Doe v. Bridgeforth , 102 N.E.3d 710 ( 2018 )

2018 IL App (1st) 170182
SIXTH DIVISION
March 9, 2018
No. 1-17-0182
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
JANE DOE, Individually and as Parent and Next Friend of ) Appeal from the Circuit
Doe Child, ) Court of Cook County.
)
Plaintiff-Appellant, )
) No. 12 L 6805
v. )
)
IDRIS BRIDGEFORTH and the BOARD OF EDUCATION ) Honorable
OF THE CITY OF CHICAGO, ) Thomas Lipscomb,
) Judge Presiding
Defendants-Appellees. )
JUSTICE DELORT delivered the judgment of the court, with opinion.
Justices Cunningham and Connors concurred in the judgment and opinion.
OPINION
¶1 Doe Child, a student at Ashburn Community Elementary School (Ashburn) in Chicago,
was sexually abused by defendant Idris Bridgeforth, an Ashburn faculty member. 1 After
Bridgeforth’s conduct was discovered, two legal proceedings ensued, one criminal and one civil.
The criminal proceeding culminated with Bridgeforth’s conviction for criminal sexual assault
and aggravated criminal sexual assault. See People v. Bridgeforth, 2017 IL App (1st) 143637.
The civil proceeding, which is the subject of this appeal, commenced when J.E.’s mother, Jane
1
In the criminal case, this court referred to Doe Child as “J.E.” For consistency, we will refer
hereinafter to her in the same manner.
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Doe, sued Bridgeforth for damages under several tort theories, and the Board of Education of the
City of Chicago (CPS) for willful and wanton conduct. The case proceeded to trial on (1) the
willful and wanton conduct claim against CPS and (2) damages against Bridgeforth. The jury
returned verdicts in favor of CPS and Bridgeforth.
¶2 Jane Doe’s principal contention on appeal is that she is entitled to judgment n.o.v. on the
willful and wanton conduct claim because she produced overwhelming evidence establishing
that CPS was deliberately indifferent to J.E.’s safety. She also maintains that she is entitled to a
new trial because (1) CPS’s attorney misstated the law during closing argument, (2) the jury
instructions and verdict forms were inaccurate and confusing, and (3) the jury ignored “proven
elements of damages.” We affirm in part, reverse in part, and remand.
¶3 BACKGROUND
¶4 On June 18, 2012, Jane Doe, on behalf of herself and of her daughter J.E., filed this
lawsuit against Bridgeforth and CPS. The complaint, as later amended, contained five counts.
Counts I through III were for battery, negligent infliction of emotional distress, and intentional
infliction of emotional distress, respectively. These counts were brought against Bridgeforth, a
CPS employee who coached J.E.’s basketball and track and field teams.
¶5 Count IV, against CPS, was for willful and wanton conduct. It alleged that between
August 1, 2009, and June 7, 2012, Bridgeforth transported J.E. to and from basketball and track
and field games and practices using his personal vehicle. Count IV further alleged that, between
December 1, 2011, and June 7, 2012, Bridgeforth repeatedly sexually assaulted J.E. while she
was alone with him in his vehicle and sent her numerous sexually charged text messages. Jane
Doe alleged that CPS engaged in willful and wanton conduct by, among other things, “fail[ing]
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to stop *** Bridgeforth from harming [J.E.] when they knew that Bridgeforth was repeatedly
alone with [J.E.] in his vehicle which was a known violation of CPS policy.”
¶6 Bridgeforth was served but never appeared in the circuit court and was defaulted before
trial. When trial began, the judge told the jury, “[i]t has been judicially determined that
[Bridgeforth] committed the acts the Plaintiff alleged.” And, when the court instructed the jury
after the close of evidence, it told the jury that it had “found” Bridgeforth “liable” and that CPS
“is not to be prejudiced by the fact that the liability of *** Bridgeforth is no longer at issue.”
¶7 Because of the nature of the issues presented, we must recite the trial evidence in unusual
detail. At trial, Jane Doe testified that on the morning of June 6, 2012, she saw several sexually
charged text messages on an iPod device J.E. had been using. Jane Doe recognized that the
sender’s phone number was Bridgeforth’s. In the texts, Bridgeforth stated that he loved J.E. and
wanted to have sexual intercourse with her. After viewing the texts, Jane Doe went to Ashburn,
where she met with Jewel Diaz, the school principal. Shortly afterwards, J.E. arrived at Ashburn
and joined the meeting. When asked about the texts, J.E. at first said they “were from
[Bridgeforth’s] daughter’s friend that was a guy.” Jane Doe became upset and left the meeting
because “[J.E.] was covering up for [Bridgeforth].”
¶8 Jane Doe testified that she was unaware that CPS had a transportation policy that required
faculty to obtain written permission before using their private vehicles to transport students. She
stated that she would have given Bridgeforth written permission to transport J.E. in his personal
vehicle had he requested it. However, she testified that “there would be no reason for him to ride
alone” with J.E. because “there’s a whole team.” She further testified that it would have been
suspicious for Bridgeforth to ask permission to drive alone with J.E.
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¶9 On cross-examination, Jane Doe testified that she had an arrangement with Bridgeforth to
drive J.E. home after practices when she was not available. She admitted that she “knew that
there were times that [he] was bringing” J.E. home. She explained, however, that she “was under
the assumption that he was bringing the whole team.” Jane Doe admitted that she “never had any
suspicion” about Bridgeforth; if she did, she would not have allowed Bridgeforth to give J.E.
rides home.
¶ 10 J.E. testified that she attended Ashburn from kindergarten through eighth grade. She was
on the track team from fifth to eighth grade, and the basketball team from sixth to eighth grade.
Bridgeforth coached both teams. When a team had an away game, the coaches, including
Bridgeforth, would transport the players, including J.E., to and from the game. In addition,
Bridgeforth also transported J.E. home from practices. She explained that she was often alone
with Bridgeforth during these rides.
¶ 11 When J.E. was in eighth grade, Bridgeforth began engaging in a course of sexual
misconduct during their car rides. In one incident, Bridgeforth touched J.E.’s inner thigh and
chest. Later, while driving J.E. home from a weekend track meet, Bridgeforth felt J.E.’s inner
thigh and inserted his finger into her vagina, which J.E. testified was physically painful. In
addition, Bridgeforth (1) frequently kissed J.E., (2) tried to coerce her into performing fellatio on
him by “pull[ing] my head down into his lap,” (3) asked J.E. to have sexual intercourse with him,
and (4) fondled himself in front of her.
¶ 12 On June 6, 2012, Jane Doe discovered the text messages that Bridgeforth had sent to J.E.
That day, when J.E. arrived at school, she was called into a meeting with Principal Diaz and Jane
Doe, where she was asked about Bridgeforth’s abuse. J.E. asked to speak to Megan McKay, one
of her teachers. J.E. told McKay that Bridgeforth touched her inappropriately.
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¶ 13 On cross-examination, J.E. testified that Bridgeforth was well liked at Ashburn and did
not have a reputation for “doing inappropriate things.” She explained that often when
Bridgeforth gave her rides, other children were already in the car. Although J.E. did not know if
her mother had given Bridgeforth permission to drive her, she stated that her mother knew that
Bridgeforth was taking her home.
