Wright-Young v. Chicago State University , 2019 IL App (1st) 181073 ( 2020 )

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Wright-Young v. Chicago State University, 2019 IL App (1st) 181073
Appellate Court PAMELA WRIGHT-YOUNG, Independent Administrator of the
Caption Estate of Tyrone Lawson, Deceased, Plaintiff-Appellee, v.
CHICAGO STATE UNIVERSITY; RONNIE WATSON,
Individually and as Chief of Police at Chicago State University; and
THE BOARD OF EDUCATION OF THE CITY OF CHICAGO,
Defendants (The Board of Education of the City of Chicago,
Defendant-Appellant).
District & No. First District, Sixth Division
No. 1-18-1073
Filed September 27, 2019
Decision Under Appeal from the Circuit Court of Cook County, No. 14-L-488; the
Review Hon. Thomas J. Lipscomb, Judge, presiding.
Judgment Affirmed.
Counsel on Joshua G. Vincent, Steven M. Puiszis, and Carson R. Griffis, of
Appeal Hinshaw & Culbertson LLP, of Chicago, for appellant.
Michael W. Rathsack, Martin S. Dolan, Karen Munoz, and John M.
Carmody, all of Chicago, for appellee.
Panel PRESIDING JUSTICE MIKVA delivered the judgment of the court,
with opinion.
Justices Pierce and Walker concurred in the judgment and opinion.
OPINION
¶1 Tyrone Lawson, the 17-year-old son of plaintiff Pamela Wright-Young, was fatally shot
outside a high school basketball game. Ms. Wright-Young, as the administrator of her son’s
estate, brought this wrongful death and survival action against the Board of Education of the
City of Chicago (Board) and the chief of police and student services for Chicago State
University (CSU), whose Jones Convocation Center (JCC arena) was the venue where the
basketball game was held. Throughout the pendency of the case, the trial court rejected
various statutory immunities asserted by the Board. The case was tried, and a
jury—concluding that the Board was liable, but Mr. Watson was not—awarded Ms.
Wright-Young damages in the amount of $3.5 million. The Board now appeals.
¶2 We conclude that the trial court erroneously rejected the Board’s claim of absolute
immunity with respect to most of the theories of liability presented at trial, as those theories
all related to the Board’s failure to provide adequate police protection services. Absolute
immunity did not apply, however, to Ms. Wright-Young’s theory that the Board failed to
communicate prior acts of violence at Board-sponsored sporting events to CSU, which was
directly responsible for the parking lot where Tyrone was killed. Because this remaining
claim is not defeated by any of the Board’s other arguments, we affirm the jury’s verdict
under the general verdict rule.
¶3 I. BACKGROUND
¶4 A. Ms. Wright-Young’s Allegations
¶5 In her complaint, Ms. Wright-Young alleged that the basketball game held on January 16,
2013, between Morgan Park High School (Morgan Park) and Simeon High School (Simeon)
was a “highly publicized” game between two “bitter rivals” that was expected to be
especially well-attended because Simeon’s star player was considered a top college recruit.
Due to a capacity crowd, a number of individuals, including Ms. Wright-Young’s son
Tyrone, were unable to purchase tickets and congregated outside of the arena during the
game.
¶6 Ms. Wright-Young alleged that “prior known violence between the rival schools,”
including “an incident involving a stabbing at a football game *** in September of 2012
where three students were injured,” created a “strong foreseeability of gang violence
underpinning the event.” According to Ms. Wright-Young, the Board chose CSU as a neutral
location to host the game, “advertised and invited students from both [high schools], among
others, and created the illusion they would be providing adequate security for all invitees.”
¶7 Ms. Wright-Young further alleged that, immediately following the game, there was “a
panic situation,” with various fights breaking out as spectators began to spill out into the
front and back parking lots of the JCC arena. According to Ms. Wright-Young, during this
chaos, two men approached Tyrone and some friends he was standing with and opened fire.
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Tyrone attempted to flee but was shot multiple times and died of his injuries. The two men
were arrested and charged with first degree murder.
¶8 Ms. Wright-Young brought a variety of claims against the Board and against Mr. Watson,
alleging various actions that she claimed contributed to her son’s murder.
¶9 B. The Board’s Immunity Arguments
¶ 10 The Board moved to dismiss the claims against it on the basis that it was immune from
suit under section 4-102 of the Local Governmental and Governmental Employees Tort
Immunity Act (Tort Immunity Act or Act) (745 ILCS 10/4-102 (West 2012)), which provides
absolute immunity for a local public entity’s failure to provide adequate police protection
services. The trial court at first denied the motion but, on reconsideration, granted it in part,
striking the allegations the court felt clearly concerned the failure to provide police protection
services.
¶ 11 The Board continued to assert section 4-102 immunity—along with a number of other
statutory immunities—in its affirmative defenses. It later moved for summary judgment
under section 4-102, as well as section 2-201 (immunity for discretionary policy decisions)).
Although the trial court denied the Board’s motion for summary judgment “for the reasons
stated in the record,” a transcript of the hearing on the motion does not appear in the record.
¶ 12 The Board raised its immunity defenses again at trial, when it moved for a directed
verdict at the close of Ms. Wright-Young’s case. Counsel for the Board briefly outlined, this
time for a new judge, its prior arguments in favor of a finding that it was immune under
sections 4-102 (for failures to provide adequate police protection services), 2-201 (for
discretionary policy decisions), and 2-107 and 2-210 of the Act (for the provision of
information)). In denying the motion, the trial court provided only the following explanation:
“THE COURT: Okay. All right.
As far as the [Board]’s motion for directed verdict, I’ll deny it.
And I think there’s an issue of assumption of—not assumption—voluntary
undertaking or assumption of duty that may apply to those immunities proffered by
the Chicago Public Schools. In other words, I think it may be contrary to those
immunities that are listed there.”
¶ 13 The Board raised its immunity arguments one final time in its posttrial motion, but that
motion was also denied.
¶ 14 C. The Evidence at Trial
¶ 15 A six-day jury trial was held in this case in November 2017. The jury heard from, among
others, Tyrone’s parents, current and former employees of the Board and CSU, and the
parties’ respective experts.
¶ 16 1. Board Officials
¶ 17 The jury was shown a redacted September 14, 2012, letter that Everett Edwards, the
principal of Morgan Park High School, sent to parents whose students attended the school.
That letter began by referencing an “unfortunate event that took place on Friday, September
7, 2012, during the Morgan Park v. Simeon football game,” during which “a disturbance took
place in the stands” and “[m]ost fans took off running for an exit,” but during which,
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“[t]hankfully, only three students were injured.” The letter then assured parents that the local
school council (LCL) had met to discuss next steps they could take “to insure the safety of
[their] students at all school-sponsored events.” Principal Edwards told parents “[t]he
Administration reached out to [Chicago Public Schools] Sports Administration” and “[t]hey
have assured us that modifications to security plans have been made in order to maintain a
safe environment during sporting events.”
¶ 18 Mr. Edwards testified that, when he sent this letter, he had no actual knowledge regarding
what changes, if any, had been made to the Board’s security plans. When asked why he sent
the letter, Mr. Edwards explained:
“The purpose of the letter was to inform parents of the incident that had occurred
previously. It was also designed to let them know we were calling upon our all [sic]
resources to keep their children safe. There are no guarantees, but we wanted to make
sure that our parents knew that we were as much on the situation as we could be.”
