*1 being deprived due brief as those plaintiffs’ owners identified impact exemption of homestead would that some form process knew extent. burden; question of to what their the tax it was share of plaintiffs. upon the identified imposed no new tax Section 15—176 out in supreme if court set Therefore, even the considerations our elements, only factors, not those factors Edison were Commonwealth remand for against is no need for a necessarily weigh plaintiffs; there circuit dismissal of the retroactiv- development factual and the court’s ity proper. count was
VII. Conclusion judgment reasons, we of the circuit foregoing For all the affirm court.
Affirmed. McNULTY, J., SMITH, P.J., and concur.
FITZGERALD HUDSON, CHICAGO, Plaintiff-Appellee, THE VERNON v. CITY OF (James Scott, Third-Party Plaintiff-Appellant Defendant-Appellant Third- Party Defendant-Appellee). (6th Division)
First District No. 1 — 05—2822 Opinion filed 2007. December *2 O’MALLLEY,J., dissenting. Paster, Counsel, (Emily Corporation Chicago As- Georges, S. K.
Mara Counsel, counsel), Corporation appellant. sistant for Rathsack, Romanucci, Blandin, all of Stephan D. and Antonio Michael W. Chicago, appellee Hudson. Vernon *3 opinion of the court:
JUSTICE JOSEPH GORDON delivered Plaintiff, Hudson, defendant, city brought against suit Vernon (the Lee, alleg- Chicago City), Chicago officer, Sung of and Joo police ing Lee, and and through negligence in two counts that Officer willful conduct, left Hudson with wanton caused an automobile collision that permanent injuries including paraplegia. serious and Hudson voluntar- ily Lee with prior proceeded dismissed Officer to trial and case jury The for Hudson on counts City as the sole defendant. found both In damages of million. addition $17.5 awarded over verdict, interrogatories. City now special answered The two notwithstanding it appeals, arguing judgment entitled to verdict it was immune under the Local Governmental because (745 et Act ILCS Employees Immunity Governmental Tort 10/1—101 (West 2004)) (Tort Act) seq. Immunity liability negligence, from for officer’s conduct was willful and wanton. because the it new because City alternatively argues is entitled to a trial expert computer to show improperly the trial court allowed Hudson’s jury, of because the was not simulation the accident conduct, properly instructed on what constitutes willful and wanton attorney how to plaintiff’s improperly and because advised interrogatories. follow, special answer one For reasons we affirm.1
BACKGROUND complaint alleged Hudson’s fourth amended li- injuries I, able for his under two theories. In count Hudson alleged negligent following Officer Lee was in the respects: speed “a. Exceeded endangering maximum limits life and property; sirens, Failed lights emergency
b. to activate mars signals; c. Drove her motor in a causing vehicle manner toit lose control Hudson; and strike Vernon Improperly
d. change striking executed a lane Vernon Hudson’s vehicle; motor vehicle; Failed in operation
e. to exercise due care of her proper f. Failed to maintain a for lookout traffic then and there upon highway.” II complaint alleged
Count that Officer Lee’s conduct was following willful and respects: wanton operate “a. Failed to the motor speed vehicle and in a man- compatible ner conditions ensure that control the motor times, vehicle is maintained at all in violation of General Order 3; 97— Improperly engaged caravaning b. when was [sic] it not safe so, 3; do violation General Order 97— Improperly participated pursuit
c. in a she when was not 3; authorized to do so in violation General Order 97— In d. violation General Order drover her [sic] motor 97— regard safety vehicle due persons without of all on the highway, including Hudson; Vernon causing
e. Drove her motor vehicle in a manner strike Ver- Hudson; non vehicle; Recklessly
f. failed to over maintain control her g. Recklessly executed lane change striking Vernon Hudson’s vehicle; motor Inh. violation of General Order failed to adhere to basic 97— safety by moving #1 practices
traffic into lane when it was not safe so; to do activity i. violation of General Order used the of ‘fol- 97—
lowing’ subterfuge pursuit; as a for vehicle j. 3, improperly engaged violation General Order 97— unsafe; pursuit when vehicle the volume of traffic made it City’s against third-party third-party defendant-appellee, 1The action Scott, part appeal. James is not of this pursuit when it was the most Failed to the vehicle
k. abandon Order 97 —3.” in violation of General course of action reasonable 11, 2005. Hudson trial on March proceeded claims to Hudson’s accident, 7, 2001, job left he his May night testified that on p.m., entered the Eisenhower at about 8:20 as a truck mechanic rightmost of four Damen, in the and headed west expressway Kedzie, he around heard that somewhere westbound lanes. He stated him, put his so flashing lights coming from behind sirens and saw right shoulder. Hudson stated signal pulled turn on and over to immediately of him so car in front pulled that a had onto shoulder He said get to onto shoulder. beyond that he had to drive that car shoulder, except way that his “all onto the car was over” line.” Hudson might been on the stated “just left rear tire have hit, he could not his but point was at car in the sometime up hospital until he woke anything remember further cross-examination, On stated that the weather on later. Hudson night dry of the accident and clear. Lee examination as an adverse witness
Officer testified direct that, occurrence, the police at the time of the she was familiar with under department order which described what 97 — engage pursuits. police circumstances officers could in motor vehicle plaintiffs General order into and the 97—3 entered evidence following provisions counsel had Officer Lee read the aloud: procedures guidelines provide Department “These members with *** engaged pursuit. when motor follow in a vehicle Members cognizant pursuits must be that motor vehicle are a fact injury potential serious matter with a for death to the offic- and/or persons ers, persons being pursued, innocent vehicle and/or property damage. the area and Department vehicles will be operating Police officers unmarked permitted engage pursuit only in a when the flee- motor vehicle ing occupants represent motor vehicle or its an immediate and life. Department direct threat Whenever marked vehicle pursuit, a vehicle the unmarked becomes available take over operator primary pursuit vehicle withdraw as the Department will only, supervisor assigned approval unit and with the secondary pursuit, pursuit the role unit. assume [***] activity ‘following’2 as a
At no time will an officer use the subterfuge pursuit. for vehicle operation 2The “the of a “following” as discreet order defines
vehicle, laws, Following compliance all behind a motor vehicle. traffic *5 pursuit An active will no than primary involve more a and pursuit secondary by supervisor. unit unless otherwise directed a All other units will remain progress aware direction and of pursuit, the but actively participate, respond will not and will not parallel streets, pursuit adjacent or the specifically unless authorized do so.
The pursuit decision to a initiate rests with the individual officer. The Department member will engage a motor vehicle pursuit when:
* * [*] necessity apprehension d. The outweighs of immediate the level of danger by pursuit; inherent created the e. speeds maneuvering practices engaged involved and/or in, permit the Department operator complete vehicle control of his vehicle do danger others; not create or unwarranted himself
f. the pedestrian permits volume of vehicular traffic and/or continuing pursuit.
The pursuit may decision to abandon vehicle most reasonable course of supervisors action. Officers their must continually evaluate pursuit light danger the nature of of its a judgment make the pursuit, terminate whenever neces- sary. A pursuit will be immediately terminated whenever:
[*] [**] Speeds involved, traffic, volume of pedestrian vehicular and/or presence of weather road hazards or distance between and/or pursuit unnecessarily vehicles indicates that further will endanger public Department members. and/or
5$; [*] [*] following The during activities are prohibited the course of a pursuit: vehicle
c. caravanning 3 (unless authorized * * [*] by supervisor). *$> (e) foregoing provisions of do relieve driver an emergency duty driving authorized vehicle from the with due regard safety all persons, provision protect for the nor do such consequences from disregard driver his reckless safety of others. employed gather so member can more information about the vehicle occupants an its order to make informed decision about whether to effect stop.” “caravanning” following participa
3The order “the defines and direct pursuit tion in a more than two vehicles.” * * * emergency does vehicle authorized operation regard driving responsibility due from the relieve the driver safety of all persons. for the accident is involved an
Any operator who Department vehicle required will be emergency situation responding to an while justify actions. his assignment, the emergency situation responding
When to an vehicle operator of a marked will: Department sworn vehicle safety practices. 2. basic adhere to traffic compatible in manner operate speed 3. the vehicle at a control of the to ensure that with weather local conditions *6 vehicle maintained at all times.” fleeing not in pursuit
Officer Lee testified that she was in subterfuge” pursuit for viola- “following not suspect was Rather, attempting was tion of the order. she stated that she doing actually pursuing. to other who were the “assist” the officers admitted, however, in “as- Lee that she had never been trained Officer sisting.” the day
Officer stated that on the of the accident she was at Lee 11th district at Kedzie and Harrison with Officer police station Ray. they processing Howard said that had an arrestee She been police heard call over just leaving they were the station when the being pursued that a in a on the suspect radio homicide white van was the acknowl- expressway. eastbound lanes of Eisenhower Officer Lee edged request participation that did her dispatcher the radio not that she not her or the radio pursuit supervisor did advise going pursuit. was to She denied dispatcher participate that she actively pursuit intention and stated that she participate to required anyone going to she was to enter was advise that pursuit taking place. area which the that, collision, prior
Officer Lee testified she and Officer to traveling Ray expressway entered the eastbound lanes of the and were for a their that they police few minutes when heard on radio direc- begun opposite travel in the suspect had turned around and to cor- tion in the Lee said that then westbound lanes. Officer at respondingly exited eastbound lanes Western Avenue reentered the She that heard the sirens westbound lanes. stated she reentering but expressway, other cars when she was any of the white sure that she saw them. She said she never saw being pursued. van entering the
Officer Lee described that when she was westbound expressway, there were “a lot of change citizen” cars. She did not right away, point lanes but at changed some from the right- lane entered, most lane which she had initially to lane to immediately the left. She subsequently stated that she moved back to lane where the collision occurred. Officer Lee stated that there was traffic “all “they around” and moving were me.” She said that she did not her, recall whether civilian passing cars were but “they must been], pay [have I didn’t attention to other cars much.” She said driving that as she was the expressway collision, before “some going cars the right [apparently yield, that] were but some cars going straight.” Officer Lee further point stated that at some prior to the had collision she her emergency lights activated specifically checking recalled sure they make were on. collision,
In describing the Officer Lee stated that had just she completed her change lane from lane back to lane 1 she when saw pulling car Hudson’s out in front her from the shoulder. She said she immediately applied but the brakes she struck rear of car. said Hudson’s She that she applied lost control of her car after she response her questions brakes. from plaintiff’s counsel about prohibited whether anything her seeing prior from Hudson’s car collision, she stated: “I was not necessarily looking if someone will merge my into lane from the shoulder.” She “I further stated: wasn’t *** at I looking going lane that in. I looking at the car in mirror, front me. I mirror, looked at the rear I I looked the side looked back. I I my lane, my When knew that it was clear in made change.” lane traveling Officer Lee stated that she had been ap- proximately 45 per to miles hour.
On cross-examination City, counsel Officer Lee stated *7 accident, that the time of the she help believed that the she could “avert or reduce the seriousness of the situation.” She explained:
“It could as little traffic as control because the offender go- was ing expressway back on and off the going east and west. Citizens of in are aware this. So officers that can the help area citizens *** *** injured get not to and also it could be the that when offi- *** affecting offender, might grab cers are on girl arrest that he street, on the shooting street citizens on the or he could be people shooting go- or he could be at officers. I don’t what’s know ing offender, I happen to ***. know is it homicide What was a that armed, reasonably many he was as help believed be that officers’ listening of progress that area and to or be aware the pursuit necessary.”
She further that was out” in “help stated she trained this manner. examination, thought
On redirect when she asked whether was Lee Officer subject, the 97—3 and chase okay order violate denied that she was further suspect.” “I did not chase the She stated: when she stated that up pursuit. catch She also attempting to away a half mile to a mile pursuit expressway, entered the be] of assistance.” “hoping [could that she that she was trooper, Police Lococo, an Illinois State Plaintiff next called Jason shortly before of the collision that arrived at the scene who testified he he that arrived He stated when personnel paramedics arrived. fire shoulder, recall but he did not on the Hudson’s was overturned vehicle photographs, being After shown location of Officer Lee’s vehicle. op- facing northeast —in he stated that Officer Lee’s vehicle was majority of traffic. He noted that the posite direction of the flow of portion front and that damage to vehicle was to the left Officer Lee’s damage the left side of Hudson’s vehicle. there testify. He stated partner, Ray, next Officer Lee’s Officer dispatch about 2001, he and Lee heard a radio May that on Officer (Eisenhower) He being expressway. pursued white van dispatch to they by that or instructed acknowledged were not directed to do participate pursuit, they upon but that took it themselves so. Ray and Officer Lee entered
Officer stated that he he “a expressway, westbound could see that there were number” he chasing acknowledged that neither cars the white van. He they dispatch they pursuit Officer Lee told that saw the or that nor he Lee participate were it. He said the time and Officer going to ahead. expressway, pursuit entered the the actual was several blocks they had to He said that there was civilian traffic on road into lanes as a result the traffic front maneuver different Ray attempting to them. Officer denied that he and Officer Lee were “intending averring they to assist apprehend suspect, the officers.” right vehicle until Ray
Officer stated that he did not see Hudson’s seeing it impact did recall move from before He said that he and Officer right shoulder front their vehicle. in lane the crash. Lee were or before cross-examination, assisting other of- Ray stated that
On Officer there is part ficers was of his duties. He further described when pursuit suspect of a homicide For officers. pursuit assist in the or assist the
“we are able to vehicle, instance, say stopping offender a chase has ended in the may they need assistance jumping point, out the car. At that neighborhood people explaining where information from went, I come in at. need as- guy and that’s where would Or *8 apprehending may sistance in the offender due to the fact he agile, able run fast or he’s and I that’s where would come at assisting. as far as Or canvassing apprehend area of- fender.”
