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SECOND DIVISION
November 27, 2001

No. 1-99-4510

JUSTICE McBRIDE delivered the opinion of the court:

Following an automobile accident, plaintiff DeShaun Brown wasshot in the leg by defendant Fred King, an off-duty deputy CookCounty sheriff who had stopped at the scene of the accident. Plaintiff subsequently filed an action against King and King'semployer, defendant Michael Sheahan, the Cook County sheriff (theSheriff). The Sheriff's motion to dismiss the claims against himpursuant to section 2-619 of the Code of Civil Procedure (735 ILCS5/2-619 (West 1998)) was granted by the trial court. Plaintiff nowappeals that ruling. Defendant King is not a party to this appeal.

Plaintiff's amended complaint alleged the following facts. OnMay 15, 1998, plaintiff was driving southbound on Interstate 94 (I-94), when he was involved in a motor vehicle collision with anautomobile driven by Danny Johnson near 29th Street. Cook Countydeputy sheriff Fred King questioned plaintiff on the shoulder ofthe highway. According to the amended complaint, although King wasoff duty, he was investigating the accident pursuant to theauthority vested in him by the Sheriff, who was his employer. Kingflashed his official badge, obtained plaintiff's driver's license,and asked plaintiff to produce proof of insurance. Plaintiffopened the passenger side door of his automobile and reached intothe car to retrieve his proof of insurance from the glovecompartment. King drew his gun. Plaintiff, frightened by thesight of the gun, then began to run away. King fired his gun,striking plaintiff in the leg.

According to the amended complaint, King later pled guilty incriminal court to aggravated battery in connection with theshooting. The complaint also alleges that, at all relevant times,King was a law enforcement officer employed by the Sheriff and wasacting within the scope of his employment during the investigationof the automobile collision.

Count I of the amended complaint was directed only againstKing and alleged that King used excessive force. Counts II and IIIwere directed against both King and the Sheriff. Count II allegedwilful and wanton misconduct. Count III alleged negligence. TheSheriff's liability was predicated on the doctrine of respondeatsuperior.

The Sheriff moved to dismiss the counts against him pursuantto section 2-619 of the Code of Civil Procedure. Withoutspecifying its reasoning⁽¹⁾, the trial court dismissed counts II andIII as to the Sheriff with prejudice. Plaintiff now appeals.

In reviewing the dismissal of an action pursuant to a section2-619 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 2-619 motion, the questions on appeal are whether a genuine issue ofmaterial fact exists and whether the moving party is entitled to ajudgment as a matter of law. See McGee, 315 Ill. App. 3d at 680.

There is no dispute that under the doctrine of respondeatsuperior, an employer may be vicariously liable for the tortiousacts of its employees committed within the scope of employment. See, e.g., Sunseri v. Puccia, 97 Ill. App. 3d 488, 493, 422 N.E.2d925 (1981). Thus, as a general rule, a municipality may be heldliable for the tortious acts of police officers acting in the scopeof their employment. See Wolf v. Liberis, 153 Ill. App. 3d 488,492, 505 N.E.2d 1202 (1987).

For the purposes of a section 2-619 motion to dismiss, allwell-pleaded facts in a complaint are admitted as true. See McGee,315 Ill. App. 3d at 680. According to the Sheriff, plaintiff haspleaded facts in the amended complaint which mandate, as a matterof law, the dismissal with prejudice of the Sheriff. Specifically,the Sheriff relies on the fact that King was off duty at the timeof the incident, that King shot plaintiff while plaintiff wastrying to run away, that King pleaded guilty to the offense ofaggravated battery in criminal court in connection with theincident, and that King intentionally or recklessly shot plaintiff. According to the Sheriff, he was properly dismissed with prejudicebecause he cannot be held liable, pursuant to respondeat superior,for the intentional, criminal acts of his employees.

We first address the Sheriff's contention that he cannot beheld liable for the intentional criminal acts of his deputy. Asnoted above, King pled guilty to the charge of aggravated batteryin connection with the shooting of plaintiff. The claim againstthe Sheriff, however, was based on the doctrine of respondeatsuperior. "It is well settled that, under the doctrine ofrespondeat superior, an employer may be liable for the negligent,wilful, malicious, or even criminal acts of its employees when suchacts are committed in the course of employment and in furtheranceof the business of the employer." Mitchell v. Norman JamesConstruction Co., 291 Ill. App. 3d 927, 932, 684 N.E.2d 872 (1997). Thus, the fact that King pled guilty to the criminal offense ofaggravated battery, without more, does not require the dismissal ofthe claims against the Sheriff as a matter of law.