¶ 19 Calvin Davis, the Board’s former director of sports administration and facilities, testified
that his duties included coordinating Board-sponsored events at outside venues like the JCC
arena. Mr. Davis was confident that under the Facilities Usage Agreement (venue agreement)
the Board entered into with CSU for the game, the Board was only responsible for the
security of fans while they were inside the arena. Mr. Davis’s testimony echoed the Board’s
position throughout this case that, under the venue agreement, there was a clearly defined
division of labor: the Board was responsible for security inside the arena, and CSU was
responsible for security outside the arena. Mr. Davis testified that, in keeping with this
understanding, the Board’s security plan only covered the entrance to the facility and the
facility interior. When asked if parents were told that the Board had no responsibility for the
safety of students as they entered and exited the arena, Davis said “[n]o, I don’t believe
parents [were] being told that.” If they were, he said, that information would come from the
individual schools, as the athletic department did not communicate directly with parents.
¶ 20 Mr. Davis also testified that for 10 years the Board had used the same basic security plan
for events at off-site venues, whether those events were basketball games, wrestling matches,
or cheerleading competitions. Although “slight modifications” may have been made to the
plan from time to time, Mr. Davis could not identify any specific modifications that were
made in advance of the Morgan Park-Simeon basketball game. He acknowledged that
Morgan Park’s principal, Everett Edwards, had sent a letter to parents several months before
the game, telling them that changes had been made to the security plan based on an incident
at a football game between the two schools, but stated “I couldn’t tell you what specific
modifications were made, if any, to the plan.”
¶ 21 Mr. Davis did not recall the Board providing any information to CSU about a history of
violence at sporting events between Morgan Park and Simeon before the venue agreement
was signed. In his opinion, that was not the sort of information that would be exchanged
“[w]ith the contract.” Rather, when the “[respective] security forces talked, *** they would
mention it and maybe plan.” Mr. Davis stated “[i]f there was something, I’m sure as they
planned it would be discussed.” Mr. Davis was “[v]aguely” familiar with Ronnie Watson,
CSU’s chief of police, having met him some years earlier in connection with a different
event, but had no discussions with him prior to the Morgan Park-Simeon basketball game.
¶ 22 Mr. Davis was shown a printout of an e-mail he wrote on January 18, 2013, just two days
after the basketball game, to school principals and athletic directors, in which everything but
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the first line had been redacted. That line read: “As a result of numerous acts of violence
outside of basketball contests in the past two weeks ***.” Mr. Davis could not remember
what events he had been referring to or whether parents had been made aware of those
events. He downplayed the phrase “numerous acts of violence,” explaining that Tyrone’s
shooting, “being such a tragic incident, *** probably heightened *** the need for security.”
But in the two weeks prior to the Morgan Park-Simeon game, Mr. Davis insisted nothing
more serious than a “fight here or a scuffle there” had occurred.
¶ 23 Mr. Davis had himself attended the Morgan Park-Simeon game on January 16, 2013.
Although the game was an important one, it was not unusual for Chicago Public School
(CPS) basketball games to be played at the JCC arena. He could not recall seeing any
security in the parking lot outside the arena. When the game was over, Mr. Davis witnessed a
scuffle in the handshake line but said the incident was “immediately contained.” People then
left the arena in an orderly fashion, and he “didn’t sense anything out of the ordinary.” When
shown an e-mail he wrote the day after the game, in which he described a “large commotion
on the court” that “could have been much worse,” Mr. Davis again downplayed his prior
statements, explaining that the commotion was short-lived and involved only the players and
coaches.
¶ 24 Mr. Davis characterized the level of security at the Morgan Park-Simeon basketball game
as “very high.” In addition to CSU officers and off-duty Chicago police officers hired for the
evening, the Board had a trained special event staff of around 50 individuals, all wearing
bright gold shirts or jackets posted at entrances and exits, washrooms, concession stands, and
throughout the stands. Screening at the door was done by a combination of CPS security staff
and Chicago police. Everyone entering went through an X-ray machine or hand wands.
¶ 25 2. Tyrone’s Parents
¶ 26 Ms. Wright-Young testified that Tyrone was her only child and she kept a close watch
over him. She knew who his friends were and would often drop the boys off and pick them
back up from various events. If she had any concerns about her son’s safety at a particular
event, she would not let him go.
¶ 27 Ms. Wright-Young had been alarmed when she picked Tyrone up from the September
2012 Morgan Park-Simeon football game referenced in Principal Edwards’s letter and saw
police cars. Although Tyrone reassured her both that there had been no gunshots, only people
setting off firecrackers, and that rumors of a stabbing were not true, she thought he might be
minimizing what happened so that she would not prohibit him from going to future sporting
events.
¶ 28 Tyrone’s stepfather, Gregory Young, also recalled the commotion after the football game.
Tyrone told him that there was “a fight that broke off into the stands, *** people just started
running everywhere,” and “[s]omebody with a screwdriver or something stabbed someone
else.” After that incident, Mr. Young said that he and Ms. Wright-Young “weren’t going to
let [Tyrone] be going to too many functions because it wasn’t safe.” Mr. Young believed that
the intense rivalry between the two schools had created “an unsafe environment.”
¶ 29 A week later, Tyrone’s parents received the letter from Principal Edwards explaining
what had happened at the football game, which included what Ms. Wright-Young viewed as
“a promise that they were going to do some things [so] that it wouldn’t happen again.” The
letter “stood out to [her]” because it mentioned the local school council, or LSC. She herself
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had been president of the LSC at Tyrone’s elementary school for six years, and in her
experience, the LSC “basically runs a school.” Her understanding of the letter was that the
incident at the football game had been discussed by the LSC and “something did take place
to make sure this [type of incident] was not going to happen again.” According to Ms.
Wright-Young, this “wiped out a lot of [her] concerns” and made her feel comfortable with
Tyrone attending Board-sponsored sporting events again.
¶ 30 On the afternoon of January 16, 2013, Tyrone asked his parents if he could attend the
Morgan Park-Simeon basketball game that evening. Although they were concerned because
it was a school night, they understood it was an important game between two top-ranked
schools, and they finally relented. For Ms. Wright-Young, Principal Edwards’s letter played
a role in that decision. She told the jury “[t]hat letter really made me feel like it was okay for
Tyrone to go to that game.”
¶ 31 Mr. Young also remembered reading the letter, which he said made him feel “a little bit
more at ease” with letting Tyrone attend another sporting event. He and Ms. Wright-Young
discussed the matter and “figured that [because the game would be at] a college campus ***
it should be a safe environment.” As a state facility with state police on patrol, Mr. Young
expected that his son would be protected.
¶ 32 On cross-examination, Tyrone’s parents both acknowledged that, despite their concerns,
they had not contacted anyone at Morgan Park about Principal Edwards’s letter and had not
attended the LSC meeting in September when that letter was discussed. Ms. Wright-Young
was not aware of any other problems at sporting events during the 2012-13 school year. Mr.
