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David K. Prough, Independent Administrator of the v. Madison County

February 25, 2013

DAVID K. PROUGH, INDEPENDENT ADMINISTRATOR OF THE ESTATE OF DENNIS K. PROUGH, DECEASED, PLAINTIFF-APPELLANT,
v.
MADISON COUNTY, ILLINOIS, MADISON COUNTY SHERIFF'S DEPARTMENT, MADISON COUNTY SHERIFF ROBERT HERTZ, LIEUTENANT DAVID JOSEPH, AND DISPATCHER TERRENCE CHARLESTON,
DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of ) Madison County. No. 10-L-697 Honorable Dennis R. Ruth, Judge, presiding.

The opinion of the court was delivered by: Justice Wexstten

NOTICE Decision filed 02/25/13.

The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

JUSTICE WEXSTTEN delivered the judgment of the court, with opinion. Justices Welch and Goldenhersh concurred in the judgment and opinion.

OPINION

¶ 1 The plaintiff, David K. Prough, as the independent administrator of the estate of Dennis K. Prough, deceased, filed suit against the defendants, Madison County, Illinois, Madison County sheriff's department, Madison County Sheriff Robert Hertz, Lieutenant David Joseph, and Dispatcher Terrence Charleston, seeking damages for the death of the decedent, who was killed by his son, Mark Prough, after Mark was released from custody by the Madison County sheriff's department. The circuit court dismissed the plaintiff's first amended complaint pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-615, 2-619 (West 2010)).

¶ 2 On appeal, the plaintiff argues that the circuit court improperly dismissed his action because the defendants owed and violated a duty to the plaintiff's decedent, the defendants were not immune from liability pursuant to the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act) (745 ILCS 10/1-101 to 10-101 (West 2010)), and the defendant Madison County was liable for the conduct of the defendants Madison County sheriff's department, Sheriff Hertz, Lieutenant Joseph, and Dispatcher Charleston, pursuant to the statutory indemnification provisions of the Tort Immunity Act (745 ILCS 10/9-102 (West 2010)). For the following reasons, we affirm the circuit court's dismissal.

¶ 3 BACKGROUND

¶ 4 In his first amended complaint filed on December 22, 2010, the plaintiff alleged that on May 18, 2009, in the Jersey County circuit court, Brenda Lorton, the decedent's daughter, petitioned for an order of protection against Mark and petitioned the court to order his involuntary detention for the purpose of having him undergo a psychological evaluation pursuant to the Mental Health and Developmental Disabilities Code (405 ILCS 5/1-100 to 6-107 (West 2010)). On the same date, the circuit court of Jersey County entered the emergency order of protection and entered two fill-in-the-blank "order[s] for detention, examination, diagnostic evaluation" (see 405 ILCS 5/3-704(a) (West 2008)). In one order for detention, the circuit court ordered Mark, who was "asserted to be a person subject to involuntary admission," to submit to an examination "anytime" on May 18, 2009, at Memorial Hospital, Springfield, Illinois, and ordered the clerk to "issue a writ directing a peace officer to take custody of Mark *** and to take him *** to Memorial Hosp[ital] on May 18, 2009, for detention and examination." In the second order for detention, the circuit court ordered Mark to submit to examination at "anytime" on May 18, 2009, at Maple Summit Road, Jerseyville, Illinois and ordered the clerk to "issue a writ directing a peace officer to take custody of Mark *** and to take him *** to Jersey Comm[unity] Hospital on May 18, 2009, for detention and examination."

¶ 5 Accordingly, on the same date, the Jersey County circuit court issued a "Writ for Detention, Examination, and Appearance Before Court," also referred to in the record as a mental health warrant, directing "the peace officer" to "take custody of Mark" and take him to Memorial Hospital, Springfield, Illinois, or Jersey Community Hospital, Jerseyville, Illinois, on May 18, 2009, for detention and examination.

