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Fabiano v. City of Palos Hills

November 25, 2002


Appeal from the Circuit Court of Cook County. No. 95 L 6149 The Honorable Randye A. Kogan, Judge Presiding.

The opinion of the court was delivered by: Justice Cohen


Plaintiffs Sandra and Frank Fabiano brought suit against defendants, Palos Hills Police Chief Daniel L. Hurley, Palos Hills police officers Jack Roche and Steve Cardamone, and the City of Palos Hills (the City) raising an Illinois common law claim for malicious prosecution of Sandra Fabiano and a section 1983 civil rights claim (42 U.S.C. §1983 (1994)) based on the malicious prosecution of Sandra Fabiano. Frank Fabiano sought damages for loss of consortium. The trial court granted summary judgment on all counts of the complaint in favor of all defendants.

The Fabianos appeal both from the grant of summary judgment of their claims and from the trial court's denial without prejudice of the Fabianos' motion to compel discovery of defendants' personnel files. For the following reasons, we reverse the order granting summary judgment in favor of defendants, affirm the order denying the Fabianos' discovery request, and remand to allow this matter to proceed to trial.


In May 1987, Sandra Fabiano owned and operated Mother Goose Day Care Center (Mother Goose) and Kids Stop Day Care Center (Kids Stop). In May 1987, J.M., a three-year-old who attended Mother Goose, made a statement to her mother and later to an emergency room physician allegedly indicating that she had been sexually assaulted by Sandra Fabiano. An investigation ensued during which members of the Palos Hills police department, the Department of Children and Family Services, and the Cook County State's Attorney's Office's Mass Molestation Task Force (the Task Force) interviewed more than 100 children attending both Mother Goose and Kids Stop over the course of 17 days. A number of children made statements to the interviewers accusing Sandra Fabiano and another teacher of committing a variety of acts of sexual abuse. Among the children alleging abuse were: J.S., a 3 ½-year-old child attending Mother Goose; J.N., a 3 year-old child at Mother Goose; and B.K. a 4-year-old child attending Kids Stop. On July 31, 1987, Sandra Fabiano was indicted for the aggravated criminal sexual assaults of J.M., J.S., J.N., and B.K.

Sandra Fabiano was first tried in criminal court before a jury on the charge of assaulting J.M. The jury returned a verdict of not guilty. The State's Attorney then nol-prossed the remaining indictments. The Fabianos subsequently filed a civil complaint charging Hurley, Roche, and Cardamone with malicious prosecution under Illinois common law and with violating Sandra Fabiano's civil rights under section 1983. The City was joined as a defendant under section 9-102 of the Illinois Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/9-102 (West 1994)).

Defendants moved for summary judgment arguing that: (1) there was probable cause to commence the prosecution of Sandra Fabiano; (2) defendants did not commence the prosecution of Sandra Fabiano; (3) defendants did not act with malice; and (4) defendants are immune from liability. Following a hearing, the trial court granted summary judgment in favor of defendants, finding probable cause existed, malice was not established, and defendants did not personally commence the criminal proceedings against Sandra Fabiano. The trial court did not address defendants' claims of immunity. In light of the voluminous (29 volume) record in this case, a comprehensive recitation of the evidence and argument presented in support of and in opposition to the motion for summary judgment would be both unduly burdensome and, more importantly, unnecessary in this opinion. Instead, only relevant evidence and argument are discussed as necessary throughout our analysis.


Summary judgment is proper if the pleadings, depositions and admissions on file, along with any affidavits, show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2000). The burden of proof and the initial burden of production in a motion for summary judgment lie with the movant. Pecora v. County of Cook, 323 Ill. App. 3d 917, 933 (2001). It is well established that in determining whether a genuine issue of material fact exists, a court must construe the pleadings, depositions, admissions and affidavits strictly against the movant and liberally in favor of the opponent. Watkins v. Schmitt, 172 Ill. 2d 193, 203 (1996). Because the propriety of an order granting summary judgment is a question of law, our review of such an order is de novo. Pagano v. Occidental Chemical Corp., 257 Ill. App. 3d 905, 909 (1994).

