Case Information
*1 I LLINOIS O FFICIAL R EPORTS Appellate Court
Fenton v. City of Chicago
,
Corporation, Defendant-Appellant.
District & No. First District, Fourth Division
Docket No. 1-11-1596
Filed January 17, 2013
Held In an action arising from the fatal beating inflicted on plaintiff’s decedent by the son of decedent’s girlfriend at the end of a night of violent ( Note: This syllabus arguments, including two 911 calls that led to police intervention, the constitutes no part of the opinion of the court judgment entered against defendant city in excess of $2 million was but has been prepared affirmed, since decedent was an “abused person” within the meaning of by the Reporter of the Domestic Violence Act, testimony that defendant’s police officers had Decisions for the probable cause to arrest the son was properly admitted, and the officers’ convenience of the wilful and wanton conduct in lеaving the scene without arresting the son reader. ) and merely ordering him to wait outside until his girlfriend could take
him to another location was a proximate cause of decedent’s death. Decision Under Appeal from the Circuit Court of Cook County, No. 06-L-7956; the Hon. James M. Varga, Judge, presiding. Review
Judgment Affirmed.
Counsel on Stephen R. Patton, Corporation Counsel, of Chicago (Benna Ruth Solomon and Myriam Zreczny Kasper, Assistant Corporation Counsel, Appeal
of counsel), and Jennifer M. Erickson Baak, Special Assistant Corporation Counsel, of Denver, Colorado, for appellant.
Michael W. Rathsack and David B. Nemeroff, both of Chicago, for appellee.
Panеl PRESIDING JUSTICE LAVIN delivered the judgment of the court, with
opinion.
Justices Fitzgerald Smith and Pucinski concurred in the judgment and opinion.
OPINION
In this appeal, we are asked to consider whether a jury rightly held the City of Chicago (the City) liable for the actions of two of its police officers. Those officers twice responded to the 911 calls of Henry Fenton (Fenton) related to a violent argument, only to remove the agitator, Rovale Brim (Rovale), from the premises in zero-degree weather in the middle of the night, with instructions to wait outside for at least an hour before his girlfriend would give him a ride to another location. Only minutes after the officers left him on the sidewalk, a block from the scene, Rovale rеturned home where he beat and stabbed Fenton, his mother’s boyfriend, leading to Fenton’s death. After a lengthy jury trial, which notably included an expert witness who testified critically about the conduct of the officers, the jury returned a verdict in excess of $2 million. The jury’s verdict also included answers to special interrogatories which substantiated its finding that the involved officers acted wilfully and wantonly in their official activities. The lawsuit of plaintiff James Fenton (plaintiff), special administrator for Fenton’s estate,
was premised upon the Illinois Domestic Violence Act of 1986 (the Act) (750 ILCS 60/101 et seq. (West 2002)), on the theory that Fenton was an “abused person” and that the officers’ failure to arrest Rovale was markedly inconsistent with their duties under the Act. At trial and in this court, the City argues that the Act was not applicable to these events, that its officers were not in any way wilful and wanton in the discharge of their duties and that none of their conduct could be properly described as proximately causing the unfortunate murder of Fenton. We affirm. FACTUAL BACKGROUND All of the events in this domestic disturbance took place after 1:30 a.m. on March 4,
2002, at a residence on the south side of Chicago, where Fenton lived with his girlfriend, *3 Valerie Brim (Valerie), and her 22-year-old son, Rovale. At 1:37 a.m., Fenton called 911 and requested that police come to their home, telling the operator that there wаs “violence *** violent things going on” involving his girlfriend’s son. The operator classified the call as a “domestic disturbance,” which is dubbed a very high priority response for police officers. Four minutes later, Valerie made another call regarding the same incident and, at that time, Chicago police department (CPD) officers Morgan and Roberts were dispatched, arriving approximately eight minutes later at 1:49 a.m. When they arrived, the officers were confronted with an angry, drunken and boisterous