He further stated that police supposed officers are not to wait for a supervisor to tell them to assist other officers. regard accident,
With preceding to the minutes Ray Officer stated that saw the white van being pursued as he and Officer Lee expressway. entered the westbound He said that Officer Lee did not try to up pursuit catch with the traveling that she a high speed. rate He they pursuit said that not in were but that he considered an pursuit.” himself “assistant to the He further stated flashing lights that their vehicle’s and sirens were on at all times. redirect, On Ray Officer estimated that Officer Lee was traveling approximately per 55 miles hour time of the accident. He stated that he could not recall engaged whether he or Officer Lee lights, they vehicle’s However, but he knew were on. he later stated that he could not recall if the emergency lights were on. Carolyn
Lieutenant Jackson testified that at the time of the ac- cident she was a field lieutenant a watch commander. She stated that she was police familiar department general with the orders regarding pursuits. She stated that officers are “actively who involved in pursuit” actively are trailing suspect’s acknowledged vehicle. She if Ray positions Officers Lee and left their and entered the expressway lights pursuit with their and siren directly on it, in front they trailing of them and were would mean were actively engaged in pursuit. said that if Lee Ray She Officers assisting felon, in apprehending suspected required they were under department policy procedure however, dispatch; advise likely she stated that it was dispatch had ordered radio silence keep order to people actually doing contact with the who were pursuit. police Lieutenant Jackson also duty stated that it is officer’s fleeing to assist in the apprehension suspect homicide if geographic Finally, same area. Lieutenant Jackson stated that her incident, review of the police she learned that to 15 vehicles were pursuit. involved in the videotaped eyewit- was next shown deposition
ness, Patrick, 7, 2001, May Denise who testified that was stand- she ing Lounge, the 290 outside which located on south side expressway Homan and Park Eisenhower between Central Avenues. outside, standing Patrick she stated that while she heard sirens flashing lights expressway. and then saw on the She stated that she could see that the were involved in a could not see chase but vantage from her pursuit seeing After being pursued. who was gate separated Patrick went over Lounge, the 290 outside street. from the expressway *9 collision, describ- that, position, she saw a from that Patrick stated police to the shoulder when trying get to ing that “one car was over him, hit right the way up to car come from the far left and all the *** just the stated that to the of his car almost.” She right like back point of at the car on the shoulder part front of Hudson’s the four lanes police car in the far left of impact. She said that the per to miles hour. going that it was when she first saw it and per hour. She approximately 10 miles going She said Hudson’s car was the far left lane” to “jumped [far] car from police said that so, why it did because the right that she did not know lane and stated impeded by traffic. She “jumped” left from the car was not lane which he car as was police further stated the car struck the back of Hudson’s “approaching get off on the shoulder.” cross-examination, prior witnessing that
On Patrick admitted four drinks of alcohol. She the accident she had consumed about may previously stated that the acknowledged further that she have of lights she had on at the time police emergency car witnessed its accident. Ziejewski expert Dr. Mariusz as an witness.
Plaintiff next called engineering Dr. a Ph.D. in Ziejewski reported that he has mechanical college engineering of of the of at North faculty is member Society He he of the University. Dakota State stated that is a member Engineers presented peer-reviewed of and has several Automotive papers impact analysis to automotive structures. He the area explained “impact analysis” vehicle “analysis that involves the how or in applied, structure when sudden force is a car collision deforms other event.” Ziejewski explained by plaintiffs he counsel to Dr. that was hired ***
“perform analysis explain how the accident oc- engineering curred, collided, happened dynamically to how the vehicles and what He that the materials the vehicles as a result of the collision.” stated report, his reaching opinion included traffic crash reviewed Hudson, involved, police deposition of depositions of the officers multiple photographs. Ziejewski photographs he observed explained Dr. that from damage police left vehicle damage front damage the extensive entirety of He noted that Hudson’s vehicle. had the fact that the vehicle vehicle was attributable to Hudson’s occurred analysis his to how accident rolled over and made damage However, specific able much more difficult. he was to observe quarter panel to the left front and to left corner of the bottom bumper. corner of the Ziejewski
Dr. point determined that the of impact initial on the police vehicle was at its left front He corner. further stated that the point impact initial on Hudson’s quarter vehicle was at its rear left panel. He specifically ruled out the possibility point the initial impact on Hudson’s vehicle was at its bumper, explaining rear the nature the damage, indented, v-shape, which was would not point vehicle, match initial of impact police at the left front of the which was essentially straight edge. Ziejewski Dr. further noted that the police up facing vehicle ended against the direction of traffic.
Dr. Ziejewski opined right impact, before the initial Hudson’s basically pointing west, vehicle was angulation,” “some and that Officer pointing Lee’s vehicle was in the opposite direction at angle. some He stated that the left front corner of the vehicle struck the left rear quarter panel Ziejewski of Hudson’s vehicle. Dr. then jury, using vehicles, demonstrated to the court and model how impact such an would occur. Ziejewski
Dr. explained further had computer *10 he created a simulation of the using computer accident the program. “ED-SMAC” To run the he program, input the the characteristics of two vehicles as involved well as the road He explained characteristics. the simula- representation tion as a graphical physics and stated that the computer program engineering equations you solves the to show how the vehicles would move. distinguished computer He his simulation animation, from explaining merely that the latter what you involves envision, can cartoons, “like with no science behind it.”
The computer jury depicts simulation shown the lanes five traffic, with the rightmost lane representing the shoulder of the expressway. representing The car Officer Lee’s vehicle starts the lane, right simulation leftmost it a starts hard turn the spins nearly 180 degrees representing before it contacts the vehicle police Hudson’s vehicle in the left shoulder lane. The front of the vehicle, is, point, traffic, which facing opposite the direction vehicle, impact strikes the left rear of Hudson’s and then a second oc- curs the police between left rear of the vehicle and the left front of the vehicle. Hudson a City, Ziejewski
On cross-examination Dr. insisted that in traveling dry require vehicle westbound would more conditions facing than one spin up northeasterly lane’s width end agreed simulation, direction. He that to create the he had to computer input police certain data he represent and that vehicle used data pertaining although to a Chevrolet Monte Carlo vehicle was actually Caprice. a Chevrolet starts simulation computer acknowledged
He further due angle north 10-degree traveling vehicle police with the turn,” right hard “very make he then had vehicle and that west “to there had degrees, explaining at 180 steering wheel have he “had to factors,” and that instability dynamic be additional Otherwise, run. beginning at the car of control police out that, after further stated way.” He turn around [it] will never braking power with 50% applied were turn, input that the brakes He rear wheels. braking power to the and 100% to the front wheels locked, less stable a car will be if rear wheels are explained that sliding out likely to “come turn, the car will be more and the rear of car.” the rest of the and not make the turn with Lee’s car year and model of Officer Ziejewski Dr. admitted that the did not brakes, he stated that he antilock but having listed as Of- that feature on department had removed police know whether the had that the simulation Ziejewski Dr. further stated ficer Lee’s car. despite accident straight before the going Hudson’s vehicle right. He further acknowl- going slightly testimony that was right turning to the simulation had Hudson’s vehicle edged that the making any recall such impact although after the Hudson could not movement. skid marks there no record of Ziejewski acknowledged
Dr. that, normally, such evidence would in the material he reviewed help determining speed and direction. and wanton conduct
The court instructed the on willful I conduct’ expression I and wanton follows: “When use ‘willful to or a an utter indifference mean a course of action which shows safety of oth- safety and disregard person’s for a own conscious ers.” The court further stated: damage injured and sustained that he was plaintiff
“The claims defendant was willful and wanton and that the conduct of the followingrespects: one or more of the speed and in a manner operate car at a
a. Failed to *11 police car that control of the compatible with conditions to ensure 3; times, in violation of General Order was maintained at all 97— not safe to do engaged caravanning when it was improperly b. so, 3; Order violation General 97— pursuit when she was improperly participated c. 3; so, in Order authorized to do violation of General 97— police car Order drove d. in violation of General 97— highway, on the regard safety persons for the of all without due Hudson; including Vernon car; over the
e. failed to maintain control f. change executed a lane striking vehicle; VernonHudson’smotor g. in violation of General Order failed to adhere to basic 97— safety practices by traffic moving into lane No. 1 when it was not so; safe to do h. in violation of General Order activity used the of fol- 97—
lowing subterfuge as a for a pursuit; vehicle j. failed pursuit to abandon the vehicle when it was the most action, reasonable course of in violation of General Order 97—3.” jury given special interrogatories. two The first asked: “Did Officer Lee act willfully wantonly at or about the time of the occurrence?” The second asked: “Was executing Officer Lee enforcing the law or about the time of the occurrence?”
During closing arguments, attorney Hudson’s following made the comment regarding the special second interrogatory: “Ladies and gentlemen, Vernon, if you’re for you will answer special interroga- tory no.” argued Counsel also that the evidence supported the conclu- sion that Officer Lee enforcing was not the law. Defense counsel objected to the comment regarding jury how the should answer the interrogatory, sustained, and the trial court admonishing “disregard argument.” 21, 2005,
On March returned verdict for Hudson on addition, both counts. the jury special answered the interroga- first tory, regarding whether Lee wanton, was willful and in the affirma- tive, and the interrogatory, second regarding whether Lee was enforc- law, ing the negative. Thereafter, the trial court entered a judgment on $17,682,374.05. the verdict in the amount of 20, 2005,
On May the City brought posttrial judg- motion for ment notwithstanding or, alternative, the verdict for a new trial. The trial 26, 2005, court denied the July motion on City filed a timely appeal notice of August 2005. appeal,
On City raises arguments. several The City first contends that it is entitled judgment as a matter of law because it is immune from liability negligence Immunity under the Tort Act and because Officer Lee’s conduct was not willful and wanton. With regard negligence count, to the City purport does challenge jury’s finding negligence; rather, contends that it was entitled to judgment as a matter of grounds immunity. law on the Alternatively the City contends that a trial is new warranted on the negligence count because Hudson’s attorney told the the effect of answering special interrogatory which asked whether Officer Lee was enforcing regard count, the law. With willful wanton
387 of law as a matter judgment it was entitled City the contends allegation, and support the there was insufficient evidence because sup- computer and simulation expert’s testimony because Hudson’s finally contends City The improperly admitted. port of that count were alternative, trial on the willful that, it is entitled to a new computer the simulation the admission of wanton count because and wanton on willful instructions and because prejudicial misleading. conduct were and ad- City’s contentions disputes all of the generally
Hudson and wanton regarding the willful any error ditionally contends finding with jury’s be rendered moot virtue count would points further out negligence count. Hudson regard to special inter- jury’s answers to City has never contended that has, weight the manifest evidence rogatories against regard findings. Finally, with therefore, any objections to those waived special interrogatory, Hudson attorney’s comments about the to his by im- any error in that comment contends that the trial court cured objection instructing mediately sustaining City’s disregard the comment.
ANALYSIS City’s Judgment Notwithstanding A. The Motion for Count Negligence Verdict on judg City’s first address the contention that it was entitled We because it notwithstanding negligence ment the verdict on the count A Immunity judgment immune under the Tort Act. non obstante evidence, veredicto, n.o.v., judgment or should be entered where all so aspect opponent, when viewed in its most favorable to the contrary on that overwhelmingly favors movant that no verdict based Co., & R.R. 37 evidence could ever stand. Pedrick v. Peoria Eastern (1967). 494, 504, judg rulings 2d We review 229 N.E.2d University Chicago Hospitals, ments n.o.v. de novo. Townsend v. (2000). 406, 409, 741 N.E.2d 2—109 of the Tort contends that sections 2—202 and negligence. Hudson’s claim of Immunity apply Act this case to defeat his act or public employee “A is not liable for Section 2—202 states: unless such act omission in the execution or enforcement of law conduct.” 745 ILCS or omission constitutes willful wanton 10/2— (West 2004). is not li- public entity states: “A local Section 2—109 employee of its injury resulting able for an from an act or omission 2004). (West employee is not liable.” 745 ILCS where 10/2—109 Lee liability because Officer According City, it is immune from the accident occurred executing enforcing the law when acting willfully wantonly. she was not
Our supreme court has often explained Immunity
Tort
Act
in derogation
“is
against
of the common
public
law action
local
entities, and
strictly
must be
against
construed
public entity
Morris,
involved.”
273, 278,
Aikens v.
583 N.E.2d
(1991); Rio
Hospital,
354, 362,
v. Edward
104 Ill. 2d
The
as to what activities can be deemed to constitute
executing
enforcing
or
appears
the law
determined
to have been
on a
case-by-case
In Fitzpatrick,
basis.
supreme
our
court held that
investigating a traffic accident constituted an execution or enforce
ment
Fitzpatrick,
221,
of the law.
“[The
upon
enforce a law.The facts that
being
called
to execute or
scene, did not have his
specifically dispatched
not
subjectively
activated,
did not
emergency lights and
siren
emergency do not alter this conclu
consider the situation to be an
do
immunity
applicable
in
has been found
sion. The cases which
emergencyresponse.”
require
engaged
that the officerbe
Bruecks,
569,
App.
3d at
On the other
there is an extensive line of cases that has
held that ordinary police
qualify
activities do not
as enforcement or
execution of the
protected
law so as to be
by section
immunity.
2—202
example,
Aikens,
For
supreme
our
court found that
the act of
transporting prisoners did not constitute an execution or enforcement
of the law that would immunize
city
of Evanston and one of its
police officers from
plaintiffs
negligence. Aikens,
claims of
145 Ill.
286,
2d at
“[V]irtually every police
duty pursuant
function or
legal
to some
authorization in the broadest
Arguably,
[Citation.]
sense.
then the
performance
any
task
duty
while on
is in enforcement or execu
tion
believe,
of the law.
do
however,
We
previously
as we have
stated,
legislature
Aikens,
intended such a result.”
145 Ill.
285,
2d at
In Simpson,
police
car
by
driven
a Chicago police officer struck
and seriously injured a 10-year-old girl riding
bicycle.
Simpson, 233
Ill. App.
792,
3d at
599 N.E.2d at
police
1044. The
City
officer and the
Chicago
immunity
claimed
202,
under section
contending that
2—
police
officer
enforcing
the law at the time of the accident in
that he was
way
on his
to an address where someone had called to
report missing person.
Simpson,
792,
Ill. App.
3d at
599 N.E.2d
at 1044.
granted
The trial court
summary judgment to defendants and
appellate
reversed,
court
noting that
police
officer “did not
consider the call an emergency and there was no indication that any
crime had been committed
or that
required
law
execution or
enforcement.” Simpson,
App.
233 Ill.
3d at
(1992), police
officer was cruising
patrol
in a
car when he saw several
people standing in front
hallway
of and
apartment
of an
build
ing. Leaks,
In this it is police her pursuit over progress, that Officer Lee heard about radio, Ray expressway then entered the and that she and Officer Ray taking part denied in some manner. Officers Lee and part take order police department general pursuit the actual in violation of vehicles, their but characterized pursuits limited to two which she meant explain asked to what involvement as “assistance.” When something include “assistance,” Lee testified that it could Officer if the control,” could be needed to assist “as little as traffic or that she street, on the girl the street or citizens suspect “grab were to shooting at officers.” Of people or he could be shooting he could be and Officer Lee’s “assistance” Ray similarly ficer testified that his his suspect if the were to leave vehicle could have been needed event, could he and Officer Lee flee He stated that in such an on foot. people,” neighborhood from the by gathering then assist “information may fact he be able to the offender due to the by “apprehending *16 agile,” “canvassing apprehend run fast or he’s or the area to the of- fender.” actually
It is clear that had Officer Lee
providing
been
traffic
accident,
immunity
control at the time of the
section 2—202
ap
would
ply.
