Hudson v. City of Chicago

SIXTH DIVISION
December 14, 2007
No. 1-05-2822
VERNON HUDSON, )
)
Plaintiff-Appellee, )
)
v. ) Appeal from the
) Circuit Court of
THE CITY OF CHICAGO, a Municipal ) Cook County, Illinois.
Corporation, )
) No. 01 L 6424
Defendant-Appellant and )
Third-Party Plaintiff-Appellant, ) Honorable
) Irwin J. Solganick
(James Scott, ) Judge Presiding.
)
Third-Party Defendant-Appellee). )
)
)
)
)
JUSTICE JOSEPH GORDON delivered the opinion of the court:
Plaintiff, Vernon Hudson, brought suit against defendant, the city of Chicago (the City),
and a Chicago police officer, Sung Joo Lee, alleging in two counts that Officer Lee, through
negligence and willful and wanton conduct, caused an automobile collision that left Hudson with
serious and permanent injuries including paraplegia. Hudson voluntarily dismissed Officer Lee
prior to trial and the case proceeded with the City as the sole defendant. The jury found for
Hudson on both counts and awarded damages of over $17.5 million. In addition to the general
verdict, the jury answered two special interrogatories. The City now appeals, arguing that it was
entitled to judgment not withstanding the verdict because it was immune under the Local
Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1-101 et seq.
No. 1-05-2822
(West 2004)) (Tort Immunity Act) from liability for negligence, and because the police officer's
conduct was not willful and wanton. The City alternatively argues that it is entitled to a new trial
because the trial court improperly allowed Hudson's expert to show a computer simulation of the
accident to the jury, because the jury was not properly instructed on what constitutes willful and
wanton conduct, and because plaintiff's attorney improperly advised the jury how to answer one
of the special interrogatories. For the reasons that follow, we affirm.1
I. BACKGROUND
Hudson's fourth amended complaint alleged that the City was liable for his injuries under
two theories. In count I, Hudson alleged that Officer Lee was negligent in the following respects:
"a. Exceeded maximum speed limits endangering life and property;
b. Failed to activate sirens, mars lights or emergency signals;
c. Drove her motor vehicle in a manner causing it to lose control and strike
Vernon Hudson;
d. Improperly executed a lane change striking Vernon Hudson's motor
vehicle;
e. Failed to exercise due care in operation of her vehicle; and
f. Failed to maintain a proper lookout for traffic then and there upon the
highway."
Count II of the complaint alleged that Officer Lee's conduct was willful and wanton in the
1
The City's third-party action against third-party defendant-appellee, James Scott, is not
part of this appeal.
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No. 1-05-2822
following respects:
"a. Failed to operate the motor vehicle at a speed and in a manner
compatible with conditions to ensure that control of the motor vehicle is
maintained at all times, in violation of General Order 97-3;
b. Improperly engaged in caravaning [sic] when it was not safe to do so, in
violation of General Order 97-3;
c. Improperly participated in a pursuit when she was not authorized to do
so in violation of General Order 97-3;
d. In violation of General Order 97-3, drover [sic] her motor vehicle
without due regard for the safety of all persons on the highway, including Vernon
Hudson;
e. Drove her motor vehicle in a manner causing it to strike Vernon
Hudson;
f. Recklessly failed to maintain control over her vehicle;
g. Recklessly executed a lane change striking Vernon Hudson's motor
vehicle; and
h. In violation of General Order 97-3, failed to adhere to basic traffic safety
practices by moving into lane #1 when it was not safe to do so;
i. In violation of General Order 97-3, used the activity of 'following' as a
subterfuge for a vehicle pursuit;
j. In violation of General Order 97-3, improperly engaged in the pursuit
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No. 1-05-2822
when the volume of vehicle traffic made it unsafe; and
k. Failed to abandon the vehicle pursuit when it was the most reasonable
course of action in violation of General Order 97-3."
Hudson's claims proceeded to trial on March 11, 2005. Hudson testified that on the night
of the accident, May 7, 2001, he left his job as a truck mechanic at about 8:20 p.m., entered the
Eisenhower expressway at Damen, and headed west in the rightmost of the four westbound lanes.
He stated that somewhere around Kedzie, he heard sirens and saw flashing lights coming from
behind him, so he put his turn signal on and pulled over to the right shoulder. Hudson stated that
a car had pulled onto the shoulder immediately in front of him so that he had drive beyond that
car to get onto the shoulder. He said that his car was "all the way over" onto the shoulder, except
that "just the left rear tire might have been on the line." Hudson stated that it was at that point his
car was hit, but that he could not remember anything further until he woke up in the hospital
sometime later. On cross-examination, Hudson stated that the weather on the night of the
accident was dry and clear.
Officer Lee testified on direct examination as an adverse witness that, at the time of the
occurrence, she was familiar with the police department general order 97-3, which described
under what circumstances police officers could engage in motor vehicle pursuits.
General order 97-3 was entered into evidence and the plaintiff's counsel had Officer Lee
read the following provisions aloud:
"These procedures provide Department members with guidelines to follow
when engaged in a motor vehicle pursuit. *** Members must be cognizant of the
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No. 1-05-2822
fact that motor vehicle pursuits are a serious matter with a potential for death
and/or injury to the officers, persons in the vehicle being pursued, and/or innocent
persons in the area and property damage.
***
Police officers operating unmarked Department vehicles will be permitted
to engage in a motor vehicle pursuit only when the fleeing motor vehicle or its
occupants represent an immediate and direct threat to life. Whenever a marked
Department vehicle becomes available to take over a vehicle pursuit, the unmarked
Department vehicle operator will withdraw as the primary pursuit unit and only,
with the approval of a supervisor assigned to the pursuit, assume the role of
secondary pursuit unit.
***
At no time will an officer use the activity of 'following'2 as a subterfuge for
a vehicle pursuit.
An active pursuit will involve no more than a primary and secondary
pursuit unit unless otherwise directed by a supervisor. All other units will remain
aware of the direction and progress of the pursuit, but will not actively participate,
2
The order defines "following" as "the discreet operation of a police vehicle, in compliance
with all traffic laws, behind a motor vehicle. Following is employed so that the member can
gather more information about the vehicle or its occupants in order to make an informed decision
about whether to effect a stop."
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No. 1-05-2822
and will not respond or parallel the pursuit on adjacent streets, unless specifically
authorized to do so.
***
The decision to initiate a pursuit rests with the individual officer. The
Department member will only engage in a motor vehicle pursuit when:
***
d. The necessity of immediate apprehension outweighs the level of
inherent danger created by the pursuit;
e. the speeds involved and/or the maneuvering practices engaged in, permit
the Department vehicle operator complete control of his vehicle and do not create
unwarranted danger to himself or others;
f. the volume of pedestrian and/or vehicular traffic permits continuing the
pursuit.
The decision to abandon a vehicle pursuit may be the most reasonable
course of action. Officers and their supervisors must continually evaluate the
nature of the pursuit in light of its danger and make a judgment to terminate the
pursuit, whenever necessary. A pursuit will be immediately terminated whenever:
***
Speeds involved, volume of pedestrian and/or vehicular traffic, presence of
weather and/or road hazards or the distance between vehicles indicates that further
pursuit will unnecessarily endanger the public and/or Department members.
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No. 1-05-2822
***
The following activities are prohibited during the course of a vehicle
pursuit:
***
c. caravanning3 (unless authorized by a supervisor).
***
(e) the foregoing provisions do not relieve the driver of an authorized
emergency vehicle from the duty of driving with due regard for the safety of all
persons, nor do such provision protect the driver from the consequences of his
reckless disregard for the safety of others.
***
The operation of an authorized emergency vehicle does not relieve the
driver from the responsibility of driving with due regard for the safety of all
persons.
Any Department vehicle operator who is involved in an accident while
responding to an emergency situation will be required to justify his actions.
When responding to an emergency situation or assignment, the sworn
Department vehicle operator of a marked vehicle will:
***
3
The order defines "caravanning" as "the following and direct participation in a pursuit by
more than two police vehicles."
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No. 1-05-2822
2. adhere to basic traffic safety practices.
3. operate the vehicle at a speed and in a manner compatible with weather
and local conditions to ensure that control of the vehicle is maintained at all times."
Officer Lee testified that she was not in pursuit of the fleeing suspect and was not
"following as a subterfuge" for pursuit in violation of the general order. Rather, she stated that
she was attempting to "assist" the other officers who were actually doing the pursuing. Officer
Lee admitted, however, that she had never been trained in "assisting."
Officer Lee stated that on the day of the accident she was at the 11th district police station
at Kedzie and Harrison with Officer Howard Ray. She said that they had been processing an
arrestee and were just leaving the station when they heard a call over the police radio that a
homicide suspect in a white van was being pursued on the eastbound lanes of the Eisenhower
expressway. Officer Lee acknowledged that the radio dispatcher did not request her participation
in the pursuit and that she did not advise her supervisor or the radio dispatcher that she was going
to participate in the pursuit. She denied any intention to actively participate in the pursuit and
stated that she was not required to advise anyone that she was going to enter the area in which
the pursuit was taking place.
Officer Lee testified that, prior to the collision, she and Officer Ray entered the eastbound
lanes of the expressway and were traveling for a few minutes when they heard on their police
radio that the suspect had turned around and begun to travel in the opposite direction in the
westbound lanes. Officer Lee said that they then correspondingly exited the eastbound lanes at
Western Avenue and reentered the westbound lanes. She stated that she heard the sirens of other
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No. 1-05-2822
police cars when reentering the expressway, but she was not sure that she saw any of them. She
said that she never saw the white van being pursued.
Officer Lee described that when she was entering the westbound expressway, there were
"a lot of citizen" cars. She did not change lanes right away, but at some point changed from lane
1, the rightmost lane which she had initially entered, to lane 2, immediately to the left. She stated
that she subsequently moved back to lane 1, where the collision occurred. Officer Lee stated that
there was traffic "all around" and "they were moving with me." She said that she did not recall
whether civilian cars were passing her, but that "they must [have been]. I didn't pay attention to
other cars that much." She said that as she was driving on the expressway before the collision,
"some cars were going to the right [apparently to yield, but that] some cars were going straight."
Officer Lee further stated that at some point prior to the collision she had activated her
emergency lights and specifically recalled checking to make sure they were on.
In describing the collision, Officer Lee stated that she had just completed her lane change
from lane 2 back to lane 1 when she saw Hudson's car pulling out in front of her from the
shoulder. She said she immediately applied the brakes but that she struck the rear of Hudson's
car. She said that she lost control of her car after she applied her brakes. In response to
questions from plaintiff's counsel about whether anything prohibited her from seeing Hudson's car
prior to the collision, she stated: "I was not necessarily looking if someone will merge into my
lane from the shoulder." She further stated: "I wasn't looking at the *** lane that I was going in.
I was looking at the car in front of me. I looked at the rear mirror, I looked at the side mirror, I
looked back. When I knew that it was clear in my lane, I made my lane change." Officer Lee
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No. 1-05-2822
stated that she had been traveling at approximately 45 to 50 miles per hour.
On cross-examination by counsel for the City, Officer Lee stated that at the time of the
accident, she believed that the she could help "avert or reduce the seriousness of the situation."
She explained:
"It could be as little as traffic control because the offender was going back on and
off the expressway going east and west. Citizens are not aware of this. So officers
in that area can help the citizens not to get injured *** and also *** it could be
that when the officers are affecting arrest on that offender, he might *** grab a girl
on the street or citizens on the street, or he could be shooting at people or he
could be shooting at officers. I don't know what's going to happen ***. What I
know is it was a homicide offender, that he was reasonably believed to be armed,
that as many officers' help in that area and listening to or be aware of the progress
of the pursuit is necessary."
She further stated that she was trained to "help out" in this manner.
On redirect examination, when asked whether she thought it was okay to violate general
order 97-3 and chase the subject, Officer Lee stated: "I did not chase the suspect." She further
denied that she was attempting to catch up to the pursuit. She also stated that when she entered
the expressway, the pursuit was a half mile to a mile away and that she was "hoping that she
[could be] of assistance."
Plaintiff next called Jason Lococo, an Illinois State Police trooper, who testified that he
arrived at the scene of the collision shortly before fire personnel and paramedics arrived. He
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No. 1-05-2822
stated that when he arrived Hudson's vehicle was overturned on the shoulder, but he did not recall
the location of Officer Lee's vehicle. After being shown photographs, he stated that Officer Lee's
vehicle was facing northeast – in the opposite direction of the flow of traffic. He noted that the
majority of the damage to Officer Lee's vehicle was to the left front portion and that there was
damage to the left side of Hudson's vehicle.
Officer Lee's partner, Officer Ray, was next to testify. He stated that on May 7, 2001, he
and Officer Lee heard a radio dispatch about a white van being pursued on the 290 (Eisenhower)
expressway. He acknowledged that they were not directed or instructed by dispatch to
participate in the pursuit, but that they took it upon themselves to do so.
Officer Ray stated that as he and Officer Lee entered the westbound expressway, he could
see that there were "a number" of police cars chasing the white van. He acknowledged that
neither he nor Officer Lee told dispatch that they saw the pursuit or that they were going to
participate in it. He said by the time he and Officer Lee entered the expressway, the actual pursuit
was several blocks ahead. He said that there was civilian traffic on the road and that they had to
maneuver into different lanes as a result of the traffic in front of them. Officer Ray denied that he
and Officer Lee were attempting to apprehend the suspect, averring that they were "intending to
assist the officers."
