VanDenburgh v. Ogden et al

Filing 104

OPINION AND ORDER. For the reasons stated in the accompanying Opinion and Order, the Court grants in part and denies in part Highland Park and the Defendant Officers' motion for summary judgment 87 and denies Ravinia's motion for summary judgment 90 . The Court grants judgment for Cameron, DeLaurentis, and Hyndman on the false arrest claim (Count I), the excessive force claim related to her handcuffing (Count II), the malicious prosecution claim (Count III), and the negligence clai m (Count VI). The Court also grants judgment for Highland Park on the negligence claim (Count VI) and for Hyndman on the remaining portions of the excessive force claim (Count II) as well. The Court dismisses the claims against John Doe #1 and John Doe #2 with prejudice. Signed by the Honorable Sara L. Ellis on 10/17/2017: Mailed notice(rj, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LINDA S. VANDENBURGH,

)
)
Plaintiff,
)
)
v.
)
)
HIGHLAND PARK POLICE OFFICER
)
GERALD CAMERON; HIGHLAND PARK )
POLICE OFFICER PHILIP DELAURENTIS; )
HIGHLAND PARK POLICE OFFICER AMY )
HYNDMAN; DEERFIELD POLICE OFFICER )
JOHN DOE #1; HIGHLAND PARK POLICE )
OFFICER JOHN DOE #2; RAVINIA
)
FESTIVAL ASSOCIATION, an Illinois
)
not-for-profit organization; THE CITY OF
)
HIGHLAND PARK, a Municipal Corporation; )
)
Defendants.
)

No. 15 C 6191
Judge Sara L. Ellis

OPINION AND ORDER
After an incident at the Ravinia Music Festival (“Ravinia”) resulted in Plaintiff Linda
VanDenburgh being charged with interference with a police officer and criminal trespass to
property, VanDenburgh filed this suit against Defendants: Highland Park Police Officers Gerald
Cameron, Philip DeLaurentis, Amy Hyndman, and John Doe #2 (collectively, but excluding
John Doe #2, the “Defendant Officers”); Deerfield Police Officer John Doe #1; Ravinia Festival
Association; and the City of Highland Park (“Highland Park”).1 VanDenburgh alleges false
arrest and excessive force claims pursuant to 42 U.S.C. § 1983, in addition to state law assault

1

VanDenburgh also brought suit against Robert Ogden, the Village of Bannockburn, and the Village of
Deerfield but settled those claims. VanDenburgh has failed to amend her complaint to include the
identities of John Doe #1 and John Doe #2. At this point, any claims against those officers are timebarred, and so the Court dismisses the claims against them with prejudice. See Doc. 44 at 7–9 (finding
that VanDenburgh could not take advantage of Rule 15(c) to amend complaint to name John Doe
officers).

and battery and malicious prosecution claims against the Defendant Officers.2 VanDenburgh
also alleges that all Defendants acted negligently. Finally, she asserts an indemnification claim
against Highland Park for any tort judgment entered against the Defendant Officers.
Because the Court finds that VanDenburgh’s excessive force claim related to the
handcuffing process necessarily implies the invalidity of her conviction, Heck v. Humphrey bars
that aspect of her excessive force claim. But because factual disputes exist concerning the use of
force by Cameron and DeLaurentis in using the wheelchair to remove VanDenburgh from the
premises, that aspect of her excessive force claim must proceed to trial, as must the assault and
battery claim against the Defendant Officers. The Court grants judgment for the Defendant
Officers on the malicious prosecution claim, however, finding DeLaurentis had probable cause to
issue the citation for criminal trespass to property. Factual questions preclude summary
judgment on the negligence claim against Ravinia, although the Court grants judgment for the
Defendant Officers on VanDenburgh’s negligence claim against them because she does not
contest the issue. And because certain claims remain against the Defendant Officers, the
indemnification claim against Highland Park remains as well.