Young acknowledged that although he was “highly concerned” following the incident at the
September 2012 football game, neither he nor his wife reached out to anyone at the school or
attended any of the subsequent LSC meetings to voice their concern.
¶ 33 3. The CSU Police Force
¶ 34 CSU Lieutenant Sharon Robinson testified that she was stationed inside the JCC arena
during the January 16, 2013, Morgan Park-Simeon basketball game. She estimated the crowd
at 4000 or 4500 people, possibly as many as 5000. For such events, CSU has officers “posted
throughout the building, at the main entrance, the first floor, second floor, and *** just
circulat[ing] through the building.” Outside the arena, CSU is responsible for “[t]raffic
control and patrolling the campus grounds.” CSU’s chief of police, Ronnie Watson, was in
charge of coordinating CSU’s security efforts with those of the Board and the Chicago Police
Department.
¶ 35 Lieutenant Robinson was responsible for determining the number of CSU officers who
would be needed that night and relaying that number to Chief Watson for his approval.
According to an event planning form filled out the day before the game, of the 13 or 14 CSU
officers scheduled to work the game that night, 5 were assigned to patrol the parking lots of
the CSU campus. Lieutenant Robinson testified that, in making this determination, she was
not made aware of the disturbance that took place at the September 2012 Morgan
Park-Simeon football game or of any recent acts of violence outside of high school basketball
games. She testified that if she had been made aware of such incidents, she “probably would
have discussed it with Chief Watson” for fear that the violence might “spill over to the [CSU]
campus” and “to ensure that we did have enough people or to see if we wanted to do
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anything different.” At no time did anyone from the Board request additional security for this
particular game.
¶ 36 CSU Sergeant Wilbert Norey was working as the “inside supervisor” for the JCC arena
on the night of the Morgan Park-Simeon game. He testified that a number of factors go into
determining what level of security is needed, including the anticipated crowd size and type of
event. Sergeant Norey stated, “[w]e kind of try to tailor it to the event, the sheet, the amount
of people, where we post, things of that nature, what we work with.” For this event, CSU
worked “closely” with the Board because, as Sergeant Norey explained, security for the
Board [was] at the front doors and [was] thus “the buffer for contraband coming into the
event.” But Sergeant Norey said he only had “surface knowledge” about the schools that
were playing. He knew that they were CPS high schools, but that was it.
¶ 37 Sergeant Norey testified that prior violence between the schools was an important factor
that could have impacted what he did to ensure the safety of the fans. He was not made aware
of any prior acts of violence at CPS basketball games. Although Sergeant Norey later learned
of the incident at the Morgan Park-Simeon football game, no one told him about it before the
January 16, 2013, basketball game. He testified that knowledge of that incident would have
been important to him for security planning purposes.
¶ 38 Sergeant Norey explained that minutes before the game ended, with the doors locked so
no one else could enter the arena, a high-school-aged girl and a man who said he was her
father began banging on the door. The girl looked “distraught,” and the man “stated that he
wanted to get his daughter inside of the convocation center for [her] safety.” Sergeant Norey
let them in and the girl, who was crying, said that there was a group of high-school boys in
the A-15 parking lot, which is about 250 yards from the JCC arena, and someone had flashed
a gun at her and her father. Sergeant Norey immediately dispatched units to the parking lot.
According to the CSU radio log, this was at 8:44 p.m. Sergeant Norey testified that he tried
to get the man to come inside with his daughter but the man said he “had something to do”
and went off towards the A-15 parking lot. Sergeant Norey later learned that the man was
Michael McNabb, who, with his brother Brian Hewlett, were later arrested for shooting
Tyrone Lawson.
¶ 39 CSU officers stated that they were immediately at the scene and had cleared the parking
lot within one minute, or by 8:45 p.m. Fifteen minutes later, the crowd began exiting the JCC
arena. And 15 minutes after that, as CSU officers were directing people off campus, a call
came over the radio that shots had been fired.
¶ 40 In the 48 hours after Tyrone’s shooting, Sergeant Norey, with the help of two Chicago
police officers, interviewed witnesses, provided them with a line-up for identification of the
shooters, and collected forensic evidence. He spoke to three of Tyrone’s friends who
witnessed the shooting, as well as Michael McNabb and Brian Hewlett, who were ultimately
determined to be the shooters. According to Sergeant Norey, Tyrone’s friends, who indicated
that they were affiliated with the Gangster Disciples, told him that “there was a history
between Michael McNabb and these young men, that they knew each other, that they had
grievances, [and] that they were angry with each other or hostile.”
¶ 41 Tyrone’s friends told Sergeant Norey that they had tried to get into the JCC arena but
were turned away and decided to hang around in the parking lot. He guessed that this was
toward the end of the game when the doors had already been closed. When Sergeant Norey
interviewed Mr. McNabb, he recognized him as the man who had brought his daughter inside
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the arena. Sergeant Norey learned that Mr. McNabb and Mr. Hewlett had an “extensive”
history of involvement with the Gangster Disciples. When asked why there would be a
conflict between members of the same gang, Sergeant Norey explained:
“Well, one is a younger group and one is an older group. Mr. McNabb[’s] was in
their 30s. The younger crew was in their late teens, 20s, and they are from different
neighborhoods, and the neighborhoods are—there’s a friction between the
neighborhoods.”
¶ 42 One of Sergeant Norey’s investigative conclusions was that the shooting “had to do with
something that occurred outside of Chicago State University” and “had nothing to do with
the event.” The two suspects were apprehended within minutes of the shooting and the gun
that Sergeant Norey believed had been used in the crime was confiscated.
¶ 43 Ronnie Watson, a 33-year veteran of the Chicago Police Department, and the former
chief of police for Cambridge, Massachusetts, testified that in his role as CSU’s chief of
police and student services he planned, implemented, and oversaw security for events held at
the JCC arena. Mr. Watson testified that campus police, who are State of Illinois police
officers, are on duty 24 hours a day. They are responsible for patrolling the entire 160-acre
campus and the 95th Street corridor, where students travel to and from public transportation.
Regularly reporting to Chief Watson are a captain, 2 lieutenants, 6 sergeants, and around 20
officers. Acknowledging that it was “a small department,” Chief Watson testified that there
are a minimum of three officers on patrol in squad cars each night: a shift commander, a
sergeant in the field, and one to three additional officers. For the Morgan Park-Simeon
basketball game, six officers were patrolling the grounds in squad cars.
¶ 44 No one from CSU’s legal department showed Chief Watson the venue agreement
between CSU and the Board prior to the basketball game. CSU’s event planning form for the
basketball game was filled out and sent to Chief Watson 24 hours in advance of the game.
The form was one CSU had used many times before, for graduation ceremonies, concerts,
and other large gatherings. Chief Watson had no information leading him to believe he
needed to do anything to change that plan.
¶ 45 A pre-season security meeting between the Board and Chief Watson and his command
staff was held. Chief Watson also attended the walk through with representatives for the
Board and Chicago police. No one from the Board ever voiced any concerns about the
basketball game to him. No one ever showed him Principal Edwards’s letter or said anything
to him about prior violent incidents that year at CPS sporting events. Chief Watson had to be
somewhere the night of the game but went into the arena before he left campus and saw that
CPS people and CSU people were posted as they were supposed to be. He “was satisfied that
everything was fine.”