A defendant who moves for summary judgment may meet the initial burden of production either: (1) by affirmatively showing that some element of the cause of action must be resolved in defendant's favor; or (2) by demonstrating that plaintiff cannot produce evidence necessary to support the plaintiff's cause of action. Pecora, 323 Ill. App. 3d at 933-34. In either case, the defendant meets its burden by producing evidence that would clearly entitle the defendant to judgment as a matter of law. Pecora, 323 Ill. App. 3d at 934, citing Malone v. American Cyanamid Co., 271 Ill. App. 3d 843, 846 (1995), and Williams v. Covenant Medical Center, 316 Ill. App. 3d 682, 690 (2000). "'Only if [defendants satisfy their] initial burden of production does the burden shift to [the Fabianos] to present some factual basis that would arguably entitle [them] to a favorable judgment.'" Pecora, 323 Ill. App. 3d at 933, quoting Rice v. AAA Aerostar, Inc., 294 Ill. App. 3d 801, 805 (1998).

In order to prevail on a claim of malicious prosecution under Illinois law, the plaintiff must establish: (1) the commencement or continuance of an original criminal or civil judicial proceeding by the defendant; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for such proceeding; (4) malice; and (5) damages. Swick v. Liautaud, 169 Ill. 2d 504, 512 (1996). All of these elements must be established; the failure to establish even one element will preclude recovery for malicious prosecution. Washington v. Summerville, 127 F.3d 552, 557 (7th Cir. 1997). A plaintiff alleging malicious prosecution under section 1983 must establish: (1) all of the elements of a state law cause of action; (2) a state actor committed the prosecution; and (3) the plaintiff was deprived of a constitutionally protected liberty interest. Cervantes v. Jones, 188 F.3d 805, 809 (7th Cir. 1999). The record reflects that the trial court made express findings as to three of the five elements of the Fabianos' malicious prosecution claim--commencement, probable cause, and malice. No issue was raised for purposes of summary judgment as to the elements of favorable termination of the underlying proceedings or damages. The trial court did not address defendants' immunity arguments.

It is clear that this court may affirm a grant of summary judgment on any basis in the record, irrespective of whether the trial court relied on that ground or whether its reasoning was correct. Engelland v. Clean Harbors Environmental Services, Inc., 319 Ill. App. 3d 1059, 1062 (2001). However, this court's exhaustive review of the record leads to the inescapable conclusion that the trial court erred in granting summary judgment in this complex and fact-intensive case.

I. Probable Cause

The trial court concluded that summary judgment was proper based on the existence of probable cause. Probable cause is a state of facts that would lead a person of ordinary care and prudence to believe or to entertain an honest and sound suspicion that the accused committed the offense charged. Adams v. Sussman & Hertzberg, Ltd., 292 Ill. App. 3d 30, 43 (1997). The existence of probable cause is a mixed question of law and fact. Adams, 292 Ill. App. 3d at 43. Whether the circumstances alleged to show probable cause are true is a question of fact, but, if true, whether those circumstances amount to probable cause is a question of law to be decided by the court. Adams, 292 Ill. App. 3d at 43.

In order to be entitled to summary judgment based upon the existence of probable cause, defendants had the initial burden of producing evidence that would have clearly entitled them to a finding that probable cause existed as a matter of law. Pecora, 323 Ill. App. 3d at 933-34. In addressing the existence of probable cause, defendants rely on: (1) allegations of sexual abuse made by preschool-aged children; and (2) "medical examinations which revealed symptoms consistent with sexual abuse."

Where hearsay statements are urged to establish probable cause, such statements must be shown to be reliable. People v. Tisler, 103 Ill. 2d 226, 237-38 (1984); Kincaid v. Ames Department Stores, Inc., 283 Ill. App. 3d 555, 565 (1996). A determination as to the reliability of a statement includes consideration of the veracity and basis of knowledge of the person making the statement. People v. James, 118 Ill. 2d 214, 223 (1987). Independent corroboration of specific details contained in the statement also serves as an indicia of the reliability of the statement. James, 118 Ill. 2d at 225; see also People v. Hart, 214 Ill. App. 3d 512, 520-21 (1991).

Whether a statement bears sufficient indicia of reliability to support a finding of probable cause in a malicious prosecution case is a question of fact to be resolved by the jury. Kincaid, 283 Ill. App. 3d at 565. "Thus, summary judgment in this case would be appropriate only if the undisputed facts allow for only one conclusion ***." Jackson Jordan, Inc. v. Leydig, Voit & Mayer, 158 Ill. 2d 240, 250 (1994). In considering a motion for summary judgment, the court must consider the evidence in the light most favorable to the non-movant. Harrison v. Hardin County Community Unit School District No. 1, 197 Ill. 2d 466, 470 (2001).

