                                  Illinois Official Reports

                                          Appellate Court



                              Wright v. Moss, 2015 IL App (5th) 140021



Appellate Court              SHARON WRIGHT, Plaintiff-Appellant, v. PHILLIP A. MOSS,
Caption                      Defendant-Appellee.

District & No.               Fifth District
                             Docket No. 5-14-0021


Rule 23 Order filed          December 12, 2014
Motion to publish
granted                      January 5, 2015
Opinion filed                January 5, 2015


Held                         In plaintiff’s action seeking damages based on defendant county
(Note: This syllabus         coroner’s decision to order an autopsy performed on the body of
constitutes no part of the   plaintiff’s elderly husband after he died at his residence, the trial court
opinion of the court but     properly granted summary judgment to defendant, notwithstanding
has been prepared by the     plaintiff’s contentions that the autopsy was unnecessary and
Reporter of Decisions        constituted willful and wanton misconduct, especially when
for the convenience of       decedent’s primary care physician thought the cause of death was
the reader.)                 natural and he was willing to complete a death certificate, defendant
                             described the autopsy he ordered as “random” in his own records, and
                             he ordered the autopsy only after receiving a call from decedent’s
                             cousin indicating that the death might be suspicious because plaintiff
                             was younger than her husband, her husband had substantial assets, and
                             plaintiff had had relationships with other older men prior to marrying
                             decedent, since defendant’s decision to order the autopsy was a
                             discretionary act “unique” to his office, and section 2-201 of the Tort
                             Immunity Act provided immunity, regardless of whether the autopsy
                             was “random” or willful and wanton misconduct.

Decision Under               Appeal from the Circuit Court of Marion County, No. 09-L-51; the
Review                       Hon. Michael D. McHaney, Judge, presiding.
     Judgment                 Affirmed.


     Counsel on               Eric L. Terlizzi, of Salem, for appellant.
     Appeal
                              Joseph A. Bleyer, of Bleyer & Bleyer, of Marion, for appellee.



     Panel                    JUSTICE SCHWARM delivered the judgment of the court, with
                              opinion.
                              Justices Welch and Stewart concurred in the judgment and opinion.




                                               OPINION

¶1         The plaintiff, Sharon Wright, lost her husband, Dale, to natural causes. The plaintiff claims
       that an autopsy of her husband by the defendant, Clinton County coroner Phillip Moss, was
       entirely unnecessary and willful and wanton misconduct. She brought suit, claiming damages
       for this misconduct. The circuit court granted summary judgment to the defendant, and the
       plaintiff now appeals. For the reasons that follow, we affirm the circuit court’s judgment.

¶2                                           BACKGROUND
¶3         On March 31, 2009, the plaintiff’s husband, Dale Wright, died in his home in Carlyle,
       Clinton County, Illinois, at the age of 88. Dale had been suffering from numerous ailments,
       such as diabetes, cardiovascular disease, and renal issues. Deputy coroner David Moss, the
       father of the defendant, arrived on scene to examine the body. David called Dr. Suppiah,
       Dale’s physician, who believed the death was natural and was willing to complete a death
       certificate. Dale’s body was taken by Robert Bruns, an employee of Neal Funeral Home, who
       in turn brought Dale’s body to his employer’s Louisville, Illinois, facility to begin preparing
       for the visitation and funeral.
¶4         Later that day, the defendant received a call from Jim Williams, a retired state trooper and
       a cousin of Dale. Williams told the defendant that the plaintiff was younger than Dale, that she
       had been in relationships with other older men prior to marrying Dale, and that Dale’s estate
       involved a lot of assets. Based on the call, the defendant believed that there was a chance that
       Dale’s death was suspicious. As such, the defendant ordered an autopsy performed. The
       defendant described this as a “random” autopsy in his own files. The defendant stated that he
       had labeled the autopsy “random” because he “didn’t have any answers” as to a definitive
       theory of death. The defendant and David Moss retrieved the body from Neal Funeral Home.
       They also directed employees at Neal Funeral Home not to answer questions regarding the
       autopsy but instead to tell the plaintiff or others to contact the defendant with any questions.
       The defendant also requested that St. Louis University Forensic Toxicology perform tests to


