APPEAL from the Circuit Court of Kane County; the Hon. JOHN A.
LEIFHEIT, Judge, presiding.
MR. JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
Defendant, the County of Kane, appeals from a judgment entered upon a jury verdict by the Circuit Court of Kane County, Illinois, which awarded plaintiff, Arthur J. Holda, $175,000 in compensatory damages and $500,000 in punitive damages for injuries sustained due to the alleged negligence of the sheriff in the operation of the Kane County jail. We affirm in part and reverse in part.
On April 2, 1970, the plaintiff filed a complaint against the County of Kane, seeking to recover judgment against the defendant county for its alleged negligence on August 16, 1969. Plaintiff alleged that on that date he suffered severe and permanent injuries as the result of an attack upon him by fellow inmates of the defendant county's jail, an attack that continued over a period of many uninterrupted hours. Count I of the complaint charged that prior to and at the time of the attack, defendant county owed plaintiff the duty of exercising reasonable care to provide for his safety while a prisoner in the defendant's jail, and that defendant carelessly and negligently failed to exercise reasonable care. In count II of the complaint, plaintiff alleged that defendant was guilty of willful and wanton misconduct in the operation and control of its jail so that the plaintiff was injured as a direct and proximate result. The complaint requested judgment against defendant in the amount of $250,000 actual damages and $150,000 punitive damages.
On November 8, 1973, the defendant filed its answer to the complaint as amended. In its answer the defendant admitted, inter alia, the paragraph alleging that the defendant through its officers, agents, and employees, including the sheriff, owned, operated, controlled and maintained the Kane County jail. The defendant's answer also admitted that the defendant carried a $500,000 liability insurance policy.
On September 7, 1976, plaintiff filed an amended complaint wherein he reiterated the contents of his original counts I and II but requested judgment against defendant in the amount of $500,000 for each of those counts, and added count III, which charged the defendant with violating the plaintiff's rights under 42 U.S.C. § 1983 (1976) and requested judgment against defendant in the amount of $500,000 under count III. On September 27, 1977, the plaintiff moved to completely withdraw the amended complaint and to proceed on the original complaint as amended, and to amend the ad damnum clause in count II of the original complaint to raise the punitive damages requested from $150,000 to $500,000. The trial court granted the plaintiff's motion to proceed on his original complaint and to amend count II so as to raise the amount of punitive damages to $500,000.
On September 29, 1977, defendant moved to dismiss the cause of action on the basis that plaintiff had failed to name as defendant the proper party or parties. Defendant argued that the suit should have been brought against the sheriff of Kane County. The court denied defendant's motion. Defendant then moved for leave to file an amended answer to the complaint to deny plaintiff's allegations of defendant's agency relationship with the employees of its jail. This motion was also denied.
The trial evidence revealed that plaintiff, Arthur J. Holda, had been arrested at his residence on August 15, 1969, for the minor offense of disorderly conduct. On the previous day, plaintiff had been intoxicated in a tavern and had broken the glass on a juke box. His hand was cut as a result. The arresting officer put some bandaids and medicine on the hand. Plaintiff had a history of hospitalizations for mental problems, and had stuttered since the age of nine or 10. Plaintiff was also born with a deformed right arm, which was withered and useless. At the time of his arrest, plaintiff was 40 years old.
The plaintiff was taken to the Kane County jail on the afternoon of August 15, 1969. He was to have been held there until August 18, when he was to be transferred to Elgin State Hospital for mental evaluation because of his prior mental problems. At the time plaintiff was booked, he told the jailers about his deformed and paralyzed right arm and about a broken finger on his left hand. Plaintiff asked to be locked up alone.
A correctional officer at the Kane County jail when the plaintiff was an inmate there testified about the jail's booking procedure in August 1969. The incoming prisoners were recorded in a book, together with the booking date, release date, and release authority, as well as information about the crime for which they were imprisoned, but nothing about their prior record. The only other record prepared on each prisoner was a temporary card which would contain the prisoner's name, age, birthdate, sex, color, address, offense, occupation, and list of personal property. Medical histories were not obtained from incoming prisoners. There were no rules or regulations whereby a booking guard would inquire about a physical defect or deformity an incoming prisoner might have. There was no cell block in the jail for prisoners with mental or physical handicaps. Persons confined in the jail on felony charges were not segregated from persons confined on misdemeanors or drunk driving charges, nor was there a regularly established sick call.
On the evening of August 15, 1969, plaintiff was assigned to a cell block on the third floor of the jail, where plaintiff was confined with a number of other prisoners. A combination radio-intercom could be used to monitor the upstairs cells in the jail, but when music was piped over the system, there was no way for the jailers to hear what was going on in the cells. The cells were only rarely monitored during the day, and when music was being played, it could be difficult from the first-floor desk to hear someone call for help from the third-floor cell block where plaintiff was confined.