Both counts II and III rely for liability on plaintiff'sassertion that King was acting within the scope of his employmentat the time of the incident. The Sheriff maintains that the countsagainst him were properly dismissed where King was not, as a matterof law, acting within the scope of his employment when the incidentoccurred. The Sheriff first argues that King was acting outsidethe scope of his employment because he was off duty at the time ofthe incident. Case law, however, supports plaintiff's contentionthat an off-duty officer may often be found to be acting within thescope of his employment. See Gaffney v. City of Chicago, 302 Ill.App. 3d 41, 52-54, 706 N.E.2d 914 (1998) (discussing respondeatsuperior liability for actions of off-duty officers); Wolf, 153Ill. App. 3d at 492-93 (holding that a municipality is liable forthose acts of an off-duty policeman that fall within the scope ofhis employment, and specifically for those acts he performs toenforce 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"it is beyond dispute that the city can be held liable for theactions of an off-duty police officer"); Banks v. City of Chicago,11 Ill. App. 3d 543, 550, 297 N.E.2d 343 (1973) (holding that sincean officer is always obligated to attempt to prevent the commissionof a crime in his presence, any action taken by him toward thatend, even in his official off-duty hours, falls within theperformance of his duties as a police officer). The fact thatKing, a law enforcement officer, was off duty at the time of theincident does not establish, as a matter of law, that he was actingoutside the scope of his employment.

The Sheriff argues, without citation to authority, that Kingcannot be said to have taken action to further the interests of theSheriff as his employer where he later pled guilty to aggravatedbattery in connection with the incident. The Sheriff alsodiscounts the fact that King allegedly flashed his badge. SeeWolf, 153 Ill. App. 3d at 493-94 (noting that an agent cannotconfer power on himself and his agency or authority cannot beestablished by showing what he said or did). The amended complaintstates that King acted within the scope of his employment, stoppedto investigate the accident, flashed his badge, and requestedplaintiff's license and registration. For the purposes of asection 2-619 motion to dismiss, these allegations are admitted astrue. McGee, 315 Ill. App. 3d at 680. Further, as notedpreviously, under the doctrine of respondeat superior, an employermay be held liable for even the criminal acts of its employeeswhere such acts are committed in the course of employment and infurtherance of the business of the employer. Mitchell, 291 Ill.App. 3d at 932. The Sheriff's argument does not persuade us that,as a matter of law, it must be found that King was not acting inhis official capacity at the time of the incident.

Count II of the amended complaint alleged wilful and wantonmisconduct on the part of King while executing or enforcing thelaw. The count alleged that King was acting within the scope ofhis employment during the investigation of the automobile accidentinvolving plaintiff. The count further stated that pursuant tosection 9-102 of the Local Governmental and Governmental EmployeesTort Immunity Act (Tort Immunity Act or Act) (745 ILCS 10/9-102(West 1998)) and the common law doctrine of respondeat superior,the Sheriff was liable for the wilful and wanton misconduct ofKing.

The Sheriff, in arguing that count II was properly dismissedas to him, points to nothing in the Tort Immunity Act that wouldprotect him from liability for the intentional or wilful and wantonacts of an employee acting within the scope of his employment. Instead, the Sheriff attacks plaintiff's reliance on the TortImmunity Act in general and on section 9-102 in particular.

