{ "id": 2183313, "name": "DeSHAUN BROWN, Plaintiff-Appellant, v. FRED KING, Defendant (Michael Sheahan, Sheriff of Cook County, Defendant-Appellee)", "name_abbreviation": "Brown v. King", "decision_date": "2001-11-27", "docket_number": "No. 1\u201499\u20144510", "first_page": "717", "last_page": "728", "citations": [ { "type": "official", "cite": "328 Ill. App. 3d 717" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "665 N.E.2d 808", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "parenthetical": "noting that governmental units are liable in tort on the same basis as private tort-feasors except where a valid statute dealing with tort immunity imposes conditions upon that liability" } ], "opinion_index": 0 }, { "cite": "171 Ill. 2d 378", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 57332 ], "year": 1996, "pin_cites": [ { "page": "386", "parenthetical": "noting that governmental units are liable in tort on the same basis as private tort-feasors except where a valid statute dealing with tort immunity imposes conditions upon that liability" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/171/0378-01" ] }, { "cite": "844 F. Supp. 1284", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 11941067 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "1286" } ], "opinion_index": 0, "case_paths": [ "/f-supp/844/1284-01" ] }, { "cite": "99 C 2397", "category": "reporters:state", "reporter": "Cow.", "year": 1999, "opinion_index": 0 }, { "cite": "98 C 1271", "category": "reporters:state", "reporter": "Cow.", "year": 1998, "opinion_index": 0 }, { "cite": "645 N.E.2d 453", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "noting that when the legislature is silent, a court may not fill a void through judicial interpretation" } ], "opinion_index": 0 }, { "cite": "268 Ill. App. 3d 1065", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 381889 ], "year": 1994, "pin_cites": [ { "page": "1069", "parenthetical": "noting that when the legislature is silent, a court may not fill a void through judicial interpretation" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/268/1065-01" ] }, { "cite": "901 F. Supp. 266", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7821098 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "268" } ], "opinion_index": 0, "case_paths": [ "/f-supp/901/0266-01" ] }, { "cite": "352 N.E.2d 372", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "39 Ill. App. 3d 1020", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5382134 ], "weight": 3, "year": 1976, "pin_cites": [ { "page": "1022" }, { "page": "1022" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/39/1020-01" ] }, { "cite": "120 F.3d 681", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 224496 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "684-86" }, { "page": "684-85" } ], "opinion_index": 0, "case_paths": [ "/f3d/120/0681-01" ] }, { "cite": "920 F. Supp. 891", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7802882 ], "year": 1996, "pin_cites": [ { "page": "901", "parenthetical": "holding same" } ], "opinion_index": 0, "case_paths": [ "/f-supp/920/0891-01" ] }, { "cite": "736 F. Supp. 165", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4070378 ], "year": 1990, "pin_cites": [ { "page": "171", "parenthetical": "holding that a cause of action under section 9 - 102 does not arise until judgment is entered against an individual governmental employee" } ], "opinion_index": 0, "case_paths": [ "/f-supp/736/0165-01" ] }, { "cite": "47 F. Supp. 2d 993", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 11671117 ], "weight": 3, "year": 1999, "pin_cites": [ { "parenthetical": "observing that every court that has faced the issue has held that county sheriffs are covered by the Tort Immunity Act" }, { "page": "1003" }, { "page": "1003" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/47/0993-01" ] }, { "cite": "739 N.E.2d 508", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "193 Ill. 2d 490", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 963696 ], "year": 2000, "pin_cites": [ { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/193/0490-01" ] }, { "cite": "297 N.E.2d 343", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "pin_cites": [ { "parenthetical": "holding that since an officer is always obligated to attempt to prevent the commission of a crime in his presence, any action taken by him toward that end, even in his official off-duty hours, falls within the performance of his duties as a police officer" } ], "opinion_index": 0 }, { "cite": "11 Ill. App. 3d 543", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2927283 ], "year": 1973, "pin_cites": [ { "page": "550", "parenthetical": "holding that since an officer is always obligated to attempt to prevent the commission of a crime in his presence, any action taken by him