Opinion
No. 97 C 2823
September 29, 2000
ORDER .
Before the Court is Defendants' Motion for Partial Summary Judgment as to Counts III, IV and V of Plaintiff's Second Amended Complaint. On Counts III and V the motion is denied . On Count IV, the motion is granted in favor of Defendants on the charge of Leaving the Scene of a Personal Injury Accident only . With respect to the other four charges in Count IV, the motion is denied .
The facts are taken from Defendants' statement of facts and Plaintiff's statement of facts. Where the facts are still in dispute, it is indicated.
Plaintiff, Betty Harris, resided in a home she owned in Harvey for 27 years. Plaintiff is married, the mother of six, and grandmother of eleven. Plaintiff worked for the City of Harvey for twelve years, the last ten years as a collection officer in the commuter parking department.
Pl. Ex. 4, p. 35.
Id.
Id.
Plaintiff's religion is Hebrew Pentecostal. She is copastor of her church in Harvey. She goes to Church on Friday evenings and observes the Sabbath from Friday evening to Saturday sundown. After her shift was changed, Plaintiff did not work Friday evenings because she would be unable to observe her religious belief. Plaintiff filed a grievance about her change in shift with the union.
Pl. Ex. 4, p. 38-39.
Id.
Id.
Id.
Pl. Ex. 4, p. 38.
Camille Damiani is the Commander of the Internal Affairs division with the Harvey Police Department. Damiani is a sworn officer and her civil service rank as of March 26, 1998 was a patrol officer. Damiani was first employed by the Harvey Police Department in April, 1986.
Def. Ex. A, p. 6.
Id. at 8.
Id at 16-18.
During her employment tenure with the City of Harvey, Damiani was suspended for six months during which time she was not a sworn officer. She was reinstated by Mayor Nick Graves shortly after his election and given the non-civil service rank of Commander. The first time Plaintiff met Damiani was in January, 1996 in the city garage when Plaintiff was preparing to go to work. Damiani was with Jack Barton, Plaintiff's supervisor. Damiani did not identify herself as a police officer.
Pl. Ex. 2, p. 89.
Pl. Ex. 5, PP. 8-9.
Pl. Ex. 4, P. 40.
Id
Pl. Ex. 1, pp. 41-42.
The day after this January meeting with Damiani and Barton, Plaintiff was suspended from work for three days. On January 23, 1996, a day after she was suspended, Plaintiff filed a charge of religious discrimination against the City of Harvey with the EEOC. On February 16, 1996, Defendant City of Harvey, through Domenic Forte, assistant to the Mayor, responded to the EEOC charge, stating in a letter that Harris "sought confrontation rather than accommodation". On September 20, 1996, the EEOC reached the determination that there is "reasonable cause to believe the Respondent discriminated against [Plaintiff] on the basis of her religion".
Pl. Ex. 4, p. 40.
Pl. Ex. 9.
Pl. Ex. 9a.
Pl. Ex. 8.
Defendant City of Harvey, through Domenic Forte, assistant to the Mayor responded to the above EEOC determination, stating inter alia that he "bitterly resented" the implication that Barton is not to be believed and referring to Harris' actions as "capricious, obstructive, insubordinate, malicious and calculated to cause embarrassment to this administration."
Pl. Ex. 11a.
In February, 1996, Damiani, Barton, Plaintiff, her union president, and others, were present in City Hall for a hearing on the grievance that Plaintiff filed relating to her change in shift. Damiani was wearing regular street clothes. When Plaintiff asked Mr. Forte who Damiani was, he told Plaintiff Damiani was an employee of the administration and never mentioned that she was a police officer.
Pl Ex. 4, p. 40.
Id.
Pl. Ex. 1, p. 52.
Damiani's boss, Deputy Chief Chris Barton, the brother of Jack Barton, assigned Damiani to attend this grievance hearing. Since being reinstated to her employment and becoming a Commander in April, 1995, Damiani has not worn identification indicating she is a police officer. Damiani does not carry a police radio and making arrests is not part of her everyday duties. Since becoming a Commander, Damiani has not actually placed anyone under physical arrest. She has had two persons arrested: the Dixmoor Park District Chief and Plaintiff.
Pl. Ex. 5, p. 19; Pl. Ex. 6, p. 12.
Pl. Ex. 4, pp. 123-24.
Id.
Pl. Ex. 5, p. 15.
Id.
The parties disagree about the first time Camille Damiani came to know Plaintiff, Betty Harris. Defendants assert that it was when Damiani acted as a witness to a predisciplinary hearing for Plaintiff. Plaintiff asserts that Damiani first came to know Plaintiff in January, 1996 when Damiani accompanied Jack Barton to the City's garage to give Plaintiff a three day suspension from her job.