¶ 46 Chief Watson acknowledged that people coming to events at CSU have an expectation
that they will be able to safely come and go from the campus. He agreed that different types
of events require different levels of security. Past violent incidents on campus, if brought to
his attention, were something he would have taken into consideration in planning security for
the event. When asked if “any alleged violence between [the] schools that were playing that
night and fans at a sporting event four months prior” could increase the risk of violence at the
basketball game, Chief Watson agreed that “[i]t could have a bearing on the conduct of the
event, yes.”
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¶ 47 Chief Watson took no part in the post-shooting investigation, which was already
underway when he was called back to campus after the game. He stated that this was the first
homicide in CSU’s history.
¶ 48 4. Expert Witnesses
¶ 49 James Bondi, Ms. Wright-Young’s school security expert, testified that after reviewing
relevant deposition testimony, it was his opinion that the Board demonstrated “a reckless
disregard for the safety and well-being of people they were in charge of on [the CSU]
campus.” According to Mr. Bondi, the Board should have realized that increased security
was needed for this event, should not have allowed crowds to congregate outside the arena
doors, and should have posted security personnel in the parking lots. Mr. Bondi was also of
the opinion that the Board failed to adequately coordinate security planning with CSU.
Unaware of past violent incidents at sporting events, CSU’s officers incorrectly “expected to
have a comparable event from years past” and “just cookie-cut the number of staff and
planning that they had done in years past.”
¶ 50 University of Texas professor of criminology Bruce Jacobs testified as an expert for the
Board. In his opinion, security at the Morgan Park-Simeon basketball game was “massive,”
up to four times what he would expect at a similar game. Mr. Jacobs described the Board’s
security plan as both “layered and sequential” and “textbook,” with emphasis placed on
crowd control, a visible security presence, and “very clearly delineated” roles. Mr. Jacobs
stated that it “was clear in the investigative file” and from the testimony of the officers who
conducted the investigation that Tyrone’s shooting had been gang related. In his opinion, the
shooting was an example of how crimes will sometimes be committed in defiance of a strong
police presence and why crime is not fully preventable.
¶ 51 5. Jury Instructions and Verdict
¶ 52 The jury was instructed that the Board was liable if its willful and wanton conduct had
been a proximate cause of Tyrone’s death, that “willful and wanton conduct” meant “a
course of action which shows an utter indifference to or reckless disregard for the safety of
others,” and that Ms. Wright-Young alleged the Board had acted willfully and wantonly
when it:
“a. Failed to implement a security plan by failing to assign or maintain posts
within the arena;
b. Failed to implement a security plan by failing to keep entrances and exits clear
of crowds during and immediately after the game;
c. Failed to implement a security plan by allowing fans to engage in multiple
fights inside the arena and outside the entrances;
d. Failed to implement an appropriate security plan for the safety of students
given the elevated risks for violence at the event;
e. Failed to implement a security plan by failing to prevent fans from exiting the
arena in a disorderly manner; [and]
f. Failed to communicate prior acts of violence at sporting events to Ronnie
Watson and Chicago State University prior to January 16, 2013.”
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¶ 53 The jury found that the Board was liable, but Mr. Watson was not, and awarded Ms.
Wright-Young damages in the amount of $3.5 million. In answer to a special interrogatory,
the jury also found that the Board’s conduct had been willful and wanton.
¶ 54 The Board requested and was denied two additional special interrogatories asking (1) if
Mr. Davis and another athletic department staff member held positions within the Board’s
sports administration department “in which they exercised discretion or made policy
decisions about whether and how to provide security” at the basketball game and (2) if the
Board was “providing police protection services by staffing security officers inside of the
[JCC arena]” during the game.
¶ 55 II. JURISDICTION
¶ 56 The trial court denied the Board’s posttrial motion on April 30, 2018, and the Board
timely filed its notice of appeal on May 21, 2018. We have jurisdiction under Illinois
Supreme Court Rules 301 (eff. Feb. 1, 1994) and 303 (eff. July 1, 2017), governing appeals
from final judgments entered by the circuit court in civil cases.
¶ 57 III. ANALYSIS
¶ 58 On appeal, the Board urges us to reverse the judgment entered against it outright or, in
the alternative, to remand for a new trial. The Board contends that (1) it owed no duty to
protect Tyrone from the criminal acts of third parties, (2) the trial court erroneously rejected
its assertions of immunity under the Tort Immunity Act, (3) if qualified, rather than absolute,
immunity applies, the jury’s finding that the Board’s conduct was willful and wanton was
against the manifest weight of the evidence, and (4) the trial court improperly refused to
submit the Board’s requested special interrogatories to the jury. Because we agree with the
Board that the trial court improperly rejected its assertions of immunity as to the majority of
the claims in this case, we begin with the Tort Immunity Act. We then address the Board’s
other arguments as they relate to Ms. Wright-Young’s sole remaining claim.
¶ 59 A. Statutory Tort Immunity
¶ 60 In Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11, 25 (1959), our
supreme court abolished the common law doctrine of sovereign immunity, under which
governmental entities in Illinois had long enjoyed immunity from tort liability. In response,
our legislature enacted the Tort Immunity Act (745 ILCS 10/1-101 et seq. (West 2012)).
DeSmet v. County of Rock Island, 219 Ill. 2d 497, 505 (2006). “[T]he purpose of the Act is to
protect local public entities and public employees from liability arising from the operation of
government” (id.) and, in doing so, “to ensure that public funds [are] not dissipated by
private damage awards” (Ware v. City of Chicago, 375 Ill. App. 3d 574, 578 (2007)). Here, it
is undisputed that the Board is a “local public entity” and its employees are “public
employees,” as those terms are defined in sections 1-206 and 1-207 of the Act (745 ILCS
10/1-206, 1-207 (West 2012)).
¶ 61 The Act contains “an extensive list of immunities based on specific government
functions.” Harrison v. Hardin County Community Unit School District No. 1, 197 Ill. 2d 466,
471 (2001). Some of the provisions immunize only negligent conduct, leaving open the
possibility of liability based on a public entity’s willful and wanton conduct. Others
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immunize public entities from liability for any injury, without regard to the nature of the
tortious conduct. Compare 745 ILCS 10/4-105 (West 2012) (no liability for the negligent
failure to provide medical care to a prisoner in custody), with id. § 4-106(b) (blanket
immunity for “[a]ny injury inflicted by an escaped or escaping prisoner”). It is a public
entity’s burden to assert and prove an immunity provided for in the Act. Van Meter v. Darien
Park District, 207 Ill. 2d 359, 370 (2003). Unless a provision of the Act is shown to apply,
the public entity is liable in tort just as any private party would be. Id. at 368-69. Whether
immunity applies is a question of law we review de novo. Feltmeier v. Feltmeier, 207 Ill. 2d
263, 267 (2003).
