Abruzzo v. City of Park Ridge , 2013 IL App (1st) 122360 ( 2014 )

Illinois Official Reports
Appellate Court
Abruzzo v. City of Park Ridge, 2013 IL App (1st) 122360
Appellate Court JO ANN ABRUZZO, Independent Administrator of the Estate of
Caption Joseph Furio, Deceased, Plaintiff-Appellee, v. THE CITY OF PARK
RIDGE, Defendant-Appellant.
District & No. First District, Fourth Division
Docket No. 1-12-2360
Filed December 19, 2013
Held In an action for wrongful death, survival, and family expenses arising
(Note: This syllabus from the death of plaintiff’s son after paramedics from defendant city
constitutes no part of the initially came to plaintiff’s residence in response to a 9-1-1 call and
opinion of the court but then left, and then a different team was called later and transported the
has been prepared by the son to a hospital where he was pronounced brain dead, the trial court’s
Reporter of Decisions judgment for plaintiff on retrial following a remand from the Illinois
for the convenience of Supreme Court was affirmed, since the record showed that plaintiff’s
the reader.) complaint was initially dismissed by the trial court on the ground that
defendant was immune under the Tort Immunity Act, the appellate
court upheld that decision, but the Illinois Supreme Court reversed
that judgment, held that the limited immunity provision of the
Emergency Medical Services (EMS) System Act applied and
remanded the cause for a new trial, and the judgment for plaintiff at
the new trial was upheld by the appellate court, since the evidence,
including defendant’s admission that the first paramedics who
responded did not provide any services, established that they were
guilty of an “omission” in providing services for purposes of the Act
and exposed defendant to liability.
Decision Under Appeal from the Circuit Court of Cook County, No. 09-L-1262; the
Review Hon. Clare McWilliams, Judge, presiding.
Judgment Affirmed.
Counsel on Richard A. Devine, Scott M. Seaman, and Jason R. Schulze, all of
Appeal Meckler Bulger Tilson Marick & Pearson LLP, of Chicago, and Jay S.
Judge and Michael E. Kujawa, both of Judge, James & Kujawa, LLC,
of Park Ridge, for appellant.
Lisa A. Jensen, of Jensen Law Office, LLC, of Rockford, and Frank
DiFranco, of DiFranco & Associates, P.C., of Park Ridge, for
appellee.
Edward F. Dutton, of Park District Risk Management Agency, of
Lisle, for amicus curiae Illinois Governmental Association of Pools.
Panel PRESIDING JUSTICE HOWSE delivered the judgment of the court,
with opinion.
Justices Quinn and Lavin concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Jo Ann Abruzzo, as independent administrator of the estate of Joseph Furio,
deceased, filed a complaint and first amended complaint for wrongful death, survival, and
family expenses against defendant, the City of Park Ridge (Park Ridge or the City). The
complaint arose from the City’s response to a request for emergency services (9-1-1 call) by
decedent’s father, Larry Furio, for his son Joseph. The City’s paramedics responded to a call at
Larry Furio’s home at approximately 1 a.m. and left without taking Joseph to the hospital.
Joseph had been conscious during the first call. Larry Furio called a second time later that same
morning and different paramedics responded. Joseph was unconscious. The paramedics
transported Joseph to the hospital. Joseph never regained consciousness, was later pronounced
brain dead, and was removed from respirators.
¶2 Plaintiff’s first amended complaint alleged, in part, that in response to the first 9-1-1 call
the paramedics failed to evaluate or assess Joseph and as a proximate result, Joseph sustained
injuries resulting in death, and the paramedics behaved with wilful and wanton conduct in
failing to transport Joseph, a nonresponsive patient. On April 14, 2006, defendant filed a
motion to dismiss. Plaintiff filed a response, and on June 9, 2006, defendant filed its reply
brief. The trial court granted the motion and on appeal this court held that the City was immune
pursuant to sections 6-105 and 6-106 of the Local Governmental and Governmental
Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/6-105, 6-106 (West 2004)).
Abruzzo v. City of Park Ridge, 374 Ill. App. 3d 743, 759 (2007) (Abruzzo I).
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¶3 Sections 6-105 and 6-106 provide absolute immunity from liability to a local public entity
for failure to evaluate, diagnose, or prescribe treatment for an illness or physical condition.
Abruzzo v. City of Park Ridge, 231 Ill. 2d 324, 329 (2008) (Abruzzo II). Our supreme court
reversed this court’s judgment that absolute immunity under the Tort Immunity Act applies,
holding that the limited immunity provision in the Emergency Medical Services (EMS)
System Act (EMS Act) (210 ILCS 50/1 et seq. (West 2008)) governs over sections 6-105 and
6-106 of the Tort Immunity Act. Abruzzo, 231 Ill. 2d at 348. Our supreme court found that the
EMS Act controlled because it was the more specific and more recent statute. Id. The court
interpreted the provision of emergency medical services to include preparatory actions integral
to providing emergency treatment and found that assessment and evaluation are integral to
providing emergency medical services. Id. at 345. The court held that the immunity provision
of the EMS Act applied to the allegations in plaintiff’s complaint because “[t]he failure to
assess or examine is an ‘omission’ in providing emergency medical services under our
interpretation of the immunity provision [in the EMS Act].” Id. at 345. The court remanded the
case to the trial court. Abruzzo, 231 Ill. 2d at 348.
¶4 This appeal arises from the trial of the matter following remand by our supreme court.
Following trial, the jury returned a verdict in favor of plaintiff and awarded damages totaling
$5,187,500. For the reasons set forth below, we affirm the verdict and judgment.
¶5 BACKGROUND
¶6 Following remand by our supreme court, the matter proceeded to a trial before a jury on
plaintiff’s first amended complaint.
¶7 Larry Furio, Joseph’s father, testified that he picked his son up from his mother’s house and
took him home at approximately 11:15 p.m. on October 30, 2004. Two weeks earlier, Joseph
had finished an inpatient drug rehabilitation program. Sometime after Joseph went to bed,
Larry heard a gasping sound from Joseph’s room. Larry went to Joseph’s room to find Joseph
“like blue” and “gasping for breath.” He was purple around the mouth and clammy. Joseph
made a few more gasping noises and then no sound. Joseph was not breathing. Larry could not
wake him so he attempted cardiopulmonary resuscitation (CPR). Joseph still did not waken so
Larry dialed 9-1-1 while continuing to attempt CPR. At some point, Joseph was able to say
some words but his speech was slurred, he appeared groggy, and his eyes were glassy. Before
paramedics arrived, Larry was able to ask Joseph if he had used any drugs and Joseph
responded he had not. Paramedics arrived while Larry was still on the phone with the 9-1-1
operator. Larry Furio testified he told paramedics he thought the problem could be asthma and
he believes that he told them he had been attempting CPR.
¶8 Larry testified that when he entered Joseph’s room after paramedics arrived, he shook
Joseph and Joseph sat up and asked what those people were doing here. Larry testified he told
Joseph he (Larry) had come into his room and Joseph was purple, could not breathe, and Larry
could not wake him up. Joseph then said to his father, “dad, it’s these pills that I’m taking, they
make me tired.” Larry testified that one of the paramedics was in the room when Joseph made
the statement about the pills. Larry testified that in response, “the paramedic kind of rolled his
eyes like with an attitude, like why would you bother calling us, like he was put out.” Larry
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stated someone said words to the effect of “He looks alright I guess.” and left. Larry testified
that as the paramedics left he made a sarcastic comment that “gosh, I’m sorry I bothered you.”
¶9 William Peterson was a paramedic employed by defendant on October 31, 2004, and is still
so employed. He and paramedic Franzen were dispatched to Larry Furio’s home at
approximately 1:06 a.m. on the morning of October 31, 2004. Paramedic Peterson testified that
he was required to follow the standard operating procedures (SOPs) of the Saint Francis EMS
system. Those SOPs include a general patient assessment. Peterson testified that according to
the general assessment SOP, as part of the primary survey he was required to assess circulation
by comparing pulses and checking capillary refill. Peterson did not check Joseph’s pulses or
his capillary refill. Plaintiff impeached Peterson with his deposition testimony in which
Peterson stated that if Joseph’s father indicated Joseph was having difficulty breathing and had
a history of asthma, he would be required to follow the SOP for asthma. Peterson testified that
Joseph’s father never stated that his son was having trouble breathing. But he did testify that
when the call was dispatched, the call was for a 15-year-old with difficulty breathing.
¶ 10 Peterson denied that Joseph’s father told the paramedics that his son was unconscious and
not breathing, and he denied later telling his battalion chief that was what Joseph’s father said.
At trial, Peterson testified that Joseph’s father told them it was a false alarm and that their
services were not needed. Peterson testified at trial that he entered the home and walked down
a hallway toward Joseph’s bedroom without having any conversation with his father on the
way, and he never entered the bedroom. Joseph’s father entered the bedroom with Franzen and
a police officer. Peterson could see Joseph in the bedroom sitting up on his arms in the bed.
Joseph said something similar to “Why are these people here?” and “I just want to go back to
sleep.” Peterson stayed approximately 10 seconds before leaving to meet a fire engine that also
responded to the call. He never returned.
¶ 11 Peterson testified that under the SOP a primary survey of airway, breathing, and circulation
(ABCs) is made and, based on those, he is to determine how much further to go within his
assessment of the patient. Peterson testified he did a visual assessment while looking at Joseph,
but did not do a hands-on assessment. Peterson could determine that Joseph had a patent
airway and was breathing from the fact that he was sitting up and talking and based on the color
of his skin, which is an indication that oxygen is perfusing through his body. Peterson has seen
people’s skin that was discolored from a lack of oxygen. The lips start to turn blue, the skin will
become pale and, depending on the severity, the skin may take on an ashen, grayish-blue color.