Defendants, citing this court's decision in People v. Hart, 214 Ill. App. 3d 512 (1991), seem to suggest that a determination as to the reliability of the children's statements is somehow unnecessary. According to defendants, Hart stands for the proposition that "where a four-year-old sexual assault victim was deemed incompetent to testify, testimony that the victim had complained of being sexually assaulted to her mother and to a police officer, together with redness to the [child's] vaginal area was *** sufficient to sustain a criminal conviction, let alone constitute probable cause." Defendants, however, cannot circumvent their evidentiary burden to establish the reliability of the children's statements by referring to "evidence amassed by another attorney in another case involving different parties" merely because that case and this involve children of similar ages. See Hastings v. Gulledge, 272 Ill. App. 3d 861, 867 (1995). The determination as to the reliability of a child's out-of-court statements regarding allegations of sexual abuse "must be made on a case-by-case basis." People v. March, 250 Ill. App. 3d 1062, 1073 (1993).

Furthermore, defendants grossly misrepresent the evidence that this court found sufficient to sustain the conviction in Hart. *fn1 In Hart, the trial court found the four-year-old victim incompetent to testify because, although the victim knew the difference between the truth and a lie, she did not appreciate the meaning of an oath. Hart, 214 Ill. App. 3d at 517. The trial court, however, permitted testimony regarding the victim's statements to her mother and to a police officer "pursuant to the excited utterance *** exception to the hearsay rule and section 115-10 of the Code of Criminal Procedure." 214 Ill. App. 3d at 517. The victim's mother testified that, after the victim's sister reported that the defendant had been "messing with" the victim, the victim told her mother that the defendant had pulled her pants down. 214 Ill. App. 3d at 516. Officer Mertz, who responded to a call from the victim's mother, testified that the victim (interviewed outside the presence of her mother) told Officer Mertz that the defendant had lured her into his apartment with a piece of "turtle" candy and then told her to lie on the bed. The victim told Officer Mertz that the defendant was wearing grey underwear, that he " 'put his thing in her booty' " and that " 'it hurt'." 214 Ill. App. 3d at 516.

In rejecting the defendant's challenge to the sufficiency of the evidence, the court in Hart did not rely solely on the victim's statements and evidence that medical providers noted redness to the victim's vaginal area. In addition, the court specifically noted evidence that: (1) the defendant was in fact wearing grey underwear when he was arrested several hours after the victim claimed the assault had occurred; (2) "turtle" candy was in fact found at the defendant's apartment; (3) an emergency room physician who examined the victim testified that the victim's hymen was not intact, that he observed a high degree of redness to the genital area, and that the extreme redness was consistent with abuse; and (4) semen and blood were found on the bedsheets in the location on the bed where the victim had indicated that the assault had occurred. Hart, 214 Ill. App. 3d at 520-21. Significantly, in affirming the defendant's conviction, this court noted the trial judge's opportunity as trier of fact to "consider all the evidence that tended to establish [the] reliability" of the victim's statements. Hart 214 Ill. App. 3d at 520-21.

Defendants also cite to Easton v. City of Boulder, 776 F.2d 1441, 1449 (10th Cir. 1985). In Easton, the section 1983 plaintiff challenged the validity of a warrant by suggesting that the testimony of a three-year-old and a five-year-old was "somehow suspect to begin with" in light of their age. Easton, 776 F.2d at 1449. The court refused to discount the children's testimony based solely on their age. Easton, 776 F.2d at 1449. Defendants in the instant case have conveniently failed to acknowledge that, in finding that the children's statements supported a finding of probable cause, the Tenth Circuit specifically found that the five-year-old's statement had "corroborated all the facts given by [the three-year-old] *** with respect to the assault [the five-year-old] witnessed." Easton, 776 F.2d at 1443. The Easton court further noted that details in both children's statements relative to the plaintiff's residence and the site of the assault were independently corroborated by police investigation. Easton, 776 F.2d at 1450. Accordingly, the children's statements in the present case must bear sufficient indicia of reliability-such as independent corroboration-to support a probable cause determination. The trial court was obligated to determine the reliability of those statements prior to ruling on the motion for summary judgment. Kincaid, 283 Ill. App. 3d at 565.