221,
Fitzpatrick,
(investigat
See
2d at
However,
presented,
under the evidence
was free to
conclude that none of these
scenarios occurred
this case. Officers
Lee and Ray specifically
they
trying
denied that
to apprehend
suspect. Moreover,
specific
there was no
indication in the record
actually required
that traffic control was
requested
or
or that the of-
engaged
pursuit required
ficers
in the actual
requested backup.
or
only law that was in actual need of enforcement related
ap-
prehension of the criminal suspect,
explicitly
and Officer Lee
denied
Thus,
taking part
that she was
in that enforcement.
could
enforcing
have concluded that Officer Lee was not involved in
law,
executing
merely making
but was
herself available to enforce
or execute the
police
law should the need arise.4 The mere fact that a
speculation
may
required
officer acts on the
that she
be
to enforce or
reject
4The
was also free to
Officer Lee’s contention that she was not
pursuit
suspect
police department general
of the
in violation of the
order
upon
closely monitoring
dispatch
based
she
evidence that
radio
changing
correspond
suspect’s
and was
lanes to
with the
movement. While
parties
authority discussing
cite no
deemed to
whether a
officer can be
enforcing
pursuing
suspect
derogation
the law when she is
in direct
of an
rule,
police department
arguably
internal
it would
be inconsistent
to extend
immunity provided
in section 2—202 under such circumstances.
that
regard,
alleged
note
Officer Lee’s
order was
we
violation
enough
activate the
some,
is not
yet,
execute
undetermined law
Thus,
immunity
there was no
immunity
forth in section 2—202.
set
suspicion
Leaks,
merely
the officer
had a
negligence
from
where
specific
there was no
drug
required
enforcement because
laws
Leaks,
Ill. App.
actually being
law was
broken.
indication
here,
Similarly,
explanation
Officer Lee’s
B. The for a Trial on the Count Negligence Motion New however, City, alternatively The contends that it is entitled to a negligence plaintiffs attorney new trial on the count because told the During closing special interrogatories. how to answer one of the arguments plaintiffs counsel stated: following question: judge you
“The wants to have answer the enforcing the time of the executing Was Officer Lee the laws at occurrence? pursuit, merely failing specific requirements for such one of to adhere used; rather, emergency joined the lights
as that and sirens must be had she directly forbidding pursuit, acting contrary to a rule such she would have been then, arguably, authority capacity to enforce action and lack the she would the law. talking
That’s what we went over earlier when we were about they’re trying defense where to claim this was an their affirmative emergency. gentlemen, respectfully you
Ladies and I submit to that the no, question enforcing Lee answer to this at or about the time of the occurrence. is Officer was not law Vernon, gentlemen, you’re you if for will answer Ladies special interrogatory no. overwhelming City
The not met evidence is has their proof. And burden of proof that’s what it is. We each have burdens of has to establish their burden of City proof in this case. The Lee, probability that Officer that there was that that we talked being apprehension. about of there City proof. responsibility The their has burden It’s not our spent rebut it. a lot of time on it I think the We evidence is City overwhelmingthat we have rebutted it. The has not met their and, failure, proof you to check off burden of based on that we ask no, executing enforcing Officer Lee was not the law.” upon excerpt claims that it is entitled to a new trial based Vernon, closing argument you’re of this where counsel said: “[I]f you special interrogatory will answer this no.”
Generally, grant we will not reverse a trial court’s refusal to a new Gustafson, trial unless the court abused its discretion. Maple v. (1992). 445, 455, Similarly, scope closing “[t]he N.E.2d argument is within the sound discretion of the trial court and the reviewing argument if the Ea prejudicial.” court will reverse County 724, 732-33, v. Cook glin Hospital, 592 N.E.2d (1992). 205, 211 supreme
This issue was addressed our court Sommese v. (1966). Brothers, Inc., Ill. 2d In that Mailing N.E.2d 263 *18 case, special interrogatory told the that a had plaintiff’s jury counsel by jury been in” defendant’s and that the should “slipped counsel its the interrogatory harmonize answer to the verdict so as not “ ” Sommese, any right to deprive recovery.’ ‘to this woman of 266, Although objection 2d at 222 defendant made no N.E.2d 470. motion, supreme the brought posttrial to the statement until it a argument improperly jury held informed the court the purpose special of a inter interrogatory source of the and defeated jury its to its verdict so as rogatory by advising the to conform answer Sommese, protect regard to to the evidence. 36 verdict without 266-67, explained: 222 The court N.E.2d at 470. special inter- generally recognized “It is that the function a jury’s or more rogatory require is to determination as to one
395
specific
upon
issues of ultimate fact and is a check
the delibera
jury. ‘Specialinterrogatories
purpose
tions of
are used for the
testing
general
against
jury’s
verdict
conclusions as
Sommese,
controlling
[Citation.]”
ultimate
facts.’
Ill. 2d at
267,
The court further stated: plaintiffs attorney improperly jury
“It is clear that
alerted the
damages
fact that its decisionto assess
wouldbe nullified
Thus,
interrogatory.
safeguard against
affirmative answer to the
jury awarding damages
passion
prejudice
sympathy
out
making specific
without first
ap
factual determinations and then
plying
Sommese,
the law thereto was thwarted.”
The court then concluded
prejudicial
that the error was
and mandated
Sommese,
268,
new trial.
The
again
court
addressed this issue in
Wyeth
Batteast v.
Laboratories,
(1990).
Inc.,
175,
137 Ill. 2d
case,
In
plaintiff’s
asked
“yes”
special interrogatory
to a
which
whether
negligence
proximate
injuries,
the sole
cause of his
there could be
was
Levin,
651,
plaintiff.
App.
no
for
164 Ill.
3d at
518 N.E.2d
verdict
interrupted
he not
plaintiffs
argued
212. The
counsel
that had
been
statement,
objection
explained
defendant’s
to his
he would have
by
if
jury
plaintiff
the
that the reason there could not be a verdict for the
that,
negligence
if
the
“yes”
plaintiffs
answered
was
sole
plaintiff
mean the
had failed
proximate
injury,
cause of his
would
Levin,
651,
Ill.
prove
App.
his case and could not recover.
that,
Sommese,
212.
court noted
unlike in
appellate
518 N.E.2d at
The
special interrogatory,
did not state the source of the
plaintiffs counsel
verdict,
the
supersede
he did not state that the answer thereto would
jury
and he did
bid the
to harmonize its verdict with its answer to
Levin,
at 213.
interrogatory.
the
3d at
518 N.E.2d
although
The court further noted that
counsel’s statement could be
answer, it
advising
jury
“legal
as
the
of the
effect” of its
construed
advising
jury
equally plausible
“merely
that counsel was
namely, that in contrast to a situation of
logical
the answer’s
‘effect’—
if
then
comparative negligence,
negligence
the sole
were Levin’s
Levin
Levin,
against anyone
could not recover
else.”
3d at
ambigu
“[i]n
N.E.2d at 213.
supreme
distinguished
in
its facts from those
court
Batteast
that,
case,
by noting
improper
unlike in that
statement
Levin
twice,
objection to
made
the trial court denied defendant’s
cautionary
regarding
special interrogatory,
no
plaintiffs statement
Batteast,
ambiguous.
given,
instruction was
and the statement was not
find
Ill. 2d at
at 321. We
the instant facts
560 N.E.2d
in Batteast.
more similar to those in Levin than those
case,
Levin,
plaintiffs
counsel did not solicit
(as
be consistent with the verdict
to harmonize its answer to
Sommese),
emphasize
the need to
case in
nor did he delineate
interrogatory
a “no” if the
wanted
special
answer
briefly
you’re
stated “if
plaintiff damages. Although counsel
award
***
context,
no,”
as set
Vernon,
when taken
full
you will answer
upon
weight
above,
argument
counsel’s
centered
forth
the thrust of
emphasized to
favoring that answer wherein counsel
of the evidence
light
presented upon
that based
the evidence
noted, just
required. As
of “no” was
City’s
proof,
burden of
an answer
prior
statement,
to and following
objected-to
attorney
Hudson’s
emphasized
supported
that the evidence
the conclusion that Officer
Lee
enforcing
emphasized
was not
the law. He also
that it was the
City’s
prove
burden to
its
affirmative defense
Officer Lee was
enforcing
and, therefore,
special
law
immune. Such comment
aon
interrogatory
permissible.
*20
This result
recognized
City
in O’Connell v.
Chicago, 285 Ill.
459,
(1996),
3d
explained:
“The decisions describe two sides of the line that has been plaintiffs lawyer may drawn: jury ask the for a certain answer to interrogatory, evidence, jury may based on the and that be told contrary recovery answer will plaintiff. mean no for the But the jurors line is crossed when are told to harmonize or conform their interrogatory verdict, or, general answer with their as was done in case, jurors this when inconsistency are told would mean the plaintiff’s proved. case is not impermissible linkage.” That is O’Connell, 674 N.E.2d at Ill.
Accord
Co.,
Kosinski v. Inland
1017, 1028,
Steel
192 Ill. App. 3d
(1989) (new
N.E.2d
790-91
required
trial not
where counsel
“
you
stated:
‘If
listen to
negligence
what
is and
doing,
what he was
*** if you answer
interrogatory
any way
no,
other than
you
then
”
are saying the
[plaintiffs]
accident is
recover,’
fault and he can’t
because statement properly
jury
asked
to answer the interrogatory
based on the evidence and did
not tell
its
damages
award of
would
by “yes”
nullified
answer to the interrogatory); Burns v. Howell
Co.,
Tractor & Equipment
838, 848,
45 Ill. App.
360 N.E.2d
“
(1977) (new
trial
required
where counsel
you
stated:
‘if
answer that Interrogatory any way
“No,”
than
you
saying,
then
are
’
“It is his fault
”);
and he can’t recover”
Co.,
Moore v. Checker Taxi
(1971) (new
588, 592,
C. The Motion for Judgment Notwithstanding the Verdict
on the Willful and Wanton Count City The next contends that the evidence adduced at trial was insufficient to reach a finding of willful and wanton conduct, noting that the regarding evidence Officer Lee’s conduct prior to the accident consisted of the testimonies of Officers Lee and Ray, the testimony Patrick, of the witness and the testimony and Ziejewski. Dr. plaintiff’s expert, simulation of
computer finding testimony support trial did not of willful contends that the computer improperly simulation was and wanton conduct and Therefore, that, negligence City argues as with the admitted. count, judgment n.o.v. was entitled Hudson, which did not include jury’s note that the award to
We negligence damages, can be sustained our affirmance of the punitive Co., 288, 294, Tea 46 Ill. 2d 263 N.E.2d count alone. See Moore v. Jewel (1970) (“It law that where several causes of actions is settled results, the be sustained charged are and a verdict verdict will support good if there are one or more it”). causes of action or counts below, Nevertheless, additionally for the reasons discussed we side Hudson on the willful and find that the was also free to wanton count. Immunity 1—210 the Tort Act defines willful and
Section
an actual or
conduct as: “a course of action which shows
wanton
which,
intentional,
if not
shows
deliberate intention to cause harm or
safety
others
disregard
indifference to or conscious
for the
an utter
(West 2004).
supreme
ILCS
Our
property.”
or their
10/1—201
“ ‘ “ ‘ap
conduct
recently
court has
recounted that willful and wanton
harm,
attached to intentional
degree
of moral blame
proaches
*21
risk
highly
unreasonable
deliberately
since the defendant
inflicts
” ’
Murray
disregard
[Citation.]”
in conscious
of it.’
upon
harm
others
176,
Center,
213, 237,
190
224 Ill. 2d
864 N.E.2d
Chicago
v.
Youth
Mart, Inc.,
Ill. 2d
(2007),
Liquor
12
148
quoting Burke v. Rothschild’s
(1992).
429, 448,
The court further noted
willful
simulation were support jury’s remaining to insufficient other evidence there was below, be discussed we conduct. As shall finding of willful and wanton simulation testimony computer Ziejewski’s Dr. do not consider that, in however, City’s conclusion disagree also improper; we found Officer evidence, jury could not have the absence of noted, Lee testified As Officer Lee’s conduct willful and wanton. hour, that per 50 miles speed limit at 45 to driving within the she was activated, changed had lanes and that she emergency lights her in front of her pulled car out lane 1 when Hudson’s from lane from the shoulder. applied She stated that she the brakes once she saw Hudson’s car and that she then lost control. She also stated: “I not necessarily looking merge my was if someone into lane will from *** looking in, the shoulder. I I going wasn’t at the lane that was I looking was at the car in Ray’s testimony front of me.” Officer was however, similar to Officer in many respects; expressed Lee’s some uncertainty as to whether the vehicle’s emergency lights were activated and he also said that the vehicle was lane or 3 before the collision. Patrick testified that Officer Lee’s vehicle was traveling per hour, at 55 to 65 miles that Hudson’s vehicle was travel- ing at per 10 miles hour and just the front of Hudson’s vehicle was on the shoulder at the time of the accident. She further stated that Officer “jumped Lee’s vehicle way from the left lane” all the right though even there nothing obstructing was Officer Lee’s progress. forward (to
Thus, considering solely this evidence
the exclusion of Dr.
Ziejewski’s testimony
simulation,
City objects to),
which the
jury was free
City’s
to disbelieve the
position that
pulled
Hudson
out
in front of Officer Lee’s vehicle
turning
while she was
into lane
from
Likewise,
lane 2.
give great
was free to
weight to Officer Lee’s
admission that she was not “looking at the
[she]
lane that
going
in,” as well as to Patrick’s description that Officer Lee’s vehicle
“jumped” from lane 4 to
lane
for no apparent reason. Although
these testimonies are
strongest
not the
conceivable evidence of willful
conduct,
wanton
viewing light
evidence in a
most favorable to
Hudson, we cannot conclude that
in this case was unreason
able in reaching such a
Pedrick,
conclusion. See
37 Ill. 2d at
N.E.2d
at 510. The
may well have concluded that in failing to
look at the lane she
merging
and in “jumping” multiple
into
lanes
traffic,
Officer Lee
acting
with utter
indifference
to or
disregard
conscious
safety
Although
others.
there was
testimony that
there was nothing obstructing Officer Lee from
continuing
lane,
forward in her
she testified that there were multiple
civilian cars present with
Thus,
her on the expressway.
jury may
have concluded that Officer
crossing multiple
Lee’s actions in
lanes of
traffic at once under such
looking
conditions without
at the lane she
*22
was traveling into was a deliberate infliction of an unreasonable risk
upon
of harm
civilians,
those
including
Murray,
Hudson. See
2d at
D.