Plaintiff testified that shortly after breakfast on August 16, 1969, the day after he was confined in the jail, another inmate accused plaintiff of being a police spy. About three other inmates told the plaintiff that they were going to hold a kangaroo court. They dragged the plaintiff out to a table for the "trial." They found the plaintiff guilty. Then they dragged him over to the barred wall and tied his arms to the bars. They tied his neck tightly to the bars. They used ropes made of braided blanket strips. Plaintiff worked his arm loose and hit one of his assailants. The other two assailants began fighting and kicking him. Another inmate came over and began beating and kicking him. They beat him in the head and face for several minutes. The plaintiff screamed, but no one responded to his screams. Then a guard appeared and took the plaintiff downstairs to bond call before a judge, who set the plaintiff's bond at $1,000. The other inmates had warned the plaintiff before he went downstairs that if he talked about what had happened, they would kill him.
Plaintiff was returned to the cell block after the bond call, and he was again attacked by the other cell inmates. Plaintiff was then subjected to a vicious attack which lasted approximately six hours. The details of the second attack need not be recited here; suffice it to say that the assault on plaintiff was brutal and degrading.
At about 5 p.m. on August 16, a jailer responded to a call for help from the third-floor cell block. The jailer went up to the cell block and saw that the plaintiff was bloody and his eyes were black, that he had received a terrific beating. Plaintiff was dazed, half-conscious, and incoherent, and was taken to a hospital by ambulance where he was admitted.
A physician testified that he saw the plaintiff in the hospital emergency room on August 16, 1969. An examination revealed numerous bruises and abrasions to the head, arms, legs, back, trunk and chest. The plaintiff was unable to give the doctor a medical history, which was provided instead by the escorting police officers. The doctor observed that the plaintiff had pain when he breathed and moved the extremities. X rays revealed fractures of the bones surrounding the eye, the cheek and the jawbone on the right side of the face, as well as two fractures of the nose. A scalp laceration down to the skull bone and three or four inches long required suturing. The plaintiff's body had various small burn spots caused by a very hot object. He sustained fractures of the 10th front rib and of the 11th and 12th rear ribs. One of his lungs was punctured by a broken rib. The plaintiff required five days of hospitalization. In the physician's opinion, the nose fractures sustained by the plaintiff would cause permanent damage; and the jaw and facial fractures could cause a permanent chewing problem. He also testified that the plaintiff's nose, jaw, and back problems at the time of trial were consistent with the injuries from a 1969 beating.
A criminologist was called by the plaintiff as an expert witness in the field of corrections. He was asked a hypothetical question based on varsious facts in this case. It was his opinion that the Kane County jail was not up to minimum standards in 1969, including the correctional standards issued by the American Corrections Association. The witness detailed proper standards as to jail manpower, prisoner in systems, prisoner surveillance and monitoring, and complete segregation of prisoners so that "kangaroo courts>" could not occur. He cited the Kane County jail's prisoner intake system of 1969 defective because, inter alia, it did not take into consideration that the plaintiff had a withered arm and a stuttering problem. The expert stated that the plaintiff, with a mental condition, should have been kept under observation every 30 minutes by jail personnel.
A number of correctional officers testified for the defense. Among them was the sheriff at the time of the assault in 1969, who testified that in 1969 he had never heard of the American Corrections Association. At the time of the assault on the plaintiff, the Kane County jail had rules. One rule was that inspection of the jail was to be made by guards every 20 to 30 minutes.
A deputy sheriff testified that security checks were made of the jail at the time in question at least once an hour. The deputy also testified that he was advised of the jail rules pertaining to security checks only by what he heard from other jailers. In 1969 he had not heard of the American Corrections Association. There were no standards in the Kane County jail in 1969 as to special placement of prisoners like the plaintiff who had a paralyzed arm. The jail had no written rules as to segregating prisoners or taking medical histories of inmates.
At the close of all the evidence, plaintiff's motion for directed verdict as to count I (ordinary negligence) was granted. Defendant's motion as to directed verdict on each count was denied. The court directed the jury to find in favor of plaintiff and against defendant on count I of the complaint.
The following interrogatory was given to the jury: "Was the defendant, County of Kane, guilty of willful and wanton conduct before and at the time of the occurrence described which proximately contributed to cause injury to the plaintiff." The jury answered: "Yes." The jury found for the plaintiff and against the defendant under the issues presented both in count I and count II of the complaint and assessed the following damages: $175,000 as actual damages and $500,000 as punitive damages. The county appeals.
Defendant first argues that, under section 2-102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1975, ch. 85, par. 2-102), a county cannot be held liable for punitive damages in any tort action as a matter of law, and that such immunity is not waived by the purchase of a policy of insurance under section 9-103 of the Act (Ill. Rev. Stat. 1975, ch. 85, par. 9-103). I disagree.
"Notwithstanding any other provision of law, a local public entity is not liable to pay punitive or exemplary damages in any action brought directly against it by the injured party."
