dissenting:
I respectfully dissent because I find a breach of duty in the failure to discover and confiscate the belt in two searches which were not shown to be adequate under the circumstances. I agree this is a close case. But in making an independent examination of the record, as this court is allowed to do, I find that the preponderance of the evidence taken as a whole supports the plaintiff.
I do not mention lightly the fact that the evidence must be viewed as a whole. The majority first focuses on decedent’s condúct to determine if it might have alerted the police officers. Then, having concluded that there were “no special circumstances” in decedent’s behavior, the majority goes on to examine whether — “alone”—the searches were adequate. The case is not so easily dissected.
The evidence showed that the police arrived at decedent’s home to quell domestic violence. Twice decedent grabbed for one of their guns. Both times he expressed a desire to kill himself. On one of those occasions, a violent exchange took place. It was obvious to the officers that decedent was at least moderately intoxicated. It is under those circumstances, among others, that the reasonableness of the searches must be examined.
The officers testified that they did not take decedent’s actions seriously. They thought decedent was taunting them or was playacting. First, I question whether a police officer should ever dismiss an express death threat so lightly, especially when coupled with overt action. Second, I am at a loss to understand why Officer Lyons would zip up his jacket if he thought decedent was merely playacting.
The first search took place at decedent’s home. The officer in this search was concerned only with confiscating weapons in order to effectuate the arrest. The second search took place in the police station prior to decedent’s incarceration. The search was admittedly “quick,” and as one officer put it, “in most searches, you inadvertently skip areas.”
In any event, the belt was not found. Perhaps it was hidden in decedent’s groin area or between the cheeks of decedent’s buttocks, as suggested by the officers. No matter, it should have been found. We are not dealing with a pill, a razor blade or even a pocket knife. We are dealing with the 43-inch belt of a 200- to 225-pound man. Rolled up, folded over or otherwise just unwound as usual, a careful pat search should have discovered it. And that is so even if it was hidden in one of the discreet areas suggested by the officers.
The regulations of the police department required a “careful search” to find, among other things, items with which a prisoner might hurt himself, such as a belt. Violation of such a regulation can constitute prima facie evidence of negligence. Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380.
Plaintiff’s expert testified that a careful and thorough search would have disclosed the belt no matter where it may have been hidden. I agree. Accordingly, I find a breach of the duty expressed in Dezort I (1976), 35 Ill. App. 3d 703, 342 N.E.2d 468, that a police officer has a duty to exercise ordinary and reasonable care to preserve the life and health of his prisoner.
Having determined that the officers breached their duty of care, I must address the trial court’s further finding that there was no proximate causation. But for the officer’s failure to confiscate the belt, decedent would have been severely hampered, if not thwarted, in his attempt to kill himself. It was reasonably foreseeable to the officers that the failure to confiscate a belt could facilitate the suicide of decedent. Indeed, department regulations suggest that one reason an officer should confiscate a belt is to prevent a prisoner from harming himself. Therefore, I find proximate causation.
Although the trial court further found decedent capable of exercising due care for his own safety, there is no indication decedent was found to have not exercised such care.
Accordingly, I would reverse the order of the circuit court of Du Page County and proceed to a determination of damages.