¶ 62 As an initial matter, it is clear to us that the trial court failed to understand that an
absolute immunity protects a local public entity or employee even if that party would
otherwise have a duty based on a voluntary undertaking. Specifically, when it denied the
Board’s motion for a directed verdict the court said, “I think there’s an issue of *** voluntary
undertaking or assumption of duty that may apply to those immunities” and “may be contrary
to those immunities that are listed there.” This is not correct. As our supreme court made
clear in Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 346 (1998), “the
existence of a duty and the existence of an immunity are separate issues.” (Internal quotation
marks omitted.) “[W]hen a court finds, on the facts of a particular case, that the General
Assembly has granted a public entity immunity from liability, the court may not then negate
that statutory immunity” by applying common law tort principles. Id. When the Board asked
the court to enter a directed verdict in its favor the trial court wrongfully failed to consider
the Board’s immunity arguments. We consider them now.
¶ 63 1. Section 4-102 Immunity for Inadequate Police Protection
¶ 64 The Board argues that the jury in this case was improperly allowed to base its verdict on
the Board’s failure to provide adequate police protection services. The jury was specifically
instructed that Ms. Wright-Young’s claims against the Board were based on its failures to
“implement an appropriate security plan for the safety of students given the elevated risks for
violence at the event,” to “assign or maintain posts within the arena,” to “keep entrances and
exits clear of crowds during and immediately after the game,” to prevent fans from
“engag[ing] in multiple fights inside the arena and outside [its] entrances,” and to “prevent
fans from exiting the arena in a disorderly manner.”
¶ 65 We agree with the Board that each of these theories of liability describes police
protection services—conduct for which absolute immunity is afforded under section 4-102 of
the Act. That section provides:
“Neither a local public entity nor a public employee is liable for failure to establish a
police department or otherwise provide police protection service or, if police
protection service is provided, for failure to provide adequate police protection or
service, failure to prevent the commission of crimes, failure to detect or solve crimes,
and failure to identify or apprehend criminals.” 745 ILCS 10/4-102 (West 2012).
¶ 66 There is no question that this immunity protects the Board from liability where it is
alleged that the Board’s failure to provide adequate security resulted in a crime being
committed against a student. See, e.g., Castillo v. Board of Education of the City of Chicago,
2018 IL App (1st) 171053, ¶ 2 (no liability where student was attacked off campus); Albert v.
Board of Education of the City of Chicago, 2014 IL App (1st) 123544, ¶ 56 (no liability where
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student was killed on his way home from school); Green v. Chicago Board of Education, 407
Ill. App. 3d 721, 723 (2011) (no liability where student was shot and killed by a fellow
student). Our supreme court has extended section 4-102 immunity to conduct that, though not
itself the provision of police protection services, “implicate[s] the structural adequacy of
[such] services.” DeSmet, 219 Ill. 2d at 513-14. In Doe v. Village of Schaumburg, 2011 IL
App (1st) 093300, ¶ 16, for example, we held that section 4-102 immunity applied to a
“failure to properly train and supervise employees, or to have in force procedures to ensure
the adequate performance of [those employees’] duties.”
¶ 67 We reject Ms. Wright-Young’s contention that her allegations are more properly
characterized as the failure to supervise or monitor students attending the basketball game,
conduct for which the Board would enjoy only qualified immunity under section 3-108 of the
Act (see 745 ILCS 10/3-108 (West 2012) (providing immunity for negligent but not willful
and wanton failures to supervise activities or the use of public property)). Reyes v. Board of
Education of the City of Chicago, 2019 IL App (1st) 180593, is an instructive counterexample
demonstrating this point. In that case, which involved a disabled student who was sexually
assaulted by a nondisabled student on a special needs school bus, the plaintiffs alleged that an
aide assigned to the bus often fell asleep during her shift and allowed the nondisabled student
to “roam around the bus at will.” Id. ¶¶ 3, 10. Characterizing the plaintiffs’ claim against the
Board as one based on a failure to provide police protection services or prevent a crime, the
trial court concluded that the Board was immune from liability under section 4-102. Id. ¶ 4.
¶ 68 This court reversed. Id. ¶ 46. Quoting Doe v. Chicago Board of Education, 213 Ill. 2d 19,
27 (2004), another case involving a school bus attendant, we emphasized that in determining
whether section 4-102 immunity applies, a court’s focus should be on “ ‘the purpose of
providing the attendant, rather than the conduct causing the injury.’ ” Reyes, 2019 IL App
(1st) 180593, ¶ 44. The attendant in Reyes “was tasked with managing student behavior and
physically assisting students with getting on and off the bus.” Id. ¶ 46. As such, her function
was more akin to that of a “teacher or a hall monitor whose very presence may prevent
unsafe activity or untoward behavior” than someone functioning as police personnel.
(Internal quotation marks omitted.) Id. In reaching this holding, we found it significant that
the plaintiffs in that case “did not allege anything in their complaint that indicate[d] that [the
bus attendant] also provided services performed by police personnel, such as weapons
detection, traffic control, and crowd and security control.” (Emphasis added and internal
quotation marks omitted.) Id. ¶ 45. These are precisely the things Ms. Wright-Young claims
the Board failed to do here. Under the reasoning in Reyes, the Board was entitled to absolute
immunity with respect to such claims. Those claims should not have gone to the jury.
¶ 69 The one remaining claim is the Board’s alleged failure to adequately inform CSU of
either the disturbance at the September 2012 Morgan Park-Simeon football game or of other
potentially relevant incidents of violence at school sporting events. Although it is true, as the
Board points out, that the alleged failure to inform CSU is only relevant to the extent that it
affected security at the basketball game, the security affected was that provided by CSU, not
the Board. We agree with Ms. Wright-Young that this conduct is “qualitatively different
from the conduct traditionally addressed when applying [section] 4-102.” The Tort Immunity
Act provides various immunities for “specific government functions.” Harrison, 197 Ill. 2d
at 471. In our view, when a public entity negotiates for the use of an off-site venue, hires
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outside security personnel, and relays necessary information to those individuals, it is not
providing police protection services.
¶ 70 The Board also argues that various other immunities apply, and we address those in turn,
as they relate to this remaining claim.
¶ 71 2. Immunity for the Provision of Information Under
Sections 2-107 and 2-210
¶ 72 The Board’s primary argument for immunity relative to its providing information to CSU
is that sections 2-107 and 2-210 of the Tort Immunity Act immunize it from liability for any
failure on its part to inform CSU of prior violent incidents at sporting events. Those sections
provide:
“Libel; slander; provision of information
§ 2-107. A local public entity is not liable for injury caused by any action of its
employees that is libelous or slanderous or for the provision of information either
orally, in writing, by computer or any other electronic transmission, or in a book or
other form of library material.” 745 ILCS 10/2-107 (West 2012).
“Negligent misrepresentation; provision of information
§ 2-210. A public employee acting in the scope of his employment is not liable for
an injury caused by his negligent misrepresentation or the provision of information
either orally, in writing, by computer or any other electronic transmission, or in a
book or other form of library material.” Id. § 2-210.
¶ 73 Ms. Wright-Young argues that the Board’s failure to provide information does not trigger
such immunity because those sections of the Act apply only to the provision of information,
i.e., libel, slander, or an affirmative misrepresentation. We agree. As with any statute, when
interpreting the Act, our “goal is to ascertain and give effect to the intention of the
legislature,” primarily from the language used. Barnett v. Zion Park District, 171 Ill. 2d 378,
388 (1996). Where a provision “is clear and unambiguous, we are not at liberty to depart
from the plain language and meaning of the statute by reading into it exceptions, limitations
or conditions that the legislature did not express.” DeSmet, 219 Ill. 2d at 510. And because
the Act is in derogation of the common law, it is strictly construed against a finding of
immunity. Van Meter, 207 Ill. 2d at 380. The phrase “provision of information” is used in
both the text and the titles of sections 2-107 and 2-210. It would have been a simple matter
for the legislature to expressly state that one or both provisions also applies to the omission
of relevant information. The Board directs us to no case construing the sections so broadly,
and indeed did not even address this argument in its reply brief. We agree with Ms.