Id.
Pl. Ex. 1, pp. 41-43; Pl. Ex. 6, p. 12.
Jack Barton was the supervisor of the parking facilities for the City of Harvey on April 18, 1996. On April 18, 1996, Plaintiff was employed by the City of Harvey in the commuter parking division as a parking lot attendant. Plaintiff was supervised by Jack Barton.
Def. Ex. B, ¶¶ 2, 3.
Def. Ex. B, ¶ 4; Def. Ex. C, p. 32.
Id.
Defendants assert that on April 18, 1996, Camille Damiani was meeting Jack Barton at the City's garage for the purpose of assisting Jack Barton with a predisciplinary hearing for Plaintiff. Plaintiff asserts that Jack Barton drove Damiani to the City's garage in his truck and that they were not going to the garage for the purpose of a predisciplinary hearing for her. The parties also disagree about Plaintiff's work schedule that day. Defendant asserts that Plaintiff's work schedule was 4:15 p.m. to 11:15 p.m. Plaintiff asserts that Plaintiff's work schedule was 4:00 p.m. to 11:15 p.m.
Def. Ex. A, pp. 26-27, 38; Def. Ex. B, ¶¶ 7, 8.
Pl. Ex. 2, p. 64.
Def. Ex. B, ¶ 5; Def. Ex. C, p. 32.
Pl. Ex. 3, pp. 31-32.
On April 18, 1996, at approximately 4 p.m., Jack Barton and Camille Damiani arrived at the City's garage. On April 18, 1996, Damiani was dressed in plain clothes; she did not have a badge, gun, police radio, or handcuffs on her. She did not have anything in gloss on her person that said police. Damiani's duties with the City of Harvey are exclusively administrative in nature. At Jack Barton's request, his brother, Deputy Chief of Police, Chris Barton, assigned Damiani to accompany Jack to the garage on April 18, 1996 where they knew Plaintiff would punch in for work because Jack needed "someone with experience". The matters Jack Barton wanted to talk with Plaintiff about in the garage had nothing to do with police matters. Barton's department is not connected with the police department.
Def. Ex. A, pp. 50-51; Def. Ex. B, ¶ 6.
Pl. Ex. 4, pp. 73-74; Pl. Ex. 5, p. 65.
Id.
Pl. Ex. 5, p. 65.
Pl. Ex. 7, pp. 46-47.
Id. at 47.
Id.
Damiani was not present in the City garage on April 18, 1996 as a police officer. Being a sworn officer had nothing to do with her presence there. Damiani did not go to the garage to enforce the public safety laws of the City of Harvey.
Pl. Ex. 2, pp. 86-87.
Id.
Pl. Ex. 2, p. 124.
Defendant asserts that when Damiani went to the garage with Jack Barton, she was not expecting any problems with Plaintiff. plaintiff disagrees, stating that Damiani's testimony revealed that there was already a "problem" with plaintiff and that Damiani went to the garage so that she could be a witness to whatever happened when Barton gave a paper to Plaintiff.
Def. Ex. A, pp. 29-30.
Pl. Ex. 5, p. 29; Pl. Ex. 6, pp. 14-15; Pl. Ex. 2, pp. 83-87.
The garage is a large, empty garage with nothing in it. The employees park their vehicles in the garage and take city vehicles to their respective lots. There are approximately four or five city vehicles parked in the garage that are used for the parking lot facility and the employees drive their vehicles into the garage, punch the time clock and leave their personal vehicles in the garage when they go out to work at the city lots.
Def. Ex. B, ¶ 9.
Id.
Id.
When Camille Damiani and Jack Barton arrived in the garage, Plaintiff was not in the garage. The parties disagree over whether Plaintiff drove her personal vehicle into the garage shortly after 4:00 p.m. or shortly before 4:00 p.m.
Def. Ex. A, p. 51; Pl. Ex. B, ¶ 11.
The parties also disagree about the coffee cup. Defendant asserts that Plaintiff had a traveling coffee cup with her on April 18, 1996; Plaintiff brought the coffee cup with her when she got into the city vehicle; and that the travel cup was one quarter filled with coffee. Plaintiff asserts that she brought a coffee cup from home in her personal automobile and that she put coffee in the cup about ten minutes before she left home.
Def. Ex. C, pp. 8, 33-34.
Pl. Ex. 4, p. 53.
Defendants assert that while Plaintiff was punching in, Jack Barton approached her. Plaintiff asserts that she was sitting in her car when Barton approached her and said he wanted to talk to her.
Def. Ex. A, pp. 52-53; Def. Ex. B, ¶ 12.
Pl. Ex. 3, pp. 32-38.
