Sparks v. Starks

• Decision Date: 27 September 2006
• Docket Number: No. 1-05-2145.,1-05-2145.
• Citation: 305 Ill.Dec. 770,856 N.E.2d 575,367 Ill. App.3d 834
• Parties: Joseph J. SPARKS, Plaintiff-Appellant, v. Dereck STARKS, Thomas Tranckitello, and the City of Chicago, a Municipal Corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

856 N.E.2d 575

367 Ill. App.3d 834

305 Ill.Dec. 770

Joseph J. SPARKS, Plaintiff-Appellant, v. Dereck STARKS, Thomas Tranckitello, and the City of Chicago, a Municipal Corporation, Defendants-Appellees.

No. 1-05-2145.

Appellate Court of Illinois, First District, Third Division.

September 27, 2006.

Paul D. Geiger, Chicago, for Appellant.

Mara S. Georges, Corporation Counsel of the City of Chicago, Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, Julian N. Henriques, Jr., of counsel), for Appellees.

Justice GREIMAN delivered the opinion of the court:

Plaintiff Joseph J. Sparks filed a third amended complaint alleging willful and wanton conduct in the prosecution of an adversarial proceeding against defendants Dereck Starks and Thomas Tranckitello and the City of Chicago, which employed Starks and Tranckitello as police officers. The trial court dismissed plaintiff's third amended complaint for failure to state a cause of action pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2004)) because Illinois law does not provide an independent cause of action for willful and wanton conduct and because plaintiff failed to adequately plead a cause of action under the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1-101 et seq. (West 2004)) (the Act), which protects public employees from liability for acts or omissions in the execution or enforcement of the law, but excepts from immunity those acts and omissions that constitute willful and wanton conduct, when he failed to allege that Starks and Tranckitello were engaged in law enforcement duties at the time of the allegedly tortious conduct.

On appeal, plaintiff contends that his third amended complaint was improperly dismissed because Illinois recognizes willful and wanton misconduct as a cause of action independent of the Act and, alternatively, because the Act's requirement that plaintiff show that Starks and Tranckitello were engaged in law enforcement duties is a proof requirement, not a pleading requirement.

This action arises from a 1999 internal investigation by the Chicago police department (the Department). That investigation arose from allegations that plaintiff, in his capacity as a gang crimes specialist within the Department, had engaged in several acts of misconduct, including failing to take action on felonies he witnessed. Starks, a sergeant in the Department's internal affairs division, conducted the investigation under the supervision of Tranckitello, a police lieutenant. According to plaintiff's complaints, in his investigative file, Starks indicated that plaintiff had asked an assistant State's Attorney (ASA) to reduce criminal charges against a confidential informant. However, Starks and Tranckitello had received a letter from the ASA indicating that plaintiff had not asked for the reduction in charges. Plaintiff alleged that defendants conspired to hide the letter.

As a result of the investigation, plaintiff was suspended without pay in October 2002, and the police board initiated proceedings against him seeking his dismissal. During a disciplinary hearing regarding another officer, the letter came to light, and defendants then appended to the investigatory file a report mentioning the letter. Plaintiff alleges this report was fraudulently backdated. The proceedings against plaintiff were eventually concluded in his favor and he returned to the police force.

Soon thereafter, plaintiff left the force and filed his first complaint, alleging malicious prosecution and civil conspiracy as to the defendant officers and the City of Chicago under the doctrine of respondeat superior. The circuit court granted defendants' motions to dismiss the complaint because plaintiff did not allege special damages—damages above and beyond the normal expense and inconvenience of defending an adversarial action—a required element of the tort of malicious prosecution. See Thomas v. Hileman, 333 Ill. App.3d 132, 136, 266 Ill.Dec. 669, 775 N.E.2d 231 (2002). Plaintiff then amended his complaint to add the allegations that he was constructively discharged and that he had sought psychological counseling and care as a result of the proceedings. The circuit court also dismissed this complaint, finding that plaintiff still failed to plead special damages. Plaintiff's second amended complaint was identical to his first amended complaint except that it alleged that Starks and Tranckitello engaged in "willful and wanton conduct" in prosecuting the proceedings against him, instead of alleging malicious prosecution. Plaintiff's third amended complaint was filed prior to the circuit court taking any action on the second amended complaint. The third amended complaint added one additional factual allegation against Starks and Tranckitello, but was otherwise identical to the second amended complaint. The circuit court dismissed the third amended complaint in May 2005, finding that willful and wanton conduct is only recognized as an independent tort under section 2-202 of the Act (745 ILCS 10/2-202 (West 2004)) and that plaintiff had failed to allege that defendants were engaged in law enforcement duties at the time of the prosecution, which therefore meant the complained-of activities were outside the ambit of Act. Plaintiff appeals from the dismissal of the third amended complaint.

We find that, contrary to plaintiff's contentions, there is no common law tort of willful and wanton prosecution of an adversarial proceeding independent of the Act and, moreover, that the Act does not create such a cause of action.

This court reviews the trial court's grant of a motion to dismiss de novo. Vernon v. Schuster, 179 Ill.2d 338, 344, 228 Ill.Dec. 195, 688 N.E.2d 1172 (1997).

Willful and wanton misconduct is essentially an aggravated form of negligence, regarded as a hybrid between conduct considered negligent and conduct considered intentionally tortious. Beasley v. St. Mary's Hospital of Centralia, 200 Ill App.3d 1024, 1035-36, 146 Ill.Dec. 714, 558 N.E.2d 677 (1990); Krivitskie v. Cramlett, 301 Ill.App.3d 705, 707-708, 235 Ill.Dec. 384, 704 N.E.2d 957 (1998). Illinois courts have consistently held that there is no separate and independent tort of willful and wanton misconduct in the common law of this state. Ziarko v. Soo Line R.R. Co., 161 Ill.2d 267, 274, 204 Ill.Dec. 178, 641 N.E.2d 402 (1994), citing Morrow v. L.A. Goldschmidt Associates, Inc., 112 Ill.2d 87, 96 Ill.Dec. 939, 492 N.E.2d 181 (1986); Mucklow v. John Marshall Law School, 176 Ill.App.3d 886, 126 Ill.Dec. 314, 531 N.E.2d 941 (1988). Because Illinois law does not look favorably on wrongful prosecution suits, plaintiffs may only recover for the wrongful prosecution of an adversarial proceeding by properly alleging and proving the elements of malicious prosecution. Berlin v. Nathan, 64 Ill.App.3d 940, 947, 21 Ill.Dec. 682, 381 N.E.2d 1367 (1978); Pantone v. Demos, 59 Ill.App.3d 328, 331, 16 Ill.Dec. 607, 375 N.E.2d 480 (1978); Parker v. Lent, 167 Ill.App.3d 27, 30, 117 Ill.Dec. 684, 520 N.E.2d 1035 (1988). Put another way, Illinois courts do not recognize a cause of action for the willful and wanton filing of a lawsuit.

The cases cited by plaintiff plainly do not support his allegation that a separate cause of action for willful and wanton prosecution exists in Illinois. Ozik v. Gramins,...