Payne v. City of Chi.

• Decision Date: 16 July 2014
• Docket Number: No. 1–12–3010.,1–12–3010.
• Citation: 16 N.E.3d 110
• Parties: Jarvis PAYNE, Plaintiff–Appellant, v. The CITY OF CHICAGO, a Municipal Corporation, Defendant–Appellee.
• Court: United States Appellate Court of Illinois

16 N.E.3d 110

Jarvis PAYNE, Plaintiff–Appellant

v.The CITY OF CHICAGO, a Municipal Corporation, Defendant–Appellee.

No. 1–12–3010.

Appellate Court of Illinois, First District, Third Division.

July 16, 2014.

Curcio Law Offices, of Chicago (Joseph R. Curcio and Tracy A. Robb, of counsel), for appellant.

Stephen R. Patton, Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and Justin A. Houppert, Assistant Corporation Counsel, of counsel), for appellee.

OPINION

Justice PUCINSKI delivered the judgment of the court, with opinion.

¶ 1 Summary judgment was granted in favor of defendant City of Chicago (the City) on plaintiff's complaint, which brought a claim for common-law battery and also alleged “willful and wanton conduct.” The police responded to a call for assistance by plaintiff's relatives because plaintiff was high on crack cocaine, suffering hallucinations, physically swinging around him, had broken furniture and a window, and was injured and bleeding. When the police arrived a responding sergeant used a TASER® (TASER)¹ to subdue him. Plaintiff then either fell or jumped out of the second-floor window and became a high-level paraplegic as result of the fall. The issue presented for review is whether the trial court erred when it granted summary judgment for the defendant based on its immunity under section 4–102 of the Illinois Local Governmental and Governmental Employees Tort Immunity Act for providing police protection or service (745 ILCS 10/4–102 (West 2004) ), which provides blanket immunity, or whether the court should have held that section 2–202 of the Act (745 ILCS 10/2–202 (West 2004) ) for execution or enforcement of the law applied instead, which contains an exception for willful and wanton conduct. We hold the court correctly determined that section 4–102 applies to the facts of this case, as the police were providing a service and were not engaged in the execution or enforcement of any law at the time of the incident.

¶ 2 BACKGROUND

¶ 3 On November 1, 2004, the date of the incident in this case, plaintiff, Jarvis Payne, was living upstairs in his mother's house at 9128 S. Ellis in Chicago, Illinois. Several other family members, including his brother Eddie Payne and niece Virtira Bradshaw, also lived in the house. Plaintiff was 48 years old, 5 feet 11 inches tall, weighed between 184 and 190 pounds, and was muscular. Plaintiff had been regularly using crack cocaine since the 1980s. In November 2004, plaintiff was using it approximately twice a week. On the afternoon of November 1, 2004, plaintiff bought crack cocaine, returned to his mother's house, locked the door to his room, removed his clothes, smoked the crack, and began watching a pornographic movie. Plaintiff began to hallucinate that he was being attacked by assailants with a handgun and shotgun, and he began beating against the window of his room and yelling for help.

¶ 4 Sometime after 2 p.m., Bradshaw was downstairs with her young son when she heard the sound of plaintiff knocking over furniture upstairs. Bradshaw heard the noises were coming from inside plaintiff's bedroom upstairs and went upstairs but determined his door was locked. Bradshaw requested the help of plaintiff's brother Eddie, who was in his room across the hall from plaintiff's bedroom. Bradshaw and Eddie forced plaintiff's door open and found plaintiff naked, holding a window blind like “a machine gun,” and yelling, “They coming to get me. They coming at me.” Eddie suggested they leave plaintiff alone until he calmed down. Bradshaw went back downstairs and, after approximately 15 minutes, she heard glass breaking upstairs. She returned upstairs and again went with Eddie to plaintiff's room. They saw that plaintiff had smashed the glass in the window of his room and had begun destroying the furniture, television, and computer. They also saw that plaintiff's arms were bleeding profusely and he had splattered blood on the walls. Plaintiff was trying to break out the rest of the glass in the window with a chair. He began swinging the chair and then threw it and other objects around the room and out the window. Plaintiff repeatedly said, “Help, they're coming to get me,” and then began “hollering” for the police to come help him. Bradshaw went downstairs and made a 911 call at 2:54 p.m. requesting an ambulance to their home because plaintiff was bleeding. Bradshaw told the dispatcher that plaintiff was high on drugs, “tearing up [her] whole house,” “wigging out,” and needing medical attention. Bradshaw then called Katrina Cavanaugh, who lived across the street, and asked her to come help. Cavanaugh went upstairs with Eddie while Bradshaw remained downstairs.