Rovale, who was yelling at Valerie, while making violent, jerky movements with a bottle in his hand. Valerie was also apparently drinking. The officers managed to separate thе two individuals after five minutes or so, while Fenton sat off to the side. The officers spoke with Valerie, who informed them that Rovale had been arguing with Fenton over Rovale’s use of the telephone and the fact that he was unemployed. Officer Morgan asked Valerie whether they wanted Rovale to be arrested. She said that she and Fenton did not want Rovale to be arrested, but requested that he be put in his basement bedroom. Shortly thereafter, Officer Roberts escorted Rovale to his bedroom, apparently while Rovale was still in an agitated state. During this first interaction, the officers did not perform a name check on Rovale, who was a registered sex offender. Officer Roberts talked to Fenton for all of 10 seconds during the encounter, which lasted approximately 15 minutes. At 2:30 a.m., Fenton again called 911. The operator sent it to dispatch, which received
the call shortly thereafter, with the officers being dispatched at 2:32 a.m. Officers Roberts and Morgan arrived more than 30 minutes later, essentially to the same drama as before, with Fenton seated on some stairs and the Brims arguing in a loud and boisterous fashion. This time, Valerie told the officers that Rovale had to be removed from the residence because he had gotten into another argument with Fenton. Rovale was asked to leave the home, whiсh he did, indicating that his girlfriend would pick him up in an hour or so and take him to her home. The outside temperature was said to be zero degrees. Officer Morgan testified that he and Officer Roberts could not drive Rovale to his girlfriend’s home, which was nearly nine miles distant, and also testified that the area was too busy to allow them to wait with Rovale for his girlfriend to arrive. Officer Roberts testified that Rovale turned down his offer of a ride to the train station. Neither officer talked to Fenton, and Officer Roberts specifically denied knowing that there was a dispute between Fenton and Rovale. Rovale was seen only a block away from the home as the officers left the area. Just six
minutes later, Fenton made his final call, urgently telling the operator that Rovale was going to break into the home. The officers were again dispatched, only to find Fenton stabbed, beaten and unconscious from head trauma. He subsequently died. Rovale was arrested, tried and found guilty of second-degree murder. Detective Thomas Downs, who investigated the beating, learned from the officers that Rovale and Fenton had been arguing about Rovale’s use of the phone and his unemployed status. Detective Downs also testified that Valerie told the officers after the second occurrence that her son and Fenton had gotten into another argument.
¶ 8 PROCEDURAL BACKGROUND Plaintiff filed suit against the City based on the conduct of its police officers, the 911 call
takers and the dispatchers. In the complaint, plaintiff alleged that the officers ignored that Fenton was an abused person within the meaning of the Act. Under the Act, police are obligated to utilize “all reasonable means to prevent further abuse” if they suspect that someone has been abused. 750 ILCS 60/304(a) (West 2002). Harassment is included in the definition of abuse in the statute. 750 ILCS 60/103(1) (West 2002). At trial, the two officers testified about their two interventions with the three people
living in the home. Both officers testified that they were unaware of any argument between Rovale and Fenton. As stated, this tеstimony was severely undermined by the testimony of Detective Downs, who took statements from the officers that indicated they were informed by Valerie on the first visit that Rovale had been arguing with Fenton. On the second visit, Valerie told them that her son had to be removed from the residence because he had gotten into another argument with Fenton. Remarkably, each officer testified that there was not probable cause to arrest Rovale for his actions in the home, even though they asked Fenton and Valerie whether they wanted Rovale to be arrested, which would strongly suggest the existence of probable cause. This apparent inconsistency was driven home during the testimony of Chief Deputy
Dottie Davis, whom plaintiff proffered as an expert on police procedures. Davis’s background also included work as a 911 call taker and as a domestic violence trainer. Prior to trial, in a motion in limine , the City attempted to bar Davis’s testimony as it related to the issue of probable cause, among other things, on the ground that it was not a proper subject for expert testimony. The trial court denied the motion following arguments, finding as follows:
“I think it would aid the jury of the facts, because this is what police officers do everyday, right. Normal people don’t. Accountants, plumbers, janitors. We don’t want them to rely on what they see on all the crime shows.”