Count
and Wanton
Simulation
Testimony
Computer
Expert
1.
to a new trial
that it is entitled
However,
City
also contends
Ziejewski’s testimony and
because Dr.
and wanton count
on the willful
City argues
that
prejudicial.5
simulation were
computer
basis, pointing out
factual
lacked a sufficient
computer simulation
program
computer
into the
several variables
Ziejewski input
Dr.
supported
were not
the simulation that
to create
he used
and model
wrong
make
evidence,
Ziejewski
Dr.
used
namely, that
vehicle;
the simulation starts
Lee’s
represent Officer
of vehicle to
that it was
testimony
going straight despite
vehicle
with Hudson’s
degrees off
starts at 10
Lee’s vehicle
right;
that Officer
moving to
effect; that Officer
testimony to that
being
there
no
despite
due west
there
impact despite
nearly
degrees
before
spins
Lee’s vehicle
ap
effect,
Lee’s brakes were
that Officer
testimony to
being no
rear)
(50%
to the front
100%
manner
plied
a certain
testimony
physical
evidence
being
supporting
no
despite there
his
that Hudson steered
braking system; and
vehicle’s
regarding the
regard,
City
contends
impact. In this
right after the
car to the
data
sufficiently based on
was not
computer simulation
Ziejewski’s
Dr.
therefore,
disagree.
was,
prejudicial. We
from the record
if the
expert is admissible
testimony of an
Generally,
opinion
training, or educa
skill, experience,
knowledge,
qualified by
is
expert
reliability and if the
at least a modicum
in a field that has
tion
understanding
Wiegman
evidence.
aid the
testimony would
Inc.,
App.
Ill.
3d
Libertyville,
v. Hitch-Inn Post of
(1999).
testimony lies
expert’s
an
The admission of
614, 623
N.E.2d
Ill.
Wiegman, 308
of the trial court.
discretion
within the sound
ruling
an erroneous
We will not reverse
799,
An 1126, 1132-33 137, 146, 728 N.E.2d Gaytan, v. Soto recreate (2000). testimony that seeks to testimony is Reconstruction and how whom, impact where was accident, including hit “who debris, marks, by skid going as determined parties fast the testimony computer simula challenge Ziejewski’s City’s to Dr. 5The since wanton count to the willful and primarily directed appears to be tion negligence under count finding challenge jury’s purport does not immunity. 2—202 of section application except respect to I
401
Co.,
App.
41 Ill.
3d
Asphalt
Eaton
v.
damage
the vehicles.”
to
Finfrock
389,
Stricklin,
App.
Ill.
3d at
(1976);
197
214
1020, 1023, 355 N.E.2d
testimony to be
reconstruction
In order for
N.E.2d at 660-61.
554
the accident
data about
admissible,
must be sufficient
there
J.
opinion.
expert’s
for the
reasonable basis
provide a
evidence to
(2000).
§702.111, at 408
& Criminal Evidence
Corkery, Illinois Civil
assertion
accept
expert’s
required
blindly
to
court is not
“The trial
Rather,
court
the trial
adequate
has an
foundation.
testimony
his
analyze
adequacy
expert’s
conclusion
must look behind
See
146,
at 133.
Soto,
at
728 N.E.2d
App.
313 Ill.
the foundation.”
(“An
(1986)
232, 244,
In
of its
support
(2001).
inap
However,
find that case
114,
we
App. 3d
Ziejewski to reach his Although conclusions. he used data from a Monte Carlo Caprice rather than a simulation, his explained adjusted that he the characteristics of the car within the computer program to conform with the characteristics of the car. His conclusion that Officer Lee’s vehicle traversed four lanes of traffic before striking Hudson’s supported by vehicle is Patrick’s testimony *24 that Hudson’s “trying get vehicle was to over to the shoulder when [Officer vehicle] Lee’s come from the far left and way up all the to the *** right him, and hit right like to the back of his car almost.” Moreover, Ziejewski’s Dr. assertion that Officer Lee made a hard right prior turn to the collision is supported by testimony Patrick’s that the “jumped” vehicle across the Although lanes. there was no direct testimony that Officer Lee’s spun vehicle had nearly degrees collision, before the that supported conclusion is by undisputed the vehicle, evidence that the police originally which was heading in the same westward plaintiffs vehicle, direction as came to facing rest nearly opposite the Finally, direction. although there testimony was no support Ziejewski’s Dr. regarding assertion application and lock- ing brakes, of Officer hypothesis Lee’s that supported by evidence that Officer Lee’s vehicle traveled multiple across lanes and spun nearly degrees. however,
Arguably, even if agree we were to City with the computer insufficiently founded, simulation was jury could have reached finding its of willful and wanton Ziejewski’s even without Dr. computer Essentially, simulation. the computer simulation added emphasis to the by conclusion warranted the testimonial evidence that Officer Lee lost control of the begun vehicle and had spin prior hitting noted, Hudson. As Ray Officers Lee and testified that their vehicle started lane 2 or 3 and up facing opposite ended the direc- tion of creating a sufficient basis for inference as to how their traffic — vehicle came position. Moreover, to reach its final although Patrick did not articulate in testimony her that spun nearly Officer Lee’s vehicle degrees collision, before the testimony her that the vehicle lanes, “jumped” across the and that it came “from the far left and all the way up right,” certainly is consistent with and helpful to sum, corroborate that conclusion. In say we cannot that the admission Dr. Ziejewski’s testimony and computer simulation was erroneous or, event, that it would necessitate a trial. new Issue Instruction and Wanton
2. Willful trial to a new it is entitled City finally contends The and wanton that willful improperly instructed jury because and that ordinary negligence akin to include conduct conduct could be deemed willful rules should department violation wanton noted, instructed willful jury As wanton. an utter indifference shows “a course of action which conduct involves safety of and the safety person’s for a own disregard to or conscious jury pattern the same as essentially is This definition others.” (see Jury Illinois Pattern and wanton conduct instruction for willful (2000)) (2000) (hereinafter IPI Civil Instructions, Civil, No. 14.01 objects to the trial Rather, City City. objected is not regarding Hudson’s instruction subsequently given issues court’s count. claims on the and wanton willful e, f d, and failed subparagraphs City first contends and wanton required of mind willful
take into account the state find and wanton implied jury could willful conduct and negligence. amount to normally only that would conduct for acts allega- these Therefore, error to include concludes that was disagree. issue instruction. We tions the trial instruction is within grant deny The decision to Sanders, N.E.2d at 554. 3d at court’s discretion. discre trial court abused its determining whether the The standard for fairly and whether, whole, fully, taken as a the instructions tion legal principles. of the relevant comprehensively informed rule, Sanders, at 554. As 714 N.E.2d faulty are judgment not be instructions will reversed where *25 complaining party and the suffered they jury unless mislead the 259, 269, 611 N.E.2d Wang, 243 Ill. 3d prejudice. Dabros v. (1993). IPI based on Civil given instruction in this case was The issue (2000) 20.01.01[12], states: No. which injured and sustained further claims that was plaintiff
“The willful and of the defendant was damage and that the conduct followingrespects: of the wanton in one or more repetition emphasis undue or simple in without [Seiforth form and wanton complaint as to allegations the those willful by the court ruled out withdrawn or conduct which have not been (Bracketed in material evidence.]” supported by the and are original.) pat- the case conforms with actually given in this
The instruction pattern as the same first sentence It included the tern instruction. Hud- allegations of then, directed, it set forth the and as instruction complaint as The son’s to willful wanton conduct. first sentence jury the instruction made clear had itself that the to determine allegations of the enumerated whether were true and whether amounted noted, jury to willful wanton conduct. As the was Moreover, given the correct definition of willful wanton. subsequently given proof burden of that instruction further clarified allegations had the to determine whether the instruc- issue amounted tion to willful wanton conduct. That instruction explained prove that it was Hudson’s burden to “the defendant acted ways by or failed to act in the plaintiff one of claimed stated to as you act, in these acting, instructions and that in failing so added.) (2000) defendant was (Emphasis willful and wanton.” IPI Civil No. B21.02.02. addition, objection
In the City’s to the format of this instruc- issue very tion is contradicted its own same alternate submission. The instruction, deficiency present given namely, it now is in contends allegations to take of mind proper failed account of the state conduct, present in willful wanton involved in the alternate fact, City proffered instruction the at the instructions conference. instruction, in alternate City its submitted instruction identical plaintiff’s subparagraph f in the very same format. City’s The with argument regard subparagraph slightly d is noted, compelling. allegation more As stated Officer Lee “drove car police regard safety persons without due for the of all on the added). highway” (emphasis failing to City contends that use regard” instruction, synonymous negligence “due with and the therefore, confused the as to the definition of and wanton. willful Sanders, In support, City cites where the court noted section 205(e) 205(e) (West (625 of the Illinois Vehicle Code ILCS 11— 5/11— 2004)), regard,” imposed which uses “due refrain phrase duty Sanders, negligence. at at 552. from 714 N.E.2d agree regard” we that use term in a While “due questionable and wanton instruction is even it so willful issue where appears we do not use of the pleading, phrase believe the Dabros, misleading prejudicial. case was See 611 N.E.2d 1120. regard” negligence
The term “due
mentioned
never
by plaintiffs attorney
instructions and
dur-
referenced
closing
term
to reck-
ing
arguments
referring
where he defined the
discussing
allegations
less
in the willful
behavior. While
various
count,
subparagraph
d al-
attorney
and wanton
Hudson’s
stated
general order, [in
leged that Officer Lee “was
violation of
all the
regard
safety
without due
for the
she] drove
car
*26
then
He
including Vernon Hudson.”
persons
highway,
on the
order,
can’t
we
means,
general
heard
the
like we
“[T]hat
explained:
means,
heedless; you
you can’t
That’s what reckless
drive reckless.
Thus,
anyway.”
ahead
go
on and
going
unaware of what’s
can’t be
negligence
regard”
“due
and the
made between
the connection
despite
scope
the
of
care in
sources outside
ordinary
of
various
standard
the al-
explanation of
trial,
case was
with an
jury
presented
in this
Hud-
definition. As
and wanton
legation consistent with
willful
being
meant
reck-
regard
use due
attorney explained, failure to
son’s
on,
This is
going anyway.
being
going
or
unaware of what is
but
less
conduct,
which
with the definition of willful
wanton
consistent
Thus,
we
having
disregard
safety
of others.
includes
conscious
of the
jury
in this case was misled
the use
cannot conclude that
phrase
thereby prejudiced.
that
regard”
City
“due
or
was
issue
City
that
and wanton
further contends
willful
of
nine al
suggested
in seven
instruction was erroneous
that
general order
police department
that
legations
violation
We
per
agree
willful and wanton conduct
se.
constituted
department general
does
constitute
countermanding
police
a
order
not
has been
negligence
per
or
and wanton conduct
se. This
willful
454,
444,
3d
Chicago,
established Morton v.
286 Ill.
(1997).
985,
However,
implicitly
that a
N.E.2d
Morton
indicates
police
of an
rule can
some
department
violation
internal
constitute
and wanton
The court in that
stressed
evidence willful
case
conduct.
department
“in and
general
that violation of a
order would not
conduct,
jury
of itself’ constitute willful and
could
wanton
case to
have found that there was valid reason for the officer
following
order,
self-imposed
general
not
“the violation
***
***
evidence
guidelines
rules or internal
does
alone constitute
that,
negligence,
beyond
[Citation.]”
or
and wanton conduct.
wilful
Morton,
Thus,
Morton
Moreover, confusing or agree that this we cannot instruction as a whole. prejudicial light when considered in instructions Inc., Enterprises, Harden v. Playboy See (1993) (“Jury a whole instructions are to be viewed as
N.E.2d occurs prejudice right reversible error when serious to a ato above, fair trial has been proven”). As noted the correctly *27 instructed as to conduct, the definition of willful and wanton as well as proof regard to Hudson’s burden of the allegations with to in the is- Thus, sue instruction. it plaintiff, was clear that in to find for order jury the not to one had believe or more of the in allegations the instruction, willful and wanton issue but had it also to determine that qualified the alleged Therefore, conduct willful as and wanton. we reject City’s the contention that the willful and wanton issue instruc- thinking tion misled the into police depart- violation of the ment order constituted per willful wanton conduct se. Moreover, City may we note that the preserve well have failed to any objection given have the by would instructions a tendering correct alternate instruction in the court below. See Deal (1989) (“To 192, 202-03, v. Byford, 127 Ill. 2d 537 N.E.2d preserve objection to a party instruction a must both specify instruction”). the claimed defect and tender a correct objecting After by plaintiff, City proffered instruction tendered the the follow ing instruction as an alternate:
“The plaintiff injured claims he was damage sustained and that the conduct of the defendant was willful and wanton in followingrespects: one more of the operate speed a. Failed to the motor vehicle at a manner compatible with conditions ensure that of the control motor times; vehicle is maintained at all change striking
b. Executed lane Vernon Hudson’s motor vehicle.”