                                                   -2-
       determine if Dale had been poisoned. Dr. Raj Nanduri performed the autopsy in East St. Louis
       on April 1, 2009. The autopsy determined that Dale died of acute bronchopneumonia, a natural
       cause.
¶5         The plaintiff claims that, at Dale’s visitation, she “was shocked, distraught and sickened by
       the appearance of Dale’s body.” She did not learn that an autopsy had been performed until
       approximately one month had passed, when Neal Funeral Home directed her to contact the
       defendant to learn why she had not received a death certificate. On May 18, 2009, a copy of the
       autopsy was sent to the plaintiff. The plaintiff claims that the graphic details of Dale’s autopsy
       contained in the report caused her great emotional distress and made her feel physically ill.
¶6         On August 26, 2009, the plaintiff filed her initial complaint against the defendant. On May
       24, 2013, the circuit court dismissed the plaintiff’s complaint. On May 28, 2013, the plaintiff
       filed her first amended complaint in which she alleged the defendant engaged in willful and
       wanton misconduct. On September 19, 2013, the defendant filed a motion for summary
       judgment, which the court granted on December 27, 2013. On January 13, 2014, the plaintiff
       timely filed her notice of appeal.

¶7                                               ANALYSIS
¶8         Summary judgments are reviewed de novo. Murray v. Chicago Youth Center, 224 Ill. 2d
       213, 228 (2007). “Summary judgment is appropriate whenever the pleadings, depositions,
       admissions, and affidavits on file, viewed in the light most favorable to the nonmoving party,
       show there is no genuine issue of material fact between the parties and that the moving party is
       entitled to judgment as a matter of law.” Id. (citing Home Insurance Co. v. Cincinnati
       Insurance Co., 213 Ill. 2d 307, 315 (2004)).
¶9         Under section 2-201 of the Illinois Local Governmental and Governmental Employees
       Tort Immunity Act, “[e]xcept as otherwise provided by Statute, a public employee serving in a
       position involving the determination of policy or the exercise of discretion is not liable for an
       injury resulting from his act or omission in determining policy when acting in the exercise of
       such discretion even though abused.” 745 ILCS 10/2-201 (West 2008). Because section 2-201
       “does not contain an immunity exception for willful and wanton misconduct,” the Supreme
       Court of Illinois has held that “the legislature must have intended to immunize liability for both
       negligence and willful and wanton misconduct.” In re Chicago Flood Litigation, 176 Ill. 2d
       179, 196 (1997).
¶ 10       Under section 2-201, “an employee may be granted immunity if he holds either a position
       involving the determination of policy or a position involving the exercise of discretion.”
       (Emphases in original.) Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335,
       341 (1998). However, “immunity will not attach unless the plaintiff’s injury results from an act
       performed or omitted by the employee in determining policy and in exercising discretion.”
       (Emphasis in original.) Id. Thus, the court must “conduct[ ] a dual-prong inquiry with respect
       to whether section 2-201 immunity attache[s].” Van Meter v. Darien Park District, 207 Ill. 2d
       359, 373 (2003). First, the court determines if the acts or omissions are policy decisions,
       defined as “ ‘ “those decisions which require [an official] to balance competing interests and to
       make a judgment call as to what solution will best serve each of those interests.” ’ ” Id.
       (quoting Harinek, 181 Ill. 2d at 342, quoting West v. Kirkham, 147 Ill. 2d 1, 11 (1992)).
       Second, the court determines if the acts were discretionary. “An act or omission is
       discretionary when it is ‘unique to a particular public office.’ ” Albers v. Breen, 346 Ill. App.

