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Pulliam v. City of Chicago

August 12, 2010

RENA PULLIAM, SPECIAL ADMINISTRATOR OF THE ESTATE OF RONALD EVANS, JR., PLAINTIFF,
v.
THE CITY OF CHICAGO; NATALY JANIK; LAWRENCE LOWERY, JR.; JAMES NORWOOD, II; LEON PAYNE; STAN ROGERS; BRODERICK SNELLING; JEROME STARKS; TABITHA TABB; SHELLY TOWNSEND; CHRISTOPHER WARE; AND KENNETH WEBB, JR., DEFENDANTS.



The opinion of the court was delivered by: Virginia M. Kendall United States District Court Judge Northern District of Illinois

Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Rena Pulliam ("Pulliam"), Special Administrator of the Estate of Ronald Evans, Jr., ("Evans") sued Defendants Nataly Janik ("Janik"), Lawrence Lowery, Jr. ("Lowery"), James Norwood II ("Norwood"), Leon Payne ("Payne"), Stan Rogers ("Rogers"), Broderick Snelling ("Snelling"), Jerome Starks ("Starks"), Tabitha Tabb ("Tabb"), Shelly Townsend ("Townsend"), Christopher Ware ("Ware"), and Kenneth Webb, Jr. ("Webb"), police officers working for the City of Chicago ("the City") (collectively "the Officer Defendants") under 42 U.S.C. § 1983 alleging that they deprived Evans of his life without due process of law in violation of the Fourteenth Amendment. Pulliam also sued the City under § 1983 alleging that the deprivation of Evans's life was caused by a custom, policy, or practice of the City (the Officer Defendants and the City are collectively referred to as "the Defendants"). The Defendants move for summary judgment on both counts of Pulliam's Amended Complaint. For the reasons stated below, the Court grants the Defendants' Motion for Summary Judgment.

STATEMENT OF UNCONTESTED FACTS*fn1

This case involves the tragic drowning death of a five-year-old boy. At approximately 8:30 p.m. on July 3, 2008, near the time the sun set that day, Roland Evans fell from the seawall into Lake Michigan. (Pl. 56.1 Resp. ¶¶ 1, 3.) Melissa Wright ("Wright") and her friend Angela Holness ("Holness"), who were standing near La Rabida Children's Hospital across the harbor inlet from Jackson Park in Chicago, IL, saw Evans playing near the water on the last step of a tier of rocks with two older boys. (Pl. 56.1 Resp. ¶ 1.) Wright saw the two older boys climb up the stack of rocks. (Pl. 56.1 Resp. ¶ 2.) She saw Evans start to follow the older boys and then he turned his body as if looking for something he had dropped. (Pl. 56.1 Resp. ¶ 2.) Both Wright and Holness then saw Evans fall into the water from across the harbor. (Pl. 56.1 Resp. ¶¶ 1-2.) Evans, who was not able to swim, immediately went underwater and did not return to the surface again. (Pl. 56.1 Resp. ¶ 2.) Wright called 911 at 8:35 p.m. (Pl. 56.1 Resp. ¶ 3.)

The first Chicago police officers arrived at the scene within five minutes of Wright's 911 call. (Pl. 56.1 Resp. ¶ 3.) Lowery, Webb, Rogers, Webb, Tabb, Townsend, and Janik all responded to the 911 call. (See Pl. 56.1 Resp. ¶ 18.) Payne, Norwood, Starks, and Snelling were off duty at the time and were not in the vicinity of Jackson Park Harbor during the incident. (Pl. 56.1 Resp. ¶ 18.) At the time of the incident, the Officer Defendants were employed by the City and acting within the course and scope of their employment and under the color of law. (Pl. 56.1 Resp. ¶ 1.) When the officers arrived, the falling dusk limited their visibility. (Pl. 56.1 Resp. ¶ 3.) It was windy and the water was "choppy," "rough," "strong," "blustery," and "fierce." (Pl. 56.1 Resp. ¶ 2.) The officers searched the water from the seawall, but they could not find the boy and they did not have any information other than the fact that there was a body in the water. (Pl. 56.1 Resp. ¶ 4.)

It was not easy to enter or exit the water at the place where the Officer Defendants searched for Evans. (Pl. 56.1 Resp. ¶ 7.) On the west side of the harbor from where the Officer Defendants stood, there was a heavy railing at ground level. (Pl. 56.1 Resp. ¶ 7.) Below the railing running west into the harbor was a nearly vertical concrete wall that was approximately six feet high. (Pl. 56.1 Resp. ¶ 7.) At the base of the concrete wall was a narrow ledge, approximately two and a half to three feet wide. (Pl. 56.1 Resp. ¶ 7.) The ledge sloped slightly toward the water. (Pl. 56.1 Resp. ¶ 7.) Below the ledge was a corrugated steel wall approximately four feet high, which descended down into the water. (Pl. 56.1 Resp. ¶ 7.) The steel wall was smooth and had no ladder or handholds. (Pl. 56.1 Resp. ¶ 7.) The seawall in the north of where the Officer Defendants searched was composed of large blocks of stone or concrete arranged in three tiers of approximately four feet stepping down from ground level to lake level. (Pl. 56.1 Resp. ¶ 7.) The drop from the lowest tier of stone or concrete blocks to the water was approximately four feet. (Pl. 56.1 Resp. ¶ 7.) The stone or concrete blocks were smooth and there were no handholds. (Pl. 56.1 Resp. ¶ 7.) About 150 feet from where the Officer Defendants were searching there was a small area of sand that rose above the water level. (Pl. 56.1 Resp. ¶ 7.) Except for the area near the sand, the lake bottom was not visible at the water's edge on the north side of the inlet. (Pl. 56.1 Resp. ¶ 7.)

