APPEAL from the Circuit Court of St. Clair County; the Hon.
DAVID COSTELLO, Judge, presiding.
MR. PRESIDING JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
This is an appeal from an order of the Circuit Court of St. Clair County granting defendant-appellee W.J. Whitney's motion for summary judgment and granting the motion of defendant-appellee City of Belleville (hereinafter City) to strike plaintiff's amended complaint.
Plaintiff-appellant David A. LaMonte contends the trial court erred in granting Whitney's motion for summary judgment as the record indicates the existence of a genuine issue of material fact. Further, appellant urges that Whitney is not entitled to summary judgment as a matter of law because his failure affirmatively to assert the defense of justifiable use of force bars its use as the basis of his motion for summary judgment. Appellant contends the trial court erred in granting the City's motion to strike plaintiff's amended complaint for failure to state a claim, as the complaint stated a cause of action based on the common law intentional torts of assault and battery.
On December 11, 1973, while on duty as a Belleville police officer, Whitney responded to a call reporting the armed robbery of a liquor store. Whitney encountered a suspect, LaMonte, and in subduing him fired a total of five shots, at least three of which struck LaMonte.
Plaintiff filed a verified complaint against the police officer and the City alleging a denial of constitutional rights under 42 U.S.C. § 1983. After the filing of a verified answer, the court granted the City's motion to dismiss the complaint for failure to state a cause of action and granted plaintiff leave to amend. Plaintiff's unverified amended complaint alleged the same material facts as the original complaint and contained three counts. The first count stated a cause of action against the police officer based on 42 U.S.C. § 1983. The second and third counts incorporated the allegations of the first count, including violation of 42 U.S.C. § 1983, alleging that Whitney had committed willful and wanton misconduct within the scope of his employment and asserted liability of the City under the doctrine of respondeat superior. The City moved for dismissal of the complaint and Whitney moved for summary judgment. Whitney filed an affidavit and attached unsigned copies of his police report and the reports of five other police officers in support of his motion. LaMonte filed no counteraffidavit.
In Officer Whitney's police report, incorporated by reference in his affidavit, the officer stated he responded to the report of the robbery. Patrolling the area near the liquor store on foot, Whitney encountered LaMonte, who answered the description of the suspect. Whitney identified himself as a police officer and ordered LaMonte to halt and raise his hands. As Whitney advanced toward LaMonte, the suspect reached for a pistol he was carrying and the officer shot him. After obtaining control over LaMonte's pistol, the officer again ordered the suspect to halt. LaMonte continued to flee and to struggle for something underneath his coat whereupon the officer fired four additional shots before subduing him. LaMonte was later tried and convicted of armed robbery in the Circuit Court of St. Clair County.
Section 57 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 57) allows a party to move for summary judgment with or without affidavits. If the pleadings together with the affidavits show no genuine issue of material fact, and the movant is entitled to judgment as a matter of law, summary judgment should be granted.
The first issue to be determined is the admissibility of Whitney's affidavit in support of his motion for summary judgment. Supreme Court Rule 191 (Ill. Rev. Stat. 1975, ch. 110A, par. 191), governing the admissibility of affidavits, requires that the document set forth facts within the personal knowledge of the affiant and that sworn certified copies of all papers upon which the affiant relies be attached to the affidavit. Appellant urges that the trial court improperly considered the police reports of the officers other than defendant since the facts alleged in these police reports were outside the personal knowledge of the defendant. Appellant also urges that the trial court improperly considered the defendant's own police report, submitted with his affidavit, as the report was neither sworn nor certified.
• 1 The failure of the defendant to attach sworn or certified copies of his police report, in technical violation of Rule 191, does not render the report inadmissible. In his sworn affidavit, the defendant affirmatively stated that the facts alleged in the police report were true. In Ragen v. Wolfner, 43 Ill. App.2d 70, 76, 192 N.E.2d 560, 564 (1st Dist. 1963), where exhibits attached to affidavits were not sworn or certified, the court held "the references thereto in the text of the affidavits were such as to render the exhibits verified copies in each instance."
• 2 Technical insufficiencies in affidavits submitted to the court in support of a motion for summary judgment should be disregarded where it affirmatively appears from the whole of the documents that the affiant would be a competent witness if called. (Ragen v. Wolfner; Saghin v. Romash, 122 Ill. App.2d 473, 258 N.E.2d 581 (2d Dist. 1970).) It is clear that Whitney is a competent witness as to the factual events recited in his police report and attached to his affidavit.
• 3 It is true, as appellant notes, that the trial court in considering a motion for summary judgment may not consider evidentiary matter that would be inadmissible upon a trial of the issue including recitals of fact outside the personal knowledge of the affiant. (Hendricks v. Deterts, 13 Ill. App.3d 976, 301 N.E.2d 625 (4th Dist. 1973).) Thus the copies of police reports submitted by officers other than Whitney were improperly before the court. But where those recitals of fact outside of the personal knowledge of the affiant are not material to the determination of the existence of a triable issue of fact, they may be treated as if omitted entirely. (City of Quincy v. Sturhahn, 18 Ill.2d 604, 165 N.E.2d 271 (1960).) If the record as a whole, excluding the reports improperly before the court, indicates no genuine issue of material fact and that the movant is entitled to judgment as a matter of law, then summary judgment is properly granted.
The purpose of summary judgment is to facilitate litigation and expedite trial procedure. (Barkhausen v. Naugher, 395 Ill. 562, 70 N.E.2d 565 (1946).) Because the resulting dismissal of the cause of action is a drastic measure, summary judgment should be awarded with caution. (Solone v. Reck, 32 Ill. App.2d 308, 177 N.E.2d 879 (1st Dist. 1961); Rivan Die Mold Corp. v. Stewart-Warner Corp., 26 Ill. App.3d 637, 325 N.E.2d 357 (1st Dist. 1975).) The trial court must consider the record as a whole, construing "the pleadings, depositions, and affidavits most strictly against the moving party and most liberally in favor of the opponent in order to determine whether there is a genuine issue as to a material fact." Rivan Die Mold Corp. v. Stewart-Warner Corp., 26 Ill. App.3d 637, 641, 325 N.E.2d 357, 360.
In the instant case the record consists of appellant's verified complaint and the unverified amended complaint. In the original complaint the appellant alleged that he had offered no resistance. In the unverified amended complaint appellant alleged substantially the same facts and additionally alleged that he did not attempt to escape. In his verified answer appellee denied these allegations. Taken alone, an issue of fact as to the resistance of appellee to the order to halt by the police officer is made out. The appellee's police report, however, incorporated by reference in appellee's affidavit, alleges material facts in opposition to appellant's claim.
In Tau Delta Phi v. Gutierrez, 89 Ill. App.2d 25, 232 N.E.2d 205 (1st Dist. 1967), summary judgment for the plaintiff was entered in an action by a tenant for specific performance of an option to purchase a building. Defendant contended that her affidavit alleging that the plaintiff informed her that plaintiff had no intention of exercising the option created a material issue of fact. The court held that, without an amplification of the context of the alleged conversation, the affidavit amounted to no more than a conclusion of ...