Peterson could see that Joseph’s skin appeared to be a normal color. Peterson also testified that
circulation can be checked visually without checking the subject’s capillary refill. A capillary
refill test involves squeezing the nail bed of a finger and counting the time required for color to
return to the nail bed. Peterson testified he did not believe it was necessary to do a capillary
refill test on Joseph because he was breathing and had the proper skin color. Peterson testified
that he would only compare pulses to check circulation if he were working farther down into
the secondary survey, but it is not something that is done if on visual examination circulation
appears normal. The next step in the primary survey is to check for disability, which is to
determine the patient’s level of alertness. Peterson testified Joseph appeared to be alert based
on his knowing that there were other people in the room and his question to his father as to who
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the people in his room were and why they were there. The SOP for primary assessment
instructs paramedics to determine patient status, which Peterson testified means to determine
whether in fact there is a patient. Peterson testified that from what he observed he determined
they actually did not have a patient, at which point he would not continue to do the secondary
survey. Peterson testified:
“I believe that we didn’t have a patient. The father, whatever he thought, when he
made the phone call, when we got there he stated that he overreacted to whatever that
situation was. He said the boy was fine. The boy said he was fine, asking what these
people were doing here.
We made a determination that we did not have a patient to treat any further.”
¶ 12 Peterson received no information regarding any attempt at CPR on Joseph, no information
regarding suspected drug use, and no information that Larry Furio had trouble waking his son.
If Peterson were on a call and was aware that CPR had been performed on the patient, he would
further evaluate the patient and find out why CPR was performed. If he was aware of a history
of drug abuse, if there was a question as to whether the patient was conscious, or if the patient
was having difficulty breathing, it would affect the assessment that he does. Also, if there was
information about the patient taking medications or a question of how much the patient took, or
if the patient took the wrong medication, that information would affect what Peterson did.
Peterson testified he had no information to indicate that Joseph was on medications on October
31, 2004.
¶ 13 Peterson did not ask Joseph’s father what he had done for his son before paramedics
arrived, if Joseph was taking medication, had a history of asthma, or was on drugs. Peterson
did not ask Joseph if he was having difficulty breathing because he did not think it was
necessary. Peterson did not feel there were any questions to ask based on visually assessing
Joseph, what his father said to the paramedics, and what Joseph said. Peterson did not check
Joseph’s pulse, blood pressure, or temperature. He did not place a pulse oximeter on Joseph’s
finger to determine if Joseph was getting enough oxygen.
¶ 14 Peterson testified he is not required to automatically follow a certain protocol based on a
dispatch. Instead, he is to react and treat the person based on what he sees and how that person
presents to him. He is not supposed to initiate treatment for something he does not see when he
is there. Peterson did not see evidence that there was any difficulty breathing. Peterson testified
that if a father informs him that his son is having difficulty breathing or has a history of asthma,
then under the asthma SOP Peterson would be required to do a pulse oximetry reading, assess
and record vital signs and breath sounds, and transport the child. Peterson did none of those
things for Joseph.
¶ 15 Howard Franzen testified that he was working for defendant as a firefighter/paramedic on
October 31, 2004. He believes that he was the paramedic in charge for the call to Larry Furio’s
home. He was required to follow the Saint Francis standard operating procedures. The event
that lead to the 9-1-1 call was either not breathing or difficulty breathing. The call came to him
as a child unconscious and “sounds like asthma.” Franzen remembered that Joseph’s father did
not say anything when they arrived at his home. Larry Furio led Franzen to Joseph’s bedroom,
the lights came on, and Joseph sat up in bed. Franzen testified Larry Furio asked Joseph if he
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was okay and Joseph responded yes. Franzen observed the verbal exchange between Larry and
Joseph. Larry Furio told his son he thought Joseph was having an asthma attack. Franzen
testified Joseph denied that he was having an asthma attack.
¶ 16 Franzen asked Joseph if he was okay and Joseph said “I want to go back to sleep.” Joseph
also said something similar to “Yes, I’m fine.” Franzen did not ask Joseph any other questions.
Larry Furio said something to Franzen similar to “see there, he’s fine.” Franzen recalled that
once it was established that Joseph was okay Franzen told everyone they were leaving. Larry
Furio said that he was sorry for the false call, and Franzen responded that if he needed 9-1-1 or
if he was in doubt to call them back.
¶ 17 Franzen testified that after “looking at it over time” he feels he did do a primary assessment
based on his observations. He did not check the oxygen level of Joseph’s blood or check
Joseph’s vital signs. Franzen testified he assessed Joseph’s airway, breathing, and alertness
based on the fact that Joseph was talking with his father and answering questions
appropriately. Franzen testified he assessed Joseph’s circulation by observing the color tone of
his skin and that Joseph appeared to be perfusing normally. Franzen testified that the SOP
recommends comparing pulses to do a circulation assessment. Franzen testified that he also
observed Joseph’s pupils and they did not raise any concerns. Franzen observed Joseph to be
alert because he responded to stimuli of questions and the light coming on in his room, and
Joseph was responsive. Franzen testified that he assessed Joseph to be alert to person, place,
and time. Franzen testified that by the end of the 1 a.m. call, his final determination was that
Joseph “was somebody in–that was sleeping and was awoken by his father and there was no
patient.”
¶ 18 Franzen testified to an earlier statement in which he said that Larry Furio said in his
presence that he thought his son was having trouble breathing or was not breathing. Franzen
testified that if Joseph had actually not been breathing, that would not be a false alarm. Franzen
did not ask Larry Furio if Joseph was unresponsive prior to their arrival or what led him to
believe Joseph was unresponsive or not breathing. Franzen asked neither of them about an
asthma attack and did not know Larry Furio had attempted CPR. Franzen never received any
information regarding illegal drug use or CPR being performed before paramedics arrived.
¶ 19 On the date in question there was an SOP for asthma that he would be required to follow if
he had information that the patient was not breathing and had asthma. When he arrived at Larry
Furio’s home, nothing indicated to Franzen that he should begin following the asthma protocol
because Joseph’s breathing did not appear to be stressed and his color seemed appropriate.
¶ 20 Franzen testified that the SOPs required a primary survey which includes checking
circulation. A secondary survey requires a Glasgow Coma Scale, which requires a systolic
blood pressure. The primary survey, according to Franzen, is to determine if you have a patient
or not. When the primary survey is done, either there is not a patient or there is more to be
assessed. The secondary survey is only done under certain circumstances. Franzen testified he
did a visual primary assessment.
¶ 21 Plaintiff called Dr. David Tan as an expert witness. Dr. Tan testified to a reasonable degree
of medical certainty that Joseph was suffering from an opiate toxidrome from drug ingestion at
the time of the first 9-1-1 call. An opiate toxidrome refers to a group of findings, signs, or
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symptoms that together suggest a given diagnosis. Dr. Tan testified that if you put several signs
and symptoms together, it suggests an overdose of some kind, typically of the opiate family.
He also testified that “how the patient presents can often be predicated upon how much of the
substance was used, when it was used, how much tolerance they have.” Dr. Tan testified to the
signs that Joseph was suffering from an overdose when his father dialed 9-1-1 at
approximately 1 a.m. Plaintiff asked Dr. Tan’s opinion as to “whether[,] if the paramedics had
done an initial assessment[,] *** that would have revealed signs, symptoms, and a history of a
potentially life-threatening situation; namely, opiate intoxication.” Dr. Tan opined that had the
paramedics exercised “even a basic management of that scene,” they would have gathered
information that “would have alerted the paramedic[s] to the fact that there was a medical
emergency here that require[d] transport to a hospital.” Dr. Tan opined that regardless of why
Joseph was transported to the hospital, if he had been transported at 1:06 a.m., Joseph would
have survived.
¶ 22 Dr. Tan stated his opinion to a reasonable degree of medical certainty as to what caused
Joseph’s death. Dr. Tan testified:
“DR. TAN: More likely than not, Mr. Furio resuscitated [Joseph] enough to the
point where he actually was awake when professional rescuers arrived. After they left,
however, at some point in time from the time they left to the next morning when he was
found dead, essentially, he probably went back into that–lapsed into an opiate-induced
coma.”
¶ 23 On cross-examination, Dr. Tan confirmed his opinion that Joseph had ingested opiates
before the 1 a.m. 9-1-1 call. When asked whether he knew at what time Joseph ingested any
opiates, Dr. Tan responded as follows:
“DR. TAN: Well, what I know is that at the time of his initial presentation, again,
based on the 9-1-1 call and what happened, that at 1:06, I can say that he most likely
had opiates on board at the time.
***
Q. [Defense attorney:] You do not know at what time he ingested those opiates?
A. No, I do not know exactly what time he took them.”
¶ 24 Defendant’s counsel asked Dr. Tan about the effect of taking opiates and whether other
signs, such as stumbling from his father’s car when he picked Joseph up, would be present if
Joseph had taken sufficient opiates to stop his breathing at 1:06 a.m. Dr. Tan testified “for
example, if he took a short-acting opiate, I don’t know that he would last until 1:06, versus a
much longer-term opiate, it may have taken an hour, hour and a half for his clinical symptoms
to show itself again.” Later in defense counsel’s cross-examination, the following exchange
occurred:
“Q. [Defense attorney:] So you’re not able to pinpoint whether between the 1:06
call and the 9:00 a.m. call whether Joe had ingested any additional drugs?
***
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A. [Dr. Tan:] I have no evidence to say either way that he took more drugs after
1:06 a.m. I just know that at the time of the 9-1-1 call at 1:00 a.m., he was under the
influence of some intoxicant.