Along order, with reference to police department general the this allegations omitted plaintiffs instruction that Officer Lee willful for caravanning, participating wanton for in the pursuit, for fail ing car, moving to maintain control over her for into lane when it so, following subterfuge was not to do for pursuit, safe for and for failing pursuit. placed to abandon the This conduct issue and could have constituted willful and wanton if perpetrated conduct utter or a disregard safety indifference to conscious for the of others. noted, As the pattern jury requires allegations instruction withdrawn, forth complaint be set unless have been ruled out (2000) court, by supported by or are not IPI Civil evidence. City contended, it, No. any 20.01.01. The has not nor can allegations of the issue were excluded or ruled out instruction Nevertheless, alleged City prof court. omitted those acts from its fered thereby provide instruction and failed to a sufficient alternate Deal, 202-03, 2d at preserve objection. instruction to its See at 537 N.E.2d 271. impas dissent, respectfully suggest its we looking at the reviewing aof accept has the function eloquence, it failed
sioned n.o.v., is to view judgment for court, which, of a motion upon review determine opponent favorable to aspect in its most the evidence movant that overwhelmingly favors the so whether that evidence Townsend, stand. See could never verdict n.o.v., “a fact, judgment ruling on a motion at 1057. In
N.E.2d *** may only consider weigh [but] does the evidence court evidence, therefrom, light most favorable inferences 603 N.E.2d resisting Maple, party motion.” sup Here, appears upon to focus evidence 512. the dissent instead countervailing credence to porting paying without due that, findings support jury’s and inference evidence which would executing occurrence, or enforc at the time Officer Lee was not and, more immunity 2—202 even ing purposes the law for of section strikingly, that her conduct was willful and wanton. above, in a most light
As viewed discussed when evidence *28 Hudson, im to not jury’s favorable the conclusion was liability negligence for Lee’s sufficient sustain mune from Officer is to to specifically attempting the Lee denied that she was verdict. Officer through pursuit apprehension suspect. the or of the enforce law Rather, presence she her on at the expressway contended that the geared potentially “assisting” time of the occurrence was toward by providing the need arise or pursuing officers traffic control should in by providing backup suspect hostage the event the took a or started shooting at actu police. potentialities Neither of these were ever Thus, ally jury indicated in this case. was free to conclude that Of “designed carry put in engaged activity ficer Lee was not to out or effect Ill. 2d at any (Fitzpatrick, into law” at N.E.2d 1296), merely making but herself enforce provide was available to law out, pointed ment. As have even if the took Officer Lee’s we value, for testimony simply making pos at face oneself available sibility enough immunity. of not to See law enforcement is attain Leaks, (finding immunity N.E.2d at 159 no at police officer, patrol, backing up his where who was on was vehicle an attempt group people gathered to whether a outside ascertain illegal there apartment building engaged activity where because time being no indication at the actual that crime was committed Aikens, 279, 281, 490, 493 accident); Ill. 2d of the 583 N.E.2d (holding negligent 2—202 does not “immunize that section stating police,” duties performance by of all official functions and immunity immunity, is a limited which dimensions “section 2—202 are scope police narrower than the employment officer’s or his duties”). performance official functions Moreover, to was free conclude that Lee Officer was not attempting it, even to “assist” as she described let enforcing alone law, merely following pursuit but personal out of interest of her because camaraderie her fellow officers. There was evidence that 12 15 other police to vehicles were involved in the Further, pursuit. police department general specifically order limited police participation pursuits an providing exception without “assistance,” for by stating pursuits by only could be conducted two vehicles and other officers shall “remain of the aware direc- tion progress pursuit, but will actively participate, and streets, will respond pursuit or parallel adjacent unless added.) specifically to (Emphasis authorized do so.” in a light Viewed Hudson, seriously most favorable to question these facts call into whether Officer Lee was truly attempting or, to enforce the law for matter, “assist”; whether she was attempting ques- even such by jurors tions must be resolved as the triers of fact. The dissent adequate weight does not our give duties to sustain the findings fact supporting where there is sufficient evidence and to overriding findings refrain from those where conflict with our judgments. own value
The dissent fails to note the distinction between a officer in the act law one merely making enforcement and who is herself patrol. available law enforcement like officer on routine For instance, the dissent notes that we commented Officer Lee would actually have attempting been immune had she been provide traffic control. The puzzling dissent calls our statement and asserts that we ignored have that Officer Lee testified that traffic control was one of things “might” required However, the first she opposite to do. true; made we this statement direct reference to Officer Lee’s testimony wherein she attempt engage pursuit disclaimed going might but noted that she see if she become needed for *29 exigencies distinction, traffic control or might other that arise. This immunity that is available for those efforts to execute or enforce actually a for such law where need execution or enforcement is indicated, clearly by was made Leaks and is consonant with Fitz- patrick, police a officer found immune where to be because was in investigating plaintiffs injury the act of a traffic accident when attempts distinguish occurred. The dissent Leaks the instant to from here, was, noting that, fact, case in a crime by there committed while However, specific there was no indication crime that case. acknowledge specifically the dissent fails to that Officer Lee removed in that she in this case to the crime herself from enforcement related Here, the jury pursuit. to in the any attempt participate disclaimed her “as- testimony infer that to from Lee’s well able Officer make herself avail- was, best, attempt to unfocussed sistance” law enforcement. opportunities for for yet able as unrealized testimony that points to Lieutenant Jackson’s dissent further duty other officers general to “assist” police officers have However, in giv- unrebutted. duty to contends that this “assist” was fails to testimony, dissent ing great weight Lieutenant Jackson’s to doing she said she was when description consider Lee’s what Officer if she assist, namely, going she to see to that going that she was Implicitly, backup. might provide to traffic control or become needed court in Aikens recognize supreme also to that our dissent fails duty enforcement of clearly every police stated that not constitutes purposes immunity. the law of section 2—202 for Moreover, Jackson’s placing great emphasis while on Lieutenant recognize supporting fails other evidence testimony, dissent to merely following the inference and conclusion that Officer Lee was response pursuit personal out of interest or camaraderie rather than any police duty noted, police department general to to “assist.” As order, which was entered into evidence and read aloud to the Lee, taking any directly discouraged police Officer officers from active pursuits part pursuits. Specifically, general order limited two and directed that other officers shall “remain aware vehicles will progress pursuit, actively participate, direction and but not streets, respond parallel pursuit adjacent and will on unless not added.) The general order specifically (Emphasis authorized do so.” subterfuge “caravanning” “following further forbade for “assist- pursuit.” police provided No section of the order police ing” addition, evidence that 12 to pursuit. In there was Thus, already pursuit. could vehicles were involved despite well have inferred Lieutenant Jackson’s assertion assist, duty was not participation officers Officer Lee’s have personal geared particular end but was based on her own toward that her interest in the outcome or her camaraderie fellow officers. major significance The dissent seems to attach the state Of- lights charges ficer emergency Lee’s at the time of occurrence emergency lights were repeatedly suggesting us with that the officer’s fact, rely upon that factor engaged. purported we have determining evidentiary basis for its verdict.6 whether had an af
6Wefurther note that the dissent is mistaken in its assertion
we
lights
emergency
firmatively stated in our
Officer Lee’s
footnote
*30
ample
emergency lights
While there was
evidence that Officer Lee’s
were,
activated,
fact,
relatively insignificant
that factor is
in this
It
certainly
case.
is
police
not
case that a
officer will automatically
be deemed
enforcing
to be
the law
engaged
whenever she has
her
Rather,
vehicle’s emergency lights.
the dispositive inquiry on
we
which
is
police
have focused whether the
engaged
officer was
in activity
“designed
carry
or put
any
out
Fitzpatrick,
into effect
law.”
Moreover, contrary position, to the dissent’s there was some conflicting point jury evidence on this that the could have found to be persuasive. Although Officer Lee testified that emergency lights her on, were she also around,” testified that citizen cars were “all “they me,” with moving were some them pass of must have been ing Inferentially, her. by this statement could have been construed negating emergency lights assertion that the were activated presumably pass police since citizens would emergency car with lights activated. This conclusion would also be consonant with the City’s pulled assertion that Hudson out in front of Officer Lee after previously yielding police by moving to other vehicles to the shoulder. Although possible, it is doubtful that yield Hudson would to one vehicle with emergency lights pull then out front of another vehicle had emergency Furthermore, lights activated. although Officer Ray first testified emergency lights on, were he later said that he not recall could whether were on. The dissent contends that Ray’s Officer statement was result by of clever cross-examination plaintiffs really counsel and what he say meant was that not sure whether it he or emergency Officer Lee who turned the However, lights on. an analysis such is one for the Feyrer, court make. See v. People (1994).
N.E.2d strays dissent further of by from essential issues this case charging misstating portion us with Lieutenant Jackson’s testimony regarding a police obligation officer’s to communicate with dispatch. here, As concerning emergency lights, evidence too, any conflicting was free to in favor resolve evidence that, regardless any dispatch, conclusion communication with There, purport not activated. we did not to comment on whether Officer Lee’s emergency lights merely hypothetically, totally activated but referred context, lights example engage emergency different as one failure potentially would have less violation of order that significance immunity through under the statute than a violation of the order participation pursuit. in unauthorized attempt to an actual did not amount
Officer Lee’s “assistance” However, we disturbed law. are somewhat execute or enforce Jackson’s misstated Lieutenant the dissent’s assertion we testimony. Lieutenant provide quote an exact
Although we did not
ac
statement,
sufficiently
paraphrasing
believe our
Jackson’s
we
sure,
Ray
“If
asked:
Officers
curate. To
Lieutenant Jackson was
of a
participation
apprehension
of an
assisting
and Lee are
*31
felon,
department policy
suspected
they
required
are
under
going
participating
are
to be
procedure
dispatch
to advise
that
role,
question “yes,”
this
correct?” Lieutenant Jackson answered
silence,
may
radio
dispatcher
then clarified
the
have called for
but
communicating
Lee
with
would
hindered Officer
from
which
have
testimony reflects
dispatch. Our recitation of Lieutenant Jackson’s
between
appears
attempt
fact.
dissent
to
to draw distinction
The
“apprehension”
duty
to the
to com
“pursuit”
regard
nor
dispatch
though
question
even
neither counsel’s
municate with
any
inap
It
Lieutenant
answer made
such distinction.
is
Jackson’s
interpretation
given
its
propriate
impose
for the court to
themselves,
testimony
jurors
have,
testimony
the
the
upon
who
heard
453,
in its full
Ill. 2d at
Here,
count,
as with the negligence
appears
merely
dissent
she,
fact,
focus on
which
might
evidence
as a trier of
have found
persuasive but again
acknowledge
fails to
the evidence the actual trier
above,
fact could have relied
As
upon.
noted
Patrick
Of
described
merge
multiple
ficer Lee’s
across
lanes of traffic as a “jump,” and Of
ficer
looking
Lee testified that she
merg
at the lane she was
ing
although
into
she was
that there
multiple
aware
civilian cars
regard,
the road. In this
we note that it
and not
weigh
this court to
the testimonies of Officer Lee and Patrick with
regard
descriptions
their
leading up
to the
events
occurrence.
Feyrer,
See
The dissent adopts City’s also that the issue instruc given tion on the willful and count wanton mandates a new trial. The plaintiff’s dissent notes that this instruction “mimicked complaint” but acknowledge fails to that the pattern jury instruction requires just allegations that —that complaint be set out. (2000) See IPI Civil 20.01.01[12]. No. The issue instruction *32 designed conduct; to define willful and wanton its is simply function to set out the allegations complaint supported by that are evidence and have been withdrawn or ruled out. See IPI Civil (2000) 20.01.01[12], Moreover, No. noted, as the City’s alternate proffered conjunction objection instruction in given with its to the very instruction from alleges suffered same deficiencies it now appeal. previously discussed, preserve objection As to a order to jury instruction, party specify must defect instruction’s provide Deal, 202-03, a correct See Ill. 2d instruction. 127 537 N.E.2d 271.
Finally, the dissent contends that the video simulation was because, prejudicial noted, Ziejewski as we Dr. the simulation created by inputting computer program several facts into the that were not directly supported specifically rejects the evidence. The dissent our position Ziejewski’s turn in right beginning that Dr. use of a hard supported by testimony the simulation was Patrick’s that the vehicle “jumped” “jumped” across the lanes. The dissent states that the term “nothing is colloquialism, description more than a and not of what sug actually occurred.” 378 Ill. 3d at 428. The dissent further gests only “jumped” that the term can be understood in its literal
413 ” “ 428, Ill. spring ground.’ from meaning, as ‘to However, as Dictionary 1987. Compact Format quoting Webster’s New of Of the movement indicated, Patrick described before previously we traffic, first she the lanes “jump” across ficer Lee’s vehicle as far to from the left lane Lee’s moved that Officer vehicle testified left the far lane, vehicle] come from right stating “[Officer Lee’s far Thus, Patrick’s hit him.” way up right and all the merely how “jumped” described subsequent use of the word use to that the say It is the lanes. unreasonable vehicle moved across meant to indicate “jumped” of the term this context was hand, airborne; on the other it would ground and went vehicle left the of the term Ziejewski to Patrick’s use for Dr. construe seem reasonable across meaning that Lee’s vehicle moved “jumped” as Officer turn. See required right a hard very quickly, lanes which would have (in (1969) Dictionary addition Collegiate Seventh New Webster’s movement,” give definitions, “jump” “to a sudden defining to other as aimlessly”). energetically,” haphazardly move “to move or “to evidence this case with speculate will not whether the We conceivably suf could have respect the willful wanton count been in favor of the had such a verdict support ficed verdict However, sup ample evidence to returned. we are certain that there is port did render as the willful and wanton the verdict that Likewise, discussed, support there is sufficient evidence count. See, v. negligence e.g., count. Friedland respect the verdict with 9, 1199, Canada, Allis Chalmers Co. 511 N.E.2d (1987) wholly (“Only palpably if the verdict was erroneous unwarranted, clearly passion prejudice, appears or or the result of unreasonable, and based the evidence will arbitrary, upon to be overturned”); Co., v. Kahn James Burton (1955) (“A merely not be aside because N.E.2d verdict will set differently judges because feel that other could have found or *** our [Citation.] Under conclusions would be more reasonable. can aside system jurisprudence, determinations be set *** were oc clearly when a of review satisfied court unwarranted prejudice wholly to be by passion casioned found evidence”). weight from manifest
CONCLUSION trial reasons, judgment of the foregoing For all the we affirm the court.