Significantly, when plaintiff’s counsel asked Davis the first question related to her opinion on the issue of probable cause, the City’s lawyer objected, but only as to the “foundation” of the question and did not refer back to the City’s motion in limine . The court allowed the witness to then give her opinion that the officers had probable cause to arrest Rovale. Prior to submitting the case to the jury, plaintiff dismissed the case challenging the call takers, leaving the conduct of the dispatchers and the officers in the hands of the jury. The City submitted special interrogatories designed to test the adequacy of proof on wilful and wanton misconduct against any verdict for plаintiff. The jury returned a verdict in favor of the City as to the dispatchers, but against the City as to the two officers, specifically answering the special interrogatories in a manner entirely consistent with a finding that the officers were wilfully and wantonly liable for their actions and inactions during these encounters. In a detailed posttrial hearing, the trial court denied defendant’s motion for a judgment notwithstanding the jury’s verdict and its motion for a new trial, leading to this timely filed appeal.
¶ 13 ANALYSIS
¶ 14 The City’s arguments can be broken down into three discrete positions. First, the City
asserts that the trial court should have entered a judgment notwithstanding the verdict
(judgment
n.o.v.
) in its favor. Specifically, the City urges us to find that Fenton was not an
“abused person” in the context of the Act, thereby removing any special duties under the Act,
and taking it out of the sphere of liability for wilful and wanton misconduct in the execution
and/or enforcement of the law. The City also argues that the trial court should have entered
a judgment
n.o.v.
in its favor because the proof failed to establish that there was a
supportable proximate causation nexus between the actions of its officers and the murder of
Fenton, since its officers had concluded their professional duties and since Rovale’s actions
broke any causal chain when he came back to the scene. Finally, the City argues that it is
entitlеd to a new trial because the trial court improperly allowed the jury to hear plaintiff’s
expert testify that the two officers were wilful and wanton for their failure to arrest Rovale
even though they had probable cause to do so. We will examine each contention in turn,
beginning with the City’s challenges to the denial of its motion for a judgment
n.o.v.
, an
issue which we review
de novo
.
Ries v. City of Chicago
,
“Whenever a law enforcement officer has reason to believe that a person has been abused, neglected, or exploited by a family or household member, the officer shall immediately use all reasonable means to prevent further abuse, neglect, or exploitation, including:
(1) Arresting the abusing, neglecting and exploiting party, where appropriate[.]” 750 ILCS 60/304(a) (West 2002).
In addition, “ ‘Abuse’ means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation but does not include reasonable direction of a minor child by a parent or person in loco parentis.” 750 ILCS 60/103(1) (West 2002). The City’s argument does not pass judicial muster for several reasons. First, it is
uncontradicted that Fenton himself called 911 on three occasions. “Domestic disturbance” was the law enforcement tag given to each call. In terms of the hoped-for effect on police response, the “DD” moniker is 1A priority call, which is second only to “officer needs *6 assistance.” Several witnesses at trial confirmed the truth of this fact, with one going as far as suggesting that inclusion of the word “violence” in the domestic disturbance dispatch to police would constitute surplusage. This is important, because the facts adduced at trial revealed that those taking the 911 calls were specifically informed of the possibility of violence, but the officers taking the dispatch were only told of a domestic disturbance. While the City would place some significance on the absence of the term “violence” in the dispatch orders, thе weight of the testimony at trial belies any such argument. This, combined with Rovale’s use of alcohol and his violent, jerky movements, should have alerted the officers that the situation had surpassed mere argument. Furthermore, as alluded to above, the testimony of the Detective Downs revealed that the officers had indeed been told that Fenton and Rovale had been arguing prior to each of the 911 calls. In its brief, the City forcefully argues that the conduct of these officers does not legally
rise to the level of wilful and wanton misconduct. Section 305 of the Act states as follows:
“Any act of omission or commission by any law enforcement officer acting in good fаith in rendering emergency assistance or otherwise enforcing this Act shall not impose civil liability upon the law enforcement officer or his or her supervisor or employer, unless the act is a result of willful or wanton misconduct.” 750 ILCS 60/305 (West 2002).