¶ 5 Pursuant to the call for emergency services, the Chicago police department and the Chicago fire department were both dispatched to send police officers and firemen to render assistance. Chicago fire department personnel arrived on the scene first and went upstairs to plaintiff's room. Eddie warned them that they should be careful because plaintiff had martial arts training. After receiving this warning and seeing plaintiff's condition, they chose to wait for the police. When the paramedics arrived and saw plaintiff's condition, they did not feel able to attempt to treat him until the police arrived to subdue him.

¶ 6 Michael Concannon was a battalion chief of the Chicago fire department on the date of the incident, which is the highest nonappointment rank. Concannon responded to the call for assistance. Concannon testified that plaintiff was “nude, loud, throwing things out the window, acting irrational.” Plaintiff had his head out the window and his foot was out the window, straddling the window like he was “mounting a horse,” and plaintiff did this several times. When Concannon arrived on the scene, another fire department truck and a basic life support (BLS) ambulance were already on the scene, but Concannon called for an advanced life support (ALS) ambulance that would be equipped to deal with a life trauma situation, “if [plaintiff] jumped.” Concannon “thought [plaintiff] was going to jump” because, in Concannon's 38 years of experience, plaintiff's behavior was highly indicative of someone planning to jump. There were seven firefighters in total, five from the other fire truck, and two emergency medical technicians (EMTs) assigned to the ambulance. Concannon ordered the fire department personnel and the EMTs to leave the house until the police had plaintiff under control because the fire department personnel were not trained in negotiating with “suicid[al] people” or “jumpers” and Concannon did not want any personnel to contribute to antagonizing plaintiff. Concannon testified that only a few minutes passed before plaintiff jumped out of the window. That time, plaintiff did not straddle the window but just jumped out. Concannon testified that plaintiff took a “powerful jump” out the window. Concannon saw that plaintiff was a couple feet back from the window and that plaintiff ran up to the window and jumped. Concannon then saw plaintiff hit the front “stoops” on the side of the stairs in front of the building and bounce off and land in the front yard. Plaintiff was immediately taken in the ALS ambulance to the hospital.

¶ 7 Officer Travelle Stewart was the first police officer on the scene. Officer Stewart went upstairs and spoke with the Chicago fire department personnel and Eddie. The fire department personnel told Officer Stewart that plaintiff was not responsive to oral directions. Eddie also told Officer Stewart that plaintiff had a black belt in karate. Officer Stewart called for backup units and a supervisor. After dispatch confirmed that Sergeant Dwayne Betts would be responding, Officer Stewart requested that Sergeant Betts bring a TASER gun. A TASER is an electroshock weapon manufactured and sold by Taser International. It uses electrical current to disrupt voluntary control of muscles, causing neuromuscular incapacitation. It is used not to inflict pain but to incapacitate an individual.

¶ 8 Sergeant Betts arrived on the scene at 3:18 p.m. and observed plaintiff perched in the upstairs window and yelling unintelligible things from the upstairs window. Sergeant Betts went upstairs and briefly spoke with the officers. Stewart testified he spoke with Sergeants Betts for no more than 30 seconds regarding the situation when Betts arrived on the scene. Officer Stewart told him that plaintiff was acting “crazy,” was unresponsive, had a “third-degree black belt,” was naked, and had made comments “about killing himself.” The officers decided that they would need to enter the bedroom and physically remove plaintiff.

¶ 9 Sergeant Betts proceeded into plaintiff's bedroom with three officers following behind him. According to the officers on the scene, plaintiff was standing between one to four feet from the broken window at the time. Sergeant Betts addressed plaintiff when he walked into the room and said, “get down,” “police,” and “I'm going to TASER you,” but plaintiff did not respond. Sergeant Betts then yelled, “TASER, TASER, TASER,” and fired his TASER at plaintiff. Sergeant Betts and Officer Stewart both testified that they saw a “sparkly” electrical discharge from the TASER, which indicated that the TASER did not deploy effectively. The officers' testimony was that, instead of falling to the ground immobilized, plaintiff turned and leaped out the window. Officer Stewart testified that he believed he saw one of the prongs hit plaintiff on his left side and then plaintiff turned toward the officers and “got into like an Incredible Hulk-type move. And I thought I saw him pull the prongs out and he dove out the window.” As plaintiff went through the window, Sergeant Betts and Officer Stewart attempted unsuccessfully to grab plaintiff's foot and Sergeant Betts cut his hand. Plaintiff landed first on a concrete stoop in front of the house and then rolled into the grass in the front...