Affirmed. J.,
McNULTY, concurs. O’MALLEY,
JUSTICE dissenting: I respectfully opinion dissent the majority entirety. from in its view, my City protected by section 2—202 the Tort Im- (Act) (745 (West 2004)) munity Act ILCS where Chicago 10/2—202 Sung officer Joo Lee executing enforcing the law at the occurrence; time of moreover, exception 2—202 section Act triggered was not because none of the supported evidence finding of part. willful and wanton conduct on the officer’s This is engaged true whether or not Officer Lee pursuit simply go- in a or ing assist other officers. Even when the evidence is viewed light most plaintiff, City favorable to judgment was entitled to a Further, n.o.v. on these counts. I believe the plaintiffs comments of attorney instructing the jury special to answer the interrogatory regarding execution enforcement completely favor his client utility eviscerated the special interrogatory of that virtually ensured, accident, in the tragic context of this would answer Finally, as instructed. instruction on willful wanton conduct was as fatally flawed was the video prepared by plaintiffs expert. might Where the evidence be considered to closely balanced, these last issues constitute reversible error and would (In require view, my actually new trial. is closely evidence balanced, it overwhelmingly City, might regard favors the but some it such.) Moreover, my I am attempting to substitute evaluation of jury, the facts for that nor have I considered evidence favoring City, majority suggests; as the there simply are so few plaintiff facts which favor that this is verdict not sustainable. I fully appreciate that if we finality litiga- are ever achieve tion, great given However, deference must be to the jury’s conclusions. this does not demand slavish adherence to clearly verdicts which are wrong, nor does it responsibility relieve this court of its critically review It is apparent verdicts. to me that this verdict result of passion prejudice or is a sympathy sense it verdict against target Instructions, Civil, Jury defendant. Illinois Pattern (2006) (hereinafter (2006) (“Your 1.01[2]) No. 1.01[2] IPI Civil No. verdict upon speculation, prejudice, sympathy”). must not be based & ENFORCEMENT
EXECUTION City its judgment claims was entitled to n.o.v. because of- agree. ficer was in the execution and and I enforcement the law Section 2—202 of all municipal the Act immunizes for their employees acts omission the execution and enforcement of the law. See 745 (West 2004). ILCS principal agent, As is im- 10/2—202 (West employee munized where its is immunized. 745 ILCS 10/2—109 *34 415 (2006). 773, Where 2004); Ill. 3d City Chicago, v. Wade carry out designed to engaged in a course of conduct police is a officer his or her law, immunity applies unless any put into effect 221; Fitzpatrick, and was willful wanton. conduct 2004). (West view, was, in so Here, my Lee Officer ILCS 10/2—202 willful and be considered nothing properly she did could engaged and wanton conduct. 7, 2001, May Officer p.m. showed that about
The evidence assigned protect to Ray, normally partner, Lee and her Officer Howard residents, a dispatch a radio Chicago Authority heard Housing by expressway the Eisenhower suspect being pursued on homicide in engage not to Ray expressway, and entered the other officers. Lee of the apprehension pursuit, but rather to assist in eventual controlling helpful at the scene or other suspect, either traffic lit. At activity. dry, highway and the well one night The was clear and off get point entering expressway, required after Lee was expressway get and on the westbound because expressway eastbound pursuit Going westbound, signal her turn changed directions. with activated, emergency equipment and moved from the first she his plaintiff protruded third lane and because car either collided with from into out from the shoulder pulled the shoulder Lee’s lane or in her. front of testimony Chicago Carolyn Lieutenant Jackson
The expected established that all officers were assist other officers permission and superiors should the occasion arise no from I required Contrary implies, majority for such a decision. to what the gave weight no than it deserved. Lieutenant testimony Jackson’s more ranking police department, Jackson is a officer in and her Chicago a testimony entirely I taken issue state unrebutted. have majority opinion: majority ment in states that appears which Ray Lieutenant testified “if Officers Lee and were assist Jackson felon, they in a under ing apprehending suspected required were department policy procedure dispatch.” to advise exactly doing if what at 382. This indicates that these officers were they they doing attempting apprehension said to assist in the were — in notify dispatch or be suspected they required felon— general reviewing pages order. After over 57 of Lieuten violation of context, is testimony, my position ant it is that that Jackson’s taken majority’s interpretation spite not a of what she said correct only it it was protest regarding crystal the same. She made clear that notify engaged in or who had assisting pursuit officers secondary opinion, In her dispatch, being primary those cars. it, he could see pursuit an officer was not involved unless undisputedly they these officers could not see the pursuit because had to monitor their majority radio to know where it was going. states fair, its presentation because then “countervailing mentions regarding evidence” anticipated Jackson’s comments about radio However, silence. these remarks regarding radio silence have little to do with the issue of whether Lee Ray violated a order in contacting dispatch (except they might not if get through they tried). opinion Jackson’s real is to be found in the veritable mountain contradictory evidence which opposite shows it is the of what is majority opinion. said Jackson testified that she believed Lee Ray pursuit, were not involved in so were not required to Further, dispatch. contact clearly she maintained that Officer Lee not general order, did nothing not violate a did wrong. but she *35 matter, To address a preliminary majority while the claims that whether or not emergency equipment Lee’s insignifi- was activated is opinion, important and, cant to its I think further, it is an factor it is repeatedly in majority opinion referred to and used as at least a partial Therefore, basis some its I think worthy conclusions. it In my view, of comment. dispute there can be no serious that Lee’s equipment was Both officers testified emergency activated. that the equipment was on. Even if disregard testimony one chose to their as biased, witness, an independent Patrick, Denise testified that lights and sirens on. importantly, plaintiff, were Most Hud- Vernon son, seeing testified to lights hearing the officers’ behind him and siren moments before the crash. spite evidence,
In majority this maintains it is “questionable” emergency on, whether the equipment choosing was to base its equipment conclusion that the may not have been on primarily upon halting, confused bit of Ray cross-examination where Officer is questioned plaintiffs attorney, speculation as well as two it bits Ray then offers. as stated follows:
Q. on, Attorney:] you put lights oscillating [Plaintiffs Did lights siren on? and Ray:] [Officer
A. I can’t recall. Q. you courtroom, you any memory As sit this don’t have on, turning you? them do on, I they
A. know were but I don’t—I can’t recall—I don’t know lights what—I would have to see the are car because sometimes side, they’re my on the then driver’s and sometimes side. Q. you today, if you But as No, sit here don’t on. remember were added.) (Emphases A. I recall.” can’t Ray responding ques- It clear to me that Officer was first inquiring and lights presum- whether he turned the sirens tion — on— skillfully quickly question Lee. The next opposed to Officer ably equipment to whether turned on the from whether he himself moves confused, again that all, responded it on at he became below, to be discussed speculation recall.” from bit of did “not Aside everybody in record where piece evidence genuine this is involved, seeing lights Lee’s including plaintiff, testified to else hearing immediately the crash. sirens before testimony that, Ray’s
Nonetheless, majority aside from claims activated, was not above, equipment there is that Lee’s other evidence Lee Initially, from Lee herself. upon testimony bits of speculating two all there were “cars entering highway, trial agreed upon (These actu- passing her.” and “some must have been around” however, words; agreed, albeit hesitat- plaintiff’s lawyer’s Lee ally passing one ingly.) majority posits then that no would activated, probably lights equipment sirens so Lee’s car with fact, view, sense otherwise. Lee said my not on. common dictates equipment entering she Where upon activated her Eisenhower. happens, usually it takes of minutes for other drivers to this a number way. certainly disappear react and Cars do not move out may instantaneously, slightly and cars front of her or ahead of her pass acknowledge I get right well have shoulder. that while equip- inference her might conceivably be considered evidence that activated, was, the testimony ment was not the solid that it view of Further, actually if “moving latter seems unfounded. cars were her,” going her she 50 miles testimony corroborates per hour, not 55 65 as Patrick said. Denise emergency equip-
Another the majority suggests reason presents interesting ment was not Officer Lee testi- activated issue. her, that Mr. pulled fied Hudson in front of but Mr. Hudson out *36 lights maintained he to the in pulled response shoulder and sirens actually him. majority speculates behind then that Mr. Hudson sirens, pulled response lights to the in the pursuers’ shoulder and pulled then back in front Lee. The then roadway majority into of it Hud- possible, illogical states that while be to think that Mr. would in Lee if pull lights, pull son would for one set but out front of over of equipment activated, equipment her it must mean Lee’s so over, waiting for true, pulling not on. If it would Mr. Hudson have Lee and period pursuers some of time because the were well ahead of them, light- in a pulling she could not see and then out front of even less, sirenless Lee.
However, this He testimony Hudson’s contradicts scenario. Mr. out, says pulling lights, pulling in to the response over over, pulling any event, pulling he was In out when hit. whether Mr. immediately upon seeing lights Hudson maintained that he reacted and hearing his rearview mirror sirens and was struck seconds indisputable him, later. Since it is that was Lee who hit not the pursuers, it had equipment to be Lee’s Mr. Hudson and heard. saw interesting is,
The more of aspect this had the believed that pulled Lee, Mr. stated, Hudson in front of as Lee there Officer can be question no product that this verdict is incorrect of sympathy prejudice. plaintiff The verdict form reveals that the found and/or 0% negligent negligent. plaintiff pulled the officers 100% If the officers, front of this essentially accident would be his fault and surely the verdict would reflect some substantial percentage of negligence part plaintiff. of I knowledge believe it be common part on the of required yield drivers one is pulling when into moving traffic from the See shoulder road. 625 ILCS 5/11— (West 2006). fact, 11—709.1 In way, either it is evident Mr. Hudson’s occupied lane, car part surprising some Officer Lee’s so it is negligent. still found him 0% I take to be evidence of the jury’s against City. bias the defendant footnote,
In majority hypothesized one emergency on, equipment driving was not the officers a violation of pursuit. to activate it if in Ill. App. order 3d at 392 n.4. speculates, It wholly citation, then without that such conduct would “arguably” render somehow the officers unable to enforce the law. 378 Ill. App. 3d at n.4. may just hypothetical, 392 While this I note that there is no simply support or in law record for this position, and none is offered. the majority Would also maintain that if these officers had after apprehended suspect pursuing without permission, illegal? the arrest would be law,
As
majority
something
for discussion of case
then offers
survey
of a
of the law where officers have and have
found
not been
be in
the execution
enforcement of
law. The first
cases are
those in which officers were found to be in the execution and enforce
Lake,
ment
County
App.
of the law. See Bruecks v.
276 Ill.
3d 567
(1995);
(1985);
Morris v.
Chicago,
App.
3d 740
Fitz
(1986).
patrick City Chicago,
v.
419 scene, negligently strik way on the to the in an accident was involved court Bruecks, Ill. at 568. The App. 276 3d ing plaintiff’s vehicle. to being upon called execute “clearly” stated officer specifi he was Bruecks, 3d The fact that not App. 276 Ill. at 569. law. scene, emergency equipment have dispatched did not his cally activated, emergency to be an subjectively not consider this did In Bruecks, App. Ill. 3d at 569. affect decision. 276 did not the court’s case, responded go radio call and decided to Officer Lee to a officers, specifically dispatched to although of not assistance other spite responding. in fact were also Unlike scene and that others Bruecks, emergency equipment however, Officer did have her Lee Bruecks, As in execution and enforce activated. in Officer Lee was ment of the and our result should be the same. law (1985), 3d Similarly, City Chicago, App. in v. 130 Ill. 740 Morris of plaintiff plaintiffs parked the court held that an officer struck who responding progress to a of a crime in was execut car while radio call 2—202. ing enforcing the law and therefore immune under section im Morris, at found App. 130 Ill. 3d 744. court accident, because, at was an munity applied the time of the there part respond “unbroken on the officer’s the call effort” Morris, App. Ill. at 744. thereby execute and enforce the law. 130 3d agree The court did that the officer could not be said to be execut not he crime ing enforcing, actually progress. because did not see a Morris, too, 130 an ef App. Ill. 3d 743. Here there was “unbroken thought call as part respond fort” on Officer Lee’s to the radio she Morris, appropriate. progress Like there was a crime in here as well: (West suspect eluding homicide 2004). (Whether See ILCS police. 625 5/11—907 been, being not a committed seems crime has Bruecks, 568-69; key App. See Mor to be the case law. Collinsville, ris, 744; App. Ill. App. City v. 3d Bosen (1987); Ill. 3d City Chicago, 850-51 Leaks v. (1992).) is, view, 14-15 and indeed the my indistinguishable Morris majority distinguish effort to it. Bruecks and are makes no Morris controlling therefore at bar and be case should followed. order, majority In its moved on to discuss “extensive” then not public employee line of cases find that the involved was which many executing enforcing acknowledge I that there are law. cases, factually on relied is every majority such but one which the so wholly different from as to In Aikens v. Mor inapposite. this case (1991), ris, Ill. found that the act supreme 2d 273 court immunity. Simpson In transporting prisoners covered way (1992), Ill. an officer on his City Chicago, v. 3d 791 report v. missing persons fill out immune. Leaks (1992), Chicago, cruising 14-15 officer patrol backing up stopping routine had an accident while after aat corner some gathered. Although where individuals were he maintained suspected drug activity, disagreed, saying the court no im *38 committed, munity applied where no crime had in fact been the officer nothing suspicion occurred, had more he than a that crime had and essentially just cruising. Leaks, Ill. App. was 3d at 17. In Sanders (1999), v. City Chicago, App. 306 Ill. 3d an officer was officer, initially traveling another but to assist he received word that emergency prior having the was over to an accident. The court disagreed summary the trial court’s in granting judgment City, favor of granting summary judgment plaintiff, instead for the Sanders, holding that the officer not immune as a of law. was matter 306 Ill. 3d App. Clearly, dramatically at 361-62. these situations are by different than the one in the case at All the bar. conduct the offi cers in the aforementioned cases or was either ministerial routine (see became passing emergency generally routine of an Sand 359-62). ers, Indeed, 306 Ill. 3d at these stand cases for the Leaks, proposition that generally routine activities are not immunized. Aikens, 17; 278-79; 238 Ill. Simpson, 145 Ill. 2d at However, wholly 792-93. going these situations are unlike apprehension to suspect contempo assist in the of a homicide was who raneously committing a crime. analysis,
In terms of first majority adopts entire memo position in officers were not the execution and enforcement said, the law they going they because were not to assist as but were actually in a I pursuit general involved violation of a order. note general may violation of a order be some evidence willful here), (although and wanton conduct support not but no cases proposition that a of a order im- strips violation officer of (the munity ability significance or the to enforce the law of such violation, thereof, extensively or lack is discussed in section of this conduct). addressing dissent willful wanton According majority, it be for the to would reasonable inferentially actually pursuing, go- conclude that the officers were not ing assist, “closely” to because their they changed monitored radio fleeing occupying. lanes in lane the felon response what was Both things actually position going these that she was corroborate Lee’s assist, way Initially, not I pursuing, not the other around. note testimony Lieutenant Jackson’s unrebutted was officers are caravanning in pursuit they pursuit. not unless can see the Lee said could, further, if it pursuit, she could not see the but she would not she necessary go- have been to monitor her radio know where was Instead, driving. Lee was clear ing lane the felon was or what she being pursued and that she that was never saw white van traveling she be far lane so that would right-hand moved into the suspect again expressway, if the exited the “in direction” the same testimony short, all confirms Lee’s of this previously had done. assist, pursuit. in a If the engaged going that she was manifest otherwise, would, my view, against it believed Medi Rush-Presbyterian-St. Luke’s weight this evidence. See Yorkv. (2006) (“A granted Center, new trial should be cal weight of the only evidence”). contrary is the manifest when verdict against weight A of the evidence verdict is manifest Socha, v. opposite clearly apparent. when the Redmond conclusion (2005). Here, Ill. 2d is. officers majority then turns the tables and states that the could not be execution enforcement law because going pursuers. Specifically, to assist were not the direct specific why justified delineates majority five reasons actually go- if concluding that Lee the law she enforcing First, ing being other Lee denied in direct to assist officers: because *39 in the pursuit, apprehending or that be “hands-on” she would criminal; second, in going Lee said was assist because that she to apprehension, law, merely she “available” to enforce the not was it; third, enforcing “availability,” to because uncertain related she was exactly simply what assistance be her required, would efforts were not im- availability, purportedly “unfocused” conduct entitled to fourth, “nebulous”; finally, munity; being law enforced was justified the jury’s allegedly fifth reason verdict is is because it in reasonably Ray joined could believe that Lee and this endeavor their fellow of- curiosity own amusement —out of or camaraderie with law. the above enforcing ficers—and were therefore not None of supports conclusion, my in view. reasons the latter First, actors, pursu majority’s position only prime direct ers, criminal enjoy those first to im apprehend who are and/or Rather, true, munity, support finds no in the law. is as opposite County Lake, (1995), City Ill. App. Bruecks v. 3d 567 Morris v. of (1985), Chicago, App. 3d 740 and Bosen Collins v. ville, (1987), cases, App. 166 Ill. 3d 848 those officers demonstrate. information began response to a in on their to travel scene to received radios, here; Morris, Ray as Lee and did here cars were like other Morris, responding. App. 130 Ill. 3d at 742. None the officers knew addition, in exactly required they what would be when arrived. In limit, Bosen, exceeding alleged speed the officer was Lee is to here, in to be although have done the officer Bosen estimated traveling per at 50 miles wet in pavement 25-mile-per-hour hour on responded case, zone as he to a in radio call. As the instant the officers all prior three had an reaching scene, cases accident to none so actually Nonetheless, arrived. the court found each officer to be unequivocally Bruecks, immune. 568-69, See 276 Ill. 3d at App. Mor ris, App. Bosen, 130 Ill. 3d at App. 166 Ill. 3d at 850-51.
