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06/02/88 John Vasconcelles, As Adm v. the City of Springfield Et

June 2, 1988

VASCONCELLES, DECEASED, ET AL., PLAINTIFFS-APPELLANTS

v.

THE CITY OF SPRINGFIELD ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

JOHN VASCONCELLES, as Adm'r of the Estate of Mark

524 N.E.2d 720, 170 Ill. App. 3d 404, 120 Ill. Dec. 690 1988.IL.868

Appeal from the Circuit Court of Sangamon County; the Hon. Richard E. Mann, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

This appeal was brought by the plaintiffs John Vasconcelles, administrator of the estate of Mark Vasconcelles, deceased, and John and Carol Vasconcelles, individually, following the dismissal, with prejudice, of their first-amended complaint against defendants City of Springfield, Sangamon County, William Roberts, Gary Russell, and Tom Roberts seeking money damages for the wrongful death of Mark Vasconcelles (deceased).

Plaintiffs' first-amended complaint alleges the following facts in each of its six counts. Tim Ferguson had previously committed violent acts against deceased and a friend of deceased. Ferguson had been on probation after pleading guilty to aggravated battery and, according to the allegations of plaintiffs' complaint, had a mental illness that would cause him to commit future violent acts against deceased. The complaint further alleges that Ferguson, who had recently been released from a mental institution, followed deceased on several occasions, tampered with deceased's residence, and made numerous threats on the life of deceased. The complaint also alleged that the death threats were communicated to defendants. Ferguson killed deceased on August 23, 1985.

As to each defendant, the complaint alleged acts of misconduct. Count I alleges that the City of Springfield, through its police officers and employees, owed a special duty to protect deceased but disregarded that duty by failing to properly investigate the threats, by failing to protect deceased, by failing to communicate the threats to the State's Attorney, probation officers, and appropriate medical personnel, and by failing to arrest Ferguson.

Count II, against Sangamon County, alleges the county, through its employees, including Gary Russell, an adult probation officer, owed a duty of ordinary care to deceased. Count II further alleges that although there was a medical report in the court file stating that Ferguson was a danger to deceased and should not be released without an updated medical examination to determine whether further supervision was required, no medical examination was conducted and, at the request of Russell, Ferguson's probation was terminated on March 19, 1985, without a hearing. In addition, on several occasions after Ferguson's probation was terminated, employees and agents of the county, including Russell, were advised of threats to deceased made by Ferguson.

Count V alleges that Gary Russell was Ferguson's adult probation officer and that Russell wilfully and wrongfully failed to monitor Ferguson's medical care during probation, failed to require a mental examination and ignored the threats reported to him. According to the complaint, Ferguson killing deceased was the direct and proximate result of the alleged wilful and wanton acts of Russell. The allegations against defendant Tom Roberts, the chief probation officer for the county, are set forth in count IV, which repeats and realleges the allegations in count II and further states that Tom Roberts was responsible for the acts and omissions of Gary Russell.

William Roberts is the State's Attorney for the county. Count III alleges the State's Attorney breached a duty of ordinary care to deceased by failing to properly monitor Ferguson's medical care during probation; by failing to have the medical exam prior to termination of probation; by failing to have a hearing and to advise the court of the necessity of a mental evaluation; by failing to properly investigate reported threats; by failing to communicate these threats to medical personnel treating Ferguson; by failing to arrest Ferguson; and by failing to communicate to Springfield police officers the information concerning Ferguson's prior violent acts and medical conditions. Count VI alleges the State's Attorney wilfully and wantonly failed to have a

hearing prior to termination of Ferguson's probation and failed to advise the court of the necessity for a mental evaluation, ignored medical reports in failing to have a medical examination prior to termination of probation, and failed to take any action whatsoever on the reported threats.

Each of the defendants filed a motion to dismiss the respective counts of the complaint. The circuit court ...


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