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January 29, 1982


The opinion of the court was delivered by: Shadur, District Judge.


Stanley Anton ("Anton") sues (1) Downers Grove police officer Glen Lehpamer ("Lehpamer") for the alleged use of excessive force in arresting Anton and (2) other defendants for their alleged failure to give Anton adequate medical treatment for an injury he claims he received during the arrest. Lehpamer has counterclaimed for assault and intentional infliction of emotional harm, based on Anton's claimed attempt to kill Lehpamer during the arrest. Anton has moved to dismiss the Counterclaim. For the reasons stated in this memorandum opinion and order Anton's motion is denied.


On December 21, 1978 Lehpamer responded to a radio dispatch ordering him to investigate a domestic disturbance involving Anton. Lehpamer was warned Anton was carrying a loaded pistol.

When Lehpamer and other officers arrived at the scene and attempted to arrest Anton, Anton didn't comply with requests to stop and raise his hands over his head, instead keeping them in his jacket pocket while walking menacingly toward Lehpamer. During the arrest Anton made repeated threats to kill Lehpamer. After having eventually complied with the hands-overhead request, Anton suddenly threw his cap at Lehpamer and dropped his hands toward his sides.

Lehpamer reasonably believed Anton was trying to go for a weapon. Lehpamer and supporting officers immediately restrained Anton and confiscated a loaded pistol found in his pocket. As a result of the incident Lehpamer was apprehensive as to his physical safety and has suffered severe emotional distress.

Policemen's Job-Related Tort Actions Generally

Neither party has addressed an important threshold issue as to the viability of Lehpamer's claims*fn2: Can policemen bring job-related tort suits or are such actions barred by notions of assumption of risk or contributory negligence? That basic question does not admit of an easy answer.

While Illinois courts have not directly addressed the issue,*fn3 several other jurisdictions have done so recently. In Walters v. Sloan, 20 Cal.3d 199, 142 Cal.Rptr. 152, 571 P.2d 609 (1977) a policeman was called to a party where he attempted to arrest an intoxicated minor. After the policeman was attacked and injured by several intoxicated people, he sued the party host for unlawfully serving alcoholic beverages. That claim was rejected as a matter of law. Several other jurisdictions have accepted a similar rule. Cullivan v. Leston, 43 Or. App. 361, 602 P.2d 1121 (1979); Hannah v. Jensen, 298 N.W.2d 52 (Minn. 1980); Weaver v. O'Banion, 359 So.2d 706 (La. App. 1978).

Nonetheless it is inappropriate for this Court, bound to follow Illinois law, to apply that doctrine here. There are several reasons:

First, this is a controversial area of law still very much in flux. At least one prestigious court has even more recently rejected the notion that such actions will not lie. Trainor v. Santana, 86 N.J. 403, 432 A.2d 23 (1981). Absent a definitive acceptance of such a developing doctrine by an Illinois court, this Court should not apply it under conventional Erie v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 principles.

Second, even accepting the Walters-Cullivan-Hannah-Weaver decisions need not bar Lehpamer's Counterclaim. All those cases involved negligence claims. None presented the kind of intentional torts alleged by Lehpamer.*fn4 Whatever the rationale for the rule — whether something akin to assumption of risk or otherwise — the considerations are very different when plainly wilful torts are involved, and the cases are not direct authority here.

Finally, there is a strong indication that in any event the Illinois courts would not accept the doctrine that precludes policemen's tort actions. Each of the already-cited decisions to that effect viewed its holding as an extension of the "fireman's rule." That rule, accepted in nearly all jurisdictions (including Illinois, see discussion in Court v. Grzelinski, 72 Ill.2d 141, 147-48, 19 Ill.Dec. 617, 620, 379 N.E.2d 281, 284 (1978)*fn5), holds that an injured fireman cannot sue someone for negligently causing a fire.

But the Illinois Supreme Court has recently considered the "fireman's rule" in a different context. In Grzelinski a fireman was injured while fighting a fire that had erupted in a vehicle and exploded its gasoline tank. When the injured firefighter brought a products liability action against the manufacturer and retailer of the vehicle, the ...

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