¶ 14 Denise Sklenar, a school clerk at Ashburn, testified that CPS had a written transportation
policy. The policy, which was read into the record during her testimony, prohibited CPS faculty
from using their personal vehicles to transport students unless the faculty member had written
permission from the school principal and the student’s parent or guardian. Sklenar stated that the
policy was enacted “for the safety of the children who go to Ashburn” and to prevent CPS
employees from having the opportunity to abuse or assault students.
¶ 15 On cross-examination, Sklenar testified that she never heard Bridgeforth say anything
lewd or inappropriate. Sklenar then testified that she did not have any reason to suspect that
Bridgeforth would sexually assault J.E.
¶ 16 Tonya Rippy, a teacher at Ashburn, testified that one of the reasons for CPS’s
transportation policy was to ensure student safety. She agreed that if a teacher transported a
student in his or her private vehicle without parental permission, the teacher would be violating
the policy and putting the student at risk.
¶ 17 Thereafter, she testified that she was a friend of Jane Doe and that they had a private,
verbal agreement for Rippy to drive J.E. to and from school when Jane Doe was unavailable. She
did not think written permission was necessary because she was “not wearing [her] teacher hat.”
She testified that other Ashburn faculty members saw her driving J.E., but that no one ever asked
her if she had written permission from Jane Doe. Likewise, Rippy saw Bridgeforth driving
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students, including J.E., but she never asked if he had permission because she “assumed that
permission was granted.”
¶ 18 On cross-examination, Rippy testified that Jane Doe was aware that Bridgeforth was
driving J.E. She recalled a conversation in which Jane Doe said, “[d]on’t worry about her, she
has a game. She’s going to be coming home with [Bridgeforth].” Rippy understood this to mean
that Jane Doe had given Bridgeforth permission to drive J.E. Rippy testified that she never heard
Bridgeforth say anything sexual or inappropriate, and that nothing about Bridgeforth stood out in
her mind as a “red flag” that she “should have caught in hindsight.”
¶ 19 Leroy Martin, a special education teacher at Ashburn, testified that he coached Ashburn’s
football team with Bridgeforth. He stated that if he saw a student getting into a faculty member’s
private vehicle, he would “probably” ask a superior if the faculty member had permission to
transport the student. He explained that a faculty member who saw a student in another faculty
member’s vehicle and did not “ask any questions” would be “making a decision to not act with
regard for the safety of the child.” He stated that if he saw a child getting into a faculty member’s
vehicle, he would investigate because “that would raise a red flag.” Martin then testified that at
the time of trial, he had recently transported students to a game in his personal vehicle even
though he did not have written permission. He explained that “it was a last-minute thing ***.
The game was that day, and we didn’t have any buses that day.”
¶ 20 On cross-examination, Martin testified that during the 2011-12 school year, he never saw
J.E. get into Bridgeforth’s vehicle. He stated that he never heard Bridgeforth say anything sexual,
lewd, or improper, and he testified that Bridgeforth never did anything or said anything that, in
hindsight, raised a “red flag about what happened to [J.E.]”
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¶ 21 Deidra Richardson testified that she was a teacher at Ashburn. She testified that the
transportation policy was put in place to ensure student safety and that policy violations always
need to be reported “because we want to keep children safe.” On cross-examination, Richardson
testified that she never saw any student, including J.E., getting into Bridgeforth’s vehicle. She
stated that she never heard Bridgeforth say anything that was lewd or sexual in nature. She stated
that, in hindsight, nothing about Bridgeforth stood out to her as “red flag.” She testified, “[w]hen
I was told the news, I was *** stunned. I was literally stunned.” Upon further direct examination,
she explained that she was stunned because she “had no idea that [Bridgeforth] was the type of
person that was working at the school to do something to [J.E.]”
¶ 22 Megan McKay testified that she was a teacher at Ashburn. When J.E. was in the sixth
grade, McKay was her science and homeroom teacher. McKay stated that at some point before
June 2012, J.E. told her that Bridgeforth was transporting her in his private vehicle. McKay
acknowledged that she did not ask J.E. or Principal Diaz if Jane Doe had given Bridgeforth
permission to transport J.E.
¶ 23 On June 6, 2012, McKay was called to the school office and asked to speak to J.E. about
an incident involving Bridgeforth. McKay explained that J.E. specifically asked to speak to her
because she trusts McKay and felt safe with her. McKay explained that J.E. initially could not
speak because she was crying. Once J.E. regained her composure, she told McKay that she had
been texting with Bridgeforth for “months.” When McKay asked J.E. if Bridgeforth touched her
“down there,” J.E. “started crying uncontrollably.”
¶ 24 On cross-examination, McKay explained that she did not follow up when J.E. told her
about the rides because “[i]t didn’t seem like it was out of the ordinary and it was a weekend”
and she knew that Bridgeforth and Jane Doe were friends. She stated that she “assumed that
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there was an arrangement made as friends especially since it was the weekend.” Thereafter, the
following colloquy ensued:
“Q. You testified a bit ago that you said yes and no when
you were asked *** whether you felt that the school had failed to
protect *** [J.E.]
A. I think that everybody trusted him. When you trust
someone with your child, you know, there is a—I want to say
permission given to hey, yeah, can you pick her up, do this for me,
and that trust was violated. ***
Q. But there were no red flags that you were aware of?
A. No, there were no red flags.
Q. You were shocked when all of this came to light[,]
right?
A. Yes, very.
Q. So is it fair to say then there was nothing that you could
have done even with the benefit of hindsight?
A. No, there was nothing I could have done.
Q. *** Was there anything that Bridgeforth said that was
lewd or inappropriate—
A. No.
Q.—at any point in time?
A. No. Not at all.
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Q. Was there anything that you felt like that you could have
done to have prevented this incident?
A. Not then, no.
Q. Was there anything that you felt like anybody else at
Ashburn, any other employees, your friends or colleagues could
have done to have prevented this incident?
A. No.
Q. So what I am gathering from you is that Bridgeforth is
the culprit and there is nothing that you or the school could have
done, is that right?
A. That is right.”
¶ 25 Jewel Diaz, Ashburn’s principal, testified that before June 6, 2012, she was not aware
that students were receiving rides to and from games from coaches and that she never witnessed
a student getting into a coach’s private vehicle. On cross-examination, Diaz testified that she
never heard Bridgeforth say anything lewd, sexual, or inappropriate. She stated that she never
disciplined Bridgeforth and that she was unaware that Bridgeforth and J.E. had exchanged phone
numbers.
¶ 26 Ezra Townsend testified that he was a special education classroom assistant and coach at
Ashburn. Townsend testified that he saw Bridgeforth transporting J.E. in his private vehicle on
five occasions. He acknowledged that despite seeing J.E. in Bridgeforth’s vehicle, he never
asked Diaz or Jane Doe if Bridgeforth had permission to drive J.E. Townsend described a time
when Bridgeforth was giving Townsend, J.E., and some other students a ride home. According to
Townsend, he needed to be taken to the suburbs, and J.E. lived near Ashburn. However, rather
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than drop J.E. off first, Bridgeforth drove to the suburbs to drop Townsend off. Townsend asked
Bridgeforth why he was not dropping J.E. off first. According to Townsend, Bridgeforth “said
[J.E.] was going with me by her people house that live out by me [sic].”
