text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARNISHA SCOTT, Defendant-Appellant.
    First District (4th Division)
    No. 1—87—0987
    Opinion filed March 9, 1989.

      Paul P. Biebel, Jr., Public Defender, of Chicago (Vicki Rogers, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Ca-tharine M. Forest, and Kent D. Sinson, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Defendant, Damisha Scott, was convicted of voluntary manslaughter (111. Rev. Stat. 1985, ch. 38, par. 9 — 2(b)) after a bench trial and sentenced to a seven-year term. She argues on appeal that the evidence failed to prove that her actions were not reasonable and justified in self-defense, that it was improper for the sentencing court to consider a victim impact report, and that the court abused its discretion in sentencing her to seven years’ imprisonment.

Chicago police officer Daniel Dixon testified for the State that on March 26, 1986, about 10:20 a.m. he and his partner responded to a call and found defendant and her mother on the sidewalk at an address on West 105th Street in Chicago. Defendant ran toward the police car and stated that she had been at her boyfriend’s house that night, that she had argued with her boyfriend, that he had told her that he was going to get a gun, and that although she did not see the gun, she picked up a knife and stabbed him. Defendant then directed the police to her boyfriend’s residence at 10555 South La Salle. However, when they were unable to enter the apartment, they returned to defendant’s mother’s home and Dixon attempted to telephone the boyfriend. At this point defendant’s mother handed him a knife. Later, when Dixon entered the boyfriend’s apartment, he found L.C. God-frey’s body. He did not find any weapons or towels near the body. The officer did not observe any injuries to defendant.

Godfrey’s mother, Ann Everson, testified for the State that her son did not keep any firearms in their home.

Chicago police officer Gloria Oakes testified for the State that defendant was upset, nervous and was talking in a rambling manner as they sat in the squad car in front of 10555 South La Salle. Defendant told Oakes that her boyfriend had reached for a knife, that they had struggled, and that during the struggle she took the knife and stabbed him. She did not mention a gun in the conversation. She did not observe any injuries to defendant.

It was stipulated that, if called, Dr. T.L. An would testify that he performed an autopsy on Godfrey, that Godfrey had five stab wounds, and that death resulted from multiple stab wounds to the chest and back.

Detective Robert Flood testified for the State that as part of an investigation of the stabbing, he searched Godfrey’s home and found a BE gun on a shelf of a dresser in the bedroom adjacent to the bedroom where Godfrey was found. The gun was underneath some clothes, and the room was orderly in comparison to the room where Godfrey was found. The latter room was in disarray. He did not see a green towel anywhere in or near the bedroom- where Godfrey was found.

About noon on the date of the incident, Flood interviewed defendant, who stated, after she waived her Miranda rights, that she was awakened to the smell of an “embalming fluid” tablet that was burning in an ashtray. She went to the living room, where Godfrey laughed and told her that he thought that would get her up. She then went to the kitchen to get some water, Godfrey followed and they began arguing. She began hitting him and he went to his bedroom and got a gun which he held in his right hand. She then picked up three knives and told Godfrey, “Kill me.” Two of the knives fell and God-frey twisted her left hand so that the remaining knife fell. She then picked up the knife and started cutting him until he fell.

Subsequent to this interview an assistant State’s Attorney arrived. Flood again interviewed defendant, and Flood told her that there was no gun found near Godfrey’s body. In reply she stated that she had not seen a gun but that Godfrey had a green towel. At approximately 4:30 p.m. defendant was advised of her Miranda rights, and she gave a statement which was taken in the presence of a court reporter. In this statement defendant said that after she and Godfrey struggled, he pulled her into the living room and that he had a green towel but she did not know what he had in it. She also said that she thought that he was going to kill her, that she picked up a knife and that she stabbed him two or three times in his chest. He then staggered, grabbed her, and told her not to leave him while she yelled, “Let me go.” She then ran to her home. As Flood interviewed defendant, she did not complain of injuries, and he did not observe any injuries to her face, neck, right arm or left hand.

Ruby Rodgers, defendant’s mother, testified for defendant that at approximately 10 a.m. she met defendant outside their home and found her vomiting. Defendant asked her to help and to call the police. About 15 minutes later, a police car arrived, and defendant flagged the car down. When defendant and the police returned from driving to Godfrey’s home, one of the officers came to Rodgers’ home and tried to telephone Godfrey. Defendant was very nervous and upset. Rodgers gave the police a knife that defendant had given her.

Rodgers recalled that she mentioned at about 6:30 p.m. at the police station that defendant needed medical treatment and she was told that defendant would be taken to the hospital. Rodgers claimed that defendant had a bruised neck and a swollen left hand. The next day she saw defendant in court and defendant had a scratch on her arm and a swollen hand. When defendant was released on bail, she was given a cast for her hand.

Rodgers also testified that defendant, who was 17 years old at the time of the stabbing, had dated Godfrey since she was 13 years old. Prior to the incident on March 26, 1986, Godfrey had beaten defendant numerous times. Several months before the incident, Godfrey had injured defendant in a fight that Rodgers did not witness. The police were called, and defendant went to the hospital. On the night before the stabbing Godfrey beat defendant on the street outside her home. Rodgers told the detectives that when defendant came home the next day, she told her that Godfrey had poured embalming fluid on her, straddled her while holding a knife and told her that she was going to die.

Thomas Porter testified for defendant that about 10 a.m. on March 26, he was in front of his home at 10545 South La Salle when he heard a woman screaming, “Let me go, let me go.” A few minutes later he saw defendant leave the building at 10555 South La Salle. She had a knife in her hands, and she told him to call the police.

Roy Barksdale testified for defendant that in March 1986 he saw Godfrey beating defendant on the street.

The court found that defendant was not in danger of death or great bodily harm and did not find that defendant acted in self-defense. The court found that she was seriously provoked into fighting with Godfrey and found her guilty of voluntary manslaughter. A motion for a new trial was denied.

At the sentencing hearing, the State read from portions of the victim’s impact statement that Godfrey’s mother experienced asthmatic problems, mental anguish, lack of sleep, and blood pressure problems as a result of her son’s death; that family members had been attending support groups; that her performance at work and social activity had been affected; that Godfrey had performed work around the house and had helped to support her family; that the grades of the children had suffered; and that the youngest child had to pass defendant’s house to attend school and therefore would make excuses not to attend school.

Chicago police officer Charles Harris testified for the State that on November 8, 1986, he arrested defendant for criminal damage to property, and that defendant was very disturbed and violent. He and his partner had to physically restrain defendant and handcuff her. When the complainant entered the room, she cursed him, said that she would kill him, lunged at him and struck him with her fist. Harris, his partner, and two lockup attendants had to again restrain defendant. Later, defendant would not cooperate when they tried to fingerprint her, and four people were needed to return defendant to her cell. Defendant said that she had tried to burn up the business of James Towns by turning over a space heater.

Defendant testified on her own behalf and expressed her remorse for the incident.

Defendant argues that she used deadly force to protect herself from Godfrey, that she was in fear for her life, and that, therefore, her conviction for voluntary manslaughter should be reversed. In support of her self-defense argument, defendant points to the testimony that Godfrey had previously harmed her without the use of a weapon.

Voluntary manslaughter is defined as: would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.” (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 2(b).)

“(b) A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed,

Section 7 — 1 of the Criminal Code of 1961 states:

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.” Ill. Rev. Stat. 1985, ch. 38, par. 7 — 1.

Once self-defense is raised, the State has the burden of disproving it beyond a reasonable doubt. (People v. Estes (1984), 127 Ill. App. 3d 642, 651, 469 N.E.2d 275.) When a defendant’s statement made outside of court is the only direct evidence of what occurred during the killing, the trier of fact is not required to believe defendant’s version. (People v. Lester (1981), 102 Ill. App. 3d 761, 766, 430 N.E.2d 358.) There need not be an actual rebuttal of defendant’s statement, but only a sufficient showing of circumstances from which defendant’s guilt might be concluded by probable deduction. (102 Ill. App. 3d at 766.) The court could consider defendant’s conflicting versions in determining the probability of the claim of self-defense. (102 Ill. App. 3d at 767.) The court in a bench trial is to determine the credibility of witnesses and the weight of evidence, and that determination will not be disturbed on review unless palpably erroneous. 102 Ill. App. 3d at 767.

Self-defense was raised by the State’s evidence of defendant’s conflicting statements to the police, and the trial court could have determined that it did not believe that there was a danger of imminent harm to defendant or that defendant reasonably believed that such danger was imminent, which are elements of self-defense. (People v. Carter (1985), 135 Ill. App. 3d 403, 409, 481 N.E.2d 1012.) In all the versions defendant gave to the police, there was insufficient evidence of imminent harm: (1) she told Officer Dixon that she stabbed Godfrey after he said he was going to get a gun; (2) she told Officer Oakes that Godfrey had reached for a knife; and (3) she told Detective Flood that she had not seen a gun in Godfrey’s possession but only a green towel and that she did not know what Godfrey had wrapped in that towel. Threats alone do not justify the use of deadly force. (People v. Carbajal (1978), 67 Ill. App. 3d 236, 241, 384 N.E.2d 824.) And even if, as claimed in the second version, the knife was seen by defendant as Godfrey reached for it, the trial court could have found her testimony incredible, especially because she told conflicting versions. Defendant’s guilt was proven beyond a reasonable doubt.

