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09/30/96 WILLIAM BIGGERSTAFF AND JANET KLEIN v.

September 30, 1996

WILLIAM BIGGERSTAFF AND JANET KLEIN, PLAINTIFFS-APPELLANTS,
v.
TIMOTHY MORAN AND COUNTY OF COOK, ILLINOIS, A MUNICIPAL CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 93--L--13644. Honorable Kathy M. Flanagan, Judge Presiding.

Released for Publication November 18, 1996.

The Honorable Justice Cerda delivered the opinion of the court: Greiman, and Gallagher, JJ., concur.

The opinion of the court was delivered by: Cerda

JUSTICE CERDA delivered the opinion of the court:

Plaintiffs, William Biggerstaff and Janet Klein, brought this action to recover damages for personal injuries sustained in an automobile accident. The named defendants were Thomas Moran, the driver of the automobile, on a negligence theory, and Cook County, Illinois, on a respondeat superior theory. The trial court granted Cook County's motion for summary judgment on the basis that it was not a proper defendant, then denied plaintiffs' motion for leave to file an amended complaint to name the Cook County State's Attorney as a defendant under the respondeat superior theory after the statute of limitations had expired. The trial court found that the amended complaint did not relate back to the original pleading under section 2-616(d) of the Code of Civil Procedure. 735 ILCS 5/2-616(d) (West 1992). On appeal, plaintiffs assert that (1) Cook Countywas Moran's employer at the time of the accident; and (2) their proposed amended complaint related back to the original pleading.

The main issue in this case is whether Cook County is vicariously liable for the negligent actions of an assistant State's Attorney under the respondeat superior doctrine.

On November 18, 1992, plaintiffs were riding in an automobile that was struck from behind by an automobile driven by defendant Moran, who was an assistant State's Attorney. On November 8, 1993, plaintiffs filed a complaint against Moran and Cook County, who were properly served process, and discovery proceeded through 1994. On January 12, 1995, Cook County filed a motion for summary judgment, asserting that it was not a proper party because Moran was employed by the Cook County State's Attorney, not by Cook County. In plaintiffs' response to the summary judgment motion, they claimed that Cook County was a proper party, but also argued that they should be granted leave to file an amended complaint naming the Cook County State's Attorney as an additional defendant.

After hearing arguments, the trial court granted Cook County's motion for summary judgment and denied plaintiffs leave to amend their complaint on the basis that the relation-back doctrine did not apply. In making its decision, the trial court relied on Moy v. County of Cook, 159 Ill. 2d 519, 640 N.E.2d 926, 203 Ill. Dec. 776 (1994).

Plaintiffs' first assertion on appeal is that summary judgment was improperly granted to Cook County and that Moy, 159 Ill. 2d 519, 203 Ill. Dec. 776, 640 N.E.2d 926, is not applicable. Plaintiffs argue that Moy should be limited to the Cook County Sheriff's Office and not be extended to the Cook County State's Attorney's Office because the relationships between assistant State's Attorneys, the State's Attorney, and Cook County are inseparable.

Plaintiffs stress that Moran's employment situation was so unique that Cook County engaged in discovery without asserting that Moy controlled this action. Cook County answered interrogatories and produced documents pertaining to the State's Attorney's general employment practices, Moran's usual employment activities, and his activities on the day of the accident. Plaintiffs further contend that Cook County would not have been able to answer discovery if it were not, in fact, Moran's employer.

We disagree. The trial court's reliance on Moy was proper. Moy, 159 Ill. 2d at 521-26, involved the death of an inmate while he was confined at the Cook County jail, which is under the direction of the Cook County Sheriff. The Illinois Supreme Court ruled that Cook County was not vicariously liable for the Cook County Sheriff's alleged negligence under the doctrine of respondeat superior. Moy, 159 Ill. 2d at 532.

Page 199

Respondeat superior did not apply because the Cook County Sheriff is a county officer, not a county employee. Moy, 159 Ill. 2d at 532.

Moy held the Sheriff's Office was created by article VII of the Illinois Constitution (Ill. Const. 1970, art. VII, Sec. 4(c)); (2) the sheriff is required to take an oath prescribed by the constitution before starting the duties of his office (55 ILCS 5/3-6004 (West 1992); (3) the sheriff's duties do not arise out of a contract or depend for its duration upon the terms of a contract; (4) the sheriff has "those duties, powers and functions provided by law and those provided by county ordinance *** [and] the duties, powers or functions derived from common law or historical precedent unless altered by law or county ordinance." (Ill. Const. 1970, art. VII, Sec. 4(d)); (5) the sheriff is elected for four-year terms (Ill. Const. 1970, art. VII, Sec. 4(c)); and (6) the sheriff's duties are continuous, without regard to the particular person who holds ...


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