The opinion of the court was delivered by: J. Waldo Ackerman, Chief Judge.
On January 28, 1983, a jury returned a verdict in this § 1983
and wrongful death action, finding defendant Marguerite Johnson,
a Decatur Police Department information clerk, liable for damages
to the estate of Clyde Davis and to his surviving son, William.
Clyde Davis was a catatonic schizophrenic who had resided in a
nursing home for many years. On or about April 2, 1978, he
wandered away from the nursing home. Nursing home personnel
notified the Decatur police that he was missing.
Clyde Davis was found on or about April 4, 1978, by a Decatur
police officer, sitting in a vehicle which had been reported
stolen. Because of his mental condition, Clyde Davis was not able
to identify himself to the police. Mr. Davis was then taken to
the Decatur City Jail; he never talked to the police and he was
half-dragged into the station. He exhibited bizarre behavior,
such as dropping his pants and clapping his hand over his mouth.
The testimony at trial indicated that the deceased's mental
condition would have been obvious to a reasonable person.
In effect at the time of Clyde Davis' arrest were Illinois
Department of Corrections Rules and Regulations concerning
municipal jail and lockup standards. Those rules provided that
D. No detainee with a known history of mental
disorder or mental defect, or who shows evidence
of such condition, shall be housed in any
municipal jail. In the event such a detainer is
received, he shall be afforded protective custody
and constant supervision. Such person shall
immediately be referred for appropriate
professional study and diagnosis. If a finding of
mental illness or mental disorder is made, the
Chief of Police or the Chief Jailer shall
immediately notify the appropriate authorities
regarding the mental condition of the detainee so
that a transfer can be effected.
Municipal Jail and Lockup Standards III, D. at 4.
Despite the obviousness of Davis' mental condition, and despite
the standards noted above, Davis was placed in a cell with Donald
Nobles, who had been arrested for murdering his girlfriend.
Nobles testified that he was high on drugs at the time that Davis
was placed in the cell with him, that he begged the officers not
to place Davis in his cell, that he was hallucinating and
paranoid at this time. Don Nobles brutally beat Clyde Davis to
The jury found in favor of the officers who transported Davis
to the jail. Marguerite Johnson, the Information Clerk, was
informed by at least two officers that Davis was the person who
had been reported missing by the nursing home. Her commander told
her to remove Davis from the city jail and take him over to the
County jail. She testified that Davis was not removed immediately
because it happened to be the day floors were waxed at the County
building and County personnel apparently did not appreciate
having prisoners transferred on that day.
The jury awarded plaintiff $50,000 compensatory damages for the
deceased's pain and suffering prior to death under the civil
rights and survival act causes of action. The jury also awarded
$525,000 in punitive damages for the violation of the deceased's
civil rights. Clyde Davis' son was awarded $300,000 under the
Wrongful Death Act for the loss of his father's society.
The defendant has vigorously attacked the jury's verdict and
has filed motions seeking to have this Court set the verdict
aside and either enter judgment for defendant, grant defendant a
new trial, or order plaintiff to remit a portion of the damage
award. Two primary arguments have been advanced by defendant in
support of her motions. She contends first that the jury was not
instructed correctly on the proper standard to apply for an award
of punitive damages. Second, she argues that no cause of action
exists under the Illinois Wrongful Death Act for loss of a
parent's society by a child.
Punitive Damage Instructions
The Court instructed the jury that under the Civil Rights
counts of the complaint, the defendants were obligated to refrain
from wilful and wanton conduct which would endanger the safety of
the deceased. "Wilful and wanton" was defined as "utter
indifference or conscience (sic) disregard for the safety" of
The Court further instructed the jury that, in order to
establish the civil rights violations, plaintiff had the burden
of proving, inter alia, that the defendant's actions made it
highly foreseeable that Clyde Davis would be physically attacked
or killed and that defendant's conduct was grossly negligent or
an egregious failure to protect the deceased. "Gross negligence"
was defined as a callous indifference or thoughtless disregard
for the consequences of one's act or failure to act. "Egregious
failure to protect" was defined as a flagrant or remarkably bad
failure to protect. Moreover, the Court's punitive damage
instruction provided that the jury could award exemplary damages
in order to punish a wrongdoer for extraordinary misconduct and
to serve as an example or ...