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03/29/96 ANTHONY JEFFERSON v. MICHAEL F. SHEAHAN

March 29, 1996

ANTHONY JEFFERSON, PLAINTIFF-APPELLEE,
v.
MICHAEL F. SHEAHAN, SHERIFF OF COOK COUNTY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Wayne D. Rhine, Judge Presiding.

The Honorable Justice Greiman delivered the opinion of the court: Tully, and Cerda, J.j., concur.

The opinion of the court was delivered by: Greiman

The Honorable Justice GREIMAN delivered the opinion of the court:

Anthony Jefferson (plaintiff), a former pretrial detainee at the Cook County Department of Corrections, brought an action against Sheriff Sheahan (defendant or Sheahan) to recover for injuries he received from a fellow detainee and which plaintiff alleged resulted from the willful and wanton conduct of Sheriff Sheahan in his failure to provide adequate personnel and supervision in the medical center of the Cook County Jail. The trial court denied Sheahan's motion to dismiss which asserted absolute immunity based on section 4-103 of the Tort Immunity Act (the Act). 745 ILCS 10/4-103 (West 1993).

The trial court found that there is an implicit exception for willful and wanton conduct under section 4-103 of the Act which applies to public employees like Sheriff Sheahan. On Sheahan's motion, the trial court, pursuant to Supreme Court Rule 308, certified two questions for this court to resolve:

Question #1. "While the immunity provided by 745 ILCS 10/4-103 does not contain a written exception for willful and wanton conduct, can a court judicially create such an exception to this provision and does such an exception exist?"

Question #2. "Do the allegations in the plaintiff's Complaint and response to the Bill of particulars sufficiently plead a cause of action for willful and wanton conduct?"

Plaintiff's Complaint offered the following facts. On December 18, 1993, plaintiff was a pretrial detainee at the Cook County Department of Corrections located at 26th and California (CCDC). Plaintiff claims that while awaiting trial he was assaulted by a fellow detainee, Anthony Curtis (Curtis), who struck plaintiff about the head and face with a steel cane allegedly provided by CCDC personnel. Plaintiff claims he was subsequently denied medical treatment for approximately one hour.

Curtis was a patient in the psychiatric center located within the CCDC facility who had been transferred to the medical facility within the same structure. Curtis was a "known dangerous and violent person" who was admitted to the medical center which "was not equipped to care for psychiatric patients." CCDC personnel were aware of Curtis' violent propensities. In fact, Curtis told CCDC personnel that he was a danger to himself and others, and that without his "medication" this danger increased. Curtis "repeatedly spoke out loud making threats to others."

Plaintiff's Second Amended Complaint alleged Sheriff's personnel were guilty of the following "wilful and wanton" acts: (1) knowingly permitted a dangerous psychotic (Curtis) to be transferred to the medical facility; (2) provided Curtis with a steel cane; (3) failed to adequately supervise the medical center; and (4) failed to provide prompt medical attention for the serious injuries that were sustained in the assault.

Defendant filed a motion to dismiss pursuant to both sections 2-615 and 2-619 (735 ILCS 5/2-615, 2-619(a)(5) and (9) (West 1993)), asserting that defendant was "absolutely immune" from liability for the alleged injuries pursuant to section 4-103 of the Act, and, even assuming a cause of action exists for willful and wanton conduct as an exception to section 4-103 immunity, neither the Complaint nor the response to the Bill of Particulars sufficiently pleaded facts which demonstrate defendant's willful and wanton conduct.

On August 3, 1995, the trial court granted defendant's motion to dismiss plaintiff's count seeking redress for the injuries allegedly aggravated due to a delay in providing medical attention based on the applicable statute of limitations, but denied the motion to dismiss as to the remaining allegations related to governmental immunity. The trial court determined that an implied exception for willful and wanton conduct should be read into section 4-103, and that plaintiff's Complaint plead sufficient facts to survive the motion to dismiss.

On defendant's motion, the trial court then certified the the previously mentioned two questions to this court. The questions were modified on August 24, 1995, and this court granted defendant's motion to allow this appeal under Rule 308.

Question #1. While the immunity provided by section 4-103 does not contain an express exception for willful and wanton conduct, can a court judicially create such an ...


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