Wright-Young that these immunities did not apply here.
¶ 74 The parties also address at length whether these two sections provide immunity for the
September 2012 letter Principal Edwards sent to the parents of Morgan Park students. But, as
the jury instructions make clear and the parties both conceded at oral argument, that letter
was not presented to the jury as an independent basis for the Board’s liability. Rather, as we
discuss later in this opinion, the letter was the voluntary undertaking that gave rise to the
Board’s duty to protect Tyrone.
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¶ 75 3. Section 2-201 Immunity for Discretionary Policymaking
¶ 76 The Board also argues that its decision not to inform CSU of prior violent incidents at
sporting events was an exercise of its discretion, for which it enjoyed absolute immunity
under section 2-201 of the Act, which provides:
“Except as otherwise provided by Statute, a public employee serving in a position
involving the determination of policy or the exercise of discretion is not liable for an
injury resulting from his act or omission in determining policy when acting in the
exercise of such discretion even though abused.” 745 ILCS 10/2-201 (West 2012).
Section 2-109 of the Act extends this immunity to the local public entity the employee works
for. Id. § 2-109.
¶ 77 To prove discretionary immunity, a defendant “must establish that the act or omission
giving rise to the injuries was both a determination of policy and an exercise of discretion.”
(Emphasis added.) Monson v. City of Danville, 2018 IL 122486, ¶ 29. Policy determinations
are defined as “those decisions which require the municipality to balance competing interests
and to make a judgment call as to what solution will best serve each of those interests,” and
discretionary decisions are those “unique to a particular public office,” which involve “the
exercise of personal deliberation and judgment in deciding whether to perform a particular
act, or how and in what manner that act should be performed.” (Internal quotation marks
omitted.) Id. ¶ 30. By contrast, a public employee’s ministerial acts—for which there is no
immunity under the Act—are those done “in a prescribed manner, in obedience to the
mandate of legal authority, and without reference to the official’s discretion as to the
propriety of the act.” (Internal quotation marks omitted.) Id.
¶ 78 Here, the Board failed to demonstrate that it was entitled to discretionary immunity under
section 2-201 of the Act. As our supreme court has made clear, “ ‘[d]iscretion’ connotes a
conscious decision.” (Internal quotation marks omitted.) Id. ¶ 33. Where liability is based on
a failure to do something, a local public entity “must present sufficient evidence that it made
a conscious decision not to [act].” Id. Although the Board insists that “[t]he decision whether
to tell CSU officials about any prior acts of violence at school-sponsored events was *** a
judgment call [that athletics director Calvin] Davis made” because “in his mind, [those
incidents] were minor and insignificant,” the testimony at trial simply does not support this
assertion. Mr. Davis testified that prior violent incidents were something he believed the
security forces for the Board and CSU would have discussed in their planning meetings, but
Mr. Davis himself did not attend those meetings. He also tried to explain away an e-mail he
sent the day after the January 16, 2013, basketball game that referred to “numerous acts of
violence outside of basketball contests in the past two weeks,” saying those must have only
been minor scuffles between students. But at no point did Mr. Davis testify that he or any
other Board representative made a conscious decision—based on a balancing of interests or a
weighing of factors—not to tell CSU about the incident at the September 2012 Morgan
Park-Simeon football game or other prior incidents of violence at sporting events. Indeed,
Mr. Davis could not remember if he had any conversations at all with Mr. Watson, CSU’s
chief of police, in the weeks leading up to the January 16, 2013, basketball game.
¶ 79 The cases the Board relies on, which we agree all stand for the proposition that a
“determination of policy” can include not just the creation of a policy in the first instance, but
later decisions regarding how best to implement that policy, all involved anti-bullying
policies that schools were statutorily required to establish. See Castillo, 2018 IL App (1st)
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171053, ¶¶ 16-17; Mulvey v. Carl Sandburg High School, 2016 IL App (1st) 151615,
¶¶ 48-49; Malinski v. Grayslake Community High School District No. 127, 2014 IL App (2d)
130685, ¶ 13; Hascall v. Williams, 2013 IL App (4th) 121131, ¶¶ 26-28. As this court
explained in Castillo, those policies mandated discretionary decisions by school employees
regarding whether certain conduct constituted bullying and, if it did, what steps the school
should take to intervene. Castillo, 2018 IL App (1st) 171053, ¶ 17. The policies also directed
school officials to consider a list of specific factors when they made such decisions. Id. In
such cases, the policy itself constitutes evidence that a discretionary decision was made and
provides the court with the factors considered in making it. Here, no such policy was shown
to govern the Board’s provision of information to vendors, event venues, or outside providers
of security at Board-sponsored events.
¶ 80 Where no evidence was presented that that Board made a conscious decision to withhold
information about prior acts of violence at sporting events from CSU, let alone what factors
may have been considered or competing interests balanced in arriving at such a decision, the
trial court did not err when it rejected the Board’s claim of section 2-201 discretionary
immunity.
¶ 81 4. Qualified Immunity
¶ 82 In the trial court, the Board also asserted qualified immunities—under sections 3-108
(745 ILCS 10/3-108 (West 2012) (providing qualified immunity for the supervision of an
activity or use of any public property)) and 3-106 (id. § 3-106 (qualified immunity for
injuries caused by a condition of any public property used or intended to be used for
recreational purposes)), for example—under which it could be found liable only for willful
and wanton conduct. We need not decide whether those immunities apply, however, since the
jury found that the Board’s conduct was willful and wanton. And as discussed below, we
reject the Board’s argument that the evidence was insufficient to support that finding.
¶ 83 B. The Board’s Other Arguments
¶ 84 The Board makes other arguments about the sufficiency of Ms. Wright-Young’s case. We
consider whether any of those provide a basis for overturning the jury’s verdict to the extent
that it could have been based on the one theory on which the Board was not entitled to
absolute immunity—that the Board failed to inform CSU of past incidents of violence at
sporting events.
¶ 85 1. Duty of Care
¶ 86 The Board argues broadly that it had no duty to take any action to protect students
attending the basketball game from the criminal acts of a third party. “The determination of
whether a duty exists is a matter of law to be made by the trial court and is subject to de novo
review on appeal.” Wolowinski v. City of Chicago, 238 Ill. App. 3d 639, 641 (1992). The
Board is correct that, as a general rule, “[a]bsent a special relationship,” a party has no duty
“to warn or protect against the criminal conduct of a third party.” Bogenberger v. Pi Kappa
Alpha Corp., 2018 IL 120951, ¶ 33. Our supreme court has recognized four relationships
giving rise to such a duty: “common carrier and passenger, innkeeper and guest, custodian
and ward, and possessor of land who holds it open to the public and member of the public
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who enters in response to the possessor’s invitation.” Id.; see also Restatement (Second) of
Torts §§ 314, 314A, 315 (1965)).
