The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
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
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.
Nonetheless it is inappropriate for this Court, bound to
follow Illinois law, to apply that doctrine here. There are
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 ...