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Delasky v. Village of Hinsdale

OPINION FILED OCTOBER 18, 1982.

ANN MARIE DEZORT DELASKY, SUCCESSOR ADM'X OF THE ESTATE OF FRANK J. DEZORT, JR., DECEASED, PLAINTIFF-APPELLANT,

v.

THE VILLAGE OF HINSDALE, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Du Page County; the Hon. Bruce W. Fawell, Judge, presiding.

JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:

This is the third appeal to this court in this case, wherein, plaintiff, Ann Marie Dezort Delasky, successor administratrix of the estate of Frank J. Dezort, Jr., seeks to recover in a wrongful death action from defendant, the Village of Hinsdale, for the suicide of her father while a prisoner in defendant's village jail. Frank J. Dezort, Jr., was found hanged in his cell on December 21, 1971, and thereafter this action was filed on behalf of the estate alleging the negligence of police officers employed by defendant in failing to exercise reasonable care for the preservation of Dezort's life while in their custody. The trial court originally granted summary judgment in favor of defendant. This court reversed (Dezort v. Village of Hinsdale (1976), 35 Ill. App.3d 703, 342 N.E.2d 468 (Dezort I)) in an opinion which defined defendant's duty of care for the health and life of a prisoner in its jail.

Upon remand, a jury trial was held, resulting in a verdict for defendant and a specific finding that Dezort was guilty of contributory negligence. This judgment was reversed (Dezort v. Village of Hinsdale (1979), 77 Ill. App.3d 775, 396 N.E.2d 855 (Dezort II)) on the basis of several instructional errors. The cause was remanded and heard as a bench trial wherein the parties stipulated that the evidence was the record of the prior jury trial in the case. After consideration of the transcript and exhibits of that proceeding, the trial court found no negligence on the part of the defendant, and entered judgment in defendant's favor. Plaintiff appeals, contending that the judgment is contrary to the manifest weight of the evidence.

We summarize only the evidence pertinent to resolve the issue before us on appeal. On or about the 21st of December 1971, Frank J. Dezort, Jr., the decedent, age 43, arrived at his home in the early morning hours. He was described by family members as being drunk, argumentative, and upset. The decedent got into an argument with several family members and pushed his wife. During or just after this argument, the decedent attempted to go into a closet containing rifles and reached for one of the rifles. He was restrained and pulled out of the closet by two of his daughters. In grabbing for the decedent, one of the daughters noticed that he was wearing a belt in his pant loops. Dezort told his family members that he did not want to hurt anyone anymore and that they should call the police before he did something that he did not want to do.

At approximately 4:50 a.m. two Hinsdale policemen, Patrolman Chester Hall and Sergeant Richard Lyons, arrived at the Dezort residence in response to a call concerning a family disturbance. The family members did not tell the officers about the incident that had occurred before the officers arrived. As the two officers approached the house, they heard shouting from inside. When the two officers entered the front room, the decedent came down the hall shouting at them. He attempted to shove Sergeant Lyons. He grabbed at Officer Hall who pushed him away. At this time the decedent said words to the effect "shoot me and get it over with" or "shoot me or I'll take your gun and do it myself." Officer Hall believed that Dezort was trying to get his service revolver from him, although Officer Hall believed Dezort was playacting and that Dezort was not using all the force he could. The two officers were able to calm the decedent and they took him into the kitchen where he sat at the kitchen table. Both officers were of the opinion that decedent was moderately intoxicated.

The decedent at this time quickly became remorseful, apologetic and depressed, but the officers did not characterize his conduct as crazy or wild. He started crying. Officer Hall felt his conduct was playacting for sympathy. At this point Mrs. Dezort said something to the decedent and he immediately became angry and shouted at her. Lyons told the decedent to "shut up" and the decedent responded by cursing the officer and saying words to the effect "why don't you just shoot me" and "shoot me or I'll take your gun and shoot myself." Officer Hall felt this threat was in a taunting tone of voice. Sergeant Lyons, in response to this, zipped up his outer jacket to cover his service revolver in order to prevent the decedent from obtaining his weapon. At this point the decedent jumped Lyons and grabbed for his gun. Officer Hall moved in to assist and in the scuffle all three men fell to the floor. The decedent then succeeded in grabbing Officer Hall's service revolver, and the two officers managed to disarm the decedent and pin him to the floor. Officer Hall noted at trial that the decedent, who was rather large, did not seem to be putting up much of a fight. Sergeant Lyons, however, indicated that it took both of them to pin the decedent to the floor.