This section clearly and unequivocally prohibits the assessment of punitive damages against a "local public entity," which, under the definitions set forth in section 1-206 of the Act (Ill. Rev. Stat. 1975, ch. 85, par. 1-206), includes counties.
• 1 However, it is equally clear that a local public entity waives the "defenses and immunities" provided by the Act by purchasing a policy of liability insurance (Ill. Rev. Stat. 1975, ch. 85, par. 9-103; Kobylanski v. Chicago Board of Education (1976), 63 Ill.2d 165, 347 N.E.2d 705). Defendant, recognizing this principle, replies that the immunity provided in section 2-102 of the Act is not waived by the purchase of insurance because of the phrase "notwithstanding any other provision of law," which precedes and modifies the grant of immunity set forth in that section. No other section of the Act contains this prefatory phrase; it is unique to section 2-102. Defendant interprets this singular phrase as a "categorical mandate" that punitive damages may not be awarded in an action brought against a local public entity under any circumstances.
Thus, we are faced with two apparently co-equal provisions calling for apparently contradictory results. In my opinion, the resolution of this issue lies in the determination of the proper meaning and construction to be given to the phrase, "notwithstanding any other provision of law." A clue is provided by the special definition set forth in section 1-205 (Ill. Rev. Stat. 1975, ch. 85, par. 1-205) for the word "law." This word, as used in section 2-102 and the other sections of the Act, includes "constitutional provisions, statutes, ordinances, and case law." When the word "law" is given the expansive definition required under section 1-205 of the Act, the meaning of this phrase becomes clear. The prefatory phrase "notwithstanding any other provisions of law" was intended by the General Assembly to clarify the relationship between the Tort Immunity Act, which prohibits the assessment of punitive damages against a local public entity, and all other statutes or common law actions which may allow the assessment of punitive damages in certain circumstances. For example, in Kelsay v. Motorola, Inc. (1978), 74 Ill.2d 172, 384 N.E.2d 353, the supreme court held that punitive damages may be awarded where an employee is wrongfully discharged in retaliation for filing a workmen's compensation claim. The phrase "notwithstanding any other provision of law" mandates that Kelsay should not be read as authorizing an award of punitive damages against a municipal employer. Thus, where an action is brought against a local public entity based on a statutory provision of common law action which allows an award of punitive damages, section 2-102, as presently drafted, I think, makes it clear that the statute or case upon which the action is based may not be construed as permitting the assessment of punitive damages against the local public entity.
• 2 Hence, I do not agree with defendant's argument that this phrase was intended to prohibit the award of punitive damages against a local public entity where the municipality has purchased a policy of liability insurance. If the General Assembly had intended to accomplish this result, it could easily have done so by specifying that a local public entity does not waive its immunity from punitive damages by purchasing a policy of insurance in section 9-103 of the Act. It did not do so, however. Exemptions and exceptions cannot be read into an act where none are specified or can be inferred by clear implication. Harvey Firemens Association v. City of Harvey (1979), 75 Ill.2d 358, 363, 389 N.E.2d 151, 153.
• 3 Finally, it should be noted that a public entity which procures a policy of liability insurance agrees, under the express terms of section 9-103(b) (Ill. Rev. Stat. 1975, ch. 85, par. 9-103(b)), to waive "* * * its immunity from suit by reason of the defenses and immunities provided in this Act." Since section 2-102 is a defense provided by the Tort Immunity Act, it is waived by the county upon the purchase of a policy of liability insurance. (See Kobylanski v. Chicago Board of Education (1976), 63 Ill.2d 165, 173, 347 N.E.2d 705, 709.) Thus, I conclude that defendant's argument in this regard is without merit.
Alternatively, defendant contends that the trial court erred in submitting the issue of punitive damages to the jury even if the county's exemption from the payment of such damages is waived by the procurement of liability insurance. Section 2-111 of the Act (Ill. Rev. Stat. 1975, ch. 85, par. 2-111) states:
"Nothing contained herein shall operate to deprive any public entity of any defense heretofore existing and not described herein." (Emphasis added.)
Defendant argues that because the immunity of a county from punitive damages antedates the enactment of the Tort Immunity Act (e.g., City of Chicago v. Langlass (1869), 52 Ill. 256; George v. Chicago Transit Authority (1978), 58 Ill. App.3d 692, 374 N.E.2d 679), such a defense is preserved by operation of section 2-111. I again disagree. By its very terms, section 2-111 applies only to defenses existing prior to the enactment of the Tort Immunity Act and not described therein. As the immunity to punitive damage awards is in fact described in section 2-102 of the Act, section 2-111 is not operative. Defendant's citation to Lansing v. County of McLean (1978), 69 Ill.2d 562, 372 N.E.2d 822, is inapposite, as the defense asserted by the county in that case was not set forth in the Tort Immunity Act.
I thus conclude that a local public entity waives its immunity from punitive damages by procuring a policy of liability insurance. Accordingly, I am of the opinion that the trial court acted correctly in ...