2

In addressing certain Defendants’ motions to dismiss, the Court dismissed VanDenburgh’s false arrest
claim without prejudice and limited the malicious prosecution claim to proceedings concerning the
criminal trespass to property charge. See Doc. 44. Although the Defendant Officers did not participate in
the motion to dismiss, the Court extends its dismissal of the false arrest claim to them, particularly given
the fact that they so move in their motion for summary judgment and VanDenburgh has failed to address
the false arrest claim in her response. See Malak v. Associated Physicians, Inc., 784 F.2d 277, 280 (7th
Cir. 1986) (court may sua sponte enter judgment in favor of additional non-moving defendants if motion
by one defendant is equally effective in barring claim against other defendants and plaintiff had adequate
opportunity to respond to the motion). Similarly, the Court will only consider the malicious prosecution
claim here to the extent it concerns the criminal trespass to property charge.

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BACKGROUND3
On July 19, 2014, VanDenburgh and her husband, Mark, attended a Crosby, Stills, and
Nash concert at Ravinia, which is located in Highland Park, Illinois. They arrived at Ravinia
around 6:00 p.m. and proceeded to the food court, where they ordered food and drinks.
VanDenburgh then sat on a curb with the food and drinks while her husband went to the
bathroom. A group of men came up to her and sexually harassed and propositioned her. They
ultimately left, and her husband returned several minutes later. VanDenburgh told her husband
that a group of men had solicited her, thinking she was a prostitute and asking her for a price.
She stated she yelled at them and that nobody came to help her. Her husband said they had to do
something in response. Around that time, a Ravinia security guard came up to them to tell them
that they could not sit on the curb. Mr. VanDenburgh told the security guard that his wife had
just been accosted by a group of men and that they wanted to file a report. The security guard
told them he would take them to a police officer.
The security guard took the VanDenburghs to Commander Cameron, who was stationed
near Ravinia’s main gate. Cameron was one of two Highland Park Police Department
Supervisors working at Ravinia that night on an extra duty assignment. He reported to Jim
Schmitz, Ravinia’s Director of Facilities who also oversaw Ravinia’s security operations at the
time and had final decisionmaking authority concerning security decisions at Ravinia during
concerts.4 VanDenburgh told Cameron that she had just been accosted by a group of men and

3

The facts in this section are derived from the Joint Statements of Undisputed Material Facts. All facts
are taken in the light most favorable to VanDenburgh, the non-movant.

4

Although Schmitz had final decisionmaking over security decisions, Ravinia’s security team did not
handle criminal complaints or allegations. Ravinia’s security team and police officers on duty
coordinated their work, with Ravinia providing Cameron and the other outside police supervisor with
radios to use that allowed them access to Ravinia’s emergency radio channel. Ravinia had approximately

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wanted to file a complaint. Cameron asked VanDenburgh if she had gotten their names, and
when she indicated she had not, told her he was busy and gave her a card directing her to
Ravinia’s website. Cameron turned away, and then the VanDenburghs also did, proceeding to
walk towards the pavilion, where the concert was about to start. On the way to their seats, the
VanDenburghs encountered several Ravinia security guards, to whom they also complained
about the incident. The uniform response was that they had to talk to the police. Unbeknownst
to the VanDenburghs, Cameron had made a report of their complaint on the Ravinia emergency
radio channel and communicated the information directly to Schmitz. Ravinia then broadcast the
information to its own security personnel.
Prior to intermission, VanDenburgh noticed a police officer, whom she believed to be
Cameron, standing at the end of the row in which she was sitting, staring at her and her husband
with his arms folded on several occasions. Around the start of intermission, the Ravinia watch
office radioed over the Ravinia emergency channel that Cameron should report to the pavilion,
where he encountered security personnel speaking with the VanDenburghs. The VanDenburghs
proceeded to go to the bathroom. On their way back to their seats, an officer tapped Mr.
VanDenburgh on the shoulder and told him that the VanDenburghs needed to stay in their seats
for the rest of the show or else they would have to leave. During the second half of the concert,
VanDenburgh noticed four to five police officers and the same number of security officers
standing at the end of the row in which she was sitting. These officers moved to monitor the
VanDenburghs from behind a wall, although Schmitz remained in front of the wall to make a
decision about how to handle the situation. VanDenburgh observed that the police officers had
their jackets open with their hands on their guns or tasers. After several minutes, VanDenburgh

sixty security officers working events, including the evening of the incident at issue, and also had an onsite security watch office.

