for liability is unavailing. Thompson claims that he is not liable under § 1983 because he did not cause or personally participate in the alleged assault. Thompson's theory is based on the undisputed fact that he was not physically "present" during the assault. Thompson concludes that the lack of his physical presence during the alleged assault constitutes a lack of "personal involvement with plaintiff's claim of excessive force." Medley argues that Thompson is liable under § 1983, even if he did not have any "direct personal involvement" in the use of excessive force, because he deliberately left the room knowing that Turner had begun to assault her.
Although "personal participation" and physical "presence" are not necessary elements for imposing liability under § 1983 for failure to act, "knowledge" of the assault is an essential factor. In the present case, the question of Thompson's knowledge is, as plaintiff argues, a material question of fact.
Medley claims that Thompson was sitting at a Table when Turner pulled her leg out from underneath her, bent her handcuffed wrist backwards and forced her to lay prone so that her head and elbow hit the bench. Medley also claims that as her head and elbow hit the bench, Thompson left the room without saying anything. 12(n) P 28. If Medley's account of the facts is true, then Thompson clearly had a "realistic opportunity" to intervene and protect Medley from assault. Thompson, on the other hand, claims that he left the room after Medley refused the breath test (but before the alleged assault) and shut the door. Thompson's 12(m) P 22; Medley's Exhibit F at 145, P 11-12.
These two versions of the facts create a genuine issue as to whether Thompson was subjectively aware that Turner was (allegedly) assaulting plaintiff and thus whether Thompson's failure to protect her was "deliberately indifferent" in violation of the Fourteenth Amendment Due Process Clause. Therefore, the Court denies Thompson's Motion for Summary Judgment on Count I.
B. Pendant State Law Claims
In Count VI, Medley contends that the CPD defendants were negligent because they allowed her to remain alone with Turner and therefore permitted a dangerous situation to exist while she was in their custody. The CPD defendants claim that they were not negligent because: (1) they "were never uniquely aware that plaintiff was going to be assaulted by an Illinois state trooper;" and (2) plaintiff "was never under the control of the Chicago Police defendants." Medley's rejoinder is that these assertions are "plainly contested issues of fact."
The court finds that the CPD defendants are not individually negligent.
In an action based on negligence, the plaintiff must establish the existence of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting from that breach. Kirk v. Michael Reese Hospital and Medical Center, 117 Ill. 2d 507, 525, 111 Ill. Dec. 944, 513 N.E.2d 387 (1987), cert. denied, 485 U.S. 905, 99 L. Ed. 2d 236, 108 S. Ct. 1077 (1988). The existence of a duty is a question of law properly addressed by the court on a motion for summary judgment. Fancil v. Q.S.E. Foods, Inc., 60 Ill. 2d 552, 555, 328 N.E.2d 538 (1975). Absent a legal duty, there can be no recovery in negligence as a matter of law, and summary judgment in favor of the defendants is proper. Keller v. Mols, 129 Ill. App. 3d 208, 84 Ill. Dec. 411, 472 N.E.2d 161 (1st Dist. 1984).
It is well-established that a municipality and its employees are not liable for failure to supply general police or fire protection, but liability has been found where the municipality owes a "special duty" to a particular individual. Marshall v. Ellison, 132 Ill. App. 3d 732, 87 Ill. Dec. 704, 477 N.E.2d 830 (4th Dist. 1985). In determining whether a special duty is owed, the following requirements must be met:
1. the municipality must be uniquely aware of the particular danger or risk to which plaintiff is exposed;
2. there must be allegations of specific acts or omissions on the part of the municipality;