Next, maintains majority justified this verdict is because Lee only attempting apprehension, allegedly assist in which (cit- making amounts to simply oneself “available” to enforce the law ing Leaks), trigger and does not the immunity. according Further majority, Lee did precisely required where not know would what (traffic her when she arrived other activity), control or some her ef- forts were tantamount to an availability “unfocused” because no specific being enforced, one, law or it trig- was a “nebulous” I gering do immunity. any arguments not believe of these merit. have that, sense, I initially all note officers are “available” for law just by shift, enforcement walking report into area to for their certainly they carrying while are out routine duties on their watch. is, however, There a qualitative difference between that kind of routine availability and the conduct disingenu of the officers here. It would be “availability” responded ous claim that Lee’s as she emergency way availability is the same as the the officer Furthermore, patrol routine in Leaks. sup there is no case law that ports the majority’s holding immunity apply offic does when law; certainly ers are “available” to enforce the Leaks and Aikens Bruecks, not. might say Morris, do One officers and Bosen merely they were available the time heard the radio transmission. step however, took a to respond, Where substantial mere avail ability activity was transformed and they into law enforcement Bruecks, Morris, deemed to be immune. See 3d at 568-69; 276 Ill. Bosen, 743-44; 3d at 850-51. The offi bar cers case at should also be immune. comments
Puzzlingly, majority that there “little doubt that merely control,” Officer way provide had Lee been on her traffic *** *40 “had the requested backup,” immunity apply. lead officers would added.) (Emphasis App. First, ignores, 378 Ill. at 392. 3d this or claims jury rejected, testimony the fact that the officer’s was unrebutted else way provide anything that she was on her to traffic or do control might helpful. Second, that of which be Lieutenant Jackson testified up to expected provide ficers were to assistance and that decision was assistance, to expected provide Where are it stands them. officers Third, request that no for has to be made either. noth backup reason ing immunity in cited precludes the Act no case is that stands immunity solely because stripped an proposition officer is given. ILCS or backup requested permission no was 10/2—202 (West 2004). enforced, being
Further, is no confusion about what law was there and, indisputably, It is elude the illegal nor is “nebulous.” enforced; Ray’s conduct is Lee and being this is the law that was did not know clearly Simply to that law. because the officers referable when ar that law required what activities would enforce rived, simultaneously require other laws would some law or whether scene, control, etc., i.e., does make enforcement at the traffic majority states, immunity. The strip conduct “unfocused” them in “The that was need of related to the law actual enforcement apprehension suspect, explicitly of the criminal and Officer Lee denied taking part App. that she Ill. 3d at that enforcement.” 378 392. (Notably, only thing being Lee denied” involved in “explicitly intended pursuit, not law enforcement —she testified that she to as apprehension required, sist at if and that the eventual such is law Bruecks, Morris, 568-69; at App. enforcement. See 276 Ill. 3d 130 Ill. 850-51.) 744; Bosen, App. 3d at 166 Ill. The officers here App. carry in a clearly “engaged designed of conduct out or course added.) put into 112 Ill. at (Emphasis Fitzpatrick, effect law.” 2d 221. majority App. cites 3d 12 Chicago, Leaks v. (1992), as the law authority being “available” enforce does trigger immunity. factually and is completely Leaks is different Leaks, wholly my In inapplicable to the case at bar view. officer leaving gathering backed when patrol routine over someone he im individuals on a corner. The court said was not entitled to munity merely “suspicion” a crime had because had a been (drug activity) actually committed where one had not been committed. not, claims, majority proposition Leaks as the support does trigger immunity and in fact “availability” to enforce law does not Morris, Bruecks, 568-69; Ill. no case See Ill. does. 743-44; Bosen, In 3d at 850-51. the instant case, Leaks,7 suspect there is routine a homicide nothing unlike about 7Moreover, City Chicago, Fitzpatrick Leaks is not “consonant” with v. (1986), fact, Fitzpatrick In is far more opinion 2d 211 states. opinion. Fitzpatrick, no supportive majority than crime of the dissent occurred, required investigating. simply had a traffic which Accident accident investigation closer to conduct of the officer Leaks than comes the routine Nonetheless, Fitzpatrick, that of in in the bar. unlike the officers case at Leaks, the officer was immune.
eluding an emergency situation that demanded the at Here, many partner tention of her officers. Lee and were either to a call responding specific specific outside their district about a in progress specific place, Eisenhower, crime to assist anticipated any way helpful, arrest in they pursuing or were circumstances, under the same general albeit in violation of a order to notify. Either an way, simply they because had accident prior having opportunity carry out way this task in no Lee’s diminishes immunity Bruecks, entitlement to under the App. Act. See 276 Ill. 568-69; 743-44; Morris, App. Bosen, at 850-51; Ill. 3d at 166 Ill. 3d at (West 2004). Thus,
see jury also 745 ILCS 10/2—202 conclude,” states, majority not “free to as the that she was not enforc ing the law.
The majority again next claims that “free to enforcing conclude” that the were they officers the law because amusement, joined pursuit personal this for their own either out of curiosity First, or with their camaraderie fellow officers. I note that there is not a scintilla evidence that was the reason these offic- responded. may they ers also have concluded that were not enforcing they beach, the law because going movies or the but that would not I justified acknowledge either. is evidence, to draw free reasonable inferences but it is not free from indulge in pure, unsupported speculation flights fancy. or See (2006) generally 1.01, Moreover, IPI Civil Nos. 3.04. that “12 fact cars to 15” were involved this effort is irrelevant and does not the majority’s argument, bolster “camaraderie” Lee because neither Ray many fact, knew appears nor how cars were involved. it knew, incident, many no one at the time of the how cars were involved until after the was over. incident
Moreover, I neither personal curiosity note that nor camaraderie is enforcing inconsistent with the law. It is reasonable to assume is some learn curiosity there about a situation and than a bit more in any of camaraderie involved effort officers make each to assist or does safety. other ensure one another’s This not mean that because personal part camaraderie interest the motivation for some may that such activity, activity legitimately law enforcement still be enforcement, entitling engaged characterized as the officers law so immunity. if officers an at the example, For rush to assist officer down robbery way, scene of a bank and have an accident on the would be, view, law, my enforcing though part even of their motivation from to a See feeling loyalty stems of camaraderie or fellow officer. Bruecks, 568-69; Morris, App. generally 743-44; Bosen, Therefore, 3d at 850-51. camaraderie law exclusive with mutually be said to be curiosity cannot even holds otherwise. enforcement, I of no case which and know that, enforcement, majority insists point Finally, Hudson, general Mr. where light most favorable to when viewed may pursue cars without two provides order 97—03 whether assistance,” “seriously question” calls into “exception for I assist.” the law or “even attempting” to enforce “truly Lee was if the other. Even one flows from fail to see how frankly completely (to seek of a order in a in violation pursuit Lee were involved *42 question” call into whether authorization), “seriously how does in its or “assist” to enforce the law” “truly attempting she was call step did not missed simply enforcement? She would have —she majority incorrectly elevates suggests that the argument in. This law, perhaps an actual general order to the violation of violation of employment his or her taking scope the officer outside the of (as it law, theory or some such making him unable to enforce the aware, However, majority is opinion). intimated in a footnote not, any organization have jurors as the are that internal standards whatsoever; negligence per legal no effect their violation is not even here, se; violation, certainly if did not remove such a one occurred scope employment. City Chicago, See Wadev. officers from the 773, (2006), citing City Chicago, v. 286 App. 364 Ill. 3d 781 Morton (1997). 444, Further, authority support there is no 3d 454 if in argument enforcing cannot be the law violation an officer order, general majority of a and the cites to none. INTERROGATORY
COMMENT ON SPECIAL and enforcement of Related to the above discussion of execution special interrogatory plaintiffs attorney’s the law is comment on stated, “Ladies relating closing argument. Counsel to enforcement Vernon[,] special answer this gentlemen[,] you’re you if will purpose interrogatory completely This comment eviscerated [N]o.” (Sim general to test a verdict special interrogatory, which is (2002)) fairly be Garces, Ill. 2d and could not mons v. the evidence” as case law said to made “in accordance with Laboratories, Inc., 137 Ill. requires. Wyeth Batteast v.
(1990). closing. counsel’s appears by itself at the end of comment evidence, counsel’s sole regard placing it in the context of the With was, that, an offhanded refer effort to do if indeed that is what it “their affirmative defense made arguments” regarding ence to “other the limits of enforcement or attempt earlier.” There is no to define enforcement, exactly and is not jury’s draw the attention to what is parameters take her out of the of enforcement. what Officer Lee did to The majority states that the permissible comment is because counsel did not “solicit the to harmonize its special [the answer to inter *** rogatory its] verdict nor did he emphasize delineate or need to the special interrogatory answer if with ‘no’ wanted plaintiff damages.” award 3d at 396. It seems to me he actually did both jurors when he told the if they were “for Vernon”—in words, they other if give verdict, wanted to i.e., Vernon a money they— would answer the interrogatory emphasizes “No.” His remark relationship between the answer to the interrogatory and the verdict in no uncertain terms and I think it is incorrect say it does not. Laboratories,
Batteast Wyeth Inc., v. (1990), 137 Ill. 2d cited by majority opinion, its supportive more of the dissent. Batteast, In supreme court found a comment virtually which was identical to the one this case to be improper lawyer where that told that if wanted to plaintiff make an award in favor of they had to answer an interrogatory way. a certain The Batteast court unequivocally found this improper, comment to be but reversed on grounds, other so we will never if they know would have reversed if the comment was the sole issue. O’Connell v. Chicago, (1996),
the court stated lawyers could make mention of special inter rogatories, “[b]ut the jurors line is crossed when are told to harmonize or conform their interrogatory answer with their I verdict.” presume this directive from the case law does not mean such remarks only objectionable are where the magic words “harmonize” *43 “conform the verdict” are used. Where that is the actual of a effect comment, I improper. believe it to be generally See O’Connell City v. Chicago, Here, 285 Ill. 3d at 467. counsel’s jury, directive to the view, in my just had Simply such an effect. because the comment was once, only made “briefly,” majority states, as the taken in context or in way, other this comment was reversible literally error and shaped jury’s finding that this officer was not in the execution of the law where the evidence shows she was. Maling Sommese v. Broth (1966) ers, Inc., 36 Ill. 2d (holding 268 that the by statement plaintiffs attorney jury during closing argument to “harmonize” its answer special interrogatory on the with its verdict was improper).
Significant case, to our the Sommese court also stated that “[e]ven objection if an had been made to argument sustained, and defense counsel would be unable to overcome the fact that jury already had information, obtained the forbidden not only as to the source of the interrogatory, Sommese, but as to the interrogatory.” effect of the 36 Sommese, bar, Ill. 2d at 268. in City objected, Like the case at it argument is not sustained, jury later instructed and the circumstances, indulge I in However, would not evidence. under these unrung that the can be an instruc legal what is often a fiction bell Sommese, 2d Sommese is disregard. tion to See 36 Ill. at 268. While there, side had slightly lawyer different in that told which special interrogatory, attorney’s actions this case submitted that, I also note improperly let the know the effect of the answer. find jurors where counsel instructed the not to Officer Lee Vernon,” they if “for execution and enforcement of the law were also alerted to the inextricable link between their answer to juries link do not interrogatories and the final outcome of the case—a influenced their necessarily may make on their own. This well have regarding and special interrogatory answer to the next willful wanton. once, Finally, though improper even this comment occurred trial, a fair prejudicial deny was so as to defendant is reversible ground City Chicago, error on that alone. Ramirez v. (2000). 3d
WILLFUL & WANTON contended, plaintiff majority agreed, and the if even Officer Lee was in the execution enforcement of the law, wanton, her conduct bringing was willful and her within the exception disagree. found section 2—202 of the Act. I
Willful and wanton conduct is “a course of action which shows an actual or which, deliberate intention to cause harm if intentional, an utter disregard shows indifference to or conscious for (West safety of others property.” or their 745 ILCS 10/1—210 2004). Willful and wanton conduct consists of more than mere inadvertence, incompetence, Chicago or unskillfulness. See Geimer v. (1995). District, Park Ill. App. As the courts have interpreted phrase, this proof required that the defendant knew that his or her likely injury actions were to cause to another. In Me dina City Chicago, (1992), example, v. person court described conduct as willful and wanton “[a] when *** ignores plainly dangerous known or observable conditions and something naturally probably injury does that will result prove conduct, another.” plaintiff To willful wanton must show defendant, “by inflicting deliberately highly ‘a unreasonable degree plaintiff, ‘approache[d] degree of harm’ on the of moral ” blame attached City Chicago, to intentional harm.’ Morton v. *44 444, (1997), 452 12 quoting Liquor Burke v. Rothschild’s Mart, Inc., (1992); City Chicago, 148 Ill. 2d accord v. Wade (2006). 364 Ill. App. 3d opinion, majority “clearly”
In the states the verdict is apparently sustainable on willful and wanton for two reasons: because allegedly right turn,” Lee made a “hard purport- and the officer’s car I edly “jumped” initially right across two lanes. note that the “hard turn,” majority which the relies on as “clear” evidence of willful and conduct, literally up by expert wanton made and is nowhere acknowledge to be found in the evidence. I that Lee would have had to lanes, right veer to the to cross but if she executed what most of us turn, right i.e., corner, consider a “hard” in turning she would going sideways have been simply across lanes. There is no evidence (as Patrick) turn, hard right “jumping” by of a described Denise multiple not, view, across in my provide lanes does corroboration of a right anything else; fact, hard turn or no one even knows what is by meant term.