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said to the officers, “[i]f you’re going to arrest me, arrest me.” Doc. 89 ¶ 30. The
VanDenburghs then decided to leave their seats, moving to an area of the pavilion where people
were standing and leaning up against a wall. Ultimately, Schmitz determined that VanDenburgh
should be removed from the property, and, after conferring with Cameron, the two of them
jointly made the decision to use a wheelchair to remove her. A wheelchair had not previously
been used to remove an individual from Ravinia in such a manner, and there was no training or
established procedure for its use. VanDenburgh testified that as she was leaning against the wall,
officers “shoved [her] or grabbed [her] from behind and yanked [her] into a wheelchair really
hard.” Id. ¶ 34. Her legs buckled as she was forced into the wheelchair, and the officers
admitted to grabbing her wrist and shoulder areas to force her into and get her to remain in the
wheelchair. The officers then wheeled VanDenburgh to an area by the Iris Gate, which took less
than half a minute. This is the loading area behind the stage. During this time, VanDenburgh
was screaming and complaining that the officers were hurting her. DeLaurentis held
VanDenburgh’s left arm down while Officer Obrzut held her right arm as she was wheeled to the
gate. Schmitz was present the entire time, although he allowed the group to go past him as he
held the crowd back.
When everyone arrived at the Iris Gate, the officers tried to lift VanDenburgh out of the
wheelchair by her arms and shoulders. VanDenburgh’s knees went weak, with VanDenburgh
falling to the ground. Cameron then told VanDenburgh she had to leave Ravinia, with Cameron
and Schmitz deciding that VanDenburgh would be arrested if she did not leave. But
VanDenburgh continued to sit on the ground, testifying she was crying, scared, and afraid the
officers would hurt her more. After five to ten minutes passed, Cameron directed Officers
DiBasilio and Hyndman to handcuff VanDenburgh. DiBasilio pulled VanDenburgh up by her

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right arm, with Hyndman holding VanDenburgh’s left arm. They got her off the ground and
handcuffed her behind her back. In the process, VanDenburgh tore the rotator cuff in her right
shoulder. As VanDenburgh was lifted off the ground, she screamed in pain. Once handcuffed,
DiBasiolio and Hyndman put VanDenburgh in a squad car.
DeLaurentis issued VanDenburgh two citations in connection with the incident: one for
interference with a police officer and a second for criminal trespass to property. The charge of
interference with an officer indicated that VanDenburgh “knowingly clenched her extremities in
an attempt to stop officers from controlling her while being placed into handcuffs [and]
continued to pull away from officers causing officers to lay [VanDenburgh] on her side in the
rear of the patrol car.” Id. ¶ 61. VanDenburgh, however, testified that she did not do so, and
Hyndman testified that VanDenburgh briefly tensed her arm, which commonly occurs when
people are being handcuffed. The criminal trespass to property charge indicated that
VanDenburgh “knowingly refused to leave Ravinia Festival after being told to exit the grounds
by supervisor Jim Schmitz [and] then sat on the bus roadway near the pavillion [sic] and refused
to leave after said warning.” Id. ¶ 64. Schmitz signed a no trespass order on behalf of Ravinia,
but VanDenburgh only received the order while at the hospital. She was convicted of the charge
of interference with an officer but not of criminal trespass to property.
LEGAL STANDARD
Summary judgment obviates the need for a trial where there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56.
To determine whether a genuine issue of fact exists, the Court must pierce the pleadings and
assess the proof as presented in depositions, answers to interrogatories, admissions, and
affidavits that are part of the record. Fed. R. Civ. P. 56 & advisory committee’s notes. The party

