Fabiano v. City of Palos Hills

• Decision Date: 25 November 2002
• Docket Number: No. 1-00-1266.,1-00-1266.
• Citation: 784 N.E.2d 258,336 Ill. App.3d 635,271 Ill.Dec. 40
• Court: United States Appellate Court of Illinois
• Parties: Sandra FABIANO and Frank Fabiano, Plaintiff-Appellants, v. The CITY OF PALOS HILLS, an Illinois Municipal Corporation, Daniel L. Hurley, Jack Roche and Steve Cardamone, Defendant-Appellees.

784 N.E.2d 258

336 Ill. App.3d 635

271 Ill.Dec. 40

Sandra FABIANO and Frank Fabiano, Plaintiff-Appellants, v. The CITY OF PALOS HILLS, an Illinois Municipal Corporation, Daniel L. Hurley, Jack Roche and Steve Cardamone, Defendant-Appellees.

No. 1-00-1266.

Appellate Court of Illinois, First District, First Division.

November 25, 2002.

Rehearing Denied February 5, 2003.

Steven D. Davis, Leslie F. Notaro, Canel, Davis and King, Chicago, for Appellant.

Ronald F. Neville, J. Mark Lukanich, Neville, Pappas and Mahoney, Chicago, for Appellee.

Justice COHEN delivered the opinion of the court:

Plaintiffs Sandra and Frank Fabiano brought suit against defendants, Palos Hills Police Chief Daniel L. Hurley, Palos Hills police officers Jack Roche and Steve Cardamone, and the City of Palos Hills (the City) raising an Illinois common law claim for malicious prosecution of Sandra Fabiano and a section 1983 civil rights claim (42 U.S.C. § 1983 (1994)) based on the malicious prosecution of Sandra Fabiano. Frank Fabiano sought damages for loss of consortium. The trial court granted summary judgment on all counts of the complaint in favor of all defendants.

The Fabianos appeal both from the grant of summary judgment of their claims and from the trial court's denial without prejudice of the Fabianos' motion to compel discovery of defendants' personnel files. For the following reasons, we reverse the order granting summary judgment in favor of defendants, affirm the order denying the Fabianos' discovery request, and remand to allow this matter to proceed to trial.

BACKGROUND

In May 1987, Sandra Fabiano owned and operated Mother Goose Day Care Center (Mother Goose) and Kids Stop Day Care Center (Kids Stop). In May 1987, J.M., a three-year-old who attended Mother Goose, made a statement to her mother and later to an emergency room physician allegedly indicating that she had been sexually assaulted by Sandra Fabiano. An investigation ensued during which members of the Palos Hills police department, the Department of Children and Family Services, and the Cook County State's Attorney's Office's Mass Molestation Task Force (the Task Force) interviewed more than 100 children attending both Mother Goose and Kids Stop over the course of 17 days. A number of children made statements to the interviewers accusing Sandra Fabiano and another teacher of committing a variety of acts of sexual abuse. Among the children alleging abuse were: J.S., a 3½-year-old child attending Mother Goose; J.N., a 3 year-old child at Mother Goose; and B.K. a 4-year-old child attending Kids Stop. On July 31, 1987, Sandra Fabiano was indicted for the aggravated criminal sexual assaults of J.M., J.S., J.N., and B.K.

Sandra Fabiano was first tried in criminal court before a jury on the charge of assaulting J.M. The jury returned a verdict of not guilty. The State's Attorney then nol-prossed the remaining indictments. The Fabianos subsequently filed a civil complaint charging Hurley, Roche, and Cardamone with malicious prosecution under Illinois common law and with violating Sandra Fabiano's civil rights under section 1983. The City was joined as a defendant under section 9-102 of the Illinois Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/9-102 (West 1994)).

Defendants moved for summary judgment arguing that: (1) there was probable cause to commence the prosecution of Sandra Fabiano; (2) defendants did not commence the prosecution of Sandra Fabiano; (3) defendants did not act with malice; and (4) defendants are immune from liability. Following a hearing, the trial court granted summary judgment in favor of defendants, finding probable cause existed, malice was not established, and defendants did not personally commence the criminal proceedings against Sandra Fabiano. The trial court did not address defendants' claims of immunity. In light of the voluminous (29 volume) record in this case, a comprehensive recitation of the evidence and argument presented in support of and in opposition to the motion for summary judgment would be both unduly burdensome and, more importantly, unnecessary in this opinion. Instead, only relevant evidence and argument are discussed as necessary throughout our analysis.

ANALYSIS

Summary judgment is proper if the pleadings, depositions and admissions on file, along with any affidavits, show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2000). The burden of proof and the initial burden of production in a motion for summary judgment lie with the movant. Pecora v. County of Cook, 323 Ill.App.3d 917, 933, 256 Ill.Dec. 652, 752 N.E.2d 532 (2001). It is well established that in determining whether a genuine issue of material fact exists, a court must construe the pleadings, depositions, admissions and affidavits strictly against the movant and liberally in favor of the opponent. Watkins v. Schmitt, 172 Ill.2d 193, 203, 216 Ill.Dec. 822, 665 N.E.2d 1379 (1996). Because the propriety of an order granting summary judgment is a question of law, our review of such an order is de novo. Pagano v. Occidental Chemical Corp., 257 Ill.App.3d 905, 909, 196 Ill.Dec. 24, 629 N.E.2d 569 (1994)

.

