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Bollinger v. Schneider

OPINION FILED OCTOBER 16, 1978.

GARY BOLLINGER, A MINOR, BY BILL BOLLINGER, HIS FATHER AND NEXT FRIEND, PLAINTIFF-APPELLANT,

v.

JOE A. SCHNEIDER, SHERIFF OF ROCK ISLAND COUNTY, ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Rock Island County; the Hon. JAY M. HANSON, Judge, presiding.

MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

This action was commenced on behalf of plaintiff, Gary Bollinger, a minor, against defendants, Joe Schneider, Sheriff of Rock Island County, various Rock Island County deputy sheriffs and the County of Rock Island, to recover for injuries plaintiff sustained when he was physically and sexually assaulted by other inmates while confined in the juvenile section of the Rock Island County jail. The circuit court of Rock Island County dismissed the action and plaintiff appealed.

On September 28, 1976, plaintiff filed a complaint against defendants. According to the complaint, on December 19 and 20, 1975, plaintiff was confined in the juvenile section of Rock Island County jailhouse and that while plaintiff was so confined, defendants owed a general duty of care to plaintiff. Plaintiff alleged that various wilful, wanton and malicious acts of the individual defendants were the proximate cause of plaintiff's injuries. As to the County of Rock Island, plaintiff alleged only negligent acts or omissions.

Plaintiff generally alleged that he was placed in the same cell with prisoners with known assaultive and vicious propensities; that the defendants failed to properly supervise, control and inspect the juvenile section of the jail; that defendants failed to separate plaintiff from the attacking inmates and that defendants failed in their ministerial duty to keep plaintiff safe from assaults from other prisoners. Defendants filed a motion to dismiss, asserting in part several immunities provided by the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1975, ch. 85, par. 1-101 et seq., hereinafter referred to as the Tort Immunity Act) and the existence of public officials' immunity. The trial court granted defendants' motion and in a written opinion ruled that defendants were immune by reason of the Tort Immunity Act as well as "quasi-judicial immunity." Plaintiff was allowed to file an amended complaint, but the court ruled plaintiff had to allege that the acts and conduct of defendants were from "corrupt and malicious motives," relying on Thiele v. Kennedy, 18 Ill. App.3d 465, 309 N.E.2d 394. Plaintiff's first amended complaint failed to include any such allegation and was dismissed upon motion of defendants, but with leave to file a second amended complaint. Plaintiff's second amended complaint also did not contain any allegation of corrupt and malicious motives, as had been required by the trial court, but did allege the existence of a policy of insurance which insured the defendants against the acts complained of in the complaint. Plaintiff's second amended complaint was dismissed with prejudice and plaintiff has appealed from that dismissal. The parties have raised two issues for our consideration. We must determine whether the defendants are immune from suit by reason of the immunities provided by the Tort Immunity Act and if so, the extent, if any, to which those immunities are waived by the defendants' purchase of insurance affording coverage for the acts or omissions alleged in the complaint.

The immunities asserted as a bar to plaintiff's complaint include sections 2-201, 2-109, 4-102 and 4-103 of the Tort Immunity Act. (Ill. Rev. Stat. 1975, ch. 85, pars. 2-109, 2-201, 4-102, and 4-103.) Section 2-109 grants the public entity the same protection from liability given to the employee of the public entity. Section 2-201 provides that:

"Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused." (Ill. Rev. Stat. 1975, ch. 85, par. 2-201.)

Sections 4-102 and 4-103 provide respectively:

"Neither a local public entity nor a public employee is liable for the failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide adequate police protection or service, failure to prevent the commission of crimes and failure to apprehend criminals." Ill. Rev. Stat. 1975, ch. 85, par. 4-102.

"Neither a local public entity nor a public employee is liable for failure to provide a jail, detention or correctional facility, or if such facility is provided, for failure to provide sufficient equipment, personnel or facilities therein." Ill. Rev. Stat. 1975, ch. 85, par. 4-103.

• 1 In a factual setting similar to the present, this court recently considered section 2-201 and 2-109 in Thiele v. Kennedy, 18 Ill. App.3d 465, 309 N.E.2d 394. In Thiele, the plaintiff alleged that while she was an inmate in the Peoria County Jail, certain other inmates inflicted bodily harm upon her. It was alleged that the defendants, sheriff of Peoria County and County of Peoria, were each guilty of wilful and wanton acts in allowing plaintiff to be exposed to dangerous persons. No allegation of the existence of public liability insurance was made. After examining certain historical antecedents to section 2-201, the court found that the defendants had been granted immunity by section 2-201, but that such immunity was conditioned upon good-faith exercise of discretion and extended only to acts not resulting from corrupt or malicious motives. Although there were certain aspects of the problem not discussed in Thiele, as is illustrated by Huey v. Town of Cicero, 41 Ill.2d 361, 243 N.E.2d 214; Madden v. Kuehn, 56 Ill. App.3d 997, 372 N.E.2d 1131; Dezort v. Village of Hinsdale, 35 Ill. App.3d 703, 372 N.E.2d 468; Gardner v. Village of Chicago Ridge, 71 Ill. App.2d 373, 219 N.E.2d 147; Restatement (Second) of Torts § 320 (1965); Annot., 41 A.L.R. 3d 1021 (1972), the Thiele opinion does state the current rule. Section 2-201 afforded defendants immunity from plaintiff's suit.

• 2 Defendants also assert immunity under section 4-102 and 4-103. Defendants claim immunity under section 4-102 by arguing that protecting prisoners from attacks by other inmates is essentially preventing the commission of a crime and section 4-102 grants public employees immunity for the failure to prevent a crime. Section 4-103 involves detentional facilities and the language of that section, as previously set forth, clearly indicates its applicability to the present facts. Of these two, section 4-103 is more specific and is particularly applicable to the relation of the parties. In light of this, we believe that defendants' immunity is limited to section 4-103. Hence, defendants' immunity stems from the specific immunity provided by section 4-103 and the more general immunity granted by section 2-201. The more difficult question to resolve is whether these immunities were waived by the purchase of insurance covering the acts complained of.

Section 9-103(b) of the Tort Immunity Act is at the center of this issue. (Ill. Rev. Stat. 1975, ch. 85, par. 9-103(b).) It provides:

"Every policy for insurance coverage issued to a local public entity shall provide or be endorsed to provide that the company issuing such policy waives any right to refuse payment or to deny liability thereto within the limits of said policy by reason of the non-liability of the insured public entity for the wrongful or negligent acts of itself or its employees and its immunity from suit by reason of the defenses and immunities provided in this Act."

While legislative history does not enlighten us as to the intended scope of section 9-103(b) (see Fanio v. John W. Bresslin Co., 51 Ill.2d 366, 282 N.E.2d 443), the concept embodied in section 9-103(b) is not unique to statutory law. Language comparable to that contained in section 9-103(b) can be found in Ill. Rev. Stat. 1959, ch. 122, par. 6.35.1; Ill. Rev. Stat. 1959, ch. 122, par. 29-11a; Ill. Rev. Stat. 1977, ch. 34, par. 429.7. Of these statutes only paragraph 429.7 of chapter 34 remains ...


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