Defendants assert that when Plaintiff reached her vehicle and was getting in, Barton approached her and said that he wanted to talk to her. Defendants also assert that Barton walked in between the door jamb and started talking to her when Plaintiff started the car and said "You can talk to me on the job". Plaintiff asserts that she told Barton that her union steward instructed her not to talk to Barton about any union business or any case with the EEOC. Plaintiff asserts that at the time Barton approached her and began talking to her, she was seated inside the vehicle; the vehicle door was almost closed; and Barton was on the outside of the door. Plaintiff asserts that Barton never moved to the inside of the door.
Def. Ex. A, pp. 52-53; Def. Ex. 9, ¶ 12.
Def. Ex. A, p. 53; Def. Ex. B ¶¶ 13-15; Def. Ex. C, pp. 35, 39, 40, 41.
Pl. Ex. 4, p. 51.
Pl. Ex. 3, pp. 37-38; Pl. Ex. 4, p. 53; Pl. Ex. 5, pp. 22-23; Pl. Ex. 6, p. 21.
Id.
Defendants assert that when Barton was trying to talk to Plaintiff in the garage, Plaintiff was agitated with Barton. Defendants assert that to the north of the vehicle that Plaintiff got into, there was another City vehicle parked without any occupants in it. Defendants also assert that the vehicle to the north of the vehicle that Plaintiff was in was parked about two or three feet to the north of the vehicle that Plaintiff was sitting in and was parallel to the vehicle that Plaintiff was sitting in.
Def. Ex. C, p. 64.
Def. Ex. B, ¶ 15.
Id.
Plaintiff disagrees about the distance, asserting that the vehicle to the north of the vehicle in which Plaintiff was seated was four to five feet away.
Pl. Ex. 3, p. 44.
Defendants assert that after Jack Barton said that he wanted to talk to her, Plaintiff said that she started work at four, Defendants assert that she tried several times to close the door and Barton kept telling her "Wait a minute, wait a minute, I want to talk to you". Defendants assert that Plaintiff then started to close the door on Barton and closed the door on him. Defendants assert that Plaintiff put the vehicle in gear, in reverse, and started backing up and that Barton was stuck in between the door jam and couldn't get out because he was stuck in the door jam.
Def. Ex. A, p. 53.
Def. Ex. A, p. 53.
Def. Ex. B, ¶¶ 17-19.
Def. Ex. B, ¶¶ 17-21.
Plaintiff asserts that she was seated in her Blazer vehicle, with the driver's side door open about one foot; that Barton was outside the door and never moved to the inside of the door; and that he was still standing outside the door when she put the vehicle in reverse. Plaintiff further asserts that she looked over her right shoulder and began to back the vehicle out, not very far; that the vehicle moved slowly; and that the vehicle stopped after moving just inches. Plaintiff further asserts that she did not try to close the door, so it remained open about one foot.
Pl. Ex. 3, pp. 37-38; Pl. Ex. 4, p. 53; Pl. Ex. 5, pp. 22-23; Pl. Ex. 6, p. 21.
Pl. Ex. 3, pp. 41-42; Pl. Ex. 5, p. 110.
Pl. Ex. 4, p. 62.
Defendants assert that Damiani told Plaintiff to stop the car because Damiani saw that Barton was becoming pinned between Plaintiff's vehicle and the vehicle next to it.
Def. Ex. A, pp. 54-56; Def. Ex. B, ¶¶ 20-22.
Plaintiff disagrees, asserting that plaintiff heard Damiani yell something and stopped the vehicle. plaintiff also asserts that Barton was not pinned between the two vehicles. plaintiff further asserts that she did not see Barton when she stopped the vehicle and that after exiting the vehicle she saw Barton lying on the ground to the rear of the Blazer that was parked four to five feet from the vehicle Plaintiff was driving.
Pl. Ex. 3, pp. 41-42.
Id.
Pl. Ex. 4, pp. 43-44.
Defendants assert that Damiani yelled at Plaintiff at least two times to Plaintiff to stop the car because Barton was pinned. Plaintiff disagrees, asserting that Barton was not pinned.
Def. Ex. A, pp. 54-56; Def. Ex. B, ¶¶ 20-22.
Pl. Ex. 3, pp. 41-42.
Defendants assert that despite the fact that Damiani was yelling at her to stop the vehicle, Plaintiff continued to back the vehicle. Plaintiff disagrees, asserting that she stopped the vehicle as soon as she heard Damiani yell.
Def. Ex. A, P. 56.
Pl. Ex. 2, p. 110.