toward that end, even in his official off-duty hours, falls within the performance of his duties as a police officer" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/11/0543-01" ] }, { "cite": "484 N.E.2d 422", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "noting that \"it is beyond dispute that the city can be held liable for the actions of an off-duty police officer\"" } ], "opinion_index": 0 }, { "cite": "137 Ill. App. 3d 228", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3641244 ], "year": 1985, "pin_cites": [ { "page": "232-33", "parenthetical": "noting that \"it is beyond dispute that the city can be held liable for the actions of an off-duty police officer\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/137/0228-01" ] }, { "cite": "706 N.E.2d 914", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "parenthetical": "discussing respondeat superior liability for actions of off-duty officers" } ], "opinion_index": 0 }, { "cite": "302 Ill. App. 3d 41", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1352898 ], "year": 1998, "pin_cites": [ { "page": "52-54", "parenthetical": "discussing respondeat superior liability for actions of off-duty officers" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/302/0041-01" ] }, { "cite": "684 N.E.2d 872", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "291 Ill. App. 3d 927", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 456128 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "932" }, { "page": "932" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/291/0927-01" ] }, { "cite": "505 N.E.2d 1202", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "153 Ill. App. 3d 488", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3609351 ], "weight": 4, "year": 1987, "pin_cites": [ { "page": "492" }, { "page": "492-93", "parenthetical": "holding that a municipality is hable for those acts of an off-duty policeman that fall within the scope of his employment, and specifically for those acts he performs to enforce the law and preserve the peace" }, { "page": "493-94", "parenthetical": "noting that an agent cannot confer power on himself and his agency or authority cannot be established by showing what he said or did" }, { "page": "493" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/153/0488-01" ] }, { "cite": "422 N.E.2d 925", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "97 Ill. App. 3d 488", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3111081 ], "year": 1981, "pin_cites": [ { "page": "493" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/97/0488-01" ] }, { "cite": "734 N.E.2d 144", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "315 Ill. App. 3d 673", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 980729 ], "weight": 5, "year": 2000, "pin_cites": [ { "page": "680" }, { "page": "680" }, { "page": "680" }, { "page": "680" }, { "page": "680" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/315/0673-01" ] } ], "analysis": { "cardinality": 882, "char_count": 24946, "ocr_confidence": 0.773, "pagerank": { "raw": 1.1402187769541371e-07, "percentile": 0.5782800464428621 }, "sha256": "69cc72e08021c1aead67bccb95b220f516510217a184963e7ebe0cc831aee1c9", "simhash": "1:9a5ad9b263aad4d4", "word_count": 4222 }, "last_updated": "2023-07-14T17:11:21.532369+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DeSHAUN BROWN, Plaintiff-Appellant, v. FRED KING, Defendant (Michael Sheahan, Sheriff of Cook County, Defendant-Appellee)." ], "opinions": [ { "text": "JUSTICE McBRIDE\ndelivered the opinion of the court:\nFollowing an automobile accident, plaintiff DeShaun Brown was shot in the leg by defendant Fred King, an off-duty deputy Cook County sheriff who had stopped at the scene of the accident. Plaintiff subsequently filed an action against King and King\u2019s employer, defendant Michael Sheahan, the Cook County sheriff (the Sheriff). The Sheriffs motion to dismiss the claims against him pursuant to section 2 \u2014 619 of the Code of Civil Procedure (735 ILCS 5/2 \u2014 619 (West 1998)) was granted by the trial court. Plaintiff now appeals that ruling. Defendant King is not a party to this appeal.\nPlaintiffs amended complaint alleged the following facts. On May 15, 1998, plaintiff was driving southbound on Interstate 94 (1-94), when he was involved in a motor vehicle collision with an automobile driven by Danny Johnson near 29th Street. Cook County deputy sheriff Fred King questioned plaintiff on the shoulder of the highway. According to the amended complaint, although King was off duty, he was investigating the accident pursuant to the authority vested in him by the Sheriff, who was his employer. King flashed his official badge, obtained plaintiffs driver\u2019s license, and asked plaintiff to produce proof of insurance. Plaintiff opened the passenger side door of his automobile and reached into the car to retrieve his proof of insurance from the glove compartment. King drew his gun. Plaintiff, frightened by the sight of the gun, then began to run away. King fired his gun, striking plaintiff in the leg.