Defendant argues that it was improper for the trial court to consider a victim impact statement at the sentencing hearing because it was not relevant and violated defendant’s due process rights. The State argues that this issue was waived. While defendant did not object at trial to the evidence of victim impact and while failure to object to evidence waives the issue on appeal (People v. Lewis (1988), 165 Ill App. 3d 97, 111, 518 N.E.2d 741), the issue of the constitutionality of section 6 of the Bill of Rights for Victims and Witnesses of Violent Crime Act (Ill. Rev. Stat. 1985, ch. 38, par. 1406) can be reviewed under the plain error doctrine. (107 Ill. 2d R. 615(a); see also People v. Simms (1988), 121 Ill. 2d 259, 272-73, 520 N.E.2d 308 (Booth issue considered under plain error doctrine).) Also, defendant was not required to file a post-sentencing motion. See People v. Hargis (1983), 118 Ill. App. 3d 1064, 1083, 456 N.E.2d 250.

Section 6 permits a victim of a violent crime to address the sentencing court regarding the impact which defendant’s criminal conduct has had upon him. (Ill. Rev. Stat. 1985, ch. 38, par. 1406.) The statute provides that the court shall consider any statements made by the victim in determining the sentence. (Ill. Rev. Stat. 1987, ch. 38, par. 1406.) The Unified Code of Corrections also provides that at the sentencing hearing, the court shall afford the victim of a violent crime the opportunity to make a statement concerning the impact on the victim and to offer evidence in aggravation or mitigation. 111. Rev. Stat. 1987, ch. 38, par. 1005-4-l(a)(6).

Defendant relies primarily upon Booth v. Maryland (1987), 482 U.S. 496, 96 L. Ed. 2d 440, 107 S. Ct. 2529, which provided that the eighth amendment prohibits, in the sentencing phase of a capital murder trial, the jury’s consideration of a victim impact statement. But defendant in the instant case was not eligible to be sentenced to the death penalty, and defendant has not cited noncapital cases in which the victim impact statements made at the sentencing hearing were held prejudicial. And, a trial court’s consideration of evidence of victim impact at the sentencing hearing in a noncapital case has recently been upheld as not violative of the eighth amendment of the constitution or the due process clause. (People v. Hines (1988), 165 Ill. App. 3d 289, 303, 518 N.E.2d 1362.) Furthermore, unlike the unique situation in Booth which created the risk that the jury would impose the death penalty in an arbitrary and capricious manner (Booth, 482 U.S. at 502, 96 L. Ed. 2d at 448, 107 S. Ct. at 2532), there is no basis to conclude here that the trial court was unduly influenced by the evidence of victim impact in sentencing defendant. See People v. Crews (1988), 122 Ill. 2d 266, 288, 522 N.E.2d 167 (trial judge did not rely on victim impact evidence in sentencing defendant to death).

Defendant finally argues that the trial court abused its discretion in sentencing her to seven years’ imprisonment because the trial court did not give adequate weight to defendant’s history, character, and potential for rehabilitation. The trial court could have sentenced defendant from 4 to 15 years’ imprisonment (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(a)(4)), and so her sentence is within the permissible range. Because defendant received a mid-range sentence, we do not see the basis for defendant’s argument that it is apparent that the trial court failed to consider defendant’s limited education, youth and abusive social background. We cannot say that the trial court abused its discretion in imposing its sentence. People v. Perruquet (1977), 68 Ill. 2d 149, 156, 368 N.E.2d 882.

The judgment of the circuit court is affirmed.

Judgment affirmed.

JOHNSON and McMORROW, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McMORROW

license: Public Domain

text:
    DOROTHY KOELLER, Plaintiff-Appellant, v. COOK COUNTY et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—87—2116
    Opinion filed March 9, 1989.

      Law Offices of John D. Parrilli, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (John Cherry, Myra J. Brown, and Wayne R. Braverman, Assistant State’s Attorneys, of counsel), for appellees.
   JUSTICE McMORROW

delivered the opinion of the court:

Plaintiff, Dorothy Koeller, appeals from summary judgment for defendants, Cook County (the County) and the Cook County deputy chief medical examiner, Dr. Edmund Donoghue, in an action seeking recovery for mental anguish she suffered as a result of the allegedly negligent, reckless and wilful and wanton acts and omissions of defendants in their handling of the body of her deceased brother, David Koeller. The remaining named defendant, the City of Chicago, is not a party to this appeal. We affirm.

Twenty people, including plaintiffs brother, David Koeller, died as the result of a fire in an apartment building at 5523 N. Kenmore Avenue in Chicago on March 14, 1981. The bodies of the victims were transported to the Cook County medical examiner’s office by members of the Chicago police department. A body assigned the number 81 — 323 was tentatively identified in a police report as being that of “Donald Koelleck,” which was the name on a prescription medicine vial found in a pocket of the deceased’s clothing. The police officers who transported the body to the morgue showed the vial to a morgue attendant and then placed it in the body bag containing body 81 — 323. Dr. Donoghue did not see or request access to the police report to aid in the identifications of any of the fire victims, nor did he know about or ever receive the vial mentioned in the report which, apparently, was lost. He was, however, in possession of a list of the names of the tenants of the apartment building. Although body 81 — 323 was partially burned, including mild burning over the face, the burning was not severe enough to interfere with visual identification or fingerprinting.

An investigator from the medical examiner’s office contacted the Koeller family two days after the fire to inform them that it appeared from the tenant list that a person named David or Donald Koeller may have been one of the victims of the fire. However, a few days later, the investigator telephoned Daniel Koeller, a brother of the plaintiff and the deceased, and told Daniel that “they didn’t believe it was David.”

On March 16, 1981, a security guard who in 1980 had shot Donald Koeller, David’s twin brother, viewed body 81 — 323 and stated that it was not that of Donald Koeller. This conclusion was consistent with the physical examination of the body, which revealed no gunshot wounds.

On March 15, Ronald Zimney received a call from a friend who reported to him that his brother, Lee Zimney, had been in the apartment building on the night of the fire. On March 18, Ronald and his wife, Gail, looked at photographs and television monitor films of the four yet-unidentified victims. Ronald and Gail both agreed that body 81 — 323 was that of Lee Zimney. Gail also viewed the body and stated that although the bums made identification difficult, she believed, from the size, build and facial features, that it was the body of her brother-in-law. The Zimneys also supplied Dr. Donoghue with a description of Lee Zimney and his dental records. Dr. Donoghue compared Lee Zimney’s dental X rays with those taken of body 81— 323 and found them to be similar. Later that same day, after being informed of the Zimneys’ identification of the body, Dr. Pavlik, chief of forensic odontology at the medical examiner’s officer, also made a comparison of the X rays and concurred with Dr. Donoghue’s preliminary finding that they matched.

On the basis of the Zimneys’ identification of the body as being that of Lee Zimney and the similarities in the dental X rays, as well as the lack of any conflicting identification evidence — such as fingerprints, the taking of which is normally the responsibility of the police, or any personal effects found on or with the deceased — Dr. Donoghue authorized the release of the body to the Zimneys. The body was cremated and interred on March 19, 1981, by the Zimney family.

Almost one year later, the police report tentatively identifying body 81 — 323 as “Donald Koelleck” on the basis of the medicine vial was brought to the attention of Dr. Donoghue. Plaintiff was contacted and thereafter came to the medical examiner’s office to view photographs of all the victims of the fire. She identified the photograph of body 81 — 323 as being that of her brother, David Koeller. After further examination by a second forensic odontologist, it was determined that the dental X rays of body 81 — 323 did not match those of Lee Zimney. Dr. Donoghue also contacted the Zimneys to inform them of the misidentification. After a reexamination of the photographs she viewed in March 1981, Gail Zimney still believed the photograph of body 81 — 323 to be that of Lee Zimney. In March 1982, the remains of David Koeller were exhumed and given to the Koeller family.

On June 28, 1982, plaintiff filed a three-count complaint against defendants. In her complaint, as subsequently amended, plaintiff alleged that defendants had negligently, recklessly and wilfully and wantonly failed to make a proper identification of the body of her brother; failed to take all steps necessary to keep and maintain the body in a condition suitable for a proper burial; failed to deliver the body to her in substantially the same condition it had been received; failed to do whatever was necessary to insure that the body would be maintained in as good a condition as it was when received; failed to deliver the body to her despite her repeated requests for it; denied her the opportunity to make a positive identification of the body; interfered with her efforts to arrange a proper and decent burial of the body; and allowed her brother’s misidentified body to be cremated against her wishes. The complaint further alleged that she suffered extreme mental anguish as a proximate result of defendants’ acts and omissions in the handling and disposition of her brother’s body.

Defendants filed a motion to dismiss plaintiff’s complaint on the ground that on March 25, 1982, plaintiff’s father, David’s next of kin, had signed a release holding defendants harmless for any damages arising from the misidentification, incorrect release and cremation of David Koeller’s body. In response thereto, plaintiff argued that the release had been procured by fraud and coercion while her father was under severe duress; that the fraudulently obtained release did not bind David’s estate or other family members; that she had since been appointed administratrix of David’s estate; and the suit was brought by her as the decedent’s sister “for negligent infliction of severe mental distress.”