Defendants assert that as Plaintiff continued to back the vehicle, the door on the vehicle popped and Barton was thrown to the ground. Plaintiff asserts that she backed the vehicle slowly; it only traveled inches; the door never popped but remained about one foot open until Damiani approached from the rear of the vehicle and pushed the door open. Plaintiff further asserts that Barton was not thrown to the ground, but rather, he fell.
Def. Ex. A, p. 56; Def. Ex. B ¶¶ 20-22.
Pl. Ex. 3, pp. 41-42; Pl. Ex. 5, p. 110.
Pl. Ex. 5, p. 57; Pl. Ex. 7, p. 37.
Defendants assert that after Plaintiff began backing her vehicle, she did not know where Barton was. Plaintiff disagrees, asserting that she looked over her right shoulder before backing the car.
Def. Ex. C, pp. 42, 43, 49, 58.
Pl Ex. 4, pp. 53-55.
Defendants assert that after Barton was on the ground, Damiani asked Barton if he was okay, and then Damiani ran to Plaintiff's vehicle and told Plaintiff to stop. Defendants assert that plaintiff was still backing up. plaintiff asserts that Plaintiff stopped the vehicle as soon as she heard Damiani yell. Plaintiff also asserts that Damiani approached the vehicle from the rear; pushed the door open; reached in and put the Blazer in park; turned off the ignition; grabbed the keys out of the ignition; and then went back to check on Barton.
Pl. Ex. A, pp. 58-59.
Id.
Pl. Ex. 3, pp. 42-43.
Pl. Ex. 3, pp. 42-43, 45-46; Pl. Ex. 4, p. 58.
Defendants assert that after Damiani told Plaintiff to stop the vehicle, she told Plaintiff that she was under arrest; Plaintiff refused to get out; and Damiani reached into the vehicle. Plaintiff asserts that Damiani reached into the vehicle and grabbed Plaintiff by the collar, choking her, while Damiani was yelling something incomprehensible.
Def. Ex. A, p. 60; Def. Ex. C, pp. 45-50.
Pl. Ex. 3, pp. 42-43, 45-46, 49; Pl. Ex. 4, p. 58.
Defendants assert that when Damiani first came over the vehicle, after Barton was on the ground, Damiani was going to place Plaintiff under arrest for battery to Barton. Sgt. Roy Wells came to the garage in response to a dispatch and had a conversation with Damiani. Plaintiff asserts that Damiani spoke with Sgt. Roy Wells in the garage before ordering him to go to the adjacent Park District Office where Plaintiff was to arrest Plaintiff. Wells did not have to know whether there was a good reason to arrest Plaintiff; he just had to follow Damiani's orders. Plaintiff asserts Wells went to the Park District Office and told Plaintiff he wanted to talk to her about the "car accident in the garage next door".
Def. Ex. A, p. 64.
Pl. Ex. 12, pp. 3-4; Pl. Ex. 2, p. 80.
Pl. Ex. 12, pp. 5-8.
Pl. Ex. 2, pp. 128-29.
Id.
In her call to the police, Damiani said she was not injured. She said nothing about: Jack Barton being pinned or hit by a vehicle; any traffic offense being committed; Betty Harris fleeing the scene; or committing any offense. Plaintiff's call to 911 for assistance for Barton was received the very second that Damiani hung up from her call.
Id.
Id.
Pl. Ex. 13; Pl. Ex 13a.
Defendants assert that when Plaintiff didn't get out after the first time Damiani ordered her to get out, Damiani told her again to get out of the car and she told her again that she was under arrest. Defendants assert that Plaintiff still did not get out, so Damiani reached in, put the vehicle in park and tried to snatch the keys out of the ignition.
Def. Ex. A, p. 60; Def. Ex. C, p. 49, 50.
Id.
Plaintiff asserts that when she heard Damiani yell, she stopped the vehicle. Plaintiff asserts that Damiani reached in and began to choke Plaintiff by the collar, while yelling something incomprehensible. Plaintiff agrees that Damiani put the vehicle in park. Plaintiff asserts that Damiani removed the keys and then left the vehicle.
Pl. Ex. 3, pp. 42-43.
Pl. Ex. 4, pp. 57-58.
Id.
Id.
Defendants assert that when Damiani attempted to grab the keys out of the ignition, a struggle for the keys between Plaintiff and Damiani ensued. Plaintiff asserts that Damiani just grabbed the keys and left. After Damiani grabbed the ignition key from Plaintiff's vehicle, Damiani ran to Barton's truck to get a portable phone from her purse which she left on the floor of the truck. Damiani left the garage with her phone and went outside to make a call to get assistance for Barton. plaintiff got out of her vehicle and saw Barton lying on the ground. Defendants assert that Plaintiff knew what happened to Barton and that Damiani was still in the garage after plaintiff left.
Def. Ex. A, p. 62.