¶ 27 Bridget Connolly testified for Jane Doe as a controlled expert in the field of educational
administration. Connolly reviewed the CPS transportation policy and stated that its purpose was
to “ensure the safety and well being of students[ ]” and “make sure there is a uniform practice on
transportation for the district.” She opined that one of the policy’s goals was to prevent student
sexual abuse. Connolly testified that Ashburn’s faculty violated the transportation policy “on a
consistent basis,” which in her opinion was “a cause of J.E.’s sexual abuse and sexual assault.”
She testified that CPS broke its own rules when Bridgeforth drove J.E. because he did not have
written permission from Jane Doe or Diaz. She opined that CPS had notice that Bridgeforth was
driving J.E. because Townsend, McKay, Diaz, and Richardson knew Bridgeforth was giving J.E.
rides. She noted that despite this, no one ever reported Bridgeforth’s conduct to a school
administrator.
¶ 28 Thereafter, Jane Doe’s attorney asked Connolly if she had “an opinion to a reasonable
degree of educational administrative certainty as to whether CPS blatantly disregarded” J.E.’s
safety. In response, Connolly testified, “I believe that they violated the travel policy and that put
the child in direct harm. I believe that they were aware that the policy violations were occurring
over time.” Connolly was then asked whether she had “an opinion as to whether Mr. Townsend
specifically and blatantly disregarded” J.E.’s safety. In response, she testified, “I believe that his
silence of not reporting the transportation of J.E. in a private vehicle by herself put her at risk.”
Upon further direct examination, Connolly opined that CPS “blatantly ignored the safety of
[J.E.]”
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¶ 29 Dr. Emily Arnstein testified that in August 2012, she was a clinical extern at Chicago
Children’s Advocacy Center (CCAC), during which time she treated J.E. for “complex trauma
from being sexually assaulted.” Dr. Arnstein testified to a reasonable degree of psychological
certainty that (1) the abuse J.E. experienced was affecting her functioning and (2) J.E.
experienced “psychological pain.” In addition, she opined that it was “possible” that the abuse
J.E. experienced “could have a long-lasting impact.”
¶ 30 On cross-examination, Dr. Arnstein testified that she attempted to evaluate J.E. using a
trauma symptom checklist. However, because J.E. was underreporting her symptoms, Dr.
Arnstein “could not consider it a valid profile.” She later testified that she was unable to opine to
a reasonable degree of psychological certainty that J.E. sustained trauma from the sexual abuse.
She acknowledged that in notes she took during J.E.’s therapy sessions, she described J.E.’s
mood as “euthymic,” meaning, “a normal mood in which the range of emotions is neither
depressed nor highly elevated.” Upon further examination, Dr. Arnstein explained, “[d]ue to the
high score in the underreporting scale, [J.E.] may have been in denial or may not have been
reporting them.”
¶ 31 Dr. Myra West, another of Jane Doe’s controlled experts, testified to a reasonable degree
of psychological certainty that J.E. experienced pain, suffering, and emotional distress and that it
was “definitely possible” and “more likely than not” that J.E. would have a “future psychological
effect” due to Bridgeforth’s abuse. In addition, Dr. West testified to a reasonable degree of
psychological certainty that J.E. “more likely than not” experienced trauma due to Bridgeforth’s
abuse and that J.E. “will continue to experience emotional pain as a result of what happened.”
¶ 32 CPS then presented its case-in-chief, beginning with the video deposition of its controlled
expert, Dr. Robert Galatzer-Levy. Dr. Galatzer-Levy testified that he disagreed with Dr. West’s
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conclusion that J.E. was “psychologically damaged” by Bridgeforth’s abuse. He explained that
Dr. West’s report “nowhere states that any particular symptom was caused by [J.E.] being
abused, nor does she anywhere state that it is more likely than not that [J.E.] will develop ***
any particular symptom.” Dr. Galatzer-Levy stated that there was “no data that supports and no
even opinion that supports her ultimate opinion. She keeps referring to things that may happen,
that are possible, but something that may happen or is possible is not the same as something that
is more likely than not to happen.”
¶ 33 Dr. Galatzer-Levy then opined that J.E. did not suffer psychological damage. He based
that conclusion on a number of factors. First, he noted that J.E. “nowhere states that she had any
psychiatric symptoms whatever.” Second, he stated that, although Jane Doe had noted that J.E.
was becoming irritable, “those symptoms occurred *** before the onset of the sexual abuse.”
Third, he stated that, while Jane Doe and J.E. were having trouble getting along, that was “not at
all atypical of 13-year old girls in relationship to their mother.” Fourth, he noted that Jane Doe
and J.E. both reported that J.E. was “in other respects doing quite well psychologically.” Finally,
he noted that, “in terms of [Dr. Arnstein’s] observations and [J.E.’s] statements to [Dr. Arnstein],
there was no indication of any illness or pathology.”
¶ 34 In addition, Dr. Galatzer-Levy testified that he did not believe J.E. was underreporting
her symptoms. He explained that because J.E. was “able to recall most of the event,” her “failure
to recall or reluctance to talk about the material is not itself a significant symptom.” He then
testified to a reasonable degree of medical and psychiatric certainty that J.E. “will never develop
psychiatric symptoms as a result of having been abused.” He explained that most children who
are sexually abused “do not later develop symptoms.” With specific reference to J.E., he
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explained that “the children who are most likely to develop symptoms later develop them early,
and this child has an—essentially an absence of symptoms immediately following the abuse.”
¶ 35 On cross-examination, Dr. Galatzer-Levy testified that he was not aware that Bridgeforth
(1) stated he felt J.E.’s pubic hair through her pants, (2) exposed his penis to J.E. and
masturbated in front of her, (3) grabbed J.E.’s head to try to force her to perform oral sex on him,
and (4) inserted his fingers into J.E.’s vagina. However, he testified that knowing that
information would not have changed any of his opinions. Dr. Galatzer-Levy acknowledged that
J.E. cried for approximately 30 minutes when she spoke to McKay, which he stated was a
symptom of emotional distress. When asked what caused J.E.’s distress, Dr. Galatzer-Levy
stated, “she might have been very distressed at simply recounting these events rather than by the
events themselves.”
¶ 36 Dr. Brandon Suarez testified that he was a clinical supervisor at CCAC, where he
supervised Dr. Arnstein when she was a clinical extern. Dr. Suarez stated that he reviewed and
approved Dr. Arnstein’s treatment notes and observed one of her sessions with J.E. During his
examination, CPS’s attorney asked Dr. Suarez if he could opine to a reasonable degree of
psychological certainty whether J.E. sustained trauma from the sexual assault. After counsel
clarified the question, Dr. Suarez stated, “it’s hard for me to say anything definitively.” He
explained:
“I think that because there was a high level of
defensiveness, it’s hard for me to say anything definitively.