\nAccording to the amended complaint, King later pled guilty in criminal court to aggravated battery in connection with the shooting. The complaint also alleges that, at all relevant times, King was a law enforcement officer employed by the Sheriff and was acting within the scope of his employment during the investigation of the automobile collision.\nCount I of the amended complaint was directed only against King and alleged that King used excessive force. Counts II and III were directed against both King and the Sheriff. Count II alleged wilful and wanton misconduct. Count III alleged negligence. The Sheriffs liability was predicated on the doctrine of respondeat superior.\nThe Sheriff moved to dismiss the counts against him pursuant to section 2 \u2014 619 of the Code of Civil Procedure. Without specifying its reasoning, the trial court dismissed counts II and III as to the Sheriff with prejudice. Plaintiff now appeals.\nIn reviewing the dismissal of an action pursuant to a section 2 \u2014 619 motion, our review is de novo. See McGee v. State Farm Fire & Casualty Co., 315 Ill. App. 3d 673, 680, 734 N.E.2d 144 (2000). Where a cause of action has been dismissed pursuant to a section 2 \u2014 619 motion, the questions on appeal are whether a genuine issue of material fact exists and whether the moving party is entitled to a judgment as a matter of law. See McGee, 315 Ill. App. 3d at 680.\nThere is no dispute that under the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees committed within the scope of employment. See, e.g., Sunseri v. Puccia, 97 Ill. App. 3d 488, 493, 422 N.E.2d 925 (1981). Thus, as a general rule, a municipality may be held liable for the tortious acts of police officers acting in the scope of their employment. See Wolf v. Liberis, 153 Ill. App. 3d 488, 492, 505 N.E.2d 1202 (1987).\nFor the purposes of a section 2 \u2014 619 motion to dismiss, all well-pleaded facts in a complaint are admitted as true. See McGee, 315 Ill. App. 3d at 680. According to the Sheriff, plaintiff has pleaded facts in the amended complaint which mandate, as a matter of law, the dismissal with prejudice of the Sheriff. Specifically, the Sheriff relies on the fact that King was off duty at the time of the incident, that King shot plaintiff while plaintiff was trying to run away, that King pleaded guilty to the offense of aggravated battery in criminal court in connection with the incident, and that King intentionally or recklessly shot plaintiff. According to the Sheriff, he was properly dismissed with prejudice because he cannot be held liable, pursuant to respondeat superior, for the intentional, criminal acts of his employees.\nWe first address the Sheriffs contention that he cannot be held liable for the intentional criminal acts of his deputy. As noted above, King pled guilty to the charge of aggravated battery in connection with the shooting of plaintiff. The claim against the Sheriff, however, was based on the doctrine of respondeat superior. \u201cIt is well settled that, under the doctrine of respondeat superior, an employer may be liable for the negligent, wilful, malicious, or even criminal acts of its employees when such acts are committed in the course of employment and in furtherance of the business of the employer.\u201d Mitchell v. Norman James Construction Co., 291 Ill. App. 3d 927, 932, 684 N.E.2d 872 (1997). Thus, the fact that King pled guilty to the criminal offense of aggravated battery, without more, does not require the dismissal of the claims against the Sheriff as a matter of law.\nBoth counts II and III rely for liability on plaintiffs assertion that King was acting within the scope of his employment at the time of the incident. The Sheriff maintains that the counts against him were properly dismissed where King was not, as a matter of law, acting within the scope of his employment when the incident occurred. The Sheriff first argues that King was acting outside the scope of his employment because he was off duty at the time of the incident. Case law, however, supports plaintiffs contention that an off-duty officer may often be found to be acting within the scope of his employment. See Gaffney v. City of Chicago, 302 Ill. App. 3d 41, 52-54, 706 N.E.2d 914 (1998) (discussing respondeat superior liability for actions of off-duty officers); Wolf, 153 Ill. App. 3d at 492-93 (holding that a municipality is hable for those acts of an off-duty policeman that fall within the scope of his employment, and specifically for those acts he performs to enforce the law and preserve the peace); Bauer v. City of Chicago, 137 Ill. App. 3d 228, 232-33, 484 N.E.2d 422 (1985) (noting that \u201cit is beyond dispute that the city can be held liable for the actions of an off-duty police officer\u201d); Banks v. City of Chicago, 11 Ill. App. 3d 543, 550, 297 N.E.2d 343 (1973) (holding that since an officer is always obligated to attempt to prevent the commission of a crime in his presence, any action taken by him toward that end, even in his official off-duty hours, falls within the performance of his duties as a police officer). The fact that King, a law enforcement officer, was off duty at the time of the incident does not establish, as a matter of law, that he was acting outside the scope of his employment.