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September 18, 1991

JANET MAYER, Administratrix of the Estate of JOHN RUSSELL KOSMOS, Deceased, and ROBERT M. MAYER, Plaintiffs,

Charles P. Kocoras, United States District Judge.

The opinion of the court was delivered by: KOCORAS


 This matter is before the court on the parties' cross-motions for summary judgment. For the reasons set forth below, both motions for summary judgment are denied. Defendant's immunity claim is denied and liability remains an issue for jury determination.


 Plaintiffs brought this wrongful death action against the United States under the Federal Tort Claims Act ("FTCA") after their decedent, John R. Kosmos, was killed by Jack E. Dillman, Jr., a Vietnam veteran, within weeks of his release from the Veterans Administration Medical Center in Marion, Indiana.

 Defendant claims, as it did in a prior motion to dismiss, that its decision to release Dillman is immune from prosecution because such decisions are covered by the discretionary function exception to the FTCA, 28 U.S.C.A. § 2680(a). Defendant relies upon the factual background outlined in this court's denial of its motion to dismiss in a Memorandum Opinion dated December 1, 1989. These facts also appear in a six-point Statement of Uncontested Facts defendant provided the court pursuant to local Rule 12(l) (see below), and are summarized as follows:

 Jack E. Dillman, a Vietnam veteran, suffered psychiatric illness and was repeatedly hospitalized since his discharge from military duty. He was admitted to the Veteran's Administration ("VA") Medical Center in Marion, Indiana six times between 1975 and 1979 and each time he was diagnosed as having paranoid schizophrenia. In December of 1979 he was released from the hospital and lived outside of that facility until he was arrested for auto theft in November of 1984. After three days in jail he was placed into the custody of his father, who then brought commitment proceedings under Indiana law. Dillman was returned to the VA hospital in Marion, Indiana per court order on November 28, 1984.

 Two months later, on January 24, 1985, Dillman was again released from the VA hospital as part of its Community Residence program. The VA approved Dillman's plan to rent a room from a Mrs. Donaldson of Marion, Indiana for a two-week trial period. Four days after he was released the VA began receiving complaints from neighbors of Mrs. Donaldson concerning Dillman's annoying and disruptive behavior, his interest in a gun catalogue, and his scribbling of incoherent notes about murderers. Consequently, Dillman was readmitted to the VA hospital.

 The VA hospital next, and for the last time, arranged for Dillman to be released on February 26, 1985 into his father's care rather than as part of the special release program. The VA then, however, released Dillman at large with instructions for him to proceed to his father's house. Dillman instead stayed in Marion for three weeks, and did not reach his parent's house in Gary, Indiana until March 18th. His father did not report this to the VA hospital.

 On March 25th he left his father's care ostensibly to keep an outpatient appointment. When Dillman failed to show up for his appointment the VA tried to locate him. Two days later, in Oak Lawn, Illinois, Dillman threatened a cashier and three bystanders at a gas station. And on March 29, 1985 Dillman went into Al's Gas Stop also in Oak Law asking for cigarettes. Without provocation he pulled out a gun and fired two shots into John Kosmos, the 21-year old attendant. Kosmos died three hours later, as did Dillman the following day when police shot him while resisting arrest at a local motel.

 The estate of John Russell Kosmos and his next of kin filed a wrongful death action against the United States under the FTCA, 28 U.S.C. § 1346. Plaintiffs claim that the VA psychiatrists were negligent in deciding to release Dillman from the VA medical center and in the manner in which that release was effected because they had or should have had notice of his violent and antisocial tendencies.

 Defendant United States, moved to dismiss this action on the grounds that it failed to state a claim for relief under Illinois tort law and that, even if a claim were stated, it would be barred by the FTCA. This court agreed with defendant that Illinois substantive law applied, but determined that pursuant to that law and the fact alleged in the complaint, the defendant did owe a duty of care the deceased, John Kosmos. See Kirk v. Michael Reese Hospital & Medical Center, 117 Ill. 2d 507, 513 N.E.2d 387 (1987); Estate of Johnson v. Condell Mem. Hosp., 119 Ill. 2d 496, 520 N.E.2d 37 (1988) (both cases implying that under adequately pleaded facts, the Illinois Supreme Court views favorably § 319 of the Restatement (Second) of Torts establishing a duty of care to control third parties where the defendant has physical custody of the third party.) Applying the standards of Rule 12(b)(6), this court further held that the release of a mental patient from the custody of a hospital was better viewed as a purely medical decision of the type not envisioned under the protection of the discretionary function exception to the FTCA.

 Defendant has renewed by motion for summary judgment its request to end this suit based on the discretionary function exception, and has provided additional evidence to that effect. Plaintiffs have countered with a cross-motion for summary judgment on the issue of liability, arguing merely that the defendant failed to show any change in fact or law in ...

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