                                                   -3-
       3d 799, 808 (2004) (quoting Snyder v. Curran Township, 167 Ill. 2d 466, 474 (1995)). Thus, an
       official is protected by immunity if that official holds a position involving the determination of
       policy or an exercise of discretion and also both determined policy and exercised discretion.
       Gutstein v. City of Evanston, 402 Ill. App. 3d 610, 622 (2010) (citing Harinek, 181 Ill. 2d at
       341).
¶ 11        The plaintiff alleges that there are genuine issues of material fact that should have
       prevented the circuit court from granting summary judgment. The plaintiff largely takes issue
       with the defendant’s labeling Dale’s autopsy a “random” autopsy. The plaintiff alleges that,
       under section 3-3015 of the Counties Code (55 ILCS 5/3-3015 (West 2008)), a coroner may
       only order an autopsy when a death is suspicious and there is no other way to establish death.
       The plaintiff claims the defendant lacked good cause to conduct an autopsy, since Dr. Suppiah
       was willing to sign Dale’s death certificate indicating Dale had died of natural causes. Thus,
       the defendant had to know that Dale’s death was not suspicious. The only evidence calling
       Dale’s cause of death into suspicion the defendant had considered at the time he ordered the
       autopsy was Williams’s phone call. Thus, the plaintiff argues, the defendant lacked sufficient
       cause to find Dale’s death suspicious, and the defendant’s mishandling of Dale’s corpse was
       willful and wanton misconduct.
¶ 12        The plaintiff’s argument does not address how a death is determined to be suspicious.
       Illinois law requires autopsies in situations “[w]here a death has occurred and the
       circumstances concerning the death are suspicious, obscure, mysterious, or otherwise
       unexplained and in the opinion of the examining physician or the coroner the cause of death
       cannot be established definitely except by autopsy.” (Emphases added.) 55 ILCS 5/3-3015(a)
       (West 2008). While no case law found by this court has interpreted this statute, “[t]he main
       goal in construing a statute is to ascertain and give effect to the intent of the legislature.”
       Murray v. Chicago Youth Center, 224 Ill. 2d 213, 228 (2007). Section 3-3015 states that the
       coroner can decide, based solely on his or her opinion, that an autopsy is required when the
       coroner believes a death is suspicious. Based upon a plain reading of the statute, the legislature
       intended a coroner like the defendant to be able to consider a death suspicious and order an
       autopsy even when a primary care physician like Dr. Suppiah believes the cause of death is
       natural.
¶ 13        However, even assuming every allegation made by the plaintiff were true, and the
       defendant ordered Dale’s autopsy in a willful and wanton manner, the plaintiff still cannot
       succeed on her claim because the defendant is wholly protected by immunity. The defendant,
       as coroner, had a position involving the discretion of when to order an autopsy under section
       3-3015. The defendant “was in a position involving the determination of policy because he
       ‘bears sole and final responsibility’ ” for autopsies performed in Clinton County. Gutstein v.
       City of Evanston, 402 Ill. App. 3d 610, 624 (2010) (quoting Harinek, 181 Ill. 2d at 343).
       Because autopsies can only be ordered by the coroner, and are thus unique to that particular
       office, the defendant’s order was a discretionary act. Thus, the defendant as coroner is
       protected from suit when ordering autopsies under section 2-201. Moreover, because section
       2-201 protects from even willful and wanton conduct, the defendant is fully immune from any
       allegations raised by the plaintiff in this case.
¶ 14        The plaintiff’s only argument that the defendant is not protected by immunity is an
       assertion that a “random” autopsy, by its definition, cannot be a discretionary act. Therefore,
       she claims, the defendant’s actions are not protected by immunity. However, this argument

                                                   -4-
       ignores that the courts have defined a discretionary act as one that is “ ‘unique to a particular
       public office.’ ” Albers v. Breen, 346 Ill. App. 3d 799, 808 (2004) (quoting Snyder v. Curran
       Township, 167 Ill. 2d 466, 474 (1995)). The ordering of autopsies is unique to coroners, and
       therefore whether or not such autopsies are “random” is not part of the analysis.

¶ 15                                        CONCLUSION
¶ 16      For the reasons stated, we affirm the judgment of the circuit court of Marion County.

¶ 17      Affirmed.




                                                   -5-
