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Blasberg v. City of Chicago

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

June 20, 2018

TOMAS BLASBERG, Plaintiff/Counter-Defendant,
v.
CITY OF CHICAGO, Defendant/Cross-Claim Plaintiff, JORDAN WISNIEWSKI, Defendant/Counter-Plaintiff/ Cross-Claim Defendant, and TRACEY WISNIEWSKI, Defendant.

          MEMORANDUM OPINION AND ORDER

          GARY FEINERMAN JUDGE

         Tomas Blasberg brought this suit against Jordan Wisniewski, his wife Tracey Wisniewski, and the City of Chicago after Jordan-a law enforcement officer with the Chicago Department of Aviation-shot Blasberg in the abdomen. Doc. 7. The City cross-claimed against Jordan for a declaration that he was not acting within the scope of his employment at the time and therefore is not entitled to indemnification from the City under 745 ILCS 10/9-102 for Blasberg's claims. Doc. 34 at pp. 9-11. And Jordan counterclaimed against Blasberg for allegedly firing an air gun at Jordan's vehicle and running his car into Jordan. Docs. 56-1, 60.

         The City has moved to dismiss Blasberg's claims against it under Federal Rule of Civil Procedure 12(b)(6) and for judgment on the pleadings on its cross-claim against Jordan under Rule 12(c). Docs. 11, 50. Both motions are granted.

         Background

         In resolving a Rule 12(b)(6) or a Rule 12(c) motion, the court assumes the truth of the well-pleaded factual allegations in the non-movant's pleadings, though not their legal conclusions. See Zahn v. N. Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016); Guise v. BWM Mortg., LLC, 377 F.3d 795, 798 (7th Cir. 2004). The court must also consider “documents attached to the [parties' pleadings], documents that are critical to the [pleadings] and referred to in [them], and information that is subject to proper judicial notice, ” along with additional facts set forth in non-movant's brief opposing dismissal or judgment, so long as those additional facts “are consistent with the [non-movant's] pleadings.” Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th Cir. 2013). The facts are set forth as favorably to Blasberg and Jordan as those materials allow. See Pierce v. Zoetis, Inc., 818 F.3d 274, 277 (7th Cir. 2016). In setting forth those facts at the pleading stage, the court does not vouch for their accuracy. See Jay E. Hayden Found. v. First Neighbor Bank, N.A., 610 F.3d 382, 384 (7th Cir. 2010).

         On June 8, 2017 at approximately 9:00 p.m., Jordan-who was employed as a police officer for the Chicago Department of Aviation-was driving east in his personal car on Deerfield Road in Buffalo Grove, Illinois. Doc. 7 at ¶¶ 8, 12; Doc. 49 at ¶ 8. His wife Tracey was his only passenger. Doc. 7 at ¶ 14. Blasberg, heading west, passed Jordan in oncoming traffic. Id. at ¶ 15. Jordan alleges that Blasberg fired an air gun at the Wisniewskis' car as he passed. Doc. 27 at ¶ 17; Doc. 56-1 at ¶¶ 6-7. Jordan then made a u-turn in order to pursue Blasberg. Doc. 7 at ¶ 17. Jordan caught up to Blasberg after a mile and a half and stopped his car in front of Blasberg's, blocking Blasberg's path forward. Id. at ¶¶ 18, 21. Jordan then exited his car, pointed a handgun at Blasberg, and fired at him through the windshield. Id. at ¶ 22. Jordan alleges that he fired the gun only after Blasberg accelerated towards him and struck him with his car. Doc. 27 at ¶ 23; Doc. 56-1 at ¶ 16. The bullet fired by Jordan struck Blasberg in the abdomen. Doc. 7 at ¶ 23.

         Discussion

         I. The City's Rule 12(b)(6) Motion

         Blasberg brings state law claims for negligence, assault, and battery, as well as a federal § 1983 claim, against Jordan. Id. at pp. 5-12. He also brings a civil conspiracy claim against Jordan and Tracey. Id. at pp. 12-19. On the assault and battery claims, Blasberg alleges that the City is vicariously liable for Jordan's conduct under the principle of respondeat superior. Id. at pp. 8-10. The City moves to dismiss Blasberg's vicarious liability claims.

         “For an employer to be vicariously liable for an employee's torts under the doctrine of respondeat superior, the torts must have been committed within the scope of the employment.” Pyne v. Whitmer, 543 N.E.2d 1304, 1308 (Ill. 1989). “To ascertain when an employee's conduct is within the scope of employment, the Illinois Supreme Court has adopted § 228 of the Restatement (Second) of Agency.” Copeland v. Cnty. of Macon, 403 F.3d 929, 932 (7th Cir. 2005) (citing Pyne, 543 N.E.2d at 1308-09). Section 228 provides:

Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and place limits; [and]
(c) it is actuated, at least in part, by a purpose to serve the ...

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