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seeking summary judgment bears the initial burden of proving that no genuine issue of material
fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265
(1986). In response, the non-moving party cannot rest on mere pleadings alone but must use the
evidentiary tools listed above to identify specific material facts that demonstrate a genuine issue
for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). Although a
bare contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v.
Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the Court must construe all facts in a light
most favorable to the non-moving party and draw all reasonable inferences in that party’s favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
ANALYSIS
I.

Excessive Force Claim (Count II)
The Defendant Officers seek summary judgment on VanDenburgh’s excessive force

claim, arguing that, pursuant to Heck v. Humphrey, VanDenburgh’s conviction for interfering
with a police officer bars the claim. See Heck v. Humphrey, 512 U.S. 477, 486–87, 114 S. Ct.
2364, 129 L. Ed. 2d 383 (1994) (plaintiffs cannot use § 1983 to collaterally attack an otherwise
valid criminal conviction). But Heck does not necessarily bar all excessive force claims arising
during the course of an arrest; finding otherwise would “imply that once a person resists law
enforcement, he has invited the police to inflict any reaction or retribution they choose, while
forfeiting the right to sue for damages.” McCann v. Neilsen, 466 F.3d 619, 621 (7th Cir. 2006)
(quoting VanGilder v. Baker, 435 F.3d 689, 691 (7th Cir. 2006)). The Defendant Officers argue
that VanDenburgh may proceed on her excessive force claim only to the extent that the facts
underlying that claim “are not inconsistent with the essential facts supporting the conviction.”
Helman v. Duhaime, 742 F.3d 760, 762 (7th Cir. 2014). To determine whether Heck bars a

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claim, the Court “must consider the factual basis of the claim and determine whether it
necessarily implies the invalidity of [VanDenburgh’s] conviction.” Id.
Here, the citation VanDenburgh received for interfering with an officer, for which she
was convicted, set forth that she “knowingly clenched her extremities in an attempt to stop
officers from controlling her while being placed into handcuffs.” Doc. 89 ¶ 61. The Highland
Park Ordinance for interfering with an officer requires knowing resistance or obstruction of the
performance of a peace officer’s authorized actions. See Highland Park Ordinance § 130.015
(“Interference with public officers: A person who knowingly resists or obstructs the performance
by one known to the person to be a peace officer of any authorized act within his official
capacity shall be guilty of resisting or obstructing a public officer.”). But VanDenburgh
continues to deny that she ever clenched her extremities in an attempt to stop the Defendant
Officers, and other officers, from controlling her while being placed in handcuffs. Thus,
VanDenburgh’s version of her handcuffing implies the invalidity of her conviction. See Tolliver
v. City of Chicago, 820 F.3d 237, 243 (7th Cir. 2016) (finding that plaintiff’s version of shooting
implied invalidity of his conviction for aggravated battery of a peace officer where there was no
“acknowledgment of the mental state necessary for a conviction for aggravated battery”).
Although VanDenburgh disclaims any intention of challenging her conviction, because she
continues to take positions that necessarily imply the invalidity of her conviction instead of, for
example, remaining agnostic about the issue, Heck bars her excessive force claims to the extent
they involve the handcuffing process. See id. at 244 (finding excessive force claim barred where
plaintiff was the “master of his ground” and made allegations inconsistent with his conviction);
Okoro v. Callaghan, 324 F.3d 488, 490 (7th Cir. 2003) (finding plaintiff could not maintain
claim for unconstitutional search and seizure alleging he had been trying to sell gems, not drugs,