The decedent again became remorseful and apologetic and allowed himself to be handcuffed. While Sergeant Lyons was out of the room, Officer Hall searched the decedent for weapons. He did not recall whether the decedent was wearing a belt at this time. The two officers then escorted the decedent to a patrol car and placed him in the backseat. Sergeant Lyons drove the decedent to the station house approximately four blocks away while Hall followed in his squad car. The entire incident at the Dezort house took approximately 15 minutes.

The decedent was taken to an interrogation room where he was told that he was going to be charged with disorderly conduct and informed that he could post bail and be released. The decedent said words to the effect that "he did not wish to post bail and that he just wanted to be locked up." The decedent at this time was slightly remorseful and moderately intoxicated. Sergeant Lyons left the room and Officer Hall conducted a quick search of the decedent. Hall was not asked to describe the extent of the quick search. When Sergeant Lyons returned, the decedent emptied his pockets and was told to remove his watch. When the decedent began to argue, the officers allowed him to keep his watch to keep him from "flying off the handle." Sergeant Lyons, who had left the room, testified that he instructed the decedent to take up a position leaning against the wall so that he could be searched. Officer Hall then told him that the decedent had already been searched. Officer Hall's version of this conversation differed slightly in that he testified that Sergeant Lyons told the decedent he would have to take his belt off, and decedent responded by pulling up his shirt and stating he didn't have a belt. Both officers then escorted the decedent to his cell. Officer Hall described decedent's behavior at that time as calm, submissive and apologetic. He told the officers that "he just wanted to get out of the house" and that "his fight was with his family, not with us." Officer Hall said that when decedent was placed in his cell he couldn't detect any effect of alcohol in his speech or walk.

The decedent was placed in a cell at approximately 5 a.m. Later, Sergeant Lyons instructed Officer Hall to look in on the decedent because he had acted or looked a little strange. The officer said he gave this instruction because he wanted to make sure that the decedent was alright and to see if he later wanted to post bail. Officer Hall checked in on the decedent approximately one hour later at a little after 6 a.m. At approximately 7 a.m. Dezort was found dead hanging by the neck from his belt.

Anthony S. Kuharich testified as an expert witness for plaintiff that the Bureau of Detentions Standards and Services of the Illinois Department of Corrections had adopted Municipal Jail and Lock-up Standards, which had been distributed to the various municipal jails and lock-ups in the State of Illinois. Those standards provided that a prisoner showing any evidence of a mental disorder should not be housed in a municipal jail or lock-up, but rather should be referred to an appropriate facility. The Hinsdale Police Department had adopted in 1966 a local regulation, which read, "Before locking up a male prisoner, an officer shall make a careful search and take from him everything which could be used in effecting an escape, or to injure himself, including necktie, belt, and shoestrings." In response to a hypothetical question, which included as facts to be assumed that the deceased had a belt upon his person, but which question did not describe where the belt was worn or if it was concealed, Mr. Kuharich stated his belief that the search conducted by the police was not complete and was not adequate to this type of defendant. The witness testified that an individual of this kind "should have been very very thoroughly searched."

• 1 Ordinarily, in reviewing the findings of fact of the trial court in a bench trial in which the evidence is conflicting, a reviewing court will not substitute its own opinion unless the holding of the trial court is manifestly against the weight of the evidence. (Greene v. City of Chicago (1978), 73 Ill.2d 100, 110, 382 N.E.2d 1205; Schwarzwalder v. Waitkoss (1981), 101 Ill. App.3d 337, 428 N.E.2d 633.) However, if the evidence before the trial court consists of depositions, transcripts, or is documentary in nature, the appellate court is not bound by the trial court's findings and may make an independent decision on the facts. (Wolverine Insurance Co. v. Jockish (1980), 83 Ill. App.3d 411, 413-14, 403 N.E.2d 1290; Northern Trust Co. v. Tarre (1980), 83 Ill. App.3d 684, 690, 404 N.E.2d 882; Cassidy v. Luburich (1977), 49 Ill. App.3d 596, 600, 364 N.E.2d 315; Barraia v. Donoghue (1977), 49 Ill. App.3d 280, 283, 364 N.E.2d 952.) Accordingly, we have made an independent examination of the stipulated transcript evidence.