The Sheriff first argues that plaintiff cannot plead andproceed with his lawsuit pursuant to the Tort Immunity Act. TheSheriff relies on the written purpose of the Act, which states thatthe Act's purpose is to protect local public entities and publicemployees from liability arising from the operation of governmentand that the Act grants only immunities and defenses. 745 ILCS10/1-101.1(a) (West 1998). The Sheriff thus concludes thatplaintiff is incorrect in maintaining that the Act imposes a legalduty and liability. The Sheriff's focus is too narrow. TheIllinois Supreme Court has stated that the broad legislativepurpose behind the Tort Immunity Act is to subject localgovernmental units to liability in tort on the same basis asprivate tortfeasors, with the exception of the immunities providedby the Act. In re Consolidated Objections to Tax Levies of SchoolDistrict No. 205, 193 Ill. 2d 490, 502, 739 N.E.2d 508 (2000); seealso Barnett v. Zion Park District, 171 Ill. 2d 378, 386, 665N.E.2d 808 (1996) (noting that governmental units are liable intort on the same basis as private tortfeasors except where a validstatute dealing with tort immunity imposes conditions upon thatliability). We note that there is no question the Tort ImmunityAct applies to the Sheriff. See Anton v. Sheriff of DuPage County,47 F. Supp. 2d 993, 1003 n.4 (N.D. Ill. 1999) (observing that everycourt that has faced the issue has held that county sheriffs arecovered by the Tort Immunity Act). The plaintiff was entitled toproceed against the Sheriff under the Act.

Section 9-102 of the Tort Immunity Act states, in pertinentpart:

"A local public entity is empowered anddirected to pay any tort judgment orsettlement for compensatory damages for whichit or an employee while acting within thescope of his employment is liable in themanner provided in this Article." 745 ILCS10/9-102 (West 1998).

Under section 9-102, the Sheriff is required to pay any tortcompensatory damages judgment for which he or an employee actingwithin the scope of his employment is liable so long as the conductwas wilful and wanton. See Anton, 47 F. Supp. 2d at 1003.

According to the Sheriff, section 9-102 concernsindemnification, not respondeat superior liability, and isinapplicable where there has been no judgment and no settlement inthe instant case. The Sheriff cites to two federal district courtcases as support for his contention that plaintiff's reliance onsection 9-102 is inapplicable and premature. See Rosentreter v.Munding, 736 F. Supp. 165, 171 (N.D. Ill. 1990) (holding that acause of action under section 9-102 does not arise until judgmentis entered against an individual governmental employee); Spiegel v.City of Chicago, 920 F. Supp. 891, 901 (N.D. Ill. 1996) (holdingsame). As was recently noted in Anton, 47 F. Supp. 2d at 1003,however, the argument made by the Sheriff has since been rejectedby 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 localgovernmental employee that an employer could be ordered to pay doesnot prevent a plaintiff from maintaining a section 9-102 claimagainst the employer. Plaintiff did not err in basing his claimagainst the Sheriff in part on section 9-102 of the Tort ImmunityAct. 745 ILCS 10/9-102 (West 1998).

The parties also disagree on whether section 3-6016 of theCounties Code protects the Sheriff from liability for theintentional torts of his employees. 55 ILCS 5/3-6016 (West 1998). Section 3-6016 states that "[t]he sheriff shall be liable for anyneglect or omission of the duties of his or her office, whenoccasioned by a deputy or auxiliary deputy, in the same manner asfor his or her own personal neglect or omission." 55 ILCS 5/3-6016(West 1998). According to the Sheriff, the section is evidencethat the legislature only allowed respondeat superior liability forthe Sheriff for the neglect or omission of his deputies, ratherthan for their intentional actions or their wilful and wantonconduct. In support, the Sheriff relies upon J.P. Miller ArtesianWell 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 heldthat to state a cause of action against a sheriff under section 3-6016, a complaint must allege that the damage resulted from theneglect or omissions of a deputy. The court in Miller Artesian, 39Ill. App. 3d at 1022, further held that if a complaint alleges adeputy's intentional or wanton misconduct, section 3-6016 does notimpose liability upon the Sheriff. Similarly, the court in Chaney,901 F. Supp. at 268, held that section 3-6016 only applies to theextent a complaint alleges that a deputy was negligent and does notimpose liability on the sheriff for a deputy's intentional orwanton misconduct.