Q. It’s hard to put an exact time on what he ingested and when, would your agree?
***
A. Correct.”
¶ 25 The jury heard testimony from Mark Koziel, who was a battalion chief and medical officer
for the City of Park Ridge fire department in October 2004. Koziel’s only knowledge of the
first 9-1-1 call came from talking to others. Koziel testified that after speaking with Peterson
and Franzen, he was not concerned about what they had done at the call in assessing the scene
and in assessing the person they were called for, because what they told him sounded
reasonable and he trusted their judgments. When asked his opinion as to whether the
paramedics assessed the situation as they were trained to do, Koziel testified “apparently not.”
Koziel testified that the SOP requires a Glasgow Coma Scale on all patients but as far as he
knew Franzen and Peterson did not do a Glasgow Coma Scale on Joseph.
¶ 26 Defendant called Dr. Max Koenigsberg, an emergency medical specialist, as a witness.
Defendant hired Dr. Koenigsberg to review material and act as a consultant on this case. Dr.
Koenigsberg testified that he is familiar with the standard of care applicable to paramedics and
that his opinion was that Peterson and Franzen complied with the standard of care for a
reasonably well-qualified paramedic because they assessed the scene and determined that the
subject of the original call was not having any complaints, was not having any distress, and
was not disoriented, and there was no one that was observed to be a patient. Peterson and
Franzen made a determination of Joseph’s status by observing him and his airway, breathing,
and circulation. Dr. Koenigsberg testified that the SOP primary determination is “after you
determine there’s a patient.” Nonetheless, he testified that Peterson and Franzen “determined
through their primary survey that there was no evidence that Joey at that point in time needed
to be a patient.” Dr. Koenigsberg testified that once it is determined “you have a patient by
doing your primary assessment,” the ABCs, then “you start taking care of the patient, you do a
more detailed primary survey and hands-on. You check the pulse, you check the capillary refill
and then you proceed with vital signs.”
¶ 27 Dr. Koenigsberg also testified that the SOPs contain no requirements that have to be done
to determine there is a patient. The general patient assessment stated in the SOP applicable to
the paramedics in this case is not the step to take prior to determining there is a patient. The
ABCs under the general assessment are stated in a more detailed fashion. He opined, from his
review of the materials, that the paramedics were not aware of Larry having attempted CPR.
Dr. Koenigsberg testified the paramedics appropriately determined that Joseph was not a
patient. Specifically, Dr. Koenigsberg stated: “I think the paramedics practiced within the
[standard] of practice and evaluated the scene appropriately, took the information that they had
in a timely manner, an appropriate time and determined that Joey was not in need of being a
patient based on the information they had at hand.”
¶ 28 Larry continued to check on Joseph until approximately 3:15 a.m. before going to sleep. He
checked to make sure that Joseph was breathing and that his color was good. Larry did not see
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any problems with Joseph before going to sleep. The next morning, he found Joseph
unconscious and blue. Larry called 9-1-1 again, and paramedics arrived and transported Joseph
to the hospital. Doctors informed Joseph’s parents that he was brain dead.
¶ 29 The jury returned a verdict in plaintiff’s favor. This appeal followed. On April 5, 2013, the
Illinois Governmental Association of Pools (IGAP) filed a brief as amicus curiae. IGAP
consists of the members of 7 Illinois self-insured intergovernmental risk-pool organizations
whose membership totals more that 1,500 municipalities, townships, park districts, school
districts, forest preserve districts, community colleges, special recreation districts, and other
units of local government. IGAP engages in risk management activities to lessen its members’
exposure to liability from claims and litigation.
¶ 30 ANALYSIS
¶ 31 1. Evidentiary Admission
¶ 32 Plaintiff filed a motion in limine to declare that a statement in defendant’s June 9, 2006
reply brief was a judicial admission that cannot be controverted. The parties argued whether
the statement in defendant’s reply brief would be admitted as an admission throughout the trial.
The trial judge ruled that she would allow plaintiff to present the statement in rebuttal.
Defendant’s counsel argued that the defense should be allowed to explain the context of the
statement in the reply brief and how the statement came to be in the pleadings. The trial judge
ruled that plaintiff’s counsel would be allowed to read the statement, then the court would ask
for any matters in surrebuttal, at which point defense counsel would be permitted to state that
the admission just presented to the jury was drafted by the attorneys representing defendant.
After the defense rested its case, in front of the jury the trial judge asked counsel for plaintiff if
she had anything in rebuttal. Plaintiff’s counsel stated as follows:
“MS. JENSEN [Plaintiff’s attorney]: I do, your Honor. I would like to present in
evidence a pleading that was filed in court by the Defendant City of Park Ridge in
which the following statement was made.”
¶ 33 Before reading the statement, the trial court instructed the jury that what it was about to
hear was evidence in the case. Plaintiff’s counsel read the following statement:
“In the present case, it is clear that while the City of Park Ridge paramedics
responded to the Furio home arriving at 1:11 a.m. and leaving at 1:18 a.m., they
provided no medical care of any kind, including evaluation, assessment, diagnosis,
treatment, or documentation.”
¶ 34 The trial judge asked counsel for defendant if he had anything in surrebuttal and, after the
trial court instructed the jury that her statement was also to be treated as evidence, defense
counsel made the following statement:
“MS. JAMES [Defense attorney]: The statement that was just read to you was
drafted by the attorneys for the City of Park Ridge and contained in the pleading and
filed on behalf of the City entitled ‘Reply Memorandum in Support of its Motion to
Dismiss Plaintiff’s First Amended Complaint at Law.’ ”
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¶ 35 The trial judge then instructed the jury that the parties would proceed with closing
arguments. Defendant argues that the trial court deprived it of a fair trial by allowing plaintiff
to read to the jury, as an evidentiary admission, the statement in defendant’s reply brief in
support of defendant’s motion to dismiss, which defendant had filed pursuant to section 2-619
of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2006)), just before the parties’
closing arguments. We review the court’s decision concerning the admissibility of evidence,
including admissions, for an abuse of discretion. CFC Investment, L.L.C. v. McLean, 387 Ill.
App. 3d 520, 530 (2008) (applying abuse of discretion standard to trial court’s order barring
use of statement during deposition as an admission).
¶ 36 “Any oral or written out-of-court statement by a party to the action *** which tends to
establish or disprove any material fact in a case is an admission and is competent evidence
against that party in the action.” (Internal quotation marks omitted.) CFC Investment, L.L.C.,
387 Ill. App. 3d at 529. “Judicial admissions are formal admissions in the pleadings that have
the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the
fact. [Citation.] For a statement to constitute a judicial admission, it must be clear,
unequivocal, and uniquely within the party’s personal knowledge. [Citation.] The statement
must also be an intentional statement which relates to concrete facts and not an inference or
unclear summary.” Serrano v. Rotman, 406 Ill. App. 3d 900, 907 (2011). Evidentiary
admissions can be controverted or explained by the party, while judicial admissions cannot be
controverted or explained. Pryor v. American Central Transport, Inc., 260 Ill. App. 3d 76, 85
(1994).
¶ 37 Defendant and amicus curiae argue that the statement in defendant’s reply brief is not
admissible as an admission because defendant was required to admit plaintiff’s well-pled
allegations as true for purposes of its motion to dismiss pursuant to section 2-619 of the Code.
Bjork v. O’Meara, 2013 IL 114044, ¶ 21 (“A section 2-619 motion admits as true all
well-pleaded facts, as well as all reasonable inferences that may arise therefrom.”). Amicus
curiae argues that the admission misinformed the jury as to defendant’s position on the facts of
the case because the statement in the reply brief was defendant’s position on the statutory
immunity defenses only, “which Defendant Park Ridge had properly raised as part of a § 2-619
motion to dismiss directed to the Complaint.”
¶ 38 Defendant cites Bargman v. Economics Laboratory, Inc., 181 Ill. App. 3d 1023, 1032
(1989), in which the court held that the trial court properly prohibited plaintiff’s introduction
into evidence, as admissions, certain allegations contained in the defendant’s third-party
complaint. The Bargman court found that “[a] party wishing to make alternative or contingent
claims should not be placed in the perilous situation of either foregoing one claim or having
one claim used against another as an admission.” (Internal quotation marks omitted.)
Bargman, 181 Ill. App. 3d at 1033. Defendant and amicus curiae argue municipal defendants
should not be placed in the “perilous situation” of asserting immunities in motions to dismiss
and having their pleadings used against them as admissions.
¶ 39 The Bargman court found that the third-party complaint clearly stated that the defendant
denied liability to the plaintiff, but if it were found liable, then the third-party was liable.
Bargman, 181 Ill. App. 3d at 1033. The defendant argued that “where allegations are not
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pleaded in the alternative or hypothetically, they may be used as admissions against the
pleader.” Bargman, 181 Ill. App. 3d at 1032 (citing Associated Claims Service, Inc. v. Rinella
& Rinella, 79 Ill. App. 3d 1023 (1979)). The Bargman court found that the third-party
complaint “is pleaded alternatively when read as a whole.” Bargman, 181 Ill. App. 3d at 1033.
Moreover, the court noted that “ ‘we do not believe there is some magic in labeling
inconsistent pleadings “alternative” or “hypothetical” which invokes the principal underlying
the alternative pleading rule.’ ” Bargman, 181 Ill. App. 3d at 1033 (quoting Tuttle v. Fruehauf
Division of Fruehauf Corp., 122 Ill. App. 3d 835, 842 (1984)). The Tuttle court similarly held
that the trial court properly prevented the plaintiff from referring to the allegations in the
defendant’s third-party complaint because Illinois law does not allow “alternative, unverified
pleadings to be used as admissions against the pleader.” Tuttle, 122 Ill. App. 3d at 841. The
Tuttle court reached this conclusion despite the fact that not all of the allegations were phrased
hypothetically or in the alternative because, it found, “regardless of the phrasing of the factual
allegations in [the] defendant’s third-party complaint, the complaint is an alternative,
unverified pleading, and the allegations in the complaint are not admissions.” Id. at 842. The
court also noted that one allegation, as phrased, plainly did not admit anything. Id.