\nThe Sheriff argues, without citation to authority, that King cannot be said to have taken action to further the interests of the Sheriff as his' employer where he later pled guilty to aggravated battery in connection with the incident. The Sheriff also discounts the fact that King allegedly flashed his badge. See Wolf, 153 Ill. App. 3d at 493-94 (noting that an agent cannot confer power on himself and his agency or authority cannot be established by showing what he said or did). The amended complaint states that King acted within the scope of his employment, stopped to investigate the accident, flashed his badge, and requested plaintiffs license and registration. For the purposes of a section 2 \u2014 619 motion to dismiss, these allegations are admitted as true. McGee, 315 Ill. App. 3d at 680. Further, as noted previously, under the doctrine of respondeat superior, an employer may be held liable for even the criminal acts of its employees where such acts are committed in the course of employment and in furtherance of the business of the employer. Mitchell, 291 Ill. App. 3d at 932. The Sheriffs argument does not persuade us that, as a matter of law, it must be found that King was not acting in his official capacity at the time of the incident.\nCount II of the amended complaint alleged wilful and wanton misconduct on the part of King while executing or enforcing the law. The count alleged that King was acting within the scope of his employment during the investigation of the automobile accident involving plaintiff. The count further stated that pursuant to section 9 \u2014 102 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act or Act) (745 ILCS 10/9 \u2014 102 (West 1998)) and the common law doctrine of respondeat superior, the Sheriff was hable for the wilful and wanton misconduct of King.\nThe Sheriff, in arguing that count II was properly dismissed as to him, points to nothing in the Tort Immunity Act that would protect him from liability for the intentional or wilful and wanton acts of an employee acting within the scope of his employment. Instead, the Sheriff attacks plaintiffs reliance on the Tort Immunity Act in general and on section 9 \u2014 102 in particular.\nThe Sheriff first argues that plaintiff cannot plead and proceed with his lawsuit pursuant to the Tort Immunity Act. The Sheriff relies on the written purpose of the Act, which states that the Act\u2019s purpose is to protect local public entities and public employees from liability arising from the operation of government and that the Act grants only immunities and defenses. 745 ILCS 10/1 \u2014 101.1(a) (West 1998). The Sheriff thus concludes that plaintiff is incorrect in maintaining that the Act imposes a legal duty and liability. The Sheriffs focus is too narrow. The Illinois Supreme Court has stated that the broad legislative purpose behind the Tort Immunity Act is to subject local governmental units to liability in tort on the same basis as private tortfeasors, with the exception of the immunities provided by the Act. In re Consolidated Objections to Tax Levies of School District No. 205, 193 Ill. 2d 490, 502, 739 N.E.2d 508 (2000); see also Barnett v. Zion Park District, 171 Ill. 2d 378, 386, 665 N.E.2d 808 (1996) (noting that governmental units are liable in tort on the same basis as private tort-feasors except where a valid statute dealing with tort immunity imposes conditions upon that liability). We note that there is no question the Tort Immunity Act applies to the Sheriff. See Anton v. Sheriff of Du Page County, 47 F. Supp. 2d 993, 1003 n.4 (N.D. Ill. 1999) (observing that every court that has faced the issue has held that county sheriffs are covered by the Tort Immunity Act). The plaintiff was entitled to proceed against the Sheriff under the Act.\nSection 9 \u2014 102 of the Tort Immunity Act states, in pertinent part:\n\u201cA local public entity is empowered and directed to pay any tort judgment or settlement for compensatory damages for which it or an employee while acting within the scope of his employment is liable in the manner provided in this Article.\u201d 745 ILCS 10/9 \u2014 102 (West 1998).