Defendants thereafter withdrew their motion to dismiss on the basis of the release and, on December 16, 1986, filed a joint motion for summary judgment on the grounds that they were immune from liability under sections 2 — 109 and 2 — 201, as well as section 2 — 202, of the Local Governmental and Governmental Employees Tort Immunity Act (111. Rev. Stat. 1985, ch. 85, pars. 2 — 109, 2 — 201, 2 — 202) (the Tort Immunity Act). Defendants also asserted as a basis for dismissal that an estate is not entitled to relief for wrongful interference with a corpse or for emotional harm that may have resulted from any allegedly unauthorized act relating to a corpse.

In her response to the motion for summary judgment, plaintiff argued that the immunity sections relied upon by defendants did not apply to the acts and omissions alleged in her complaint. Plaintiff also stated that although she was identified in the caption of the complaint as administratrix of the estate, the suit was not brought by her in that capacity but, rather, on her own behalf as the decedent’s sister.

On January 26, 1987, defendants filed a reply to plaintiff’s response to the motions for summary judgment reasserting the applicability of the Tort Immunity Act to the instant case. Citing Courtney v. St. Joseph Hospital (1986), 149 Ill. App. 3d 397, 500 N.E.2d 703, which had been decided less than three months earlier, defendants also moved for dismissal on the ground that Illinois does not recognize a cause of action for emotional distress arising from the negligent mishandling of a corpse.

Following a hearing on June 3, 1987, the trial court found that defendants were immune from liability under sections 2 — 201 and 2— 109 of the Tort Immunity Act, which provide, respectively: “a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury *** when acting in the exercise of such discretion even though abused” (111. Rev. Stat. 1985, ch. 85, par. 2 — 201); and that “[a] local public entity is not liable for an injury resulting from an act or omission of its employees where the employee is not liable” (111. Rev. Stat. 1985, ch. 85, par. 2 — 109). The trial court granted defendants’ motions for summary judgment and dismissed plaintiff’s complaint. This appeal followed.

Plaintiff contends that the trial court erred in ruling that the defendants were immune from liability under sections 2 — 201 and 2— 109 of the Tort Immunity Act. Plaintiff argues that the duties of the County and Dr. Donoghue with respect to the handling and disposition of corpses received by the medical examiner’s officer are not discretionary functions but, rather, are “ministerial” or “operational” duties which are not immunized by the Tort Immunity Act.

However, it is not necessary to reach this issue since we conclude that plaintiff’s complaint failed to state a cause of action in the first instance and, therefore, was properly dismissed. We recognize that this was not the basis upon which the trial court granted judgment for defendants and dismissed plaintiff’s complaint. However, as the supreme court stated in Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 457 N.E.2d 9:

“It is the judgment and not what else may have been said by the lower court that is on appeal to the court of review. [Citations.] The reviewing court is not bound to accept the reasons given by the trial court for its judgment [citation], and the judgment may be sustained upon any ground warranted, regardless of whether it was relied on by the trial court and regardless of whether the reason given by the trial court was correct.” 98 Ill. 2d at 387.

As noted above, in their reply to plaintiff’s memorandum in opposition to their motion for summary judgment, defendants cited to and briefly argued the applicability of Courtney v. St. Joseph Hospital (1986), 149 Ill. App. 3d 397, 500 N.E.2d 703, appeal denied (1987), 114 Ill. 2d 544, to the instant case. Nevertheless, the only issue reached at the hearing was whether the Tort Immunity Act afforded defendants immunity for the acts and omissions alleged by plaintiff. However, we find that the holding in Courtney is applicable to the instant case and must be addressed.

In Courtney, the plaintiff-widow filed a complaint alleging that she suffered severe emotional distress resulting from the defendant-hospital’s negligent failure to preserve the body of her deceased husband in a condition suitable for an open-casket wake. According to the complaint, the body had decomposed after the refrigeration unit in the hospital morgue malfunctioned. This court permitted an interlocutory appeal pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308) to decide the question certified by the trial court following its denial of the defendant’s motion to dismiss. The question accepted for discretionary review was “whether Illinois recognizes a cause of action for emotional distress arising from the negligent mishandling of a corpse.” The Courtney court held that Rickey v. Chicago Transit Authority (1983), 98 Ill. 2d 546, 457 N.E.2d 1, was dispositive of that question.

In Rickey, the eight-year-old plaintiff sought damages for the emotional distress he suffered as a result of witnessing the near-strangulation of his five-year-old brother by an article of clothing which had become entangled in the mechanism of a CTA escalator. In its review of plaintiff’s claim, the supreme court first noted that under the long-standing “impact rule” applied in Illinois, “recovery for negligently caused emotional distress suffered by the direct victim or by a bystander who witnesses the injury of another has been consistently denied unless it was accompanied by a contemporaneous physical injury to or impact on the plaintiff.” (98 Ill. 2d at 550.) Following a discussion of the reasons a large number of jurisdictions have abandoned the “impact rule,” the court announced a new standard which would henceforth be applied in Illinois. The supreme court defined that standard, generally known as the “zone of physical danger rale,” as follows:

“[A] bystander who is in a zone of physical danger and who, because of the defendant’s negligence, has reasonable fear for his own safety is given a right of action for physical injury or illness resulting from emotional distress. This rule does not require that the bystander suffer a physical impact or injury at the time of the negligent act, but it does require that he must have been in such proximity to the accident in which the direct victim was physically injured that there was a high risk to him of physical impact.” 98 Ill. 2d at 555.

Applying the rule enunciated in Rickey, the appellate court in Courtney held that in order to state a cause of action for negligent infliction of emotional distress under the “zone of physical danger” test, the plaintiff was required to show that she was within a zone of physical danger; that she experienced reasonable fear for her own safety and that physical illness or injury resulted from the emotional distress caused by defendant’s negligence. As noted by the court, however, the plaintiff in Courtney did not allege, nor did she contend on appeal, that she was within a zone of physical danger causing her to fear for her own safety or that she suffered physical injury or illness as a result of the emotional distress she suffered upon learning that her husband’s body had decomposed. The court disagreed with plaintiff’s argument that the requirements for recovery under Rickey do not apply to direct victims of negligence. The court stated that the focus of that standard is on whether the plaintiff was in proximity to the danger, and held, in response to the question of law certified on appeal, “that Illinois does not recognize a cause of action for emotional distress arising from the negligent mishandling of a corpse.” Courtney, 149 Ill. App. 3d at 403.

The holding in Courtney comports with numerous other decisions applying the standard set out in Rickey. E.g., Johnston v. St. Anne’s Hospital West, Inc. (1986), 146 Ill. App. 3d 763, 497 N.E.2d 408 (complaint properly dismissed for failure to state a cause of action for negligent infliction of emotional distress where plaintiffs, decedent’s wife and daughter, could not have shown that they were in a zone of physical danger causing them reasonable fear for their own safety where the hospital failed to promptly inform them of the decedent’s death and they unexpectedly found him dead in his hospital room); Lewis v. Westinghouse Electric Corp. (1985), 139 Ill. App. 3d 634, 487 N.E.2d 1071 (to state a cause of action under the zone of physical danger rule, the plaintiff, whether bystander or direct victim, must have been in such proximity to the accident that there was a high risk of physical impact so as to cause her reasonable fear for her own safety and plaintiff must also show a physical injury or illness resulting from the emotional distress for which recovery is sought); Gihring v. Butcher (1985), 138 Ill. App. 3d 976, 487 N.E.2d 75 (the zone of physical danger rule requiring a showing that defendant’s negligence placed plaintiff in reasonable fear for her own safety precluded plaintiff’s action against her husband’s former medical and psychiatric physicians for negligent infliction of emotional distress arising after the plaintiff found her husband dead in their garage as a result of suicide); see also Hammond, v. Lane (1987), 162 Ill. App. 3d 17, 516 N.E.2d 470 (plaintiff who did not allege that she was in a zone of danger and had reasonable fear for her personal safety failed to state a cause of action for negligent infliction of emotional distress resulting in physical illness or injury from alleged sexual contacts by her psychiatrist).

Here, as in Courtney, plaintiff seeks damages for the emotional distress she suffered as a result of defendants’ allegedly negligent misidentification and mishandling of her deceased brother’s body. Just as in Courtney, however, plaintiff did not allege any physical injury or illness resulting from the emotional distress; neither did she plead, nor could the facts presented possibly support a contention, that she witnessed any accident or injury to her brother or that she was in such proximity to the negligent acts and omissions as to be in a zone of physical danger causing her to experience reasonable fear for her own safety. To the contrary, the pleadings, depositions, and affidavits in the record categorically and undeniably establish that the decedent’s death took place before, and was completely unrelated to, the acts and omissions complained of and that those acts and omissions occurred almost a year before she became aware of them. (Cf Johnston v. St. Anne’s Hospital West, Inc. (1986), 146 Ill. App. 3d 763, 497 N.E.2d 408 (plaintiffs who did not witness any accident or injury to decedent could not show that they were in a zone of physical danger causing them to fear for their own safety); see also Hearon v. City of Chicago (1987), 157 Ill. App. 3d 633, 510 N.E.2d 1192.) In summary, we conclude that plaintiff’s complaint purports to state a cause of action for the infliction of emotional distress arising from the negligent mishandling of a corpse. Because, under the analysis of the supreme court in Rickey v. Chicago Transit Authority (1983), 98 Ill. 2d 546, 457 N.E.2d 1, Illinois does not recognize such an action (Courtney v. St. Joseph Hospital (1986), 149 Ill. App. 3d 397, 500 N.E.2d 703), the complaint was properly dismissed.