Officer Ray stated that he did not see Hudson's vehicle until right before the impact and
that he did not recall seeing it move from the right shoulder in front of their vehicle. He said that
he and Officer Lee were in lane 2 or 3 before the crash.
On cross-examination, Officer Ray stated that assisting other officers was part of his
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No. 1-05-2822
duties. He further described that when there is a pursuit of a homicide suspect
"we are able to assist in the pursuit or assist the officers. For instance, say a chase
has ended in the offender stopping the vehicle, jumping out of the car. At that
point, they may need assistance for information from the neighborhood people
explaining where the guy went, and that's where I would come in at. Or they need
assistance in apprehending the offender due to the fact he may be able to run fast
or he's agile, and that's where I would come in at as far as assisting. Or canvassing
the area to apprehend the offender."
He further stated that police officers are not supposed to wait for a supervisor to tell them to
assist other officers.
With regard to the minutes preceding the accident, Officer Ray stated that he saw the
white van being pursued as he and Officer Lee entered the westbound expressway. He said that
Officer Lee did not try to catch up with the pursuit and that she was not traveling at a high rate of
speed. He said that they were not in pursuit but that he considered himself an "assistant to the
pursuit." He further stated that their vehicle's flashing lights and sirens were on at all times.
On redirect, Officer Ray estimated that Officer Lee was traveling approximately 50 or 55
miles per hour at the time of the accident. He stated that he could not recall whether he or
Officer Lee engaged the vehicle's lights, but he knew they were on. However, he later stated that
he could not recall if the emergency lights were on.
Lieutenant Carolyn Jackson testified that at the time of the accident she was a field
lieutenant and a watch commander. She stated that she was familiar with the police department
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No. 1-05-2822
general orders regarding pursuits. She stated that officers who are "actively involved in pursuit"
are actively trailing a suspect's vehicle. She acknowledged that if Officers Lee and Ray left their
positions and entered the expressway with their lights and siren on and the pursuit was directly in
front of them and they were trailing it, that would mean they were actively engaged in the pursuit.
She said that if Officers Lee and Ray were assisting in apprehending a suspected felon, they were
required under department policy and procedure to advise dispatch; however, she stated that it
was likely that dispatch had ordered radio silence in order to keep contact with the people who
were actually doing the pursuit. Lieutenant Jackson also stated that it is a police officer's duty to
assist in the apprehension of a fleeing homicide suspect if in the same geographic area. Finally,
Lieutenant Jackson stated that in her review of the incident, she learned that 12 to 15 police
vehicles were involved in the pursuit.
The jury was next shown the videotaped deposition of an eyewitness, Denise Patrick, who
testified that on May 7, 2001, she was standing outside the 290 Lounge, which is located on the
south side of the Eisenhower expressway between Homan and Central Park Avenues. Patrick
stated that while she was standing outside, she heard sirens and then saw flashing lights on the
expressway. She stated that she could see that the police were involved in a chase but could not
see who was being pursued. After seeing this pursuit from her vantage outside the 290 Lounge,
Patrick went over to the gate that separated the expressway from the street.
Patrick stated that, from that position, she saw a collision, describing that "one car was
trying to get over to the shoulder when a police car come from the far left and all the way up to
the right and hit him, like right to *** the back of his car almost." She stated that just the front
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No. 1-05-2822
part of Hudson's car was on the shoulder at the point of the impact. She said that the police car
was in the far left of the four lanes when she first saw it and that it was going 55 to 65 miles per
hour. She said Hudson's car was going approximately 10 miles per hour. She said that the police
car "jumped from the [far] left lane" to the far right lane and stated that she did not know why it
did so, because the left lane from which the car "jumped" was not impeded by traffic. She further
stated the police car struck the back of Hudson's car as he was "approaching to get off on the
shoulder."
On cross-examination, Patrick admitted that prior to witnessing the accident she had
consumed about four drinks of alcohol. She further acknowledged that she may have previously
stated that the police car she witnessed had its emergency lights on at the time of the accident.
Plaintiff next called Dr. Mariusz Ziejewski as an expert witness. Dr. Ziejweski reported
that he has a Ph.D. in mechanical engineering and is a member of the faculty of the college of
engineering at North Dakota State University. He stated that he is a member of the Society of
Automotive Engineers and has presented several peer-reviewed papers in the area of impact
analysis to automotive structures. He explained that "impact analysis" involves the "analysis of
how vehicle structure deforms when sudden force is applied, in a car collision or in other event."
Dr. Ziejewski explained that he was hired by plaintiff's counsel to "perform engineering
analysis and explain how the accident *** occurred, how the vehicles collided, and what
happened dynamically to the vehicles as a result of the collision." He stated that the materials he
reviewed in reaching his opinion included the traffic crash report, depositions of the police
officers involved, the deposition of Hudson, and multiple photographs.
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No. 1-05-2822
Dr. Ziejewski explained that from the photographs he observed damage to left front of the
police vehicle and damage to the entirety of Hudson's vehicle. He noted that the extensive
damage to Hudson's vehicle was attributable to the fact that the vehicle had rolled over and made
his analysis as to how the accident occurred much more difficult. However, he was able to
observe specific damage to the left front quarterpanel and to the left corner of the bottom corner
of the bumper.
Dr. Ziejewski determined that the initial point of impact on the police vehicle was at its
left front corner. He further stated that the initial point of impact on Hudson's vehicle was at its
rear left quarterpanel. He specifically ruled out the possibility that the initial point of impact on
Hudson's vehicle was at its rear bumper, explaining that the nature of the damage, which was an
indented, v-shape, would not match the initial point of impact at the left front of the police
vehicle, which was essentially a straight edge. Dr. Ziejewski further noted that the police vehicle
ended up facing against the direction of traffic.
Dr. Ziejewski opined that right before the initial impact, Hudson's vehicle was basically
pointing to the west, with "some angulation," and that Officer Lee's vehicle was pointing in the
opposite direction at some angle. He stated that the left front corner of the police vehicle struck
the left rear quarterpanel of Hudson's vehicle. Dr. Ziejewski then demonstrated to the court and
jury, using model vehicles, how such an impact would occur.
Dr. Ziejewski further explained that he had created a computer simulation of the accident
using the "ED-SMAC" computer program. To run the program, he input the characteristics of
the two vehicles involved as well as the road characteristics. He explained the simulation as a
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No. 1-05-2822
graphical representation of physics and stated that the computer program solves the engineering
equations to show you how the vehicles would move. He distinguished his computer simulation
from animation, explaining that the latter involves merely what you can envision, "like cartoons,
with no science behind it."
The computer simulation shown to the jury depicts five lanes of traffic, with the rightmost
lane representing the shoulder of the expressway. The car representing Officer Lee's vehicle
starts the simulation in the leftmost lane, it starts a hard turn to the right and spins nearly 180
degrees before it contacts the vehicle representing Hudson's vehicle in the shoulder lane. The left
front of the police vehicle, which is, at this point, facing opposite the direction of traffic, strikes
the left rear of Hudson's vehicle, and then a second impact occurs between the left rear of the
police vehicle and the left front of the Hudson vehicle.
On cross-examination by the City, Dr. Ziejewski insisted that a vehicle traveling
westbound in dry conditions would require more than one lane's width to spin and end up facing
in a northeasterly direction. He agreed that to create the computer simulation, he had to input
certain data and that to represent the police vehicle he used data pertaining to a Chevrolet Monte
Carlo although the vehicle was actually a Chevrolet Caprice.
He further acknowledged that the computer simulation starts with the police vehicle
traveling at a 10-degree angle north of due west and that he then had the vehicle make a "very
hard right turn," with the steering wheel at 180 degrees, explaining that there had "to be
additional dynamic instability factors," and that he "had to have the police car out of control at the
beginning of the run. Otherwise, [it] will never turn around that way." He further stated that,
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No. 1-05-2822
after the turn, he input that the brakes were applied with 50% braking power to the front wheels
and 100% braking power to the rear wheels. He explained that if the rear wheels are locked, a
car will be less stable in a turn, and the rear of the car will be more likely to "come sliding out and
not make the turn with the rest of the car."
Dr. Ziejewski admitted that the year and model of Officer Lee's car were listed as having
antilock brakes, but he stated that he did not know whether the police department had removed
that feature on Officer Lee's car. Dr. Ziejewski further stated that the simulation had Hudson's
vehicle going straight before the accident despite the testimony that it was going slightly to the
right. He further acknowledged that the simulation had Hudson's vehicle turning to the right after
the impact although Hudson could not recall making any such movement.
Dr. Ziejewski acknowledged that there was no record of skid marks in the material he
reviewed and that, normally, such evidence would help in determining speed and direction.
The court instructed the jury on willful and wanton conduct as follows: "When I use the
expression 'willful and wanton conduct' I mean a course of action which shows an utter
indifference to or a conscious disregard for a person's own safety and the safety of others." The
court further stated:
"The plaintiff claims that he was injured and sustained damage and that the
conduct of the defendant was willful and wanton in one or more of the following
respects:
a. Failed to operate the police car at a speed and in a manner compatible
with conditions to ensure that control of the police car was maintained at all times,
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No. 1-05-2822
in violation of General Order 97-3;
b. improperly engaged in caravanning when it was not safe to do so, in
violation of General Order 97-3;
c. improperly participated in a pursuit when she was not authorized to do
so, in violation of General Order 97-3;
d. in violation of General Order 97-3, drove the police car without due
regard for the safety of all persons on the highway, including Vernon Hudson;
e. failed to maintain control over the police car;
f. executed a lane change striking Vernon Hudson's motor vehicle; and
g. in violation of General Order 97-3, failed to adhere to basic traffic safety
practices by moving into lane No. 1 when it was not safe to do so;
h. in violation of General Order 97-3, used the activity of following as a
subterfuge for a vehicle pursuit;
j. failed to abandon the vehicle pursuit when it was the most reasonable
course of action, in violation of General Order 97-3."
The jury was given two special interrogatories. The first asked: "Did Officer Lee act
willfully and wantonly at or about the time of the occurrence?" The second asked: "Was Officer
Lee executing and enforcing the law at or about the time of the occurrence?"
During closing arguments, Hudson's attorney made the following comment regarding the
second special interrogatory: "Ladies and gentlemen, if you're for Vernon, you will answer this
special interrogatory no." Counsel also argued that the evidence supported the conclusion that
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No. 1-05-2822
Officer Lee was not enforcing the law. Defense counsel objected to the comment regarding how
the jury should answer the interrogatory, and the trial court sustained, admonishing the jury to
"disregard that argument."
On March 21, 2005, the jury returned a verdict for Hudson on both counts. In addition,
the jury answered the first special interrogatory, regarding whether Lee was willful and wanton, in
the affirmative, and the second interrogatory, regarding whether Lee was enforcing the law, in the
negative. Thereafter, the trial court entered a judgment on the verdict in the amount of
$17,682,374.05.
On May 20, 2005, the City brought a posttrial motion for judgment notwithstanding the
verdict or, in the alternative, for a new trial. The trial court denied the motion on July 26, 2005,
and the City filed a timely notice of appeal on August 24, 2005.
On appeal, the City raises several arguments. The City first contends that it is entitled to
judgment as a matter of law because it is immune from liability for negligence under the Tort
Immunity Act and because Officer Lee's conduct was not willful and wanton. With regard to the
negligence count, the City does not purport to challenge the jury's finding of negligence; rather,
the City contends that it was entitled to judgment as a matter of law on the grounds of immunity.
Alternatively, the City contends that a new trial is warranted on the negligence count because
Hudson's attorney told the jury the effect of answering the special interrogatory which asked
whether Officer Lee was enforcing the law. With regard to the willful and wanton count, the City
contends it was entitled to judgment as a matter of law because there was insufficient evidence to
support the allegation, and because Hudson's expert's testimony and computer simulation in
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No. 1-05-2822
support of that count were improperly admitted. The City finally contends that, in the
alternative, it is entitled to a new trial on the willful and wanton count because the admission of
the computer simulation was prejudicial and because the jury instructions on willful and wanton
conduct were misleading.
Hudson generally disputes all of the City's contentions and additionally contends that any
error regarding willful and wanton count would be rendered moot by virtue of the jury's finding
with regard to the negligence count. Hudson further points out that the City has never contended
that the jury's answers to the special interrogatories were against the manifest weight of the
evidence and it has, therefore, waived any objections to those findings. Finally, with regard to his
attorney's comments about the special interrogatory, Hudson contends that the trial court cured
any error in that comment by immediately sustaining the City's objection and instructing the jury
to disregard the comment.
II. ANALYSIS
A. The City's Motion for Judgment Notwithstanding the Verdict on the Negligence Count
We first address the City's contention that it was entitled to judgment notwithstanding the
verdict on the negligence count because it was immune under the Tort Immunity Act. A
judgment non obstante veredicto, or judgment n.o.v., should be entered where all the evidence,
when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that
no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R.R.
Co., 37 Ill. 2d 494, 504, 229 N.E.2d 504, 510 (1967). We review rulings on judgments n.o.v. de
novo. Townsend v. University of Chicago Hospitals, 318 Ill. App. 3d 406, 409, 741 N.E.2d
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1055, 1057 (2000).