As the officers gathered, so did a growing crowd of approximately 100 bystanders. (Pl. 56.1 Resp. ¶ 8.) Lowery and Webb spoke with man who said he would go into the water near the sandy area. (Pl. 56.1 Resp. ¶ 8.) Webb saw the man walk about waist-level into the water but then return to the shore. (Pl. 56.1 Resp. ¶ 8.) The man told Webb that he could not swim in the water because of low visibility and a strong undertow. (Pl. 56.1 Resp. ¶ 8.) Webb then found a lifeguard, who came to the scene with his rescue equipment. (Pl. 56.1 Resp. ¶ 8.) The lifeguard declined to enter the water until he could see Evans, telling Webb that the winds, choppy water, and poor visibility made any attempt at rescue dangerous. (Pl. 56.1 Resp. ¶¶ 8, 12.) Because of the conditions at the time, rescue by even a trained lifeguard would have been hazardous. (Pl. 56.1 Resp. ¶ 41.)

Based on the lifeguard's opinion that the conditions were dangerous, Webb began to instruct the people in the crowd not to enter the water. (Pl. 56.1 Resp. ¶ 9.) Webb told the crowd that it needed to clear the way for rescue teams that were on their way. (Pl. 56.1 Resp. ¶ 9.) The Officer Defendants heard individuals state that they could swim, but no one in the crowd took any steps to enter the water. (Pl. 56.1 Resp. ¶ 9.) Although none of the Officer Defendants threatened anyone in the crowd with arrest if they attempted to jump in the water to save Evans, (Pl. 56.1 Resp. ¶ 10.), Lowery told an individual that he "did not need him to go into the water." (Pl. 56.1 Resp. ¶ 14.) Further, at some point, an unidentified African-American male police officer instructed a second swimmer to exit the water. (Pl. 56.1 Resp. ¶¶ 4, 13.) Neither Rogers, Ware, Tabb, Townsend, nor Janik instructed any would-be rescuers to stay out of the water, (Pl. 56.1 Resp. ¶¶ 15. 17.), and neither Tabb, Townsend, nor Janik, all female officers, saw any individuals attempt to enter the water. (Pl. 56.1 Resp. ¶¶ 16-17.)

The waves were getting stronger as the night wore on. (Pl. 56.1 Resp. ¶ 6.) Just before the rescue helicopter and divers arrived, the Beach Manager, who is captain of the lifeguards, arrived at the seawall and was preparing to enter the water. (Pl. 56.1 Resp. ¶ 11.) The Officer Defendants told bystanders to step back from the seawall to clear access for emergency workers, including the helicopter, rescue workers, ambulances, and other rescue personnel. (Pl. 56.1 Resp. ¶ 20.) When the trained divers could not find Evans underwater, officers escorted Wright and Holness to the approximate scene of the incident. (Pl. 56.1 Resp. ¶ 5.) Wright and Holness pointed out the spot on the rocks where Evans fell into the water and the divers finally located Evans's body. (Pl. 56.1 Resp. ¶ 5.) Once he disappeared underwater, Wright and Holness never saw Evans again until the divers pulled his body out of the water, approximately twenty-five minutes after Wright's 911 call. (Pl. 56.1 Resp. ¶ 5.)

The City, a municipal corporation and employer of the Officer Defendants, has no specific policy on how an officer should react to a situation in which a bystander might come to the aid of a drowning person. (Pl. 56.1 Resp. ¶¶ 1, 19.) The City expects officers to use their best judgment under the particular circumstances when deciding whether to allow a bystander to attempt to rescue a drowning person. (Pl. 56.1 Resp. ¶ 20.)

STANDARD OF REVIEW

Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(C). In determining whether a genuine issue of fact exists, the Court must view the evidence and draw all reasonable inferences in favor of the party opposing the motion. Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, the Court will "limit its analysis of the facts on summary judgment to evidence that is properly identified and supported in the parties' [Local Rule 56.1] statement." Bordelon v. Chicago Sch. Reform Bd. of Trustees, 233 F.3d 524, 529 (7th Cir. 2000). Where a proposed statement of fact is supported by the record and not adequately rebutted, the court will accept that statement as true for purposes of summary judgment. An adequate rebuttal requires a citation to specific support in the record; an unsubstantiated denial is not adequate. See Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir.2001); Drake v. Minn. Mining & Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998) (" 'Rule 56 demands something more specific than the bald assertion of the general truth of a particular matter[;] rather it requires affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted.'").

DISCUSSION

I. Pulliam's Response to the Defendants' Rule 56.1 Statement of ...


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