We find the instant case to be distinguishable from MillerArtesian and Chaney. Notably, the claims in those cases appearedto have been premised solely on section 3-6016. Count II of theinstant case is not premised on section 3-6016 at all. Rather,liability is premised on section 9-102 of the Tort Immunity Act andon the doctrine of respondeat superior. Further, section 3-6016does not contain any language actually indicating that the Sheriffis completely immune from liability for the intentional and wantonacts of his employees. Rather, it is silent regarding suchliability. We believe that reading the statute's silence asprecluding all liability for intentional or reckless acts is anunwarranted interpretation. See Gabriel Builders, Inc. v.Westchester Condominium Ass'n, 268 Ill. App. 3d 1065, 1069, 645N.E.2d 453 (1994) (noting that when the legislature is silent, acourt may not fill a void through judicial interpretation). Finally, while Miller Artesian and Chaney may be correct in sayingliability for the intentional and wanton acts of sheriff'semployees may not be premised on section 3-6016, we believe that isas far as those holdings go. Those cases were concerned only withliability based on section 3-6016 and did not say sheriffs werecompletely immune from respondeat superior liability for theintentional and wanton acts of sheriff's employees acting in thescope of their employment.

However, the Sheriff cites to federal district court decisionsthat appear to support his position. In Harris v. Sheahan, No. 98C 1271, slip op. at __ (N.D. Ill. Nov. 24, 1998), the court heldthat section 3-6016 "specifically addresses the liability of acounty sheriff for the intentional or wanton misconduct of deputysheriffs" and had been interpreted in Chaney and Miller Artesian asprohibiting sheriff liability for a deputy's intentional or wantonmisconduct. Thus, the Harris court held, section 3-6016 even actedto defeat the plaintiff's common law respondeat superior claim. InCortez v. Defendant Deputy Sheriffs, Names Unknown, No. 99 C 2397,slip op. at __ (N.D. Ill. July 26, 1999), the court also dismisseda plaintiff's respondeat superior claim against the sheriff on thebasis that it alleged intentional conduct and was thus barred bysection 3-6016. Initially, we note that neither Harris nor Cortezis binding on this court. Further, we disagree with the holdingstherein. Both cases rely on Chaney and Miller Artesian. As stated above, we believe those cases stand for nothing more thanthat liability for the Sheriff for the intentional and wanton actsof his employees may not be premised on section 3-6016. Wedisagree with the use of Chaney and Miller Artesian in Harris andCortez as a springboard to finding that section 3-6016, through itssilence on the subject, defeats common law claims of respondeatsuperior regarding intentional conduct.⁽²⁾ Section 3-6016 does notact to bar the instant action or require its dismissal as a matterof law.

Section 2-202 of the Tort Immunity Act is also relevant to ourdiscussion of count II. Section 2-202 provides that "[a] publicemployee is not liable for his act or omission in the execution orenforcement of any law unless such act or omission constituteswillful and wanton conduct." 745 ILCS 10/2-202 (West 1998). TheSheriff first contends that section 2-202 is inapplicable to himbecause it pertains to individual employees and is silent as torespondeat superior liability. If an employee were found liableunder section 2-202, however, the Sheriff would be liable undertraditional respondeat superior principles and section 9-102. TheSheriff also argues that section 2-202 is inapplicable to himbecause section 3-6016 of the Counties Code (55 ILCS 5/3-6016 (West1998)) is a more specific statute that is expressly applicable tothe Sheriff. As we have already held, however, section 3-6016 issilent regarding the Sheriff's liability for the intentional andwanton misconduct of employees. Rather, it appears that theCounties Code actually expands the liability of the Sheriff bymaking him liable for the negligent acts of his deputies inaddition to any liability the Sheriff might have for intentionaland wanton misconduct of those same deputies under the TortImmunity Act and traditional respondeat superior principles.

In sum, considering the allegations contained in the amendedcomplaint, we find that the trial court erred in granting theSheriff's motion to dismiss count II where the Sheriff has failedto show that, as a matter of law, he could not be held responsiblefor the intentional or wanton acts of his deputy.

Plaintiff also contends that the trial court erred indismissing the Sheriff from count III of the amended complaint. According to plaintiff, count III sets forth those acts oromissions that would not be a basis for liability under the TortImmunity Act because they only constitute ordinary negligence. Specifically, count III alleged that King was negligent in failingto use verbal calming techniques before and after drawing hisweapon, in failing to warn plaintiff that he was going to draw hisweapon and to explain the reasons for drawing his weapon, infailing to use nondeadly force tactics to take custody and controlof plaintiff, and in placing his finger on the trigger when firingthe weapon was not an appropriate option. Count III furtheralleged that King was acting within the scope of his employmentduring the investigation of the automobile accident and that theSheriff was liable for King's negligence pursuant to section 3-6016of the Counties Code. 55 ILCS 5/3-6016 (West 1998).

