*1 dismissing court counts judgment the circuit affirmed, prejudice III and IV with is therefore reversed, and the court judgment appellate court for further cause is remanded the circuit proceedings opinion. consistent with this reversed; court

Appellate affirmed; court circuit cause remanded. (No. 75436. MOY, as Adm’r of the Estate Special

RICHARD Deceased, Moy, v. THE COUNTY Choy Appellant, COOK, Appellee. OF 1994. July Rehearing denied October

Opinion filed *2 HARRISON, J., dissenting. Chicago, for Perconti, of Wilson, of Levin &

David B. appellant. (Karen Chicago Attorney, of O’Malley,

Jack State’s Buglass, Georgia A. Covy, A. William P. Pistorius counsel), appellee. Attorneys, of Assistant State’s opinion delivered the FREEMAN JUSTICE court: in this whether presented appeal

The issue vicariously under the liable may be held County of Cook alleged negligent of respondeat superior doctrine County sheriff. conduct of the Cook

BACKGROUND *3 on the defen the court appeal this is before Because dismiss, facts well-pleaded county’s motion to all dant (Katz Bank National as true. v. Belmont regarded bewill 67.) died while Plaintiff’s decedent (1986), 112 Ill. 2d During County jail. an at the Cook confined as inmate confinement, repeatedly decedent had of that period the his inability to control illness and his complained about 9, 1989, July two inmates told On bowel movements. the decedent jail the present paramedics ill to come to and was too attention required medical paramedics, room. The regular treatment the he came unless see the decedent refused to following the died room. The decedent treatment morning. Cook naming complaint filed three-count

Plaintiff County alleged that Cook complaint as defendant. The corrections, sheriff, County, through department its its its the employees, operates directors and its owns and Further, Cook County jail and the House of Corrections. alia, The inter following. the complaint alleged, the which conducted an examination of the decedent indicated an abdominal the decedent needed facility jail May evaluation. On or about the physician interpreted ray a chest X of decedent bowel of small abnormality loop showed an of "distended mass large fecal RUQ [right upper quadrant] a proper At no time did Cook obtain abdomen.” County, abdominal evaluation of the decedent. the officers, breached agents employees, its and through wantonly and wilfully and acted duty owed the decedent health safety, disregard conscious and with custody of he was in the the decedent while welfare of with decedent defendant; provide the failed the refrain from wilful care; failed to medical train properly through its failure misconduct wanton jail staff. the supervise complaint the dismiss county filed a motion to prejudice. with the it was not motion, county averred that the

In the motion, support defendant. party proper duty county’s regarding asserted statute, complaint and that prescribed jail statutory duties. any breach of those allege failed to County jail and asserted, the Cook Further, solely of corrections County department the Cook of Cook and control supervision under constitutional elected independently who is County, officer. granted motion, trial court hearing on the

After with complaint and dismissed motion *4 dismissal appealed Plaintiff prejudice. (244 Ill. affirmed. appellate The court

appellate court. leave for petition App. granted plaintiffs We (134 315(a)), affirm. appeal Ill. and now 2d R.

ANALYSIS erred court Plaintiff the trial contends that issue dismissing complaint. dispositive The vicariously held be may whether of Cook County sheriff. the conduct of the Cook liable for Waiver waived county initially argues plaintiff

The that argument an the sheriff is the trial failing argument to make such that, trial in the appeal. or on The states court relationship to court, plaintiff argued county’s and, alterna- that of or master principal the sheriff was However, tively, relationship existed. agency that an contends, argued that an plaintiff never basis for an relationship formed the employer-employee imposition county’s liability. vicarious clearly argument complaint waived. The not liability alleges upon based the conduct expressly its employees. complaint Even had the not so alleged employer-employee relationship, would Plaintiff seeks to hold failing not fatal. county vicariously liable under the doctrine re Although "principal” the terms spondeat superior. "servant,” "employer” "em

"agent,” "master” may separate purposes for ployee” have connotations are immaterial authority, such distinctions contract the doc plaintiff for a to invoke purposes. tort order it is sufficient that one respondeat superior, trine of relationships be established the above agent, or the ser wrongdoer employee, be either the (1 Lindahl, & Tort Law vant. J. Lee B. Modern 7.02 (rev. 1988); v. Ketter ed. see also Dean

