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July 7, 1983


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.

In addition, under a General Order of the Decatur Police Department, the Information Clerk was responsible for taking proper precautions with a mentally ill prisoner and for maintaining extra surveillance. Defendants' ex. 9 at 7.

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 death.

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 another.

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 ...

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