Moy v. County of Cook

• Decision Date: 28 July 1994
• Docket Number: No. 75436,75436
• Citation: 640 N.E.2d 926,159 Ill.2d 519,203 Ill.Dec. 776
• Parties: , 203 Ill.Dec. 776 Richard MOY, as Special Adm'r of the Estate of Choy Moy, Deceased, Appellant, v. The COUNTY OF COOK, Appellee.
• Court: Illinois Supreme Court

Page 926

640 N.E.2d 926

159 Ill.2d 519, 203 Ill.Dec. 776

Richard MOY, as Special Adm'r of the Estate of Choy Moy Deceased, Appellant, v. The COUNTY OF COOK, Appellee.

No. 75436.

Supreme Court of Illinois.

July 28, 1994.

Rehearing Denied Oct. 3, 1994.

David B. Wilson, Levin & Perconti, Chicago, for appellant.

Jack O'Malley, State's Atty., Chicago (Karen A. Covy, William P. Pestorius and Georgia A. Buglass, Asst. State's Attys., of counsel), for appellee.

Justice FREEMAN delivered the opinion of the court:

The issue presented in this appeal is whether the County of Cook may be held vicariously liable under the doctrine of respondeat superior for the alleged negligent conduct of the Cook County sheriff.

BACKGROUND

Because this appeal is before the court on the defendant county's motion to dismiss, all well-pleaded facts will be regarded as true. Plaintiff filed a three-count complaint naming Cook County as defendant. The complaint alleged that Cook County, through its sheriff, its department of corrections, its directors and its employees, owns and operates the Cook County jail and the House of Corrections. Further, the complaint alleged, inter alia, the following. The county conducted an examination of the decedent which indicated that the decedent needed an abdominal evaluation. On or about May 5, 1989, the jail facility physician interpreted a chest X ray of decedent which showed an abnormality of "distended loop of small bowel in RUQ [right upper quadrant] large fecal mass in abdomen." At no time did Cook County obtain a proper abdominal evaluation of the decedent. Cook County, through its officers, agents and employees, breached the duty owed the decedent and acted wilfully and wantonly and with conscious disregard for the safety, health and welfare of the decedent while he was in the custody of the defendant; failed to provide the decedent with medical care; and failed to refrain from wilful and wanton misconduct through its failure to properly train and supervise the jail staff.

                (Katz v. Belmont National Bank (1986), 112 Ill.2d 64, 67, 96 Ill.Dec. 697, 491 N.E.2d 1157.)   Plaintiff's decedent died while confined as an inmate at the Cook County jail.  During the period of that confinement, decedent had repeatedly complained about illness and his inability to control his bowel movements.  On July 9, 1989, two inmates told paramedics present at the jail that the decedent required medical attention and was too ill to come to the regular treatment room.  The paramedics, however, refused to see the decedent unless he came to the treatment room.  The decedent died the following morning
                

The county filed a motion to dismiss the complaint with prejudice. (Ill.Rev.Stat.1989, ch. 110, par. 2-615.) In the motion, the county averred that it was not the proper party defendant. In support of the motion, the county asserted that the county's duty regarding the jail is prescribed by statute, and that the complaint failed to allege any breach of those statutory duties. Further, the county asserted, the Cook County jail and the Cook County department of corrections are solely under the supervision and control of the sheriff of Cook County, who is an independently elected constitutional officer.

After hearing on the motion, the trial court granted the county's motion and dismissed the complaint with prejudice. Plaintiff appealed the dismissal to the appellate court. The appellate court affirmed. (244 Ill.App.3d 1034, 185 Ill.Dec. 131, 614 N.E.2d 265.) We granted plaintiff's petition for leave to appeal (134 Ill.2d R. 315(a)), and now affirm.

ANALYSIS

Plaintiff contends that the trial court erred in dismissing the complaint. The dispositive issue is whether the County of Cook may be held vicariously liable for the conduct of the Cook County sheriff.

Waiver

The county initially argues that plaintiff has waived the argument that the sheriff is an employee of the county by failing to make such argument in the trial court or on appeal. The county states that, in the trial court, plaintiff argued that the county's relationship to the sheriff was that of principal or master and, alternatively, that an agency relationship existed. However, the county contends, plaintiff never argued that an employer-employee relationship formed the basis for an imposition of the county's vicarious liability.