¶ 40 Amicus curiae also argues that the trial court’s ruling is contrary to section 2-619(c) as
written. Section 2-619(c) of the Code provides, in pertinent part, as follows: “If a material and
genuine disputed question of fact is raised the court *** may deny the motion without
prejudice to the right to raise the subject matter of the motion by answer and shall so deny it if
the action is one in which a party is entitled to a trial by jury and a jury demand has been filed
by the opposite party in apt time.” 735 ILCS 5/2-619(c) (West 2004). Amicus curiae argues
that because section 2-619(c) permits a defendant to raise the same grounds in its motion to
dismiss by answer, section 2-619 makes clear that the admission that the facts pled in the
complaint are true is for the limited purpose of ruling on the motion to dismiss, and does not
prejudice the defendant from denying such facts are true in an answer. Amicus curiae argues
that the trial court’s ruling effectively rewrites section 2-619(c) of the Code to include a
provision that states a defendant’s acceptance of the well-pled allegations in a complaint as
true for purposes of a motion under section 2-619 shall constitute an evidentiary admission
which may be presented at trial.
¶ 41 Plaintiff responds defendant went beyond admitting the truth of the allegations in her
complaint for purposes of its motion to dismiss. Plaintiff argues defendant took an affirmative
position in its reply brief and admitted facts that plaintiff did not plead in her first amended
complaint. Plaintiff cites Lichon v. Aceto Chemical Co., 182 Ill. App. 3d 672 (1989), in which
the court held that a statement in the defendant’s reply memorandum in support of its motion to
dismiss was a binding judicial admission. Lichon, 182 Ill. App. 3d at 679-80 (citing Trapkus v.
Edstrom’s, Inc., 140 Ill. App. 3d 720 (1986)). The court also found that an assertion in a
motion to dismiss was a binding judicial admission in Prentice v. UDC Advisory Services, Inc.,
271 Ill. App. 3d 505, 513 (1995).
¶ 42 Defendant’s reply brief in support of its motion to dismiss states that the basis of
defendant’s motion is that it is immune from liability for a failure to evaluate, assess, or
diagnose Joseph. Our supreme court construed the complaint to allege that “the emergency
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responders arrived at the residence and then left without evaluating or giving necessary
treatment to [plaintiff’s] unresponsive minor son.” Abruzzo, 231 Ill. 2d at 331. The relevant
allegations in the first amended complaint regarding defendant’s conduct on the night in
question are as follows:
“7. On October 31, 2004, the EMTs, paramedics, and fire fighters did not provide
advanced life support to Joseph Furio.
***
11. [T]he EMTs and/or paramedics treating Joseph Furio knew *** that a child,
who was unresponsive, required transport to a hospital.
12. [T]he EMTs *** should have evaluated and assessed Joseph Furio and
transported Joseph Furio to a hospital ***.
***
17. [D]efendant *** behaved with wilful and wanton conduct *** in one or more of
the following respects:
(a) *** never evaluated or assessed the patient;
(b) *** never transported the patient to a hospital;
(c) *** failed to evaluate or assess Joseph Furio, a nonresponsive patient;
(d) *** failed to transport Joseph Furio.”
¶ 43 We agree with defendant and amicus curiae that no defendant should be placed in the
position of only being able to assert an immunity defense if the defendant is willing to have its
agreement with the plaintiff’s factual allegations for purposes of a motion to dismiss admitted
as evidence at a subsequent trial. We do not agree, however, that defendant merely accepted
plaintiff’s factual allegations as true for purposes of its motion to dismiss. The pleading at issue
must be construed as a whole to determine whether the statement was made simply for
purposes of the motion to dismiss or is in fact an admission of fact. See Bargman, 181 Ill. App.
3d at 1033. Reading defendant’s reply brief as a whole, we find that the defendant’s reply goes
beyond accepting the allegations in plaintiff’s complaint as true for purposes of its motion to
dismiss and that defendant’s reply brief does admit the facts that were read to the jury.
¶ 44 Defendant’s reply brief argued this case is distinguishable from Antonacci v. City of
Chicago, 335 Ill. App. 3d 22, 29 (2002), which required defendant to assert facts rather than
limit itself to accepting the allegations of the complaint as true for purposes of its motion to
dismiss. The issue in Antonacci was “the extent of statutory immunity given the City of
Chicago (the City) where its paramedics allegedly failed to perform an EKG or defibrillation
on a patient they had diagnosed as having had a heart attack.” Antonacci, 335 Ill. App. 3d at 23.
The defendant in that case filed a motion to dismiss pursuant to section 2-619 on the grounds of
immunity under the Tort Immunity Act. Id. at 25-26. The court found that under the Tort
Immunity Act, if governmental medical personnel do not examine the patient, they are
immunized; if they fail to make a diagnosis, or fail to prescribe treatment, or if they make an
incorrect diagnosis, they are immunized. Id. at 27. But negligent or wrongful prescribing of
treatment that results in harm is not immunized, nor is there immunity for harm caused by a
negligent or wrongful act or omission in administering the prescribed treatment after a correct
diagnosis. Antonacci, 335 Ill. App. 3d at 27. Immunity in Antonacci would turn on whether the
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paramedics had “diagnosed” the deceased and begun to “treat” him, or whether the allegations
were actually that the paramedics failed to diagnose the decedent. Antonacci, 335 Ill. App. 3d
at 28. The Antonacci court found enough factual allegations in the plaintiff’s complaint and
physician’s report to say the motion to dismiss should not have been granted, but also found
that “[t]here may or may not have been a ‘diagnosis’ and prescribed ‘treatment’ that would
exclude tort immunity.” Antonacci, 335 Ill. App. 3d at 31. The court held that “principled
resolution of the immunity issue” in that case required a better record. Antonacci, 335 Ill. App.
3d at 31. The court did not rule on the merits of the motion to dismiss and remanded the case,
where it assumed there would be “more evidence of when and how diagnosis, prescription of
treatment, and/or treatment were performed or not performed.” Id.
¶ 45 In this case, based on the holding in Antonacci, defendant could have argued, based just on
the allegations in the first amended complaint, that defendant did not “diagnose” Joseph and,
thus, no treatment was prescribed, and defendant did not administer any treatment, and,
therefore, defendant has absolute immunity. Antonacci, 335 Ill. App. 3d at 30 (Tort Immunity
Act applies because plaintiff’s complaint alleged failure to perform examinations leading to
failure to diagnose condition, which in turn proximately caused death (citing Michigan Avenue
National Bank v. County of Cook, 191 Ill. 2d 493, 512 (2000))). In its reply brief, defendant did
in fact argue that there was no diagnosis, no physical examination, and no treatment provided.
Defendant argued that “[t]he repeated assertions in Plaintiff’s First Amended Complaint,
Plaintiff’s Response Memorandum and Plaintiff’s Physician’s Report that Defendants [sic]
‘failed to provide any emergency medical care’ is finally what distinguishes this case from the
appellate court decision in Antonacci.”
¶ 46 However, defendant then cited that portion of the Antonacci opinion remanding for “more
evidence of when and how diagnosis, prescription of treatment, and/or treatment were
performed or not performed” (Antonacci, 335 Ill. App. 3d at 31), and argued that “[u]nlike in
Antonacci, none of these questions need to be addressed here, because the record in this case is
clear. The Defendants responded to the 1:06 a.m. 9-1-1 call and provided no emergency
medical care of any kind.” Construing defendant’s reply brief as a whole results in finding that,
in addition to accepting plaintiff’s allegations as true in support of its immunity defense,
defendant asserted matters of fact unnecessary and unrelated to its position on its motion to
dismiss. Specifically, defendant asserted that “the record in this case is clear” and defendant
“provided no emergency medical care of any kind.” By making these assertions, defendant
went beyond merely accepting the allegations in plaintiff’s first amended complaint as true for
purposes of arguing it was entitled to absolute immunity, and affirmatively asserted that there
was, in fact, no medical care of any kind in this case.
¶ 47 Amicus curiae’s argument that section 2-619(c) permits a defendant to raise the same
grounds in its motion to dismiss by answer actually supports our conclusion that this additional
allegation constitutes an admission of fact, rather than an acceptance of plaintiff’s allegations.
If the trial court in this case had denied defendant’s motion to dismiss, defendant could have
raised its immunity defense (had our supreme court ruled that the Tort Immunity Act applied)
by answer. Immunity under the Tort Immunity Act is an affirmative defense, and defendant
would have had the burden to prove its right to immunity, including the facts on which its
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alleged immunity is based. Albers v. Breen, 346 Ill. App. 3d 799, 806 (2004) (“Because
governmental immunity is an affirmative defense, the defendant bears the burden of properly
proving that the immunity applies to defeat the plaintiff’s claim. [Citation.] The defense must
be apparent on the face of the complaint or else supported by affidavits or other evidentiary
materials.”). But defendant argued that proceeding to a trial of those facts was not necessary
because the fact that its paramedics provided no medical services was clear. Defendant
believed at that time this would entitle it to absolute immunity. That our supreme court
determined that defendant was wrong about the law that applied does not change defendant’s
assertion about the facts.
