Plaintiff was arrested for shoplifting at a Wal-Mart. After his arrest by the Forest Park Police, he committed suicide in his jail cell. His estate sued the police department and one of the police officers, as well as Wal-Mart and a number of its employees.
The police department and the officer were granted summary judgment. The estate then filed an amended complaint that did not include counts against the department or the officer. More motions ensued, resulting in summary judgment for the remaining defendants.
The estate then appealed the summary judgment granted to the police department and the officer. They in turn moved to dismiss the appeal, arguing that the estate forfeited the right to appeal because the amended complaint did not include them.
The First District Illinois Appellate Court rejected the argument. The court pointed out that waiver is an admonition to the parties, not a limitation on the court. Because (1) there was no “surprise or disadvantage” to the police department or the officer, and (2) “it appears that the trial court required the plaintiff to remove the counts decided by summary judgment from her fourth amended complaint,” the appellate court chose to allow the appeal to proceed.