Because without further assessment and further time *** as well—
because a lot of children, they don’t always show the symptoms of
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trauma immediately within 20 sessions, which could be a few
months.”
¶ 37 During CPS’s closing argument, the following colloquy occurred:
“Townsend—he’s known this family since she was a baby.
You have to ask yourself growing up with [J.E.], do you think that
man would have intentionally with conscious disregard or utter—
MR. MARASSO: Objection as to intentional.
THE COURT: Overruled.
MR. LAMANTIA: With conscious disregard or utter
indifference do anything to hurt her or put her in a position to be
hurt?”
¶ 38 During the jury instruction conference, CPS propounded a modified version of Illinois
Pattern Jury Instructions, Civil, No. 36.01 (2011) (hereinafter IPI Civil (2011) No. 36.01), which
the court tendered to the jury over an objection by Jane Doe. It read: “If you decide for the
defendant Board of Education of the City of Chicago on the question of liability, you will have
no occasion to consider the question of damages, as to the Board of Education of the City of
Chicago.” The court also tendered to the jury a modified version of IPI Civil (2011) No. 41.03,
which read:
“The rights of the defendants Board of Education of the
City of Chicago and Idris Bridgeforth are separate and distinct.
Each is entitled to a fair consideration of his own defense and you
will decide each defendant’s case separately as if it were a separate
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lawsuit. Each defendant’s case must be governed by the
instructions applicable to that case.”
¶ 39 The court also tendered three verdict forms and a special interrogatory to the jury.
Verdict Form A had three sections. The first section listed Bridgeforth and CPS on separate lines
and allowed the jury to check “yes” or “no” to indicate whether or not the jury had found in
favor of Jane Doe against each particular defendant. The second section asked the jury to assess
damages for J.E.’s (1) pain and suffering, (2) loss of normal life, and (3) emotional distress. The
third section asked the jury to apportion fault, in a way that equaled 100%, between Bridgeforth
and CPS. Verdict forms B and C allowed the jury to “find for” CPS and Bridgeforth,
respectively, and against Jane Doe. The special interrogatory asked: “Did the action or failure to
act by the Board of Education of the City of Chicago show an utter indifference or conscious
disregard for the safety of [J.E.]?”
¶ 40 When the jury announced it had reached a verdict, it had not answered the special
interrogatory, so the court directed the jury to continue deliberating. When the jury returned, it
had filled out verdict form B finding in favor of CPS and answered “no” to the special
interrogatory. The court instructed the jury to complete verdict form A and ordered the jurors
back to the jury room. After a third round of deliberations, the jury returned with verdict form A
filled out as follows: in section one, the jury found in favor of (1) Jane Doe against Bridgeforth
and (2) CPS against Jane Doe; in section two, the lines where the jury could assign damages
were left blank; and in section three, the jury found Bridgeforth 100% at fault. Jane Doe moved
for a mistrial and asked that the jury be polled. During jury polling, one juror answered, “I need
clarification on it.” After the court explained the polling question, the juror answered “yes.” At
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the close of proceedings, the court entered judgment on the jury’s verdict. Jane Doe filed a
posttrial motion for judgment n.o.v. and new trial, which the court denied. This appeal followed.
¶ 41 ANALYSIS
¶ 42 I. Willful and Wanton Conduct
¶ 43 We first consider Jane Doe’s argument that she is entitled to judgment n.o.v. on her
willful and wanton conduct claim against CPS. 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 inference from it in its aspect most favorable to the party against whom the motion is
directed, there is a total failure or lack of evidence to prove any necessary element of the
plaintiff’s case or the defendants’ defense.” Heideman v. Kelsey, 414 Ill. 453, 457 (1953). This is
an imposing standard. As the supreme court has explained, “[j]udgment notwithstanding the
verdict should not be entered unless the evidence, when viewed in the light most favorable to the
opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence
could ever stand.” Holton v. Memorial Hospital, 176 Ill. 2d 95, 109 (1997).
¶ 44 Section 3-108(a) of the Local Governmental and Governmental Employees Tort
Immunity Act (Act) provides:
“Except as otherwise provided in this Act, neither a local public
entity nor a public employee who undertakes to supervise an
activity on or the use of any public property is liable for an injury
unless the local public entity or public employee is guilty of willful
and wanton conduct in its supervision proximately causing such
injury.” 745 ILCS 10/3-108(a) (West 2012).
The Act defines “willful and wanton conduct” as
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“a course of action which shows an actual or deliberate intention to
cause harm or which, if not intentional, shows an utter indifference
to or conscious disregard for the safety of others or their property.
This definition shall apply in any case where a ‘willful and
wanton’ exception is incorporated into any immunity under this
Act.” Id. § 1-210.
¶ 45 Willful and wanton conduct is “an aggravated form of negligence,” not an independent
tort. Jane Doe-3 v. McLean County Unit District No. 5 Board of Directors, 2012 IL 112479,
¶ 19. “[T]o recover damages based on willful and wanton conduct, a plaintiff must plead and
prove [(1)] the basic elements of a negligence claim” and (2) that the defendant’s conduct
demonstrated “a deliberate intention to harm or a conscious disregard for the plaintiff’s welfare.”
Id.
¶ 46 “[W]illful and wanton conduct differs from mere negligence in that it ‘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.’ ” (Internal quotation marks omitted.) Barr v. Cunningham, 2017 IL 120751, ¶ 20 (quoting
Burke v. 12 Rothschild’s Liquor Mart, Inc., 148 Ill. 2d 429, 449, (1992)). “Illinois courts define
willful and wanton conduct, in part, as the failure to take reasonable precautions after knowledge
of impending danger.” (Internal quotation marks omitted.) Id.; see Lynch v. Board of Education
of Collinsville Community Unit District No. 10, 82 Ill. 2d 415, 429 (1980) (“ ‘A willful or
wanton injury must have been intentional or the act must have been committed under
circumstances exhibiting a reckless disregard for the safety of others ***.’ ” (quoting Klatt v.
Commonwealth Edison Co., 33 Ill. 2d 481, 488 (1965))). “To establish willful and wanton
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conduct in the absence of evidence of prior injuries,” the plaintiff must produce, “[a]t a
minimum, some evidence that the activity is generally associated with a risk of serious injuries.”
Barr, 2017 IL 120751, ¶ 21.
¶ 47 Based on these rules, our analysis can be distilled into two discrete inquiries. The first is
whether Jane Doe established that the act of permitting a teacher to transport a student to and
from athletic team practices and games in his private vehicle is “generally associated with the
risk of serious injuries,” in this case, teacher-on-student sexual assault. The second is whether
Jane Doe established that CPS “knew,” merely by virtue of various staff members knowing that
J.E. was receiving rides from Bridgeforth, that J.E. was under an impending danger of sexual
assault.
¶ 48 With respect to the first inquiry, Jane Doe’s evidence was plainly insufficient. To be sure,
Jane Doe did elicit testimony from Sklenar and Connolly to the effect that CPS enacted the
transportation policy to prevent sexual assault incidents. But this testimony had little value. The
transportation policy does not say its purpose is to prevent sexual assault. It does not actually
mention or refer to sexual assault at all. Moreover, although CPS did not object to this aspect of
Sklenar and Connolly’s testimony, its admissibility is questionable because Jane Doe did not
establish a foundation for Sklenar’s or Connolly’s testimony that the prevention of teacher-on­
student sexual assault was one of the goals that motivated CPS to promulgate the transportation
policy.
