Luss v. Village of Forest Park
| Decision Date | 05 November 2007 |
| Docket Number | No. 1-06-0731.,No. 1-06-2839.,1-06-0731.,1-06-2839. |
| Citation | 878 N.E.2d 1193,377 Ill.App.3d 318 |
| Parties | Sheila LUSS, Special Administrator of the Estate of Carl D. Luss, Jr., deceased, Plaintiff-Appellant, v. The VILLAGE OF FOREST PARK, Lucius Baker, Wal-Mart Stores East, Inc., Martin Moy and Wal-Mart Loss Prevention Employee John Doe, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
John Paul Carroll, Rochester, MN, for Appellant.
Knight, Hoppe, Kurnick & Knight, Ltd., Des Plaines (William W. Kurnick and Jeanne M. Anderson, of counsel), for Village of Forest Park and Officer Lucius Baker.
Smith, Amundsen, L.L.C., Chicago (James P. Balog and Michael Resis, of counsel), for Wal-Mart Stores, Inc.
Plaintiff Sheila Luss is the special administrator of her deceased brother's estate and the caregiver of her 11-year-old nephew. Plaintiff brought this suit after her brother hanged himself in a detention cell in a police station in the Village of Forest Park, Illinois, shortly after he had been arrested for shoplifting at a Wal-Mart's store in Forest Park.
Reginald Young, the Wal-Mart security guard primarily responsible for apprehending Luss, died in an unrelated accident four months after Luss's arrest. Defendant Lucius Baker, the police officer responsible for monitoring Luss in his cell, was terminated from the police department six months after Luss's arrest for unrelated misconduct.
The defendants are: police officer Lucius Baker; the Village of Forest Park, the employer of Baker and other officers at the police station; Wal-Mart Stores, Inc., which claims it was incorrectly sued as "Wal-Mart Stores East, Inc."; Martin Moy, who was the loss-prevention supervisor at the Wal-Mart store in Forest Park at the time of Luss's apprehension; and "John Doe," who is identified in plaintiff's complaint as the Wal-Mart employee who "stopped" Luss and who "maced" him. Depositions later revealed that the Wal-Mart employee who initially stopped Luss and subsequently sprayed Luss with mace was the now-deceased Reginald Young.
The circuit court of Cook County granted defendants' motions for summary judgment, and this appeal followed. Defendant Wal-Mart moved to dismiss defendant Martin Moy from this appeal on the ground that he had never been served and no appearance had ever been filed on his behalf. On July 19, 2007, this court granted defendant Wal-Mart's motion and dismissed defendant Martin Moy from this appeal. For the following reasons, we affirm the circuit court's order with respect to the remaining defendants.
The events giving rise to this action occurred mainly in two locales and involving two groups of actors. The two locales were the Wal-Mart store in Forest Park, and the Forest Park police station. The two groups of actors were Wal-Mart employees and Forest Park police officers. For ease of discussion, we will discuss first the actions of the Wal-Mart employees and then the actions of the police officers.
The depositions, admissions and other documents filed in this case establish the following facts. Carl Luss was shopping at the Wal-Mart store in Forest Park, when Reginald Young, a security guard, detained him outside the store. Officer Roberto Salas of the Forest Park police department testified at his deposition that Young was also a corrections officer.1 Young was never deposed because he died in an unrelated accident four months after the arrest.
Former defendant Martin Moy testified at his deposition that he was the "District Loss Prevention Supervisor" for the Wal-Mart store at the time of Luss's arrest. On February 2, 2002, shortly after Luss's arrest, Moy spoke to Young on the telephone concerning the arrest. However, Young's statements to Moy are inadmissible hearsay.
Ed Smith, who was then co-manager of the Wal-Mart store, testified at his deposition that he noticed people running to exit the store, including Brandon Hunter, a Wal-Mart assistant manager. Outside the store, Smith observed Young rubbing his eyes and Hunter struggling with Luss on the pavement. Smith heard Young state that Luss had maced him. Officer Andrea Caines from the Forest Park police department also testified that a Wal-Mart security guard told her that he had been sprayed with mace by Luss, and Officer Salas from the Forest Park police department testified that Luss had been maced.2
Smith further testified that, at first, Luss was down on the pavement, and then Luss was assisted to a standing position by a wall and refused to drop the mace cannister in his hand. While Luss was standing by the wall, Hunter and Smith forced Luss's hand open in order to retrieve the mace cannister. Smith observed Luss's hands bleeding. Smith observed other Wal-Mart employees exit the store, including David Tremmel, the store manager, and Eric Struck, a loss prevention employee.