The City contends that sections 2-202 and 2-109 of the Tort Immunity Act apply in this
case to defeat Hudson's claim of negligence. Section 2-202 states: "A public employee is not
liable for his act or omission in the execution or enforcement of any law unless such act or
omission constitutes willful and wanton conduct." 745 ILCS 10/2-202 (West 2004). Section 2-
109 states: "A local public entity is not liable for an injury resulting from an act or omission of its
employee where the employee is not liable." 745 ILCS 10/2-109 (West 2004). According to the
City, it is immune from liability because Officer Lee was executing or enforcing the law when the
accident occurred and she was not acting willfully or wantonly.
Our supreme court has often explained that the Tort Immunity Act "is in derogation of the
common law action against local public entities, and must be strictly construed against the public
entity involved." Aikens v. Morris, 145 Ill. 2d 273, 278, 583 N.E.2d 487, 490 (1991); Rio v.
Edward Hospital, 104 Ill. 2d 354, 362, 472 N.E.2d 421 (1984). The immunity provided by
section 2-202 does not extend to all activities of police officers while on duty, but only to acts or
omissions while in the actual execution or enforcement of a law. See Arnolt v. City of Highland
Park, 52 Ill. 2d 27, 33, 282 N.E.2d 144, 147 (1972); Fitzpatrick v. City of Chicago, 112 Ill. 2d
211, 221, 492 N.E.2d 1292, 1296 (1986); Aikens, 145 Ill. 2d at 278, 583 N.E.2d at 490. The
question of whether a police officer is executing and enforcing the law is a factual determination
which must be made in light of the circumstances involved in each case. Arnolt, 52 Ill. 2d at 35,
282 N.E.2d at 148-49. However, where the evidence is undisputed or susceptible to only one
possible interpretation, the question may be decided as a matter of law. Simpson v. City of
21
No. 1-05-2822
Chicago, 233 Ill. App. 3d 791, 792, 599 N.E.2d 1043, 1044 (1992); Sanders v. City of Chicago,
306 Ill. App. 3d 356, 361, 714 N.E.2d 547, 551 (1999).
The question as to what activities can be deemed to constitute executing or enforcing the
law appears to have been determined on a case-by-case basis. In Fitzpatrick, our supreme court
held that investigating a traffic accident constituted an execution or enforcement of the law.
Fitzpatrick, 112 Ill. 2d at 221, 492 N.E.2d at 1296. In that case, the plaintiff was in a minor
automobile accident with another driver on the Stevenson expressway. Fitzpatrick, 112 Ill. 2d at
215, 492 N.E.2d at 1293. Plaintiff and the other driver pulled their cars onto the median and,
shortly thereafter, the police officer defendant pulled his car a few feet behind one of the cars.
Fitzpatrick, 112 Ill. 2d at 215, 492 N.E.2d at 1293. While plaintiff and the police officer were
examining the damage to one of the cars, a vehicle driven by a third party struck the parked police
car, causing it to strike the plaintiff. Fitzpatrick, 112 Ill. 2d at 215, 492 N.E.2d at 1294. In
discussing whether the police officer was executing or enforcing the law at the time of plaintiff's
injury for purposes of determining whether the defendant's were immunized under section 2-202,
our supreme court explained:
" '[e]nforcing the law is rarely a single, discrete act, but is instead a course of
conduct.' [Thompson v. City of Chicago, 108 Ill. 2d 429, 433 (1985).] *** Thus,
where the evidence establishes that at the time of his alleged negligence a public
employee was engaged in a course of conduct designed to carry out or put into
effect any law, an affirmative defense based upon section 2-202 and 2-109 of the
Tort Immunity Act [citation] should be available to the governmental employee
22
No. 1-05-2822
and his employer." Fitzpatrick, 112 Ill. 2d at 221, 492 N.E.2d at 1296.
The supreme court then determined that defendants were entitled to a directed verdict because,
even when viewing the evidence in a light most favorable to plaintiff, it was clear that the police
officer, who had observed and responded to a traffic accident, was in the process of executing or
enforcing applicable traffic laws at the time plaintiff's injury occurred. Fitzpatrick, 112 Ill. 2d at
222, 492 N.E.2d at 1297.
Similarly, in Morris v. City of Chicago, 130 Ill. App. 3d 740, 474 N.E.2d 1274 (1985), the
court found that an officer who was responding to a radio report of a crime in process was
executing or enforcing the law. There, plaintiff brought suit against the city and a police officer
for injuries sustained when his parked car was struck by the officer's police car. Morris, 130 Ill.
App. 3d at 741, 474 N.E.2d at 1276. The court found that immunity applied because, at the time
of the accident, there was an "unbroken effort" on the officer's part to respond to the call and
thereby execute and enforce the law. Morris, 130 Ill. App. 3d at 744, 474 N.E.2d at 1278. The
court further rejected plaintiff's contention that the officer could not be said to be executing or
enforcing the law because he did not actually see a crime being committed. Morris, 130 Ill. App.
3d at 743, 474 N.E.2d at 1277.
In Bruecks v. County of Lake, 276 Ill. App. 3d 567, 658 N.E.2d 538 (1995), plaintiff
brought negligence claims against Lake County and a deputy sheriff alleging that while he was
crossing a road on foot, he was struck and injured by the deputy's police car. Bruecks, 276 Ill.
App. 3d at 568, 658 N.E.2d at 539. Defendants claimed immunity under section 2-202 and 2-
109, contending that when the accident occurred, the deputy was responding to a report of shots
23
No. 1-05-2822
fired. Bruecks, 276 Ill. App. 3d at 568, 658 N.E.2d at 539. The trial court granted defendants'
motion for summary judgment and plaintiff appealed. Bruecks, 276 Ill. App. 3d at 568, 658
N.E.2d at 539. The appellate court affirmed, finding that the deputy was executing or enforcing
the law at the time of the accident and that the defendants were, therefore, immune. Bruecks, 276
Ill. App. 3d at 569, 658 N.E.2d at 540. The court noted:
"[The deputy] was responding to a call of shots fired. He clearly was being
called upon to execute or enforce a law. The facts that he was not specifically
dispatched to the scene, did not have his emergency lights and siren activated, and
did not subjectively consider the situation to be an emergency do not alter this
conclusion. The cases in which immunity has been found applicable do not require
that the officer be engaged in an emergency response." Bruecks, 276 Ill. App. 3d
at 569, 658 N.E.2d at 539.
On the other hand, there is an extensive line of cases that has held that ordinary police
activities do not qualify as enforcement or execution of the law so as to be protected by section 2-
202 immunity. For example, in Aikens, our supreme court found that the act of transporting
prisoners did not constitute an execution or enforcement of the law that would immunize the city
of Evanston and one of its police officers from the plaintiff's claims of negligence. Aikens, 145 Ill.
2d at 286, 583 N.E.2d at 494. The court noted that unlike the police officers' conduct in other
cases where immunity was found to apply, the police officer's conduct in its case "was not shaped
or affected in any manner by the nature of duties in either enforcing or executing law." Aikens,
145 Ill. 2d at 286, 583 N.E.2d at 494. The court explained:
24
No. 1-05-2822
"[V]irtually every police function or duty is pursuant to some legal authorization in
the broadest sense. [Citation.] Arguably, then the performance of any task while
on duty is in enforcement or execution of the law. We do not believe, however, as
we have previously stated, that the legislature intended such a result." Aikens, 145
Ill. 2d at 285, 583 N.E.2d at 493.
In Simpson, a police car driven by a Chicago police officer struck and seriously injured a
10-year-old girl riding a bicycle. Simpson, 233 Ill. App. 3d at 792, 599 N.E.2d at 1044. The
police officer and the City of Chicago claimed immunity under section 2-202, contending that the
police officer was enforcing the law at the time of the accident in that he was on his way to an
address where someone had called to report a missing person. Simpson, 233 Ill. App. 3d at 792,
599 N.E.2d at 1044. The trial court granted summary judgment to defendants and the appellate
court reversed, noting that the police officer "did not consider the call an emergency and there
was no indication that any crime had been committed or that any law required execution or
enforcement." Simpson, 233 Ill. App. 3d at 793, 599 N.E.2d at 1044. The court further rejected
plaintiff's contention that filling out a missing persons report constituted executing the law, noting
that although the police officer's "activities were governed by some legal requirement, [it was]
insufficient to raise [those activities] to the level of executing or enforcing the law." Simpson,
233 Ill. App. 3d at 793, 599 N.E.2d at 1045.
In Leaks v. City of Chicago, 238 Ill. App. 3d 12, 606 N.E.2d 156 (1992), a police officer
was cruising in a patrol car when he saw several people standing in front of and in the hallway of
an apartment building. Leaks, 238 Ill. App. 3d at 14, 606 N.E.2d at 157. The officer testified
25
No. 1-05-2822
that he suspected that the people he observed were engaged in illegal drug trade. Leaks, 238 Ill.
App. 3d at 14-15, 606 N.E.2d at 157. While reversing his car to further investigate, the officer
struck the plaintiff's vehicle and, allegedly, injured the plaintiff. Leaks, 238 Ill. App. 3d at 15, 606
N.E.2d at 158. At trial, the officer and the City raised the affirmative defense of immunity,
contending that the officer was enforcing the law at the time of the accident. Leaks, 238 Ill. App.
3d at 14, 606 N.E.2d at 157. On appeal, the court found that the officer was not executing the
law, noting that there was
"absolutely no indication that [the officer] observed the exchange of any money or
the transfer of any drugs, or for that matter any crime at all. *** What remains is a
record which only shows several people standing in front of and in the hallway of
an apartment building on a summer evening, a common occurrence in most every
neighborhood." Leaks, 238 Ill. App. 3d at 17, 606 N.E.2d at 159.
Similarly, in Sanders, a Chicago police officer heard an emergency call that another officer
had been attacked. Sanders, 306 Ill. App. 3d at 359, 714 N.E.2d at 550. The officer then
proceeded to travel to the area in his squad car; however, shortly thereafter, the police dispatcher
confirmed over the police radio that the original officers involved did not need further backup.
Sanders, 306 Ill. App. 3d at 359, 714 N.E.2d at 550. About one minute after the radio dispatch,
the responding police officer's car struck and killed a child crossing the street. Sanders, 306 Ill.
App. 3d at 360, 714 N.E.2d at 551. The appellate court found that the officer and the City were
not entitled to summary judgment on the basis of section 2-202 immunity, noting that a jury could
find that the emergency was over at the time the accident occurred and that the officer "was
26
No. 1-05-2822
merely cruising around in his car" – an activity not subject to immunity. Sanders, 306 Ill. App. 3d
at 361, 714 N.E.2d at 552.
In this case, it is undisputed that a police pursuit was in progress, that Officer Lee heard
about the pursuit over her police radio, and that she and Officer Ray then entered the expressway
to take part in some manner. Officers Lee and Ray denied taking part in the actual pursuit in
violation of the police department general order which limited pursuits to two police vehicles, but
characterized their involvement as "assistance." When asked to explain what she meant by
"assistance," Officer Lee testified that it could include something "as little as traffic control," or
that she could be needed to assist if the suspect were to "grab a girl on the street or citizens on
the street, or he could be shooting at people or he could be shooting at officers." Officer Ray
similarly testified that his and Officer Lee's "assistance" could have been needed if the suspect
were to leave his vehicle and flee on foot. He stated that in such an event, he and Officer Lee
could then assist by gathering "information from the neighborhood people," or by "apprehending
the offender due to the fact he may be able to run fast or he's agile," or "canvassing the area to
apprehend the offender."
It is clear that had Officer Lee been actually providing traffic control at the time of the
accident, section 2-202 immunity would apply. See Fitzpatrick,112 Ill. 2d at 221, 492 N.E.2d at
1296 (investigating traffic accident constituted executing or enforcing the law). There is also
little doubt that had Officer Lee merely been on her way to provide traffic control, immunity
would apply. See Morris, 130 Ill. App. 3d at 744, 474 N.E.2d at 1277 (immunity applied where
officer was on his way to area where a crime was in progress); Bruecks, 276 Ill. App. 3d at 569,
27
No. 1-05-2822
658 N.E.2d at 539 (immunity applied where police officer was on his way to area where shots
were fired). Likewise, it is clear that had the vehicle pursuit ended and had the lead officers then
requested backup due to the suspect taking a hostage or shooting at the police, Officer Lee's
travel to that area would be covered by the immunity in section 2-202. See Sanders, 306 Ill. App.
3d at 361, 714 N.E.2d at 552. (responding to a call for assistance from other officers covered by
section 2-202 immunity). Finally, there can be no dispute that had Officer Lee been attempting to
apprehend the suspect with the permission of her supervisors she would have been immune from
negligence under section 2-202.
However, under the evidence presented, the jury was free to conclude that none of these
scenarios occurred in this case. Officers Lee and Ray specifically denied that they were trying to
apprehend the suspect. Moreover, there was no specific indication in the record that traffic
control was actually required or requested or that the officers engaged in the actual pursuit
required or requested backup. The only law that was in actual need of enforcement related to the
apprehension of the criminal suspect, and Officer Lee explicitly denied that she was taking part in
that enforcement. Thus, the jury could have concluded that Officer Lee was not involved in
enforcing or executing the law, but was merely making herself available to enforce or execute the
law should the need arise.4 The mere fact that a police officer acts on the speculation that she
4
The jury was also free to reject Officer Lee's contention that she was not in pursuit of the
suspect in violation of the police department general order based upon the evidence that she was
closely monitoring the radio dispatch and was changing lanes to correspond with the suspect's
movement. While the parties cite no authority discussing whether a police officer can be deemed
28
No. 1-05-2822
may be required to enforce or execute some, as yet, undetermined law is not enough to activate
the immunity set forth in section 2-202. Thus, there was no immunity from negligence in Leaks,
where the officer merely had a suspicion that drug laws required enforcement because there was
no specific indication that any law was actually being broken. Leaks, 238 Ill. App. 3d at 17, 606
N.E.2d at 159. Similarly, here, Officer Lee's explanation for her actions amounted merely to
suspicion that an undetermined law might need enforcing. Moreover, the situation here is even
more removed from the actual enforcement or execution of law because, unlike in Leaks, where
the officer suspected that drug laws were being broken, the hypothetical situations described by
Officer Lee that might have required her to enforce the law were far less focused in that they
spanned from traffic control to dealing with a gunman with a hostage.