Defendants presented affidavits from Roche, Cardamone, Assistant State's Attorney (ASA) Mary Ellen Cagney and ASA Diane Romza in which each affiant avers that he or she found certain alleged victims to be competent to testify. The language in Roche's affidavit with respect to J.M. is representative:

"During the course of the interview, affiant found that J.M. possessed the ability to receive correct impressions from her senses, to recollect those impressions, to understand questions and express answers, and to appreciate the moral duty to tell the truth."

Roche's affidavit employs identical language with respect to J.S. Cardamone's affidavit employs substantially similar language with respect to B.K.; Romza's affidavit is substantially similar with respect to B.K., J.S., J.N., and J.C.; and Cagney's affidavit uses substantially similar language with respect to J.M., J.S., J.N., and J.C.

The affiants' beliefs that these children "appreciate[d] the moral duty to tell the truth," however, are not synonymous with a belief that these children were actually telling the truth. Furthermore, the subjective beliefs of each of these affiants regarding the veracity or cognitive capacity of each of these children is immaterial. The test for probable cause is an objective one. Cervantes v. Jones, 188 F.3d 805, 811 (7th Cir. 1999). None of the affidavits submitted by defendants in support of their motion for summary judgment provide specific facts known to the police prior to obtaining the indictments which would support an objective determination as to either the veracity of each child or the reliability of each child's statement.

Defendants note the number of accusations made by different children as support for a finding of probable cause. Although a number of children made allegations of similar instances of abuse, defendants presented no evidence that specific details in any given child's statement were corroborated by any other child's statement. Further, although defendants acknowledge that more than 100 children were interviewed over the course of 17 days, the record does not indicate whether the children spoke with one another during that period or whether defendants made any effort to determine whether or to what extent each child's statement was influenced by discussions with other children or adults. Significantly, with the exception of J.M., it appears that no other child complained of sexual abuse prior to questioning by defendants and the Task Force.

Finally, defendants place much emphasis on "medical examinations which revealed symptoms consistent with sexual abuse." Significantly, the sole medical evidence of which defendants claimed to be aware prior to obtaining the indictments-Dr. Mueller's emergency report with respect to J.M.-does not reflect a diagnosis by Dr. Mueller that the conditions observed during her examination of J.M. were either consistent with or indicative of abuse. Defendants admitted in their answer to the complaint that they did not speak with Dr. Mueller or any other doctor prior to securing the indictment. Defendants presented no evidence that they received information regarding interpretation of the medical records from any other source.

Defendants also rely on averments made by both Cagney and Romza that, "based upon [their] experience in the criminal prosecution of child sex abusers," Cagney and Romza concluded that the conditions observed in the medical examinations of the alleged victims were consistent with the children's allegations of sexual abuse. Supreme Court Rule 191(a) mandates that an affidavit filed in support of or in opposition to a summary judgment motion "shall not consist of conclusions but of facts admissible in evidence." 145 Ill. 2d R. 191(a). "According to Supreme Court Rule 191(a), a court must disregard conclusions in affidavits when adjudicating a summary judgment motion." Estate of Blakely v. Federal Kemper Life Assurance Co., 267 Ill. App. 3d 100, 105 (1994). Pursuant to the plain language of the rule and the applicable case law, this court must disregard the conclusions of Cagney and Romza that the medical findings were consistent with the alleged abuse.

Furthermore, when addressing probable cause, the defendants' state of mind is at issue, not the actual facts of the case. Burghardt v. Remivac, 207 Ill. App. 3d 402, 405-06 (1991). Significantly, Romza and Cagney do not indicate in their affidavits that they communicated their medical conclusions to any of the defendants. The affidavits of Roche, Cardamone and Hurley likewise bear no indication that Romza and Cagney ever advised them as to the significance of the medical findings.

Even assuming arguendo that Cagney and Romza told defendants that the medical examinations were consistent with the children's allegations of abuse, such statements must also bear sufficient indicia of reliability to support a finding of probable cause (Tisler, 103 Ill. 2d at 237-38; Kincaid, 283 Ill. App. 3d at 565). Defendants presented no evidence with respect to either the type or extent of Romza and Cagney's experience in the investigation or prosecution of sexual abuse cases. No evidence was presented as to what facts Romza and Cagney learned in the course of their experience that would enable them to determine the significance of medical findings. Likewise, neither the affidavits of Romza and Cagney nor ...

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