¶ 87 Ms. Wright-Young alleged in her complaint that Tyrone and the other students at the
basketball game were invitees of the Board. Although the Board points out that Tyrone never
actually bought a ticket to the basketball game, it does not dispute that the game was open to
the public and that students like Tyrone were specifically invited to attend. The Board’s
primary argument as it relates to this exception is that it “did not own, occupy, manage,
operate or in any way control the parking lot where [Tyrone] was shot.” In support of this
argument the Board cites cases in which courts refused to extend a duty to warn or protect
invitees once those invitees left a defendant’s property. See Wilk v. 1951 W. Dickens, Ltd.,
297 Ill. App. 3d 258, 260, 262-64 (1998) (no liability for a bar whose patron was killed in a
street fight a block away); Lewis v. Razzberries, Inc., 222 Ill. App. 3d 843, 850 (1991) (no
liability for a bar whose patron was shot to death after returning to a car parked beyond the
boundaries of the bar’s property); see also Restatement (Second) of Torts § 314A cmt. c, at
119 (1965) (a possessor of land is under no duty “to one who has ceased to be an invitee”).
¶ 88 The Board argues that, under the venue agreement it entered into with CSU for the
Morgan Park-Simeon basketball game, it had “contractual possession” of only the arena, with
CSU maintaining exclusive control over the parking lot. The Board points to provisions in
the venue agreement, stating that the “[s]paces utilized” for the basketball game would be the
“arena and designated locker rooms” and that CSU would “retain the right to use any portion
of the facility not covered by this agreement.” The Board also notes that though another
provision gave it the option of “buy[ing] the right to control the parking lots,” it did not
exercise that option. The Board’s position is that, under the venue agreement, there was a
clearly defined division of labor: the Board was responsible for security inside the arena, and
CSU was responsible for security outside the arena.
¶ 89 In our view, the venue agreement did not draw such a clear line between the Board’s
responsibilities and CSU’s. The parking lot buy-out provision, for example, merely allowed
for the cost of parking—at $5 per vehicle—to be shifted from attendees of the game to the
Board. Whether or not the Board chose to exercise that option says nothing about which
entity was responsible for providing security in the parking lot. The venue agreement also
generally provided that “[a]ll facilities” (emphasis added)—including both the arena and the
parking lot—would be “at all times *** under the charge and control of [CSU],” and that
“[a]ll security or other protective service(s) desired by [the Board] [were to] be arranged for
and by special agreement with [CSU]” (emphasis added). Addendum B to the venue
agreement, titled “Event Concessions,” specifically listed the things that the Board and CSU
were separately responsible for. Under the heading “CLIENT to provide,” it noted that “CPS
Security” would “provide staff to cover [the] venue.” Nowhere did the addendum state that
CSU was separately and exclusively responsible for securing the parking lots outside the JCC
arena. Indeed, the overarching tone of the venue agreement is one of an intent to cooperate,
with the Board agreeing “to furnish [CSU] with *** information for [the Board’s] use of [the
arena] no later than four (4) weeks prior to the beginning of the use period,” in order “to
enable both parties of [the] contract to anticipate and work out in advance any problems that
might/can occur relating to [the Board’s] use of space(s).”
¶ 90 Although we find the Board’s argument that it had no duty to protect Tyrone as an invitee
when Tyrone was in the parking lot to be less than persuasive, we ultimately do not need to
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decide this issue. More compelling, in our view, is the argument Ms. Wright-Young has
focused on in this court: that in response to previous incidents of violence at athletic events,
the Board voluntarily undertook a duty to increase security efforts for the basketball game
and this voluntary undertaking gave rise to a duty to protect Tyrone while he was on the CSU
property to attend the game.
¶ 91 In general, “one who undertakes, gratuitously or for consideration, to render services to
another is subject to liability for bodily harm caused to the other by one’s failure to exercise
due care in the performance of the undertaking.” (Internal quotation marks omitted.)
Wakulich v. Mraz, 203 Ill. 2d 223, 241 (2003). Section 323 of the Restatement (Second) of
Torts, which our supreme court has cited favorably (id. at 243), recognizes such liability in
two circumstances: (a) where a “failure to exercise such care increases the risk of harm” or
(b) where “harm is suffered because of the other’s reliance upon the undertaking”
(Restatement (Second) of Torts § 323 (1965)). A parallel provision, section 324A,
contemplates a situation where the voluntary undertaking is to protect someone other than the
person relying upon the promise of protection. Ms. Wright-Young argues that one or both of
these sections apply here because she and Tyrone’s father unequivocally testified that, absent
the representations in Principal Edwards’s letter, they would not have allowed Tyrone to
attend the Morgan Park-Simeon basketball game.
¶ 92 Although we do not read Principal Edwards’s letter as a guarantee that the basketball
game would be a perfectly safe environment, through it the Board undertook a duty, in
reaction to at least one past incident of violence, to make future sporting events safer for
students. Falling well within the scope of that duty, we believe, was an obligation on the
Board’s part to disclose to CSU, which it had partnered with to provide security at a
high-profile off-campus sporting event just four months later, the reasons that had prompted
it to make such representations to parents.
¶ 93 The Board insists that the scope of its undertaking cannot exceed the scope of its
contractual obligations under the venue agreement it entered into with CSU. Here, however,
the scope of the undertaking was not based on the contract between the Board and CSU,
which of course the parents had no knowledge of, but on the representations made in
Principal Edwards’s letter, which preceded the venue agreement by several months. The
voluntary undertaking in that letter gave rise to a duty.
¶ 94 2. The Jury’s Finding of Willful and Wanton Conduct
¶ 95 The Board also argues that the evidence at trial was insufficient to support the jury’s
finding that the Board was willful or wanton, which the Act defines as “a course of action
which ***, if not intentional, shows an utter indifference to or conscious disregard for the
safety of others.” 745 ILCS 10/1-210 (West 2012). The Board’s arguments in support of this
position, however, all relate to the security it provided at the basketball game. The Board
makes no argument that the evidence was insufficient to show willful and wanton conduct in
reference to its failure to provide information to CSU. We think the evidence was sufficient
to sustain the jury’s verdict on that theory.
¶ 96 Contrary to the assertion Principal Edwards made in his letter to Morgan Park parents
following a violent incident at a September 2012 football game, that “modifications to
security plans ha[d] been made in order to maintain a safe environment during sports events,”
the Board failed to inform CSU of either the incident at the football game or other recent acts
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of violence at basketball games referenced in Mr. Davis’s e-mail to the Board’s athletic
department just after Tyrone’s death. CSU Lieutenant Sharon Robinson said that had she
been made aware of such events, she would have discussed them with CSU police chief
Ronnie Watson to make sure that violence did not “spill over to the [CSU] campus,” and to
ensure that “we did have enough people or to see if we wanted to do anything different.”
When CSU Sergeant Wilbert Norey was asked if, for planning purposes, it would have been
important to him to have received information about past violence at sporting events between
the two schools in advance of the basketball game, he said, “[i]t would have been important
to all of us, yes,” because such information could have impacted their efforts to keep fans at
the game safe.