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and so had been framed, where he had been convicted of selling drugs to an undercover officer);
cf. Gilbert v. Cook, 512 F.3d 899, 902 (7th Cir. 2008) (“An argument along the lines of ‘The
guards violated my rights by injuring me, whether or not I struck first’ does not present the sort
of inconsistency that [requires application of the Heck doctrine].”).
The Heck doctrine does not, however, bar VanDenburgh’s excessive force claims
surrounding the Defendant Officers’ use of force in removing her from the pavilion by
wheelchair and keeping her in the wheelchair as they took her to the Iris Gate. VanDenburgh
does not argue that Hyndman had any involvement in this action, and so the Court grants
judgment for Hyndman on these claims. As for Cameron and DeLaurentis, however, the Court
finds factual questions prevent the Court from granting summary judgment on the claim.
Cameron and DeLaurentis argue that their actions were reasonable or, alternatively, that
qualified immunity protects them. “Qualified immunity attaches when an official’s conduct does
not violate clearly established statutory or constitutional rights of which a reasonable person
would have known.” White v. Pauly, --- U.S. ----, 137 S. Ct. 548, 551, 196 L. Ed. 2d 463 (2017)
(citation omitted) (internal quotation marks omitted). “[T]wo central questions must be
addressed in the course of determining whether qualified immunity is available: whether the
plaintiff has alleged a deprivation of a constitutional right at all, and whether the right at issue
was clearly established at the time and under the circumstances presented.” Bianchi v.
McQueen, 818 F.3d 309, 319 (7th Cir. 2016) (citation omitted). The Fourth Amendment’s
prohibition on unreasonable seizures limits an officer’s use of force during an arrest, and the
Court reviews the totality of the circumstances and “engage[s] in ‘a careful balancing of the
nature and quality of the intrusion on the individual’s Fourth Amendment interests against the
countervailing governmental interests at stake.’” Weinmann v. McClone, 787 F.3d 444, 448 (7th

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Cir. 2015) (quoting Graham v. Connor, 490 U.S. 386, 395, 396, 109 S. Ct. 1865, 104 L. Ed. 2d
443 (1989)). When balancing these competing factors, the Court considers “the facts and
circumstances of each particular case, including the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by flight.” Id. (quoting Graham, 490 U.S.
at 396). The Court evaluates reasonableness from the “perspective of a reasonable officer on the
scene” and not with “20/20” hindsight. Graham, 490 U.S. at 396. “An officer’s use of force is
unreasonable if, judging from the totality of the circumstances at the time of the arrest, the
officer uses greater force than was reasonably necessary to effectuate the arrest.” Phillips v.
Cmty. Ins. Corp., 678 F.3d 513, 519 (7th Cir. 2012).
Here, balancing the competing factors and reviewing the totality of the circumstances
requires factual determinations that preclude the Court from ruling as a matter of law on the
constitutionality of Cameron’s and DeLaurentis’ actions. The facts before the Court create rival
versions of the incident, leaving the Court unclear as to what actually occurred on July 19, 2014
to cause the escalation of events leading to this lawsuit. VanDenburgh alleges that the force
Cameron and DeLaurentis used in putting her in the wheelchair and keeping her there was
unreasonable in light of the totality of the circumstances because she claims she posed no threat
and was merely attempting to enjoy the concert. She contends that Cameron and DeLaurentis
did not attempt other options of removing her from the premises, such as asking her to walk off
the premises of her own volition, and instead decided to use a new method involving the
wheelchair, for which none of the officers had any training and which had never been used at
Ravinia or by Cameron or DeLaurentis before. VanDenburgh also points to the fact that
DeLaurentis and Cameron admit that their use of force in using the wheelchair could have

