dissenting:
I respectfully dissent from the result reached by my colleagues in this case. The issues in this case bring into sharp focus the status of a county sheriff in the State of Illinois; an essential link in plaintiff’s case under both counts of his complaint was the establishment of an agency relationship between the defendant county as principal and the Kane County sheriff and/or the sheriff’s jailors as agents of the County of Kane. The defendant originally admitted by its answer that it owned, operated, controlled and maintained the Kane County jail through its officers, agents and employees. After jury selection began but before opening statements were made, the county moved to dismiss the action, contending that the suit should have been brought against the sheriff of Kane County and/or the jailors; this motion was denied. Then the defendant county sought leave to amend its answer to deny the agency relationship between the county, as principal, and the sheriff and/or the jailors as the agents of the county; this motion was also denied by the trial judge, who, in his discretion, determined that the motion came too late. Counsel for the county contended that, in spite of the admission of agency as contained in the answer, as a matter of law such a relationship could not exist in this case. Counsel for the plaintiff, in response, asserted that the principle of respondeat superior applied; the trial judge then stated that, depending upon the outcome of the case, each party would have an opportunity to present the question on appeal.
Plaintiff’s judgments under both counts I and II are predicated on the principle of respondeat superior. The threshold issue presented by this appeal is whether a county is liable under the theory of respondeat superior for the acts and/or omissions of the county sheriff and/or his jailors in the administration, operation and conduct of the county jail. Whether or not this issue was properly decided by the trial court requires an examination of the legal relationship between the county sheriff and the County of Kane (County Board) in reference to the maintenance and conduct of the county jail.
The powers and duty of the county sheriff in respect to the jail and the inmates therein were specified in 1874 when the following provisions (HI. Rev. Stat. 1977, cfa. 75, par. 2) were enacted:
“The sheriff of each county in this State shall be the warden of the jail of the county, and have the custody of all prisoners in such jail * * V’
Section 14 of “An Act to revise the law in relation to sheriffs” (Ill. Rev. Stat. 1977, ch. 125, par. 14) further provides as follows:
“He [sheriff] shall have the custody and care of the court house and jail of his county, except as is otherwise provided.”
The foregoing provisions are codifications of the common law duties and powers of the sheriff in respect to the operation and maintenance of the county jail and the care of the prisoners therein. Our supreme court has held that only the sheriff may hire such persons as are necessary for the care and maintenance of the courthouse and jail. (People ex rel. Walsh v. Board of Commissioners (1947), 397 Ill. 293.) The supreme court has also held that the county board has no right to dismiss or hire a janitor for the courthouse or jail. County of McDonough v. Thomas (1899), 84 Ill. App. 408; County of Edgar v. Sanders (1899), 86 Ill. App. 505.
The sheriff’s right to have the sole custody and care of the jail and the inmates therein is further confirmed by section 25.34 of “An Act to revise the law in relation to counties” (Ill. Rev. Stat. 1977, ch. 34, par. 429.18), enacted by the legislature subsequent to the filing of this suit; that section provides as follows:
“No county board may alter the duties, powers and functions of county officers that are specifically imposed by law. A county board may alter any other duties, powers or functions or impose additional duties, powers, and functions upon county officers. In the event of a conflict State law prevails over county ordinance.”
The foregoing provision merely reaffirms the independence from the control of the county board of those county officers who derive their authority from statute or common law. Since the custody and care of the county jail is specifically granted to the sheriff by law, the county board cannot alter or change such power, and there is no evidence in this case that the Kane County Board so acted.
The majority opinion reasons that the sheriff’s duties are intended to benefit the county and therefore the county must be liable for the acts and omissions of the sheriff on a respondeat superior theory. It is stated that since a corporation can act only through its officers, agents and employees, it should be liable for their negligence. Such a statement is correct as applied to most corporations as the board of directors has complete authority and power to hire its officers, agents and employees and also it has power to fire them if the directions and orders of the board of directors are not followed. This, however, is not the relationship in Illinois between the county sheriff and the county board; the county board does not select and cannot discharge the sheriff. The quotation in the majority opinion from County of Cook v. City of Chicago (1924), 311 Ill. 234, 239, confirms this position in stating:
“Quasi municipal corporations, such as counties and townships, are at most but local organizations, * * 0 and they are invested with but few characteristics of corporate existence.”
The statutory provisions construed by our courts in the cases previously cited reveal that the county board has no authority or control over the operation, staffing and administration of the county jail; the county jail is run by the sheriff.
The majority opinion also points out numerous statutory provisions specifying responsibilities on the part of the county board in connection with the maintenance of the courthouse and jail; these provisions relate principally to providing funds for the maintenance and operation of the county jail and keeping the inmates. The county board has a similar obligation as to the courthouse. However, it does not follow that the county board has authority to operate or control either the courts or the jail as it would if a principal-agent relationship existed.