¶ 49 Foundation is the cornerstone of admissibility. See Ill. Rs. Evid. 701 (lay witnesses) (“If
the witness is not testifying as an expert, the witness’ testimony in the form of opinions or
inferences is limited to those opinions or inferences which are (a) rationally based on the
perception of the witness ***.”), 703 (eff. Jan. 1, 2011) (expert witnesses) (“The facts or data in
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the particular case upon which an expert bases an opinion or inference may be those perceived
by or made known to the expert at or before the hearing.”). Sklenar was a school clerk at
Ashburn. She was not an administrator at CPS, and she never said that she had a role drafting or
promulgating the transportation policy or that she had otherwise acquired firsthand knowledge of
what transpired during the CPS proceeding wherein the policy was adopted. The same is true for
Connolly, Jane Doe’s expert. Although an expert witness is entitled to testify to his or her
opinion so long as the opinion is made to a reasonable degree of certainty in the expert’s chosen
field, experts, like their lay counterparts, are nevertheless prohibited from engaging in guesswork
or conjecture. See Ill. R. Evid. 703 (eff. Jan. 1, 2011) ; Kinsey v. Scott, 124 Ill. App. 3d 329, 340
(1984) (“An expert witness may not base his opinion upon conjecture, speculation, or a guess.”).
Here, Connolly did not even work for CPS, and like Sklenar, never testified to any facts or
circumstances that could have established that she had knowledge, first-hand or otherwise, of
CPS’s motivations in promulgating the policy. 2 Thus both Sklenar’s and Connolly’s testimony
on this point was little more than an exercise in speculation. While CPS did not object to this
testimony, a rational juror could have easily sensed the fragility of this testimony and simply
afforded it no weight.
¶ 50 And even if the jury did credit this testimony, it would still not have been enough to
establish willful and wanton conduct by CPS. In application, the “generally associated” inquiry
boils down to whether the action at issue was inherently or obviously dangerous. Our supreme
court’s recent opinion in Barr is instructive on this point. In Barr, the plaintiff sued his gym
teacher and school board after he suffered an eye injury while playing floor hockey during gym
class. 2017 IL 120751, ¶ 3. The plaintiff alleged that the teacher engaged in willful and wanton
2
At trial, Connolly testified that to prepare her opinions, she reviewed CPS’s policies, unspecified
depositions, and some unidentified “supplemental materials.”
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conduct by failing to require the students to wear protective eyewear. Id. In the midst of trial, the
circuit court entered a directed verdict in favor of both defendants. This court reversed, reasoning
that the teacher’s failure to require protective eyewear could be considered by a jury as evidence
of willful and wanton conduct. Id. ¶ 10.
¶ 51 The supreme court disagreed with this result. The court began its analysis by discussing
Murray v. Chicago Youth Center, 224 Ill. 2d 213 (2007), and Hadley v. Witt Unit School District
66, 123 Ill. App. 3d 19 (1984), two cases where the plaintiff produced enough evidence to raise a
triable issue of fact with respect to the “generally associated” inquiry. Barr, 2017 IL 120751,
¶ 21. In Murray, a student suffered a severe spinal injury while using a trampoline during an
extracurricular activity. Murray, 224 Ill. 2d at 246. The court found that “the defendants’ failure
to take adequate safety precautions in light of their knowledge of the inherent dangers of the
activity raised genuine issues of material fact on the question of willful and wanton conduct.”
(Emphasis added.) Barr, 2017 IL 120751, ¶ 21 (citing Murray, 224 Ill. 2d at 246). In Hadley, a
student was injured in an industrial arts class. The evidence showed that the injured student and
three friends “attempted to pound a piece of scrap metal through a hole in an anvil,” that the
student’s teacher “observed the boys’ activity but did not tell them to stop or instruct them to put
on safety goggles,” and that “[a]fter about 20 minutes, a metal chip flew into plaintiff’s eye,
causing trauma and visual impairment.” Id. at 22 (citing Hadley, 123 Ill. App. 3d at 20). A panel
of this court “held that the teacher’s failure to act after observing the students engaging in a
‘dangerous activity’ could constitute willful and wanton conduct.” Id.
¶ 52 The Barr court then drew a distinction between the evidence the plaintiff introduced at
trial and the facts of Murray and Hadley. It explained:
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“In contrast to Murray and Hadley, there was no evidence
presented at trial that floor hockey played with plastic hockey
sticks and squishy balls is an obviously dangerous activity.
Plaintiff failed to introduce evidence of any particular dangers
associated with floor hockey that called for the use of protective
eyewear by students. Thus, plaintiff failed to meet his burden of
proving that defendants knew or had reason to know that he could
be seriously injured from playing floor hockey without safety
goggles.” Id. ¶ 23.
¶ 53 The evidence Jane Doe marshaled at trial in this case is similarly insufficient. Simply put,
Jane Doe did not introduce any evidence whatsoever that could have established a causal link or
relationship between (1) a school district allowing teachers to transport students in their personal
vehicles and (2) teacher-on-student sexual assault, which thus put CPS on notice as to the danger
J.E. was facing. Rather, her sole evidence on this point was Sklenar’s and Connolly’s testimony
about why CPS promulgated the policy, which, as we explained, lacked foundation. Based on the
evidence Jane Doe introduced at trial, a rational juror could have easily rejected the proposition
that permitting a teacher to use his or her personal vehicle to transport a student to or from a
school-approved event is necessarily or “generally associated” with teacher-on-student sexual
assault.
¶ 54 Jane Doe fares no better on the second inquiry, i.e., showing that CPS knew—merely
because several of its employees were aware that J.E. was receiving rides from Bridgeforth—that
J.E. was under an impending danger of sexual assault. Once again, Barr is instructive. In Barr,
the court faulted the plaintiff for failing to introduce evidence showing that the defendants “were
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aware of facts which would have put a reasonable person on notice of the risk of serious harm
from the activity.” Id. ¶ 24. Here, Jane Doe proved at best that CPS knew Bridgeforth was
violating the transportation policy by giving J.E. rides in his private vehicle without written
permission from Diaz and Jane Doe. But the record contains no support for Jane Doe’s
conclusion that that evidence was sufficient to prove that CPS was on notice that J.E. faced an
impending danger of sexual assault from Bridgeforth.
¶ 55 In fact, the evidence at trial proved the exact opposite, namely that no one at Ashburn had
any reason whatsoever to suspect that J.E. was not safe with Bridgeforth. Virtually every CPS
employee who testified at trial stated one way or another that Bridgeforth’s behavior did not
display any red flags that could have “disclose[d] *** to any reasonable man” the danger which
J.E. was facing. (Internal quotation marks omitted.) Id. ¶ 20 (quoting Burke, 148 Ill. 2d at 449);
see id. ¶ 24 (willful and wanton conduct requires proof that the “defendants were aware of facts
which would have put a reasonable person on notice of the risk of serious harm from the
activity”). Sklenar stated that she “did not” have any reason to suspect Bridgeforth and that, if
she did, “it would have been addressed immediately.” Rippy, who was a friend of Jane Doe,
testified that there were was nothing about Bridgeforth that stood out as something she “should
have caught in hindsight.” Martin, who coached football with Bridgeforth, testified that
Bridgeforth never did or said anything that raised a “red flag about what happened to [J.E.]”