Pl. Ex. 3, pp. 42-43; Pl. Ex. 4, pp. 57-58.
Pl. Ex. 5, p. 67.
Pl. Ex. 2, p. 78.
Pl. Ex. 4, pp. 43-45, 60; Pl. Ex. 2, p. 131.
See Defendants' Response to Statement of Additional Facts, at 7.
Defendants assert that Damiani told Plaintiff she was under arrest the minute Barton landed on the ground. Plaintiff asserts that she was not told she was being arrested at that time.
Def. Ex. A, p. 64.
Pl. Ex. 3, pp. 42-43; P1. Ex. 4, pp. 57-58.
Defendants assert that when Damiani grabbed Plaintiff, Plaintiff hit Damiani in the head with her coffee cup and spilled coffee on Damiani. Defendants also assert that plaintiff said "Oh, Damiani you're in trouble now". Plaintiff asserts that she never hit Damiani on the head with a coffee cup and never spilled coffee on her.
Def. Ex. A, p. 63.
Id. at 66.
Pl. Ex. 3, pp. 80-81; Pl. Ex. 4, p. 42.
Defendants assert that after her statement to Damiani, Plaintiff ran from the garage and Plaintiff saw Barton on the ground as she was leaving. Plaintiff asserts that she does not remember saying anything to Damiani. Plaintiff also asserts that she did not run from the garage, but rather once she saw Barton on the ground, she left to go to the adjacent Park District Office to get to the nearest phone so she could call 911 to attain help for Barton. Plaintiff asserts that she was upset; did not know what happened; did not see Damiani; and went immediately to the nearest phone in the adjacent building to make a 911 call for Barton.
Def. Ex. A, p. 66; Def. Ex. C, pp. 51-59.
Pl. Ex. 3, p. 82.
Pl. Ex. 3, pp. 57-58; Pl. Ex. 4, pp. 44, 60.
Id.
Defendants assert that from the impact of the door; being trapped between the parked vehicle to the north of the vehicle Plaintiff was in; and being thrown to the concrete floor of the garage, Barton received deep bruises and a few lacerations on his body. plaintiffs assert that there was no impact of the door; Barton was not trapped between vehicles; and Barton's emergency room records make no reference to bruises, "deep" bruises, or lacerations.
Def. Ex. B, ¶ 24.
Pl. Ex. 8.
Defendants assert that Barton was taken to Ingalls Hospital by ambulance and treated in the emergency room and released. Defendants assert that Barton's bruises were on the left side of his body and were located from his shoulder down to his side and leg. plaintiff disagrees, asserting that the emergency room physician did not note any bruises or lacerations on Barton's body.
Def. Ex. B, ¶ 25.
Def. Ex. B, ¶ 26.
Id.
Defendants assert that after the incident, Barton had to use a cane and a walker for about a week. plaintiff disagrees, stating that Barton was able to return to work with no restrictions; a walker was never recommended or prescribed; and the physician's diagnosis suggested that there was no distress in Barton's extremities.
Def. Ex. B, ¶ 27.
Pl. Ex. 7, pp. 52-53; Pl. Ex. 8.
Defendants assert that Barton believes that Plaintiff intentionally backed the vehicle up knowing that Barton was in the doorway. Plaintiff asserts that Barton's testimony described the incident as an accident.
Def. Ex. B, ¶ 28.
Pl Ex. 7, p. 60.
The Illinois Vehicle Code, 625 ILCS 5/11-403 requires that any motorist involved in a vehicle accident shall render to any injured person reasonable assistance, including arranging for medical care. The parties dispute whether or not Damiani knows what to do when there is an accident. Plaintiff was charged by Damiani and Barton with the following offenses: battery against Barton; battery against Damiani; obstructing a police officer; fleeing the scene of a personal injury accident; and improper backing. On April 24, 1996 Plaintiff was terminated from her employment with Defendant City of Harvey. On July 15, 1996, Plaintiff filed a charge with the EEOC against the City of Harvey, charging that she was terminated in retaliation for filing a charge of religious discrimination against Harvey. On May 29, 1999, a Cook County Circuit Court Judge entered a directed verdict of acquittal in Plaintiff's favor on the charge of improper backing. On the same day, a jury found Plaintiff not guilty of the charge of obstructing an officer and not guilty of leaving the scene of a personal injury accident.
Pl. Ex. 14.
Def. Ex. H.
Pl. Ex. 15.
Pl. Ex. 15.
Def. Ex. I J.
Id.
STANDARD .
