APPEAL from the Circuit Court of Du Page County; the Hon.
ALFRED E. WOODWARD, Judge, presiding.
MR. PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Plaintiff, the administratrix of the estate of her husband Frank J. Dezort, filed a wrongful death action alleging that the defendant Village and its named police officers were responsible for the suicide of her husband while he was a prisoner in the Hinsdale Village jail. She appeals from the order of the trial court granting defendants' motion for summary judgment and denying her motion for summary judgment and her motion in limine seeking to strike the issue of contributory negligence.
She contends that the defendants were under a duty to exercise reasonable care for the decedent while he was a prisoner and that their failure to do so was the proximate cause of his suicide. She also argues that the decedent cannot be charged with contributory negligence since self-injury was the very risk to be guarded against by the defendants when they were confronted with a person with known and expressed suicidal tendencies. She further contends that, in any event, contributory negligence was not proved as a matter of law and that defendants did not have quasi-judicial immunity.
The facts are admitted for the purpose of testing the order granting summary judgment to the defendants. On or about the 21st of December, 1971, Frank J. Dezort, Jr., the decedent, age 43, arrived at his home at about 3:30 a.m. in an intoxicated, highly emotional and severely depressed state. He expressed fears of committing suicide and requested that the police be called to protect him from himself. A member of Dezort's family called the police at approximately 4:50 a.m. During the time the officers were present in the house, Dezort kept asking them to shoot or kill him. He stated that if the officers did not shoot him, he would take their guns and do it himself. On two occasions in the home Dezort tried to take the gun of one of the patrolmen. The first attempt was unsuccessful; on the second attempt he was able to get the gun out of the officer's holster but was forced to drop it by the officer. Dezort was then handcuffed and searched, taken into custody, and transported to the Hinsdale jail. When he left his house he was wearing an undershirt, a pair of trousers, shoes, and socks. A complaint was filed charging him with disorderly conduct.
Dezort was searched again at the jail house; and cigarettes, matches, his wallet and some loose coins were taken from him. He was placed in a cell alone at about 5:20 a.m. The sergeant in charge told the arresting officer to conduct all checks of the decedent because he "looks strange." However, no physical or mental examination was made.
At approximately 7:05 a.m. Dezort was found dead, hanging by the neck from his belt.
Defendants' motion for a summary judgment, which was allowed, stated that the defendants had no legal duty to protect Dezort from self-inflicted injury and that the action was barred by the decedent's contributory negligence. Defendants also raised the additional defense of quasi-judicial immunity of the officers. Plaintiff's motion for summary judgment, which was denied, claimed that there was a mandatory statutory duty applicable to the case and that it had been breached.
• 1 We must first decide whether defendants owed plaintiff's decedent a legal duty to use reasonable care to prevent his suicide. Whether the law imposes upon a particular defendant a duty to exercise reasonable care toward plaintiff or the class of persons of which plaintiff is a member is a question of law to be determined by the court. (Mieher v. Brown, 54 Ill.2d 539, 541 (1973); Barnes v. Washington, 56 Ill.2d 22, 26 (1973); Cunis v. Brennan, 56 Ill.2d 372, 374 (1974).) The determination of the question of duty requires weighing such factors as the foreseeability of the occurrence, the likelihood of injury, the magnitude of the burden of guarding against it, and the consequence of placing the burden upon the defendant. Boyd v. Racine Currency Exchange, Inc., 56 Ill.2d 95, 99 (1973). See also W. Prosser, Law of Torts § 53, at 324-27 (4th ed. 1971).
That a prisoner who is alone in a cell is likely under some circumstances to injure himself or to commit suicide would appear to be reasonably foreseeable. The magnitude of the burden of guarding against self-inflicted injuries and the general policy considerations underlying the placing of the burden upon those in charge of prisoners, however, presents greater difficulties. The issues do not appear to have been specifically addressed previously in Illinois.
However, several Illinois cases and statutes have been cited as giving some direction to the resolution of these questions. In Bush v. Babb, 23 Ill. App.2d 285 (1959), the prisoner's father brought an action alleging that he was required to support his invalid son because the county sheriff had allegedly violated a statute (Ill. Rev. Stat. 1959, ch. 75, pars. 2, 19) requiring the warden to furnish medical aid for all prisoners under his charge. The court held that the sheriff's duty was to the public and not to individuals who were inmates of the county jail under the statute and that if he failed in his duty he could be subjected to the statutory penalty but not to a private suit (23 Ill. App.2d 285, 290). In Kelly v. Ogilvie, 64 Ill. App.2d 144 (1965), Kelly had filed a complaint alleging that while he was a prisoner in the county jail pending trial he was injured by a fellow inmate who, he alleged, was permitted to enter his cell by a trusty. Section 16 of the Sheriff's Act (Ill. Rev. Stat. 1963, ch. 125, § 16), relied upon by the plaintiff, provided for a civil remedy in the case of a failure to obey an order of the court. The appellate court in affirming the dismissal of the complaint held that the order entered in the case (to keep the accused safely until final judgment of the court) imposed only a public duty on the sheriff. The court relied on Bush v. Babb. On review the supreme court in Kelly v. Ogilvie, 35 Ill.2d 297 (1966), affirmed, however, on the basis that the complaint had joined the wrong superior under the doctrine of respondeat superior (the sheriff instead of the public body which was the County of Cook) and had failed to allege that the defendants knew or should have known of the facts which presented an unreasonable risk to the prisoner. The court held that a sheriff or warden could not be held liable on the basis of plaintiff's allegations that they are insurers of the safety of a prisoner placed in their custody even when a "tier clerk" or "barn boss" system is in force. *fn1
In the case before us plaintiff argues that not only is there a suggestion in Kelly v. Ogilvie that a public body and its subordinates may in a properly pleaded case be found to have a duty to protect a prisoner in custody from injury but that the apparently contrary language in Bush v. Babb, 23 Ill. App.2d 285 (1959), has been expressly negated by statute. Plaintiff cites section 4-105 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1973, ch. 85, par. 4-105) which provides, as material here:
"* * * but a public employee, and the local public entity where the employee is acting within the scope of his employment, is liable if the employee knows or has reason to know from his observation that the prisoner is in need of immediate medical care and fails to take reasonable action to summon medical care. Nothing in this Section requires the periodic inspection of prisoners."
Plaintiff also relies on certain police department rules of the Village of Hinsdale enacted pursuant to the authority granted under the Illinois Municipal Code (see Ill. Rev. Stat. 1973, ch. 24, pars. 11-1-2, 11-3-1) which regulations as material here provide:
"Chapter 11. Procedures. Criminal arrest. * * * Before locking up a male prisoner, an officer should make a careful search and take from him everything which could be used in effecting an escape or to injure ...