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Dutton v. Roo-mac

OPINION FILED SEPTEMBER 15, 1981.

EDWARD F. DUTTON, PLAINTIFF-APPELLEE,

v.

ROO-MAC, INC., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Du Page County; the Hon. S. BRUCE SCIDMORE, Judge, presiding.

MR. JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 19, 1981.

As a result of two incidents which occurred in the defendant's restaurant on March 18 and March 21, 1978, the plaintiff in the present case was charged with criminal trespass to land. On July 10, 1980, the trial court dismissed the criminal complaint with prejudice over the State's objection, apparently because the State was not ready for trial due to the absence of a necessary witness. Subsequent to the dismissal of the criminal case, the plaintiff, acting pro se, brought the present civil action in small claims court for false imprisonment and malicious prosecution against the defendant, Roo-Mac, Inc., and two of its employees, Brenda Vilendrer and Ramona Condie.

After a bench trial in which the court denied the defendant's motion for a directed verdict, the trial court found that the plaintiff had not proved his action for malicious prosecution, but that he had established, by a slight preponderance of the evidence, that the defendant, Roo-Mac, Inc., had falsely imprisoned him. Judgment for $500 and costs was entered against the defendant and in favor of the plaintiff on his action for false imprisonment. The defendant, Roo-Mac, Inc., appeals. Neither Ms. Vilendrer nor Ms. Condie is a party to this appeal, and the record is silent concerning what action, if any, was taken against them below.

The incidents which form the basis for both the criminal complaint and the present suit occurred in the defendant's restaurant on March 18 and March 21, 1978. Ramona Condie, the restaurant's assistant manager, related that she was working in the restaurant on the evening of March 18 when she noticed a disturbance. She stated that a group of youths, which included the plaintiff, was being noisy and messy and that the youths were walking and sitting on the tables. On cross-examination, however, she conceded that she had not seen the plaintiff walk on a table or destroy any property but had only observed him with his feet on the table. Ms. Condie directed Brenda Vilendrer, another of the restaurant's assistant managers, to tell the youths to leave. When they did not depart, Condie directed Vilendrer to call the police and warn the group to leave immediately as well as to inform them that they would be arrested if they returned to the restaurant. After calling the police, Vilendrer went over to the group. Vilendrer did not testify and there is no evidence as to what, if anything, she told the group.

Ms. Condie related that as the group was leaving, she observed the plaintiff, who was lagging behind the others, and told him never to return to the restaurant or she would have him arrested. She said that the plaintiff did not respond, but their eyes met and he made a face at her. She further testified that the police arrived shortly after the youths had left, that she gave them a description of the car in which the group had departed, and that she told a police officer she would not file charges against the individuals this time but would do so if they returned in the future. Ms. Condie further testified the next time she saw the plaintiff was on March 21, 1978, when he was standing in line at the counter waiting to be served. On that occasion he was wearing a red jacket and she immediately called the police.

Ms. Condie also related that earlier that week the management at the defendant's restaurant had held a meeting regarding disruptive youths who had been frequenting the restaurant. At that meeting the management formulated a new policy which established that the police would be called when an individual returned to the restaurant after having been warned previously that he was prohibited from entering the premises in the future. Her motive in calling the police on March 21 was to implement the restaurant's policy.

On cross-examination, Ms. Condie stated that other than her contact with the plaintiff at the restaurant, she had seen the plaintiff at his high school where she student-taught for a short period of time and that she remembered the plaintiff as he was on the football team.

On rebuttal, the plaintiff took the witness stand and testified that he never owned a red jacket and that he had never been on the high school football team.

Officer Lilly of the Glen Ellyn police department testified that he received a report of a disturbance at the defendant's restaurant on March 18 and a description of the vehicle in which the persons who were allegedly creating the disturbance had left. Three hours after the incident, he spotted the vehicle in question. The plaintiff was one of the youths in the car. The officer warned all of the car's occupants that they were not to patronize the defendant's restaurant in the future and that they would be arrested upon returning to the premises. On cross-examination, Officer Lilly stated that it was possible but not probable that the plaintiff was standing outside the car and separated from the rest of the vehicle's occupants when the warning was given. Lilly and two fellow officers arrested the plaintiff on March 21 at the defendant's restaurant.

Officer Steele recounted that when he arrived at the restaurant on March 21, Ms. Condie apprised him of the past warning that had been given to the plaintiff. He asked the plaintiff to step outside the restaurant; he then arrested him for criminal trespass to land and transported him to the police station. According to the officer, the plaintiff remained at the station for approximately 1 1/2 hours during which time he underwent the normal processing procedures of fingerprinting and photographing. While the plaintiff was at the station, Ms. Vilendrer signed a criminal complaint against him for trespass to land.

The plaintiff testified that, while he was waiting to be served in the defendant's restaurant on March 21, a Glen Ellyn policeman announced that he was under arrest and asked him to step outside. He was arrested, handcuffed, and taken to the police station where he spent a few hours. He denied that either Ms. Vilendrer or Ms. Condie had asked him on several occasions to leave the restaurant or had warned him that he would be subject to arrest if he returned to the eating establishment. While the plaintiff admitted he had been present at the restaurant on the evening of March 18, he maintained that he had not been requested to leave or warned that he would be arrested if he entered the premises in the future. He also denied that the police had given him the same warning later that evening.

Gregory Baird, a friend of the plaintiff who accompanied him to the restaurant on March 21, testified that the Glen Ellyn police arrested the plaintiff while he was in line waiting to be served. The plaintiff was not asked to leave or warned of possible arrest at this time. Baird further related at that time he had visited the restaurant on March 18 with a group of friends, including the plaintiff; while Baird was outside conversing with a friend, a restaurant employee talked with the rest of the group inside the restaurant, and someone from the group told him that the employee had requested that the group leave the restaurant.

On appeal, the defendant asserts that the trial court erred in entering judgment against it for false imprisonment. The thrust of the defendant's argument on review is that it had reasonable grounds to believe that the plaintiff was committing the offense of criminal trespass to land (Ill. Rev. Stat. 1977, ch. 38, par. 21-3) on March 21, 1978, and that such reasonable belief by a private person under the arrest statute (Ill. Rev. Stat. 1977, ch. 38, par. 107-3) insulates that person from civil prosecution for false imprisonment, because an arrest protected by statute cannot be grounds for civil liability. The defendant asks this court to reverse the cause and remand it with directions that the trial court examine the reasonableness of the defendant's belief that the plaintiff was committing a crime at the time the defendant had him arrested. On the other hand, the plaintiff maintains that the trial ...


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