\nUnder section 9 \u2014 102, the Sheriff is required to pay any tort compensatory damages judgment for which he or an employee acting within the scope of his employment is liable so long as the conduct was wilful and wanton. See Anton, 47 F. Supp. 2d at 1003.\nAccording to the Sheriff, section 9 \u2014 102 concerns indemnification, not respondeat superior liability, and is inapplicable where there has been no judgment and no settlement in the instant case. The Sheriff cites to two federal district court cases as support for his contention that plaintiff\u2019s reliance on section 9 \u2014 102 is inapplicable and premature. See Rosentreter v. Munding, 736 F. Supp. 165, 171 (N.D. Ill. 1990) (holding that a cause of action under section 9 \u2014 102 does not arise until judgment is entered against an individual governmental employee); Spiegel v. City of Chicago, 920 F. Supp. 891, 901 (N.D. Ill. 1996) (holding same). As was recently noted in Anton, 47 F. Supp. 2d at 1003, however, the argument made by the Sheriff has since been rejected by the Seventh Circuit in Wilson v. City of Chicago, 120 F.3d 681, 684-86 (7th Cir. 1997). The court in Wilson, 120 F.3d at 684-85, held that the fact that there is not yet a judgment against a local governmental employee that an employer could be ordered to pay does not prevent a plaintiff from maintaining a section 9 \u2014 102 claim against the employer. Plaintiff did not err in basing his claim against the Sheriff in part on section 9 \u2014 102 of the Tort Immunity Act. 745 ILCS 10/9 \u2014 102 (West 1998).\nThe parties also disagree on whether section 3 \u2014 6016 of the Counties Code protects the Sheriff from liability for the intentional torts of his employees. 55 ILCS 5/3 \u2014 6016 (West 1998). Section 3 \u2014 6016 states that \u201c[t]he sheriff shall be liable for any neglect or omission of the duties of his or her office, when occasioned by a deputy or auxiliary deputy, in the same manner as for his or her own personal neglect or omission.\u201d 55 ILCS 5/3 \u2014 6016 (West 1998). According to the Sheriff, the section is evidence that the legislature only allowed respondeat superior liability for the Sheriff for the neglect or omission of his deputies, rather than for their intentional actions or their wilful and wanton conduct. In support, the Sheriff relies upon J.P. Miller Artesian Well Co. v. County of Cook, 39 Ill. App. 3d 1020, 352 N.E.2d 372 (1976), and Chaney v. City of Chicago, 901 F. Supp. 266 (N.D. Ill. 1995). In Miller Artesian, 39 Ill. App. 3d at 1022, the court held that to state a cause of action against a sheriff under section 3 \u2014 6016, a complaint must allege that the damage resulted from the neglect or omissions of a deputy. The court in Miller Artesian, 39 Ill. App. 3d at 1022, further held that if a complaint alleges a deputy\u2019s intentional or wanton misconduct, section 3 \u2014 6016 does not impose liability upon the Sheriff. Similarly, the court in Chaney, 901 F. Supp. at 268, held that section 3 \u2014 6016 only applies to the extent a complaint alleges that a deputy was negligent and does not impose liability on the sheriff for a deputy\u2019s intentional or wanton misconduct.\nWe find the instant case to be distinguishable from Miller Artesian and Chaney. Notably, the claims in those cases appeared to have been premised solely on section 3 \u2014 6016. Count II of the instant case is not premised on section 3 \u2014 6016 at all. Rather, liability is premised on section 9 \u2014 102 of the Tort Immunity Act and on the doctrine of respondeat superior. Further, section 3 \u2014 6016 does not contain any language actually indicating that the Sheriff is completely immune from liability for the intentional and wanton acts of his employees. Rather, it is silent regarding such liability. We believe that reading the statute\u2019s silence as precluding all liability for intentional or reckless acts is an unwarranted interpretation. See Gabriel Builders, Inc. v. Westchester Condominium Ass\u2019n, 268 Ill. App. 3d 1065, 1069, 645 N.E.2d 453 (1994) (noting that when the legislature is silent, a court may not fill a void through judicial interpretation). Finally, while Miller Artesian and Chaney may be correct in saying liability for the intentional and wanton acts of sheriffs employees may not be premised on section 3 \u2014 6016, we believe that is as far as those holdings go. Those cases were concerned only with liability based on section 3 \u2014 6016 and did not say sheriffs were completely immune from respondeat superior liability for the intentional and wanton acts of sheriffs employees acting in the scope of their employment.