Luciano v. Waubonsee Community College

• Decision Date: 03 June 1993
• Docket Number: No. 2-92-1095,2-92-1095
• Citation: 245 Ill.App.3d 1077,185 Ill.Dec. 463,614 N.E.2d 904
• Parties: , 185 Ill.Dec. 463, 83 Ed. Law Rep. 625 David M. LUCIANO, Plaintiff-Appellant, v. WAUBONSEE COMMUNITY COLLEGE, Defendant (Tammy Abell, Indiv. and as Agent for Waubonsee Community College, Defendant-Appellee).
• Court: United States Appellate Court of Illinois

Page 904

614 N.E.2d 904

245 Ill.App.3d 1077, 185 Ill.Dec. 463,

83 Ed. Law Rep. 625

David M. LUCIANO, Plaintiff-Appellant, v. WAUBONSEE COMMUNITY COLLEGE, Defendant (Tammy Abell, Indiv. and as Agent for Waubonsee Community College,

Defendant-Appellee).

No. 2-92-1095.

Appellate Court of Illinois,

Second District.

June 3, 1993.

David M. Luciano, pro se.

Gary K. Mickey, Steven A. Andersson, Bernard K. Weiler, Mickey, Wilson, Weiler, Renzi, P.C., Aurora, for Tammy Abell.

William C. Murphy, Murphy, Hupp, Foote, Mielke & Kinnally, Aurora, for Waubonsee Community College.

Justice DOYLE delivered the opinion of the court:

Plaintiff, David M. Luciano, filed a 12-count complaint in the circuit court of Kane County against defendants, Waubonsee Community College and Tammy Abell, alleging malicious prosecution, false imprisonment and negligence. Following a dismissal with prejudice of the six counts directed to Waubonsee and a dismissal with leave to amend the remaining six counts against Tammy Abell, plaintiff filed an amended six-count complaint solely against Abell alleging malicious prosecution, false imprisonment and negligence. Following a subsequent dismissal with prejudice of plaintiff's amended complaint, vacatur of the dismissal and reinstatement of his complaint, and withdrawal of counsel, plaintiff, pro se, among other things, responded to Abell's section 2-619 motion to dismiss (see Ill.Rev.Stat.1991, ch. 110, par. 2-619) and moved for leave to file a second amended complaint. Plaintiff appeals from the order of the circuit court granting Abell's motion to dismiss plaintiff's amended complaint with prejudice and denying plaintiff leave to file a second amended complaint.

Plaintiff raises the following issues on appeal: (1) whether the trial court erred in its determination that Abell's employer Waubonsee, a community college, was a "local public entity" under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill.Rev.Stat.1989, ch. 85, par. 8-101); (2) whether a question of fact was raised as to Abell's status as an employee of Waubonsee; (3) whether plaintiffs' allegations of wilful and wanton conduct precluded Abell's availing herself of the more restrictive statute of limitations in the Tort Immunity Act; (4) whether plaintiff raised questions of fact as to the applicability of the statute of limitations period in the Tort Immunity Act; (5) whether the trial court erred in denying plaintiff's motion for leave to amend his complaint; and (6) whether the trial court was prejudiced against plaintiff because of his pro se status.

Taking only well-pleaded facts as true for the purposes of a section 2-619 motion to dismiss (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill.2d 540, 545, 12 Ill.Dec. 600, 370 N.E.2d 223), plaintiff's amended complaint alleged the following salient facts. On or about October 28, 1989, plaintiff was a guest of Waubonsee on its campus located in Sugar Grove, Illinois. On that date, plaintiff was arrested by Abell, detained in a jail cell for an "extended period of time," and charged with criminal battery and trespass. Plaintiff alleged that he was not guilty of the charges. The complaint further alleged that plaintiff was ordered by Abell to leave the premises for no reason, and as he attempted to leave the grounds of the college on his motorcycle, Abell struck plaintiff and his motorcycle with a motor vehicle causing personal injury and property damage.

As a result of the criminal charges, defendant appeared in the circuit court of Kane County. On or about January 31, 1990, the charges were dismissed. Tammy Abell failed to appear in court on three separate occasions.

On October 25, 1991, plaintiff filed a 12-count complaint against Waubonsee Community College and Tammy Abell, individually and as agent for Waubonsee Community College. The complaint alleged essentially three theories of recovery: malicious prosecution, false imprisonment and negligence. Waubonsee and Abell both filed section 2-619 motions to dismiss (Ill.Rev.Stat.1991, ch. 110, par. 2-619) asserting that Abell was an employee of a local public entity and based upon a filing date of October 25, 1991, which was more than one year following the date of injury, October 28, 1989, plaintiff's action was time barred under section 8-101 of the Tort Immunity Act (Ill.Rev.Stat.1991, ch. 85, par. 8-101). The first six counts directed against Waubonsee were dismissed with prejudice. The remaining counts directed against Abell were dismissed on the grounds that they were time barred under the Tort Immunity Act. Plaintiff was allowed leave to amend his complaint as against Abell.