524 App. (although 206 "agent” words and "servant” are not wholly synonymous, there is no basic distinction be- liability tween of principal liability agent tort of and servant).) of master Incidentally, for tort of in some works, the terms and "employer” "employee” and See, "master” and "servant” interchangeably. used (1992). 30 e.g., C.J.S. 3 Employer-Employee § Respondeat Superior brought against When an action is a master based allegedly on and no inde negligent acts of the servant master, pendent wrong charged is on behalf of the derivative, liability entirely being upon is founded (Kirk doctrine of Michael Reese respondeat superior. v. (1987), Hospital & Medical Center 117 Ill. 2d another, impute negligence person "[T]o of one persons must stand in privity a relation of in thing imputable negligence except there is no such as privity those cases where such a master and servant (Palmer (1942), principal agent exists.” Miller 259-60.) liability merely Ill. The master’s is 380 (Palmer, relationship. of the contractual 380 Ill. reason Keeton, 259; on Torts see also W. Prosser & Keeton (5th 1984).) relationship, ed. Absent an 69§ Palmer, Ill. at apply. See the doctrine does not relationship (holding that minor cannot establish 259-60 and so cannot be held liable under of master and servant v. HMO Raglin see also respondeat superior); doctrine of Illinois, (1992), App. 3d Inc, county is a officer contends that the sheriff

Plaintiff responsi county, only acts on behalf who respondeat under the doctrine of his actions ble for case to only sub judice, Aside from the case superior. liability for the county’s vicarious the issue of a decide Kane is Holda v. of its sheriff acts essence, held, in Holda in 522. The court App. whose common law county is a officer the sheriff benefit are intended to statutorily imposed duties Therefore, opined, the court as a whole. respon- county must be held under the doctrine liable the exe- superior negligence deat of the sheriff lack duties, notwithstanding cution of his official operation in the his board’s control of actions jail. That reject reasoning We Holda. can factor which not a

functions benefit in aid the distinction between master-servant case, In either relationship. dependent contractor contractor, independent is a servant or an whether one Critical he functions for the benefit another. *6 the relationship is a

determination of master-servant control, the right which includes existence of the Co. power discharge. v. Emerson-Comstock of Gundich 117, (1960), 21 Ill. 2d 123. County Jail Act county points

The defendant to the 1991, 75, in of par. seq.) support Rev. Stat. ch. et 100 relationship exists position no its that master-servant sheriff, county no control between it the as the has counters, the conduct. Plaintiff over sheriff’s no over county the fact that the control that mere "[ojther dispositive. not He asserts that the sheriff is on factors, compensation is a time basis such as whether furnishing job, right discharge, the and the byor tools, materials, all to be taken into equipment or are of of the master- in the determination consideration” Comm’n relationship. O’Brien v. Industrial servant (1971), 48 Ill. 2d factors relevance agree

We that other have relationship. How- aof master-servant determination ever, consideration generally decisive essential suggest control. Lee and Lindahl right need not in O’Brien as those recited while factors such rela- of a master-servant the existence present 526 (See

tionship, right present. to control must be J. (rev. Lindhal, Lee & B. Law 7.04 ed. Modern Tort 1988).) Prosser, hand, suggests Dean on the other these See W. factors determine the existence of control. 1984). (5th Keeton, ed. Prosser & Keeton on Torts 70§ the office county given authority The no to control may exercise Significantly, county of the sheriff. boards State only powers expressly granted by as are by implication granted powers or arise from these existence. purpose are of their indispensable 146, Logan (1967), (Crumpler of additional Although may impose a board alter or officers, not “alter may the board upon duties duties, officers powers and functions added.) Ill. by law.” imposed (Emphasis specifically are ex 1087; People see also par. (1947), Board Commissioners rel. Walsh v. Dahnke v. 298; Ill. 102. People duties county jail, following related to the As each The sheriff of the sheriff law. imposed upon county, jail county shall be the warden except when jail, prisoners of all custody have "County Department in the provided otherwise 102). Act” Corrections jail, may superintendent appoint and it is pleasure, him at his and remove conduct superintendent’s responsible for the who is *7 hiring Further, responsible sheriff is training. and necessary operate to personnel all training and 103.) (Ill. 75, 1989, par. ch. Stat. jail. Rev. maintain Code, of correc department a to the Counties Pursuant department. s the office of is created within tions (I 15002.) Under 34, 1991, par. Stat. ch. Rev. ll. and operates sheriff, department the direction penal other county jail over jurisdiction alla, diagnostic, inter establishes and, institutions at the programs classification and rehabilitation 34, 1991, jail. par. Ill. Rev. Stat. ch. 3—15003. respect to