In the first I think it place, “jumped” obvious that in this context nothing than a colloquialism, description more and not a of what actually majority complains occurred. The I take the term “liter- ally” and I only appropriate way maintain that this is the to take plain it—to define the commonly accepted word its definition. majority’s definition, Unlike the dictionary my Webster’s defines mean, “jumping” spring ground,” leap “to from the sudden (Webster’s “upward” 1987); New Compact Dictionary Format obvi- ously, it border would on the ridiculous to claim that Lee’s car was actually jumping “leaping upward,” highest speed anyone where going claims she per dry pavement. is 65 miles hour on definition, majority applies “moving instead an alternative quickly,” apparently from a different I if agree Webster’s. would going up per hour, might Lee was to 65 miles some equate “moving however, I quickly.” agree, going speed do not at a permissible by veering right law for conditions and to cross two lanes care, did, exercising essentially after due is all she which could conceiv ably be raised to the of willful and conduct. it is level wanton While jurors may properly something true that find willful wanton another, simply negligence incompetence one case and mere (Geimer District, enough Chicago inadvertence is not v. Park (1995)); must have a always willful wanton lacking Murray here. v. quasi-intentional entirely character that is (2007). Center, Youth 224 Ill. 2d Fictional “hard Chicago right” “jumping” police hardly turns and cars are “clear” evidence conduct, fact, my such is virtu willful wanton view. evidence ally illusory compared to the real evidence of the officers’ when conduct in the instant case. regard, thorough plaintiff says
In that of what amounts review *45 acts, of these plainly and conduct shows that none to willful wanton other, comes close to standing conjunction either alone or with each disregard required reckless for willful and meeting high bar of some plaintiffs allegations Five of accuse the officers of viola wanton. c, k), (b, i, j, and two allude general regarding pursuit tion of a order derogation claims are in simple driving plaintiff violations which (a (a, f, general h), e, g) only allegations and some and are order and road under the Illinois relating to violation of various rules of the (625 (West 2004)). Code ILCS Most amounted seq. Vehicle et 5/11—100 negligence, “reck nothing more than and the addition of word lessly” merely negligent does not transform conduct is into will which wanton, i.e., ful and “Recklessly failed to maintain control over her vehicle,” “Recklessly change, striking motor executed a lane Vernon vehicle,” District, Winfrey Chicago Hudson’s motor etc. See v. Park (1995) (“When 274 Ill. App. plaintiff alleging is engaged conduct, the defendant in willful and wanton such conduct through well-pled facts, labelling must be shown by merely wanton”); Sutton, the conduct Ill. App. willful Robb v. (1986) (“Recklessness conduct”). connotes wilful and wanton Further, view, in my Officer Lee’s conduct could not be classified term, as willful and as I wanton understand the even if she had been engaged in pursuit permission general without violation of a majority order. The general states that a of a may violation order by considered to be “some” evidence of willful wanton acknowledge conduct and I may that it be. See First Springfield Bank (1999). Galman, & however, Trust v. 188 Ill. 2d Significantly, in order to be considered even “some” evidence of willful and wanton conduct, the violation the general order in and of itself must be a proximate cause of this accident or one of them. See Springfield First (“To Trust, Bank & 188 Ill. 2d at damages recover based upon *** violation, alleged statutory defendant’s plaintiff must show that (3) the proximately violation caused her injury”). example, For if a general required order an officer pursuit to wear a blue hat in a she wearing green, was general violation of the order would have nothing to do case, with the accident. So in this permission too or lack absolutely nothing thereof had driving evening, to do with Lee’s and this accident would have occurred or not had permission whether requested road, been given. presence As for her on the there is no permission evidence that would have been if requested, denied so is reasonable to assume she would have been there and the accident Moreover, would have occurred. presence her on the road is not an is impermissible sue because it infinity to reason back to to establish probable cause, i.e., born, if Officer Lee had never been the accident Co., Palsgraf v. Long not have occurred either. See Island R.R.
would
(1928)
C.J.).
(Cardozo,
248 N.Y.
9I
Patrick’s
but in this
am well aware
acceptance
testimony
this
I would deem
of such flawed
more evidence
City.
having
against
Patrick admitted to
had
verdict is
result of bias
viewing
the Eisenhower and
four shots. She was
the scene from a street above
traffic,
bright
lights
looking
many
dark with the
of the
across
lanes of
after
surprising
to see
roadway
platform.
“el”
It is not
that she was able
and the
circumstances,
siren,
lights
under these
but other
the blue
and hear Lee’s
very
speed, “jumping,” etc.
questionable
evidence she offers seems
—elevated
on,
signal
emergency equipment
turn
was
her
was activated and that
collision,
fact,
she braked in
attempt
just
to avoid the
shows
Therefore,
opposite
regard
safety
conscious
for the
of others.
—a
neither the violation order nor the conduct itself could
anything
be evidence
if
If
negligence,
other than
that.
otherwise,
found
wrong
against
it was
because such a conclusion is
York,
weight
manifest
of the evidence.
Unlike in driving conditions in the instant case were virtu- ideal, ally and Lee had taken every precaution prior to executing her change. lane Bosen, Like the officer in Lee slammed on her brakes to avoid a Thus, collision but was unable to do so. the case at bar is virtually indistinguishable from Bosen and the officer’s conduct can- not be considered willful and wanton. Even where the evidence is light viewed most plaintiff, judgment favorable to n.o.v. should *47 granted. have been Similarly, in (1999), Sanders v. City Chicago, App. 306 Ill. 3d 356
the defendant police officer heard an emergency call that two fellow
being
officers were
attacked at a location outside of the defendant of
Sanders,
ficer’s beat.
App.
306 Ill.
requesting
3d at 359. Without
permission
so,
to do
proceeded
the officer left his beat and
to the loca
Sanders,
tion of the
route,
attack.
not to have heard a radio Sanders, 306 Ill. 3d at 359. travel, being outside his traveling wrong in the lane of
Despite suspect beat, accident occurred after the regular and the fact that the did cornered, jury’s finding the officer the court affirmed had been Sanders, 3d at manner. 306 Ill. not act in a willful and wanton traf that, wrong officer entered the although The noted 367. court officers, lane, emergency call from fellow responding fic he was siren, lane, his wrong the officer activated prior entering and coming opposite down, there were no cars slowed and ensured Sanders, 3d at 367. direction. case, Sanders, emergency ongoing
In the instant unlike accident, Officer Lee and the officer Sand- the time of the and both the informa- responding accidents ers involved serious while radios, the evidence is clear they received over their but tion were activated. The of- signal emergency equipment and Lee’s turn however, in a willful and Sanders, found not to have acted ficer in evidence, this have been the manner, given this should wanton finding here.
JURY INSTRUCTION
Nonetheless,
conduct to be willful
did find the above
the erroneous
view,
finding
easily
attributable to
my
wanton. In
this
given
plaintiff’s expert’s
as well as
video
issues instruction it was
as to
plaintiffs complaint
reflected
below. The instruction
discussed
manner.
had done
a willful
wanton
he maintained officers
what
stated,
can
be described
most of the conduct
previously
As
f,
remaining
a, c, e,
g); the
(see, notably, counts
simple negligence
(b, c,
regarding pursuit
allege
orders
allegations
violations
negligence
se.
h,
per
if
are not even
j),
proven,
& which
rule that what a
of the well-established
fully
I am
aware
decided
the circumstances
and wanton must be
deems willful
may
negligence
one case
may only amount to
each case and what
Humrichouse,
Ill.
in another. Streeter v.
and wanton
willful
“
(1934).
difference between
However,
qualitative
‘there is a
”
always differenti
conduct’
and wanton
negligence
willful
quasi-intentional
intentional or
never has the
negligence
ates the two:
Murray,
conduct. See
of willful and wanton
character
reason,
jury may
Burke,
450. For this
quoting
matter)
combined,
(or
that,
say
negligent acts and
link 2
for that
a differ
and wanton” is
“Willful
and wanton.
they amount willful
appears
Burke,
433 thereof) (or some combination “changing lanes” “due care” and/or wrong. wanton, simply it was and be willful as to what instructed properly that this was I am also aware majority as the conduct willful and wanton constitute actually does that had a instruction by an However, it then confronted notes. be willful and wanton claimed to things plaintiff which laundry list of reason to There is no negligent acts. conduct, reality only but were acts, alleged in the these it able to discern assume that wanton, actually only negligence. and were instruction to be willful conclusions. in their Therefore, there can be no confidence containing alleged subparagraphs true those especially This if surprise anyone I that it would orders. doubt general violations of general order with a violation of average juror equate would have Nonetheless, courts Illinois our and conduct. willful wanton internal standards organization’s that a violation of an repeatedly held conduct se, let alone willful and wanton negligence per are not even Morton, Ill. legal duties. 286 se, reasoning impose do not per District, Ill. Park 355 Floyd See also v. App. 3d at 454. Rockford a (2005) of its own public entity’s violation (holding that 3d 702 much willful and negligence, less proof rules does not constitute conduct). granted the Indeed, early properly trial court on wanton this arguing counsel from prevent plaintiff’s in limine to City’s motion per and conduct general order was willful wanton that a violation of implied an instruction They provided nonetheless se. that it was. likely confused the list City
I that this agree with the and an and wanton conduct plaintiff claimed to be willful of what order is willful assumption that a violation of incorrect instruction was part officer. This behavior on the wanton City may tipped have the balance highly prejudicial thus International, Edgewood Inc. v. in this close case. NWI plaintiffs favor (1997). Moreover, if any of Bank, Ill. even complaint properly described willful subparagraphs plaintiffs negligence, mere conduct, only be considered most could wanton reaching relied upon one or ones we will never know which may find the defendant jury is instructed that the verdict. Where a then liability, basis of legally cannot be the liable for acts which properly if theories were must be set aside even other resultant verdict (1972). Co., 3d 188 Darby v. Checker jury. before the issue the instruction majority City claims that the has waived out the defect pointed which proffer it failed to an instruction because a limitation on I note that waiver is a correct instruction. gave waiver when court, may dispense with and we parties, not on justice interests of so Funk, demand. re Estate 221 Ill. 2d (2006); (2000) see Coffelt, also Mellon v. 313 Ill. App. that, (holding “in justice,” the interest of the court would review a dismiss). argument waived appeal from a motion to This is such a case, and is entitled to a new trial on this issue.
ADMISSION OF THE VIDEO *49 The appeal, contends on and I agree, that it is entitled to a new trial because a by video created plaintiffs expert, Ziejew- Doctor ski, erroneously was I admitted. note that a video is a powerful most piece evidence, perhaps disproportionately so—an observation citation, requiring no in my view. The presented doctor this film to the though it was a mathematically and scientifically accurate representation of what occurred the evening of May based on the immutable physics. laws of He even made it clear production that his was not an “animation” because they were similar to cartoons with no science behind them. Ziejewski Doctor suggested also the computer would solve equations,” “all implying it would fill in the blanks. In reality, it Ziejewski was Doctor who filled them in.
There are at least six important
expert
facts which the
seemed to
invent,
literally
since either there
testimony
was no
about these at
trial or the
testimony
trial
is directly contradictory to his video. These
(i)
briefly are:
expert
wrong
used the
make and model of vehicle
(ii)
(though
right
available);
one was surely
the simulation starts
with Hudson’s vehicle going straight, despite testimony it
going
to
(iii)
right;
Officer Lee’s vehicle starts
degrees
West,
at ten
off due
despite
(iv)
being
there
testimony
effect;
no
to that
Officer Lee’s
spun
degrees
vehicle
around before
impact,
despite there be-
(v)
ing no supporting testimony;
her brakes
applied
in a certain
(50%
front,
manner
rear),
any evidence;
100% the
absent
(vi) Hudson steered
right
his car to the
impact,
after
without
testimony to this effect. None of the above was contained in the
evidence and
Ziejewski
Dr.
even admitted that when he had “to
dynamic
introduce
instability” in order
police
to have the
car spinning
out of
highway
control across the
any testimony
was,
absent
that it
interjected
locking
or invented the
theory, though
brake
he did not
if
know the brakes actually did lock or if
locking
car had
fact,
brakes. In
marks,
since there were
regarding
no materials
skid
etc., Ziejewski did no
pictures
more than look at
damage
to the cars.
French v. City Springfield,
(1976),
Next, majority Ziejewski’s injection that 180- states degree spin highway across the finds corroboration the fact that the car police facing came to rest Hudson’s car. Aside from the that fact spinning police there was no evidence of a from anyone car but expert, police simply a more reasonable conclusion was car Third, by turned impact. though around this hard it has 180-degree majority established a fact with its hypothesis, application locking concludes of Officer Lee’s brakes— by found nowhere in the evidence —is borne out fact that police car lanes and spun degrees. Clearly, traveled across three could wholly locking she travel across three lanes absent brakes may Moreover, spinning impact well have. the officers denied any until police and no one car lanes. spinning saw across the Because I am not an I if a turn expert, right haven’t idea hard by “jumping,” is corroborated whether the direction the car postaccident had anything 180-degree faced to do spin, with this alleged spin whether means that Officer Lee’s brakes locked. In view, beyond such my conclusions are well a “reasonable inference evidence,” expert testimony. from the and are purely matter may properly majority These as a offered reason justify the expert fact that this drew conclusions either absent evidence it. derogation missing or in of The “facts” are thus not in the evidence therefore, directly inferentially; either this lacked foundation video erroneously admitted, requiring and was His- new trial. French and point, correctly decided, are and if are this directly cott on then not, agree case at least the issue of the video. I further with the instruction, along very erroneous video was influential in jury’s conclusion the officer’s conduct was will- ful wanton. reasons,
For foregoing respectfully I dissent.