10

caused some of her injuries. On the other hand, Cameron and DeLaurentis contend that their
actions were reasonable in light of the situation, with VanDenburgh having shown contempt to
them by leaving her seat and moving toward the stage and yelling to them that they should go
ahead and arrest her. They also maintain that any force used was de minimis.
Because VanDenburgh’s version of the facts reasonably lays out a constitutional
violation and Cameron and DeLaurentis’ does not, the competing narratives prevent the Court
from accurately judging the totality of the circumstances and require the issue to be submitted to
a jury. See Cyrus v. Town of Mukwonago, 624 F.3d 856, 862 (7th Cir. 2010) (“[S]ummary
judgment is often inappropriate in excessive-force cases because the evidence surrounding the
officer’s use of force is often susceptible of different interpretations.”). And because there are
jury questions about the nature of VanDenburgh’s resistance and the degree of force used, the
Court cannot resolve the qualified immunity question in favor of Cameron and DeLaurentis. See
Weinmann, 787 F.3d at 451 (“The existence of a factual dispute about the circumstances
surrounding McClone’s decision to fire on Jerome precludes a ruling on qualified immunity at
this point.”); Chelios v. Heavener, 520 F.3d 678, 692 (7th Cir. 2008) (factual disputes concerning
the degree to which suspect became agitated and threatening in speaking to officer and whether
suspect made physical contact with officer prevented summary judgment on qualified immunity
grounds). Therefore, this aspect of VanDenburgh’s excessive force claim must proceed to trial.
II.

Malicious Prosecution Claim (Count IV)
The Defendant Officers also seek summary judgment on VanDenburgh’s malicious

prosecution claim, which is limited to the criminal trespass to property charge for which she was
found not guilty. See Doc. 44 at 14. A malicious prosecution claim requires that VanDenburgh
establish: “(1) the commencement or continuation of an original criminal or civil judicial

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proceeding by the defendant; (2) the termination of the proceeding in favor of the plaintiff;
(3) the absence of probable cause for such proceeding; (4) the presence of malice; and
(5) damages resulting to the plaintiff.” Holland v. City of Chicago, 643 F.3d 248, 254 (7th Cir.
2011). For purposes of a malicious prosecution claim, probable cause is defined as “a state of
facts that would lead a person of ordinary care and prudence to believe or to entertain an honest
and sound suspicion that the accused committed the offense charged.” Williams v. City of
Chicago, 733 F.3d 749, 759 (7th Cir. 2013) (citation omitted). Whether there was probable
cause for the prosecution is determined as of when the charging document was filed, not at the
time of arrest. Id.
Initially, Cameron and Hyndman seek summary judgment on this claim, arguing that
there is no evidence that they commenced or continued any proceedings against VanDenburgh.
See Logan v. Caterpillar, Inc., 246 F.3d 912, 922 (7th Cir. 2001) (“Illinois law requires that, in
order to commence or continue a criminal proceeding, the defendant must have initiated the
criminal proceeding or ‘his participation in it must have been of so active and positive a
character as to amount to advice and cooperation.’” (citation omitted)); Davis v. Fenimore, No.
09 CV 939, 2010 WL 1489988, at *4 (N.D. Ill. Apr. 13, 2010) (in arguing that police officer
“played a significant role in causing the prosecution of the plaintiff . . . . a plaintiff must show
that the officer used improper influence on the prosecutor or made knowing misstatements to the
prosecutor in order to secure prosecution” (citations omitted) (internal quotation marks omitted)).
VanDenburgh does not respond to this argument, only arguing as to why her claim for malicious
prosecution against DeLaurentis should proceed. The Court treats this as an effective concession
of her claims against Cameron and Hyndman and grants summary judgment in their favor. See

