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White v. City of Chicago

United States District Court, N.D. Illinois, Eastern Division

August 15, 2016

WILLIE WHITE, Plaintiff,
v.
CITY OF CHICAGO, NICHOLAS, DUCKHORN, JOSEPH MIRUS, JR., T.P. FLAHAVEN, KL SPURLIN, NL DEJESUS, R. LAZZARA, JL GAYTAN, A JESSANI, JL FORSELL, JJ PAWLAK, MA LAPADULA, IL SHAVERS, JR., C BARRY, and JOHN DOE, Defendants.

          MEMORANDUM OPINION AND ORDER

          Honorable Thomas M. Durkin United States District Judge

         Plaintiff Willie White has sued the City of Chicago (“City”) and thirteen Chicago Police Department (“CPD”) officers or employees (“the Individual Defendants”), alleging a constitutional claim for excessive force under 42 U.S.C. § 1983 (Count I), as well as state law claims for battery (Count II) and negligence (Count III). The City and the Individual Defendants have moved to partially dismiss White’s second amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, White’s punitive damages claim against the City is dismissed with prejudice, and his § 1983 claim against the City is dismissed without prejudice. In all other respects, Defendants’ arguments for dismissal are rejected.

         STANDARD OF REVIEW

         A Rule 12(b)(6) motion challenges the sufficiency of the complaint. See, e.g., Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). A complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), sufficient to provide defendant with “fair notice” of the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). This standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While “detailed factual allegations” are not required, “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. The complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “‘A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’” Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). In applying this standard, the Court accepts all well-pleaded facts as true and draws all reasonable inferences in favor of the non-moving party. Mann, 707 F.3d at 877.

         BACKGROUND

         A. The November 4, 2013 Incident

         On November 4, 2013, White was arrested and taken to the Homan Square Police Station, where he was held in custody while waiting to be transported to the 11th District Police Station. R. 37 at 2 (¶ 8). He was under the supervision of two CPD officers at the time-Officer Matthew Borkowski and an “unknown” police officer.

         The two officers retrieved White from a holding cell and placed him in handcuffs with his hands behind his back. Id. at 2-3 (¶ 12). Borkowski walked out of the room a few minutes ahead of White and the unknown police officer. Id. at 3 (¶ 13). As the unknown police officer escorted White down the hall, he said something about not liking drug dealers. Id. (¶ 14). White responded “fuck you, I’m not a drug dealer, ” and the unknown police officer responded, “oh yeah, fuck me (or something close to that).” R. 1 at 4.[1] The unknown police officer then pushed White, causing him to fall down twelve to fifteen concrete or steel stairs with his hands still handcuffed behind his back. R. 37 (¶¶ 15-18). White heard the unknown police officer say “shit” and radio for Borkowski “to get back in here.” Id. (¶ 19). Borkowski returned to the area, and the two officers ordered White to stand up. White was unable to stand on his own, so the two officers lifted him up and walked him to a car. Borkowski and the other officer then transported White to the 11th District Police Station. White reported the incident to detention aides at the 11th District Police Station, who arranged for him to be taken to the hospital where he was diagnosed with a separated shoulder. Id. at 4 (¶ 20).

         B. Procedural History[2]

         1. The Pro Se Complaint

         Approximately six months after the incident, White filed a pro se complaint alleging excessive force in violation of his constitutional rights. White’s pro se complaint identified Officer Borkowski by name and badge number, but stated that White was unable to identify the second CPD officer who was with Borkowski at the time. The pro se complaint named as defendants “John Doe (Unknown Officer) (Defendant to be sued in individual capacity while acting under the color of law), ” Chief of Police McCarthy, and the “City of Chicago Police Department.” R 1. White did not sue Borkowski.

