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11/09/87 Delmar Fulk, v. Wayne Roberts Et Al.

November 9, 1987

DELMAR FULK, PLAINTIFF-APPELLEE

v.

WAYNE ROBERTS ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

517 N.E.2d 1098, 164 Ill. App. 3d 194, 115 Ill. Dec. 412 1987.IL.1658

Appeal from the Circuit Court of Perry County; the Hon. Robert Bastien, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS

Plaintiff, Delmar Fulk, filed a two-count complaint in the circuit court of Perry County seeking compensatory and punitive damages for an alleged violation of his constitutional rights. Count I of the complaint purported to be at common law on a theory of unlawful detention. Count II was brought pursuant to 42 U.S.C. § 1983 (1982). In both counts,

In answer, defendants denied, inter alia, that they unlawfully detained plaintiff or that he was damaged as a result of the detention. Defendants raised good faith and immunity as affirmative defenses to the action.

On April 19, 1984, defendants filed a motion for summary judgment alleging that there was no genuine issue as to any material fact and that they were entitled to judgment as a matter of law. In their motion, defendants stated, "the only genuine issue of material fact to be decided is whether Defendants had probable cause to detain the Plaintiff." On July 6, 1984, the trial court entered an order granting defendants' motion for summary judgment and finding that probable cause existed to investigate whether plaintiff was violating a provision of the Wildlife Code of 1971 (Ill. Rev. Stat. 1983, ch. 61, par. 1.1 et seq.).

Plaintiff filed notice of appeal on November 9, 1984. Subsequently, the parties joined in a motion to vacate summary judgment and to remand the cause for further proceedings. On June 17, 1985, we granted the motion and remanded the cause to the circuit court.

A bench trial was conducted on May 16, 1986. The testimony at trial was as follows.

Plaintiff, Delmar Fulk, an employee of Freeman United Coal Company, testified that on November 25, 1983, he was on his way to work. En route to the mine, he drove his truck in on the main road, referred to as Green Market Road, passed through a gate identifying the mine property as a restricted area, and drove at most another quarter of a mile to Number Two Lateral Road. Before turning onto Number Two Lateral Road, Fulk turned on his spotlight, which was mounted on his vehicle. He said he activated the spotlight for two reasons. First, he saw lights down the road which he assumed was the foreman and he used his spotlight to signal him. Second, he had to locate the drill machine and high wall area which moved continuously as the mining process progressed. Fulk left the spotlight on, shining it back and forth, as he drove toward his worksite. When he reached the worksite, Fulk backed in to turn around and noticed a vehicle approaching with its high beams on. It stopped in front of Fulk's truck.

Fulk testified that two conservation officers, the defendants, emerged from the vehicle. He thought they were checking because there had been deer poachers in the vicinity. The officers approached Fulk and asked him what he was doing shining the spotlight. Fulk explained that he used the light because he worked on the drill at the mine site. Fulk testified that the officers then ordered him out of his vehicle and he swore at them after they "got smart." Officer Roberts checked the cab of Fulk's truck for guns while Officer O'Neill examined Fulk's driver's license. After the officers were satisfied that Fulk did not have a gun, they returned his license and drove away.

Fulk testified that the incident had not affected his relationship with his family other than making him irritable. He had also been subjected to good-natured ribbing by members of the community.

Rod Rummler, an employee of Freeman United, testified that the area where Fulk was stopped had been stripped of top soil and vegetation. The stripped area varied in size, but was approximately half a mile in width to two miles in length. Rummler said he had never seen wildlife in the high wall area, but admitted that it could be present and he not know of it. Rummler testified that there were wooded areas and farmland 200 or 300 feet from the spot ...


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