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05/17/96 JENNIFER FATIGATO AND ANTHONY FATIGATO v.

May 17, 1996

JENNIFER FATIGATO AND ANTHONY FATIGATO, PLAINTIFFS-APPELLANTS,
v.
THE VILLAGE OF OLYMPIA FIELDS, JEFFREY R. MARSHALL AND RANDY KICKERT, DEFENDANTS-APPELLEES, AND HOLIDAY INN-MATTESON AND MATTESON HOTEL CORP., DEFENDANTS.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE ARTHUR A. SULLIVAN, JUDGE PRESIDING.

The Honorable Justice McNAMARA delivered the opinion of the court: Zwick, P.j., and Egan, J., concur.

The opinion of the court was delivered by: Mcnamara

The Honorable Justice McNAMARA delivered the opinion of the court:

Plaintiffs, Jennifer and Anthony Fatigato, are seeking recovery for injuries they sustained when an automobile crossed the median of Interstate 57 and struck their car. Alonzo Gaines, the driver of the other automobile, was killed in the accident. Plaintiffs named as defendants the estate of Alonzo Gaines, the Holiday Inn-Matteson and Matteson Hotel Corporation (Holiday Inn), the Village of Olympia Fields (Village), and two of the Village's police officers, Jeffrey R. Marshall and Randy Kickert. Plaintiffs alleged that Marshall and Kickert were guilty of willful and wanton conduct in that they directed Gaines to leave home after a domestic dispute and drive his automobile while highly intoxicated just prior to the collision with plaintiffs. Plaintiffs have settled with Gaines' estate and have voluntarily dismissed their dramshop action against the Holiday Inn. On appeal, plaintiffs seek the reversal of the trial court's grant of summary judgment in favor of the Village and Officers Marshall and Kickert.

The relevant facts are as follows. Vonceil Gaines testified at her deposition that on November 3, 1989, she returned home from work at approximately 5:30 p.m. At that time, her husband, Alonzo, and their daughter, Vonda, were at home. Alonzo was running throughout the house, and Vonda was visibly upset. Alonzo was angry because Vonceil had seen a lawyer about getting a divorce. Broken glasses and dishes covered the kitchen floor and countertops. In the bedroom, clothes were thrown everywhere, all the drawers were taken out of the chests, and the lamp on the nightstand was knocked off and broken.

Alonzo continued his tirade after Vonceil arrived home. She saw him pull the cord out of the telephone, throw a family room chair into the fireplace, and take her jewelry out of the drawers and step on it. Vonceil knew Alonzo was drinking because he was loud and he slurred his words. During the argument, Alonzo drove off and returned three separate times. When he left the third time, he stated he was going to get some bullets so he could shoot Vonceil. He returned between 6:50 and 7:00 p.m. Vonceil and Vonda found Alonzo sitting on the floor in the garage, and Vonda helped him up. Alonzo and Vonda then became involved in a shoving match during which he slapped his daughter and tried to choke her. Vonceil got into her car and drove to the police station, which was two minutes away. The station was locked when she arrived. Shortly thereafter, Vonda arrived at the station in her car and called the police from a public phone. They returned home with a police car behind them.

Vonceil told the two police officers that her husband was ranting and raving and in a tirade. She also told them that he had threatened to shoot her. They asked he if he had been drinking, and she said yes. She believed that Vonda said that Alonzo had tried to choke her. When they went back into the house, Alonzo was lying in bed. One of the officers remained in the living room, and the other went into the bedroom with Vonceil. Vonceil told Alonzo that the police were there, and the officer asked her to leave the room. She did not hear the conversation he had with Alonzo. After about five minutes, Alonzo and the officer came out of the room. Alonzo did not say anything. The officers told Vonceil and Vonda that Alonzo would be gone for the night and that the police would watch the house. Alonzo went outside and got into his car.

One of the officers then said that Alonzo had struck another car. Vonceil did not see or hear the collision, but when she walked to the front door, she saw that he had backed into Vonda's car. The officer asked Vonda if she wanted to press charges. Vonda said yes, and the officer filled out a form. The officers were at the house for approximately 15 minutes. Alonzo left before the report was finished. He was subsequently killed in the automobile accident in which plaintiffs were injured.

Vonda Gaines testified at her deposition that on November 3, 1989, she returned home from work sometime after 3 p.m. Her father was already at home, and he was packing his clothes. Vonda went into her room, and her father came in to talk to her. He told her that he and Vonceil were getting divorced. He also commented on Vonda's lack of concern. He did not appear intoxicated at that time, but Vonda could smell the odor of alcohol on his person. He appeared agitated. He did not slur his words.