¶ 97 And Ms. Wright-Young’s school safety expert James Bondi opined, based on the
accounts given by Lieutenant Robinson and Officer Norey, that there was “little coordination
between [the Board] and [CSU]” and the “lack of coordination and communication ahead of
time definitely [was] something that led up to the crisis.” Given what the Board knew about
the publicity the game was generating, the unusually large crowd expected to attend, the
rivalry between the two teams, the prior incident at the football game, and the other
unspecified “acts of violence at basketball games” referenced in Mr. Davis’s e-mail, Mr.
Bondi believed that the Board “should have been aware of the elevated level and potential for
violence” and should have communicated those concerns to CSU. In his view, the CSU
officers “expected to have a comparable event from years past, so they just cookie-cut the
number of staff and planning that they had done in years past”; they “just posted the same
number of people and did everything exactly like they did in years past.”
¶ 98 Based on this evidence, a finding that the Board was willful and wanton in its failure to
inform CSU of information necessary for the adequate provision of security at the basketball
game would not have been against the manifest weight of the evidence. See Maple v.
Gustafson, 151 Ill. 2d 445, 454 (1992) (“A verdict is against the manifest weight of the
evidence where the opposite conclusion is clearly evident or where the findings of the jury
are unreasonable, arbitrary and not based upon any of the evidence.” (Internal quotation
marks omitted.)).
¶ 99 3. Causation
¶ 100 The Board also argues, for the first time in its supplemental brief, that the evidence at
trial was insufficient to establish that the Board’s conduct was a proximate cause of Tyrone’s
death. The Board contends that no evidence was presented regarding what specific actions
CSU would have taken if it had been better informed about prior incidents of violence at
sporting events. Although it acknowledges that this case “is obviously not a medical
malpractice case,” the Board insists that “security planning and crime prevention, like
medicine, are not within the ken of the average juror.” It cites no authority for this
proposition, and, because the parties’ supplemental briefs were filed simultaneously, we lack
the benefit of any contrary argument Ms. Wright-Young might have made if the issue had
been raised sooner. We decline to address this argument.
¶ 101 The purpose of the supplemental briefing requested by this court was to allow the parties
to address what should be done if this court were to hold—as we now do—that although
some theories of liability presented at trial were legally defective, at least one was a proper
basis on which the jury could have based its verdict. Rather than answer that question, the
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Board held firm to its position that all theories were defective and even raised a completely
new causation argument in support of that position. This argument belonged in the Board’s
opening brief. Failing to appear there, it is forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. May 25,
2018) (“Points not argued are forfeited and shall not be raised in the reply brief, in oral
argument, or on petition for rehearing.”).
¶ 102 4. Special Interrogatories
¶ 103 As an alternative to reversal, the Board argues that it is entitled to a new trial because the
trial court refused to give two of the special interrogatories that it requested, which asked
(1) whether Mr. Davis or a member of his staff held positions within the Board’s sports
administration department “in which they exercised discretion or made policy decisions
about whether and how to provide security” at the basketball game and (2) whether the Board
was “providing police protection services by staffing security officers inside of the [JCC
arena]” during the game. We conclude that these interrogatories were properly rejected.
¶ 104 A special interrogatory is appropriate only where an affirmative answer would
necessarily be inconsistent with a general verdict the jury might reach. See Simmons v.
Garces, 198 Ill. 2d 541, 555-56 (2002) (“[s]pecial findings are inconsistent with a general
verdict only where they are clearly and absolutely irreconcilable with the general verdict”
(internal quotation marks omitted)). Here, because neither proposed interrogatory would
negate liability based on the Board’s failure to provide information to CSU, the court’s
refusal to submit them to the jury does not entitle the Board to a new trial.
¶ 105 C. The General Verdict Rule
¶ 106 Of course, we do not know that the Board’s failure to provide information to CSU was
the specific basis on which the jury’s finding of liability rested. Having determined that the
Board was immune from liability with respect to five of the six theories of liability presented
at trial—but finding no error if the jury’s verdict was based on the sixth theory—we must
decide whether the jury’s verdict should be allowed to stand.
¶ 107 Section 2-1201(d) of the Code of Civil Procedure provides that “[i]f several grounds of
recovery are pleaded in support of the same claim, whether in the same or different counts,
an entire verdict rendered for that claim shall not be set aside or reversed for the reason that
any ground is defective, if one or more of the grounds is sufficient to sustain the verdict.”
735 ILCS 5/2-1201(d) (West 2016). This is a codification of the common law general verdict
rule (see Moore v. Jewel Tea Co., 46 Ill. 2d 288, 294 (1970) (noting, nearly 50 years ago, that
the rule was “settled law”)) or, as it is referred to by some courts, the “two issue rule” (see,
e.g., Strino v. Premier Healthcare Associates, P.C., 365 Ill. App. 3d 895, 904 (2006)). Having
reviewed the supplemental briefing we asked the parties to submit on this issue, we agree
with Ms. Wright-Young that the general verdict rule applies here and requires us to affirm
the jury verdict. As the authorities she cites demonstrate, courts have applied the rule
broadly, against both plaintiffs and defendants, and in cases involving just two possible bases
for the jury’s general verdict or several. See, e.g., Witherell v. Weimer, 118 Ill. 2d 321, 329,
339 (1987) (general verdict for the plaintiff; two theories); Dillon v. Evanston Hospital, 199
Ill. 2d 483, 492 (2002) (general verdict for the plaintiff; several theories); Strino, 365 Ill.
App. 3d at 904-05 (general verdict for the defendant; two theories).
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¶ 108 The Board’s only argument for why the general verdict rule should not apply is that it
was prejudiced by an “avalanche of highly prejudicial evidence” relating to its failure to
provide adequate security at the basketball game, a theory of liability that should never have
been presented to the jury. Although we agree that this was unfortunate, the general verdict
rule presupposes that a jury will have heard evidence it should not have. Section 1201(d)
expressly applies when several grounds of recovery are advanced at trial and even one is
legally sound and supported by the evidence. 735 ILCS 5/2-1201(d) (West 2016)). By
enacting it, the legislature clearly prioritized the upholding of jury verdicts, wherever
possible, over the prejudice a losing party may have suffered as a result of a jury’s exposure
to evidence relating to legally defective or insufficiently supported theories. This is a priority
long shared by courts. See Kessling v. United States Cheerleaders Ass’n, 274 Ill. App. 3d 776,
779-80 (1995) (noting that, when determining whether an inconsistency exists between a
jury’s special finding and its general verdict, “all reasonable presumptions must be exercised
in favor of the general verdict”). Even if we were inclined to do so, we have no authority to
read into section 2-1201(d) exceptions or limitations not contemplated by its drafters. See
Bellfield v. Coop, 8 Ill. 2d 293, 307 (1956) (“The only legitimate function of the courts is to
declare and enforce the law as enacted” and “not to annex new provisions or substitute
different ones, or read into a statute exceptions, limitations, or conditions which depart from
its plain meaning.”). The jury’s general verdict in favor of Ms. Wright-Young will stand.
¶ 109 IV. CONCLUSION
¶ 110 For the reasons stated above, we affirm the trial court’s judgment on the jury’s verdict
against the Board and in favor of Ms. Wright-Young.
¶ 111 Affirmed.
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