         On May 27, 2014, the Court conducted a preliminary review of White’s pro se complaint pursuant to 28 U.S.C. § 1915A, and found that White stated a colorable claim of excessive force in violation of 42 U.S.C. § 1983. R. 4 at 2. The Court, however, interpreted White’s naming of the “City of Chicago Police Department” as an attempt to sue the “Chicago Police Department” (as opposed to the “City of Chicago”), and dismissed that defendant because the CPD is not a suable entity. See, e.g., Averhart v. City of Chicago, 114 Fed. App’x 246, 247 (7th Cir. 2004). The Court also held that White had not alleged any facts to suggest a colorable § 1983 claim against Police Superintendent McCarthy in his personal capacity. See Pepper v. Village of Oak Park, 430 F.3d 805, 810 (7th Cir. 2005) (“to be liable under § 1983, the individual defendant must have ‘caused or participated in a constitutional deprivation’”) (citation omitted). Nevertheless, the Court ordered that McCarthy remain a defendant in the case to assist in identifying the police officer who allegedly pushed White. See, e.g., Myrick v. Anglin, 496 Fed. App’x 670, 675 (7th Cir. 2012) (holding that the trial court’s dismissal of a healthcare administrator was improper because, among other things, her position would “allow her to identify those responsible for the treatment delays”).

         In response to the Court’s initial § 1915A order, McCarthy entered an appearance through the City Corporation Counsel’s office, and then filed a motion to dismiss. R. 7, 8. A hearing on McCarthy’s motion to dismiss was held on August 19, 2014. R. 10. Pursuant to its duty to “ensure that the claims of a pro se litigant are given a fair and meaningful consideration, ” Palmer v. City of Decatur, Ill., 814 F.2d 426, 428-29 (7th Cir. 1987) (citation omitted), the Court questioned McCarthy’s counsel about steps the City[3] had taken, or might take, to identify the police officer who allegedly pushed White. The City, through its counsel, informed the Court that it had not yet identified the officer in question, but that the City would assist the Court in its efforts on White’s behalf to do so.

         On September 15, 2014, the Court appointed White an attorney and denied McCarthy’s motion to dismiss, stating for the second time on the record that McCarthy was to remain in the case in his official capacity to assist in identifying the police officer who allegedly used excessive force against White. R. 12. Shortly thereafter, White’s first court-appointed attorney moved to withdraw. See R. 14. The Court then appointed White a second attorney, R. 17, who filed an appearance on October 22, 2014 and attended his first status hearing on October 27, 2014. See R. 20, 21. At the status hearing, the Court again asked what efforts had made to identify the John Doe police officer. White’s newly appointed counsel had not yet spoken to his client, who was incarcerated at a facility outside the Chicago area. Counsel for the City, however, informed the Court that the City intended to make White’s police records available to White’s newly appointed counsel for that purpose.

         2. The First And Second Amended Complaints

         On April 8, 2015, White’s appointed counsel filed the first of two amended complaints on White’s behalf. The first amended complaint re-alleged a constitutional claim for excessive force and added two state law claims (battery and negligence). R. 33. Although the City turned over White’s police records sometime in January 2015, those records apparently did not resolve the John Doe issue. Therefore, the amended complaint again named a “John Doe” police officer as the responsible officer, and also reasserted an entity claim against the CPD (in place of McCarthy). Upon being informed at a status hearing held on April 23, 2015 that the CPD was not a suable entity, White’s appointed counsel made an oral motion to substitute the City in place of the CPD, which officially made the City a defendant by name when the Court granted that motion. See R. 34. Also at the April 23rd status hearing, the Court once again inquired about why the John Doe officer had not yet been named, this time specifically expressing concern that the statute of limitations was at risk of running out. Counsel for the City assured the Court that the statute of limitations did not expire for another six months. Counsel for the City must have had in mind, however, the two-year statute of limitations applicable to White’s § 1983 claims, [4] not the one-year statute of limitations applicable to White’s newly asserted state law claims, [5] which had expired on November 4, 2014, more than five months earlier.

         On June 30, 2015, White’s court-appointed counsel filed a second amended complaint alleging the same three claims as the first amended complaint but adding as defendants all of the police officers whose names appeared in White’s police records (the Individual Defendants). This was done at the Court’s suggestion, made at the preceding status hearing to protect against the running of the statute of limitations on the assumption that one of those officers likely was the John Doe defendant. R. 37.

