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12/22/88 Deborah A. Seibring, As v. Parcell's Incorporated Et

December 22, 1988

SEIBRING, DECEASED, ET AL., PLAINTIFFS-APPELLANTS

v.

PARCELL'S INCORPORATED ET AL., DEFENDANTS-APPELLEES



Before addressing the merits of the circuit court's dismissal of plaintiffs' complaint, one procedural matter needs to be discussed. In the circuit court proceedings, the defendants stated that their motion to dismiss counts IX through XIV of the plaintiffs' amended complaint was based on section 2-615 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2-615). In their motion to dismiss, defendants did not rely on any evidence adduced at the evidentiary hearing which preceded the second appeal in this cause. The brief which plaintiffs filed in this court does, however, refer to portions of the transcript of that evidentiary hearing, and defendants refer in their brief to portions of the findings of fact which the circuit court made following that evidentiary hearing.

APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

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

532 N.E.2d 1335, 178 Ill. App. 3d 62, 127 Ill. Dec. 326 1988.IL.1859

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

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

This appeal involves the question of whether the actions of two police officers who allegedly caused an individual to drive while intoxicated and be killed in an automobile accident may have somehow violated the constitutional rights of that individual, so that the administrator of his estate, his widow, and his minor child may maintain a section 1983 civil rights action (42 U.S.C. § 1983 (1982)) against the police officers and their municipal employer. We affirm the circuit court's dismissal of the counts of plaintiffs' complaint which attempted to state section 1983 causes of action.

The plaintiffs in this action are Deborah A. Seibring, the wife of decedent Rodney Seibring (decedent), individually and in her capacity of administrator of decedent's estate, and Jennifer Seibring, the minor daughter of the decedent. The first two counts of plaintiffs' complaint are dramshop actions against defendants Parcell's Incorporated and Thomas Borbeli, d/b/a The Paxton Bowl, respectively. In a prior appeal, this court held that plaintiffs' dramshop action against Parcell's was not retroactively barred by an amendment of the applicable legislation. Seibring v. Parcell's, Inc. (1987), 151 Ill. App. 3d 1003, 503 N.E.2d 1126. The record reflects these counts were subsequently dismissed as a result of a settlement of plaintiffs' claims against Parcell's and Borbeli.

Counts III through VIII are directed to defendants City of Paxton (Paxton), and David Isom and Walter Whitehill, who at the relevant times were police officers employed by the City of Paxton. (Paxton, Isom, and Whitehill are hereinafter referred to as the defendants.) In these counts, plaintiffs attempted to allege State law causes of action. In another previous appeal in this cause, this court held that counts III through VIII do not state causes of action against defendants and affirmed the circuit court's dismissal of these counts with prejudice. This court held, however, that the circuit court improperly denied a motion by plaintiffs for leave to further amend their complaint by adding additional counts based on alleged section 1983 violations. Seibring v. Parcell's, Inc. (1978), 159 Ill. App. 3d 676, 512 N.E.2d 394.

Following remandment of this cause to the circuit court, plaintiffs amended their complaint by filing additional counts IX through XIV, based upon defendants' alleged violations of section 1983. (42 U.S.C. 1983 (1982).) Counts IX through XII are directed to defendant City of Paxton; counts XIII and XIV are directed to Whitehill and Isom, respectively.

Counts IX through XII begin with allegations that plaintiff Deborah A. Seibring was granted leave to file an action against all of the defendants in this action and that she brings this action as administrator of the estate of decedent Rodney Seibring, who left surviving him his wife, plaintiff Deborah Seibring, and minor child, Jennifer Seibring, both of whom are still living. These counts further allege (1) that on or about December 22, 1984, Paxton employed Isom and Whitehill as police officers, (2) Paxton is responsible for constitutional violations inflicted upon Seibring and others in violation of section 1983, and (3) under section 1983, Paxton is liable for the misconduct of its employees. These counts continue with allegations that on or about December 22, 1983, Isom and Whitehill 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. Isom and Whitehill then transported decedent and Adwell, along with plaintiff Deborah A. Seibring, to two motor vehicles in the possession of decedent and Adwell. At that time and place, Isom and Whitehill, in their capacities as agents, employees, or servants of Paxton, "caused, allowed or disregarded the possibility that decedent would operate a motor vehicle and fail [ sic ] to take him into custody or insure that he did not operate a motor vehicle." Plaintiffs further alleged that notwithstanding their duties to decedent, Isom and Whitehill, in their aforementioned capacities and as a result of their lack of training, allowed decedent to operate a motor vehicle, caused decedent to operate a motor vehicle, or failed to take decedent into custody in order to protect his person. As a direct and proximate result of one or more of the foregoing acts or omissions which were done by Isom and Whitehill with conscious indifference or disregard for the safety and well-being of decedent, decedent allegedly operated a motor vehicle and was involved in an automobile accident which resulted in his death. The counts directed to the City of Paxton state, as the bases for plaintiffs' claims of violations of decedent's constitutional rights by Paxton:

"The conduct as alleged above deprived the Plaintiffs' Decedent of his rights as secured under the Fourth, Fifth, and Due Process clause of the Fourteenth Amendments to the United States Constitution. The Defendant CITY OF PAXTON'S failure to properly train, supervise, regulate, discipline, or to otherwise control its employees and the failure to promulgate proper guidelines for the exercise of police powers in this regard and the continued failure to discipline or reprimand employees who do not exercise greater care or prevent accidents by intoxicated persons (to date, these aforesaid named Defendant police officers have not been in any way disciplined or charged with any offense) constitutes an official policy, practice or custom of condoning actions as hereinbefore stated in violation of the constitutional rights of Plaintiffs' Decedent and others and serves to condone the illegal and improper behavior as alleged. Said failures and custom, practice or policy of the CITY OF PAXTON were and are the proximate cause of the injuries and death to the Plaintiffs' Decedent."

The counts directed to the City of Paxton conclude with allegations that by reason of decedent's death, his widow has been deprived of her means of support, and his child has been deprived of decedent's companionship, society, and services.

Count IX requests compensatory damages only and count X requests both compensatory and punitive damages. Counts XI and XII are identical to counts IX and X, except they contain further allegations that Paxton ...


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