Eric Struck testified at his deposition that he was in the Wal-Mart store when he heard a store page for "Department 77," which is a code calling for loss-prevention personnel. The code was either for the front of the store or for the McDonald's restaurant that was located near the front. Struck ran toward McDonald's and observed a group of customers looking toward the door. Struck exited through the door and ran toward a group of people consisting of three men, one of whom was Young, another was a member of management and the third was Luss, who was in the middle of the two Wal-Mart employees. Struck heard Young state that Luss had maced him and that what Luss stole was inside the store.
Struck further testified that Luss still had the mace cannister in his hand, when he told Luss to drop the cannister several times. Struck then grabbed Luss's hand and someone knocked the cannister out of Luss's hand. Struck forced Luss to the ground on his stomach and Struck laid on top of him. Struck is 5 feet 11 inches and 200 pounds. Struck retrieved his Wal-Mart issued handcuffs from his pants and handcuffed Luss with Luss's hands in front.3 After Luss was handcuffed, Struck helped Luss stand up and Young left to wash the mace off his face. Struck asked Luss if he had any diseases or drug addictions, and Luss replied that he had AIDS and used heroin. While facing the wall, Luss kept attempting to turn around to spit over his shoulder. After the Forest Park police arrived, Struck informed them that Luss had AIDS, was a heroin user and was spitting.4 Struck recalled seeing Officer Baker, whom Struck knew from Baker's employment as a security guard with the Wal-Mart store. Even after the police arrived, Struck continued to observe Luss struggling and spitting.
David Tremmel, the store manager, testified at his deposition that he saw a register with customers in line but no sales associate to check them out. When Tremmel asked what had happened, a customer said that the cashier had just run outside. When Tremmel went outside, he saw Luss on the ground on his stomach, still struggling, and saw Brandon Hunter and Eric Struck, other Wal-Mart employees, attempting to restrain Luss. Tremmel "think[s]" that he helped them stand Luss up. Tremmel recalled that a Wal-Mart employee was trying to pry a mace cannister out of Luss's hand and that Luss was resisting by turning and jerking, left and right.
Struck testified that after the police left with Luss, he drove to the police station to see if he would be needed, but Officer Baker informed Struck that a criminal complaint was not ready to be signed at that time. Struck later obtained the videotape from the camera located at the entrance of the store and reviewed it, but he did not describe its contents at his deposition.5 During the evening of February 2, 2002, Struck testified that he found the DVD player taken by Luss but did not recall where he found it. At his deposition, Struck did not explain how he knew this DVD player was the merchandise taken by Luss. Struck brought the DVD player to the loss-prevention office in the store and placed it under a desk where it remained for over a month.
Former defendant Martin Moy testified that, on February 4, 2002, he observed the home entertainment system allegedly taken by Luss, in Wal-Mart's loss-prevention office, and took a Polaroid photograph of it. However, Moy did not explain at his deposition how he knew that this system was the merchandise allegedly taken by Luss. Moy further testified that the system was later returned to the shelves.6 Ed Smith, the store's co-manager, testified that he saw the system on February 2, 2002, but does not recall how he knew it was the item Luss had taken. Moy testified that store videotapes from the day in question were currently in the possession of the Forest Park police department.
Former defendant Moy testified Moy had worked for Wal-Mart part-time while working full-time for the Forest Park police department and then retired to a full-time position with the loss-prevention office at Wal-Mart. Moy placed Lieutenant Knack of the Forest Park police department in charge of hiring off-duty police officers as security guards for Wal-Mart. Knack was hired by Wal-Mart to be a liaison with the police department, and it was Knack who hired Young. Moy knew defendant Baker, who had occasionally worked as a Wal-Mart security guard. Sergeant Weiler testified that he had also worked as a Wal-Mart security guard.
After Luss was placed in handcuffs, several Forest Park police officers arrived, including defendant Officer Baker and Officers McClintock,7 Salas and Caines and Sergeant Weiler. By the time the officers arrived, Luss's knuckles were bleeding.8 In response to plaintiff's interrogatories, defendant Forest Park stated that Sergeant Weiler was the watch commander and had the authority to direct the other officers. Sergeant Weiler also testified that he was the watch commander and the highest ranking officer on duty that evening.
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