Love v. City of Chi.

363 F.Supp.3d 867

Arlene LOVE, Individually and as Independent Administrator of the Estate of Derek Love, Deceased, Plaintiff,

v.CITY OF CHICAGO, a Municipal Corporation; Officer David Benitez #12678, Individually and as an Agent of Defendant, City of Chicago; Officer Juan Rivera #17308, Individually and as an Agent of Defendant, City of Chicago; and Officer Alfonso Herrera #14777, Individually and as an Agent of Defendant, City of Chicago, Defendants.

No. 18 C 2742

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

Signed January 28, 2019

Bhavani Keeran Raveendran, Vincent Joseph Arrigo, Romanucci & Blandin LLC, Chicago, IL, for Plaintiff.

Iris Chavira, Marion Claire Moore, Caroline Jane Fronczak, Maria Elizabeth Magginas, Stephanie Amanda Sotomayor, David Trowbridge Hartmann, City of Chicago Department of Law, Tiffany Yvette Harris, GuideOne Insurance, Chicago, IL, Victoria Rose Benson, Law Department, City of Evanston, Evanston, IL, for Defendants.

OPINION AND ORDER

SARA L. ELLIS, United States District Judge

On July 21, 2016, Derek Love ("Derek") died after an encounter with Chicago Police Officers David Benitez, Juan Rivera, and Alfonso Herrera (collectively, the "Defendant Officers"). Derek's sister, Arlene Love, the administrator of his estate, filed this case against the Defendant Officers and the City of Chicago. In her first amended complaint, she brings wrongful death and survival claims for willful and wanton conduct against the Defendant Officers and the City (Counts I–VIII). She also raises federal claims for excessive force against the Defendant Officers (Count IX) and Monell claims against the City for failure to train and investigate, and for the perpetuation of a code of silence (Counts X and XI). The City moves to dismiss the claims for willful and wanton conduct raised against it in Counts I and II of the first amended complaint. It also asks the Court to bifurcate the Monell claims (Counts X and XI) and stay Monell discovery. The Court concludes that the independent state law claims against the City are not duplicative based on the City's acknowledgment of respondeat superior liability and that the first amended complaint does not reveal a basis for finding immunity. Further, in part because these state law claims, which are based on some of the same allegations underlying Love's Monell claim, can proceed, the Court does not find bifurcation of the Monell claims appropriate at this time.

BACKGROUND¹

On July 21, 2016, Derek stopped in the Battle of Fort Dearborn Park on his way home from his mother's house. He had with him a Nike bag, which contained several unopened cans of beer, a cell phone, a computer tablet, his identification, and some items he had just purchased from a store. Derek sat down on a bench in the park and began talking on his cell phone. An individual approached the Defendant Officers, who were on bike patrol in the park, and told them Derek was "acting suspiciously." Doc. 1-1 ¶ 22. The Defendant Officers then encircled Derek and asked him about his presence in the park. When Derek began walking away, the Defendant Officers drew their weapons and pointed them at him. Benitez discharged his weapon, which caused a self-inflicted gunshot wound. The Defendant Officers then shot at Derek, fatally striking him in his back, chest, left wrist, stomach, left side, right hip, left hip, and left leg. Although Benitez reported in his Tactical Response Report that his gunshot wound was self-inflicted, the City attempted to hide or cover-up this fact. The City did not hold the Defendant Officers accountable for shooting Derek.

ANALYSIS

I. Motion to Dismiss

A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not its merits. Fed. R. Civ. P. 12(b)(6) ; Gibson v. City of Chicago , 910 F.2d 1510, 1520 (7th Cir. 1990). In considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded facts in the plaintiff's complaint and draws all reasonable inferences from those facts in the plaintiff's favor. AnchorBank, FSB v. Hofer , 649 F.3d 610, 614 (7th Cir. 2011). To survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a claim's basis but must also be facially plausible. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; see also Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "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." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.