In Dezort v. Village of Hinsdale (1976), 35 Ill. App.3d 703, 342 N.E.2d 468 (Dezort I), we held that the duty of law enforcement officers to those who have been arrested and incarcerated under their care is "to exercise ordinary and reasonable care for the preservation of their prisoner's health and life under the circumstances of the particular case." (35 Ill. App.3d 703, 710, 342 N.E.2d 468; see also Civil Liability of Prison or Jail Authorities for Self-Inflicted Injury or Death of Prisoner, Annot., 79 A.L.R.3d 1210 (1977); Restatement (Second) of Torts sec. 314A(4) (1965).) We further stated that whether the defendant failed to act in accordance with that standard was a question for the trier of fact, and under the facts before us in Dezort I summary judgment was improperly granted.

• 2 In determining whether there is a breach of the duty owed as stated in Dezort I, we must examine whether the defendant here exercised ordinary and reasonable care for the protection of their prisoner's health and life under the circumstances of the particular case. In other jurisdictions, courts> have looked to "special circumstances" which form the basis of a jailer's liability for a prisoner's act of self-destruction. (Pretty on Top v. City of Hardin (Mont. 1979), 597 P.2d 58; Wilson v. City of Kotzebue (Alaska 1981), 627 P.2d 623; Falkenstein v. City of Bismark (N.D. 1978), 268 N.W.2d 787; Lucas v. City of Long Beach (1976), 60 Cal.App.3d 341, 131 Cal.Rptr. 470.) Such "special circumstances" where a jailer knows or should know of the suicidal tendencies of a prisoner are found in cases where the prisoner is intoxicated (Wilson v. City of Kotzebue (Alaska 1981), 627 P.2d 623; Shuff v. Zurich-American Insurance Co. (La. App. 1965), 173 So.2d 392); the condition of the jail is conducive to committing suicide (Falkenstein v. City of Bismark (N.D. 1978), 268 N.W.2d 787); or there is a prior history or warning of a suicidal tendency. (Porter v. County of Cook (1976), 42 Ill. App.3d 287, 355 N.E.2d 561.) On the other hand, liability has not been found where the prisoner did not have a history of mental disease or emotional disturbances or attempted suicide previously (Pretty on Top v. City of Hardin (Mont. 1979), 597 P.2d 58), or his emotional upset was no different from others who are intoxicated or under the effect of drugs. (Lucas v. City of Long Beach (1976), 60 Cal.App.3d 186, 131 Cal.Rptr. 470.) While some decisions have decided the issue of a jailer's responsibility for his prisoner's suicide under the particular facts under an analysis of intervening act and proximate cause (see, e.g., City of Belen v. Harrell (1979), 93 N.M. 601, 603 P.2d 711; Pretty on Top v. City of Hardin (Mont. 1979), 597 P.2d 58; Lucas v. City of Long Beach (1976), 60 Cal.App.3d 186, 131 Cal.Rptr. 470), initially we must determine whether the defendant negligently breached its duty to exercise ordinary and reasonable care for preservation of the prisoner's health and life under the circumstances of the particular case. (See Dezort I, 35 Ill. App.3d 703, 710, 342 N.E.2d 468.) That issue is a question of fact to be determined from the evidence adduced at trial.

It is the plaintiff's contention that a careful or thorough search would have disclosed Dezort's belt, and considering the rules and regulations of the Village of Hinsdale Police Department, State Municipal Jail Standards, and the testimony of Anthony Kuharich on good police practice on searches of prisoners, the defendant was negligent. The ...


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