Furthermore, that Officer Lee was not enforcing or executing any law is additionally
supported by the fact that she was aware of the departmental rules prohibiting her from joining
the pursuit, caravanning with the pursuing officers, or from following as a subterfuge for pursuit.
Moreover, the evidence showed that 12 to 15 other police vehicles were already involved in the
to be enforcing the law when she is pursuing a suspect in direct derogation of an internal police
department rule, it would arguably be inconsistent to extend the immunity provided in section 2-
202 under such circumstances. In that regard, we note that Officer Lee's alleged violation of the
general order was not merely one of failing to adhere to specific requirements for pursuit, such as
that emergency lights and sirens must be used; rather, had she joined the pursuit, she would have
been acting contrary to a rule directly forbidding such action and she would then, arguably, lack
the authority or capacity to enforce the law.
29
No. 1-05-2822
pursuit. Thus, despite her explanations to the contrary, the jury may have found that Officer Lee
was not on the expressway to enforce the law, but was merely following the pursuit out of
personal interest in the outcome or some unofficial camaraderie with her fellow officers who were
leading the pursuit. Therefore, viewing the evidence in a light most favorable to Hudson, we
cannot say that the jury erred in determining that Officer Lee was not enforcing or executing the
law at the time of the collision. Pedrick, 37 Ill. 2d at 504, 229 N.E.2d at 510. Accordingly, we
must affirm the trial court's refusal to grant the City judgment n.o.v. on the negligence count.
B. The City's Motion for a New Trial on the Negligence Count
The City, however, alternatively contends that it is entitled to a new trial on the negligence
count because plaintiff's attorney told the jury how to answer one of the special interrogatories.
During closing arguments plaintiff's, counsel stated:
"The judge wants to have you answer the following question: Was Officer
Lee executing and enforcing the laws at the time of the occurrence?
That's what we went over earlier when we were talking about their
affirmative defense where they're trying to claim this was an emergency.
Ladies and gentlemen, I respectfully submit to you that the answer to this
question is no, Officer Lee was not enforcing the law at or about the time of the
occurrence.
Ladies and gentlemen, if you're for Vernon, you will answer this special
interrogatory no.
***
30
No. 1-05-2822
The evidence is overwhelming that the City has not met their burden of
proof. And that's what it is. We each have burdens of proof in this case. The City
has to establish their burden of proof that Officer Lee, that there was that
probability that we talked about of there being an apprehension.
The City has their burden of proof. It's not our responsibility to rebut it.
We spent a lot of time on it and I think the evidence is overwhelming that we have
rebutted it. The City has not met their burden of proof and, based on that failure,
we ask you to check off no, Officer Lee was not executing or enforcing the law."
The City claims that it is entitled to a new trial based upon the excerpt of this closing argument
where counsel said: "[I]f you're for Vernon, you will answer this special interrogatory no."
Generally, we will not reverse a trial court's refusal to grant a new trial unless the court
abused its discretion. Maple v. Gustafson, 151 Ill. 2d 445, 455, 603 N.E.2d 515 (1992).
Similarly, "[t]he scope of closing argument is within the sound discretion of the trial court and the
reviewing court will reverse only if the argument is prejudicial." Eaglin v. Cook County Hospital,
227 Ill. App. 3d 724, 732-33, 592 N.E.2d 205, 211 (1992).
This issue was addressed by our supreme court in Sommese v. Mailing Brothers, Inc., 36
Ill. 2d 263, 222 N.E.2d 263 (1966). In that case, plaintiff's counsel told the jury that a special
interrogatory had been "slipped in" by defendant's counsel and that the jury should harmonize its
answer to the interrogatory with the verdict so as not " 'to deprive this woman of any right to
recovery.' " Sommese, 36 Ill. 2d at 266, 222 N.E.2d at 470. Although defendant made no
objection to the statement until it brought a posttrial motion, the supreme court held that the
31
No. 1-05-2822
argument improperly informed the jury of the source of the interrogatory and defeated the
purpose of a special interrogatory by advising the jury to conform its answer to its verdict so as to
protect the verdict without regard to the evidence. Sommese, 36 Ill. 2d at 266-67, 222 N.E.2d at
470. The court explained:
"It is generally recognized that the function of a special interrogatory is to
require the jury's determination as to one or more specific issues of ultimate fact
and is a check upon the deliberations of the jury. 'Special interrogatories are used
for the purpose of testing the general verdict against the jury's conclusions as to
the ultimate controlling facts.' [Citation.]" Sommese, 36 Ill. 2d at 267, 222 N.E.2d
at 470.
The court further stated:
"It is clear that plaintiff's attorney improperly alerted the jury to the fact that its
decision to assess damages would be nullified by an affirmative answer to the
interrogatory. Thus, the safeguard against a jury awarding damages out of passion
or prejudice or sympathy without first making specific factual determinations and
then applying the law thereto was thwarted." Sommese, 36 Ill. 2d at 267-68, 222
N.E.2d at 470.
The court then concluded that the error was prejudicial and mandated a new trial. Sommese, 36
Ill. 2d at 268, 222 N.E.2d at 470.
The supreme court again addressed this issue in Batteast v. Wyeth Laboratories Inc., 137
Ill. 2d 175, 560 N.E.2d 315 (1990). In that case, plaintiff's counsel told the jury on two occasions
32
No. 1-05-2822
that if it "wanted to award the plaintiffs damages from the defendant drug company, its answer to
the interrogatory would have to be that the hospital was not the sole cause of the injuries."
Batteast, 137 Ill. 2d at 185-86, 560 N.E.2d at 320-21. The trial court denied defense counsel's
objection to the statements and did not issue a cautionary instruction. The supreme court noted
that it is improper to inform a jury of the necessity of conforming its answer to a special
interrogatory with its general verdict, but that it is proper to urge a jury to answer a special
interrogatory in accordance with the evidence. Batteast, 137 Ill. 2d at 186, 560 N.E.2d at 321.
The supreme court then determined that although counsel did not expressly state that the jury's
answer to the special interrogatory had to be consistent with the verdict, neither did he argue that
the jury should base its answer on the evidence. Batteast, 137 Ill. 2d at 186, 560 N.E.2d at 321.
Rather, the court noted, counsel's argument was that the jury had to answer the special
interrogatory in a certain way if the jury wanted to make an award in favor of the plaintiff.
Batteast, 137 Ill. 2d at 186, 560 N.E.2d at 321. The court determined the argument to be
improper; however, it nevertheless avoided making a final determination based on that language
since it found that a new trial was warranted for other reasons. Batteast, 137 Ill. 2d at 186, 560
N.E.2d at 321. Moreover, although the court deemed the statement in its case improper, it
upheld the appellate decision in Levin v. Welsh Brothers Motor Service, Inc., 164 Ill. App. 3d
640, 518 N.E.2d 205 (1987), where a similar statement was deemed to be permissible. Batteast,
137 Ill. 2d at 186, 560 N.E.2d at 321.
In Levin, plaintiff's counsel advised the jury that if it answered "yes" to a special
interrogatory which asked whether plaintiff's negligence was the sole proximate cause of his
33
No. 1-05-2822
injuries, there could be no verdict for plaintiff. Levin, 164 Ill. App. 3d at 651, 518 N.E.2d at 212.
The plaintiff's counsel argued that had he not been interrupted by defendant's objection to his
statement, he would have explained to the jury that the reason there could not be a verdict for the
plaintiff if they answered "yes" was that, if plaintiff's negligence were the sole proximate cause of
his injury, that would mean the plaintiff had failed to prove his case and could not recover. Levin,
164 Ill. App. 3d at 651, 518 N.E.2d at 212. The appellate court noted that, unlike in Sommese,
plaintiff's counsel did not state the source of the special interrogatory, he did not state that the
answer thereto would supersede the verdict, and he did not bid the jury to harmonize its verdict
with its answer to the interrogatory. Levin, 164 Ill. App. 3d at 652, 518 N.E.2d at 213. The
court further noted that although counsel's statement could be construed as advising the jury of
the "legal effect" of its answer, it was equally plausible that counsel was "merely advising the jury
of the answer's logical 'effect' – namely, that in contrast to a situation of comparative negligence,
if the sole negligence were Levin's then Levin could not recover against anyone else." Levin, 164
Ill. App. 3d at 652, 518 N.E.2d at 213. The court then held that "[i]n view of the ambiguity and
brevity" of the statement, "as well as the *** cautionary instruction by the trial judge," the trial
court did not commit reversible error in denying a mistrial. Levin, 164 Ill. App. 3d at 652, 518
N.E.2d at 213.
The supreme court in Batteast distinguished its facts from those in Levin by noting that,
unlike in that case, the improper statement was made twice, the trial court denied defendant's
objection to plaintiff's statement regarding the special interrogatory, no cautionary instruction was
given, and the statement was not ambiguous. Batteast, 137 Ill. 2d at 186, 560 N.E.2d at 321.
34
No. 1-05-2822
We find the instant facts to be more similar to those in Levin than those in Batteast.
In this case, as in Levin, plaintiff's counsel did not solicit the jury to harmonize its answer
to be consistent with the verdict (as was the case in Sommese), nor did he delineate or emphasize
the need to answer the special interrogatory with a "no" if the jury wanted to award plaintiff
damages. Although counsel briefly stated "if you're for Vernon, you will answer *** no," when
taken in full context, as set forth above, the thrust of counsel's argument centered upon the weight
of the evidence favoring that answer wherein counsel emphasized to the jury that based upon the
evidence presented and in the light of the City's burden of proof, an answer of "no" was required.
As noted, just prior to and following the objected to statement, Hudson's attorney emphasized
that the evidence supported the conclusion that Officer Lee was not enforcing the law. He also
emphasized that it was the City's burden to prove its affirmative defense that Officer Lee was
enforcing the law and, therefore, immune. Such comment on a special interrogatory is
permissible.
This result was recognized in O'Connell v. City of Chicago, 285 Ill. App. 3d 459, 674
N.E.2d 105 (1996), where the court explained:
"The decisions describe the two sides of the line that has been drawn:
plaintiff's lawyer may ask the jury for a certain answer to the interrogatory, based
on the evidence, and that jury may be told a contrary answer will mean no
recovery for the plaintiff. But the line is crossed when jurors are told to harmonize
or conform their interrogatory answer with their general verdict, or, as was done
in this case, when jurors are told inconsistency would mean the plaintiff's case is
35
No. 1-05-2822
not proved. That is impermissible linkage." O'Connell, 285 Ill. App. 3d at 467,
674 N.E.2d at 111.
Accord Kosinski v. Inland Steel Co., 192 Ill. App. 3d 1017, 1028, 549 N.E.2d 784, 790-91
(1989) (new trial not required where counsel stated: " 'If you listen to what negligence is and
what he was doing, *** if you answer that interrogatory any way other than no, then you are
saying the accident is [plaintiff's] fault and he can't recover,' " because statement properly asked
jury to answer the interrogatory based on the evidence and did not tell jury its award of damages
would be nullified by a "yes" answer to the interrogatory); Burns v. Howell Tractor & Equipment
Co., 45 Ill. App. 3d 838, 848, 360 N.E.2d 377, 385 (1977) (new trial not required where counsel
stated: " 'if you answer that Interrogatory any way than "no," then you are saying, "It is his fault
and he can't recover" ' "); Moore v. Checker Taxi Co., 133 Ill. App. 2d 588, 273 N.E.2d 514
(1971) (new trial not required where counsel stated: "If you believe he was not guilty of
negligence that caused this accident, you should answer no to [the interrogatory], because if
[plaintiff] was guilty of negligence, then he can't recover ***"). Accordingly, we cannot find that
the trial court abused its discretion in denying the City's motion for a new trial on this basis.
C. The City's Motion for Judgment Notwithstanding the Verdict on the Willful and Wanton
Count
The City next contends that the evidence adduced at trial was insufficient for the jury to
reach a finding of willful and wanton conduct, noting that the only evidence regarding Officer
Lee's conduct prior to the accident consisted of the testimonies of Officers Lee and Ray, the
testimony of the witness Patrick, and the testimony and computer simulation of plaintiff's expert,
36
No. 1-05-2822
Dr. Ziejewski. The City contends that the trial testimony did not support a finding of willful and
wanton conduct and that the computer simulation was improperly admitted. Therefore, the City
argues that, as with the negligence count, it was entitled to judgment n.o.v.
We note that the jury's award to Hudson, which did not include punitive damages, can be
sustained by our affirmance of the negligence count alone. See Moore v. Jewel Tea Co., 46 Ill.
