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BRAGADO v. CITY OF ZION/POLICE DEPT.

December 7, 1993

SIMEON BRAGADO, JR., individually and as independent Administrator of the Estate of JUDITH BRAGADO, Deceased, Plaintiff,
v.
CITY OF ZION/POLICE DEPARTMENT, an Illinois Municipal Corporation; SERGEANT MORRISON, individually and in his official capacity as a sergeant with the City of Zion/Police Department; ROBERT LEVANOWICH, individually and in his official capacity as a police officer with the City of Zion/Police Department; DON WILLIAMSON, individually and in his official capacity as a police officer with the City of Zion/Police Department; and CHERYL COSEY, individually and in her official capacity with the City of Zion/Police Department, Defendants.



The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.

 CHARLES R. NORGLE, SR., District Judge:

 Before the court are post-trial motions of plaintiff Simeon Bragado, Jr., individually and as independent Administrator of the Estate of Judith Bragado, Deceased ("plaintiff") for a new trial as to damages only and additur as to funeral expenses under the 1983 civil rights action, and of defendants City of Zion/Police Department ("City of Zion") and Cheryl Cosey ("Cosey") (collectively "defendants") for judgment notwithstanding the verdict. For the following reasons, the parties' post-trial motions are denied.

 BACKGROUND

 This case emerged from the suicide of Judith Bragado ("Bragado") in the early morning hours of March 31, 1988 while she was being held in a jail cell at the City of Zion police station. Plaintiff filed a personal injury action asserting federal and state claims. Count I of the action ("federal claim") alleged that Bragado's rights under the Eighth and Fourteenth Amendments, actionable under 42 U.S.C. § 1983, were violated as a result of defendants' failure to prevent Bragado's suicide, to provide Bragado with prompt medical care and self-protection, and to reasonably monitor Bragado while in defendants' custody. Counts II and III ("state claims") raised claims respectively under the Illinois Survival Act, 755 ILCS 5/27-6 (1993), and the Illinois Wrongful Death Act, 740 ILCS 180/1, 180/2 (1983).

 The matter was tried before a six-member jury from September 14, 1993 through September 28, 1993. At the conclusion of plaintiff's case, defendants moved for a directed verdict. The court denied the motion as to City of Zion and Cosey, but granted the motion as to the remaining defendants Sergeant Morrison, Robert Levanowich, and Don Williamson. City of Zion and Cosey renewed their motion for judgment as a matter of law at the close of all the evidence. The court denied the motion. The jury returned a verdict in favor of plaintiff and against City of Zion as to Counts II and III and Cosey as to Counts I, II and III. The jury assessed the total damages in the amount of $ 237,117.60.

 The parties filed timely post-trial motions. Plaintiff filed a motion for a new trial as to damages only and for additur to recover additional $ 2,112.60 for funeral expenses under the federal claim. *fn1" Defendants filed a motion for judgment notwithstanding the verdict ("j.n.o.v.") with respect to all claims. The court will first address defendants' motion for j.n.o.v.

 DISCUSSION

 In deciding whether to grant defendants' motion for j.n.o.v., the court must determine "whether the evidence presented, combined with all reasonable inferences permissibly drawn therefrom, is sufficient to support the verdict when viewed in the light most favorable to the party against whom the motion is directed." McNabola v. Chicago Transit Authority, 10 F.3d 501, 1993 U.S. App. LEXIS 31018, 1993 WL 484173, at *10 (7th Cir. 1993) (quoting Tapia v. City of Greenwood, 965 F.2d 336, 338 (7th Cir. 1992). Conflicting testimony presented at trial that is unfavorable to the prevailing party must be disregarded. King v. Fairman, 997 F.2d 259, 261 (7th Cir. 1993). Further, the court will neither weigh the evidence nor reevaluate the credibility of witnesses. McNabola, 10 F.3d 501, 1993 U.S. App. LEXIS 31018, 1993 WL 484173 at *10. Those tasks are within the exclusive domain of the jury. A motion for j.n.o.v. should be granted only when there can be but one conclusion from the trial evidence. Chambers v. Maher, 915 F.2d 1141, 1143 (7th Cir. 1990), cert. denied, 499 U.S. 910, 113 L. Ed. 2d 225, 111 S. Ct. 1116 (1991).

 Plaintiff's federal claim was governed by the "deliberate indifference" standard. As to the federal claim, the jury determined that Cosey was guilty of acting in deliberate indifference to the serious needs of Bragado in monitoring her during Cosey's shift at the City of Zion police station on March 31, 1988, and that her indifference proximately caused Bragado's suicidal death.

 In instructing the jury on the definition of "deliberate indifference," this court provided the following instruction based on Salazar v. City of Chicago, 940 F.2d 233, 238 (7th Cir. 1991):

 
[Cosey] can be held liable for depriving [Bragado] of her life without due process only if [Cosey] was deliberately indifferent to [Bragado's] serious medical needs. The term "deliberate indifference" means intentional or criminally reckless conduct. The term "criminally reckless conduct" means conduct that is reckless in a criminal sense, that is, conduct that reflects complete indifference to risk, when the actor does not care whether the other person lives or dies, despite knowing that there is a significant risk of death . . . .
 
Neither negligence nor even gross negligence violates due process. Therefore, [Cosey] cannot be held liable for depriving [Bragado] of her life without due process if [Cosey's] conduct does not go beyond negligence or gross negligence.

 Cosey argues that the trial evidence fails to support the jury's finding of "deliberate indifference" within the instructed meaning. In support, Cosey asserts that she did not know Bragado prior to March 30, 1988, that she monitored Bragado through the use of the jail's audio and video monitoring system, that Cosey summoned a patrol officer to physically check on Bragado at 4:42 a.m., that Bragado was alive as of 6:28 a.m. on March 31, 1988, and that Cosey ...


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