Gambling v. Cornish, 74 C 3495.
| Decision Date | 17 February 1977 |
| Docket Number | No. 74 C 3495.,74 C 3495. |
| Citation | 426 F. Supp. 1153 |
| Parties | Unise GAMBLING, Plaintiff, v. George CORNISH et al., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Robert C. Howard, Chicago, Ill., for plaintiff.
Kenneth J. Cortesi, Asst. Corp. Counsel, Chicago, Ill., City of Chicago, for the City of Chicago.
AMENDED MEMORANDUM OPINION
The defendant City of Chicago has moved for summary judgment on Count III of plaintiff's complaint. Count III is a diversity claim in which plaintiff seeks damages from the City of Chicago under the theory of respondeat superior for intentional torts allegedly committed by two Chicago police officers, also named as defendants. We will grant summary judgment for the City. In granting summary judgment, we rely only on the facts which plaintiff submitted with her motion and testified to in her deposition.
The following summarizes plaintiff's version of the facts. Plaintiff and two friends were approached by two men in a car. The men were the defendants Webster and Cornish, "off-duty" Chicago policemen. When Webster asked the plaintiff for a date and she refused, Webster grabbed her wrist and threatened to shoot her. Her two friends reacted by throwing a rock at the car. Cornish then jumped out of his car and started shooting at the friends. The friends fled and plaintiff was pulled into the car. Then eight or nine police cars arrived at the scene. Approaching the car where plaintiff was sitting, a police officer in uniform drew his gun on Webster and asked what was happening. Webster identified himself and Cornish as police officers, displaying his police badge and identification card. Webster explained that he had the plaintiff under arrest for throwing a rock at his car. He asked for the location of the nearest police station. The officer gave him this information and left the scene. Webster and Cornish then drove plaintiff to a beach, where Webster raped her and Cornish forced her to commit other sexual acts.
Defendant's first contention is that plaintiff is barred under Ill.Rev.Stat. chap. 85 §§ 8-102 and 103 from suing the City, because she used an alias in her notice of claim to the City. In light of the recent Illinois Supreme Court cases, Saragusa v. City of Chicago, 63 Ill.2d 288, 348 N.E.2d 176 (1976) and Dunbar v. Reiser, 64 Ill.2d 230, 1 Ill.Dec. 89, 356 N.E.2d 89 (1976), we have concluded that plaintiff satisfied the Illinois notice requirement when she filed suit within a year of the incident.
Defendant's second argument is that the City must be dismissed because Webster and Cornish, in committing the alleged torts of false arrest, false imprisonment and sexual assault, were not acting within the scope of their employment. We agree. Because neither party to this motion controverts the facts, the issue of whether Webster and Cornish were acting within the scope of their employment is ripe for summary judgment.
The Court of Appeals for the Seventh Circuit has stated the rule of law in Illinois defining the scope of an employer's liability under the theory of respondeat superior:
The rule in Illinois is that the employer is liable for the negligent, malicious, or criminal acts of its employees when such acts are committed during the course of employment and in furtherance of the business of the employer; but when the act is committed solely for the benefit of the employee, the employer is not liable to the injured third party.
Bremen State Bank v. Hartford Accident and Indemnity Co., 427 F.2d 425, 428 (7th Cir. 1970). The rule in Illinois is also consonant with the Restatement of Agency. Section 245 of the Restatement provides:
A master is subject to liability for the intended tortious harm by a servant to the person or things of another by an act done in connection with the servant's employment, although the act was unauthorized, if the act was not unexpectable in view of the duties of the servant.
Restatement of Agency 2d, § 245 (1958). Comment (f) to Section 245 qualifies this statement:
The liability of a master for the use of force by a servant is not prevented by the fact that the servant acts in part because of a personal motive such as revenge. The master, however, is relieved from liability under the rule stated in this Section if the servant has no intent to act on his master's behalf, although the events from which the tortious act follows arise while the servant is acting in the...
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...as to be outside the scope of his employment as a matter of law. Id. at 741, 742. The same result was obtained in Gambling v. Cornish, 426 F.Supp. 1153 (N.D.Ill. 1977), where two off-duty police officers abducted and assaulted the plaintiff after she refused a request by one of the officers......
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