2d 288, 294, 263 N.E.2d 103, 106 (1970) ("It is settled law that where several causes of actions
are charged and a general verdict results, the verdict will be sustained if there are one or more
good causes of action or counts to support it"). Nevertheless, for the reasons discussed below,
we additionally find that the jury was also free to side with Hudson on the willful and wanton
count.
Section 1-210 of the Tort Immunity Act defines willful and wanton conduct as: "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."
745 ILCS 10/1-201 (West 2004). Our supreme court has recently recounted that willful and
wanton conduct " ' "approaches the degree of moral blame attached to intentional harm, since the
defendant deliberately inflicts a highly unreasonable risk of harm upon others in conscious
disregard of it." ' [Citation.]" Murray v. Chicago Youth Center, 224 Ill. 2d 213, 237, 864 N.E.2d
176, 190 (2007), quoting Burke v. 12 Rothschild's Liquor Mart, Inc., 148 Ill. 2d 429, 448, 593
N.E.2d 522 (1992). The court further noted that willful and wanton conduct is " 'quasi-
intentional' " and is qualitatively different from negligence. Murray, 224 Ill. 2d at 237, 864
N.E.2d at 190, quoting Burke, 148 Ill. 2d at 450, 593 N.E.2d 522. The question of whether an
37
No. 1-05-2822
injury has been inflicted by willful and wanton conduct is a question of fact to be determined by a
jury. Murray, 224 Ill. 2d at 236, 864 N.E.2d at 189.
The City argues that Dr. Ziejewski's testimony and computer simulation were improper
and that, in the absence of that evidence, there was insufficient other evidence remaining to
support the jury's finding of willful and wanton conduct. As shall be discussed below, we do not
consider Dr. Ziejewski's testimony and computer simulation improper; however, we also disagree
with the City's conclusion that, in the absence of that evidence, the jury could not have found
Officer Lee's conduct willful and wanton. As noted, Officer Lee testified that she was driving
within the speed limit at 45 to 50 miles per hour, that her emergency lights were activated, and
that she had changed lanes from lane 2 to lane 1 when Hudson's car pulled out in front of her
from the shoulder. She stated that she applied the brakes once she saw Hudson's car and that she
then lost control. She also stated: "I was not necessarily looking if someone will merge into my
lane from the shoulder. *** I wasn't looking at the lane that I was going in, I was looking at the
car in front of me." Officer Ray's testimony was similar Officer Lee's in many respects; however,
he expressed some uncertainty as to whether the vehicle's emergency lights were activated and he
also said that the police vehicle was in lane 2 or 3 before the collision. Patrick testified that
Officer Lee's vehicle was traveling at 55 to 65 miles per hour, that Hudson's vehicle was traveling
at 10 miles per hour and that just the front of Hudson's vehicle was on the shoulder at the time of
the accident. She further stated that Officer Lee's vehicle "jumped from the left lane" all the way
to the right even though there was nothing obstructing Officer Lee's forward progress.
Thus, considering solely this evidence (to the exclusion of Dr. Ziejewski's testimony and
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No. 1-05-2822
simulation, which the City objects to), the jury was free to disbelieve the City's position that
Hudson pulled out in front of Officer Lee's vehicle while she was turning into lane 1 from lane 2.
Likewise, the jury was free to give great weight to Officer Lee's admission that she was not
"looking at the lane that [she] was going in," as well as to Patrick's description that Officer Lee's
vehicle "jumped" from lane 4 to lane 1 for no apparent reason. Although these testimonies are
not the strongest conceivable evidence of willful and wanton conduct, viewing the evidence in a
light most favorable to Hudson, we cannot conclude that the jury in this case was unreasonable in
reaching such a conclusion. See Pedrick, 37 Ill. 2d at 504, 229 N.E.2d at 510. The jury may well
have concluded that in failing to look at the lane she was merging into and in "jumping" multiple
lanes of traffic, Officer Lee was acting with utter indifference to or in conscious disregard for the
safety of others. Although, there was testimony that there was nothing obstructing Officer Lee
from continuing forward in her lane, she testified that there were multiple civilian cars present
with her on the expressway. Thus, the jury may have concluded that Officer Lee's actions in
crossing multiple lanes of traffic at once under such conditions without looking at the lane she
was traveling into was a deliberate infliction of an unreasonable risk of harm upon those civilians,
including Hudson. See Murray, 224 Ill. 2d at 237, 864 N.E.2d at 190. This conclusion is
sustainable even in the absence of Dr. Ziejewski's testimony and computer simulation, to which
the City has objected. Accordingly, we affirm the trial court's denial of the City's motion for
judgment n.o.v. on this count.
D. The City's Motion for a New Trial on the Willful and Wanton Count
1. Expert Testimony and Computer Simulation
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No. 1-05-2822
However, the City also contends that it is entitled to a new trial on the willful and wanton
count because Dr. Ziejewski's testimony and computer simulation were prejudicial. 5 The City
argues that the computer simulation lacked a sufficient factual basis, pointing out that Dr.
Ziejewski input several variables into the computer program he used to create the simulation that
were not supported by any evidence, namely that Dr. Ziejewski used the wrong make and model
of vehicle to represent Officer Lee's vehicle; that the simulation starts with Hudson's vehicle going
straight despite testimony that it was moving to the right; that Officer Lee's vehicle starts at 10
degrees off due west despite there being no testimony to that effect; that Officer Lee's vehicle
spins nearly 180 degrees before the impact despite there being no testimony to that effect, that
Officer Lee's brakes were applied in a certain manner (50 percent to the front and 100 percent to
the rear) despite there being no supporting testimony or physical evidence regarding the vehicle's
braking system; and that Hudson steered his car to the right after the impact. In this regard, the
City contends that Dr. Ziejewski's computer simulation was not sufficiently based on data from
the record and was, therefore, prejudicial. We disagree.
Generally, the opinion testimony of an expert is admissible if the expert is qualified by
knowledge, skill, experience, training, or education in a field that has at least a modicum of
reliability, and if the testimony would aid the jury in understanding the evidence. Wiegman v.
5
The City's challenge to Dr. Ziejewski's testimony and computer simulation appears to be
primarily directed to the willful and wanton count since the City does not purport to challenge the
jury's finding of negligence under count I except with respect to the application of section 2-202
immunity.
40
No. 1-05-2822
Hitch-Inn Post of Libertyville, Inc., 308 Ill. App. 3d 789, 799, 721 N.E2d 614, 623 (1999). The
admission of an expert's testimony lies within the sound discretion of the trial court. Wiegman,
308 Ill. App. 3d at 799, 721 N.E2d at 623. We will not reverse an erroneous ruling unless the
error was prejudicial or the result of the trial has been materially affected. Stricklin v. Chapman,
197 Ill. App. 3d 385, 388, 554 N.E.2d 658, 660 (1990).
An expert's opinion is only as valid as the reasons for the opinion. Soto v. Gaytan, 313 Ill.
App. 3d 137, 146, 728 N.E.2d 1126, 1132-33 (2000). Reconstruction testimony is testimony that
seeks to recreate an accident, including "who hit whom, where was the impact and how fast the
parties were going as determined by skid marks, debris, and damage to the vehicles." Finfrock v.
Eaton Asphalt Co., 41 Ill. App. 3d 1020, 1023, 355 N.E.2d 214 (1976); Stricklin,197 Ill. App. 3d
at 389, 554 N.E.2d at 660-61. In order for reconstruction testimony to be admissible, there must
be sufficient data about the accident in evidence to provide a reasonable basis for the expert's
opinion. J. Corkery, Illinois Civil & Criminal Evidence §702.111, at 408 (2000). "The trial court
is not required to blindly accept the expert's assertion that his testimony has an adequate
foundation. Rather, the trial court must look behind the expert's conclusion and analyze the
adequacy of the foundation." Soto, 313 Ill. App. 3d at 146, 728 N.E.2d at 133. See also Dyback
v. Weber, 114 Ill. 2d 232, 244, 500 N.E.2d 8 (1986) ("An expert witness' opinion cannot be
based on mere conjecture and guess"); Modelski v. Navistar International Transportation Corp.,
302 Ill. App. 3d 879, 886, 707 N.E.2d 239 (1999) (expert's opinions based on guess, speculation,
or conjecture as to what the witness believed might have happened are inadmissible).
In support of its position, the City cites Hiscott v. Peters, 324 Ill. App. 3d 114, 754
41
No. 1-05-2822
N.E.2d 839 (2001). However, we find that case inapposite. In Hiscott, plaintiff brought suit
against defendants for injuries sustained in an automobile accident. Hiscott, 324 Ill. App. 3d at
117, 754 N.E.2d at 842. At trial, plaintiff called Seyfried, a traffic accident reconstructionist, as
an expert witness. Hiscott, 324 Ill. App. 3d at 118, 754 N.E.2d at 844. Seyfried testified that he
had reviewed the accident report, which included a number of measurements of skid marks and a
gouge mark in the pavement at the scene of the accident. Hiscott, 324 Ill. App. 3d at 118, 754
N.E.2d at 844. He also reviewed photographs of the accident scene, the vehicles, and several
depositions. Hiscott, 324 Ill. App. 3d at 118, 754 N.E.2d at 844. Based on these observations,
he testified to the movement of the vehicles involved in the accident, including that defendant
"was faced with an emergency situation and that his vehicle likely went into a 'yaw' once it left the
gravel shoulder and returned to the pavement." Hiscott, 324 Ill. App. 3d at 122, 754 N.E.2d at
847. Defendant argued that it was error to permit Seyfried to testify as to the path his vehicle
took when there was no physical evidence to support the opinion. Hiscott, 324 Ill. App. 3d at
122, 754 N.E.2d at 847. The appellate court agreed, noting that contrary to the expert's opinion,
there was no evidence that defendant's vehicle was " 'yawing' " or that defendant was braking at
the time of the accident. Hiscott, 324 Ill. App. 3d at 122, 754 N.E.2d at 847. The court further
noted: "There was simply no *** factual basis to support Seyfried's opinion because there was
insufficient physical evidence to provide him with the basic data needed to reconstruct the
accident." Hiscott, 324 Ill. App. 3d at 124, 754 N.E.2d at 848. The court concluded that
because Seyfried's testimony related directly to the central controversies in the case, namely, how
the accident took place, that testimony could not be said to have had no effect on the outcome of
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No. 1-05-2822
the trial and that it may have "tipped the scales" for the jury. Hiscott, 324 Ill. App. 3d at 124, 754
N.E.2d at 848.
In contrast, there was sufficient factual basis in this case for Dr. Ziejewski to reach his
conclusions. Although he used data from a Monte Carlo rather than a Caprice in his simulation,
he explained that he adjusted the characteristics of the car within the computer program to
conform with the characteristics of the police car. His conclusion that Officer Lee's vehicle
traversed four lanes of traffic before striking Hudson's vehicle is support by Patrick's testimony
that Hudson's vehicle was "trying to get over to the shoulder when [Officer Lee's vehicle] come
from the far left and all the way up to the right and hit him, like right to *** the back of his car
almost." Moreover, Dr. Ziejewski's assertion that Officer Lee made a hard right turn prior to the
collision is supported by Patrick's testimony that vehicle "jumped" across the lanes. Although
there was no direct testimony that Officer Lee's vehicle had spun nearly 180 degrees before the
collision, that conclusion is supported by the undisputed evidence that the police vehicle, which
was originally heading in the same westward direction as plaintiff's vehicle, came to rest facing in
nearly the opposite direction. Finally, although there was no testimony to support Dr. Ziejewski's
assertion regarding the application and locking of Officer Lee's brakes, that hypothesis was
supported by the evidence that Officer Lee's vehicle traveled across multiple lanes and spun nearly
180 degrees.
Arguably, however, even if we were to agree with the City that the computer simulation
was insufficiently founded, the jury could have reached its finding of willful and wanton even
without Dr. Ziejewski's computer simulation. Essentially, the computer simulation added
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No. 1-05-2822
emphasis to the conclusion warranted by the testimonial evidence that Officer Lee lost control of
the vehicle and had begun to spin prior to hitting Hudson. As noted, Officer's Lee and Ray
testified that their vehicle started in lane 2 or 3 and ended up facing opposite the direction of
traffic – creating a sufficient basis for inference as to how their vehicle came to reach its final
position. Moreover, although Patrick did not articulate in her testimony that Officer Lee's vehicle
spun nearly 180 degrees before the collision, her testimony that the vehicle "jumped" across the
lanes, and that it came "from the far left and all the way up to the right," is certainly consistent
with and helpful to corroborate that conclusion. In sum, we cannot say that the admission of Dr.
Ziejewski's testimony and computer simulation was erroneous or, in any event, that it would
necessitate a new trial.
2. Willful and Wanton Issue Instruction
The City finally contends that it is entitled to a new trial because the jury was improperly
instructed that willful and wanton conduct could include conduct akin to ordinary negligence and
that violation of police department rules should be deemed willful and wanton. As noted, the jury
was instructed that willful and wanton conduct involves "a course of action which shows an utter
indifference to or a conscious disregard for a person's own safety and the safety of others." This
definition is essentially the same as the pattern jury instruction for willful and wanton conduct (see
Illinois Pattern Jury Instructions, Civil, No. 14.01 (2000) (hereinafter IPI Civil (2000)) and is not
objected to by the City. Rather, the City objects to the trial court's subsequently given issues
instruction regarding Hudson's claims on the willful and wanton count. The City first
contends that subparagraphs d, e, and f failed to take into account the state of mind required for
44
No. 1-05-2822
willful and wanton conduct and implied that the jury could find willful and wanton conduct for
acts that would normally only amount to negligence. Therefore, the City concludes that it was
error to include these allegations in the issue instruction. We disagree.
