specially concurring:
I concur in the result reached by the majority of the court, but I am not wholly in accord with the reasoning supporting the result. So far as the doctrine of quasi-judicial immunity is concerned both at common law and as set forth in the statute, it is my opinion that the issue is not whether the doctrine is applicable but whether the proof supports the allegation.
The complaint alleges willful and wanton misconduct. From the cases cited by the majority, I conclude that if willful and wanton misconduct is alleged, the theory of quasi-judicial immunity is inapplicable. However, the jury was propounded the following special interrogatory;
“Do you find that the defendant, Bernard J. Kennedy, knew before the occurrence complained of, or had reason to know of, dangerous and violent tendencies of Christine Lancaster, Lucille Washington and Mary A. Wilson, or one of them, to harm and physically assault others?”
This interrogatory was answered in the negative by the jury and in my opinion refutes the plaintiff’s claim of willful and wanton misconduct. Accordingly, I believe a reversal of the judgment of the trial court is required but for different reasons than those proposed by the majority opinion.
Even though I agree that the doctrine of quasi-judicial immunity has been applied in favor of sheriffs or wardens, it seems to me that, as in pre-Molitor days, we are expecting individuals to accept the consequences of injuries caused by the misconduct of governmental agents. It seems to me that perhaps a distinction could and should be drawn by the legislature where the person injured is in the custody of some governmental unit or agency and therefore in a poor position to protect his health and safety. It goes without saying that a person completely subject to the custodial restrictions imposed by jail has few alternatives which he may exercise in support of his own well-being and consequently the governmental unit ought not to be free from liability caused as a consequence of its custodial authority.