There have been two cases in Illinois which involve the administration, operation and conduct of the county jail; in each case the county sheriff was the defendant; in each case the county board was not sued; hence they are not similar to this case. However, there are some statements which provide some guidance. The first case is Bush v. Babb (1959), 23 Ill. App. 2d 285. The plaintiff there was an inmate of the Cook County jail, who was treated negligently by the jailor while in the county jail and by reason of such treatment contracted tuberculosis. On appeal, the court dismissed the plaintiff’s suit with the following comment in reference to the sheriff’s liability:
“His functions, therefore, are quasi-judicial, * * ° and carry with them the immunity from liability for mere negligent omission to provide proper and adequate medical care for Carl Bush. The sheriff’s duty is to the public, under the aspect of the state, and not to the individuals who are the inmates in the county jail. If he fails in his duty, he may be subjected to the statutory penalty, section 23, but not to a private suit.” (23 Ill. App. 2d 285, 290.)
In Kelly v. Ogilvie (1965), 64 Ill. App. 2d 144, the plaintiff sued for personal injuries sustained when he was attacked in the jail by another inmate; the defendants were the sheriff of Cook County, the warden of the Cook County jail (who was appointed by the sheriff) and a jailor. The sheriff was charged with negligence on the principle of respondeat superior and also on the basis of negligence in that he maintained a “barn boss” system in the conduct of the jail, which allegedly resulted in the attack on the plaintiff. At page 147 the court stated as follows:
“Ogilvie [sheriff] and Johnson [warden] are not accountable for Olson’s [jailor] or Wilson’s [Jailor] alleged wrongdoing upon any rule of agency or respondeat superior. According to long standing rules, a public official having the direction of a subordinate public employee is not thereby responsible for the latter’s conduct. It is the underlying public body which is the principal or master. [Citations.] In the instant case the public entity, the county, is not a party and its immunity or liability by virtue of express statutory provisions or the decisions construing them need not be considered.” (Emphasis added.)
The part of the above quotation in italics would appear to support the theory of respondeat superior. However, the case cited as authority involved the responsibility of the State Director of Insurance, not a sheriff; further, the statement is dicta, as the county was not a party in that lawsuit. Also, the statement is at odds with the relationship between the sheriff and county board imposed by the statutes discussed initially, and no case has cited Kelly as authority for this proposition. The Kelly court then determined that the sheriff and the county jail warden were not liable for alleged negligence in the administration of the jail and stated as follows:
“The choice of systems of prison administration involves the exercise of discretion and comes within the doctrine of quasi-judicial immunity. [Citations.] This doctrine rests on the principle that the public decision maker, like the judge, ought to be shielded from personal liability or other factors extraneous to a judgment based on his best perception of public needs. * * * * * * While the purpose of quasi-judicial immunity admittedly is to insulate decision making from extraneous factors, personal financial liability is only one of those factors. Equally important are public liability and an officer’s legitimate fear of defending his many policy choices in court. These are not rendered obsolete by indemnification and insurance, and the reason for quasi-judicial immunity remains.” Kelly, at 147-48.
Both Bush and Kelly raise the interesting theory of quasi-judicial immunity as to the sheriff in connection with the operation of the county jail. On grounds of public policy, each case clearly holds that the sheriff cannot be held liable for negligence in running the jail. Therefore, it is not logical to impose liability on the county as it has no control over his conduct. Assuming, however, for the purposes of argument, that the sheriff is an employee or agent of the county and that he is immune from liability by virtue of the doctrine of quasi-judicial immunity, then section 2 — 109 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1977, ch. 85, par. 2—109) would relieve the county of liability. That section provides:
“A local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not hable.”
On the basis of either of the two theories set forth above, the county should not be held liable in this case. First, because respondeat superior does not apply or, in the alternative, because the sheriff is not liable on the basis of quasi-judicial immunity, and therefore the county is relieved of liability by section 2—109, noted above. A further practical consideration supports the foregoing conclusion, namely, if the defendant had been permitted to amend his answer to deny the agency of the sheriff, then theoretically a resulting question of fact would arise to be passed upon by a jury. No doubt the county would then contend that the sheriff was an independent contractor and therefore not an employee as defined in section 1—202 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1977, ch. 85, par. 1—202). In such event it is submitted that the court would have been required to instruct the jury that no agency existed as a matter of law in this case.
This is a difficult case and also one of first impression in Illinois. There is no question that the plaintiff was miserably treated in the Kane County jail. The status and relationship between the county sheriff and the county is involved and must be properly interpreted under existing law. If this is not satisfactory, the legislature should act to change that relationship. An incorrect principle of law has been applied. The trial court erred in denying defendant’s motion to dismiss this cause. I respectfully submit that the judgment on count I and count II should be reversed, and judgment should be entered for the defendant in this court on both counts.