Summary judgment is appropriate if 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. A genuine issue of material fact exists only where a rational trier of fact could, based on the facts in the record, find for the non-moving party. In order to survive summary judgment, the party opposing the motion must affirmatively demonstrate by specific factual presentations that there is a genuine issue of material fact that necessitates a trial. Where the factual allegations presented by the non-moving party would not lead a rational trier of fact to find in its favor, there is no genuine issue for trial and the Court should grant summary judgment. In ruling on a motion for summary judgment, the Court views all facts in a light most favorable to the non-moving party.DISCUSSION . 1. There is no persuasive argument that would support a re-evaluation of the denial of summary judgment on Count III .
Count III of Plaintiff's Second Amended Complaint is a claim for unlawful termination. Plaintiff was terminated on April 24, 1996. Plaintiff alleges that she was fired in violation of procedural due process because she never had an opportunity to be heard.Previously, Defendant City of Harvey brought a motion seeking summary judgment on Count III. We denied this motion because it appeared that plaintiff may be able to show that she was denied her due process right to appeal disciplinary action through Civil Service Commission procedures.
Order, Sept. 27, 1999, at 7 (docket #35).
In their new motion, Defendants, again, seek summary judgment on Count III. Plaintiff was terminated on April 24, 1996. plaintiff filed a grievance regarding her termination on May 3, 1996. She received an arbitration hearing on April 15, 1999. Defendants' argument is, essentially, that because Plaintiff eventually received an arbitration hearing, the Court should grant summary judgment on her due process count to prevent her from obtaining a "second bite at the apple". Defendants cite no case law in support of their contention. We see no persuasive argument to change the reasoning from our previous Order. plaintiff may be able to show that she was denied her due process right to appeal disciplinary action through Civil Service Commission procedures. We don't see any reason why a post-termination hearing three years after the termination should bar her due process claim.
Def. Ex. E., p. 2.
2. As a matter of law, probable cause exists for the charge of Leaving the Scene of the Accident; all other charges must be submitted to the jury .
Defendants assert that the uncontested facts demonstrate that there was probable cause for the charges against Plaintiff. The existence of probable cause is an absolute bar to a § 1983 claim for unlawful arrest, false imprisonment, or malicious prosecution." Probable cause exists when the police are in possession of facts and circumstances sufficient to allow a prudent person to believe that the suspect has or was committing an offense. "In recognition of the endless scenarios confronting police officers in their daily regimen, courts evaluate probable cause not on the facts as an omniscient observer would perceive them but on the facts as they would have appeared to a reasonable person in the position of the arresting officer-seeing what he saw, hearing what he heard." "Probable cause need not have existed for the charge for which the plaintiff was arrested, so long as probable cause existed for a closely related charge." Although the question of probable cause in a damages suit would typically be determined by the jury, it is appropriate for the Court to find that probable cause existed as a matter of law where "there is no room for a difference of opinion concerning the facts or the reasonable inferences to be drawn from them."
Fernandez v. Perez, 937 F.2d 368, 370 (7th Cir. 1991) (citing Friedman v. Village of Skokie, 763 F.2d 236, 239 (7th Cir. 1985)).
See, e.g., Sheik-Abdi v. McClellan, 37 F.3d 1240, 1246 (7th Cir. 1994).
Sheik-Abdi, 37 F.3d at 1246 (citing Mahoney v. Kersery, 976 F.2d 1054, 1057 (7th Cir. 1992)).
Biddle v. Martin, 992 F.2d 673, 676 (7th Cir. 1993). See also Jones v. Watson, 106 F.3d 774, 780 n. 10 (7th Cir. 1997) Defendants also cite DuFour-Dowell v. Cogger, 969 F. Supp. 1107, 1114 (N.D.Ill. 1997) as supporting the proposition that a finding of probable cause on one charge makes it unnecessary to determine whether there was probable cause on any of the other charges. We find that DuFour-Dowell does not support a proposition this broad, but rather is in accord with Biddle that a finding of probable cause on one charge is sufficient to find probable cause onclosely related charges. In DuFour-Dowell, the arrestee conceded that there was probable cause on the charge of resisting arrest and the court found that probable cause on that charge was sufficient to find probable cause for the other two charges because the other two charges were closely related.
Sheik-Abdi, 37 F.3d at 1246 (citations omitted).
Plaintiff was charged by Damiani with Improper Backing; Leaving the Scene of a personal Injury Accident; Battery; and Obstructing a Peace Officer. Plaintiff was charged by Barton with Battery.
625 ILCS 5/11-1402(a) states that "The driver of a vehicle shall not back the same unless such movement can be made with safety and without interfering with other traffic."