Similarly, Richardson testified that there were no “red flags” with Bridgeforth, and she stated
that she was “literally stunned” when she found out what happened because she “had no idea that
[Bridgeforth] was the type of person that was working at the school to do something to [J.E.]”
Likewise, McKay—the teacher J.E. sought out during the June 6 meeting—testified that “there
were no red flags,” “there was nothing I could have done,” and that Bridgeforth was the real
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culprit and that there was nothing she or anyone else at Ashburn could have done to prevent
Bridgeforth from abusing J.E. Diaz, for her part, testified that (1) she never heard Bridgeforth
say anything lewd, sexual, or inappropriate, (2) she never disciplined Bridgeforth, and (3) she
was unaware that Bridgeforth and J.E. had exchanged phone numbers. Even Jane Doe testified
that she “never had any suspicion” about Bridgeforth and that she would have given Bridgeforth
permission to drive J.E. had he formally requested it.
¶ 56 The bottom line is this: willful 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.” (Internal quotation
marks omitted.) Id. ¶ 20. Jane Doe never introduced any evidence that could have proven that
anyone at CPS (1) knew J.E. was in serious danger of being sexually assaulted because
Bridgeforth was transporting her in his personal vehicle or (2) knew of facts that would have
disclosed that danger. Simply put, at trial Jane Doe failed to establish why anyone at CPS should
have been able to deduce that Bridgeforth would sexually assault J.E. simply by knowing he was
giving her rides in his personal vehicle. Thus, a rational jury could have found against Jane Doe
on her willful and wanton conduct claim. The circuit court correctly denied Jane Doe’s motion
for judgment n.o.v. on her willful and wanton conduct claim against CPS.
¶ 57 Although it was a prominent feature of Jane Doe’s theory of the case, the fact that CPS
violated the transportation policy when Bridgeforth gave J.E. rides does not compel us to reach a
different conclusion. It is well established that “a public entity’s violation of its own internal
rules does not constitute proof of negligence, much less willful and wanton conduct.” Floyd v.
Rockford Park District, 355 Ill. App. 3d 695, 702 (2005); see Young v. Forgas, 308 Ill. App. 3d
553, 566 (1999) (“Internal rules and procedures *** do not impose a legal duty upon municipal
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entities and their employees.”). And even if evidence the policy was violated could be used to
support Jane Doe’s claim, she would still not be entitled to judgment n.o.v. At trial, Jane Doe’s
evidence that the policy violation caused J.E.’s injury came in through Connolly, who testified
that CPS “blatantly ignored the safety of [J.E.]” when its agents observed her in Bridgeforth’s
vehicle in violation of the policy and did nothing to investigate or intervene. But that testimony
could not have advanced Jane Doe’s claim. “Willful and wanton” denotes “a range of mental
states, from actual or deliberate intent to cause harm, to conscious disregard for the safety of
others or their property, to utter indifference for the safety or property of others.” (Emphasis
added.) Harris v. Thompson, 2012 IL 112525, ¶ 41. Connolly’s testimony that CPS “blatantly”
disregarded J.E.’s safety did not fall within any of the mental states embodied in the definition of
willful and wanton conduct. Indeed, “blatantly” is not even a mental state.
¶ 58 II. New Trial: Verdict Against the Manifest Weight of the Evidence
¶ 59 We next consider Jane Doe’s argument that she is entitled to a new trial because the
jury’s verdict in favor of CPS on her willful and wanton conduct claim was against the manifest
weight of the evidence. “ ‘[O]n a motion for a new trial a court will weigh the evidence and set
aside the verdict and order a new trial if the verdict is contrary to the manifest weight of the
evidence.’ ” Maple v. Gustafson, 151 Ill. 2d 445, 454 (1992) (quoting Mizowek v. De Franco, 64
Ill. 2d 303, 310 (1976)). “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.” Wardwell v. Union Pacific R.R. Co., 2017 IL
120438, ¶ 11. “[T]he determination of whether a new trial should be granted rests within the
sound discretion of the trial court, whose ruling will not be reversed unless it reflects an abuse of
that discretion.” Redmond v. Socha, 216 Ill. 2d 622, 651 (2005).
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¶ 60 Jane Doe maintains that CPS “admitted” that it engaged in willful and wanton conduct
and that a verdict in her favor was “evident.” We disagree. As we explained, Jane Doe never
introduced any evidence to establish that (1) CPS’s act of permitting Bridgeforth to drive J.E. in
his personal vehicle was generally associated with a risk of sexual assault or (2) CPS was aware,
by virtue of knowing that Bridgeforth was giving J.E. rides, that J.E. faced an impending danger
of being sexually assaulted. To the contrary, essentially every CPS employee who testified at
trial testified that Bridgeforth’s behavior did not manifest any warning signs that could, or
should, have led anyone at Ashburn to believe that he was a pedophile with whom J.E.’s safety
should not have been entrusted.
¶ 61 Moreover, for all that was made of the fact that several CPS employees saw J.E. in
Bridgeforth’s vehicle in violation of the transportation policy, that evidence was effectively
nullified by Jane Doe herself. At trial, Jane Doe testified that she had no reason to suspect
Bridgeforth, and she even testified that, had she been asked, she actually would have given
explicit permission to Bridgeforth to drive J.E. In light of that testimony, the jury could have
concluded that the fact CPS violated its transportation policy was irrelevant, since it was known
that Jane Doe would have ultimately given Bridgeforth permission if it had been requested. In
essence, this testimony severed whatever causal link existed between the policy violation and
J.E.’s injury. If Jane Doe would have given Bridgeforth permission to drive J.E. if he had asked,
then the policy violations could not have caused J.E.’s injury. Either way, permission or no
permission, J.E. would have ended up in Bridgeforth’s car. We thus disagree with Jane Doe’s
assertion that a verdict in her favor was “evident.”
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¶ 62 III. New Trial: Improper Closing Argument
¶ 63 We next consider Jane Doe’s argument that she is entitled to a new trial because CPS’s
attorney misstated the law during closing argument. “ ‘A new trial is not warranted based on an
improper opening statement or closing argument unless, when the trial is viewed in its entirety,
the argument resulted in substantial prejudice to the losing party or rose to the level of preventing
a fair trial. [Citations.] Errors in opening statements or closing argument must result in
substantial prejudice such that the result would have been different absent the complained-of
remark before reversal is required. [Citations.]’ ” (Emphases in original.) Parsons v. Norfolk
Southern Ry. Co., 2017 IL App (1st) 161384, ¶ 57 (quoting Davis v. City of Chicago, 2014 IL
App (1st) 122427, ¶ 84).
