holding that the plaintiffs stated a claim for willful and wanton conduct by alleging that the defendant police officer was “in control at the scene,” “was aware” of facts establishing that the plaintiffs were in danger, and “should have acted under these circumstances to protect [the plaintiffs], but did not because of fear of liability for property damage”
How later courts described this case
- holding that the plaintiffs stated a claim for willful and wanton conduct by alleging that the defendant police officer was “in control at the scene,” “was aware” of facts establishing that the plaintiffs were in danger, and “should have acted under these circumstances to protect [the plaintiffs], but did not because of fear of liability for property damage”
- holding that there was no extreme or outrageous conduct by police officers who arrived on scene and didn't act to help plaintiff's children, but that there was extreme and outrageous conduct by the police officer who refused to help plaintiff's children and also acted in a rude and demeaning manner toward the plaintiff
- holding that a police officer behaved in an extreme and outrageous manner when he “questioned [a sexual assault victim] in [a] rude, demeaning, and accusatory manner … [,] asked inappropriate questions, such as ‘Why did you leave your children in the apartment if there was a strange man there?’”
- finding that the officer willfully and wantonly exerted control over the scene by failing to rescue the at-risk children from the intruder inside the locked apartment and by further barring the mother, neighbors and other officers from entering the apartment
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by In Re Chicago Flood Litigation, 176 Ill. 2d 179 (1997)
161 Ill.2d 374, 393-94 , 641 N.E.2d 498, 507 (1994), overruled on other grounds, In re Chi. Flood Litig., 176 Ill.2d 179 , 680 N.E.2d 265
Overruled on other grounds by DeSMET EX REL. v. County of Rock Island, 219 Ill. 2d 497 (2006)
161 Ill. 2d 374, 400 (1994), overruled on other grounds by DeSmet v. County of Rock Island, 219 Ill. 2d 497
Overruled — as noted by 3 later courts
In Ries v. City of Chicago, 242 Ill.2d 205, 351 Ill.Dec. 135, 950 N.E.2d 631 (2011), pet. for reh'g pending, the court explicitly determined that to the extent Doe holds that section 2-202 provides a willful and wanton exception to immunities under the Act, it "is no longer good law.
3 citing opinionsQuestioned by Ries v. City of Chicago, 242 Ill. 2d 205 (2011)
DeSmet can be read as leaving the door slightly ajar on the continued viability of Doe.
Distinguished
Distinguished by Payne v. LAKE FOREST COM. HIGH SCH. 115, 268 Ill. App. 3d 783 (1994)
Doe v. Calumet City (1994), 161 Ill.2d 374, 204 Ill. Dec. 274, 641 N.E.2d 498, is inapposite.
The opinion
JUSTICE HEIPLE, concurring in part and dissenting in part:
I join the majority opinion in all aspects except its ruling on plaintiffs’ claim of gender discrimination. Up until it addresses this point, the majority offers a reasoned analysis of what a jury could and could not find when plaintiffs’ allegations are taken as true, as we must do when faced with a dismissal on the pleadings.
Courts should recognize that a cause of action does not lie whenever someone is offended by the frictions that occur from day-to-day human contact. Taking plaintiffs’ allegations at face value, Jane Doe was subject to language which a sensitive person might have found offensive, but which cannot be the basis for a section 1983 or section 1988 claim ( 42 U.S.C. §§ 1983 , 1988 (1988)).
If asked to summarize the gist of plaintiffs’ complaint in this regard, it would be that: Officer Horka raised his voice to plaintiff Jane Doe, he described her as hysterical to his fellow officers, and he asked arguably demeaning questions in an attempt to find out the facts. Calumet City’s alleged gender discrimination was committed not from any facts related to plaintiffs’ undeniably horrific day in question, but rather from a long-since-ceased policy of strip searching women but not men who were arrested for certain crimes. According to plaintiffs, this induced officers other than Horka to tell distasteful jokes.
The insufficiency of plaintiffs’ complaint, however, is best illustrated not by summarizing the allegations, but rather by simply setting them forth. I therefore do so here, eliminating their many conclusions of law which we need not accept as true. In support of their claim, plaintiffs alleged the following facts:
"34. Defendant HORKA, in questioning JANE, was rude, demeaning, accusatory and raised his voice.”
"35. HORKA’s questions included: (a) Where is your husband? (b) Do you know the guy? (c) Why would you leave your children in the apartment if there was a strange man there? and (d) Why did you leave your apartment without the key?”
"77. Defendant HORKA, when describing the incident to his commander and/or to other officers arriving at the scene, described plaintiff JANE DOE with phrases such as 'an hysterical woman’, 'this girl is freaking out’, and 'she’s not coherent anymore’ and said that he could not understand her.”
"78. Several neighbors at the scene, at all times, could fully understand and comprehend what JANE was saying and was concerned about.”
"[81]b. That, at least, through August of 1987, the defendant Calumet City had a policy, practice or custom of strip searching females, but not males, who were arrested for non-felony charges without any basis for a belief that the arrestee was concealing a weapon or a controlled substance.”
"[81]c. That this policy of strip searching women, as described in fl81(b), fostered, condoned and institutionalized amongst officers of the Calumet City Police Department the differential treatment of women.”
"[81]d. Prior to December 20, 1987, the defendant Calumet City did not act in an effective manner to counteract the previously fostered, condoned and institutionalized differential treatment of women by officers of the Calumet City Police Department.”
"[81]e. That defendant Horka was brought up on charges of [the incident in question], however, none of these charges were for gender discrimination or in any way addressed Horka’s differential treatment of women. This constituted ratification of Horka’s conduct.”
"[81]f. That, upon information and belief, several Calumet City officers (not defendant HORKA) at the scene on December 20, 1987 made blatantly sexist jokes regarding plaintiff Jane Doe and the developing situation. These sexist jokes were to the effect of 'what would you expect from a woman’ and 'isn’t it just like a woman’ to be in a situation like the one at hand. None of these officers were brought up on charges or reprimanded for these comments, which similarly ratified their conduct.”
The fourteenth amendment does not guarantee that a student of Emily Post or Amy Vanderbilt will arrive at the scene when one calls the police for assistance. Section 1983 does not provide a cause of action whenever a word or phrase is spoken which happens to be on the current list of politically incorrect utterances. Neither the Constitution nor the Federal statutes require officers to speak tactfully or deferentially to a person because of his or her gender.
Because I believe that finding a cause of action for gender discrimination on the pleadings filed by plaintiffs is untenable and, indeed, wholly ridiculous, I dissent from that portion of the majority’s ruling. I join the balance of an otherwise well thought out and presented opinion.
CHIEF JUSTICE BILANDIC joins in this partial concurrence and partial dissent.