See also
Jane Doe-3 v. McLean County Unit District No. 5 Board of Directors
, 2012 IL
112479, ¶ 19 (finding that willful and wanton conduct is an aggravated form of negligence
requiring proof that the defendant had a duty, breached its duty, and that the breach
proximately caused the plaintiff’s injury). In essence, the City argues that even if one
concedes that Fenton was an “abused person” under the Act, the officers acted in a
professional manner and in keeping with the wishes of Fenton and Valerie, who refused the
offer to have Rovale arrested. While not entirely specious, this argument shrugs off a line of
precedent related to wilful and wanton misconduct. Our supreme court long ago recognized
a gray area between negligent conduct and wilful and wanton misconduct. See generally
Mattyasovszky v. West Towns Bus Co.
,
misconduct, since the most volatile player in this domestic drama was seen to exhibit the very same behavior after the police intervened the first time. This conduct was exacerbated by the decision to leave Rovale on the sidewalk where he supposedly would wait patiently in the freezing weather for an hour. The officers essentially hoped that Rovale would not turn around and finish what he had started. *7 We also find it significant that Fenton himself called 911 twice, drawing the police
presence at his home. (As noted, he also called as Rovale was poised to break into the home and ultimately kill Fenton.) On those first two occasions, despite being summoned by Fenton, the evidence at trial revealed that the responding officers never got his version of what hаd been simmering inside his home that prompted his request for emergency assistance. At least one of responding officers was, in a timely fashion, informed that the assailant was also arguing with Fenton and not just with Valerie, but there was no evidence that either officer ever conducted a detailed interview with him. For obvious reasons, the officers admitted that they performed an inadequate investigation. That is certainly consistent with the jury finding that the officers’ actions and inactions
amounted to wilful and wanton misconduct in their handling of this domestic disturbance. As noted in the testimony of Chief Deputy Davis, the fact that somebody made the call to 911 does not automatically mean that he is the victim of abuse. Similarly, however, that fact surely does not exclude the caller from truly occupying that status. The court and the jury heard plenty of evidence to support a finding that the officers had probable cause to arrest Rovale for disturbing the peace or for harassment under the Act. When we view the totality of this evidence, which included graphic descriptions of the drunken, boisterous and unpredictable behavior of the assailant here, it is easy to defend a jury finding that the officers exhibited an utter disregard for the safety of Fenton, who wound up murdered by the man that the police escorted to the sidewalk after leaving Fenton behind for a second time. Along the same vein, the City’s argument is quite cynical when one considers the fact that it conveniently ignores that these police officers did precious little to protect Valerie, the woman that they suggest was the only one who was being harassed by the assailant. Trying to predict what an irascible, violent and drunken man will do in a domestic dispute with his mother and her boyfriend could be an uncertain enterprise, but the potential for catastrophe is greater if one does not get everyone’s version of what is going on within the household. If Valerie had been the victim here, the City’s argument would gain no legal purchase. Considering the fact that there were only two potential victims in the home that evening, and one of them was killed, the City leans on a rather slender reed when it tries, in a not-so-subtle fashion, to argue that the only predictable victim was Valerie, not Fenton. Under these facts, the jury was justified in its finding that the officers should have done more to protect individuals who were abused within the meaning of the Act from the rage that the officers witnessed in Rovale. Finally, it merits mention that the public policy behind this Act would not be furthered if law enforcement could escape liability by merely claiming that the assailant was acting more malevolently toward someone other than the ultimate victim. The sort of outcome that occurred here is inarguаbly foreseeable, a point which will be emphasized below. Our holding in this specific regard finds ample support in the comments of the trial court
during the hearing on defendant’s posttrial motion. In that hearing, the court went to great lengths to describe the volatile nature of Rovale’s observed conduct at the scene, which led the trial judge to conclude that a jury could indeed find that Fenton was a protected person under the Act.
¶ 25 PROXIMATE CAUSATION/LEAVING THE SCENE ¶ 26 The City strongly argues that any potential liability was extinguished when its officers
left the scene of the disturbance after sending Rovale onto the sidewalk outside the residence. As mentioned, the officers observed him walk all of one block before leaving in their squad car. This action, according to the City, ended any legal duty that it might have possessed during the domestic disputes themselves. In making this argument, the City is really combining a duty argument with a causation argument. Proximate cause is generally a question of fact to be decided by the jury. Thompson v.
