Thomas Chitwood; Susan Chitwood and Anita Elmore v. State of Illinois

OPINION

STEFFEN, J. Claimants filed their complaint for personal injuries arising from a traffic stop by the Illinois State Police on July 10, 2000. In their complaint, Claimants allege that Illinois State Police Troopers, Thomas King, and William Soms, committed the torts of battery, intentional infliction of emotional distress, false imprisonment and false arrest upon them. Claimants seek in excess of $ 20,000.00 in damages. A hearing was held before Commissioner Ysursa on February 18, 2005. Prior to the beginning of the hearing Claimants’ counsel indicated orally that Claimants were not pursuing their theories of False imprisonment and false arrest. Therefore, the only remaining theories for recovery are battery and intentional infliction of emotional distress. Richard Whitney represented Claimants and Assistant Attorney General Kristin Krsek appeared for the State.

I. Background

The first witness was Claimant, Elizabeth Susan Chitwood, (Susan Chitwood). Susan Chitwood is the wife of Claimant, Thomas Chitwood, and sister-in-law of Anita Elmore. Susan Chitwood testified that on July 10, 2000 all three Claimants were riding in a Ford pick-up truck. On the evening in question the three Claimants went to visit a friend in the VA Hospital in Marion, Illinois. After leaving the hospital the Claimants went by the home of their friend in the hospital in West Frankfort, Illinois to get his home ready for him to return home after his release from the hospital. From their friend’s home in West Frankford Claimants proceeded towards their home in Dowell, Illinois. Susan Chitwood testified that while traveling to Dowell Claimants saw two police cars at an intersection. Claimants proceeded through the intersection and the police cars began to follow them. Shortly thereafter the police cars pulled Claimants over. Susan Chitwood stated that Thomas Chitwood drove, Anita Elmore sat on the far passenger side, and she was in the middle.

While pulled over two officers, one identified by Susan Chitwood as “tall” and with a “mustache”, and the other identified as “short” and “stocky” approached the drivers’ side of the truck. The officers looked into inside of the truck and asked to see Thomas Chitwood’s driver’s license. One of the officers stated they stopped the truck due to a ball hitch covering the [*207] sticker on the license plate of the rear of the truck and for having a “loud muffler.” Susan Chitwood admitted that the truck did have a ball hitch.

After receiving Thomas Chitwood’s identification, the shorter officer, identified by Susan Chitwood as Officer Soms, inquired to Thomas Chitwood about the truck. During this time Susan Chitwood stated that Officer Soms referred to Thomas Chitwood as Carl Dean Poe, Susan Chitwood’s brother, who by her own admission has a checkered past with multiple jail terms. The other officer asked her and Anita Elmore for identification. Susan Chitwood stated that she gave the officer her I.D. and when she did a “putty knife” fell out of her purse. She stated that the putty knife was for her job at Gilster-Marylee, a local food packing plant. After showing her I.D. Susan Chitwood stated that the taller officer, who she referred to as Officer King, asked to search the truck. Thomas Chitwood complied and all three Claimants exited the truck.

Susan Chitwood testified that she and Anita Elmore moved to the front of the truck with the Officer Soms. She stated that her husband was on the front passenger side of the truck with Officer King. Officer Soms began asking her and Anita Elmore if they had any weapons. She and Anita told him no, but officer Soms insisted on seeing under the two’s clothing. Susan Chitwood then pulled her shirt away from her body and Officer Soms bent down and shined his flashlight up her shirt to view under her shirt. Susan Chitwood testified that Officer Soms looked under her shirt for a long time.

Officer Soms then asked to view under Anita Elmore’s shirt. Anita Elmore refused to comply. Officer Soms reached to feel her person and Anita Elmore hit his hand away, and stated that only female officers are allowed to search females. Anita Elmore then pulled her shirt only to above her waistline and Officer Soms viewed her waist.