A defendant who moves for summary judgment may meet the initial burden of production either: (1) by affirmatively showing that some element of the cause of action must be resolved in defendant's favor; or (2) by demonstrating that plaintiff cannot produce evidence necessary to support the plaintiffs cause of action. Pecora, 323 Ill.App.3d at 933-34, 256 Ill.Dec. 652, 752 N.E.2d 532. In either case, the defendant meets its burden by producing evidence that would clearly entitle the defendant to judgment as a matter of law. Pecora, 323 Ill.App.3d at 934, 256 Ill.Dec. 652, 752 N.E.2d 532, citing Malone v. American Cyanamid Co., 271 Ill.App.3d 843, 846, 208 Ill.Dec. 437, 649 N.E.2d 493 (1995), and Williams v. Covenant Medical Center, 316 Ill.App.3d 682, 690, 250 Ill.Dec. 40, 737 N.E.2d 662 (2000). "`Only if [defendants satisfy their] initial burden of production does the burden shift to [the Fabianos] to present some factual basis that would arguably entitle [them] to a favorable judgement.'" Pecora, 323 Ill. App.3d at 933, 256 Ill.Dec. 652, 752 N.E.2d 532, quoting Rice v. AAA Aerostar, Inc., 294 Ill.App.3d 801, 805, 229 Ill.Dec. 20, 690 N.E.2d 1067 (1998).

In order to prevail on a claim of malicious prosecution under Illinois law, the plaintiff must establish: (1) the commencement or continuance of an original criminal or civil judicial proceeding by the defendant; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for such proceeding; (4) malice; and (5) damages. Swick v. Liautaud, 169 Ill.2d 504, 512, 215 Ill.Dec. 98, 662 N.E.2d 1238 (1996). All of these elements must be established; the failure to establish even one element will preclude recovery for malicious prosecution. Washington v. Summerville, 127 F.3d 552, 557 (7th Cir.1997). A plaintiff alleging malicious prosecution under section 1983 must establish: (1) all of the elements of a state law cause of action; (2) a state actor committed the prosecution; and (3) the plaintiff was deprived of a constitutionally protected liberty interest. Cervantes v. Jones, 188 F.3d 805, 809 (7th Cir.1999). The record reflects that the trial court made express findings as to three of the five elements of the Fabianos' malicious prosecution claim—commencement, probable cause, and malice. No issue was raised for purposes of summary judgment as to the elements of favorable termination of the underlying proceedings or damages. The trial court did not address defendants' immunity arguments.

It is clear that this court may affirm a grant of summary judgment on any basis in the record, irrespective of whether the trial court relied on that ground or whether its reasoning was correct. Engelland v. Clean Harbors Environmental Services, Inc., 319 Ill.App.3d 1059, 1062, 254 Ill.Dec. 251, 747 N.E.2d 8 (2001). However, this court's exhaustive review of the record leads to the inescapable conclusion that the trial court erred in granting summary judgment in this complex and fact-intensive case.

I. Probable Cause

The trial court concluded that summary judgment was proper based on the existence of probable cause. Probable cause is a state of facts that would lead a person of ordinary care and prudence to believe or to entertain an honest and sound suspicion that the accused committed the offense charged. Adams v. Sussman & Hertzberg, Ltd., 292 Ill.App.3d 30, 43, 225 Ill.Dec. 944, 684 N.E.2d 935 (1997). The existence of probable cause is a mixed question of law and fact. Adams, 292 Ill.App.3d at 43,225 Ill.Dec. 944,684 N.E.2d 935. Whether the circumstances alleged to show probable cause are true is a question of fact, but, if true, whether those circumstances amount to probable cause is a question of law to be decided by the court. Adams, 292 Ill.App.3d at 43,225 Ill.Dec. 944,684 N.E.2d 935.

In order to be entitled to summary judgment based upon the existence of probable cause, defendants had the initial burden of producing evidence that would have clearly entitled them to a finding that probable cause existed as a matter of law. Pecora, 323 Ill.App.3d at 933-34, 256 Ill.Dec. 652, 752 N.E.2d 532. In addressing the existence of probable cause, defendants rely on: (1) allegations of sexual abuse made by preschool-aged children; and (2) "medical examinations which revealed symptoms consistent with sexual abuse."

Where hearsay statements are urged to establish probable cause, such statements must be shown to be reliable. People v. Tisler, 103 Ill.2d 226, 237-38, 82 Ill.Dec. 613, 469 N.E.2d 147 (1984); Kincaid v. Ames Department Stores, Inc., 283 Ill.App.3d 555, 565, 219 Ill.Dec. 215, 670 N.E.2d 1103 (1996). A determination as to the reliability of a...