The inclusion of the count in plaintiffs complaint alleging that the County recklessly and wilfully and wantonly committed the acts and omissions alleged in plaintiff’s complaint does not alter our conclusion that the complaint was properly dismissed.

The tort of intentional infliction of emotional distress was first recognized in Illinois in Knierim v. Izzo (1961), 22 Ill. 2d 73, 174 N.E.2d 157, as an exception to the long-standing rule that a plaintiff may not recover for emotional distress unless he/she was physically injured by the defendant’s conduct. Fifteen years later, in Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 360 N.E.2d 765, the supreme court additionally recognized the existence of a cause of action for severe emotional distress caused by reckless conduct. The court held that to sustain an action for either intentional or reckless infliction of emotional distress: (1) the conduct giving rise to it must be so outrageous in character and so extreme in nature as to go beyond all possible bounds of decency; (2) the emotional distress was so severe that no reasonable person could be expected to endure it; and (3) despite a high probability that such severe emotional distress will follow, the actor goes ahead with the conduct in conscious disregard of that probability. (66 Ill. 2d at 89-90.) See generally McCarthy, Illinois Law in Distress: The “Zone of Danger” and “Physical Injury” Rules in Emotional Distress Litigation, 19 J. Marshall L. Rev. 17 (1985).

In Hearon v. City of Chicago (1987), 157 Ill. App. 3d 633, 510 N.E.2d 1192, we applied these tests in reviewing the sufficiency of a complaint presenting a factual situation strikingly similar to the one at bar. In that case, the plaintiff-widow filed a complaint against the City of Chicago, Cook County and various doctors, police officers and funeral directors for actions relating to the death, autopsy, and burial by the defendants of the body of her husband, who was found stabbed to death. The plaintiff learned of his death four months later and was then asked by the doctors to identify the exhumed body. In her complaint, plaintiff contended that the failure of the county doctors and officers to notify her of her husband’s death even though they knew or should have known his identity from papers found on the body, the unnecessarily extensive autopsy performed by them, their disposition of the body, and their request that she view the body without warning her of its condition were all done in conscious disregard of and with utter indifference to her rights, and that she suffered severe emotional distress as a result thereof. The appellate court found that the facts presented did not reasonably support the conclusions: that defendants’ conduct was so outrageous in character or extreme in nature as to have been beyond all possible bounds of decency; that the distress she suffered was so severe that no reasonable person could be expected to endure it; that defendants knew that severe emotional distress was certain or substantially certain to result from acts they performed five months earlier; or that they continued to act in the face of a high degree of probability that severe emotional distress would ultimately occur. Consequently, the court held that plaintiff had failed to satisfy the threshold elements necessary to bring an action to recover for the infliction of emotional distress. (157 111. App. 3d at 636.) The facts in the instant case compel the same conclusion.

Plaintiff argues in her brief that the defendants committed a “series of errors, *** beginning with the loss of evidence that would have identified the body, that culminated in the unauthorized cremation of Koeller’s body” and that “the reckless and sloppy practice of the Morgue in this case could easily be considered wilful and wanton misconduct.” We note that by Dr. Donoghue’s own admission, the process used to identify body 81 — 323 was flawed and mistakes occurred. The medicine vial found in decedent’s pocket was lost by an unknown person sometime after the body was first brought in and placed on the floor of the morgue; the police report on which body 81 — 323 was tentatively identified as “Donald Koelleck” was not requested to aid in identifying the victims; fingerprints were not taken from the body; David Koeller was named as a building occupant on a tenant list provided to the medical examiner’s office; and the postmortem dental X rays were incorrectly determined to match those of Lee Zimney.

However, it is also uncontroverted that decedent’s body was one of approximately 19 others brought into the medical examiner’s office within a matter of hours after the fire in the apartment building; that photographs and dental X rays were taken of the body; that, although later advised otherwise, the Koeller family was notified within two days of the possibility that a family member was one of the victims; that a security guard who viewed the body concluded that it was not that of Donald Koeller, the decedent’s twin brother; that the name on the lost medicine vial was not the decedent’s name; that Dr. Donoghue did ask the Zimneys to bring in whatever identifying records they had of Lee Zimney; that there were some similarities between the dental X rays; and that the Zimneys affirmatively identified body 81 — 323 to be that of their relative, Lee Zimney, a belief held by Gail Zimney even after the misidentification was discovered.

The facts adduced in this case provide no reasonable support for a finding that the County’s conduct in the midst of its response to a mass tragedy was so outrageous or extreme as to go beyond all possible bounds of decency, or that the County knew there was a high probability that emotional distress would occur as a result of the acts and omissions of its employees, but that the actors nevertheless proceeded in conscious disregard of that probability. Indeed, the allegations directed against the County in count I of plaintiff’s complaint alleging reckless and wilful and wanton conduct are verbatim restatements of those in counts II and III alleging negligence by the County and Dr. Donoghue. Merely inserting the words “reckless” and “wilful and wanton” in place of “careless” and “negligent” without supporting factual allegations is not sufficient to state a cause of action for reckless infliction of emotional distress. (Cf. Neuberg v. Michael Reese Hospital & Medical Center (1978), 60 Ill. App. 3d 679, 377 N.E.2d 215 (allegations of reckless and wilful and wanton misconduct in a complaint filed by the parents of two boys who developed cancer several years after being treated with radiation before such treatment was linked with thyroid cancer without allegations that defendants committed the acts with the intent to inflict severe emotional distress or that they knew that severe emotional distress was certain or substantially certain to result were insufficient, and failed to state a cause of action for the infliction of emotional distress).) In summary, we conclude that plaintiff has failed to state a cause of action for reckless or wilful and wanton infliction of emotional distress and that the trial court correctly, albeit for other reasons, ruled in favor of defendants and dismissed plaintiff’s complaint.

For the reasons stated, the order dismissing plaintiff’s complaint is affirmed.

Affirmed.

JIGANTI, P.J., and LINN, J., concur.

      The terms “reckless” and “wilful and wanton” are considered legal equivalents. Hearon v. City of Chicago (1987), 157 Ill. App. 3d 633, 637, 510 N.E.2d 1192.


author: PRESIDING JUSTICE JIGANTI

text:
    DEARLOVE COVE CONDOMINIUMS et al., Plaintiffs-Appellees, v. KIN CONSTRUCTION COMPANY, INC., Defendant-Appellant (Josada Builders, Inc., et al., Defendants).
    First District (4th Division)
    No. 1—87—3711
    Opinion filed March 9, 1989.
    Gerald M. Petacque and Steven Ackerman, both of Chicago, for appellant.
    Walter J. Starck and Lawrence Jay Weiner, both of Schwartz & Freeman, of Chicago, for appellees.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

This appeal involves a question of whether a complaint alleging a breach of implied warranty of habitability was time barred by the limitations period dealing with building-construction actions. 111. Rev. Stat. 1983, ch. 110, par. 13-214.

On April 26, 1983, the plaintiffs, Dearlove Cove Condominiums, an Illinois entity, and owners of various condominium units in the Dearlove Cove Condominium project, filed a complaint against Josada Builders, Inc., the general contractor for Dearlove Cove Condominiums, and others to recover damages for faults and defects that appeared in the construction of a condominium development project. On April 1, 1985, the plaintiffs discovered that Josada Builders, not a party to this appeal, was insolvent. On July 21, 1986, the plaintiffs filed an amended complaint adding several defendants, including Kin Construction Company, a subcontractor who performed work under a contract with Josada Builders, in their amended complaint, the plaintiffs sought damages on the basis that Kin Construction breached its implied warranty of habitability. Kin moved to dismiss the complaint on the ground that the plaintiffs’ action was time barred by the building-construction statute of limitations. (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 214.) The motion was denied. Kin appeals pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308).

Section 13 — 214 provides, in pertinent part:

“(a) Actions based upon tort, contract or otherwise against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property shall be commenced within 2 years from the time the person bringing an action, or his or her privity, knew or should reasonably have known of such act or omission.
(b) No action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property after 12 years have elapsed from the time of such act or omission. However, any person who discovers such act or omission prior to expiration of 12 years from the time of such act or omission shall in no event have less than 2 years to bring an action as provided in subsection (a) of this Section.” 111. Rev. Stat. 1983, ch. 110, pars. 13 — 214(a), (b).

Kin argues on appeal that under section 13 — 214(a) the two-year statute of limitations was triggered when the plaintiffs knew or should have known of the act or omission of Kin which caused the fault or defects. According to Kin, the plaintiffs knew of the act or omission at least as early as April 26, 1983, the date the original complaint was filed against Josada Builders, and therefore, the plaintiffs’ complaint against Kin, which was filed July 21, 1986, over three years later, was untimely.

The plaintiffs maintain that their complaint against Kin was timely because it was based on Minton v. The Richards Group of Chicago (1983), 116 Ill. App. 3d 852, 452 N.E.2d 835. Minton held that where the purchaser of a newly constructed residential property has no recourse against the general contractor by reason of insolvency, and allegedly sustained loss due to defects caused by the subcontractor, the implied warranty of habitability would extend to the subcontractors who participated in the construction of the property. (116 Ill. App. 3d at 855, 452 N.E.2d at 837.) Minton followed the reasoning of Redarowicz v. Ohlendorf (1982), 92 Ill. 2d 171, 441 N.E.2d 324, in which the supreme court extended the implied warranty of habitability, as first adopted in Petersen v. Hubschman Construction Co. (1979), 76 Ill. 2d 31, 389 N.E.2d 1154, to the benefit of subsequent purchasers of newly constructed residential properties despite the lack of privity between the parties. Relying on the strong public policy enunciated in Redarowicz to protect innocent purchasers of newly constructed residential property, the court in Minton extended the implied warranty of habitability to subcontractors when the purchaser has no recourse against the general contractor due to insolvency, despite the lack of privity of contract between the purchaser and the subcontractors.