In his amended complaint directed solely against Abell, plaintiff set forth essentially identical allegations as in his original complaint and sought recovery on the same three theories: malicious prosecution, false imprisonment and negligence. Abell again filed a section 2-619 motion to dismiss asserting that plaintiff's amended complaint was time barred under section 8-101 of the Tort Immunity Act. Attached to Abell's motion to dismiss was an affidavit which recited the following facts. On October 28, 1988, Abell was employed by the college as a police cadet, and at the time alleged in plaintiff's complaint she was in uniform and on duty. At the time of the alleged incident, the college was closed. Abell encountered plaintiff inside one of the closed campus buildings. She informed plaintiff that the campus was closed and that he should leave. After returning to her car, Abell called the Sugar Grove police and arranged to meet them at the front of the campus. Subsequently, plaintiff pulled Abell from her vehicle and attacked her. Shortly thereafter, the Sugar Grove police arrived. Abell further averred that all of her actions were in the course of her employment and performed pursuant to her duties as a police cadet for the college.

Shortly following the filing of defendant's motion to dismiss, plaintiff, acting pro se, caused to be issued three subpoenas duces tecum directed to the Kane County State's Attorney and two officials of Waubonsee. The subpoena directed to the State's Attorney requested various documents and notes related to plaintiff's arrest; the subpoenas directed to the college officials requested documents pertaining to the college's policies and procedures with respect to the hiring and retention of police cadets, the names and titles of persons having knowledge of the incident on October 28, information about the hiring, retention, training and work history of Abell, and any information she may have reported to the college about the October 28 incident. Plaintiff further requested documents containing rules and procedures regarding the operation of the college premises; records of arrests and civil filings related to false arrest, false imprisonment, malicious prosecution or abuse of process; and the policies and procedures employed where an employee obtains employment by fraudulent means.

Abell subsequently filed a motion to quash the subpoenas directed to the college officials. The motion was noticed up for May 28, 1992. Contained in the record is an order of the circuit court dated May 28, 1993, which purports, however, to dismiss with prejudice plaintiff's amended complaint for failure to file his complaint within the time period allowed under the Tort Immunity Act. The order further stated that plaintiff appeared, but plaintiff's counsel was absent from the hearing. The order made no mention of the motion to quash.

Approximately 12 days later, plaintiff's attorney filed a motion to vacate the order of dismissal, alleging inadvertent error. Plaintiff's attorney also filed a motion to withdraw as counsel at the request of plaintiff. The trial court granted the motion to vacate and reinstated plaintiff's amended complaint. The court further granted counsel's motion to withdraw.

Plaintiff, now proceeding pro se, filed a response to Abell's motion to dismiss and a separate response to the motion to quash the subpoenas. In addition, plaintiff filed a motion for leave to file a second amended complaint. Plaintiff attached no proposed amendment or affidavit establishing additional factual matters.

In his response to Abell's motion to dismiss, plaintiff contended that his cause of action against Abell was not time barred under the Tort Immunity Act because the college was not a "local public entity" and that Abell's conduct was wilful and wanton thus depriving her of immunity under the Tort Immunity Act. Plaintiff's response also sought to refute the averments of Abell's affidavit which was attached to her motion to dismiss. In support of his response, plaintiff asserted that the police reports, photographs and Abell's statement to police and an unnamed witness would corroborate his factual refutations. Attached to his response was an affidavit wherein plaintiff averred that he "believed" Abell falsified documents in conjunction with obtaining her position as a student cadet, that information contained in the State's Attorney's office will contradict Abell's affidavit, that information requested in the subpoenas directed to the college officials would also corroborate additional torts he wished to allege in a second amended complaint, that he had not yet acquired access to the required information, and that "due to unrelated circumstances" he was unable to attach any exhibits.

Following a hearing, the trial court granted Abell's motion to dismiss with prejudice and denied plaintiff's motion for leave to file a second amended complaint. The trial court determined that it was uncontroverted that Abell was an employee on duty at the college at the time of the occurrence giving rise to the complaint. The court further determined that the college was a local public entity within the Tort Immunity Act. Consequently, Abell's activity was within the purview of the Tort...