¶ 48 Defendant argued that its answer, filed after our supreme court reversed the granting of its
motion to dismiss, superseded its motion to dismiss (and reply brief). Amicus curiae argued
that this answer contains defendant’s “real position” on the facts it is alleged to have admitted.
Defendant’s answer does not allege that its paramedics did perform a visual evaluation or
assessment. Defendant’s answer admitted that emergency medical technicians (EMTs),
paramedics, and fire fighters did not provide advanced life support (paragraph 7), admitted that
the emergency response team left without transporting Joseph (paragraph 15), and denied that
it responded to a request for emergency medical service for an unresponsive patient receiving
CPR with a history of drug abuse and: never evaluated or assessed the patient, never
transported the patient to a hospital, failed to evaluate or assess Joseph, failed to transport
Joseph, failed to initiate advanced life support, and failed to assess airway, breathing, and
circulation (paragraph 17). Each of defendant’s affirmative defenses states that plaintiff has
pled that defendant failed to examine, diagnose, and treat Joseph, and that defendant has
denied all material allegations of wilful and wanton conduct. Amicus curiae does not assert that
defendant took the position in its answer that it did perform a visual assessment, but only
asserts that the answer explains why defendant “did not need to ‘evaluate, assess, diagnose,
treat or document’ emergency medical care for Joey Furio.” There is nothing in defendant’s
answer that is inconsistent with the admission that the record is clear that defendant’s
paramedics provided no medical care of any kind.
¶ 49 Defendant’s statement in its reply brief was an unequivocal assertion of fact that went
beyond the pleadings and, therefore, constitutes an admission. Defendant repeated that
assertion to this court on appeal. Abruzzo, 374 Ill. App. 3d at 749. Defendant argued that there
was no conflict between the Tort Immunity Act and the EMS Act because the former applies to
“pretreatment activities while the EMS Act only provides immunity once treatment has
begun.” Abruzzo, 374 Ill. App. 3d at 749. Defendant argued to this court that “only the
immunities in *** the Tort Immunity Act apply in this case because absolutely no treatment
was rendered to Joseph.” (Emphasis added.) Abruzzo, 374 Ill. App. 3d at 749. In Abruzzo I,
defendant argued Antonacci was distinguishable. The Antonacci court had “decided to remand
the case without ruling on the *** motion to dismiss, finding that the record was inadequate to
determine whether the paramedics had reached a correct diagnosis which would then subject
the [defendant] to liability for subsequent negligent treatment.” Abruzzo, 374 Ill. App. 3d at
751 (citing Antonacci, 335 Ill. App. 3d at 31). Defendant contended to this court that “unlike in
Antonacci, it is absolutely clear that the EMTs and paramedics who responded to Lawrence’s
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911 call provided absolutely no treatment for Joseph and did not reach a diagnosis.”
(Emphases added.) Abruzzo, 374 Ill. App. 3d at 751.
¶ 50 The admission did not give the jury a false picture of defendant’s position on whether or
not it was guilty of wilful and wanton conduct. The statement read to the jury was not a legal
conclusion because it did not admit that defendant’s paramedics’ conduct was wilful or
wanton. The admission only stated defendant’s position on what its paramedics actually did or
did not do. Therefore, Pritza v. Village of Lansing, 405 Ill. App. 3d 634 (2010), is inapposite.
In that case, the court held that “the pleader is not bound by admissions regarding conclusions
of law, since the trial court must determine the legal effect of the facts adduced.” Pritza, 405
Ill. App. 3d at 645. In this case, we are not dealing with a purported conclusion of law in
defendant’s pleading. Rather, defendant’s paramedics’ conduct or lack thereof is a question of
fact. It remained for the jury to decide whether what the paramedics did or did not do was
wilful and wanton conduct. See Pritza, 405 Ill. App. 3d at 645 (“our resolution of the instant
case turns on whether defendants were insurers ab initio, which is also a question of law not
resolved by any factual admission”).
¶ 51 We do not hold that accepting the allegations of the complaint as true in pleadings on a
motion to dismiss admits those allegations for purposes of trial. Our holding does not convert
defendant’s immunity defense into an admission of liability. Our holding is limited to the facts
of this case, where defendant affirmatively stated its position on the facts of the case, rather
than limiting itself to the allegations in the complaint. Our holding will not have a chilling
effect on similar motions in the future. We cannot say every statement of fact in a pleading on
a motion which must accept certain facts as true is made only for purposes of the motion and
cannot constitute an admission. See Prentice, 271 Ill. App. 3d at 513 (finding judicial
admission based on unequivocal assertion in motion to dismiss and reply memorandum in
support of motion to dismiss regarding whether a contract existed in a breach of contract case).
In this case, defendant went beyond stating the facts as pled in the complaint in support of its
motion to dismiss. Defendant made affirmative statements of fact in its reply brief regarding
“the record in this case” and its paramedics’ conduct to avoid litigating the issue of its
immunity in the event the court determined the facts alleged in the complaint proved
insufficient on their own to support the motion.
¶ 52 The passage in defendant’s reply brief that we find contains the affirmative statement of
fact is not the same passage actually read to the jury. That fact does not change the outcome,
however, because the pleading is to be construed as a whole to determine whether it contains
an admission of fact, and the substance of the admission transmitted to the jury would have
been no different had plaintiff been allowed to read the passage which constitutes the actual
admission.
¶ 53 The timing of the reading of defendant’s admission did not deny defendant a fair trial.
Defendant argues that the timing of the reading of the admission exacerbated the prejudice to
defendant, undermining the credibility of its witnesses and its attorneys. Even admissible
evidence may be excluded “if the prejudicial effect of the evidence substantially outweighs its
probative value. [Citation.] Prejudice is undue tendency to suggest a decision on an improper
basis.” (Internal quotation marks omitted.) Hatchett v. W2X, Inc., 2013 IL App (1st) 121758,
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¶ 20. “It is the province of the jury to resolve conflicts in the evidence, to pass upon the
credibility of the witnesses, and to decide the weight to be given to the witnesses’ testimony.”
Serrano, 406 Ill. App. 3d at 910. The only basis defendant suggests on which the jury may
have improperly decided the case is the jury’s belief that defendant changed its story to suit its
audience. Defendant’s assertion is pure speculation as to the improper effect of the evidence on
the jury.
¶ 54 Regardless, defendant did not suffer unfair prejudice from reading the admission to the
jury prior to closing arguments. Of note on this issue is Franzen’s response to the specific
question “Did you perform an assessment?” to which he answered: “The best I can tell you is I
said observed [in a deposition]–assisting in primary–I don’t know. I observed all these things,
so after looking at it over time I feel like I did do a primary assessment by my observations
found at the scene.” Franzen’s testimony implies hindsight in forming his belief, which the
jury could construe as a change in position on the subject matter of defendant’s admission.
Plaintiff also impeached Peterson with his deposition testimony in which he was asked “You
made a determination not to provide medical care or assistance to Joey Furio, correct?” to
which he responded at the deposition “Yes,” but at trial he testified that was not correct. At
Peterson’s deposition, he testified that he did not assess Joseph. At trial, he testified that he
“did a visual assessment while I was looking at the child.”
¶ 55 The jury heard conflicting evidence throughout trial as to whether defendant’s paramedics
provided medical care of any kind to Joseph in the early hours of October 31, 2004, “including
evaluation, assessment, diagnosis, treatment, or documentation.” The jury heard testimony
from the paramedics, their battalion chief, and two experts as to the care, if any, provided to
Joseph. Defendant’s consistency in its explanation of the events on the night at issue, or lack
thereof, was already before the jury before the trial court admitted the statement in defendant’s
reply brief. The trial court permitted defendant to explain the admission to the jury. Defense
counsel informed the jury that the statement it heard was drafted by the attorneys for the City
of Park Ridge. “We are not at liberty to disturb a verdict of the jury in the absence of conviction
on the part of this court that the verdict is against the manifest weight of the evidence.
[Citation.] The object of review by this court is not to determine whether the record is
completely free of error, but to ascertain whether upon the trial there has been such error as
might prejudice the rights of a party.” Kosowski v. McDonald Elevator Co., 33 Ill. App. 2d
386, 396-97 (1962). Under the facts of this case, the claimed error of the timing of the reading
of the admission, if it were error, would not warrant a new trial.
¶ 56 The trial court properly admitted the admission and defendant was not prejudiced. Nor can
we say that our ruling will have a chilling effect on similar motions. Our judgment is based on
the particular facts of this case. Accordingly, we hold that the trial court did not abuse its
discretion in admitting the statement as evidence. McLean, 387 Ill. App. 3d at 529.
¶ 57 2. Special Interrogatories
¶ 58 Defendant’s next argument is that this cause must be remanded for a new trial because the
trial court erred by refusing to submit two proposed special interrogatories to the jury.
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“Special interrogatories are governed by section 2-1108 of the Code of Civil
Procedure [citation]:
‘Unless the nature of the case requires otherwise, the jury shall render a general
verdict. The jury may be required by the court, and must be required on request of
any party, to find specially upon any material question or questions of fact
submitted to the jury in writing.’
Special interrogatories are meant to ‘test[ ] the general verdict against the jury’s
determination as to one or more specific issues of ultimate fact.’ [Citation.] Under
section 2-1108, an answer to a special interrogatory controls the judgment when it is
inconsistent with the general verdict:
***
We review de novo as a question of law a trial court’s decision on whether to give a
special interrogatory that has been requested by a party. [Citations.]” Goranowski v.
Northeast Illinois Regional Commuter R.R. Corp., 2013 IL App (1st) 121050, ¶ 4.
