Bethany Krajelis Feb. 28, 2013, 11:29am

The Fifth District Appellate Court has affirmed Madison County Circuit Judge Dennis Ruth’s dismissal of a lawsuit against the county, its sheriff’s department and three employees.

In an opinion issued Monday, the appeals panel relied on the Local Governmental and Governmental Tort Immunity Act to dismiss the suit brought by David Prough, the administrator of Dennis Prough’s estate.

Prough in 2010 sued the county and its sheriff’s department, as well as Sheriff Robert Hertz, Lt. David Joseph and Terrance Charleston, a dispatcher, seeking damages for the death of Dennis Prough.

Dennis Prough was killed by his son, Mark, in July 2009, after the Madison County Sheriff’s Department released Mark from custody.

A few months before the murder, Dennis Prough’s daughter petitioned the Jersey County Circuit Court for an order of protection against Mark and to order his involuntary detention for him to undergo psychological evaluation.

The court in May 2009 entered the emergency order of protection, as well as two orders for detention, both of which ordered the clerk to issue a writ directing police to take Mark into custody on May 18, 2009.

One directed police to take Mark to a hospital in Springfield for detention and evaluation while the other ordered police to take him to a Jerseyville hospital.  Law enforcement officials, however, were unable to execute the orders because Mark fled to Missouri.

In July 2009, Mark’s daughter spotted him in Godfrey and called the Madison County Sheriff’s Department.

After she told the dispatcher her father had warrants out in Jersey County, as well as Missouri, a sheriff’s deputy traveled to Mark’s location to question him. He gave the deputy a fake name and birth date, spurring authorities to arrest him for obstructing a peace officer.

Once Mark was in custody, the Madison County sheriff’s department contacted the Jerseyville police department, which faxed over the detention and examination orders.

Joseph, the lieutenant defendant, initially told Jerseyville police that it would not hold Mark based on those orders, but after the dispatcher advised him that Mark was also wanted for questioning in a death investigation, said it would not release him.

The next day, however, Mark was released on a $5,000 recognizance bond. Five days later, he went to his father’s home, shot him and set his house on fire. Mark was arrested and charged on July 29, 2009.

In June 2010, Prough filed his original three-count complaint, alleging liability against defendants under the Illinois Wrongful Death and Survival acts, and as to defendant Madison County, the statutory indemnification provisions of the Tort Immunity Act.

Prough amended his complaint in December to restate the cause of action against the defendants. He alleged that their knowing, deliberate and intentional failure to serve the orders and detain Mark was a reckless disregard for Dennis Prough’s safety.

The defendants filed a motion to dismiss, arguing that they did not owe Dennis Prough a duty, were immune by the Tort Immunity Act and that Madison County could not be held liable for the acts or omissions of the sheriff or his employees.

In his response to the defendants’ motion to dismiss, Prough claimed the defendants had a duty to "return all warrants, processes, orders and judgments” under the Counties Code and that the Tort Immunity Act didn’t protect the defendants because their conduct was willful and wanton.

In March 2011, Ruth agreed with the defendants’ argument and granted their motion to dismiss.

At about the same time as the Madison County proceedings, Prough had brought a similar lawsuit against the Greene County Sheriff’s Department for its alleged failure to serve the mental health warrant and detain Mark.

The circuit court there, according to the appellate court opinion, dismissed the suit, a ruling that was affirmed by the Fourth District Appellate Court (Prough v. Green County Sheriff’s Department, 2012 IL App (4th) 110368-U).

That appeals panel, the Fifth District opinion states, determined that because the May 18, 2009 date of performance had passed, it was moot, impossible to perform and not the proximate cause of Mark’s murder of his father.

In its analysis, the panel of the Fifth District relied on the Tort Immunity Act to dismiss the suit.

Justice James Wexstten delivered the court’s opinion. Justices Thomas Welch and Richard Goldenhersh concurred.

On behalf of the panel, Wexstten wrote that Sections 4-102 and 4-107 of the Tort Immunity Act “clearly apply here to immunize the defendants” for allegedly failing to detain Mark and releasing him from custody.

Both sections, Wexstten wrote, contain no provisions for willful and wanton misconduct and provide immunity for liability for injuries caused by the failure to make an arrest or by releasing someone in custody.

Prough argued on appeal that neither of these sections is applicable to his suit because he didn’t seek to impose liability of the defendants for releasing Mark from their custody, but rather for violating their statutory duty to serve and execute the orders.

“Courts have avoided similar attempts to avoid application of the Tort Immunity Act,” Wexstten wrote. “The plaintiff cannot avoid sections 4-102 and 4-107 of the Tort Immunity Act by arguing that his case is really about something else.”

Determining that the defendants have absolute immunity from the suit, the panel declined to address the parties’ other arguments.

Jerseyville attorney Allison Lorton represented Prough. William Hardy and Heidi Eckert of Hinshaw & Culbertson in Belleville represented the defendants.

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