\nHowever, the Sheriff cites to federal district court decisions that appear to support his position. In Harris v. Sheahan, No. 98 C 1271, slip op. at _ (N.D. Ill. Nov. 24, 1998), the court held that section 3\u20146016 \u201cspecifically addresses the liability of a county sheriff for the intentional or wanton misconduct of deputy sheriffs\u201d and had been interpreted in Chaney and Miller Artesian as prohibiting sheriff liability for a deputy\u2019s intentional or wanton misconduct. Thus, the Harris court held, section 3 \u2014 6016 even acted to defeat the plaintiffs common law respondeat superior claim. In Cortez v. Defendant Deputy Sheriffs, Names Unknown, No. 99 C 2397, slip op. at_(N.D. Ill. July 26, 1999), the court also dismissed a plaintiffs respondeat superior claim against the sheriff on the basis that it alleged intentional conduct and was thus barred by section 3 \u2014 6016. Initially, we note that neither Harris nor Cortez is binding on this court. Further, we disagree with the holdings therein. Both cases rely on Chaney and Miller Artesian. As stated above, we believe those cases stand for nothing more than that liability for the Sheriff for the intentional and wanton acts of his employees may not be premised on section 3 \u2014 6016. We disagree with the use of Chaney and Miller Artesian in Harris and Cortez as a springboard to finding that section 3 \u2014 6016, through its silence on the subject, defeats common law claims of respondeat superior regarding intentional conduct. Section 3 \u2014 6016 does not act to bar the instant action or require its dismissal as a matter of law.\nSection 2 \u2014 202 of the Tort Immunity Act is also relevant to our discussion of count II. Section 2 \u2014 202 provides that \u201c[a] public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct.\u201d .745 ILCS 10/2 \u2014 202 (West 1998). The Sheriff first contends that section 2 \u2014 202 is inapplicable to him because it pertains to individual employees and is silent as to respondeat superior liability. If an employee were found liable under section 2 \u2014 202, however, the Sheriff would be hable under traditional respondeat superior principles and section 9 \u2014 102. The Sheriff also argues that section 2 \u2014 202 is inapplicable to him because section 3 \u2014 6016 of the Counties Code (55 ILCS 5/3 \u2014 6016 (West 1998)) is a more specific statute that is expressly applicable to the Sheriff. As we have already held, however, section 3 \u2014 6016 is silent regarding the Sheriffs liability for the intentional and wanton misconduct of employees. Rather, it appears that the Counties Code actually expands the liability of the Sheriff by making him liable for the negligent acts of his deputies in addition to any liability the Sheriff might have for intentional and wanton misconduct of those same deputies under the Tort Immunity Act and traditional respondeat superior principles.\nIn sum, considering the allegations contained in the amended complaint, we find that the trial court erred in granting the Sheriff s motion to dismiss count II where the Sheriff has failed to show that, as a matter of law, he could not be held responsible for the intentional or wanton acts of his deputy.\nPlaintiff also contends that the trial court erred in dismissing the Sheriff from count III of the amended complaint. According to plaintiff, count III sets forth those acts or omissions that would not be a basis for liability under the Tort Immunity Act because they only constitute ordinary negligence. Specifically, count III alleged that King was negligent in failing to use verbal calming techniques before and after drawing his weapon, in failing to warn plaintiff that he was going to draw his weapon and to explain the reasons for drawing his weapon, in failing to use nondeadly force tactics to take custody and control of plaintiff, and in placing his finger on the trigger when firing the weapon was not an appropriate option. Count III further alleged that King was acting within the scope of his employment during the investigation of the automobile accident and that the Sheriff was liable for King\u2019s negligence pursuant to section 3 \u2014 6016 of the Counties Code. 55 ILCS 5/3 \u2014 6016 (West 1998).\nThe Sheriff characterizes count III as a \u201cthinly-veiled attempt to mischaracterize an intentional act of shooting as negligence.\u201d Thus, he argues, the count was properly dismissed where the Sheriff was not liable for the intentional acts of King. We hold that count III adequately states a claim for negligence by setting forth allegedly negligent acts or omissions taken by King during the course of the incident.\nAs noted previously, section 3 \u2014 6016 states that the sheriff shall be liable for any neglect or omission of the duties of his office when occasioned by a deputy, in the same manner as for his own personal neglect or omission. 55 ILCS 5/3 \u2014 6016 (West 1998).