The decision to grant or deny a jury instruction is within the trial court's discretion.
Sanders, 306 Ill. App. 3d at 364, 714 N.E.2d at 554. The standard for determining whether the
trial court abused its discretion is whether, taken as a whole, the instructions fully, fairly and
comprehensively informed the jury of the relevant legal principles. Sanders, 306 Ill. App. 3d at
364, 714 N.E.2d at 554. As a general rule, a judgment will not be reversed where the jury
instructions are faulty unless they mislead the jury and the complaining party suffered prejudice.
Dabros v. Wang, 243 Ill. App. 3d 259, 269, 611 N.E.2d 1113, 1120 (1993).
The issue instruction given in this case was based on IPI Civil (2000) No. 20.01 [12],
which states:
"The plaintiff further claims that he was injured and sustained damage and
that the conduct of the defendant was willful and wanton in one or more of the
following respects:
[Set forth in simple form without undue emphasis or repetition those
allegations of the complaint as to willful and wanton conduct which have not
been withdrawn or ruled out by the court and are supported by the evidence.]"
(Bracketed material original).
The instruction actually given in this case conforms with the pattern instruction. It
included the same first sentence as the pattern instruction and then, as directed, it set forth the
45
No. 1-05-2822
allegations of Hudson's complaint as to willful and wanton conduct. The first sentence of the
instruction itself made clear that the jury had to determine whether any of the enumerated
allegations were true and whether they amounted to willful and wanton conduct. As noted, the
jury was given the correct definition of willful and wanton. Moreover, a subsequently given
burden of proof instruction further clarified that the jury had to determine whether the allegations
in the issue instruction amounted to willful and wanton conduct. That instruction explained that it
was Hudson's burden to prove "the defendant acted or failed to act in one of the ways claimed by
the plaintiff as stated to you in these instructions and that in so acting, or failing to act, the
defendant was willful and wanton." (Emphasis added.) IPI CIVIL (2000) No. B21.02.02.
In addition, the City's objection to the format of this issue instruction is contradicted by its
own alternate submission. The very same deficiency it now contends is present in the given
instruction, namely, that the allegations failed to take proper account of the state of mind involved
in willful and wanton conduct, was present in the alternate instruction the City proffered at the
instructions conference. In fact, in its alternate instruction, the City submitted an instruction
identical to plaintiff's subparagraph f in the very same format.
The City's argument with regard to subparagraph d is slightly more compelling. As noted,
that allegation stated Officer Lee "drove the police car without due regard for the safety of all
persons on the highway" (emphasis added). The City contends that failing to use "due regard" is
synonymous with negligence and the instruction, therefore, confused the jury as to the definition
of willful and wanton. In support, the City cites Sanders, where the court noted that section 11-
205(e) of the Illinois Vehicle Code (625 ILCS 5/11-205(e) (West 2004)), which uses the phrase
46
No. 1-05-2822
"due regard," imposed a duty to refrain from negligence. Sanders, 306 Ill. App. 3d at 362, 714
N.E.2d at 552. While we agree with the City that use of the term "due regard" in a willful and
wanton issue instruction is questionable even where it so appears in the pleading, we do not
believe the use of the phrase in this case was misleading or prejudicial. See Dabros, 243 Ill. App.
3d at 269, 611 N.E.2d at 1120.
The term "due regard" was never mentioned in the negligence jury instructions and was
only referenced by plaintiff's attorney during closing arguments where he defined the term as
referring to reckless behavior. While discussing the various allegations in the willful and wanton
count, Hudson's attorney stated that subparagraph d alleged that Officer Lee "was in violation of
the general order, [in that she] drove the police car without due regard for the safety of all the
persons on the highway, including Vernon Hudson." He then explained: "[T]hat means, like we
heard in the general order, we can't drive reckless. That's what reckless means, you can't be
heedless; you can't be unaware of what's going on and go ahead anyway." Thus, despite the
connection made between "due regard" and the negligence standard of ordinary care in various
sources outside the scope of this trial, the jury in this case was presented with an explanation of
the allegation consistent with the willful and wanton definition. As Hudson's attorney explained,
failure to use due regard meant being reckless or being unaware of what's going on, but going
anyway. This is consistent with the definition of willful and wanton conduct, which includes
having conscious disregard for the safety of others. Thus, we cannot conclude that the jury in this
case was misled by the use of the phrase "due regard" or that the City was thereby prejudiced.
The City further contends that the willful and wanton issue instruction was erroneous in
47
No. 1-05-2822
that it suggested in seven of the nine allegations that violation of the police department general
order constituted willful and wanton conduct per se. We agree that countermanding a police
department general order does not constitute negligence or willful and wanton conduct per se.
This has been established in Morton v. City of Chicago, 286 Ill. App. 3d 444, 454, 676 N.E.2d
985, 992 (1997). However, Morton implicitly indicates that a violation of an internal police
department rule can constitute some evidence of willful and wanton conduct. The court in that
case stressed that violation of a police department general order would not "in and of itself"
constitute willful and wanton conduct, that the jury could have found that there was a valid
reason for the officer in that case to not following the general order, and that "the violation of
self-imposed rules or internal guidelines *** does not *** alone constitute evidence of
negligence, or beyond that, wilful and wanton conduct. [Citation.]" Morton, 286 Ill. App. 3d at
454, 676 N.E.2d at 992. Thus, Morton impliedly stands for the proposition that, although a
violation of an internal rule will not automatically constitute willful and wanton conduct, a jury
may considere it along with other evidence in reaching a determination of willful and wanton
conduct. Therefore, the jury here could have found that Officer Lee's failure to abide the general
order by caravanning or pursuing the suspect or failing to adhere to basic traffic safety practices
was willful and wanton under the particular circumstances of this case.
Moreover, we cannot agree that this instruction was confusing or prejudicial when
considered in light of the jury instructions as a whole. See Harden v. Playboy Enterprises, Inc.,
261 Ill. App. 3d 443, 453, 633 N.E.2d 764, 771 (1993) ("Jury instructions are to be viewed as a
whole and reversible error occurs only when serious prejudice to a right to a fair trial has been
48
No. 1-05-2822
proven"). As noted above, the jury was correctly instructed as to the definition of willful and
wanton conduct, as well as to Hudson's burden of proof with regard to the allegations in the issue
instruction. Thus, it was clear that in order to find for plaintiff, the jury not only had to believe
one or more of the allegations in the willful and wanton issue instruction, but it also had to
determine that the conduct alleged qualified as willful and wanton. Therefore, we reject the City's
contention that the willful and wanton issue instruction misled the jury into thinking that violation
of the police department general order constituted willful and wanton conduct per se.
Moreover, we note that the City may well have failed to preserve any objection it would
have to the given jury instructions by not tendering a correct alternate instruction in the court
below. See Deal v. Byford, 127 Ill. 2d 192, 202-03, 537 N.E.2d 267, 271 (1989) ("To preserve
an objection to a jury instruction a party must both specify the defect claimed and tender a correct
instruction"). After objecting to the instruction tendered by plaintiff, the City proffered the
following instruction as an alternate:
"The plaintiff claims that he was injured and sustained damage and that the
conduct of the defendant was willful and wanton in one or more of the following
respects:
a. Failed to operate the motor vehicle at a speed and in a manner
compatible with conditions to ensure that control of the motor vehicle is
maintained at all times;
b. Executed a lane change striking Vernon Hudson's motor vehicle."
Along with reference to the police department general order, this instruction omitted
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No. 1-05-2822
plaintiff's allegations that Officer Lee was willful and wanton for caravanning, for participating in
the pursuit, for failing to maintain control over her car, for moving into lane 1 when it was not
safe to do so, for following as a subterfuge for pursuit, and for failing to abandon the pursuit.
This conduct was placed in issue and could have constituted willful and wanton conduct if
perpetrated with utter indifference to or a conscious disregard for the safety of others. As noted,
the pattern jury instruction requires that the allegations of the complaint be set forth unless they
have been withdrawn, ruled out by the court, or are not supported by the evidence. IPI Civil
(2000) No. 20.01.01. The City has not contended, nor can it, that any of the allegations of the
issue instruction were excluded or ruled out by the court. Nevertheless, the City omitted those
alleged acts from its proffered instruction and thereby failed to provide a sufficient alternate
instruction to preserve its objection. See Deal, 127 Ill. 2d at 202-03, 537 N.E.2d at 271.
In looking at the dissent, we respectfully suggest that in its impassioned eloquence, it has
failed to accept the function of a reviewing court, which, upon review of a motion for judgment
n.o.v., is to view the evidence in its aspect most favorable to the opponent to determine whether
that evidence so overwhelmingly favors the movant that the verdict could never stand. See
Townsend, 318 Ill. App. 3d at 409, 741 N.E.2d at 1057. In fact, in ruling on a motion for a
judgment n.o.v., "a court does not weigh the evidence *** [but] may only consider the evidence,
and any inferences therefrom, in the light most favorable to the party resisting the motion."
Maple, 151 Ill. 2d at 453, 603 N.E.2d at 512 (1992). Here, the dissent instead appears to focus
upon evidence supporting the City without paying due credence to countervailing evidence and
inference which would support this jury's findings that, at the time of the occurrence, Officer Lee
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No. 1-05-2822
was not executing or enforcing the law for purposes of section 2-202 immunity and, even more
strikingly, that her conduct was wilful and wanton.
As discussed above, when the evidence is viewed in a light most favorable to Hudson, the
jury's conclusion that the City was not immune from liability for Officer Lee's negligence is
sufficient to sustain the verdict. Officer Lee specifically denied that she was attempting to enforce
the law through pursuit or apprehension of the suspect. Rather, she contended that her presence
on the expressway at the time of the occurrence was geared toward potentially "assisting" the
pursuing officers by providing traffic control should the need arise or by providing back up in the
event the suspect took a hostage or started shooting at the police. Neither of these potentialities
were ever actually indicated in this case. Thus, the jury was free to conclude that Officer Lee was
not engaged in activity "designed to carry out or put into effect any law" (Fitzpatrick, 112 Ill. 2d
at 221, 492 N.E.2d at 1296), but was merely making herself available to provide law
enforcement. As we have pointed out, even if the jury took Officer Lee's testimony at face value,
simply making oneself available for the possibility of law enforcement is not enough to attain
immunity. See Leaks, 238 Ill. App. 3d at 17, 606 N.E.2d at 159 (finding no immunity where
police officer, who was on patrol, was backing up his vehicle in attempt to ascertain whether a
group of people gathered outside an apartment building where engaged in illegal activity because
there was no actual indication that a crime was being committed at the time of the accident);
Aikens, 145 Ill. 2d at 285, 583 N.E.2d at 490, 493 (holding that section 2-202 does not
"immunize the negligent performance of all official functions and duties by police," and stating
"section 2-202 immunity is a limited immunity, which dimensions are narrower than the scope of a
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No. 1-05-2822
police officer's employment or his performance of official functions or duties").
Moreover, the jury was free to conclude that Officer Lee was not even attempting to
"assist" as she described it, let alone enforcing the law, but was merely following the pursuit out
of personal interest or because of her camaraderie with her fellow officers. There was evidence
that 12 to 15 other police vehicles were involved in the pursuit. Further, the police department
general order specifically limited police participation in pursuits without providing an exception
for "assistance," by stating that pursuits could be conducted by only two vehicles and that other
officers shall "remain aware of the direction and progress of the pursuit, but will not actively
participate, and will not respond or parallel the pursuit on adjacent streets, unless specifically
authorized to do so." (Emphasis added.) Viewed in a light most favorable to Hudson, these
facts seriously call into question whether Officer Lee was truly attempting to enforce the law, or,
for that matter, whether she was even attempting to "assist;" such questions must be resolved by
the jurors as the triers of fact. The dissent does not give adequate weight to our duties to sustain
the findings of fact by the jury where there is sufficient supporting evidence and to refrain from
overriding those findings where they conflict with our own value judgments.
The dissent fails to note the distinction between a police officer in the act of law
enforcement and one who is merely making herself available for law enforcement like an officer
on routine patrol. For instance, the dissent notes that we commented that Officer Lee would have
been immune had she actually been attempting to provide traffic control. The dissent calls our
statement puzzling and asserts that we have ignored that Officer Lee testified that traffic control
was one of the first things she "might" be required to do. However, the opposite is true; we made
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No. 1-05-2822
this statement in direct reference to Officer Lee's testimony wherein she disclaimed any attempt to
engage in the pursuit but noted that she was going to see if she might become needed for traffic
control or other exigencies that might arise. This distinction, that immunity is available only for
those efforts to execute or enforce the law where a need for such execution or enforcement is
actually indicated, was clearly made by Leaks and is consonant with Fitzpatrick, where a police
officer was found to be immune because he was in the act of investigating a traffic accident when
the plaintiff's injury occurred. The dissent attempts to distinguish Leaks from the instant case by
noting that, here, there was, in fact, a crime committed while there was no specific indication of
any crime in that case. However, the dissent fails to acknowledge that Officer Lee specifically
removed herself from enforcement related to the crime in this case in that she disclaimed any
attempt to participate in the pursuit. Here, the jury was well able to infer from Officer Lee's
testimony that her "assistance" was, at best, an unfocussed attempt to make herself available for
as yet unrealized opportunities for law enforcement.