¶ 59 A. Proximate Cause Special Interrogatory
¶ 60 Defendant claims that it was entitled to a special interrogatory to test a jury verdict against
it to determine if the presence of opiates in Joey’s bloodstream was the “sole proximate cause”
of his death. Defendant notes that the trial court instructed the jury that its verdict should be for
the defendant if the jury decides “that the sole proximate cause of injury to the plaintiff was
something other than the conduct of the defendant.” Illinois Pattern Jury Instructions, Civil,
No. 12.05 (3d ed. 1994). Defendant therefore argues that its special interrogatory on this
subject should have been given. We disagree.
¶ 61 In our view, the trial court properly refused defendant’s sole proximate cause
interrogatory, for several reasons. First and foremost, defendant did not claim at trial that the
presence of opiates in Joey’s bloodstream was the sole, or only, cause of his death.
Specifically, defendant filed an affirmative defense alleging that Joey’s father was
contributorily negligent in failing to provide a complete medical history, which would have
informed them of Joey’s use of narcotics. As a result, defendant claims that its paramedics
would have treated Joey and transported him to the hospital had they been properly informed
by his father of Joey’s history of drug consumption. Thus, defendant claimed that the death
was caused by Joey’s consumption of narcotics and/or his father’s contributory negligence.
Accordingly, defendant’s position at trial, which identified two causes of Joey’s death, does
not satisfy any interpretation of a “sole proximate cause” argument.
¶ 62 Our supreme court had an opportunity to examine this very issue in Holton v. Memorial
Hospital, 176 Ill. 2d 95 (1997). In Holton, the defendant hospital in a medical malpractice trial
sought to prove that there was no medical negligence involved in causing the plaintiff’s
injuries, which included paraplegia and related medical problems, occasioned as a result of
treatment for what was mistakenly believed to be a cancerous tumor. Id. at 99-104. In addition
to that claim, the defendant sought to blame the damages on the conduct of several physicians
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who had settled claims against them and were not party to the action at trial. Id. at 99, 132-34.
The supreme court brushed this argument aside thusly:
“A defendant is not automatically entitled to a sole proximate cause instruction
wherever there is evidence that there may have been more than one, or concurrent,
causes of an injury or where more than one person may have been negligent. Instead, a
sole proximate cause instruction is not appropriate unless there is evidence that the sole
proximate cause (not ‘a’ proximate cause) of a plaintiff’s injury is conduct of another
person or condition.” (Emphasis in original.) Id. at 134.
¶ 63 Based on this precedent, it is clear that the facts of this case did not warrant the giving of a
sole proximate cause instruction. Ergo, defendant’s sole proximate cause special interrogatory
was inappropriate and the trial court rightly refused to tender the interrogatory to the jury.
¶ 64 B. Wilful and Wanton Interrogatory
¶ 65 Defendant also argues that the trial court committed reversible error when it refused to give
its second special interrogatory, which read as follows: “Was the City of Park Ridge wilful and
wanton showing utter indifference to or conscious disregard for Joseph Furio in its response to
the 1:06 a.m. 9-1-1 call?” Defendant argues that the trial court should have given the
interrogatory because the question challenged the ultimate issue of fact of whether Park
Ridge’s conduct was wilful and wanton. Defendant argues, even though it has no burden to
prove jury confusion to support its request for a special interrogatory under section 2-1108 of
the Code, the jury may have confused the negligence standard with the standard for wilful and
wanton conduct, because several instructions referenced the negligence standard in connection
with defendant’s claim of contributory negligence against Larry Furio.
¶ 66 Plaintiff responds that “[b]y phrasing the special interrogatory as they did, Defendant
focused the jury’s attention on the response to the call rather than on the failure to assess or
transport after the paramedics responded.” Because plaintiff asserted that defendant was wilful
and wanton in its conduct after arriving at the Furio home, plaintiff argues that an interrogatory
asking about defendant’s “response” does not cover plaintiff’s allegations or the issues upon
which the jury was called to render a decision and, therefore, is not in proper form. See
Simmons v. Garces, 198 Ill. 2d 541, 555-56 (2002) (“A special interrogatory is in proper form
if (1) it relates to an ultimate issue of fact upon which the rights of the parties depend, and (2)
an answer responsive thereto is inconsistent with some general verdict that might be returned.
[Citations.] *** If a special interrogatory does not cover all the issues submitted to the jury and
a ‘reasonable hypothesis’ exists that allows the special finding to be construed consistently
with the general verdict, they are not ‘absolutely irreconcilable’ and the special finding will not
control.”); Jablonski v. Ford Motor Co., 398 Ill. App. 3d 222, 274 (2010) (“in order to be in
proper form, the interrogatory must consist of a single question that, standing alone, would
control the verdict on all the theories of negligence”), rev’d on other grounds, Jablonski v.
Ford Motor Co., 2011 IL 110096, ¶ 128 (“In light of our holding, we need not address ***
whether the court erred in rejecting Ford’s special interrogatories.”).
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¶ 67 The trial court properly refuses a special interrogatory where a reasonable hypotheses
exists that an answer to the interrogatory would not be inconsistent with a general verdict.
Jablonski, 398 Ill. App. 3d at 276. The determination of whether a special interrogatory is in
proper form must be made in the context of the parties’ claims and the instructions given by the
court. Id. “Special interrogatories are to be read in the context of the court’s other instructions,
which set forth the claims of the parties, to determine how the interrogatories might be
interpreted by the jury and whether the jury might be confused.” Id. (citing Simmons, 198 Ill.
2d at 564). Special interrogatories require careful scrutiny to be certain that the jury could not
interpret an interrogatory so that an answer would not be “ ‘absolutely irreconcilable’ with a
contrary general verdict.” Id. at 274.
¶ 68 In this case, the trial court instructed the jury, in part, as follows:
“The plaintiff’s complaint consists of two counts: The issues to be decided by you
under Count I of the complaint are as follows:
The Plaintiff on behalf of Joseph Furio’s next of kin claim they sustained damages
and that the defendant was wilful and wanton in one or more of the following respects:
1. Defendant failed to assess or evaluate Joseph Furio on October 31, 2004 at
1:06 a.m.; or
2. Defendant failed to transport Joseph Furio to the hospital on October 31,
2004 at 1:06 a.m.
The plaintiff further claims that one or more of the foregoing was a proximate cause
of Joseph Furio’s death.”
¶ 69 The instruction as to count II stated the same claims on behalf of the estate of Joseph Furio.
A later instruction informed the jury that plaintiff had the burden to prove that “defendant acted
or failed to act in one of the ways claimed by the plaintiff as stated to you in these instructions
and that in so acting, or failing to act, the defendant was wilful and wanton.” (Emphasis
added.)
¶ 70 “If a special interrogatory covers only one of the plaintiff’s two theories of negligence, it is
not in proper form since an answer contrary to a general verdict would not be inconsistent with
the remaining theory of negligence.” Jablonski, 398 Ill. App. 3d at 274. In Jablonski, each of
the special interrogatories submitted by the defendant was designed to test the jury’s verdict on
either the issue of negligence or the issue of wilful and wanton conduct. Id. The court held that
the trial court correctly refused to submit the interrogatories to the jury in part because the
interrogatories were “too vague and ambiguous in that they do not explicitly cover all the
plaintiffs’ allegations of negligence.” Id. at 275. The interrogatory asked, “Did [the defendant]
fail to use ordinary care for the safety of [the plaintiffs]?” (Internal quotation marks omitted.)
Id. The Jablonski court found that “the question that needed to be asked was, ‘Did [the
defendant] fail to use ordinary care for the safety of [the plaintiffs] in any of the ways claimed
by [the plaintiffs]?’ ” (Emphasis in original.) Id. The court held that “[t]he interrogatories ***
are simply not sufficiently specific in this case to cover all the allegations of negligence.
Consequently, a reasonable hypothesis exists that an answer to the interrogatories would not be
inconsistent with a general verdict. Accordingly, the trial court was correct in refusing [the]
special interrogatories.” Id. at 276.
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¶ 71 “Particular attention must be given to the wording of a special interrogatory seeking to test
a general verdict on the issue of negligence when the plaintiff has alleged multiple theories of
negligence.” Jablonski, 398 Ill. App. 3d at 273-74. In this case, as in Jablonski, the trial court
instructed the jury to find in favor of plaintiff if plaintiff proved defendant was “guilty of wilful
and wanton conduct ‘in one of the ways’ claimed by the plaintiff[ ].” Id. at 274. The expression
“response” in defendant’s proposed special interrogatory could be understood by the jury to
include less than all the theories of wilful and wanton conduct asserted by plaintiff. Therefore,
the interrogatory was not in proper form and appropriately was not given. Id. We do not
believe, in the context of all of the instructions, that the jury would have believed that
“response” in the special interrogatory referred to defendant’s response time. Nonetheless, the
jury could have answered defendant’s proposed special interrogatory “no” on the question of
whether defendant was wilful and wanton in failing to, for example, assess or evaluate Joseph,
even though it had found that defendant was wilful and wanton in failing to transport Joseph to
the hospital. We note that such findings by the jury are not mutually exclusive based on the
testimony of plaintiff’s expert. Dr. Tan testified that had the paramedics simply learned “that
the events leading up to the 911 call included his father doing mouth-to-mouth and CPR,”
“[t]hat alone would have alerted the paramedic to the fact that there was a medical emergency
here that requires transport to a hospital.” Plaintiff’s expert also opined that regardless of the
reason Joseph was taken to the hospital, had he been, he would have survived.
¶ 72 A reasonable hypothesis exists that an answer to the interrogatory would not be
inconsistent with a general verdict. Accordingly, the trial court was correct in refusing the
wilful and wanton special interrogatory.