Although Minton did not involve a statute of limitations question, the plaintiffs argue that, because under Minton their cause of action against Kin did not arise until Josada Builders was insolvent, the statute of limitations under section 13 — 214(a) is triggered at the time the plaintiffs knew or should have known of Josada Builders’ insolvency. The plaintiffs conclude that because they knew of Josada’s insolvency on April 1, 1985, the filing of their complaint against Kin Construction on July 21, 1986, 15 months later, was timely under the two-year limitations period of section 13 — 214(a).

Kin insists that under the clear wording of section 13 — 214(a), the limitations period is triggered at the time that the plaintiffs knew or should reasonably have known of the act or omission of Kin which resulted in faulty or defective construction. Thus, according to Kin, to hold that the limitations period is triggered when the plaintiff had a cause of action against the subcontractor because of the insolvency of the general contractor would be contrary to the unambiguous language of section 13 — 214. Kin further argues that the court has no authority to engraft an exception upon a statute of limitations. Finally, Kin argues that to allow the statute to be triggered by the insolvency of the general contractor would be contrary to the public policy of the legislature in enacting section 13 — 214 to protect those persons involved in the design and construction of buildings from exposure to liability indefinitely.

The plaintiffs respond that holding that the statute of limitations is triggered when the plaintiffs know or reasonably should know of the general contractor’s insolvency does not involve creating an exception to the statute of limitations as set forth in section 13 — 214, but rather involves a construction of the discovery rule contained within this section in light of the particular facts and applicable law. The plaintiffs point out that they had no cause of action against Kin for breach of implied warranty of habitability until Josada Builders became insolvent. To adopt Kin’s argument, the statute of limitations would have begun to run when the plaintiffs knew or should have known that Kin performed the faulty work in question, even though Josada Builders was not yet insolvent and the plaintiffs did not yet have a cause of action against Kin. The plaintiffs further argue that barring the cause of action before it existed would undermine the purpose of Minton, which, as stated above, is to extend the implied warranty of habitability to subcontractors when the general contractor is insolvent in order to protect innocent purchasers.

We agree with the plaintiffs. As long as the plaintiffs’ original action against the general contractor is timely, we believe that the plaintiffs should be able to bring their action against the subcontractor within two years from the time at which the plaintiffs knew or reasonably should have known of the existence of the right to sue. (Rozny v. Marnul (1969), 43 Ill. 2d 54, 70, 250 N.E.2d 656, 664.) Thus, the plaintiffs had two years from the time they knew or should have known of the general contractor’s insolvency.

We do not believe that such a holding is inconsistent with the language in section 13 — 214. The plaintiffs still must bring an action against the general contractor within two years from the time they knew or should reasonably have known of such act or omission even if the subcontractor was responsible for the act or omission. It is only if and when the general contractor becomes insolvent that the plaintiffs can bring their implied warranty of habitability action against the subcontractor based on that act or omission.

Nor do we believe that the legislature’s effort to protect those involved in the design and construction of buildings from exposure to liability indefinitely is thwarted. Subsection (b) of section 13 — 214 contains a 12-year repose period which would bar actions against the general contractor brought more than 12 years after the act or omission which caused the defect. Therefore, the subcontractor would only be liable if the general contractor became insolvent within that 12-year period.

In conclusion we hold that where a plaintiff timely files an action against a general contractor for faults or defects in construction, and that general contractor subsequently becomes insolvent, allowing the plaintiff to bring an action against a subcontractor for breach of implied warranty of habitability under Minton, the statute of limitations is triggered at the time that the plaintiff knew or reasonably should have known of the general contractor’s insolvency. For the foregoing reasons, the decision of the trial court is affirmed.

Affirmed.

LINN and McMORROW, JJ., concur.


text:
    BRENDA HAYES, Adm’r of the Estate of Vincent Hayes, Plaintiff, v. MERCY HOSPITAL AND MEDICAL CENTER et al., Defendants (The City of Chicago et al., Third-Party Plaintiffs-Appellants; Michael Jerva, Third-Party Defendant-Appellee; Penn Trailers and Truck Bodies Corporation et al., Third-Party Plaintiffs-Appellants).
    First District (4th Division)
    Nos. 1—88—1088,1—88—1113 cons.
    Opinion filed March 9, 1989.

      Judson H. Miner, Corporation Counsel, of Chicago (Ruth M. Moscovitch and L. Anita Richardson, Assistant Corporation Counsel, of counsel), for appellants.
    Wildman, Harrold, Allen & Dixon, of Chicago (John M. Stalmack, Ruth E. Van Demark, and Daniel R. Gregus, of counsel), for appellee Michael Jerva.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

This appeal involves the question of whether the statutory period of repose governing medical malpractice claims can bar a third-party action in contribution against a physician.

Vincent Hayes, not a party to this appeal, was injured on January 1, 1982. On December 29, 1983, he filed an action against numerous defendants, including the City of Chicago, Penn Trailers and Truck Bodies Corporation, and Michael Jerva, M.D. On January 29, 1985, Dr. Jerva was dismissed with prejudice pursuant to a stipulation between Dr. Jerva and Brenda Hayes, who was substituted as plaintiff upon the death of Vincent Hayes. On October 24, 1986, Penn Trailers filed a third-party complaint in contribution against Dr. Jerva, alleging acts of negligence arising out of the care and treatment of Vincent Hayes on January 1, 1982. The City of Chicago filed a similar complaint on October 28, 1986. Dr. Jerva moved to dismiss the third-party complaints. The basis for the motion was that more than four years had elapsed since the alleged negligence of Dr. Jerva and therefore the third-party action was barred by the four-year period of repose governing medical malpractice claims. 111. Rev. Stat. 1985, ch. 110, par. 13 — 212.

Section 13 — 212 of the Code of Civil Procedure provides in pertinent part:

“No action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than U years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death except as provided in Section 13 — 215 of this Act. (Emphasis added.) Ill. Rev. Stat. 1985, ch. 110, par. 13 — 212.

On appeal, the City of Chicago and Penn Trailers and Truck Bodies Corporation (City) contend that the four-year period of repose in section 13 — 212 does not apply to contribution actions. In support of this contention, the City maintains that under the express language of the statute the term “otherwise,” contained in section 13 — 212 (“[n]o action for damages for injury or death against any physician *** whether based upon tort, or breach of contract, or otherwise, arising out of patient care”), refers to unspecified theories of liability supporting an “action for damages for injury or death.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 212.) According to the City, a contribution action is not an “action for damages for injury or death” but is a separate and independent action which is equitable in nature, designed to insure that all tortfeasors shoulder their fair share of the burden of damages awarded in the underlying, direct action.

We disagree with the City’s proposed reading of section 13— 212. “Otherwise” is by definition a broad term. It is defined to mean “in a different way or manner,” “under different circumstances,” and “in other respects.” (Webster’s Third New International Dictionary 1598 (1981).) A plain reading of the pertinent statutory language indicates that section 13 — 212 applies to all medical malpractice claims against physicians regardless of the posture of the claim. Thus a contribution action is just a “different way” of bringing an action for damages for injury or death against a physician.

In concluding that the language of section 13 — 212 includes actions for contribution, we find Hartford Fire Insurance Co. v. Architectural Management, Inc. (1987), 158 Ill. App. 3d 515, 511 N.E.2d 706, persuasive. Hartford construed the language of a similar statute — the building-construction statute of limitations which includes a 12-year period of repose. Ill. Rev. Stat. 1981, ch. 110, par. 13 — 214(b).

Section 13 — 214(b) provides in pertinent part:

“No action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property after 12 years have elapsed from the time of such act or omission. However, any person who discovers such act or omission prior to expiration of 12 years from the time of such act or omission shall in no event have less than 2 years to bring an action as provided in subsection (a).” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 214(b).)

The court in Hartford held that under section 13 — 214(b) third-party claims for contribution arising out of an act or omission in the construction process which were not filed within the statute’s 12-year period of repose were time barred. The court’s holding was based primarily on the “broad[ ] and unequivocal ]” language of the statute in addition to the legislative history which indicated an intent that section 13 — 214(b) govern all actions against persons involved in construction-related activities. Hartford, 158 Ill. App. 3d at 518, 511 N.E.2d at 708.

Because of the similarity between the statutes, we adopt Hartford’s construction and hold that based on the broad and unequivocal language, section 13 — 212 governs all medical malpractice claims including actions in contribution. Although, as the City points out, the legislative history regarding the enactment of section 13 — 212 is minimal, we think such a reading is consistent with the purpose of setting a four-year period of repose in order to prevent extended exposure to liability in medical malpractice cases. (Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, 240, 243-44, 447 N.E.2d 408, 415, 417.) Placing a four-year firm outer limit on the time between the last act or omission constituting the alleged malpractice and the filing of the suit cuts off the long tail of liability that the discovery rule had previously allowed and enables malpractice insurers to predict future liabilities and alleviate their need to maintain loss reserves past the four-year period. Roberson v. Taylor (1983), 115 Ill. App. 3d 587, 591, 451 N.E.2d 16, 18.