The dissent further points to Lieutenant Jackson's testimony that police officers have a
general duty to "assist" other officers and contends that this duty to "assist" was unrebutted.
However, in giving great weight to Lieutenant Jackson's testimony, the dissent fails to consider
Officer Lee's description of what she was doing when she said that she was going to assist,
namely, that she was going to see if she might become needed to provide traffic control or
backup. Implicitly, the dissent also fails to recognize that our supreme court in Aikens clearly
stated that not every police duty constitutes enforcement of the law for purposes of section 2-202
immunity.
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No. 1-05-2822
Moreover, while placing great emphasis on Lieutenant Jackson's testimony, the dissent
fails to recognize other evidence supporting the inference and conclusion that Officer Lee was
merely following the pursuit out of personal interest or camaraderie rather than in response to any
police duty to "assist." As noted, the police department general order, which was entered into
evidence and read aloud to the jury by Officer Lee, directly discouraged police officers from
taking any active part in pursuits. Specifically, the general order limited pursuits to two vehicles
and directed that other officers shall "remain aware of the direction and progress of the pursuit,
but will not actively participate, and will not respond or parallel the pursuit on adjacent streets,
unless specifically authorized to do so." (Emphasis added.) The general order further forbade
"caravanning" and "following as a subterfuge for pursuit." No section of the police general order
provided for "assisting" a pursuit. In addition, there was evidence that 12 to15 police vehicles
were already involved in the pursuit. Thus, the jury could well have inferred that despite
Lieutenant Jackson's assertion that police officer's have a duty to assist, Officer Lee's participation
was not geared toward that particular end but was based on her own personal interest in the
outcome or on her camaraderie with her fellow officers.
The dissent seems to attach major significance to the state of Officer Lee's emergency
lights at the time of the occurrence and charges us with repeatedly suggesting that the officer's
emergency lights were not engaged. In fact, we have not purported to rely upon that factor in
determining whether the jury had an evidentiary basis for its verdict.6 While there was ample
6
We further note that the dissent is mistaken in its assertion that we affirmatively stated in
our footnote 4 that Officer Lee's emergency lights were not activated. There, we did not purport
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No. 1-05-2822
evidence that Officer Lee's emergency lights were, in fact, activated, that factor is relatively
insignificant in this case. It is certainly not the case that a police officer will automatically be
deemed to be enforcing the law whenever she has engaged her vehicle's emergency lights. Rather,
the dispositive inquiry on which we have focused is whether the police officer was engaged in
activity "designed to carry out or put into effect any law." Fitzpatrick, 112 Ill. 2d at 221, 492
N.E.2d at 1296.
Moreover, contrary to the dissent's position, there was some conflicting evidence on this
point that the jury could have found to be persuasive. Although Officer Lee testified that her
emergency lights were on, she also testified that citizen cars were "all around", "they were moving
with me," and that some of them must have been passing her. Inferentially, this statement could
have been construed by the jury as negating the assertion that the emergency lights were activated
since citizens would presumably not pass a police car with emergency lights activated. This
conclusion would also be consonant with the City's assertion that Hudson pulled out in front of
Officer Lee after previously yielding to other police vehicles by moving to the shoulder. Although
possible, it is doubtful that Hudson would yield to one vehicle with emergency lights and then pull
out in front of another vehicle that had emergency lights activated. Furthermore, although Officer
to comment on whether Officer Lee's emergency lights were activated but merely referred
hypothetically, in a totally different context, to the failure to engage emergency lights as one
example of a violation of the police general order that would potentially have less significance
under the immunity statute than a violation of the order through participation in unauthorized
pursuit.
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No. 1-05-2822
Ray first testified that the emergency lights were on, he later said that he could not recall whether
they were on. The dissent contends that Officer Ray's statement was the result of clever cross-
examination by plaintiff's counsel and what he really meant to say was that he was not sure
whether it was he or Officer Lee who turned the emergency lights on. However, such an analysis
is one for the jury and not for the court to make. See People v. Feyrer, 269 Ill. App. 3d 734, 742,
646 N.E.2d 1244, 1250 (1994).
The dissent further strays from the essential issues of this case by charging us with
misstating a portion of Lieutenant Jackson's testimony regarding a police officer's obligation to
communicate with dispatch. As with the evidence concerning the emergency lights, here to, the
jury was free to resolve any conflicting evidence in favor of the conclusion that, regardless of any
communication with dispatch, Officer Lee's "assistance" did not amount to an actual attempt to
execute or enforce any law. However, we are somewhat disturbed by the dissent's assertion that
we misstated Lieutenant Jackson's testimony.
Although we did not provide an exact quote of Lieutenant Jackson's statement, we believe
our paraphrasing is sufficiently accurate. To be sure, Lieutenant Jackson was asked: "If Officers
Ray and Lee are assisting in the participation of an apprehension of a suspected felon, they are
required under department policy and procedure to advise dispatch that they are going to be
participating in that role, correct?" Lieutenant Jackson answered this question "yes," but then
clarified that the dispatcher may have called for radio silence, which would have hindered Officer
Lee from communicating with dispatch. Our recitation of Lieutenant Jackson's testimony reflects
this fact. The dissent appears to attempt to draw a distinction between "pursuit" and
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No. 1-05-2822
"apprehension" with regard to the duty to communicate with dispatch even though neither
counsel's question nor Lieutenant Jackson's answer made any such distinction. It is inappropriate
for the court to impose its interpretation of any given testimony upon the jurors who have,
themselves, heard the testimony in its full context. See Maple, 151 Ill. 2d at 453, 603 N.E.2d at
512.
With regard to the special interrogatory, we believe the dissent has failed to take full
account of the distinctions made in the cases we have cited. The cases make clear that whether a
comment on a special interrogatory requires a reversal depends on the specific context and
circumstances surrounding the comment and that where the emphasis is on the evidence rather
than a need for the jury to harmonize its answer with its verdict, a reversal is not necessarily
required. See Batteast, 137 Ill. 2d at 186, 560 N.E.2d at 321; Levin, 164 Ill. App. 3d at 652, 518
N.E.2d at 213; O'Connell, 285 Ill. App. 3d at 467, 674 N.E.2d at 111. Here, as discussed above,
the statements made by plaintiff's counsel regarding the special interrogatory focused on the
evidence and the City's burden of proof. Thus, we cannot find that the trial court abused its
discretion in determining that counsel's statement was permissible. See Maple, 151 Ill. 2d at 455,
603 N.E.2d 515.
In any event, even without regard to our conclusions concerning the negligence count and
the jury's finding that Officer Lee was not enforcing the law, the jury's verdict is clearly
sustainable under the willful and wanton count. The dissent, however, contends that there was
insufficient evidence to support the jury's finding of willful and wanton conduct and the City was,
therefore, entitled to judgment n.o.v. The dissent notes that Patrick described Officer Lee's
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vehicle going from the far left lane to the far right lane before the impact with Hudson, and that
Officer Lee might have been driving slightly above the speed limit. The dissent, however, defends
Officer Lee by noting that police officers may exceed the speed limit under certain circumstances
and by noting that Officer Lee stated that she merged only from lane 2 to lane 1 and attempted to
avoid Hudson before the impact.
Here, as with the negligence count, the dissent appears merely to focus on evidence which
she, as a trier of fact, might have found persuasive but again fails to acknowledge the evidence the
actual trier of fact could have relied upon. As noted above, Patrick described Officer Lee's merge
across multiple lanes of traffic as a "jump," and Officer Lee testified that she was not looking at
the lane she was merging into although she was aware that there were multiple civilian cars on the
road. In this regard, we note that it was for the jury and not this court to weigh the testimonies of
Officer Lee and Patrick with regard to their descriptions of the events leading up to the
occurrence. See Feyrer, 269 Ill. App. 3d at 742, 646 N.E.2d at 1250.
The dissent also adopts the City's position that the issue instruction given to the jury on
the willful and wanton count mandates a new trial. The dissent notes that this instruction
"mimicked plaintiff's complaint" but fails to acknowledge that the pattern jury instruction requires
just that – that the allegations of the complaint be set out. See IPI Civil (2000) No. 20.01 [12].
The issue instruction is not designed to define willful and wanton conduct; its function is simply to
set out the allegations of the complaint that are supported by the evidence and have not been
withdrawn or ruled out. See IPI Civil (2000) No. 20.01 [12]. Moreover, as noted, the City's
alternate instruction proffered in conjunction with its objection to the given instruction suffered
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from the very same deficiencies it now alleges on appeal. As previously discussed, in order to
preserve an objection to a jury instruction, a party must specify the instruction's defect and
provide a correct instruction. See Deal, 127 Ill. 2d at 202-03, 537 N.E.2d at 271.
Finally, the dissent contends that the video simulation was prejudicial because, as we
noted, Dr. Ziewjewski created his the simulation by inputting several facts into the computer
program that were not directly supported by the evidence. The dissent specifically rejects our
position that Dr. Ziewjewski's use of a hard right turn in the beginning of the simulation was
supported by Patrick's testimony that the vehicle "jumped" across the lanes. The dissent states
that the term "jumped" is "nothing more than a colloquialism, and not a description of what
actually occurred." The dissent further suggests that the term "jumped" can only be understood in
its literal meaning, as in "to spring from the ground." However, as we previously indicated,
before Patrick described the movement of Officer Lee's vehicle as a "jump" across the lanes of
traffic, she first testified that Officer Lee's vehicle moved from the far left lane to the far right
lane, stating "[Officer Lee's vehicle] come from the far left and all the way up to the right and hit
him." Thus, Patrick's subsequent use of the word "jumped" merely described how the vehicle
moved across the lanes. It is unreasonable to say that the use of the term "jumped" in this context
was meant to indicate that the vehicle left the ground and went airborne; on the other hand, it
would seem reasonable for Dr. Ziewjewski to construe Patrick's use of the term "jumped" as
meaning that Officer Lee's vehicle moved across the lanes very quickly, which would have
required a hard right turn. See Webster's Seventh New Collegiate Dictionary at 460 (1969) (in
addition to other definitions, defining "jump" as "to give a sudden movement," "to move
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energetically," "to move haphazardly or aimlessly").
We will not speculate whether the evidence in this case with respect to the willful and
wanton count could conceivably have sufficed to support a verdict in favor of the City had such a
verdict been returned. However, we are certain that there is ample evidence to support the
verdict that the jury did render as to the willful and wanton count. Likewise, as discussed, there
is sufficient evidence to support the verdict with respect to the negligence count. See, e.g.,
Friedland v. Allis Chalmers Co. of Canada, 159 Ill. App. 3d 1, 9, 511 N.E.2d 1199, 1205 (1987)
("Only if the verdict was palpably erroneous and wholly unwarranted, was clearly the result of
passion or prejudice, or appears to be arbitrary, unreasonable, and not based upon the evidence
will it be overturned"); Kahn v. James Burton Co., 5 Ill. 2d 614, 623, 126 N.E.2d 836, 841
(1955) ("A verdict will not be set aside merely because the jury could have found differently or
because judges feel that other conclusions would be more reasonable. [Citation] *** Under our
system of jurisprudence, jury determinations can be set aside only when a court of review *** is
clearly satisfied that they were occasioned by passion or prejudice or found to be wholly
unwarranted from the manifest weight of the evidence").
III. CONCLUSION
For all the foregoing reasons, we affirm judgment of the trial court.
Affirmed.
McNULTY, J., concurs.
Justice O'MALLEY, dissenting:
I respectfully dissent from the majority opinion in its entirety. In my view, the City was
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protected by section 2-202 of the Tort Immunity Act (Act) (745 ILCS 10/2-202 (West 2004)) where
Chicago police officer Sung Joo Lee was executing and enforcing the law at the time of the
occurrence; moreover, the exception to section 2-202 of the Act was not triggered because none of
the evidence supported a finding of willful and wanton conduct on the officer’s part. This is true
whether or not Officer Lee was engaged in a pursuit or simply going to assist other officers. Even
when the evidence is viewed in the light most favorable to plaintiff, the City was entitled to a
judgment n.o.v. on these counts. Further, I believe the comments of plaintiff’s attorney instructing
the jury to answer the special interrogatory regarding execution and enforcement in favor of his client
completely eviscerated the utility of that special interrogatory and virtually ensured, in the context
of this tragic accident, that the jury would answer as instructed. Finally, the jury instruction on willful
and wanton conduct was fatally flawed as was the video prepared by plaintiff’s expert. Where the
evidence might be considered to be closely balanced, these last issues constitute reversible error and
would require a new trial. (In my view, the evidence is actually not closely balanced, it
overwhelmingly favors the City, but some might regard it as such.) Moreover, I am not attempting
to substitute my evaluation of the facts for that of the jury, nor have I only considered evidence
favoring the City, as the majority suggests, there are simply so few facts which favor the plaintiff that
this verdict is not sustainable.
I fully appreciate that if we are to ever achieve finality in litigation, great deference must be
given to the jury’s conclusions. However, this does not demand slavish adherence to verdicts which
are clearly wrong, nor does it relieve this court of its responsibility to critically review jury verdicts.
It is apparent to me that this verdict is the result of passion or prejudice in the sense that it is a
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sympathy verdict against a target defendant. Illinois Pattern Jury Instructions, Civil, (IPI Civil) No.
1.01 (2007 ed.) (“Your verdict must not be based upon speculation, prejudice, or sympathy.”).
