APPEAL from the Circuit Court of Lake County; the Hon. JOHN L.
HUGHES, Judge, presiding.
MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
The plaintiff appeals from the order of the circuit court of Lake County dismissing his action against a police officer and the Village of Round Lake Beach based on a violation of the plaintiff's constitutional rights and various tort claims.
The complaint alleges that the plaintiff was driving his automobile toward his home at 1:30 a.m., having just picked up his wife at the railroad station, when he met an oncoming car with its high beam lights on. The plaintiff flashed his lights as a signal to the other driver to dim his lights, which the other driver "ultimately" did. As the other car passed, the plaintiff noticed it was a marked police car driven by the defendant, Officer Michael Reid. The plaintiff alleges that as he stopped his car in front of his house the defendant officer approached him and demanded that the plaintiff produce his driver's license "but failed and refused to give any reason for said demand when asked by the Plaintiff the reason for such demand." The complaint goes on to allege that Officer Reid, "at said time and place * * * opened the door to Plaintiff's automobile, and grabbed Plaintiff around the neck, attempting to drag him out of his automobile, refusing to inform Plaintiff of any reason for such actions; REID then proceeded to strike Plaintiff about the head and shoulders, with his hands and night stick, and twisted Plaintiff's arms around his back. * * * Subsequently, Defendant REID caused Plaintiff to be transported to the police station, where he was incarcerated for approximately one hour, although he had no reason or cause to do so."
The plaintiff claims that as a direct and proximate result of the actions of the defendant, Reid, the plaintiff "was greatly injured, was required to obtain medical care, and has suffered pain and suffering."
Count I of the complaint attempts to state a cause of action for false imprisonment. Count II reiterates most of the allegations of count I, but adds a paragraph to the effect that the defendant committed a battery on plaintiff and was acting in a willful and wanton manner. Count III alleges a violation of plaintiff's constitutional rights and also of plaintiff's civil rights under section 1983 of title 28 of the United States Code (actually title 42). *fn1 Count IV reiterates most of the facts previously pleaded and merely cites that provision of the Illinois Constitution (article I, section 12) which provides that "[e]very person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person, * * *."
In their motion to dismiss the complaint the defendants allege that the plaintiff's complaint fails to state a cause of action, that it cannot be determined from the complaint whether it sounds in negligence or assault and battery and that if it is based on negligence it is precluded by section 2-202 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1975, ch. 85, par. 2-202), which provides:
"A public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton negligence."
On the other hand, the motion to strike says that if the theory of recovery is one based on other than negligence, it must fail by reason of section 1-4-6 of the Illinois Municipal Code (Ill. Rev. Stat. 1975, ch. 24, par. 1-4-6). The gist of that section is that the municipality will indemnify public employees for damages from suits brought against them by persons claiming injury as a result of the actions or conduct of the public employee, unless such action was the result of willful misconduct.
Other paragraphs of the motion to strike are based on the failure of the plaintiff to allege his own freedom from willful and wanton misconduct, and that the allegations in the complaint do not state facts, but only conclusions of law.
1 It is our opinion that while the complaint lacks preciseness and does not specify any particular basis for recovery, such as assault and battery, or negligence, the allegations, if true, are such as to entitle the plaintiff to some redress. Certain allegations of the complaint are sufficiently factual, we think, to be taken as true that is, as admitted by the motion to strike. Paragraph 6 of count II specifically alleges that Officer Reid "grabbed Plaintiff around the neck, attempting to drag him out of his automobile, refusing to inform Plaintiff of any reason for such actions; REID then proceeded to strike Plaintiff about the head and shoulders, with his hands and night stick, and twisted Plaintiff's arms around his back." This language described a battery by the officer and while the officer may have an explanation for his conduct, he admits such conduct by his motion to strike. This behavior by a police officer cannot be dismissed out-of-hand as being merely in the line of duty or not answerable by reason of the immunity section of the Illinois Municipal Code.
2 Some extraneous or irrelevant issues have been introduced in the briefs. The defendants contend the complaint is defective in alleging willful and wanton misconduct on the part of the defendant officer, without alleging freedom from willful and wanton misconduct by the plaintiff. The plaintiff does not specifically charge negligence he charges a violation of his constitutional rights, an intentional act. Conduct may be willful and wanton without deriving from negligence. If the conduct of the officer was intentional, there is no necessary corollary of freedom from contributory willful and wanton misconduct by the plaintiff. We therefore disregard this argument of the defendants.
3 It is true, as contended by the defendants, that certain allegations of the complaint, such as that there was no reason to incarcerate the plaintiff and that the defendant officer, Reid, knew the plaintiff had committed no crime whatsoever and that certain actions of the defendant officer constituted deprivation by the defendant of plaintiff's "liberty and property without due process of law," are mere conclusions of law and therefore not admitted by the motion to strike. These allegations are therefore subject to dismissal without further implications for the defendants.
4 We also find count IV of the complaint to be defective in that it is based on the phrase in article I, section 12 of the Illinois Constitution that "[e]very person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person," but we do not regard this as a sufficient averment in a complaint. If the facts alleged in count I of the complaint are taken as admitted, there is certainly a remedy in the law, other than the general language of this constitutional phrase, and no issue is raised by this allegation. We think count IV is subject to dismissal for failure to state a cause of action.
5 While we will not speculate what a trial on the merits may bring forth by way of answer to the allegations of the complaint, in view of the directive in section 4 of the Civil Practice Act, which provides that the Act "shall be liberally construed, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties" (Ill. Rev. Stat. 1977, ch. 110, par. 4), and the supreme court's statement in Fleshner v. Copeland (1958), 13 Ill.2d 72, 77, that the basic purpose of the Civil Practice Act is to remove barriers which prevent the trial of a case on its merits and to facilitate proceedings to ...