Susan Chitwood testified that while this was going on Officer King was repeatedly frisking Thomas Chitwood. During these repeated searches Officer King pushed Thomas Chitwood against the hood of the truck and according to Susan Chitwood “grabbed his genitals” numerous times. Susan Chitwood could not give an exact number of times Officer King allegedly grabbed the genitals of Thomas Chitwood, but she stated it was “a lot” and Anita Elmore even stated to Officer King that “you must be gay” because of the number of times he grabbed Thomas Chitwood’s genitals. The traffic stop lasted for approximately one and a half to two hours. She stated that she knew the length of the stop because when they were first pulled over the clock in the truck indicated 10:30 p.m. and they did not leave the stop until 12:30 a.m. Susan Chitwood testified that Thomas Chitwood received a couple of tickets and/or warnings and Claimants were allowed to proceed home. They arrived at home at approximately 1:00 a.m.

Susan Chitwood testified that she was embarrassed and humiliated by the stop. She stated that Officer Soms looking under her shirt embarrassed her and witnessing her husband being frisked and grabbed by Officer King humiliated her. She stated that she suffered from nervousness after the stop, and that the sex life between her and her husband suffered because of the [*208] incident. Susan Chitwood testified that her husband’s penis was bruised due to the actions of the officers and that she even had to take him to receive medical care the day after the incident. She stated that earlier in 2000 her husband suffered a heart attack and this incident caused him additional problems. Susan Chitwood testified that her husband saw a psychiatrist in DuQuoin, Illinois soon after the incident. Claimants submitted no exhibits or documentation to support Susan Chitwood’s account of the injuries to Thomas Chitwood’s penis or any of his medical care pre or post incident.

On cross-examination Respondent pointed out that Claimant presented no documentation to support her position on the medical care.

Respondent was able to demonstrate through Respondent’s Exhibit 2 that Thomas Chitwood did not go to the hospital until July 13, 2000. Exhibit 2 neither mentions a “bruised penis” nor a traffic stop. The records do indicate that Thomas Chitwood complained that he began to suffer chest and head pains two days prior to being admitted to the hospital. Susan Chitwood admitted that she had received no medical or counseling for her alleged nervous problems after the incident. She further conceded that she never made a complaint to the Illinois State Police or local State’s Attorney.

The second witness was Anita Elmore. Her testimony was predominantly the same as Susan Chitwood’s with some minor variations.

She stated that the officers approached the car and asked to search the vehicle.

She stated that she witnessed Susan Chitwood raise her shirt and Officer Soms look under her shirt with a flashlight. She stated that she pushed Officer Soms hands away from her as he tried to frisk her and only raised her shirt above her short’s waistline. Anita Elmore stated that she observed Officer King frisk Thomas Chitwood and repeatedly grab his genitals. She confirmed Susan Chitwood’s account that she stated “you must be gay” to Officer King. She stated the stop lasted approximately two hours and that all three were eventually allowed to leave. Since the incident she is tense around police officers. Every time one is around she stated that her “stomach is in knots.”

She testified that she felt denigrated by the search of her because “my body is mine” and she felt it was not proper for a male officer to search a female. She confirmed that she never received medical care for the incident nor made any complaints to any authority about the stop.

Thomas Chitwood was the last Claimants’ witness. He confirmed the stories of his wife, Susan Chitwood, and his sister, Anita Elmore. He stated that when Officer King was frisking him he stated that he thought that Thomas Chitwood had a “baggy.” Thomas Chitwood testified that Officer King repeatedly grabbed his genitals claiming there was a “baggy” in his crouch. He said he was degraded by Officer King in front of his wife and sister. He confirmed the testimony that Officer Soms looked up his wife’s clothes and Anita Elmore pushed Officer Soms away. Thomas Chitwood stated that his penis was injured because of the search. It was bruised and “yellow junk” was coming out of it due to the injuries. He stated that he was not gay and a man grabbing his genitals adversely affected his sex life. He stated that he went to the hospital because of the incident, was prescribed Zoloft, and [*209] received counseling. Claimants offered no medical documentation of any of the alleged care.

On cross-examination Thomas Chitwood conceded that he had no records of his medical treatment. Respondent presented Respondent’s Exhibit 5, medical records from Perry County Counseling Center from October 2000, which stated that Thomas Chitwood went to the counseling center on the advice of his attorney. Thomas Chitwood was discharged from Perry County Counseling Center on February 19, 2001 and records indicate that he only attended three of his nine appointments and was discharged because “client refuses further services.”

