United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
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.
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.
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).
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.
The City's Rule 12(b)(6) Motion
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
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