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Gardner v. Village of Chicago Ridge

APRIL 28, 1966.

JAMES L. GARDNER, PLAINTIFF-APPELLANT,

v.

VILLAGE OF CHICAGO RIDGE, ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County, Law Division; the Hon. HUGO FRIEND, Judge, presiding. Reversed and remanded.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.

Rehearing denied July 7, 1966.

The plaintiff appeals to this court from a final order dismissing his second amended complaint as to the defendant municipalities on their motion. The plaintiff sued the villages of Chicago Ridge and Worth, individual police officers of these two villages, and four other persons, for personal injuries incurred by him.

The facts alleged are: The plaintiff was supervising a teen club dance in a hall in the village of Chicago Ridge on March 8, 1962. Four of the defendants, Skubis, La Valley, Posthuma and Souliotis, entered the club and when they were asked to leave by the plaintiff, the four proceeded to strike and beat the plaintiff. Later in the evening, with the help of information furnished by the plaintiff, the police officers of the villages of Chicago Ridge and Worth apprehended the four suspected attackers on a public highway. One of the Chicago Ridge police officers returned to the dance hall and requested the plaintiff to accompany him to that point on the highway in order that the four defendants might be identified by the plaintiff.

When the plaintiff came to the point of apprehension, the police officers allowed the four defendants to remain in very close proximity to the plaintiff. As a result, the four again attacked the plaintiff, in the presence of the police officers, whereby the plaintiff sustained severe injuries.

The plaintiff sued for $100,000 for injuries sustained, naming as defendants the four attackers, the police officers, and the two municipalities.

In his original complaint the plaintiff included four counts. Count I complained of the negligence of the two villages and their police officers in failing to adequately guard the four persons arrested and in negligently allowing them to beat the plaintiff. Count II was a statutory cause of action based upon Illinois Revised Statutes (1963), chap 24, sec 1-4-6. Count III complained that the two villages were guilty of negligence in hiring the police officers knowing that they had no formal training, and in failing to provide them with training once they became police officers. Count IV complained of the four persons who administered the beatings.

The defendant villages moved to strike the original complaint on the ground that the statutory notice had not been pleaded. Plaintiff amended the complaint by attaching the required notice in open court.

The defendant villages individually filed motions to strike the amended complaint and dismiss the action insofar as it pertained to each of them on the ground that the amended complaint failed to state a cause of action against them. These motions were allowed by the trial court as to counts I, II and III. The court also gave leave to the plaintiff to file a second amended complaint against the defendant villages and the police officers.

The second amended complaint recited facts not given in the amended complaint and set forth the acts of negligence specified in Count I of the original complaint. Significantly, the plaintiff did not include a statutory cause of action in his second amended complaint. The second amended complaint was dismissed on motion as to the defendant municipalities. The plaintiff appeals from this order.

The theory of the plaintiff is that the second amended complaint stated a good cause of action against the defendant municipalities for their negligent failure to take precautions reasonably necessary for the protection of the plaintiff after he had reported the commission of a crime and had been summoned by the police officers to the place of apprehension in order to make an identification; as a result of this negligence the plaintiff was severely injured when he was attacked and beaten in the presence of the defendant police officers.

Plaintiff also urges on appeal that chapter 24, section 1-4-6, of the Illinois Revised Statutes (1963), is controlling in the case at bar. We do not have to decide the applicability of this statute since this cause of action was not included in the second amended complaint which was filed by the plaintiff. The order appealed from struck the second amended complaint and dismissed the action as to the municipalities. An amendment which is complete in itself, and does not refer to, or adopt, the prior pleadings, supersedes it and the prior pleading ceases to be a part of the record, being in effect abandoned, or withdrawn. (ILP, vol 30, Pleading, sec 113; People ex rel. Nelson v. Central Mfg. Dist. Bank, 306 Ill. App. 15, 28 N.E.2d 154.) In the instant case, since the plaintiff failed to include the statutory cause of action in his second amended complaint, he has abandoned this theory and must base his action on the common law theory of negligence.

The plaintiff in his brief has argued at length that since the decision in Molitor v. Kaneland Community Unit Dist. No. 302, 18 Ill.2d 11, 163 N.E.2d 89, which held that municipal corporations are liable for the negligent acts of their agents, there is a direct right of action against municipalities for their torts. The defendant villages do not challenge the above statement. The defendant villages have stated in their brief:

"Plaintiff apparently believes that the defendant municipalities challenge direct right of action against the villages. Of course, these defendants make no such challenge. Nor do these defendants doubt for a moment that a city may be directly liable for the tortious acts of its ...


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