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Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010) (“Failure to respond to an argument
. . . results in waiver.”).
DeLaurentis argues that VanDenburgh’s claim fails because she cannot establish the
absence of probable cause to prosecute her for violating Highland Park Ordinance 131.035. That
section provides that “[i]t shall be unlawful to enter upon the land or any part thereof of another,
after receiving immediately prior to such entry, notice from the owner or occupant that such
entry is forbidden, or remains upon the land of another after receiving notice from the owner or
occupant to depart.” Highland Park Ordinance § 130.015(A). “A person has received notice
from the owner or occupant . . . if he has been notified personally, either orally or in writing, or if
a printed or written notice forbidding such entry has been conspicuously posted or exhibited at
the main entrance to such land or the forbidden part thereof.” Id. § 130.015(B). The facts in the
record establish that Schmitz, on behalf of Ravinia, determined that VanDenburgh needed to
leave Ravinia’s property. Thereafter, he communicated this information to Cameron, who
informed VanDenburgh. Although VanDenburgh only received written notice of trespass upon
arriving at the hospital, DeLaurentis had probable cause to issue the citation for criminal trespass
to property based on the verbal commands to depart she received while still on Ravinia’s
property. See Kelley v. Myler, 149 F.3d 641, 646 (7th Cir. 1998) (officers had probable cause to
arrest plaintiff for criminal trespass where they were told by property’s manager that he wanted
plaintiff to leave, the officers asked plaintiff to leave, and she refused). Therefore, the Court
grants summary judgment for DeLaurentis on VanDenburgh’s malicious prosecution claim.

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III.

Assault and Battery and Negligence Claims against the Defendant Officers and
Highland Park (Counts III and VI)
The Defendant Officers contend that § 2-202 of the Illinois Tort Immunity Act (“TIA”),

745 Ill. Comp. Stat. 10/2-202, bars VanDenburgh’s state law claims against them.5 Highland
Park contends that § 2-109 protects it as well, providing that “[a] local public entity is not liable
for an injury resulting from an act or omission of its employee where the employee is not liable.”
745 Ill. Comp. Stat. 10/2-109. Section 2-202 provides that “[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.” 745 Ill. Comp. Stat. 10/2-202. “Willful and wanton
conduct” is defined as “a course of action which shows an actual or deliberate intention to cause
harm or which, if not intentional, shows an utter indifference to or conscious disregard for the
safety of others or their property.” 745 Ill. Comp. Stat. 10/1-210. “Although willful and wanton
conduct consists of more than mere inadvertence, incompetence, or unskillfulness, it need not be
an intentional act; rather, it may be an act committed under circumstances exhibiting a reckless
disregard for the safety of others.” Chelios, 520 F.3d at 693 (quoting Carter v. Chicago Police
Officers, 165 F.3d 1071, 1081 (7th Cir. 1998) (internal quotation marks omitted).
The Defendant Officers argue that even though they intentionally touched VanDenburgh,
their actions were not willful and wanton because there is no evidence that they acted without
legal justification or unreasonably under the Fourth Amendment. But, as the Court noted with
respect to the excessive force claim involving the use of the wheelchair, fact issues preclude the
Court from making such a determination at the summary judgment stage. The record indicates
5

In response, VanDenburgh only mentions the assault and battery claim against the Defendant Officers
and Highland Park, failing to address the negligence claim. Although the arguments the Defendant
Officers and Highland Park made apply equally to the assault and battery and negligence claims, in
failing to mention the negligence claim, the Court concludes that VanDenburgh does not intend to pursue
her negligence claim against these parties and enters judgment on that claim for them. See Bonte, 624
F.3d at 466.

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that the Defendant Officers acknowledge that their actions in using the wheelchair may have
caused some of VanDenburgh’s injuries and the jury could conclude from the evidence before
the Court that the Defendant Officers’ conduct exhibited a reckless disregard for VanDenburgh’s
safety. Id. Therefore, the Court finds that VanDenburgh’s assault and battery claim against the
Defendant Officers and Highland Park must proceed to trial.
IV.

Indemnification Claim (Count V)
Highland Park argues that it is entitled to summary judgment on VanDenburgh’s

indemnification claim because all the claims against the Defendant Officers fail. But because the
Court has found questions of fact on certain of VanDenburgh’s claims against these Defendant
Officers, the Court cannot enter judgment on the indemnification claim at this time.
V.

Negligence Claim against Ravinia (Count VII)
Finally, Ravinia seeks summary judgment on VanDenburgh’s negligence claim against it.