Clearly, duties with statutory sheriffs jail independent of and unalterable plaintiff by any governing notwithstanding, That body. rela employer-employee

maintains the existence of an tionship. disagree. Further, find the We we (see Stat. jail Ill. Rev. obligation provide to a suitable 1989, to 75, 101), ch. incur those costs attendant par. to (Ill. jail keeping, maintaining, furnishing 120), obligation as its par. as well maintaining persons all committed pay costs 105), jail insufficient relation upon bases a master-servant conclude ship. desig plaintiff correctly his

Throughout argument, fact, sheriff "county nates the officer.” among designated in persons is included those elected "county the constitution as officers.” Const. VII, Despite recognition of the sheriffs status

art. § officer, plaintiff engages as a the traditional analysis of an to conclude the existence master-servant Plaintiff, misap employment relationship. apparently, as a prehends import the full of the sheriff’s status county officer. employ-

There is a distinction between officers (67 ees; interchangeable. the terms are not C.J.S. Officers (1978).) Further, an of- important distinguish it is many respects the employment from an because in fice the relation of governing rules of law relation, govern the which is do not official employer may be termed body of the law which regulated (67 (1978).) As we law of officers. C.J.S. Officers § stated, respondeat application of doctrine have rela- the existence of superior requires tionship.

528 place system

"An governmental office is a a cre or recognized by State, ated the law of the which either directly by delegated authority assigns or to the incum per bent thereof performance the continuous of certain *** manent public duties. An differs from duties, both an position office and a in that its which are non-governmental, permanent.” are neither certain nor People v. (1918), 606-07. Coffin

Although by designation of one the law an (67 officer is of some C.J.S. 8 significance Officers (1978)), is recognize designation we such a not of the conclusive as to the official or unofficial character Further, person. designat- in a nomenclature statute holding employee ing person position a a as an officer (See (1935), Hall v. controlling. is not (holding notwithstanding language of 359 111.528 county architect authorizing appointment statute County, ap- of commissioners of Cook by board salary statéd pointee not where he has no an officer his basis and where employed on a commission but continuous, even and not generally work is casual in the records though frequently he is referred to officer).) therefore, We, board as consider is, fact, an officer. whether and an Generally, between an officer the distinction by of relevant is determined a consideration duties, circumstances, including the nature of the power performed or service to functions Wilson rel. Adamowski v. (People ex granted wielded. ex rel. Landers People (1960), Ill. 2d Toledo, & Western R.R. Co. St. Louis positions of 145-46, whether considered this court superintendent Attorney and assistant State’s assistant noted The court be considered offices. were to of schools simple office, with as contrasted of an of the indicia some noted the the court regard, In that employment. (1) by are created positions following characteristics: (2) be fixed law; compensations required their treasury; paid board out (3) sovereign power they portion exercise some (4) State; by contract prescribed not their duties are *9 (4) law; engaged are not agreement, by they or and but act, ends perform special completion to a of which the continuous, duty, positions their the duties of but the holds the regard person who particular without not were assistants office. The court concluded that the duty, but act a or agents perform particular mere to duties general the performance were officers Television, Inc. See Midwest of the offices. also (1976), Communications, Inc. 37 Champaign-Urbana 926, App. 3d indicia sheriff bears all by of sheriff is created Specifically,

an officer. office (Ill. 1970, Const. VII of the Illinois Constitution. article 4(c).) contrast, rela VII, employer-employee art. § its existence tionship requires for (Lee (1991), contract, express implied. or v. Canuteson 137, 141, Co. citing Paving A.J. Johnson App. 214 Ill. 3d 350.) 341, Ill. 2d Before Comm’n v. Industrial office, upon the duties of his entering affirmation and subscribe the oath or required take (Ill. 1991, ch. by the constitution. Rev. Stat. prescribed duty sheriff’s does 34, par. Significantly the for its duration depend not arise out of contract or (See Television, of a Midwest upon the terms contract. 2d 931, Public citing 63A Am. Jur. App. (1984).) Additionally, pursuant Employees & § Officers duties, constitution, powers has "those the sheriff by by provided and those provided law and functions provides further ordinance.” The constitution duties, powers shall have the "[c]ounty officers prece- or historical derived from common law functions (Ill. dent unless altered law or ordinance.” 4(d).) VII, Const. is elected Finally, art. the sheriff § (Ill. 4(c)), VII, years art. terms of four Const. continuous, regard his duties are without Based on particular person who holds the office. factors, presence of these several we conclude employ and not a mere position of sheriff is an office such, respondeat superior ment. As the doctrine of application. no rejec argument makes the additional

Plaintiff agency relationship between tion of an provision with the is inconsistent 1989, ch. Act Compensation Workers’ the Local Governmental par. seq.) 138.1 et Immunity Act Tort Employees Governmental define and seq.), 1—101 et employees. officers as public treat validity beyond no statutory definitions have These they appear. in which legislation scope *10 provides: Act Compensation Workers’ Significantly, the *** all Act means: as used in this 'employee’ "The term *** including dep- county, in the service persons added.) (111. 1989, ch. Stat. Rev. (Emphasis uty Sheriffs.” 138.1(b)(1).) Immunity Act Similarly, the Tort 48, par. provides: words requires, otherwise Unless the context 1—201.