"The driver of any vehicle involved in a motor vehicle accident resulting in personal injury or death of any person shall immediately stop such vehicle at the scene of such accident, or as close thereto as possible and shall then forthwith return to, and in every event shall remain at the scene of the accident until the requirements of Section 11-403 have been fulfilled. . . ." 625 ILCS 5/11-401(a). Section 11-403 requires the driver of a motor vehicle involved in an accident causing injury or death to provide specific information including name, address and vehicle registration to the injured person. 625 ILCS 5/11-403. Section 11-403 also requires the driver of a motor vehicle involved in an accident causing injury or death to "render to any person injured in such accident reasonable assistance, including the carrying or the making of arrangements for the carrying of such person to a physician, surgeon or hospital for medical or surgical treatment . . ." 625 ILCS 5/11-403.
The statute states that "A person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual." 720 ILCS 5/12-3.
The charge of resisting or obstructing a peace officer or correctional institution employee requires a person to "knowingly resists or obstructs the performance by one known to the person to be a peace officer or correctional institution employee of any authorized act within his official capacity . . ." 720 ILCS 5/31-1.
A reasonable officer in Damiani's position could have charged Plaintiff with Leaving the Scene of a Personal Injury Accident. Viewing the decision retrospectively, we have no doubt that Damiani was wrong to charge Plaintiff with Leaving the Scene of a Personal Injury Accident because Plaintiff left to obtain medical assistance for Barton in accordance with the duties required by § 5/11-403. Section 5/11-403 requires a driver of a vehicle involved in an accident to render reasonable assistance to an injured person. Such assistance explicitly includes making arrangements for medical assistance. It is undisputed that Plaintiff left the scene of the accident. The facts now clearly demonstrate that Plaintiff left for a proper and laudable reason, namely to call 911 to assist Barton. However, a reasonable officer in Damiani's position would not have known that at the time . All Damiani witnessed was Plaintiff leaving the garage. Consequently, the facts support a finding that Damiani had probable cause to charge plaintiff with Leaving the Scene of a Personal Injury. Therefore, we must grant summary judgment in favor of Defendants with respect to the Leaving the Scene of a personal Injury charge portion of Count IV only.
625 ILCS 5/11-403; See also Tipsword v. Melrose, 301 N.E.2d 614, 622 (Ill.App. 1973) (affirming jury finding of not guilty on a failure to render aid charge where the defendant ran from the scene of the accident in order to get to a phone to call for emergency medical assistance for the injured passenger in the other vehicle).
625 ILCS 5/11-403.
Id.
See Pl. Ex. 13.
Because there are disputed factual issues, the question of whether probable cause existed for the Improper Backing charge must be determined by the jury. Damiani should not have charged Plaintiff with Improper Backing because another vehicle was not involved. However, we must also address the issue of whether Damiani had probable cause to charge Plaintiff with a closely related charge. We find the charge of Failure To Exercise Due Care to be closely related to Improper Backing. However, there are factual issues which preclude a probable cause determination on this charge as a matter of law. There is a dispute of fact regarding Barton's proximity to the vehicle. Most importantly, there is a dispute of fact regarding whether or not Plaintiff looked in her mirrors and knew where Barton was standing before she began backing the vehicle. There is certainly room for a difference of opinion concerning whether or not Damiani had probable cause to charge Plaintiff with Failure To Exercise Due Care. Consequently, a determination of probable cause on the Improper Backing charge must be made by the jury.
625 ILCS 5/11-1003.1 states "Notwithstanding other provisions of this Code or the provisions of any local ordinance, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian . . ."
Factual issues preclude the Court from granting summary judgment with respect to the charges of Battery. The statute states that "A person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual." There are genuine issues of material fact surrounding almost every aspect of both Battery charges. With respect to the Battery charge by Barton, Plaintiff and Defendants dispute whether or not Barton was standing inside the open door when Plaintiff put the vehicle into reverse; whether or not Barton was ever pinned between two vehicles; whether or not Damiani told Plaintiff to stop backing up; and whether or not the door moved and caused Barton to be thrown to the ground. With respect to the Battery charge by Damiani, Damiani's assertions portray Plaintiff as the aggressor, while Plaintiff states that she was choked by Damiani. Because of the disputed factual issues, there is room for a difference of opinion on the issue of probable cause. Therefore, the jury must determine whether there is probable cause on the Battery charges.
720 ILCS 5/12-3 (emphasis added).
With respect to the charge of Obstructing a Peace Officer, there are also genuine issues of material fact. The charge of resisting or obstructing a peace officer requires a person to "knowingly resist[s] or obstruct[s] the performance by one known to the person to be a peace officer or correctional institution employee of any authorized act within his official capacity . . ." It is undisputed that since April, 1995, Damiani. did not wear police identification; did not carry a police radio; and had not placed anyone under physical arrest. At the time of this incident, it is undisputed that Damiani was dressed in plain clothes and did not have a badge; gun; police radio; or handcuffs on her. Under these circumstances, it certainly appears doubtful that Plaintiff knew Damiani was a police officer at the time of the incident. Whether or not there is a probable cause defense depends on the resolution of the issues of material fact, including what was said between Damiani and Plaintiff and what exactly occurred when Damiani came over to Plaintiff's car and removed the keys. This issue must also be resolved by the jury.