The argument is not waived. The complaint clearly alleges the county's liability based upon the conduct of its employees. Even had the complaint not so expressly alleged an employer-employee relationship, however, such a failing would not be fatal. Plaintiff seeks to hold the county vicariously liable under the doctrine of respondeat superior. Although the terms "principal" and "agent," "master" and "servant," "employer" and "employee" may have separate connotations for purposes of contract authority, such distinctions are immaterial for tort purposes. In order for a plaintiff to invoke the doctrine of respondeat superior, it is sufficient that one of the above relationships be established

                [203 Ill.Dec. 778] and that the wrongdoer be either the employee, the agent, or the servant.  (1 J. Lee & B. Lindahl, Modern Tort Law § 7.02 (rev. ed. 1988);  see also Dean v. Ketter (1946), 328 Ill.App.[159 Ill.2d 524]  206, 65 N.E.2d 572 (although words "agent" and "servant" are not wholly synonymous, there is no basic distinction between liability of principal for tort of agent and liability of master for tort of servant).)   Incidentally, in some works, the terms "employer" and "employee" and "master" and "servant" are used interchangeably.  See, e.g., 30 C.J.S. Employer-Employee § 3 (1992)
                

Respondeat Superior

When an action is brought against a master based on allegedly negligent acts of the servant and no independent wrong is charged on behalf of the master, liability is entirely derivative, being founded upon the doctrine of respondeat superior. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill.2d 507, 533, 111 Ill.Dec. 944, 513 N.E.2d 387.) "[T]o impute the negligence of one person to another, such persons must stand in a relation of privity and there is no such thing as imputable negligence except in those cases where such a privity as master and servant or principal and agent exists." (Palmer v. Miller (1942), 380 Ill. 256, 259-60, 43 N.E.2d 973.) The master's liability is merely by reason of the contractual relationship. (Palmer, 380 Ill. at 259, 43 N.E.2d 973; see also W. Keeton, Prosser & Keeton on Torts § 69 (5th ed. 1984).) Absent an employment relationship, the doctrine does not apply. See Palmer, 380 Ill. at 259-60, 43 N.E.2d 973 (holding that minor cannot establish relationship of master and servant and so cannot be held liable under doctrine of respondeat superior ); see also Raglin v. HMO Illinois, Inc. (1992), 230 Ill.App.3d 642, 647, 172 Ill.Dec. 90, 595 N.E.2d 153.

Plaintiff contends that the sheriff is a county officer who acts only on behalf of the county, which is responsible for his actions under the doctrine of respondeat superior. Aside from the case sub judice, the only case to decide the issue of a county's vicarious liability for the acts of its sheriff is Holda v. County of Kane (1980), 88 Ill.App.3d 522, 43 Ill.Dec. 552, 410 N.E.2d 552. The court in Holda held, in essence, that the sheriff is a county officer whose common law and statutorily imposed duties are intended to benefit the county as a whole. Therefore, the court opined, the county must be held liable under the doctrine of respondeat superior for the negligence of the sheriff in the execution of his official duties, notwithstanding the lack of the county board's control of his actions in the operation of the jail.

We reject the reasoning in Holda. That the sheriff functions to benefit the county is not a factor which can aid the distinction between a master-servant and an independent contractor relationship. In either case, whether one is a servant or an independent contractor, he functions for the benefit of another. Critical to the determination of a master-servant relationship is the existence of the right to control, which includes the power of discharge. Gundich v. Emerson-Comstock Co. (1960), 21 Ill.2d 117, 123, 171 N.E.2d 60.

The defendant county points to the County Jail Act (Ill.Rev.Stat.1991, ch. 75, par. 100 et seq.) in support of its position that no master-servant relationship exists between it and the sheriff, as the county has no control over the sheriff's conduct. Plaintiff counters, however, that the mere fact that the county has no control over the sheriff is not dispositive. He asserts that "[o]ther factors, such as whether compensation is on a time basis or by the job, the right to discharge, and the furnishing of materials, equipment or tools, are all to be taken into consideration" in the determination of the master-servant relationship. O'Brien v. Industrial Comm'n (1971), 48 Ill.2d 304, 269 N.E.2d 471.

We agree that other factors have relevance in the determination of a master-servant relationship. However, the essential and generally decisive consideration is the right to control. Lee and Lindahl suggest that while factors, such as those recited in O'Brien, need not be present for the existence of a master-servant relationship, the right to control must be present. (See 1 J. Lee & B. Lindhal, Modern Tort Law § 7.04 (rev. ed. 1988).) Dean Prosser, on the other hand, suggests that these factors determine the The county is given no authority to control the office of the sheriff. Significantly, county boards may exercise only such powers as are expressly granted by the State or arise by implication from these granted powers or are indispensable to the purpose of their existence. (Crumpler v. County of Logan (1967), 38 Ill.2d 146, 149, 230 N.E.2d 211.) Although a county board may alter or impose additional duties upon county officers, the board may not "alter the duties, powers and functions of...