\nThe Sheriff maintains that even if count III alleges a cause of action against him for respondeat superior on the basis of King\u2019s negligence, the count was properly dismissed because King was acting outside the scope of his employment at the time of the incident. We have already held that, based on the allegations in the amended complaint, it cannot be said, as a matter of law, that King was acting outside the scope of his employment at the time of the incident.\nThe Sheriff also contends that he should not be held liable due to the \u201coutrageous conduct\u201d rule. Pursuant to the rule, employers will not be held liable where the employee\u2019s conduct has been so reckless and outrageous that it is deemed to be outside the scope of employment. Wolf, 153 Ill. App. 3d at 493. The Sheriff argues that King\u2019s conduct should be deemed outrageous as a matter of law where the amended complaint alleged that plaintiff \u201cbegan to run away\u201d following a motor vehicle collision and King then \u201cintentionally or recklessly shot the Plaintiff when deadly force was not an appropriate option.\u201d In support, the Sheriff relies upon Luna v. Meinke, 844 F. Supp. 1284 (N.D. Ill. 1994). In Luna, an off-duty Chicago police officer became involved in a traffic dispute with Luna. The officer flashed his badge and motioned Luna to pull over. The officer asked Luna to produce his driver\u2019s license and insurance card. While Luna was attempting to do so, the officer kicked him in the lower back several times and punched him in the face several times with a closed fist. Luna, 844 F. Supp. at 1286. We find Luna distinguishable. The officer in that case was part of the dispute, which culminated in an unprovoked beating of Luna, the other party to the dispute. The personal anger of the officer obviously played a role in the attack. In the instant case, it was not alleged that King was involved in the collision but rather that he stopped to investigate as part of his job. There is no indication in the complaint of any animosity between King and plaintiff. King pulled his weapon as an apparent precaution when plaintiff reached into the car to get his proof of insurance. When plaintiff became frightened and began to run, King reacted by shooting him in the leg. The allegations in the complaint do not support a finding that King\u2019s conduct in this case was so outrageous as to be outside the scope of his employment as a matter of law.\nThe Sheriff asks us to take judicial notice of the fact that 1-94, where the incident in the instant case occurred, is patrolled and under the jurisdiction of the Illinois State Police and that King had no authority to issue traffic citations to the plaintiff and was not expected to do so by the Sheriff. The facts that the Sheriff asks us to take notice of are contrary to the allegations in the complaint. We thus decline the Sheriffs invitation and once again emphasize that the allegations in the complaint are admitted as true for the purposes of this section 2 \u2014 619 motion. McGee, 315 Ill. App. 3d at 680.\nAccordingly, the trial court\u2019s grant of the Sheriffs section 2 \u2014 619 motion to dismiss counts II and III of plaintiffs complaint with prejudice is reversed and this matter is remanded to the trial court for further proceedings.\nReversed and remanded.\nBURKE, EJ., and GORDON, J., concur.\nAlthough plaintiff states in his brief on appeal that the trial court granted the Sheriffs motion on the basis that King was not within the scope of his employment at the time of the shooting, he also acknowledges that \u201c[t]he trial court did not articulate its reasons for dismissing\u201d the Sheriff. No record of proceedings has been provided on appeal.\nIn so holding, we also note our disagreement with the Harris court\u2019s holding that section 3 \u2014 6016 \u201cspecifically addresses the liability of a county sheriff for the intentional or wanton misconduct of deputy sheriffs.\u201d Harris, slip op. at_. As we have already noted, the section is silent on that subject.", "type": "majority", "author": "JUSTICE McBRIDE" } ], "attorneys": [ "Jacobson & Sorkin, Ltd., of Chicago (Steven W Jacobson, of counsel), for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Patrick Driscoll, John Ouska, and Lauren Klein, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "DeSHAUN BROWN, Plaintiff-Appellant, v. FRED KING, Defendant (Michael Sheahan, Sheriff of Cook County, Defendant-Appellee).\nFirst District (2nd Division)\nNo. 1\u201499\u20144510\nOpinion filed November 27, 2001.\nRehearing denied April 23, 2002.\nJacobson & Sorkin, Ltd., of Chicago (Steven W Jacobson, of counsel), for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Patrick Driscoll, John Ouska, and Lauren Klein, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0717-01", "first_page_order": 735, "last_page_order": 746 }