¶ 64 Jane Doe contends that during CPS’s closing argument, its attorney incorrectly argued to
the jury that Jane Doe had to show that CPS acted intentionally. We need not consider the
propriety of counsel’s remark because, based on our review of the record, it cannot be credibly
suggested that this statement impacted the outcome of the case. First, given the lack of evidence
supporting the willful and wanton conduct claim, it is simply not possible that the jury would
have returned a verdict in Jane Doe’s favor had the challenged remark not been uttered.
Moreover, even though Jane Doe’s objection was overruled, CPS’s attorney immediately
corrected himself after Jane Doe objected and conveyed the correct definition of willful and
wanton conduct to the jury. See Lagoni v. Holiday Inn Midway, 262 Ill. App. 3d 1020, 1035
(1994) (rejecting argument that a defense attorney’s misstatement of a witness’s testimony
prejudiced the plaintiff because the misstatement “was immediately objected to and corrected by
defense counsel”); People v. Boyd, 87 Ill. App. 3d 978, 985 (1980) (rejecting new trial claim due
to prosecution’s misstatement of the law where “the prosecutor immediately corrected himself in
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the next sentence”). Moreover, Jane Doe’s attorney conveyed the correct standard to the jury
during her closing argument, and during her rebuttal argument, her attorney expressly stated,
“[w]e don’t have to prove it’s intentional,” thereby curing any error. Bruske v. Arnold, 44 Ill. 2d
132, 138 (1969); see Wilson v. Humana Hospital, 399 Ill. App. 3d 751, 759 (2010). Any error
was further cured by the circuit court, which, following closing arguments, instructed the jury
that closing arguments are not evidence and tendered an instruction containing the correct
definition of willful and wanton conduct. See Lecroy v. Miller, 272 Ill. App. 3d 925, 933 (1995).
Under these circumstances, no reversible error occurred.
¶ 65 IV. New Trial: Improper Jury Instructions and Verdict Forms
¶ 66 We next consider Jane Doe’s argument that she is entitled to a new trial because the
circuit court tendered instructions and verdict forms that were confusing and misstated the law.
Specifically, she contends that the court erred by tendering IPI Civil (2011) No. 36.01 and
verdict forms B and C. “Whenever an IPI instruction is applicable in a civil case, the trial court,
giving due consideration to the facts and the prevailing law, is required to use that instruction.”
Hobart v. Shin, 185 Ill. 2d 283, 294 (1998); see Ill. S. Ct. R. 239(a) (eff. Apr. 8, 2013).
“Generally, a trial court’s decision to grant or deny an instruction is reviewed for abuse of
discretion.” Studt v. Sherman Health Systems, 2011 IL 108182, ¶ 13. “The standard for
determining an abuse of discretion is whether, taken as a whole, the instructions are sufficiently
clear so as not to mislead and whether they fairly and correctly state the law.” Dillon v. Evanston
Hospital, 199 Ill. 2d 483, 505 (2002). However, when the issue is whether the instructions
accurately stated the law, our review is de novo. Studt, 2011 IL 108182, ¶¶ 13. In either case,
“[a] reviewing court ordinarily will not reverse a trial court for giving faulty instructions unless
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they clearly misled the jury and resulted in prejudice to the appellant.” Schultz v. Northeast
Illinois Regional Commuter Railroad Corp., 201 Ill. 2d 260, 274 (2002).
¶ 67 We begin with IPI Civil (2011) No. 36.01. Jane Doe maintains that IPI Civil (2011) No.
36.01 was “unnecessary and confusing.” However, her appellate brief fails to argue that IPI Civil
(2011) No. 36.01 inaccurately stated the law or had the effect of rendering the instructions
inaccurate as a whole. To compound matters, aside from some basic citations laying out our
standard of review, Jane Doe did not cite a single case supporting her claim until her reply brief,
at which point she directs our attention to Misch v. Meadows Mennonite Home, 114 Ill. App. 3d
792 (1983), and Mileur v. Briggerman, 110 Ill. App. 3d 721 (1982). By proceeding in this
manner, Jane Doe denied CPS its rightful opportunity to respond to her argument, and she denied
this court the benefit of two carefully thought-out arguments. Nonetheless, we have considered
Misch and Mileur, and find that neither case supports Jane Doe’s argument.
¶ 68 With respect to Misch, Jane Doe’s reply brief highlights a passage in the court’s opinion
describing IPI Civil No. 36.01 as “ ‘reiterative and rather meaningless,’ ” and directing that it
“ ‘be used sparingly.’ ” (quoting Misch, 114 Ill. App. 3d at 799). Jane Doe fails to mention,
however, that the court in Misch rejected the plaintiff’s argument that the circuit court erred by
tendering IPI Civil (2011) No. 36.01. Worse still, Jane Doe’s reply brief contains only a partial
quotation of the court’s ultimate disposition of the IPI Civil (2011) No. 36.01 issue; in full, the
court said, “[t]he instruction is still proper, although it is reiterative and rather meaningless, and
so should be used sparingly.” (Emphasis added.) Misch, 114 Ill. App. 3d at 799. And in any
event, Misch’s admonition against using IPI Civil (2011) No. 36.01 is meaningless in light of
Illinois Supreme Court Rule 239(a), which mandates the use in civil cases of all pattern
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instructions that are on-point and accurate statements of the law. Ill. S. Ct. R. 239(a) (eff. Apr. 8,
2013).
¶ 69 Jane Doe’s reliance on Mileur is similarly misplaced. In Mileur, the plaintiff sued the
defendant for personal injuries sustained during a hunting accident. The jury returned a verdict
for the plaintiff for $2700.89 and determined that the plaintiff was 50% at fault for his injuries.
On appeal, the plaintiff argued that the circuit court erroneously tendered IPI Civil No. 36.01
because there was no evidence to justify it. This court agreed, stating, “based on the evidence the
jury could not decide the issue of liability in defendant’s favor, and the trial court, therefore,
erred in giving this instruction.” Mileur, 110 Ill. App. 3d at 728.
¶ 70 Attempting to draw a parallel between Mileur and the present case, Jane Doe emphasizes
that “the jury could not have found in Defendant Bridgeforth’s favor or against him on liability.
The issue was already determined.” But that misses the point. CPS propounded IPI Civil (2011)
No. 36.01 to protect its interests, not Bridgeforth’s. Regardless of whether Bridgeforth’s liability
had been established, CPS’s liability was still undetermined.
¶ 71 Elsewhere, Jane Doe in her appellate brief appears to suggest that IPI Civil (2011) No.
36.01 somehow led the jury astray when it came time to apportion damages against Bridgeforth.
That seems implausible, given that IPI Civil (2011) No. 36.01 does not mention Bridgeforth.
And if IPI Civil (2011) No. 36.01 did confuse the jury, that confusion could have lasted only so
long as it took the jury to finish reading IPI Civil (2011) No. 41.03, which stated:
“The rights of the defendants Board of Education of the
City of Chicago and Idris Bridgeforth are separate and distinct.
Each is entitled to a fair consideration of his own defense and you
will decide each defendant’s case separately as if it were a separate
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lawsuit. Each defendant’s case must be governed by the
instructions applicable to that case.”