Vonda remained in her bedroom when her mother came home. After a few minutes, Vonda heard a glass break in the kitchen and she heard her parents arguing and swearing. She heard doors slamming and chairs being thrown. Her parents argued for a long time. The next time Vonda talked to her father was when he called her into the kitchen. She talked to him for about 15 minutes. During that time, he drank wine and hard liquor. After Vonda left the kitchen, her parents began arguing again, and her father threw a chair at a glass table. Alonzo then left in his car for about 10 minutes and came back. He left a second time for about 20 minutes.

Later, a neighbor rang the doorbell and said that Alonzo looked like he had fallen in the garage. Vonda and Vonceil went out to the garage and saw Alonzo lying on the pavement. He was conscious and appeared intoxicated. Vonda smelled alcohol on his breath. Once on his feet, Alonzo was weaving and appeared unsteady. After Vonda helped him up, her father attempted to choke her. Her mother ran out the door. Vonda punched Alonzo in his midsection, and he let her go. Vonda ran out the door and drove to the police station. The door was locked, so she called the police from the public telephone next to the station. After making the phone call, she saw her mother sitting in her own car. She did not converse with Vonceil, and they drove home separately. When Vonda arrived home, her father was in the kitchen. He started swearing at her and he grabbed her. Vonda broke free of his grasp and grabbed a poker from the fireplace. Her father dropped to his knees and started crying. He appeared intoxicated and was emotionally upset.

The police and Vonda's mother arrived approximately 15 minutes later. Vonda hid, but she heard the officers ask her father to leave the house. The officers were in the house for about 15 minutes. When she heard them leave with her father, Vonda came out into the living room. She watched Alonzo get into his car, back out of the driveway, and strike her car, which was parked across the street from the driveway. The driver's side door of her car was damaged so that it could not open. The police officers were outside when this happened. The officers came back inside and asked her if she wanted to file a police report. Alonzo had already left the scene. Vonda did not remember whether she or her mother told the officers that her father was intoxicated. She did not tell the police that she wanted him arrested.

Officer Kickert testified at his deposition that on November 3, 1989, he was contacted by radio of a disturbance at 3511 Doria Lane. He and Officer Marshall arrived at the same time in separate cars. Vonceil and Vonda met them on the driveway. Vonceil told them that her husband had an argument with their daughter and that he had started to get physical with Vonda. Vonda said that Alonzo put his hands on her and tried to strangle her. The officers asked Vonda and Vonceil if they were all right, and they said yes. The officers asked whether they wanted Alonzo arrested, and they both said absolutely not. Vonceil indicated that it would be best if her husband left the house. The officers did not ask if Alonzo was drinking, and the women never stated that he was.

Upon going inside the house, Vonceil directed the officers to the bedroom. Kickert entered the room, and Marshall remained in the doorway. Kickert did not notice any broken furniture or things thrown around. Everything appeared normal in the bedroom. Alonzo was lying on the bed, and when Kickert called out "Mr. Gaines," he sat up immediately. Kickert advised Alonzo that his wife thought it would be best if he spent the night somewhere else. The officers watched as Alonzo gathered some personal items. Kickert did not smell any alcohol, but he was not close enough to Alonzo to smell his breath. Alonzo appeared sober and very alert. His speech was not slurred, and his walk was steady. In the dining room, Alonzo asked his wife for his car keys. She left the room, returned, and handed Alonzo his keys. During the time Kickert and Marshall were in the bedroom with Alonzo, a police lieutenant and a sergeant had come to the scene. After Alonzo got his keys, all four officers and Alonzo walked out together. The lieutenant and sergeant then left.

Kickert saw Alonzo get in his car, but he did not watch him back out of the driveway. Kickert became aware of the collision with Vonda's car when he heard a noise. Kickert walked over to the car and asked Alonzo to pull up alongside the road. He retrieved Alonzo's driver's license and went over to discuss the matter with Marshall. Marshall talked to Vonceil, and she indicated that both cars were insured under the same company. Kickert and Marshall saw no reason to detain Alonzo because they could get all the necessary insurance information from his wife. Alonzo told Kickert that the position of the squad cars made it difficult to back out of the driveway. Alonzo never got out of his car, and the officers made out the police report after he left. The report ...


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