         3. Motions To Dismiss

         The first motion currently before the Court is the City’s motion to dismiss filed on July 31, 2015. R. 38. The City’s motion seeks dismissal of White’s § 1983 claim under Monell v. Department of Social Services of City of New York, 436 U.S. 694 (1978). The City also raises several arguments for governmental immunity under the Illinois Local Governmental and Governmental Employees Tort Immunity Act (“Tort Immunity Act”), and further argues that White’s negligence claim against it is barred by the Tort Immunity Act’s one-year statute of limitations. See R. 38. The City does not move to dismiss White’s battery claim.

         The second motion before the Court is the joint motion to dismiss filed by the Individual Defendants. The Individual Defendants were not served until November 2015, and are represented by the same counsel as the City. They filed a joint motion to dismiss on December 30, 2015, as well as a joint answer to the second amended complaint. Their motion to dismiss adopts the City’s arguments for dismissal of White’s negligence claim, and, in addition, raises a separate statute of limitations argument for dismissal of White’s battery claim based on their late joinder as named defendants in the case. R. 61.

         DISCUSSION

         A. Section 1983

         Defendants make two arguments regarding White’s § 1983 claim. First, the City argues that White’s § 1983 claim should be dismissed based on White’s failure to allege facts that would support Monell liability.[6] White concedes that he has not currently alleged a factual basis for a Monell claim. See R. 51 at 1. As a result, White initially agreed to voluntarily dismiss his § 1983 claim against the City. Id. White later amended his response, however, to say that “widespread allegations of the City’s systematic abuse of civil rights of persons detained at the specific police facility where the instant misconduct occurred” had recently come to his attention. R. 74 at 2. White therefore has withdrawn his offer to voluntarily dismiss his § 1983 claim against the City, and now requests leave to amend his complaint to allege a widespread practice or custom by the City. Id. In light of White’s concession that the second amended complaint does not adequately plead a Monell claim, the Court grants the City’s motion to dismiss White’s § 1983 claim against it. The dismissal, however, is without prejudice, and the Court also grants White’s request to file an amended complaint to attempt to allege a Monell claim.

         Second, both the City and the Individual Defendants challenge White’s § 1983 claim to the extent that it is based on an alleged violation of the Eighth Amendment. Defendants are correct that the Eighth Amendment does not apply to pretrial detainees like White.[7] But a motion to dismiss on this basis is improper; White may proceed with his § 1983 claim pursuant to his factual allegations, which state a valid claim for constitutional deprivation under the Fourteenth Amendment.[8] Defendants are advised to simply ignore the reference to the Eighth Amendment. See Davis v. Ruby Foods, Inc., 269 F.3d 818, 821 (7th Cir. 2001) (citing Bennett v. Schmidt, 153 F.3d 516, 517 (7th Cir. 1998) (“Fat in a complaint can be ignored.”)).

         B. Punitive Damages

         White concedes that the City may not be held liable for punitive damages under Illinois law. See R. 51 at 6; see 745 ILCS 10/2-102 (“a local public entity is not liable to pay punitive damages in any action brought directly or indirectly against it by an injured party or a third party”). In addition, “municipalities are immune from punitive damages in § 1983 suits.” Minix v. Canarecci, 597 F.3d 824, 830 (7th Cir. 2010). Therefore, White’s punitive damages claim against the City (but not against the Individual Defendants) is dismissed.

         C. Tort Immunity Act

         The common law principle of local governmental tort immunity was first recognized in Illinois in 1844, but was abolished by the Illinois Supreme Court in its landmark decision in Molitor v. Kaneland Community Unit District No. 302, 163 N.E.2d 89 (Ill. 1959). See Coleman v. E. Joliet Fire Prot. Dist., 46 N.E.3d 741, 750 (Ill. 2016). After Molitor, a unit of local government became liable in tort under the common law to the same extent as a private party. See Prough v. Madison Cnty., 984 N.E.2d 1177, 1183 (Ill.App. 2013). This potential liability includes liability for any torts committed by an employee under a theory of respondeat superior, which “extends to the negligent, willful, malicious or even criminal acts of its employees, when those acts are committed within the scope of employment.” Adames v. Sheahan, 909 N.E.2d 742, 755 (Ill. 2009). In response to the Molitor decision, the Illinois legislature enacted the Tort Immunity Act, with the purpose of “‘protect[ing] local public entities and public employees from liability arising from the operation of government.’” Coleman, 46 N.E.3d at 750 (quoting 745 ILCS 10/1-101.1). The statute “applies to [l]ocal public entit[ies], including counties, fire protection districts, and other local governmental bodies, ” and “adopted the general principle that local governmental units are liable in tort, but limited this liability with an extensive list of immunities based on specific government functions.” Id. (internal quotation marks and citations omitted).