¶ 6 Law enforcement officials in Jersey County were unable to execute the orders or serve the writ because Mark fled to Ozark, Missouri, sometime after the orders and warrant were issued. On July 14, 2009, Ashley Prough, Mark's daughter, spotted Mark in Godfrey, Madison County, and she called the Madison County sheriff's department, stating that Mark was walking on Godfrey Road and had multiple warrants for his arrest. The Madison County sheriff's department dispatcher advised Ashley that there were no active warrants in the law enforcement agencies' data system to require Mark's arrest. After Ashley notified the dispatcher that Mark was wanted in Jersey County, Illinois, and Miller County, Missouri, for death and violent crimes investigations, Madison County sheriff's deputy Robert Weller traveled to Mark's location and confronted him for questioning at 8:30 p.m. Upon questioning by Deputy Weller, Mark provided Deputy Weller with a false name and birth date. Deputy Weller arrested Mark for obstructing a peace officer and transported him to the Madison County jail in Edwardsville, Illinois. In his report, Deputy Weller stated that a records check of Mark's history revealed multiple orders of protection but no active warrants. Mark was booked into the Madison County jail at 10:31 p.m.

¶ 7 Lieutenant Joseph of the Madison County sheriff's department contacted the City of Jerseyville police department and advised it that Mark had been detained and arrested and was in the custody of the Madison County sheriff's department. The City of Jerseyville police department advised Lieutenant Joseph that the Jersey County circuit court had issued the orders for Mark's detention and examination by a mental health facility, along with the mental health warrant, and faxed copies of the orders and warrant to the Madison County sheriff's department. Lieutenant Joseph advised the City of Jerseyville police department that the Madison County jail would not hold Mark based on the Jersey County orders and mental health warrant.

¶ 8 The City of Jerseyville police department advised the Madison County sheriff's department dispatcher, Deborah Thompson, that in addition to the detention orders, the City of Jerseyville police department sought to question Mark regarding a death investigation in Jersey County and requested that the Madison County sheriff's department not release Mark until a representative of the City of Jerseyville police department or the Jersey County sheriff could take Mark into custody. Thompson advised the City of Jerseyville police department dispatcher that the Madison County sheriff's department would not release Mark.

¶ 9 However, on July 15, 2009, the Madison County sheriff's department released Mark on a recognizance bond of $5,000. Dispatcher Charleston advised the City of Jerseyville police department that the Madison County sheriff's department would not comply with the orders for detention or the mental health warrant and would not consider said orders a hold on Mark. Dispatcher Charleston advised the City of Jerseyville police department that Mark had been released earlier that morning.

¶ 10 On July 20, 2009, Mark traveled to the home of his father, the decedent, and shot him in the chest, causing his death. Mark thereafter started a fire in the decedent's home. On July 29, 2009, Mark was apprehended and charged with the decedent's murder.

¶ 11 On June 30, 2010, the plaintiff filed his original three-count complaint against the defendants alleging liability pursuant to the Illinois Wrongful Death Act (740 ILCS 180/0.1 to 2.2 (West 2010)), the Illinois Survival Act (755 ILCS 5/27-6 (West 2010)), and, as to the defendant Madison County, Illinois, the statutory indemnification provisions of the Tort Immunity Act (745 ILCS 10/9-102 (West 2010)). On December 22, 2010, the plaintiff filed his first amended complaint restating the causes of action against the defendants, seeking to recover damages sustained as a result of the decedent's death. In this first amended complaint, the plaintiff alleged that the defendants' knowing, deliberate, and intentional failure to serve, execute, and return the orders for detention and mental health warrant and their knowing, deliberate, and intentional refusal to detain or hold Mark pursuant to the orders for detention and mental health warrant constituted a reckless disregard for the decedent's safety. The plaintiff alleged that as a result of the defendants' acts and omissions, the decedent endured suffering before his death and serious injuries resulting in his death.

ΒΆ 12 On February 7, 2011, pursuant to sections 2-615 and 2-619 of the Code (735 ILCS 5/2-615, 2-619 (West 2010)), the defendants filed a motion to dismiss the plaintiff's first amended complaint. In their motion, the defendants argued, inter alia, that the defendants did not owe a duty to the decedent, that the defendants were immune from liability pursuant to the Tort ...


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