The Sheriff characterizes count III as a "thinly-veiledattempt to mischaracterize an intentional act of shooting asnegligence." Thus, he argues, the count was properly dismissedwhere the Sheriff was not liable for the intentional acts of King. We hold that count III adequately states a claim for negligence bysetting forth allegedly negligent acts or omissions taken by Kingduring the course of the incident.

As noted previously, section 3-6016 states that the sheriffshall be liable for any neglect or omission of the duties of hisoffice when occasioned by a deputy, in the same manner as for hisown personal neglect or omission. 55 ILCS 5/3-6016 (West 1998).

The Sheriff maintains that even if count III alleges a causeof action against him for respondeat superior on the basis ofKing's negligence, the count was properly dismissed because Kingwas acting outside the scope of his employment at the time of theincident. We have already held that, based on the allegations inthe amended complaint, it cannot be said, as a matter of law, thatKing was acting outside the scope of his employment at the time ofthe incident.

The Sheriff also contends that he should not be held liabledue to the "outrageous conduct" rule. Pursuant to the rule,employers will not be held liable where the employee's conduct hasbeen so reckless and outrageous that it is deemed to be outside thescope of employment. Wolf, 153 Ill. App. 3d at 493. The Sheriffargues that King's conduct should be deemed outrageous as a matterof law where the amended complaint alleged that plaintiff "began torun away" following a motor vehicle collision and King then"intentionally or recklessly shot the Plaintiff when deadly forcewas not an appropriate option." In support, the Sheriff reliesupon Luna v. Meinke, 844 F. Supp. 1284 (N.D. Ill. 1994). In Luna,an off-duty Chicago police officer became involved in a trafficdispute with Luna. The officer flashed his badge and motioned Lunato pull over. The officer asked Luna to produce his driver'slicense and insurance card. While Luna was attempting to do so,the officer kicked him in the lower back several times and punchedhim in the face several times with a closed fist. Luna, 844 F.Supp. at 1286. We find Luna distinguishable. The officer in thatcase was part of the dispute, which culminated in an unprovokedbeating of Luna, the other party to the dispute. The personalanger of the officer obviously played a role in the attack. In theinstant case, it was not alleged that King was involved in thecollision but rather that he stopped to investigate as part of hisjob. There is no indication in the complaint of any animositybetween King and plaintiff. King pulled his weapon as an apparentprecaution when plaintiff reached into the car to get his proof ofinsurance. When plaintiff became frightened and began to run, Kingreacted by shooting him in the leg. The allegations in thecomplaint do not support a finding that King's conduct in this casewas so outrageous as to be outside the scope of his employment asa matter of law.

The Sheriff asks us to take judicial notice of the fact that I-94, where the incident in the instant case occurred, is patrolledand under the jurisdiction of the Illinois State Police and thatKing had no authority to issue traffic citations to the plaintiffand was not expected to do so by the Sheriff. The facts that theSheriff asks us to take notice of are contrary to the allegationsin the complaint. We thus decline the Sheriff's invitation andonce again emphasize that the allegations in the complaint areadmitted as true for the purposes of this section 2-619 motion. McGee, 315 Ill. App. 3d at 680.

Accordingly, the trial court's grant of the Sheriff's section2-619 motion to dismiss counts II and III of plaintiff's complaintwith prejudice is reversed and this matter is remanded to the trialcourt for further proceedings.

Reversed and remanded.

BURKE, P.J., and GORDON, J., concur.

1. Although plaintiff states in his brief on appeal that thetrial court granted the Sheriff's motion on the basis that King wasnot within the scope of his employment at the time of the shooting,he also acknowledges that "[t]he trial court did not articulate itsreasons for dismissing" the Sheriff. No record of proceedings hasbeen provided on appeal.

2. In so holding, we also note our disagreement with theHarris court's holding that section 3-6016 "specifically addressesthe liability of a county sheriff for the intentional or wantonmisconduct of deputy sheriffs." Harris, slip op. at __. As wehave already noted, the section is silent on that subject.