         The City cites to a number of sections of the Tort Immunity Act, arguing that all of these provisions are applicable to provide immunity to the City for White’s negligence claim. The Individual Defendants do not specifically address any of these provisions, but instead request permission to join in the City’s arguments, asserting that the immunity provisions on which the City relies “are equally applicable to [them].” R. 61 at 5. The City’s immunity arguments, however, are conclusory, and fail to adequately develop or analyze the legal and factual components of each immunity claim. The Court therefore could summarily deny the City’s motion without further discussion.[9] Nevertheless, the Court conducted its own analysis of the pertinent legal authority, and sets forth its conclusions on each immunity issue below.

         1. Immunity For Execution Or Enforcement Of The Law

         Defendants seek immunity from White’s negligence claim pursuant to § 2-202 and § 2-109 of the Tort Immunity Act. Section 2-202 provides that

A public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct.

745 ILCS 10/2-202.

         Section 2-109 provides that

A local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable.

745 ILCS 10/2-109.

         “Ordinarily, the determination of whether an officer was enforcing the law is a question of fact that must be determined by the trier of fact in light of the circumstances in each case, ” but “a court may, as a matter of law, determine whether officers were enforcing a law when the facts alleged support only one conclusion.” Lacey v. Vill. of Palatine, 904 N.E.2d 18, 28 (Ill. 2009). Defendants assert their immunity under § 2-202 and § 2-109 can be determined as a matter of law because the allegations of the complaint show (1) that White “had been arrested and was waiting for transportation from the Homan Square police facility to the 11th District Police Station” at the time of the incident, and (2) that “the unknown officer was acting [in] his capacity as a sworn police officer at the time of the events.” R. 56 at 2.

         a. Meaning Of “Executing or Enforcing” A Law

         The City cites to only two cases in support of its § 2-202 immunity argument. The first is O’Connor v. City of Chicago, 1989 WL 15976 (N.D. Ill. Feb. 21, 1989), wherein the court stated that two police officers “were executing or enforcing a law within the meaning of the [Tort Immunity] Act when they placed plaintiff in the lock-up cell in the holding area” after he was arrested, explaining that “[p]laintiff’s incarceration was a natural part of the law enforcement sequence of events that began when he was arrested and charged.” Id. at *8. This legal conclusion was reached without citation to or analysis of any relevant legal authority. Moreover, it was unnecessary; even if the conduct in question qualified as executing or enforcing a law, the defendant officers were not entitled to immunity in that case because the complaint alleged an assault, which fell under the exception for willful and wanton misconduct. Id. In any event, O’Connor was decided before the Illinois Supreme Court’s decision in Aikens v. Morris, 583 N.E.2d 487 (Ill. 1991). The City’s failure to cite Aikens is notable because Aikens is one of the leading cases on the scope of the immunity for execution or enforcement of a law and involves facts difficult to distinguish from those here.