¶ 72 We next turn our attention to Jane Doe’s complaint regarding the court’s decision to
tender, over her objection, verdict forms B and C. Jane Doe maintains that “everything the jury
could have lawfully decided, and even not lawfully decided as the jurors ended up doing, was
accounted for on Verdict Form A. Because all of the Jury’s findings could have been accounted
for on a single verdict form, the use of multiple verdict forms was confusing, prejudicial, and
ultimately led to a legally deficient verdict.”
¶ 73 We disagree with this argument insofar as it pertains to verdict form B. Though it was
perhaps duplicative of verdict form A in some respects, Jane Doe has nonetheless not explained
why verdict form B was confusing. Nor has she attempted to explain how verdict form B
rendered the instructions confusing and inaccurate in their totality. Jane Doe suggests that the
jury’s confusion was evidenced by the fact that one juror had difficulty answering the court’s
question when the jury was polled. Yet if anything, the record suggests that, rather than
expressing reservations about the verdict, the juror was simply confused by the court’s question.
This seems apparent to us given that, once the court clarified what each component of the polling
question meant, the juror answered, “yes.” We find no error in the court’s decision to tender
verdict form B to the jury.
¶ 74 Verdict form C is a different matter. Jane Doe maintains that verdict form C was
improper because “[t]he jury in reality could not find for Defendant Bridgeforth; it was a legal
impossibility.” This argument is well taken. Damages—in the sense of a manifested physical
injury—are not an element of the tort of battery. See Cohen v. Smith, 269 Ill. App. 3d 1087, 1091
(1995). Thus, once the court told the jury that Bridgeforth had been found “liable,” there was no
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way the jury could have legally awarded zero damages against him. Because verdict form C
permitted the jury to do something the law did not allow and the jury did that very thing, we find
that the court’s decision to tender verdict form C prejudiced Jane Doe in her claim against
Bridgeforth. As a result, we find that Jane Doe is entitled to a new trial against Bridgeforth on all
three categories of damages she requested.
¶ 75 V. New Trial: Damages
¶ 76 Jane Doe also argues that she is entitled to a new trial because the jury ignored proven
elements of damages. Technically, our finding that Jane Doe is entitled to a new trial because the
circuit court improperly tendered verdict form C to the jury renders this issue moot. Upon retrial,
Jane Doe will have the opportunity to once again present evidence to substantiate her claimed
damages. That fact notwithstanding, due to the possibility that the same problem will arise upon
retrial, we believe that interests of justice and judicial economy warrant discussion of one aspect
of this issue: Jane Doe’s claim for damages for pain and suffering.
¶ 77 It is well established that “[t]he determination of damages is a question of fact that is
within the discretion of the jury.” Snover v. McGraw, 172 Ill. 2d 438, 447 (1996). It is equally
clear from the case law that this court will not disturb a jury’s decision to award (or not award)
damages “unless a proven element of damages was ignored, the verdict resulted from passion or
prejudice, or the award bears no reasonable relationship to the loss suffered.” Gill v. Foster, 157
Ill. 2d 304, 315 (1993).
¶ 78 With respect to damages for pain and suffering, the supreme court has explained:
“In cases in which a plaintiff’s evidence of injury is primarily
subjective in nature and not accompanied by objective symptoms,
the jury may choose to disbelieve the plaintiff’s testimony as to
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pain. In such a circumstance, the jury may reasonably find the
plaintiff’s evidence of pain and suffering to be unconvincing.”
Snover, 172 Ill. 2d at 449.
¶ 79 At first blush, that seems to describe this case in a nutshell: J.E. testified to her subjective
feeling that Bridgeforth caused her to experience pain (she said it hurt when he put his finger in
her vagina), but she had no objective evidence, like a hospital bill or doctor’s note memorializing
a course of treatment, to substantiate that claim. So it would be appear that, under Snover, the
jury was free to accept or, as it did in this case, reject J.E.’s testimony.
¶ 80 Yet we do not think the matter is so simple. First, the plaintiff in Snover did not bring a
claim for sexual battery. Rather, Snover was a personal injury lawsuit following an automobile
accident. More to the point, in Snover, the court pinned its analysis on the possibility that “the
jury *** simply concluded [the plaintiff] suffered only minor injury and awarded damages
accordingly.” (Emphasis added.) Id. at 448.
¶ 81 In line with that holding, at oral argument, CPS’s attorney urged this court to deem the
injury J.E. suffered when Bridgeforth violated her legally “de minimis.” That invitation is easily
rejected. In truth, the fact that the Snover plaintiff’s injury was capable of being described as
“only minor” sets this case and Snover worlds apart. At least insofar as pain and suffering is
concerned, the harm visited upon a person by virtue of being sexually assaulted can never be
characterized as de minimis. There is no doubt that the minor victim in this case was harmed by
the sexual abuse visited upon her by Bridgeforth.
¶ 82 Snover itself does not require a different result. As we mentioned, Snover involved a
more benign set of facts—a car accident—rather than a sexual assault. The harm that results
from a sexual assault is categorically distinct from other more common forms of personal injury.
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A car accident may cause physical injury, but a sexual assault is an affront to the victim’s
personal dignity and autonomy; the injury is deep-felt and intrinsic.
¶ 83 The practical reality that would result from holding sexual assault victims to the Snover
standard provides further counsel against applying Snover to cases like the one before us. Snover
contemplates a world in which the plaintiff’s injury is susceptible to objective verification. This
normally occurs through testimony from a medical professional about the nature and extent of
the plaintiff’s injuries and course of treatment. That is fine and well for car crashes,
slip-and-falls, and workplace mishaps, but sexual assault is different. Applying Snover to sexual
assault cases would ignore the fact that not all sexual battery cases will present the sort of
objectively verifiable physical injury contemplated by Snover. Some victims do not report until
long after they were assaulted. Some victims will simply not bear the sort of physical indicia of
injury Snover demands. Indeed, under Snover, only victims who suffered brutal attacks causing a
manifestation of serious, latent, and objectively verifiable physical injuries would be able to
recover damages for pain and suffering. That cannot be the correct result, and we seriously doubt
that the supreme court intended that outcome in cases such as this when it decided Snover. We
therefore decline to apply Snover here.
¶ 84 Instead, we hold that, in tort cases in which the plaintiff proves that he or she was
sexually assaulted by the defendant, testimony by the plaintiff that the act constituting sexual
assault caused the plaintiff to experience physical pain is, absent evidence to the contrary,
sufficient evidence to necessitate an award of damages for pain and suffering.
¶ 85 With this guidance in hand, we remand this case to the circuit court for a new trial, solely
against Bridgeforth, on the issue of damages.
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¶ 86 CONCLUSION
¶ 87 The circuit court’s order denying Jane Doe’s motion for judgment n.o.v. on her willful
and wanton conduct claim against CPS is affirmed. The circuit court’s order denying Jane Doe’s
motion for new trial is reversed with respect to her damages claim against Bridgeforth and is
affirmed in all other respects. The case is remanded to the circuit court for a new trial, solely
against Bridgeforth, on the issue of damages.
¶ 88 Affirmed in part; reversed in part; remanded with instructions.
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