Further, although sections 13 — 212 and 13 — 214(b) were enacted at different times, during the House debates, the sponsor of the bill later codified as section 13 — 214 (House Bill 1031) recognized that the purpose behind the building-construction statute of limitations was similar to the purpose behind the medical malpractice statute of limitations.

“Representative Dunn: *** [W]e have enacted the Products Liability statute of limitations and a statute of limitations for physicians. In light of that background, this seems like a reasonable thing to do to protect those who construct improvements to real property. At the present time, they have no protection whatsoever from negligence. There is no, no limitation whatsoever. The time limit is two years from discovery. Discovery can take place 75 years after construction.” (81st Ill. Gen. Assem., House Proceedings, May 25, 1979, at 30.)

We agree with Dr. Jerva that it would be paradoxical to accept the City’s argument that the repose period in the building-construction statute bars contribution as decided in Hartford but that the repose period of the medical malpractice statute does not.

Finally, in this regard we note that the conclusion that section 13 — 212 is meant to apply to all medical malpractice claims against physicians is not new. In Roberson v. Taylor (1983), 115 v. App. 3d 587, 451 N.E.2d 16, this court, in rejecting the plaintiff’s argument that section 13 — 212 should not apply because damages for economic loss rather than damages for “injury or death” were being sought, stated that section 13 — 212 “unambiguously applies] to all medical and malpractice claims against physicians.” Roberson, 115 Ill. App. 3d at 589, 451 N.E.2d at 17, citing Moore v. Jackson (1983), 95 Ill. 2d 223, 235, 447 N.E.2d 408, 413.

The City also argues that a repose period already exists for contribution actions and therefore the medical malpractice period of repose is inapplicable. The City maintains that the time limitations for contribution actions are found in section 13 — 204 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 204), section 5 of the Contribution Act (Ill. Rev. Stat. 1985, ch. 70, par. 305), and Laue v. Leifheit (1984), 105 Ill. 2d 191, 473 N.E.2d 939, which when read in conjunction with each other stand for the proposition that the City’s claim for contribution was timely because it was filed during the pendency of the underlying direct action by Brenda Hayes, the original plaintiff.

Section 13 — 204 states:

“No action for contribution among joint tortfeasors shall be commenced with respect to any payment made in excess of a party’s pro rata share more than 2 years after the party seeking contribution has made such payment towards discharge of his or her liability.” 111. Rev. Stat. 1985, ch. 110, par. 13 — 204.

Section 5 of the Contribution Act states:

“A cause of action for contribution among joint tortfeasors may be asserted by a separate action before or after payment, by counterclaim or by third-party complaint in a pending action.” Ill. Rev. Stat. 1985, ch. 70, par. 305.

Laue v. Leifheit held that under section 5 of the Contribution Act, if there is a pending action, then the party seeking contribution must assert a claim by counterclaim or by third-party claim while the original action is pending.

Initially, we note that while section 13 — 204 expressly bars contribution actions brought more than two years after payment by a joint tortfeasor, it does not state that all contribution actions brought within two years are timely. (Hartford Fire Insurance Co. v. Architectural Management, Inc. (1987), 158 Ill. App. 3d 515, 518, 511 N.E.2d 706, 708.) Nor does the section 5 of the Contribution Act state that all claims in contribution brought during the pendency of the underlying action are timely filed. Laue, which construed the language of section 5 of the Contribution Act, merely held that the language in section 5 providing that a contribution claim may be asserted by a “separate action before or after payment” covers situations where no suit is pending which was initiated by the injured party; however, if there is a pending action, the contribution claim should be asserted “by counterclaim or by third-party claim” in that action. (Laue, 105 Ill. 2d at 196, 473 N.E.2d at 941-42.) Thus, contrary to the City’s position, we do not believe that section 13 — 204, section 5 of the Contribution Act, and Lam address the question of whether a contribution claim filed in a medical malpractice action is timely filed.

Further, any time limitations established by either section 13 — 204 or section 5 of the Contribution Act apply generally to contribution actions. Section 13 — 212 applies to actions arising out of certain conduct by certain people in the health care profession. Since a more specific statute controls' over a general statute (Calumet Country Club v. Roberts Environmental Control Corp. (1985), 136 Ill. App. 3d 610, 612, 483 N.E.2d 613, 615), we find that section 13 — 212 governs the time within which a medical malpractice claim must be brought. See LaSalle National Bank v. Edward M. Cohon & Associates, Ltd. (1988), 177 Ill. App. 3d 464, 473, 532 N.E.2d 314, 320.

For the foregoing reasons we find that the applicable statute of repose is found in section 13 — 212. Because the City’s action was filed more than four years after the date of the alleged negligent acts of Dr. Jerva, we hold that the trial court properly dismissed the City’s third-party complaint against Dr. Jerva.

Affirmed.

LINN and McMORROW, JJ., concur.


text:
    SERVICE CENTERS OF CHICAGO, INC., d/b/a Deliverex of Chicago, Plaintiff-Appellee, v. JEFFREY M. MINOGUE et al., Defendants-Appellants.
    First District (4th Division)
    No. 1—88—2448
    Opinion filed March 9, 1989.

      Deutsch, Levy & Engel, Chartered, of Chicago (Paul M. Levy, Scott B. Greene, and Terese Keirnan-Shust, of counsel), for appellants.
    Vedder, Price, Kaufman & Kammholz, of Chicago (Richard F. Zehnle, Patricia C. Cook, and John E. Dougherty, of counsel), for appellee.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The trial court preliminarily enjoined the defendants, Jeffrey M. Minogue and Filefax, Inc., from using trade secrets and confidential information allegedly obtained during Minogue’s employment with the plaintiff, Service Centers of Chicago, Inc., d/b/a Deliverex of Chicago (Deliverex). The order further enjoined the defendants from providing services to Lutheran General Hospital. Minogue has appealed, contending that Deliverex failed to prove the existence of any trade secrets or confidential information sufficient to warrant injunctive relief. Alternatively, Minogue contends that the injunction order is facially invalid because it fails to meet the specificity requirements of section 11 — 101 of the Elinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 11-101).

Deliverex operates a business which provides off-site medical records storage and retrieval services for health-care facilities. Deliverex formed its Chicago operation in September 1987 with Gardner Hei-drick as owner and president of the franchise. The service provided by Deliverex is directed toward hospitals and other health-care facilities and consists of purging the existing medical files, storing them on open shelves at an off-site facility duplicating the hospital’s filing system, and retrieving the files when needed by the hospital. Deliverex hired Jeffrey Minogue as a salesman in October 1987 and sent him to San Jose, California, to participate in a one-week training program.

Before the training program began, Minogue was required to sign what the parties refer to as a confidentiality agreement, which stated in part:

“1. Acknowledgement of Trade Secrets. The Employee hereby acknowledges that the information and materials provided to him/her by the Company and/or Deliverex, Inc., Securex Inc., its employees, franchisees, agents or business advisors concerning or in any way relating to the Company, Deliverex, Inc. and/ or Securex Inc., or services or products associated with the trademark Securex, Inc. and/or Deliverex, Inc. are confidential and are trade secrets.

2. Covenant Not To Disclose. The Employee hereby agrees not to disclose or disseminate any information or material provided to him/her by the Company, Securex, Inc., and/or De-liverex, Inc. or their employees, agents or business advisers to any person or entity whatsoever other than the Employee’s attorneys, accountants or business advisors.

3. Restriction on Use. The Employee agrees that he/she will not use any confidential information or trade secrets received from Securex, Inc. and/or Deliverex, Inc. or their employees, franchisees, agents or business advisors in the event that the Employee leaves his/her employment with the Company. To that end, it is agreed that if the Employee engages in a business similar to the business of the Company, Securex, Inc. and/ or Deliverex, Inc., within a period of two (2) years of the date the Employee discontinues his/her employment with the Company, the Employee shall assume the burden of proving that the Employee has not used any such confidential information or trade secrets in such business, regardless of the geographical location of the Employee’s business.”

After signing this agreement, Minogue visited an operating storage facility and reviewed certain sales and marketing materials. During his classroom training, Minogue became familiar with a survey used to analyze a potential customer’s needs and determine the monthly rate to charge that customer. Minogue was also taught how to write a pricing proposal.

Minogue then returned to Chicago and began work as a salesman for Deliverex. During the course of his five-month employment with Deliverex, Minogue made sales calls upon area hospitals, including Lutheran General, where he met with the director of radiology, Judy Koptik. After making a sales presentation and conducting a survey to determine the hospital’s needs, Minogue drafted and submitted a proposal containing a price quotation.

On March 8, 1988, Koptik and another hospital representative accompanied Minogue and Heidrick on an inspection of Deliverex’ storage facility. At that time, the facility was in a warehouse shared by another business and was essentially inoperable. Koptik raised several objections about the condition of the facility, and Minogue later called her to apologize. During that conversation, Koptik suggested to Minogue that he start his own company.

Displeased with the Deliverex operation, Minogue tendered his resignation on March 17, 1988. One week later, he contacted Koptik and informed her that he had formed Filefax, Inc. On March 31, 1988, Filefax submitted a proposal to Lutheran General offering the same services as those offered by Deliverex. In May of 1988, Lutheran General awarded the contract to Filefax, Inc., and the instant lawsuit was filed.