         The two police officers in Aikens were transporting a prisoner via police car to the police station. Id. at 489. “The prisoner had been previously placed under formal arrest and was handcuffed.” Id. The police car collided with another vehicle as it entered an intersection. Id. The Illinois Supreme Court agreed with both the trial and appellate courts that the police officer “was not enforcing or executing a law at the time of the accident by transporting an arrestee.” Id. at 493. In explaining its rationale, the Aikens court acknowledged that execution and enforcement of the law often involves a course of conduct rather than one particular act. Id. at 492-93 (discussing Morris v. City of Chicago, 474 N.E.2d 1274, 1278 (Ill. 1985) (“the undisputed facts show an unbroken effort on Rowan’s part to respond to a radio call of a crime in progress”)). Nevertheless, the Aikens court held firm in the conclusion previously stated in Arnolt v. City of Highland Park, 282 N.E.2d 144 (Ill. 1972), that “a public employee is not afforded section 2-202 immunity for all activities in the performance of his or her duties.” Aikens, 583 N.E.2d at 490. The Aikens court explained that “use of the term ‘course of conduct, ’ focuses the inquiry on “activities that have definite and cohesive parameters.” Id. at 491 (discussing Thompson v. City of Chicago, 484 N.E.2d 1086, 1088 (Ill. 1985)). But the course-of-conduct principle “in no way abrogates the principle [established in Arnolt] that section 2- 202 immunity is a limited immunity, which dimensions are narrower than the scope of a police officer’s employment or his performance of official functions and duties.” Aikens, 583 N.E.2d at 491. In short, the Aikens court said, “a police officer is not ipso facto engaged in the ‘execution or enforcement’ of law simply because he is on duty within the scope of his employment.” Id. Furthermore, the fact that state statutes authorize or allow the transportation of an arrestee also is not dispositive, because “virtually every police function or duty is pursuant to some legal authorization in the broadest sense.” Id. at 493. “Arguably, then the performance of any task while on duty is in enforcement or execution of the law, ” a result the Aikens court did “not believe . . . the legislature intended.” Id.

         The City has cited to only one post-Aikens decision-Jones v. Village of Villa Park, 784 F.Supp. 533 (N.D. Ill. 1992). The plaintiff in Jones alleged he was suffering an insulin attack when police officers were arresting him. Id. at 534. Because the plaintiff “specifically allege[d] that the negligence occurred in the course of arresting him, ” the court found that the alleged negligence “was part of acts enforcing or executing the law” for which the defendants were immune. Id. at 536. In contrast, here, the alleged incident occurred after White was arrested and already in custody at the police station. In fact, the Court cannot say based on the allegations of the complaint whether the officer who allegedly pushed White was even involved in White’s arrest.[10] To hold on the current record that the unidentified officer was executing and enforcing a law at the time of White’s fall would be the same as saying the officer in question is entitled to § 2-202 immunity based solely on the fact that he was on duty at the time of the incident, an interpretation of § 2-202 squarely rejected by the Illinois Supreme Court. The facts alleged in the complaint do not establish as a matter of law that Defendants have immunity for conduct in the execution or enforcement of a law, and therefore the Court denies Defendants’ motion to dismiss on this basis.

         b. Willful and Wanton Exception

         The City’s argument for tort immunity based on § 2-202 and § 2-109 must be denied for another reason as well. The tort immunity provided by § 2-202 only applies if the conduct at issue is not willful and wanton. See 745 ILCS 10/2-202. The Act defines “willful and wanton misconduct” as “a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property.” 745 ILCS 10/1-210. The City argues, first, that the claim for which it seeks dismissal is negligence, not “willful and wanton misconduct.” But Illinois law recognizes a form of negligence that is willful and wanton. See Breck v. Cortez, 490 N.E.2d 88, 93 (Ill.App. 1986) (“The elements of a cause of action for willful and wanton negligence are a duty to the injured party, and a breach of that duty which is a proximate cause of the injury.”). Thus, it is possible for White’s negligence claim to fall under the “willful and wanton” exception to § 2-202 immunity. See, e.g., Trepachko v. Vill. of Westhaven, 540 N.E.2d 342, 347 (Ill.App. 1989) (“[I]n order to recover for injuries which occur during the execution or enforcement of a law by a public employee, plaintiffs must allege facts amounting to wilful and wanton negligence.”).

