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07/28/94 RICHARD MOY v. COUNTY COOK

July 28, 1994

RICHARD MOY, AS SPECIAL ADM'R OF THE ESTATE OF CHOY MOY, DECEASED, APPELLANT,
v.
THE COUNTY OF COOK, APPELLEE.



Freeman, Harrison

The opinion of the court was delivered by: Freeman

JUSTICE FREEMAN delivered the opinion of the court:

The issue presented in this appeal is whether the County of Cook may be held vicariously liable under the doctrine of respondeat superior for the alleged negligent conduct of the Cook County sheriff.

BACKGROUND

Because this appeal is before the court on the defendant county's motion to dismiss, all well-pleaded facts will be regarded as true. ( Katz v. Belmont National Bank (1986), 112 Ill. 2d 64, 67, 96 Ill. Dec. 697, 491 N.E.2d 1157.) Plaintiff's decedent died while confined as an inmate at the Cook County jail. During the period of that confinement, decedent had repeatedly complained about illness and his inability to control his bowel movements. On July 9, 1989, two inmates told paramedics present at the jail that the decedent required medical attention and was too ill to come to the regular treatment room. The paramedics, however, refused to see the decedent unless he came to the treatment room. The decedent died the following morning.

Plaintiff filed a three-count complaint naming CookCounty as defendant. The complaint alleged that Cook County, through its sheriff, its department of corrections, its directors and its employees, owns and operates the Cook County jail and the House of Corrections. Further, the complaint alleged, inter alia, the following. The county conducted an examination of the decedent which indicated that the decedent needed an abdominal evaluation. On or about May 5, 1989, the jail facility physician interpreted a chest X ray of decedent which showed an abnormality of "distended loop of small bowel in RUQ [right upper quadrant] large fecal mass in abdomen." At no time did Cook County obtain a proper abdominal evaluation of the decedent. Cook County, through its officers, agents and employees, breached the duty owed the decedent and acted wilfully and wantonly and with conscious disregard for the safety, health and welfare of the decedent while he was in the custody of the defendant; failed to provide the decedent with medical care; and failed to refrain from wilful and wanton misconduct through its failure to properly train and supervise the jail staff.

The county filed a motion to dismiss the complaint with prejudice. (Ill. Rev. Stat. 1989, ch. 110, par. 2-615.) In the motion, the county averred that it was not the proper party defendant. In support of the motion, the county asserted that the county's duty regarding the jail is prescribed by statute, and that the complaint failed to allege any breach of those statutory duties. Further, the county asserted, the Cook County jail and the Cook County department of corrections are solely under the supervision and control of the sheriff of Cook County, who is an independently elected constitutional officer.

After hearing on the motion, the trial court granted the county's motion and dismissed the complaint with prejudice. Plaintiff appealed the dismissal to theappellate court. The appellate court affirmed. (244 Ill. App. 3d 1034.) We granted plaintiff's petition for leave to appeal (134 Ill. 2d R. 315(a)), and now affirm.

ANALYSIS

Plaintiff contends that the trial court erred in dismissing the complaint. The dispositive issue is whether the County of Cook may be held vicariously liable for the conduct of the Cook County sheriff

Waiver

The county initially argues that plaintiff has waived the argument that the sheriff is an employee of the county by failing to make such argument in the trial court or on appeal. The county states that, in the trial court, plaintiff argued that the county's relationship to the sheriff was that of principal or master and, alternatively, that an agency relationship existed. However, the county contends, plaintiff never argued that an employer-employee relationship formed the basis for an imposition of the county's vicarious liability.

The argument is not waived. The complaint clearly alleges the county's liability based upon the conduct of its employees. Even had the complaint not so expressly alleged an employer-employee relationship, however, such a failing would not be fatal. Plaintiff seeks to hold the county vicariously liable under the doctrine of respondeat superior. Although the terms "principal" and "agent," "master" and "servant," "employer" and "employee" may have separate connotations for purposes of contract authority, such distinctions are immaterial for tort purposes. In order for a plaintiff to invoke the doctrine of respondeat superior, it is sufficient that one of the above relationships be established and that the wrongdoer be either the employee, the agent, or the servant. (1 J. Lee & B. Lindahl, Modern Tort Law ยง 7.02 (rev. ed. 1988); see also Dean v. Ketter (1946), 328 Ill. App. 206, 65 N.E.2d 572 (although words "agent" and "servant" are not wholly synonymous, there is no basic distinction between ...


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