720 ILCS 5/31-1 (emphasis added).
On a final note, we find that Battery, Obstructing a Peace Officer, and Improper Backing are not closely related to the charge of Leaving the Scene of a Personal Injury Accident. Therefore a finding of probable cause with respect to the charge of Leaving the Scene of a Personal Injury Accident does not create probable cause for the other charges.
3. There are genuine issues of material fact which preclude summary judgment on all five charges within the Malicious prosecution claim .
Plaintiff's Count V is a claim for malicious prosecution brought under Illinois law. In order to state a cause of action for malicious prosecution under Illinois law, a plaintiff must show (1) commencement of a judicial proceeding by the defendant; (2) termination of the proceeding in the plaintiff's favor; (3) an absence of probable cause for the proceeding; (4) the presence of malice; and (5) damages. Summary judgment is appropriate if the absence of one or more of these five elements can be established to the point that it "may be fairly said that no genuine issue of fact as to its absence exists . . ."
We read Plaintiff's Count V as a state law claim because the Complaint states that Count V is a "supplemental claim".
Joiner v. Benton Community Bank, 411 N.E.2d 229, 232 (Ill. 1980); Ritchey v. Maskin, 376 N.E.2d 991, 993 (Ill. 1978) (citations omitted).
Joiner, 411 N.E.2d at 232.
Defendants' arguments to dismiss Count V revolve around the issue of probable cause. Consequently, the analysis for Count V is similar to the analysis in Count IV. In the context of a malicious prosecution claim, probable cause means "a state of facts, in the mind of the prosecutor, as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person arrested is guilty" of the offense for which he is arrested. Liability for malicious prosecution "extends to all persons who played a significant role in causing the prosecution of the plaintiff, provided all of the elements of the tort are present."
The analysis is slightly different, because probable cause is no longer viewed from the perspective of a reasonable person in the position of the arresting officer.
Frye v. O'Neill, 520 N.E.2d 1233, 1241 (Ill. 1988) (quoting Freides v. Sani-Mode Mfg. Co., 212. N.E.2d 286, 288-89 (Ill. 1965)); see also Kincaid v. Ames Dep't Stores, Inc., 670 N.E.2d 1103, 1109 (Ill. 1996).
Rodgers v. Peoples Gas Light Coke Co., 733 N.E.2d 835, 842 (Ill.App. 2000) (citing Frye v. O'Neill, 520 N.E.2d 1233, 1240 (Ill. 1988)).
On all five charges, the first and second elements, commencement of judicial proceedings and termination in Plaintiff's favor are present. It appears that Plaintiff will likely be able to show damages, the fifth element. Therefore, probable cause and malice are the elements in question.
Viewing the Leaving the Scene of a Personal Injury charge after the fact, it is clear that Plaintiff left for a proper reason: to fulfill a statutory duty to render aid. Therefore, whether there was probable cause to continue the prosecution given the record as a whole must be decided by the jury.
There are also genuine issues of material fact with respect to the other four charges. In the previous section, we outlined the disputed genuine issues of material fact with respect to the Improper Backing charge, the Obstructing a Peace Officer charge, and the two Battery charges. We find that the element of probable cause will turn on the disputed issues of material fact. Therefore, probable cause is an issue to be determined by the jury.
With respect to all five charges, there are two reasons which require the issue of malice to be determined by the jury. First of all, "Malice is defined as the initiation of a prosecution for any reason other than to bring a party to justice." Plaintiff asserts that the charges and prosecution were retaliation against her for her employment dispute and for filing EEOC charges against the City of Harvey. Viewing the facts in a light favorable to plaintiff, we believe a jury could find the presence of malice. Additionally, the jury will be determining whether Defendants had probable cause. Malice and probable cause can be closely related. A jury may infer malice from lack of probable cause if no other credible evidence refutes the inference. The relationship between probable cause and malice further convinces us that the absence or existence of malice should be determined by the jury.
Rodgers, 733 N.E.2d at 843 (citations omitted).
Id.
Accordingly, it is adjudged, decreed, and ordered as follows: 1. On Count III, summary judgment is denied .
2. On Count IV, summary judgment is granted in favor of Defendants on the charge of Leaving the Scene of a Personal Injury Accident only. With respect to the other four charges, summary judgment on Count IV is denied .
3. On Count V, summary judgment is denied .
So Ordered .