Gordon
,
be subjected to “generalized, open-ended duty to protect victims of domestic violence.” See
Lacey v. Village of Palatine
,
not proximately caused by any action or inaction by the City’s officers. In making this
argument, the City directly argues that Rovale’s returning to beat and stab Fenton was
unforeseeable. Specifically, the City cites precedent for the legal premise that the “relevant
inquiry *** is whether the injury *** would [be seen] as a likely result of his or her conduct.”
See
Abrams v. City of Chicago
,
cause argument. In
First Springfield Bank & Trust v. Galman
,
¶ 33 EXPERT OPINION ON PROBABLE CAUSE The City further contends that it is entitled to a new trial because the trial court
improperly allowed Davis, plaintiff’s expert witness on police procedure, to testify that the
two officers had probable cause to arrest Rovale on each of the two occasions that they were
called about his conduct. Specifically, the City claims that the subject of probable cause is
not appropriate for expert testimony because the subject matter is within the ken of the
average juror and does not involve application of any scientific principles.
Watkins v.
Schmitt
,
the question is not a proper subject for an expert’s opinion. See
Townsend v. Fassbinder
, 372
Ill. App. 3d 890, 906-07 (2007). We also note that the court’s ruling with respect to
foundation was entirely correct, inasmuch as Davis possessed the necessary qualifications
and training on police procedures relative to domestic disturbanсes. Furthermore, Davis had
reviewed the related CPD general orders and all of the reports from the underlying
occurrence and the investigation into the beating of Fenton. The foundation for her opinion
was well established. The City, however, harkens back to its motion
in limine
to bar Davis
from expressing any opinion related to probable cause to arrest Rovale at either time that they
were at the premises responding to a 911 call. During the motion hearings, the City cited
various purported infirmities with the opinions being offered by Davis. None of those
infirmities related to foundation for her opinion. Instead, the City objected that the witness
should not be allowed to interрret the law. It also argued that the subject of probable cause
and the law related to disorderly conduct were issues that the jury could easily understand
without an expert’s assistance. Nonetheless, a contemporaneous objection was required.
Wingo v. Rockford Memorial Hospital
, 292 Ill. App. 3d 896, 904 (1997). This rule is
appropriate, because the party wishing to exclude evidence has the burden to properly inform
the trial judge as to the specific nature of its objection to the proffered testimony.
Townsend
,
circumstances of the case
sub judice
. As earlier alluded to above, plaintiff claimed that the
officers were wilful and wanton in their failure to arrest Rovale and remove him from the
premises. It is axiomatic that a police officer must have probable cause to believe that a
person has committed a crime before an arrest can be made.
People v. Neal
, 2011 IL App
(1st) 092814, ¶ 10. Here, plaintiff claims that the officers had probable cause to arrest Rovale
for either disturbing the peace or for violation of the Act. Both of the police officers were
allowed tо testify that they did not believe that they had probable cause to arrest Rovale.
Despite this testimony, the officers acknowledged that they essentially
offered
to arrest him,
if Valerie and Fenton so desired. Given the evidence that Officers Morgan and Roberts
offered to arrest a man, whom they claimed to lack probable cause to arrest, the trial court
was entitled to find that the jury could benefit from an expert who could give them a better
understanding of this concept than the pattern jury instruction. As the trial court found, the
average individual has no prior consideration of probable cause outside what one sees on
television. It also bears mentioning that the City had two defenses that revolved around the
two very different forms of causation, probable cause and proximate cause. The testimony
of an expert in this sort of muddled civil, but quasi-criminal, context strikes us as quite
appropriate. See also
Hayter v. City of Mount Vernon
,
person within the meaning of the Act, that the officers’ conduct was wilful and wanton, and that their conduct was a proximate cause of Fenton’s death. We also find that the under these unique circumstances, the trial court properly permitted Davis to testify regarding probable cause to assist the jury. For all of the reasons stated, the judgment of the trial court is affirmed in all respects. Affirmed.