To succeed on her negligence claim, VanDenburgh must establish that (1) Ravinia owed
VanDenburgh a duty, (2) Ravinia breached that duty, and (3) Ravinia’s breach proximately
caused VanDenburgh injury. Rhodes v. Ill. Cent. Gulf R.R., 665 N.E.2d 1260, 1267, 172 Ill. 2d
213, 216 Ill. Dec. 703 (1996). Ravinia argues that it did not owe VanDenburgh any duty under
the circumstances. Specifically, Ravinia argues that it had no obligation to protect VanDenburgh
from the actions of the on-duty police officers during the performance of their duties.
Typically, “a party owes no duty of care to protect another from the harmful or criminal
acts of third persons.” Petersen v. U.S. Reduction Co., 641 N.E.2d 845, 848, 267 Ill. App. 3d
775, 204 Ill. Dec. 415 (1994). But courts recognize an exception where a special relationship
exists between the parties. Hills v. Bridgeview Little League Ass’n, 745 N.E.2d 1166, 1186–87,
195 Ill. 2d 210, 253 Ill. Dec. 632 (2000). One of the special relationships recognized by courts is

15

that of a business invitor and invitee, applicable in this case to Ravinia’s relationship with
VanDenburgh. See Marshall v. Burger King Corp., 856 N.E.2d 1048, 1058, 222 Ill. 2d 422, 305
Ill. Dec. 897 (2006). But in addition to the existence of a special relationship, “it must also be
shown that the criminal attack [or harmful action] was reasonably foreseeable.” Hills, 745
N.E.2d at 1187. “[G]enerally stated, it is the nature of the business which the landholder
conducts on his premises that determines whether the business stands in a special relationship
with its customers that may impose a duty to provide security or protection from third-party
attacks.” Id. at 1188. Here, the fact that Ravinia had security personnel and officers from
surrounding police departments present at its events suggests that Ravinia could reasonably
foresee that invitees would be placed at risk of criminal attack or have other security-related
problems while on its premises. Therefore, the Court finds that Ravinia owed VanDenburgh a
duty of care.
Ravinia nonetheless argues that it had no control over the police officers involved here
because they were not employed by Ravinia and instead were performing extra duty assignments
for their respective police departments. But the facts on this issue are subject to debate, as
Cameron indicated that he used a Ravinia controlled radio and reported to Schmitz and
coordinated with Schmitz while working Ravinia events. Ravinia also argues that even if it had
a duty, any breach could not have proximately caused VanDenburgh’s injuries because there is
no evidence that any Ravinia employees or representatives physically touched VanDenburgh or
instructed the officers on how to remove VanDenburgh from the premises. These questions must
be left for the jury, where the record reflects that Cameron and Schmitz together decided to use
the wheelchair to remove VanDenburgh. See Swearingen v. Momentive Specialty Chems., Inc.,
662 F.3d 969, 972 (7th Cir. 2011) (“[B]reach of duty and proximate cause present questions of

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fact.”). Ravinia also argues that VanDenburgh’s injuries were caused by her own resistance, but
this is belied by the record, where some of the Defendant Officers admitted that their actions
could have contributed to her injuries. Thus, the Court denies Ravinia’s motion for summary
judgment on the negligence claim.
CONCLUSION
For the foregoing reasons, the Court grants in part and denies in part Highland Park and
the Defendant Officers’ motion for summary judgment [87] and denies Ravinia’s motion for
summary judgment [90]. The Court grants judgment for Cameron, DeLaurentis, and Hyndman
on the false arrest claim (Count I), the excessive force claim related to her handcuffing (Count
II), the malicious prosecution claim (Count III), and the negligence claim (Count VI). The Court
also grants judgment for Highland Park on the negligence claim (Count VI) and for Hyndman on
the remaining portions of the excessive force claim (Count II) as well. The Court dismisses the
claims against John Doe #1 and John Doe #2 with prejudice.

Dated: October 17, 2017

______________________
SARA L. ELLIS
United States District Judge

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