The City moves to dismiss the independent state law claims brought against it for willful and wanton conduct. It acknowledges that, pursuant to respondeat superior , it has an obligation to indemnify the Defendant Officers for any compensatory damages assessed against them. The City argues that any independent state law claims against it for failing to implement, adhere to, and train its officers on a use of force continuum consistent with that used by Illinois law enforcement agencies cannot proceed because the City's acknowledgement of liability under respondeat superior makes the independent claim duplicative and unnecessary.²

Under Illinois law, "once an employer admits responsibility under respondeat superior , a plaintiff may not proceed against the employer on another theory of imputed liability such as negligent entrustment or negligent hiring." Gant v. L.U. Transp., Inc. , 770 N.E.2d 1155, 1158, 331 Ill. App. 3d 924, 264 Ill.Dec. 459 (2002). The reasoning behind this principle is that additional liability should not be imposed on the employer where the employer's liability "is predicated initially on, and therefore is entirely derivative of, the negligence of the employee" and so "cannot exceed the liability of the employee." Id. , 770 N.E.2d at 1159, 264 Ill.Dec. 459. Some courts in this district have extended the principle to negligent training claims, including where a plaintiff alleges a municipality did not properly train its officers regarding the use of force. See Johnson v. First Student, Inc. , No. 18 C 50061, 2018 WL 5013918, at *1 (N.D. Ill. Oct. 16, 2018) (collecting cases); Gibson v. City of Chicago , No. 13 C 3273, 2013 WL 6698164, at *2–3 (N.D. Ill. Dec. 17, 2013) (finding claim of negligent training and supervision despite a history of officer excessive force duplicative of respondeat superior claim).

But an exception exists where a principal's culpability may be greater than that of the agent. Lockett v. Bi-State Transit Auth. , 445 N.E.2d 310, 314, 94 Ill. 2d 66, 67 Ill.Dec. 830 (1983). "Unlike the situation in negligent-entrustment cases, where the misconduct of the defendant-principal is of the same level of culpability as that of the tortfeasor-agent, defendants-principals may be found guilty of willful and wanton misconduct even though the tortfeasors-agents to whom the instrumentality causing the injury was entrusted may have been only negligent." Id. As a result, "the necessity of proof of the defendant-principal's misconduct in connection with willful-and-wanton entrustment actions is not eliminated simply because that party acknowledges an agency relationship with the tortfeasor." Id.

Such a situation could occur here, even though the Illinois Tort Immunity Act bars liability against the Defendant Officers unless Love establishes willful and wanton conduct. See 745 Ill. Comp. Stat. 10/2-202 ("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."). To prevail on a claim of willful and wanton misconduct, Love must establish the elements of a negligence claim in addition to showing the defendant had "either a deliberate intention to harm or a conscious disregard for the plaintiff's welfare." Jane Doe-3 v. McLean County Unit Dist. No. 5 Bd. of Dirs. , 973 N.E.2d 880, 887, 2012 IL 112479, 362 Ill.Dec. 484 (2012). The possibility exists that Love may only prove the Defendant Officers' negligence, meaning she cannot recover against the Defendant Officers, while at the same time demonstrating that the City engaged in willful and wanton conduct, allowing recovery on this basis. See Lockett , 445 N.E.2d at 314, 67 Ill.Dec. 830. Under such a scenario, the City's acceptance of respondeat superior liability would not address the City's independent conduct that caused Derek's injury. Accordingly, the Court cannot dismiss the independent claims against the City as duplicative of the City's admitted respondeat superior liability.³

The Court must therefore address the City's alternative arguments that the Illinois Tort Immunity Act bars these claims. Although immunity is an affirmative defense that Love need not have anticipated in the complaint, the Court may dismiss a claim based on an affirmative defense where the plaintiff has pleaded herself out of court. See Van Meter v. Darien Park Dist. , 799 N.E.2d 273, 284, 207 Ill. 2d 359, 278 Ill.Dec. 555 (2003). First, the City argues that § 2-201 of the Illinois Tort Immunity Act applies, which provides that "a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused." 745 Ill. Comp. Stat. 10/2-201. Read together with § 2-109, § 2-201 applies to the City's actions or omissions as well. See Monson v. City of Danville , 115 N.E.3d 81, 2018 IL 122486, ¶ 16, 425 Ill.Dec. 526 (2018). A policy decision, for immunity purposes, requires the municipality to balance competing interests and make judgment calls as to which course of action best serves those interests. Van Meter , 799 N.E.2d at 281–82, 278 Ill.Dec. 555. Discretionary acts are those unique to a...