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Brown v. King

November 27, 2001

DESHAUN BROWN, PLAINTIFF-APPELLANT,
v.
FRED KING, DEFENDANT
(MICHAEL SHEAHAN, SHERIFF OF COOK COUNTY, DEFENDANT-APPELLEE).



The opinion of the court was delivered by: Justice McBRIDE

UNPUBLISHED

Appeal from the Circuit Court of Cook County Honorable John G. Laurie, Judge Presiding.

Following an automobile accident, plaintiff DeShaun Brown was shot in the leg by defendant Fred King, an off-duty deputy Cook County sheriff who had stopped at the scene of the accident. Plaintiff subsequently filed an action against King and King's employer, defendant Michael Sheahan, the Cook County sheriff (the Sheriff). The Sheriff's motion to dismiss the claims against him pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1998)) was granted by the trial court. Plaintiff now appeals that ruling. Defendant King is not a party to this appeal.

Plaintiff's amended complaint alleged the following facts. On May 15, 1998, plaintiff was driving southbound on Interstate 94 (I-94), when he was involved in a motor vehicle collision with an automobile driven by Danny Johnson near 29th Street. Cook County deputy sheriff Fred King questioned plaintiff on the shoulder of the highway. According to the amended complaint, although King was off duty, he was investigating the accident pursuant to the authority vested in him by the Sheriff, who was his employer. King flashed his official badge, obtained plaintiff's driver's license, and asked plaintiff to produce proof of insurance. Plaintiff opened the passenger side door of his automobile and reached into the car to retrieve his proof of insurance from the glove compartment. King drew his gun. Plaintiff, frightened by the sight of the gun, then began to run away. King fired his gun, striking plaintiff in the leg.

According to the amended complaint, King later pled guilty in criminal court to aggravated battery in connection with the shooting. The complaint also alleges that, at all relevant times, King was a law enforcement officer employed by the Sheriff and was acting within the scope of his employment during the investigation of the automobile collision.

Count I of the amended complaint was directed only against King and alleged that King used excessive force. Counts II and III were directed against both King and the Sheriff. Count II alleged wilful and wanton misconduct. Count III alleged negligence. The Sheriff's liability was predicated on the doctrine of respondeat superior.

The Sheriff moved to dismiss the counts against him pursuant to section 2-619 of the Code of Civil Procedure. Without specifying its reasoning *fn1 , the trial court dismissed counts II and III as to the Sheriff with prejudice. Plaintiff now appeals.

In reviewing the dismissal of an action pursuant to a section 2-619 motion, our review is de novo. See McGee v. State Farm Fire & Casualty Co., 315 Ill. App. 3d 673, 680, 734 N.E.2d 144 (2000). Where a cause of action has been dismissed pursuant to a section 2-619 motion, the questions on appeal are whether a genuine issue of material fact exists and whether the moving party is entitled to a judgment as a matter of law. See McGee, 315 Ill. App. 3d at 680.

There is no dispute that under the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees committed within the scope of employment. See, e.g., Sunseri v. Puccia, 97 Ill. App. 3d 488, 493, 422 N.E.2d 925 (1981). Thus, as a general rule, a municipality may be held liable for the tortious acts of police officers acting in the scope of their employment. See Wolf v. Liberis, 153 Ill. App. 3d 488, 492, 505 N.E.2d 1202 (1987).

For the purposes of a section 2-619 motion to dismiss, all well-pleaded facts in a complaint are admitted as true. See McGee, 315 Ill. App. 3d at 680. According to the Sheriff, plaintiff has pleaded facts in the amended complaint which mandate, as a matter of law, the dismissal with prejudice of the Sheriff. Specifically, the Sheriff relies on the fact that King was off duty at the time of the incident, that King shot plaintiff while plaintiff was trying to run away, that King pleaded guilty to the offense of aggravated battery in criminal court in connection with the incident, and that King intentionally or recklessly shot plaintiff. According to the Sheriff, he was properly dismissed with prejudice because he cannot be held liable, pursuant to respondeat superior, for the intentional, criminal acts of his employees.

We first address the Sheriff's contention that he cannot be held liable for the intentional criminal acts of his deputy. As noted above, King pled guilty to the charge of aggravated battery in connection with the shooting of plaintiff. The claim against the Sheriff, however, was based on the doctrine of respondeat superior. "It is well settled that, under the doctrine of respondeat superior, an employer may be liable for the negligent, wilful, malicious, or even criminal acts of its employees when such acts are committed in the course of employment and in furtherance of the business of the employer." Mitchell v. Norman James Construction Co., 291 Ill. App. 3d 927, 932, 684 N.E.2d 872 (1997). Thus, the fact that King pled guilty to the criminal offense of aggravated battery, without more, does not require the dismissal of the claims against the Sheriff as a matter of law.

Both counts II and III rely for liability on plaintiff's assertion that King was acting within the scope of his employment at the time of the incident. The Sheriff maintains that the counts against him were properly dismissed where King was not, as a matter of law, acting within the scope of his employment when the incident occurred. The Sheriff first argues that King was acting outside the scope of his employment because he was off duty at the time of the incident. Case law, however, supports plaintiff's contention that an off-duty officer may often be found to be acting within the scope of his employment. See Gaffney v. City of Chicago, 302 Ill. App. 3d 41, 52-54, 706 N.E.2d 914 (1998) (discussing respondeat superior liability for actions of off-duty officers); Wolf, 153 Ill. App. 3d at 492-93 (holding that a municipality is liable for those acts of an off-duty policeman that fall within the scope of his employment, and specifically for those acts he performs to enforce the law and preserve the peace); Bauer v. City of Chicago, 137 Ill. App. 3d 228, 232-33, 484 N.E.2d 422 (1985) (noting that "it is beyond dispute that the city can be held liable for the actions of an off-duty police officer"); Banks v. City of Chicago, 11 Ill. App. 3d 543, 550, 297 N.E.2d 343 (1973) (holding that since an officer is always obligated to attempt to prevent the commission of a crime in his presence, any action taken by him toward that end, even in his official off-duty hours, falls within the performance of his duties as a police officer). The fact that King, a law enforcement officer, was off duty at the time of the incident does not establish, as a matter of law, that he was acting outside the scope of his employment.

The Sheriff argues, without citation to authority, that King cannot be said to have taken action to further the interests of the Sheriff as his employer where he later pled guilty to aggravated battery in connection with the incident. The Sheriff also discounts the fact that King allegedly flashed his badge. See Wolf, 153 Ill. App. 3d at 493-94 (noting that an agent cannot confer power on himself and his agency or authority cannot be established by showing what he said or did). The amended complaint states that King acted within the scope of his employment, stopped to investigate the accident, flashed his badge, and requested plaintiff's license and registration. For the purposes of a section 2-619 motion to dismiss, these allegations are admitted as true. McGee, 315 Ill. App. 3d at 680. Further, as noted previously, under the doctrine of respondeat superior, an employer may be held liable for even the criminal acts of its employees where such acts are committed in the course of employment and in furtherance of the business of the employer. Mitchell, 291 Ill. App. 3d at 932. The Sheriff's argument does not persuade us that, as a matter of law, it must be found that King was not acting in his official capacity at the time of the incident.

Count II of the amended complaint alleged wilful and wanton misconduct on the part of King while executing or enforcing the law. The count alleged that King was acting within the scope of his employment during the investigation of the automobile accident involving plaintiff. The count further stated that pursuant to section 9-102 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act or Act) (745 ILCS 10/9-102 (West 1998)) ...


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