¶ 73 3. Judgment Notwithstanding the Verdict
¶ 74 Defendant’s posttrial motion argued that defendant is entitled to a judgment
notwithstanding the verdict (judgment n.o.v.) because the conduct of the paramedics was not
wilful and wanton and, therefore, defendant is immune from liability. Defendant argues the
trial court should have granted judgment n.o.v. in its favor because the jury’s finding that its
paramedics acted wilfully and wantonly under the EMS Act is against the manifest weight of
the evidence; therefore, it is entitled to immunity. Defendant argues that the paramedics
observed an oriented Joseph speaking coherently and not having an asthma attack. Defendant
argues the evidence does not support finding that it was wilful and wanton or that the
paramedics recklessly or carelessly failed to discover impending danger. Amicus curiae also
argue that the evidence was not sufficient to present the question of whether defendant’s
paramedics’ conduct was wilful and wanton to the jury. Amicus curiae argue that the
paramedics did not have sufficient knowledge to have acted wilfully or wantonly.
“[B]oth the legislature and the supreme court have defined reckless wilful and wanton
conduct as conduct committed with ‘utter indifference’ to or ‘conscious disregard’ for
the safety of others. [Citations.] The supreme court has also described the required
mental state as a ‘reckless disregard’ for the safety of others. [Citation.] Further, ill will
is not a necessary element of a wanton act [i.e., reckless wilful and wanton conduct]. To
constitute an act wanton, the party doing the act or failing to act must be conscious of
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his conduct, and, though having no intent to injure, must be conscious, from his
knowledge of the surrounding circumstances and existing conditions, that his conduct
will naturally and probably result in injury.” (Internal quotation marks omitted.)
Kirwan v. Lincolnshire-Riverwoods Fire Protection District, 349 Ill. App. 3d 150, 155
(2004).
¶ 75 “A trial court’s ruling on a motion for judgment notwithstanding the verdict is subject to a
de novo standard of review. [Citation.] A motion for judgment notwithstanding the verdict
should only be granted in those limited cases where all of the evidence and the inferences there
from, viewed in the light most favorable to the nonmoving party, so overwhelmingly favor the
movant that no contrary verdict based on that evidence could ever stand.” Thornton v. Garcini,
382 Ill. App. 3d 813, 817 (2008). “In other words, a motion for judgment n.o.v. presents a
question of law as to whether, when all of the evidence is considered, together with all
reasonable inferences from it in its aspect most favorable to the plaintiffs, there is a total failure
or lack of evidence to prove any necessary element of the [plaintiff’s] case. [Citation.]”
(Internal quotation marks omitted.) Lawlor v. North American Corp. of Illinois, 2012 IL
112530, ¶ 37.
¶ 76 We do not find that there was a “total failure or lack of evidence to prove” that defendant’s
paramedics’ conduct was wilful and wanton. “It is the province of the jury to resolve conflicts
in the evidence, to pass upon the credibility of the witnesses, and to decide the weight to be
given to the witnesses’ testimony.” Serrano, 406 Ill. App. 3d at 910. “When ruling upon *** a
motion [for judgment n.o.v.], the court does not weigh the evidence or make determinations of
credibility and must not substitute its judgment for that of the jury merely because there are
other inferences or conclusions that the jury could have drawn or because there are other
results that the court believes are more reasonable.” Thornton, 382 Ill. App. 3d at 817.
¶ 77 The trial court instructed the jury that wilful and wanton conduct is “a course of action
which shows an utter indifference to or conscious disregard for the safety of others” and that
“[i]t was the duty of the defendant *** to refrain from wilful and wanton conduct which would
endanger the safety of the decedent.” Despite defendant’s paramedics’ testimony that Joseph
was not a patient in need of further evaluation or treatment, the jury heard sufficient evidence
from which it could reasonably conclude that the paramedics’ conduct showed an utter
indifference to or conscious disregard for Joseph’s safety. Amicus curiae argue that the
“threshold to wilful and wanton conduct is knowledge, without which there never can be wilful
and wanton conduct.” The jury heard evidence from which it could reasonably conclude that
despite the fact Joseph was able to speak to his father and did not appear to be suffering an
asthma attack, defendant’s paramedics had sufficient knowledge such that their failure to act
differently was both deliberate and in utter indifference to or in conscious disregard of
Joseph’s safety.
¶ 78 Dr. Koenigsberg testified that if paramedics know that CPR had to be performed to get
someone to wake up, that would require them to recognize him as a patient and have him
evaluated at the hospital. If paramedics knew Joseph was making gurgling noises, they should
have done an assessment to evaluate his airway, more than just observation. If paramedics
knew of the use of illegal or prescription drugs, that would require the paramedics to treat him
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as a patient and transport him to the hospital. Dr. Koenigsberg discounted Koziel’s report,
which contained statements that the paramedics told Koziel the next day that the patient’s
father met them at the door and said that his son had a history of asthma and was not breathing,
because that is not what any of the other witnesses–the paramedics and police officers on the
scene–described. But, Koenigsberg testified that if Larry Furio did, as Larry testified in his
deposition, say words similar to “I don’t know if it’s the drugs, the prescriptions or the asthma”
as he was walking the paramedics back to his son’s room, then that would alert the paramedics
to Joseph’s being a patient requiring some further query and examination. Koenigsberg
testified that if, when Joseph sat up, he said “It’s these pills, Dad, they make me sleepy,” that
would require the paramedics to consider Joseph a patient and to do a patient assessment.
¶ 79 Plaintiff’s expert Guy Haskell testified that, based on that statement by Joseph alone, “that
would be the point that it will be determined definitely that this patient needs to be transported
to the hospital. Because if there’s any indication that medication the patient may have taken
may have caused him to be sleepy, the worst thing you can do is leave a patient unseen in that
situation because they probably become [sic] sleepy again. And if somebody takes enough of
something, they can sleep to the point where they’re not breathing. And in fact that’s what
eventually occurred here.”
¶ 80 Larry testified he told paramedics “I don’t know what’s wrong with him, I just know he
stopped breathing.” Larry Furio testified that when paramedics arrived and he was taking them
to Joseph’s room, he told them he did not know what was wrong with his son, he did not know
if it was his asthma or medications he was on, or drugs. The jury also heard evidence from
which it could infer that the paramedics knew Larry Furio had attempted CPR.
¶ 81 Koziel testified that a reasonably well-trained paramedic arriving at the scene of a call for a
child who was unconscious but had regained consciousness would check the child’s pulse and
take a Glasgow Coma Scale. Koziel also testified that in his judgment as a reasonably trained
paramedic responding to a report of a 15-year-old, unconscious and not breathing, who was
conscious when he arrived, he would ask more than one question, would want to know what
happened before he arrived, would want to take vitals, and possibly might want to determine
the oxygen level in his blood. Koziel agreed that a well-trained paramedic who learned of a
history of asthma would want to determine what medications a child patient was taking, that it
would be important to determine how long a patient had not been breathing, and how long a
patient had been unconscious, even if the patient had regained consciousness by the time the
paramedic arrived on the scene. Koziel agreed that when a paramedic is called to a scene
because a patient was unconscious and not breathing, but now the patient is groggy, that patient
would require “some additional assessment.” Koziel testified that based on his investigation
into the response to the first 9-1-1 call, Peterson did not perform any additional assessment.
¶ 82 Defendant argues that absent knowledge of Joseph’s alleged ingestion of cocaine and
opiates, the paramedics could not be guilty of wilful and wanton conduct. Amicus curiae argue
that with no information about Joseph’s possible ingestion of drugs, the paramedics could not
possibly have foreseen Joseph’s death due to an overdose. Both cite Choice v. YMCA of
McHenry County, 2012 IL App (1st) 102877, in support of the proposition that there can be no
wilful and wanton conduct absent knowledge of the danger. In Choice, three students attending
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a one-week school ethical leadership program drowned when they surreptitiously left their
dormitory to ride paddleboats on the nearby Fox River. Id. ¶ 1. Defendant’s argument based on
Choice fails for several reasons. First, Choice is inapposite because its discussion of the
knowledge the defendant must be alleged to have possessed to state a cause of action for wilful
and wanton conduct was based exclusively on the standard as applied to cases involving
misconduct by students where a teacher was alleged to have left students unsupervised. See
Choice, 2012 IL App (1st) 102877, ¶ 72 (“Applying this standard to cases involving
misconduct by students, Illinois courts have held that a teacher’s mere act of leaving students
unsupervised, without more, is not sufficient to establish wilful and wanton conduct.”). “[I]n
the cases where Illinois courts have found a triable issue of material fact with respect to wilful
and wanton misconduct premised upon a lack of proper supervision, it has been because
plaintiffs have alleged that defendants knew or should have known of a specific, foreseeable,
and probable danger arising from their lack of supervision.” Id. ¶ 77.
¶ 83 More importantly, in Choice, the court recognized that wilful and wanton conduct is a
course of action which, if not intentional, shows an utter indifference to or conscious disregard
for the safety of others. Choice, 2012 IL App (1st) 102877, ¶ 71. Our supreme court has
explained that wilful and wanton conduct “requires a conscious choice of a course of action,
either with knowledge of the serious danger to others involved in it or with knowledge of facts
which would disclose this danger to any reasonable man.” (Emphases added.) (Internal
quotation marks omitted.) Choice, 2012 IL App (1st) 102877, ¶ 71 (quoting Burke v. 12
Rothschild’s Liquor Mart, Inc., 148 Ill. 2d 429, 449 (1992)). Thus, immunity will be denied
where a party makes a conscious choice of a course of action with knowledge of facts which
would alert a reasonable person to a danger to the safety of others from that course of action.