         The City responds that if White’s claim is for willful and wanton negligence, then that claim should be dismissed as redundant of his battery claim. As an initial matter, the City fails to distinguish between two distinct negligence claims alleged in the second amended complaint. Construed liberally in favor of White, the second amended complaint alleges both (1) that the unidentified police officer was negligent in causing White to fall down the stairs, and (2) that the City was negligent in failing to supervise or control the unidentified police officer. A negligent failure to supervise claim also can rise to the level of willful and wanton negligence. See Henslee v. Provena Hosps., 369 F.Supp.2d 970, 980 (N.D. Ill. 2005) (“Illinois case law strongly suggests that a fact-finder can find that a defendant’s conduct is willful and wanton if the defendant fails to follow applicable guidelines and procedures.”). White’s negligent supervision claim obviously is separate and distinct from, and thus not redundant of, his battery claim.

         In addition, even as to White’s negligence claim against the unidentified police office (for which the City potentially has respondeat superior liability), the case cited by the City for its redundancy argument-Napoles v. Johnson, 2013 WL 1943304 (N.D. Ill. May 8, 2013)-is distinguishable. The two claims found to be duplicative in Napoles were battery and aggravated battery. Id. at *3. The two state law claims at issue here are battery and willful and wanton negligence. Unlike battery and aggravated battery, battery and willful and wanton negligence are separate torts under Illinois law, distinguishable by the required mental state. See Cat Iron, Inc. v. Bodine Envtl. Servs., Inc., 2011 WL 5078206, at *5 (C.D. Ill. Oct. 25, 2011) (“The Illinois Supreme Court has explained that there are two types of willful and wanton conduct-intentional or reckless-which are distinguishable based on the mental state of the defendant.”) (citing Poole v. City of Rolling Meadows, 656 N.E.2d 768, 771 (Ill. 1995)). Thus, White may plead and attempt to prove both his battery and his willful and wanton negligence claims, see Fed. R. Civ. P. 8(d)(3), although he can recover only once for his injuries, see Gehrett v. Chrysler Corp., 175, 882 N.E.2d 1102, 1115 (Ill.App. 2008).

         Finally, contrary to the City’s suggestion, it is irrelevant that White alleges that the unidentified police officer “intentionally” pushed him down the stairs, and does not specifically allege the legal standard for a claim of willful and wantonness, i.e., “utter indifference to or conscious disregard for the safety of others or their property, ” 745 ILCS 10/1-210. It is well established that “[p]laintiffs need only plead facts, not legal theories, in their complaints.” Reeves ex rel. Reeves v. Jewel Food Stores, Inc., 759 F.3d 698, 701 (7th Cir. 2014). And the facts alleged here support either intentional conduct (battery claim) or “utter indifference” conduct (willful and wanton negligence claim). White alleges he was cooperative, acting peaceably, and was not resisting the unidentified police officer in any way when the latter pushed him from behind. Because the police officer was standing behind White at the time, the Court infers that White did not actually see, but only felt, the officer push him. While it seems unlikely, it is not wholly implausible that something other than an intentional push or shove caused White to fall down the stairs. If that were the case, whatever else happened could qualify as “ignor[ing] known or plainly observable dangerous conditions and do[ing] something that will naturally and probably result in injury to another.” Carter v. Chi. Police Officers, 165 F.3d 1071, 1081 (7th Cir. 1998).

         Whether a public employee “‘is guilty of willful and wanton conduct is a question of fact for the jury and should rarely be ruled upon as a matter of law.’” Clark v. City of Chicago, 595 F.Supp. 482, 487 (N.D. Ill. 1984) (quoting Glover v. City of Chicago, 436 N.E.2d 623, 630 (Ill.App. 1982)). The Court declines to rule as a matter of law based on the pleadings that there are no possible facts that might be shown in discovery, which do not amount to intentional misconduct but could be sufficient to meet the willful and wanton standard. Therefore, the Court concludes White adequately has alleged willful and wanton negligence against the unknown police officer, which is separate and distinct from his battery claim and potentially falls outside the immunity accorded by § 2-202.

         2. Immunity For Acts Or Omissions Of Another

         The City next argues for dismissal of White’s negligence claim based on § 2-204 and § 2-109 of the Tort Immunity Act. Section 2-204 states that:

Except as otherwise provided by statute, a public employee, as such and acting within the scope of his employment, is not liable for an injury caused by the ...

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