Respondent’s witnesses were Officer King and Officer Soms. Both conveyed the story of a routine traffic stop. Both recalled receiving a “make your own case” dispatch identifying Thomas Chitwood’s truck. They stated that Officer King pulled over Thomas Chitwood. They asked for permission to search the vehicle and received said permission. They stated that Thomas Chitwood signed the consent to search, but Respondent presented no such signed form into evidence. Officer King stated that he could not remember searching Thomas Chitwood but would not be surprised if he did as matter of protocol. Officer King stated he prepared a report on the incident but did not present it into evidence. Both stated that the stop was routine and lasted only about twenty (20) minutes.

Respondent moved to admit Respondent Exhibits 1 through 6 into evidence. Claimants only objected to the extent that there was a copy of a post-it note on the last page of Exhibit 2. Claimant had no objection to the portion of Exhibit 2 being withheld from evidence. Respondent’s Exhibits 1 through 6, except for the post-it note on the last page of Respondent’s Exhibit 2 were admitted into evidence without objection.

II. Analysis

In order to prevail under the theory of battery Claimant bears the burden of proving the following: (1) the respondent acted with the intent to inflict harmful or offensive conduct with claimant or bring the claimant within reasonable apprehension of said contact; (2) harmful or offensive conduct with claimant resulted; (3) the intentional act proximately caused damages to claimant; and (4) actual damages. McNeil v. Carter, 318 Ill. App. 3d 939, 943-44, 742 N.E.2d 1277, 1281 (3rd Dist. 2001); Cohen v. Smith, 269 Ill.

App. 3d 1087, 1090-91, 648 N.E.2d 329, 332-33 (5th Dist. 1995).

There is no dispute that Officers King and Soms pulled over Claimants’ vehicle and searched the persons of Claimants. In doing so Officers King and Soms had to touch the Claimants. The key inquiry is whether the Officers acted within the normal and reasonable limits of patting down persons. Claimants claim that the Officers went outside the realm of reasonable searches to protect the safety of the Officers and actually battered the Claimants. The claims of each Claimant must be assessed independently.

[*210] Anita Elmore and Susan Chitwood claim that they were offensively touched by Officer Soms. Susan Chitwood’s offense stemmed from her allegation that Officer Soms viewed her breasts for significant period of time.

Anita Elmore’s offense stems from Officer Soms attempting to search her.

Elmore claimed that only female officers are permitted to search females.

Susan Chitwood’s testimony is not credible. Anita Elmore’s testimony that only female officers may search females is not supported by any law or regulation. There is not evidence that Officer Soms took any extraordinary actions in searching Anita Elmore and Susan Chitwood. Because officers are permitted to protect their safety, Elmore and Susan Chitwood’s claims for battery fail.

Thomas Chitwood claims that Officer King battered him when he repeatedly grabbed his genitals and pushed him on the hood of his vehicle when searching him. The testimony of Thomas Chitwood is supported by Susan Chitwood and Anita Elmore; however, there is no documentation evidence to support the claim of battery. While Claimant does not have to support his claim of battery with documentation of physical evidence, such documentation would support Thomas Chitwood’s claim. The lack of documentation to support Thomas Chitwood’s claim of bruising discredits his testimony. The testimony of Anita Elmore and Susan Chitwood is discredited by their failure to remember descriptions of the officers, and the timing of when Thomas Chitwood sought medical treatment. The Claimant bears the burden of proving his case beyond a preponderance of the evidence and these inconsistencies of testimony and lack of corroborating evidence tilt the scales of justice in favor of Respondent.

The second theory of recovery is intentional infliction of emotional distress. The elements of this tort are: (1) extreme and outrageous conduct of defendant; (2) defendant knew, or should have known, that the conduct would inflict severe emotional distress; and (3) defendant’s conduct did cause extreme emotional distress. Feltmeier v. Feltmeier, 207 Ill. 2d 263, 268.69, 798 N.E.2d 75, 79-80 (2003). As stated above Claimants failed their burden to prove their battery claim and therefore fail to prove the extreme and/or outrageous conduct required under the first element of an intentional infliction of emotional distress claim.

IT IS HEREBY ORDERED that Claimants’ claim is denied.