¶ 84 Defendant’s argument about “knowledge of the danger” in their reply implies that absent
knowledge of Joseph’s ingestion of drugs, the paramedics’ conduct did not show an utter
indifference to or conscious disregard of Joseph’s safety. The jury heard evidence to the
contrary. In this case, the jury heard evidence that the paramedics knew facts that would have
given a reasonable paramedic knowledge of the danger to Joseph’s safety from the
paramedics’ chosen course of action to (in their estimation) visually assess Joseph then leave
without asking any questions beyond “Are you okay?” The evidence does not so
overwhelmingly favor defendant that the verdict could never stand. Although reasonable
minds may differ as to whether the paramedics showed an utter disregard for Joseph’s safety
when there is no dispute that an emergency response was requested for a child who was not
breathing but when paramedics arrived, he was sitting up and able to speak, “[t]he standard for
entry of judgment n.o.v. is a high one and is not appropriate if reasonable minds might differ as
to inferences or conclusions to be drawn from the facts presented. [Citation.]” (Internal
quotation marks omitted.) Lawlor, 2012 IL 112530, ¶ 37. Defendant has failed to reach this
high burden. The trial court’s denial of defendant’s motion for judgment n.o.v. is affirmed.
¶ 85 4. Damages
¶ 86 Finally, we deny defendant’s request to remand for a new trial on the issue of damages and
request for a remittitur on the grounds the damages award is not supported by the evidence.
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The jury awarded damages totaling $5,187,500 for (1) loss of money, goods and services
($1,556,250), (2) loss of society ($2,593,750), (3) Joseph’s loss of a normal life ($778,125),
and (4) Joseph’s pain and suffering ($259,375). Defendant argues that for three of the damages
categories, given the evidence presented at trial, the award bears no relationship to the loss
suffered. Specifically, defendant argues that plaintiff presented no evidence regarding any pain
and suffering Joseph experienced. Plaintiff responds its expert’s testimony as to exactly how a
person dies from an opiate overdose is sufficient to support the jury’s award for pain and
suffering. Defendant argues there is no evidence to support an award of a loss of normal life.
Plaintiff argues that the efforts required to attempt to resuscitate Joseph after he was
transported to the hospital, and even the brief time he spent in intensive care on life support,
provide a sufficient basis for the jury’s award for loss of normal life. Finally, defendant argues
that plaintiff did not present sufficient evidence to support the jury’s award for loss of money,
benefits, goods and services because plaintiff did not present evidence of Joseph’s likely
ability to earn a living. Plaintiff argues that the evidence of Joseph’s services to his father in
assisting him coach baseball, which Joseph played avidly and well, supports the jury’s award
for lost value of benefits, goods and services.
“An award of damages will be deemed excessive if it falls outside the range of fair
and reasonable compensation or results from passion or prejudice, or if it is so large
that it shocks the judicial conscience. [Citation.] *** The measure of damages is a
question of fact to be decided by the trier of fact, and a reviewing court should not
substitute its judgment for that of the trier of fact. [Citation.] A reviewing court will
order a new trial on damages only if the amount awarded bears no reasonable
relationship to the loss suffered by plaintiff or is unsupported by the manifest weight of
the evidence and the opposite conclusion is clearly evident. [Citation.]” (Internal
quotation marks omitted.) Calloway v. Bovis Lend Lease, Inc., 2013 Ill. App (1st)
112746, ¶ 111.
¶ 87 Defendant is not entitled to a remittitur of the jury’s damages award for Joseph’s pain and
suffering. Plaintiff presented evidence of what Joseph experienced as the opiate overdose took
effect. Dr. Tan testified that the effect of opiates is to slow breathing, which then becomes “just
intermittent gasping. And then, finally, they quit breathing altogether.” It was for the jury to
determine whether and to what degree Joseph suffered any pain as a result of those
experiences. See Cooper v. Chicago Transit Authority, 153 Ill. App. 3d 511, 523 (1987) (jury
allowed to weigh conflicting testimony to determine whether decedent consciously
experienced pain). Evidence to support an award for pain and suffering need not be extensive.
Estate of Oglesby v. Berg, 408 Ill. App. 3d 655, 663 (2011) (“testimony, while not extensive,
*** supported an award of damages for *** loss of a normal life, as well as for her pain and
suffering”). Moreover, the case law emphasizes great deference to the jury’s award decision.
Hulbert v. York, 319 Ill. App. 3d 54, 58 (2001). In light of these principles, we cannot say that
the jury’s award is against the manifest weight of the evidence.
¶ 88 Nor is the jury’s damages award for Joseph’s loss of a normal life against the manifest
weight of the evidence. The trial court instructed the jury that loss of a normal life means “the
temporary or permanent diminished ability to enjoy life.” Defendant concedes that Joseph
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experienced a loss of a normal life between approximately 1:30 a.m. on October 31, 2004, and
5:50 p.m. on November 1, 2004, when he was pronounced dead. The court also instructed the
jury that in fixing damages for loss of a normal life the jury was to determine the amount of
money that would compensate the estate for the damages proved by the evidence “during the
period between the time of the decedent’s injuries and the time of his death.” There is no
dispute that Joseph suffered a loss of a normal life, and we may presume that the jury awarded
those damages only for the period during which defendant agrees Joseph suffered a loss of a
normal life (Aguirre v. City of Chicago, 382 Ill. App. 3d 89, 100 (2008) (“In Illinois, the jury is
presumed to have followed its instructions.”)). Thus, the only question is whether, based on the
amount of the award, we may usurp the role of the jury in assessing damages. Carroll v.
Preston Trucking Co., 349 Ill. App. 3d 562, 572 (2004) (“[J]urors, when considering damages,
use their combined wisdom and experience to reach fair and reasonable judgments. We are
neither trained nor equipped to second-guess those judgments about the pain and suffering and
familial losses incurred by other human beings. To pretend otherwise would be sheer hubris.”
(Internal quotation marks omitted.) (quoting Epping v. Commonwealth Edison Co., 315 Ill.
App. 3d 1069, 1073 (2000))).
¶ 89 “There is no mathematical formula for deciding whether an award is fair and reasonable.
Factors that may be considered are: the extent of the injuries suffered and permanency of the
plaintiff’s condition, the plaintiff’s age, the possibility of future deterioration, the extent of the
plaintiff’s medical expenses, and the restrictions imposed on the plaintiff by the injuries.”
Epping, 315 Ill. App. 3d at 1072. The jury’s award for loss of a normal life was fair and
reasonable. During the period Joseph remained alive, his ability to pursue the pleasurable
aspects of life was completely erased. Joseph was a young boy with an active lifestyle, friends,
and a good relationship with family. He could enjoy none of those things, even if for a brief
period in time. “[A] damages award for a personal injury must be examined in the light of the
particular injury involved, with humble deference to the discretion of the jury and the judgment
of the trial court.” (Internal quotation marks omitted.) Epping, 315 Ill. App. 3d at 1073. In light
of the complete loss of normal life Joseph suffered and the deference we must accord the jury
in these matters, we cannot say defendant is entitled to a remittitur or a new trial on this
element of damages.
¶ 90 Finally, the trial court instructed the jury that in determining pecuniary loss, the jury could
consider what the evidence showed concerning what benefits, goods, and services the decedent
customarily contributed in the past and was likely to have contributed in the future. The trial
court also instructed the jury regarding the pecuniary loss proved by the evidence as follows:
“Where a decedent leaves lineal next of kin, the law recognizes a presumption that
the lineal next of kin have sustained some substantial pecuniary loss by reason of the
loss of the child’s society. The weight to be given this presumption is for you to decide
from the evidence in this case.”
¶ 91 The amount awarded does bear a reasonable relationship to the loss suffered.
“[L]ineal kinsmen are presumed, by reason of that relationship alone, to suffer
substantial pecuniary loss from the wrongful death of a decedent, and actual loss need
not be proved. [Citation.] Thus, parents are presumed to suffer substantial pecuniary
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loss from the wrongful death of their minor child. [Citation.] *** The court noted that
in cases where the deceased is a minor, pecuniary damages include the parents’
reasonable expectation of benefits from the continuation of the child’s life in addition
to the presumption of substantial loss. The *** court qualified this acknowledgment
with the fact that this latter presumption is not conclusive and that courts invoking it
have buttressed it with supporting evidence of the decedent’s good health, industrious
habits, and potential longevity.” Magnone v. Chicago & North Western Transportation
Co., 126 Ill. App. 3d 170, 179 (1984).
¶ 92 The jury could presume that Joseph’s parents would have both benefitted from the
continuation of Joseph’s life, in addition to having suffered a “substantial” loss from his death.
The jury’s pecuniary damages award in this case for the loss of a 15-year-old child is not
shocking to the judicial conscience, and defendant has not pointed to evidence of passion or
prejudice by the jury other than the award itself. Therefore, we will not substitute our judgment
for that of the jury as to the value of that loss. Simmons v. University of Chicago Hospitals &
Clinics, 247 Ill. App. 3d 177, 191 (1993) (“Our supreme court has repeatedly found that the
amount of damages to be assessed under the circumstances of any given case is a matter within
the discretion of the jury. [Citations.] The jury’s assessment of damages will not be set aside on
review unless it was the result of passion or prejudice, falls outside the limits of fair and
reasonable compensation, or shocks the judicial conscience.” (citing Baird v. Chicago
Burlington & Quincy R.R. Co., 63 Ill. 2d 463 (1976), and Lau v. West Towns Bus Co., 16 Ill. 2d
442 (1959))).
¶ 93 Defendant’s request for remittitur or for a new trial on each of the foregoing elements of
damages is, therefore, denied.
¶ 94 CONCLUSION
¶ 95 For all of the foregoing reasons, the trial court’s judgment is affirmed.
¶ 96 Affirmed.
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