In its complaint, Deliverex alleged that Minogue breached the confidentiality agreement by using confidential information or trade secrets consisting of “techniques of marketing, techniques of record organization, pricing mechanisms and business forms which have been developed by [Deliverex’] franchisor through 15 years of experience in the industry.” At the hearing in the trial court, counsel for Deliverex argued that it was the “Deliverex system, formula, method, [and] technique” that constituted a trade secret.

On appeal, Deliverex has narrowed its claim of trade secrets to the pricing formula used to calculate a flat monthly fee for each customer. The pricing formula has three main components: (1) a survey or questionnaire used to identify the customer’s needs; (2) the use of a linear foot measurement; and (3) certain rules of thumb.

Charles Williams, president of Securex, Inc., testified at the hearing on the preliminary injunction that the Deliverex system of purging, storing and retrieving hospital records was unique and that it had not lost a customer in its 15 years of operation. Williams stated that although several component parts of the Deliverex system were contained in an advertising brochure and therefore not confidential, it was the entire system or process of pricing and providing services which rendered it confidential. The advertising brochure, introduced as an exhibit at trial, stated that Deliverex analyzes the hospital’s needs, then stores its files off-site using the same filing system used by the hospital. The brochure further states that Deliverex offers a fixed monthly fee, daily scheduled deliveries, one-hour delivery on a “stat” basis, facsimile transmission, nearby facilities and complete interfiling retrieval and purging services. Pictures in the brochure show that the files are located on open shelves.

Williams stated that the main advantage of the Deliverex system was its ability to offer a flat monthly rate, thereby allowing the customer to predict the costs. According to Williams, all Deliverex’ competitors charged customers on a “per retrieval” basis. The pricing mechanism which allowed the calculation of a flat monthly rate had three major components which were confidential: (1) a 20-page survey used to determine the needs of the customer; (2) the use of a linear foot measurement; and (3) certain “rules of thumb.” The survey was not introduced into evidence at trial. However, Williams testified that it contained questions about the age, thickness and condition of the files to be stored as well as questions about the hospital’s filing system. After obtaining this information, certain “rules of thumb” arrived at over the 15 years Deliverex had been in business are used as guidelines to estimate how much the customer should be charged. While Williams did not specify what “rules of thumb” were, Minogue listed certain examples. He stated that in calculating how many records are in the hospital, “you add up the number of feet of records and divide by the number of years to get an average.” Another “rule of thumb” is that medical records should be 75 cents to 85 cents per foot and an X ray should be $1 to $1.15 per foot. Patient accounts are 65 cents per foot.

At the conclusion of the hearing, the trial court issued a preliminary injunction which stated that Minogue “is hereby enjoined from utilizing the particulars that he learned confidentially as to how to implement the system either in pursuit of business for himself, File-fax, Inc. or others who could profit by the confidential information for a period of two years from the date he left the plaintiff’s employ.” The court further enjoined Minogue and Filefax, Inc., “from performing any further services to Lutheran General Hospital as he has been providing for two years from the date Jeffrey Minogue left the plaintiffs employ.” Minogue has appealed, contending that De-liverex failed to prove the existence of any confidential information or trade secrets.

Throughout the course of this litigation, Deliverex has consistently failed to identify with any degree of particularity the alleged trade secrets or confidential information in need of protection. The confidentiality agreement signed by Minogue at the inception of his employment with Deliverex broadly recites that “the information and materials provided to [the employee] *** concerning or in any way relating to [Deliverex] *** are confidential and are trade secrets.” The complaint, recited earlier, is in very general terms as were the arguments in the trial court. This lack of specificity is reflected in the trial court’s order, which vaguely states that “[Deliverex’] brochure proposes the language to describe the [Deliverex] system,” then enjoins Minogue from “utilizing the particulars that he learned confidentially as to how to implement the system.” The specific claim before us on appeal is that the pricing formula used to calculate a fixed monthly fee is the trade secret or confidential information. The question is then whether Deliverex presented sufficient evidence at the preliminary injunction to show a probability that it would succeed in establishing that the pricing formula is a trade secret.

The protection accorded to trade secrets reflects a balancing of conflicting social and economic concerns. (ILG Industries, Inc. v. Scott (1971), 49 Ill. 2d 88, 273 N.E.2d 393.) On one hand, an employer who has invested time, money and effort in developing a secret advantage should be protected from a former employee who obtains the secret through improper means. (Televation Telecommunication Systems, Inc. v. Saindon (1988), 169 Ill. App. 3d 8, 522 N.E.2d 1359.) On the other hand, the court must recognize that in a society based on competition, the employee has a right to make use of the general knowledge and skills acquired through experience in pursuing the occupation for which he is best suited. Sain- don, 169 Ill. App. 3d 8, 522 N.E.2d 1359.

The essential element to any relief trader the law is the existence of confidential information or a trade secret. (AMP, Inc. v. Fleischhaker (7th Cir. 1987), 823 F.2d 1199.) In ILG Industries, Inc. v. Scott (1971), 49 Ill. 2d 88, 92, 273 N.E.2d 393, 395, the Illinois Supreme Court defined a trade secret as “a plan or process, tool, mechanism, compound, or informational data utilized by a person in his business operations and known only to him and such limited other persons to whom it may be necessary to confide it.” Quoting the Restatement of Torts, section 757, comment b, at 6 (1939), the court identified the following six factors as significant in determining the existence of a trade secret:

“ ‘(1) [T]he extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or money expended by him in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.’ ” ILG Industries, Inc. v. Scott (1971), 49 Ill. 2d 88, 93, 273 N.E.2d 393, 396.

The legislature recently extended statutory protection to trade secrets by enacting the Illinois Trade Secrets Act (Act) (Ill. Rev. Stat. 1987, ch. 140, par. 351 et seq. (effective January 1, 1988)). The Act defines a trade secret as follows:

“ ‘Trade secret’ means information, including but not limited to, technical or non-technical data, a formula, pattern, compilation, program, device, method, technique, drawing, process, financial data, or list of actual or potential customers or suppliers, that:

(1) is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use; and

(2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality.” Ill. Rev. Stat. 1987, ch. 140, pars. 352(dXl), (d)(2) (effective January 1,1988).

The focus of both the common law and the Act is on the secrecy of the information sought to be protected. Under ILG Industries, Inc. v. Scott (1971), 49 Ill. 2d 88, 92, 273 N.E.2d 393, 395, the person claiming trade secret protection must establish that the information was known “only to him and such limited other persons to whom it may be necessary to confide it.” In the words of the Act, the information must be “sufficiently secret to derive economic value *** from not being generally known to other persons who can obtain economic value from its disclosure or use.” (Ill. Rev. Stat. 1987, ch. 140, par. 352(d)(1).) The purpose of such wording is “to preclude protection for information not generally known to the public but clearly understood in a particular industry.” See M. Jaeger, Trade Secrets Law §3.04, at 3-34 (1988).

In order to prove that its pricing formula constitutes a trade secret or confidential information within the meaning of the Act, Deliverex must establish that the value of the formula lies in the fact that it is not generally known to others who could benefit by using it. The evidence presented at the hearing on Deliverex’ motion for a preliminary injunction shows that the pricing formula is made up of three parts: a customer survey, certain “rules of thumb” and the use of a linear foot measurement.

The customer survey was not introduced into evidence, and we are therefore unaware of its contents apart from the testimony of Charles Williams that it contains questions about the age, thickness and condition of the files to be stored. There is nothing in the record, however, which establishes that this information is not generally known in the medical records storage industry. Significantly, De-liverex has failed to direct us to any evidence in the record concerning the amount of time, money or effort involved in compiling the survey questions. These are factors which the court in ILG Industries, Inc. v. Scott considered as important in identifying a trade secret. The lack of evidence concerning these factors seems to support the conclusion that the survey failed to contain any information which was not generally known in the industry but that it instead embodied nothing more than the obvious questions any salesman in the industry would need to ask in determining a customer’s needs.

The second component of the pricing formula is comprised of certain “rules of thumb.” Without any significant detail they are described as “an invaluable part of the Deliverex pricing system” developed over the course of 15 years and known only to Deliverex employees “which allowed Deliverex to accurately and efficiently predict the retrieval rate and set a competitive fixed rate.” Like the customer survey, Deliverex has failed to show that the information underlying these “rules of thumb” was not generally known in the medical records storage industry. Moreover, it is recognized that an employee may derive some benefit from his access to the collective experience of his employer’s business. (Fleming Sales Co. v. Bailey (N.D. Ill. 1985), 611 F. Supp. 507, 514.) It appears that the knowledge of estimating costs obtained by Minogue during the course of his employment with Deliverex came within the realm of general skills and knowledge which he was free to take and use in later pursuits.

The third component of the pricing formula is the use of a linear foot measurement. The sole statement regarding the linear foot measurement is that Deliverex is the only company in the industry to use this measurement in calculating price. Simply being the first or only one to use certain information does not in and of itself transform otherwise general knowledge into a trade secret. If it did, the first person to use the information, no matter how ordinary or well known, would be able to appropriate it to his own use under the guise of a trade secret. We do not believe such a result was intended by the Act.