"§ meanings ascribed to the in this Act have used and terms 2.” following this Part sections of in the them 201.) 85, par. 1— former present or includes a 'Employee’ 1—202. "§ added.) 1989, ch. Rev. Stat. (Emphasis ***.” officer 202.) par. 1— "employee” term meaning ascribed the Clearly, is limited enactments legislative particular in these thereto. City on s reliance vein, plaintiff we note similar

In a 411, in (1945), 389 Ill. Cornm’n Industrial Chicago of employ support public of officers are his conclusion that no provides ees case governmental entity. of a This There, "the relation support for a proposition. so broad within ship was established employer of ***.” Act Compensation the Workmen’s meaning of 417.) added.) See (Emphasis (City Chicago, of also Cook v. Industrial Comm’n court’s Finally, appellate that plaintiff contends uncertainty ruling liability of no vicarious creates for regarding responsibility governmental entities It is his contention the tortious conduct of their officers. uncertainty created that the "confusion and any benefit since the ruling without identifiable any elected expenses remains liable for its officials.” refer- county perceives plaintiff’s argument to statutory obligation. county’s

ence the indemnification (111. to Pursuant provision, county is mandated the indemnification any judgment or a indemnify deputy to in against him for misconduct entered nonwilful provides provision of his duties. The further performance any shall county may intervene in action and county analo- permitted appear and defend. The of an gizes requirement its indemnification insurer. indemni

Notwithstanding nature of relationship exists obligation, no fication reimbursement passing, here. We note defending crim expenses incurred public officers omissions, under for official acts prosecutions inal statute, part compensation regarded *11 See 67 for services rendered. receives the officer (1978). 1989, Rev. Stat. See also Ill. C.J.S. Officers against insure 34, (county may board par. ch. 5—1079 any liability any resulting loss or officer of the officer). wrongful negligent any from the or act

CONCLUSION and, such, The is a officer as is not an employment relationship County with the of Cook. Therefore, vicariously liable county may not be held alleged negligent sheriff’s conduct. Plaintiff county upon failed to against state a cause of action may complaint granted. relief be Dismissal was, therefore, reasons, affirm the For these we proper. appellate court.

Affirmed. HARRISON, dissenting: JUSTICE respondeat superior wrong. is majority’s analysis (See County Holda v. Kane App. liability here is defined irrelevant. The It is also of the Local Governmental by statute. Section 4—105 Immunity Act Tort Employees and Governmental 105) nei 85, par. provides ch. Rev. Stat. 4— is liable entity public employee nor a public ther a local failure of the em caused injury proximately prisoner for a medical care to furnish obtain ployee provides, also custody. The statute in his where, in this alleged immunity inapplicable this case, employ scope of his acting within the employee,

"the prisoner ment, that the his observation of conditions from and, through willful care of immediate medical is in need conduct, action take reasonable fails to and wanton par. care.” Ill. Rev. medical summon 4—105. constitutes that Cook question

There is no of this statute meaning entity within the public local 206), can there (111. nor sheriff, jail, who runs any doubt 4, of VII, section article entity. Under of that *12 4) (Ill. VII, art. 1970 Constitution Const. officers, among county sheriffs are listed explicitly constituting em expressly officers are defined as ployees of the Act purposes 202). 85, par. By statute, is therefore 1—

responsible any injury proximately caused department members of the sheriffs where the condi tions set forth in section 4—105 of the Act 105) 85, par. proven at trial. plaintiffs complaint Counts I and II of set forth claims fall squarely within the terms of section alla, specifically alleges, 4—105. He inter employees jail knew that the decedent was in im- attention, "wil[l]fully yet mediate need of medical wantonly failed to take reasonable action to summon circumstances, I medical care.” Under these counts II properly judgment stated a cause action. dismissing prejudice those counts with should therefore reversed, and the cause should be remanded for fur- ther proceedings.

(No. 75877. SCHROCK, JANIS E. v. CALVIN SHOE- Appellee, (Bash al., Schrock, Appellants MAKER et Inc., Appellee).

Opinion August Rehearing denied October 1994. filed