders Ill. App. 505. right sheriff’s to have custody the sole and care of the and the inmates therein is further confirmed section 25.34 of “An Act to revise the law in relation to counties” par. 429.18), Rev. Stat. enacted by legislature suit; subsequent filing to the that section provides as follows:
“No county duties, may board powers alter the and functions of county officers that are specifically imposed by county law. A may duties, board any alter powers other impose or functions or duties, additional powers, upon and functions county officers. In the event of a conflict prevails State law county over ordinance.” The foregoing provision merely reaffirms independence from the control of county board of county those officers who derive their authority from statute or common custody law. Since the and care of the county jail is specifically granted law, to the county sheriff board cannot change alter or power, such and there is no in this evidence case County Kane Board so acted.
The majority opinion reasons that the sheriff’s duties are intended to benefit county county therefore the must be liable for the acts and omissions of the sheriff on a respondeat superior theory. It is stated that corporation officers, since a only through agents can act and em- ployees, it should be liable for their negligence. Such a statement correct as applied corporations to most as the complete board of directors has authority officers, power agents to hire its employees it and also power has to fire if them the directions and orders of the board of This, however,
directors are not relationship followed. Illinois between county board; sheriff and the does board not select discharge and cannot quotation majority the sheriff. The in the *16 County City Chicago 311 Ill. Cook v.
opinion from of of confirms in position stating: townships, are
“Quasi and such as counties municipal corporations, * * 0 with they are invested and organizations, but local at most existence.” corporate but few characteristics previously cases The in the statutory provisions by our courts construed the authority cited or control over reveal the has no county board is county jail operation, the staffing county jail; and of the administration by run the sheriff. statutory provisions majority opinion points
The out numerous also in county the board connection specifying responsibilities part the provisions relate jail; with and these the maintenance of the courthouse the operation principally providing maintenance and to funds for the a has similar keeping county The board county jail and the inmates. However, the obligation not follow that as to the it does courthouse. the courts or the county operate or control either authority board has to jail relationship as it if principal-agent would a existed. administra
There been two in involve the have cases Illinois which tion, county the operation county jail; and in case conduct of the each sued; defendant; sheriff was not county was the the board each case However, hence some state they are not similar this case. there are Babb Bush ments is provide guidance. which The first case some Cook App. 23 Ill. 2d 285. there was an inmate the The county the County jail, negligently by jailor who was while treated the jail On appeal, such and reason of treatment contracted tuberculosis. the following court the comment dismissed suit with the reference liability: sheriff’s ° * * functions, therefore, carry “His and with quasi-judicial, omission to immunity negligent
them mere Carl Bush. The provide proper medical care for adequate and state, not duty public, aspect sheriff’s is to under and If county jail. to the inmates he fails individuals who are the duty, may statutory penalty, in his he subjected to the section private (23 290.) but App. not to a suit.” 2d Kelly Ogilvie sued for personal sustained when in the another injuries he was attacked inmate; County, the warden the defendants sheriff of Cook were the jailor. The County jail (who sheriff) and appointed Cook was respondeat supe sheriff charged negligence principle on the rior a “barn boss” in that negligence and also on the basis of he maintained system in the attack on allegedly in the conduct of resulted jail, which plaintiff. page At stated as the court follows:
“Ogilvie are not accountable [warden] [sheriff] Johnson Olson’s [jailor] or Wilson’s alleged wrongdoing upon any [Jailor] rule of agency or respondeat superior. According long standing rules, public having official public direction of a subordinate employee is not thereby responsible for the latter’s conduct. It is the underlying public body is principal or master. [Ci- In the public entity, county, instant case the is tations.] party statutory its immunity liability by express virtue provisions consid- construing or the decisions them need not be (Emphasis added.) ered.” part quotation support appear the above italics would However, of respondeat superior.
theory authority the case cited as Insurance, sheriff; responsibility involved the State not a Director of further, dicta, party the statement as the was not a Also, lawsuit. relationship the statement at odds with the between the sheriff imposed by initially, board the statutes discussed *17 Kelly Kelly no case authority proposition. has cited as this court then not county jail determined that the sheriff and the warden were alleged liable for in as negligence the administration of the and stated follows:
“The systems prison choice of of administration involves the exer- cise of quasi-judicial discretion and comes of within doctrine immunity. principle This that the doctrine rests on the [Citations.] maker, public ought shielded from judge, decision like the to be personal judgment based liability or other factors extraneous to a * * * perception public on his best needs. * * * admittedly quasi-judicial immunity purpose While the factors, personal is making to insulate decision from extraneous Equally important only financial is one of those factors. defending his public liability legitimate and an officer’s fear of obsolete many policy choices in court. These are not rendered insurance, quasi-judicial reason for indemnification and immunity Kelly, remains.” at 147-48. Kelly Bush interesting theory quasi-judicial
Both raise the county immunity operation as to the sheriff connection with the jail. grounds clearly On holds that the sheriff public policy, each case Therefore, it is not running jail. be negligence cannot held liable for over his logical county it has no control impose liability on the as however, the sher purposes argument, Assuming, conduct. iff he is immune employee agent county is an and that immunity, section then liability by quasi-judicial virtue of the doctrine of Tort Employees 2—109 of and Governmental the Local Governmental relieve the 109) would Immunity (Ill. par. Act ch. Rev. Stat. 2 — county provides: of liability. That section an resulting from injury
“A for an public entity local not liable is not hable.” employee act or employee omission of where above, county On set forth the basis of either of the two theories First, superior respondeat in this because not be held liable case. should or, alternative, is not liable on apply does not because the sheriff county basis relieved quasi-judicial immunity, and therefore consideration practical A further liability by section noted above. 2 — conclusion, if had been supports namely, the defendant foregoing sheriff, then permitted agency deny to amend his answer upon by theoretically question passed arise to be resulting of fact would sheriff was an jury. No doubt contend that the would then independent employee defined contractor and therefore not an Employees section 1 — 202 of the Local Governmental and Governmental 202). Tort Immunity Act Rev. Stat. such event 1 — it is required submitted that court to instruct the would have been that no agency existed as a matter of in this case. law
This is a impression difficult case and also one of first Illinois. question There is no in the Kane miserably that the treated County jail. The status sheriff and relationship between the existing the county properly interpreted is involved and must under law. If satisfactory, change this is act to legislature should relationship. applied. An been The trial principle incorrect of law has court I denying respect- erred defendant’s motion to dismiss cause. fully reversed, submit judgment I and II count count should be judgment should be entered for the defendant in this court on both counts. *18 v. TRAVICE E.
KARIN WARREN, M. L. Plaintiff-Appellee, WARREN, Defendant-Appellant.
Third District 80-9 No. Opinion September 4, Rehearing filed denied October 1980. 1980.