In summary, Deliverex claims that its method of pricing is a trade secret because, at least until Minogue came on the scene, none of its competitors offered a fixed monthly fee. However, it did not establish that its ability to offer this fee was the result of information or a process which was not generally known to others. It proved only that it was the first company to offer a fixed rate and that its way of doing business was highly attractive to its customers. In the absence of any protectable trade secret or confidential information, Minogue is entitled to use the general skills he learned during his employment with Deliverex to form a competing company. Neither singularly nor cumulatively is there sufficient evidence at the preliminary injunction hearing to show a probability that Deliverex will succeed in establishing that the pricing formula is a trade secret.

Deliverex also argues that even if the pricing formula does not rise to the level of a trade secret, it was protected by the confidentiality agreement signed by Minogue. Even if we were to accept the contention that the pricing formula constituted the type of information which could be protected by a restrictive covenant prohibiting its disclosure or use, it is clear that the confidentiality agreement in the case at bar was overbroad. By defining confidential information as essentially all of the information provided by Deliverex to Minogue “concerning or in any way relating” to the services offered by Deliverex, the confidentiality agreement amounts in effect to a post-employment covenant not to compete which is completely unrestricted in duration or geographical scope. This type of covenant is unreasonable and will not be enforced. Dryvit System, Inc. v. Rush ing (1985), 132 Ill. App. 3d 9, 477 N.E.2d 35.

Our disposition of this cause makes it unnecessary to consider Minogue’s contention concerning the facial invalidity of the injunction order.

For the foregoing reasons, the judgment of the trial court is reversed.

Reversed.

JOHNSON and LINN, JJ., concur.

      Securex, Inc., is described in the record as the master franchisee of Deliverex, Inc., with world-wide rights to the Deliverex system. Securex, Inc., is the franchisor of Deliverex of Chicago.


author: JUSTICE PINCHAM

text:
    LILLIAN R. CAPODAGLI, Adm’x of the Estate of David P. Capodagli, Deceased, Plaintiff-Appellant, v. ROBERT D. WILSON, Chief of Police of the City of Markham, Defendant-Appellee.
    First District (5th Division)
    No. 1—86—2491
    Opinion filed March 10, 1989.

      Corey E. Meyer and Michael J. McArdle, both of Michael J. McArdle, Chartered, of Chicago, for appellant.
    Richard L. Hutchinson, of Tinley Park, for appellee.
   JUSTICE PINCHAM

delivered the opinion of the court:

The plaintiff, Lillian R. Capodagli, administratrix of the estate of David Capodagli, appeals from the trial court’s judgment notwithstanding the verdict in favor of defendant, Robert D. Wilson, chief of police of the City of Markham. We affirm. Our reasons follow.

On July 5, 1980, 19-year-old David Capodagli (David), while under the influence of alcohol and methaqualone, was arrested by City of Markham police for outstanding warrants. He was placed, alone, in a City of Markham jail cell. One hour later, David was found hanging in the cell by his tank top t-shirt. He had committed suicide.

Plaintiff filed the instant complaint under the Civil Rights Act (42 U.S.C. §1983 (1982)) as the administratrix of the estate of David Capo-dagli. In the complaint, plaintiff alleged that David was denied his right under the fourteenth amendment to the Constitution of the United States not to be deprived of his life without due process of law. (U.S. Const., amend XIV.) Plaintiff’s complaint alleged that the policies of the defendant, in his official capacity as the City of Markham police chief, which permitted (1) prisoners known to be intoxicated to be placed in a jail cell without first undergoing a medical examination to ascertain their well being, and (2) intoxicated prisoners to be detained in a jail cell without being visually observed at periodic intervals, were inherently deficient procedures for detaining prisoners.

Following trial, the jury returned a verdict in favor of plaintiff and awarded plaintiff $375,000 in damages. However, the trial court entered a judgment notwithstanding the jury’s verdict in favor of defendant.

On this appeal, plaintiff maintains that she is entitled to a reversal of the judgment in favor of defendant and that she is entitled to a reentry of the judgment because the trial court did not apply the correct legal standards governing entry of a judgment notwithstanding the verdict. Conversely, the defendant maintains that the trial court used the correct standards for entry of a judgment notwithstanding the verdict, as set forth in section 2 — 1202 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1202). It is there provided:

“Relief after trial may include the entry of judgment if under the evidence in the case it would have been the duty of the court to direct a verdict without submitting the case to the jury.”

The standard governing review of a trial court’s decision to enter judgment notwithstanding the verdict is announced in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494. In Pedrick the court stated that judgment notwithstanding the verdict may be entered “only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (37 111. 2d at 510.) Such is the instant case. The issue at trial in the case at bar was whether David was denied his fourteenth amendment constitutional right not to be deprived of his life without due process by policies which the defendant, in his official capacity, enacted and had in force.

Local governing bodies and local officials in their official capacity may be sued under 42 U.S.C. section 1983 for monetary damage, declaratory judgment, and injunctive relief where the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted or promulgated by those whose edicts or acts may fairly be said to represent official policy. Monell v. Department of Social Services (1978), 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018.

Section 1983 (42 U.S.C. §1983 (1982)) provides that every “person” who, under color of any statute, ordinance, regulation, custom» or usage of any State subjects, or “causes to be subjected,” any person to the deprivation of any federally protected rights, privileges, or immunities shall be civilly liable to the injured party. In an action brought under section 1983, “the initial inquiry must focus on whether the two essential elements to a section 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.” Williams v. City of Lancaster (E.D. Pa. 1986), 639 F. Supp. 377, 380; State Bank v. Camic (7th Cir. 1983), 712 F.2d 1140; Parratt v. Taylor (1981), 451 U.S. 527, 535, 68 L. Ed. 2d 420, 428, 101 S. Ct. 1908, 1913.

In the instant case there is no question that the defendant acted under color of State law. The trial court found, however, that plaintiff failed to demonstrate that any policy instituted by defendant violated David’s fourteenth amendment right not to be deprived of his life without due process. We agree.

In State Bank v. Camic (7th Cir. 1983), 712 F.2d 1140, plaintiff sued on behalf of the estate of a jailed prisoner, who committed suicide while imprisoned in the city jail. The prisoner was intoxicated and violently resisted arrest and booking, which prompted one officer to note that the prisoner was acting in a “freaky” manner. About an hour later, the prisoner was found fatally hanged by his shirt in his cell. The police department regulations required hourly cell checks. The district court granted defendant’s motion for summary judgment on the grounds that failing to prevent detainee’s suicide did not constitute a constitutional deprivation. Plaintiff appealed. On appeal, the court held that defendants were entitled to summary judgment under section 1983 where it was undisputed that defendants had no knowledge of or any reason to suspect that the prisoner had suicidal tendencies. The court further reasoned that “[kjnowing that [defendant] was behaving violently, or was acting in a ‘freaky’ manner is not synonymous with having reason to know that the violence might become self-directed.” (712 F.2d at 1146.) The court further held that “[e]ven if the defendants disregarded one or more of their established procedures, such as checking the cells every hour or effectively monitoring by visual or auditory systems the activities of prisoners incarcerated *** the actions of the defendants do not constitute deliberate disregard for the possibility that [detainee] would take his own life.” 712 F.2d at 1146.

In Williams v. City of Lancaster (E.D. Pa. 1986), 639 F. Supp. 377, the plaintiff brought, against the defendant, a civil rights and wrongful death action in which plaintiff sought to recover damages for the death of a prisoner who, while intoxicated, hung himself in his cell while incarcerated in the city jail. State regulations required a cell check every half hour. The check was routinely skipped between 5 and 6 a.m., when the on-duty officer left the station to feed the police horses. In granting defendant’s motion for summary judgment, the district court held that Williams failed to demonstrate any infringement of constitutional rights sufficient to state a claim under the civil rights statute. The court reasoned that the officer’s failure to follow the 30-minute cell check requirement was negligence at best and did not demonstrate a “total indifference to [detainee’s] safety.” (639 F. Supp. at 384.) The court further reasoned that even if it was police department custom to regularly miss the 5:30 a.m. check, “plaintiff has failed to show how that hour-long gap is anything more than negligence. A brief departure from the jail regulations does not automatically impinge upon prisoners’ constitutional rights.” 639 F. Supp. at 384.

Applying Pedrick to the case at bar, the evidence when viewed most favorably to plaintiff, overwhelmingly favored the defendant, and the trial court was correct in entering judgment notwithstanding the verdict. There was no evidence that the defendant had any knowledge of or any reason to suspect suicidal tendencies by David. Although the evidence at trial established that David was violent, intoxicated, and disorderly, defendant’s knowledge that he was behaving violently was no reason to know or suspect that his violence might become self-directed. State Bank v. Camic (7th Cir. 1983), 712 F.2d 1140.

The officers’ failure to have David medically examined, despite his obvious intoxication, and the officers’ violation of the established procedures to check the cells every half hour, did not constitute a deliberate disregard for David’s well being or safety. Williams v. City of Lancaster (E.D. Pa. 1986), 639 F. Supp. 377.

Plaintiff additionally argues that defendant should have installed a valid surveillance system for observation in the jail cells to prevent a suicide attempt. We disagree. The City of Markham police department was under no such duty. Williams v. City of Lancaster (E.D. Pa. 1986), 639 F. Supp. 377.

We affirm the trial court’s judgment notwithstanding the verdict.

Affirmed.

MURRAY, P.J., and COCCIA, J., concur.