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07/10/87 Earline Debow, Indiv. and v. the City of East St. Louis

July 10, 1987

EARLINE DEBOW, INDI

v.

AND AS SPECIAL ADM'R OF THE ESTATE OF WALTER DEBOW, AN ALLEGED DISABLED PERSON, PLAINTIFF-APPELLEE,

v.

THE CITY OF EAST ST. LOUIS ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

510 N.E.2d 895, 158 Ill. App. 3d 27, 109 Ill. Dec. 827 1987.IL.978

Appeal from the Circuit Court of St. Clair County; the Hon. Roger M. Scrivner, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE KARNS delivered the opinion of the court. HARRISON and WELCH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KARNS

Plaintiff, Earline DeBow, individually and as special administrator of the estate of Walter DeBow, an alleged disabled adult, brought this civil rights action (42 U.S.C. sec. 1983 (1982)) against defendants, the city of East St. Louis (the city) and its police chief, Charles Wren, for injuries Walter DeBow sustained when he was attacked by another prisoner while incarcerated at the East St. Louis city jail. The circuit court of St. Clair County entered judgment on a jury verdict in favor of plaintiff in the amount of $3,400,000. Defendants appeal.

On January 24, 1984, Walter DeBow was arrested for illegal transportation of alcohol. He was placed in a cell in the East St. Louis jail without being given the opportunity to post his driver's license in lieu of bond as provided in Supreme Court Rule 526 (87 Ill. 2d R. 526). Defendants admitted that, at the time of his arrest, DeBow had a valid driver's license. On the same evening, off-duty police officer Evan Kyle stopped to investigate suspicious activity outside a gas station. Steven Griffin pointed a gun at Kyle and threatened him. Kyle left the gas station and phoned for assistance. Griffin was subsequently arrested for aggravated assault and unlawful use of a weapon. At the time of his arrest, Griffin was verbally abusive and threatening toward the officers at the East St. Louis jail. Griffin was placed in a cell by himself. The next morning, Griffin was removed from his cell by Sergeant Ezell for processing. Ezell testified that Griffin used threatening language while being moved upstairs for processing, but that he had calmed down by the time Ezell had completed the processing. Although another vacant cell was available, Ezell placed Griffin in the same cell with DeBow at approximately 9 a.m. Patrolman Lionel Settles testified that he fed the prisoners at 9:10 a.m. and that DeBow and Griffin did not appear to be having any problems at that time. At approximately 10:30 a.m., Sergeant Vlahek found DeBow unconscious on the floor of the cell with a severe head injury. Griffin's steel-toed work boots were found in the cell with blood on the toe of one of the boots.

Plaintiff filed an amended two-count complaint alleging, inter alia, that defendants, acting under color of State law, deprived DeBow of his due process rights under the fourth and fourteenth amendments to the United States Constitution in that they unlawfully confined DeBow in an unsafe jail cell, failed to comply with minimum jail standards, ignored warnings by the Illinois Department of Corrections that pretrial detainees were being inadequately supervised, failed to monitor the conduct of detainees and failed to segregate violent detainees from other detainees. Count I alleged that defendants were negligent. Count II alleged that defendants acted recklessly.

The East St. Louis city jail is a short-term detention facility. The cell where DeBow was injured was on the second floor of the jail. Defendant Wren testified that a desk sergeant and a patrolman were on duty at all times. According to Wren, both of these individuals were responsible for supervising detainees. However, this information was never communicated to the individuals on duty as their testimony reveals that no one understood it to be their official duty to check routinely the detainees. Frequently, the patrolman on duty was called away from the jail to perform other tasks in the community. Plaintiff established that defendants had received numerous notices of noncompliance with minimum jail safety standards. In particular, defendants had been warned that detainees were being inadequately supervised. Conditions in the jail remained unchanged since 1979. Detention consultant Ronnie Wells of the DOC had recommended that the jail be closed. Plaintiff introduced evidence that DeBow suffered permanent brain damage from the injury and was unable to care for himself or perform simple tasks.

Defendants raise the following eight issues on appeal: (1) whether the trial court erred in failing to hold an instruction conference prior to instructing the jury; (2) whether the jury instructions are erroneous; (3) whether the trial court erred in striking for cause all prospective jurors who were East St. Louis residents; (4) whether the trial court erred in denying defendants' motion to continue; (5) whether the verdict is against the manifest weight of the evidence; (6) whether the trial court erred in denying defendants' motion for change of venue; (7) whether the trial court erred in admitting evidence of defendants' conduct prior to and after January 25, 1984; and (8) whether the trial court erred in granting plaintiff's motion in limine precluding defendants from introducing evidence of DeBow's bad character.

Defendants' first contention is that the trial court committed reversible error by failing to hold an instruction conference prior to giving the instructions to the jury. The record reveals that at the close of all the evidence and prior to closing arguments, the trial court held an informal Discussion on jury instructions with counsel. No record was made of this Discussion. The next day, the court made the following comment while in chambers with counsel:

"THE COURT: I told both parties they'd be allowed to make a record regarding those jury instructions this morning before we argue the case to the jury."

Defense counsel tendered two instructions, a Discussion was held off the record and, subsequently, defense counsel stated:

"MR. APOIAN: The court has just informed counsel that he wishes for us to give closing arguments to the jury and to tender jury instructions to them prior to the making of a record with regard to objections to the instructions of the plaintiff which the defendant does, in fact, have. . . . [There] may be points that might be raised prior to the jury being instructed that would necessitate either withdrawal of an instruction by the plaintiff or some type of modification . . .. I think that ...


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