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08/18/87 Deborah A. Seibring, As v. Parcell's Incorporated Et

August 18, 1987

SEIBRING, DECEASED, ET AL., PLAINTIFFS-APPELLANTS

v.

PARCELL'S INCORPORATED ET AL., DEFENDANTS (THE CITY OF PAXTON ET AL., DEFENDANTS-APPELLEES)



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

DEBORAH A. SEIBRING, as Adm'r of the Estate of Rodney

512 N.E.2d 394, 159 Ill. App. 3d 676, 111 Ill. Dec. 278 1987.IL.1200

Appeal from the Circuit Court of Ford County; the Hon. W. Mark Dalton, Judge, presiding.

APPELLATE Judges:

JUSTICE McCULLOUGH delivered the opinion of the court. SPITZ, P.J., and KNECHT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

Plaintiffs Deborah A. Seibring and Jennifer Seibring appeal circuit court orders which (1) dismissed their complaint premised on alleged negligence and wilful and wanton misconduct against defendant city of Paxton (Paxton) and Paxton police officers Walter Whitehill and David Isom, (2) denied them leave to file a second-amended complaint containing additional counts premised on alleged civil rights violations by the same defendants and (3) admitted testimony at an evidentiary hearing on a section 2-619 (Ill. Rev. Stat. 1985, ch. 110, par. 2-619) motion to dismiss which plaintiffs alleged was barred by the Dead Man's Act (Ill. Rev. Stat. 1985, ch. 110, par. 8-201).

Following the dismissal of their initial complaint, plaintiffs filed an amended eight-count complaint. Only counts III through VIII, which allege wrongful death survival actions, are here at issue. In those counts, plaintiffs sought damages on the basis of the death of decedent Rodney Seibring (decedent), who was the husband of plaintiff Deborah Seibring and the father of plaintiff Jennifer Seibring.

Counts III through V are directed to Paxton, Whitehill and Isom, respectively, and are based on alleged acts of negligence. Counts VI through VIII are also directed to Paxton, Whitehill and Isom, respectively, and are based on alleged acts of wilful and wanton misconduct. All of the counts here at issue involve essentially the same set of facts. They state that on or about December 22, 1984, Paxton employed Isom and Whitehill as police officers. On that date, the two officers responded to a request for assistance at the Paxton Bowl, where they found decedent and Bruce Adwell, who were causing a disturbance. At that time, decedent and Adwell were intoxicated, and Isom and Whitehill knew or should have known of this impairment. Whitehill and Isom thereafter transported decedent and Adwell, along with plaintiff Deborah A. Seibring, to two motor vehicles in the possession of decedent and Adwell.

At that time, the two police officers had a special duty not to cause or allow decedent to operate a motor vehicle (counts III through V), or "not to wilfully, wantonly, and consciously cause, allow, or disregard the possibility that decedent would operate a motor vehicle." (Counts VI through VIII.) Notwithstanding these duties, Whitehill and Isom committed one or more of the following negligent or wilful and wanton acts: (1) allowed decedent to operate a motor vehicle; (2) caused decedent to operate a motor vehicle; and (3) failed to take custody of decedent in order to protect his person. As a direct and proximate result of these actions, decedent operated a motor vehicle and was involved in an automobile crash resulting in his death. By reason of decedent's death, the plaintiffs were deprived of his support, companionship, society and services.

On February 4, 1986, defendants filed a section 2-619 (Ill. Rev. Stat. 1985, ch. 110, par. 2-619) motion to dismiss plaintiffs' first-amended complaint. On September 29, 1986, the plaintiffs filed a motion for leave to further amend their complaint by adding counts claiming damages for violations of decedent's civil rights on the basis of section 1983 of chapter 42 of the United States Code (42 U.S.C. sec. 1983 (1982)). An evidentiary hearing subsequently was held on defendants' motion to dismiss, pursuant to subsection (c) of section 2-619.

In orders entered November 24, 1986, the circuit court denied the plaintiffs' motion for leave to further amend their complaint and dismissed counts III through VIII of plaintiffs' amended complaint with prejudice.

We first consider plaintiffs' contention that the circuit court improperly dismissed counts III through VIII of their amended complaint. The principal bases for plaintiffs' argument that the dismissal of these counts should be reversed are (1) on the night decedent was killed, Whitehill and Isom were "uniquely aware" of decedent's intoxicated condition and the dangers which would be posed by his driving a motor vehicle; (2) it is not necessary that an individual be "in custody" in order to be deemed "under the direct and immediate control" of a police officer; and (3) it seems incongruous that the courts are willing to impose a substantially lower standard of responsibility on those trained to recognize intoxicated persons and stop them from driving than is imposed on motorists themselves to refrain from driving while intoxicated.

In order for a municipality to owe a duty to an individual, as opposed to the general public, the ...


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