EXECUTION & ENFORCEMENT
The City claims it was entitled to judgment n.o.v. because its officer was in the execution and
enforcement of the law and I agree. Section 2-202 of the Act immunizes all municipal employees for
their acts or omission in the execution and enforcement of the law. See 745 ILCS 10/2-202 (West
2004). As principal and agent, the City is immunized where its employee is immunized. 745 ILCS
10/2-109 (West 2004); Wade v. City of Chicago, 364 Ill. App. 3d 773, 780 (2006). Where a police
officer is engaged in a course of conduct designed to carry out or put into effect any law, the
immunity applies unless his or her conduct was willful and wanton. Fitzpatrick, 112 Ill. 2d at 221;
745 ILCS 10/2-202 (West 2004). Here, Officer Lee was, in my view, so engaged and nothing she
did could properly be considered willful and wanton conduct.
The evidence showed that at about 9 p.m. on May 7, 2001, Officer Lee and her partner,
Officer Howard Ray, normally assigned to protect Chicago Housing Authority residents, heard a
radio dispatch that a homicide suspect was being pursued on the Eisenhower expressway by other
officers. Lee and Ray entered the expressway, not to engage in the pursuit, but rather to assist in the
eventual apprehension of the suspect, either by controlling traffic at the scene or any other helpful
activity. The night was clear and dry, and the highway well lit. At one point after entering the
expressway, Lee was required to get off the eastbound expressway and get on the expressway
westbound because the pursuit changed directions. Going westbound, with her turn signal and
emergency equipment activated, she moved from the first to the third lane, and collided with plaintiff
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because his car either protruded from the shoulder into Lee’s lane, or he pulled out from the shoulder
in front of her.
The testimony of Chicago police Lieutenant Carolyn Jackson established that all officers were
expected to assist other officers should the occasion arise, and no permission from superiors was
required for such a decision. Contrary to what the majority implies, I gave Jackson’s testimony no
more weight than it deserved. Lieutenant Jackson is a ranking officer in the Chicago Police
Department, and her testimony was entirely unrebutted. I have taken issue with a statement which
appears in the majority opinion: the majority states that Lieutenant Jackson testified that “if Officers
Lee and Ray were assisting in apprehending a suspected felon, they were required under department
policy and procedure to advise dispatch.” This indicates that if these officers were doing exactly what
they said they were doing—attempting to assist in the apprehension of a suspected felon—they were
required to notify dispatch or be in violation of a general order. After reviewing over 57 pages of
Lieutenant Jackson’s testimony, taken in context, it is my position that that is not a correct
interpretation of what she said in spite of the majority’s protest regarding the same. She made it
crystal clear that it was only officers engaged in or assisting in the pursuit who had to notify dispatch,
those being the primary and secondary cars. In her opinion, an officer was not involved in a pursuit
unless they could see it, and these officers undisputedly could not see the pursuit because they had
to monitor their radio to know where it was going. The majority states its presentation is fair,
because it then mentions “countervailing evidence” regarding Jackson’s comments about anticipated
radio silence. However, these remarks regarding radio silence have little to do with the issue of
whether Lee and Ray violated a general order in not contacting dispatch (except they might not get
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through if they tried). Jackson’s real opinion is to be found in the veritable mountain of contradictory
evidence which shows that it is the opposite of what is said in the majority opinion. Jackson testified
that she believed Lee and Ray were not involved in a pursuit, so they were not required to contact
dispatch. Further, she clearly maintained that Officer Lee not only did not violate a general order,
but she did nothing wrong.
To address a preliminary matter, while the majority claims that whether or not Lee’s
emergency equipment was activated is insignificant to its opinion, I think it is an important factor and
further, it is repeatedly referred to in the majority opinion and used as at least a partial basis for some
of its conclusions. Therefore, I think it worthy of comment. In my view, there can be no serious
dispute that Lee’s equipment was activated. Both officers testified that the emergency equipment was
on. Even if one chose to disregard their testimony as biased, an independent witness, Denise Patrick,
testified that the lights and sirens were on. Most importantly, the plaintiff, Vernon Hudson, testified
to seeing the officers’ lights behind him and hearing the siren moments before the crash.
In spite of this evidence, the majority maintains that it is “questionable” whether the
emergency equipment was on, choosing to base its conclusion that the equipment may not have been
on primarily upon a halting, confused, bit of cross-examination where Officer Ray is questioned by
plaintiff’s attorney, as well as two bits of speculation it then offers. Ray stated as follows:
Q. [Plaintiff’s Attorney] Did you put the lights on, the
oscillating lights and siren on?
A. [Officer Ray] I can’t recall.
Q. As you sit in this courtroom, you don’t have any memory
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of turning them on, do you?
A. I know they were on, but I don’t—I can’t recall—I don’t
know what—I would have to see the car because sometimes the lights
are on the driver’s side, and then sometimes they’re on my side.
Q. But as you sit here today, you don’t remember if they were
on.
A. No, I can’t recall.” (Emphases added.)
It is clear to me that Officer Ray was responding to the first question—inquiring whether he
turned the lights and sirens on—presumably as opposed to Officer Lee. The next question skillfully
and quickly moves from whether he himself turned on the equipment to whether it was on at all, and
he became confused, and responded again that he did “not recall.” Aside from a bit of speculation
to be discussed below, this is the only genuine piece of evidence in a record where everybody else
involved, including plaintiff, testified to seeing Lee’s lights and hearing sirens immediately before the
crash.
Nonetheless, the majority claims that, aside from Ray’s testimony above, there is other
evidence that Lee’s equipment was not activated, speculating upon two bits of testimony from Lee
herself. Initially, Lee agreed at trial that upon entering the highway, there were “cars all around” and
“some must have been passing her.” (These were actually plaintiff’s lawyer’s words; however, Lee
agreed, albeit hesitatingly). The majority then posits that no one would be passing a police car with
lights and sirens activated, so Lee’s equipment was probably not on. In fact, in my view, common
sense dictates otherwise. Lee said she activated her equipment upon entering the Eisenhower.
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Where this happens, it usually takes a number of minutes for other drivers to react and move out of
the way. Cars certainly do not disappear instantaneously, and cars in front of her or slightly ahead
of her may well have to pass to get to the right shoulder. I acknowledge that while this inference
might conceivably be considered evidence that her equipment was not activated, in view of the solid
testimony that it was, the latter seems unfounded. Further, if cars were actually “moving with her,”
it corroborates her testimony that she was going 45 to 50 miles per hour, not 55 to 65 as Denise
Patrick said.
Another reason the majority suggests that the emergency equipment was not activated
presents an interesting issue. Officer Lee testified that Mr. Hudson pulled out in front of her, but Mr.
Hudson maintained he pulled to the shoulder in response to lights and sirens behind him. The
majority then speculates that Mr. Hudson actually pulled to the shoulder in response to the pursuers’
lights and sirens, then pulled back into the roadway in front of Lee. The majority then states that
while possible, it would be illogical to think that Mr. Hudson would pull over for one set of lights,
but pull out in front of Lee if her equipment was activated, so it must mean Lee’s equipment was not
on. If true, it would have Mr. Hudson pulling over, waiting for some period of time because the
pursuers were well ahead of Lee and she could not even see them, and then pulling out in front of a
lightless, sirenless Lee.
However, Mr. Hudson’s testimony contradicts this scenario. He says he was pulling over in
response to the lights, not pulling out, when he was hit. In any event, whether pulling out or pulling
over, Mr. Hudson maintained that he reacted immediately upon seeing lights in his rearview mirror
and hearing sirens, and was struck only seconds later. Since it is indisputable that it was Lee who hit
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him, not the pursuers, it had to be Lee’s equipment Mr. Hudson saw and heard.
The more interesting aspect of this is, had the jury believed that Mr. Hudson pulled in front
of Lee, as Officer Lee stated, there can be no question that this verdict is incorrect, and the product
of sympathy and / or prejudice. The verdict form reveals that the jury found plaintiff 0% negligent
and the officers 100% negligent. If plaintiff pulled in front of the officers, this accident would
essentially be his fault and surely the verdict would reflect some substantial percentage of negligence
on the part of plaintiff. I believe it to be common knowledge on the part of drivers that one is
required to yield when pulling into moving traffic from the shoulder of the road. See 625 ILCS 5/11-
905 (West 2006); 625 ILCS 5/11-709.1 (West 2006). In fact, either way, it is evident Mr. Hudson’s
car occupied some part of Officer Lee’s lane, so it is surprising that the jury still found him 0%
negligent. I take this to be evidence of the jury’s bias against the defendant City.
In one footnote, the majority hypothesized that the emergency equipment was not on, and the
officers were driving in violation of a general order to activate it if in a pursuit. Slip op. at 28-29, n.
4. It then speculates, wholly without citation, that such conduct would “arguably” somehow render
the officers unable to enforce the law. Slip op. at 28-29, n. 4. While this may be just a hypothetical,
I note that there is simply no support in the record or in the law for this position, and none is offered.
Would the majority also maintain that if these officers had apprehended the suspect after pursuing
without permission, the arrest would be illegal?
As for a discussion of case law, the majority then offers something of a survey of the law
where officers have and have not been found to be in the execution and enforcement of the law. The
first cases are those in which officers were found to be in the execution and enforcement of the law.
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See Bruecks v. County of Lake, 276 Ill. App. 3d 567 (1995), Morris v. City of Chicago, 135 Ill. App.
3d 374 (1985), and Fitzpatrick v. City of Chicago, 112 Ill. 2d 211 (1986).
Bruecks and Morris are virtually identical to the case at bar, although this case is even more
compelling for finding the officers within section 2-202. In Bruecks, an officer heard a report of shots
fired in the area. Bruecks, 276 Ill. App. 3d at 568. Although other officers were responding to the
scene, the officer decided to respond as well. Bruecks, 276 Ill. App. 3d at 568. Unlike Officer Lee,
he did not activate his emergency equipment and stated that he did not consider the situation to be
an emergency. Bruecks, 276 Ill. App. 3d at 568. He was involved in an accident on the way to the
scene, negligently striking plaintiff’s vehicle. Bruecks, 276 Ill. App. 3d at 568. The court stated that
the officer was “clearly” being called upon to execute the law. Bruecks, 276 Ill. App. 3d at 569. The
fact that he was not specifically dispatched to the scene, did not have his emergency equipment
activated, and did not subjectively consider this to be an emergency did not affect the court’s
decision. Bruecks, 276 Ill. App. 3d at 569. In this case, Officer Lee responded to a radio call and
decided to go to the assistance of other officers, although not specifically dispatched to the scene and
in spite of the fact that others were also responding. Unlike Bruecks, however, Officer Lee did have
her emergency equipment activated. As in Bruecks, Officer Lee was in the execution and
enforcement of the law and our result should be the same.
Similarly, in Morris v. City of Chicago, 130 Ill. App. 3d 740 (1985), the court held that an
officer who struck plaintiff in plaintiff’s parked car while responding to a radio call of a crime in
progress was executing and enforcing the law and therefore immune under section 2-202. Morris,
130 Ill. App. 3d at 741, 744. The court found that the immunity applied because, at the time of the
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No. 1-05-2822
accident, there was an “unbroken effort” on the officer’s part to respond to the call and thereby
execute and enforce the law. Morris, 130 Ill. App. 3d at 744. The court did not agree that the
officer could not be said to be executing and enforcing, because he did not actually see a crime in
progress. Morris, 130 Ill. App. 3d at 743. Here too, there was an “unbroken effort” on Officer Lee’s
part to respond to the radio call as she thought appropriate. Like Morris, there was a crime in
progress here as well: a homicide suspect eluding the police. See 625 ILCS 5/11-907 (West 2004).
(Whether or not a crime has been, or is being committed seems to be key in the case law. See
Bruecks, 276 Ill. App. 3d at 568-69; Morris, 135 Ill. App. 3d at 744; Bosen v. City of Collinsville,
166 Ill. App. 3d 848, 850-51 (1987); and Leaks v. City of Chicago, 238 Ill. App. 3d 12, 14-15
(1992)). Morris is, in my view, indistinguishable and indeed the majority makes no effort to
distinguish it. Bruecks and Morris are therefore controlling in the case at bar and should be followed.
In its order, the majority then moved on to discuss an “extensive” line of cases which find that
the public employee involved was not executing and enforcing the law. I acknowledge that there are
many such cases, but every one on which the majority relied is so factually different from this case
as to be wholly inapposite. In Aikens v. Morris, 145 Ill. 2d 273 (1991), the supreme court found that
the act of transporting prisoners was not covered by the immunity. In Simpson v. City of Chicago,
233 Ill. App. 3d 791 (1992), an officer on his way to fill out a missing persons report was not
immune. In Leaks v. City of Chicago, 238 Ill. App. 3d 12, 14-15 (1992), a police officer cruising on
routine patrol had an accident while backing up after stopping at a corner where some individuals
were gathered. Although he maintained that he suspected drug activity, the court disagreed, saying
no immunity applied where no crime had in fact been committed, the officer had nothing more than
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a suspicion that a crime had occurred, and he was essentially just cruising. Leaks, 238 Ill. App. 3d
at 17. In Sanders v. City of Chicago, 306 Ill. App. 3d 356, 359 (1999), an officer was initially
traveling to assist another officer, but he received word that the emergency was over prior to having
an accident. The court disagreed with the trial court’s granting of summary judgment in favor of the
City, instead granting summary judgment for the plaintiff, holding that the officer was not immune
as a matter of law. Sanders, 306 Ill. App. 3d at 361-62. Clearly, these situations are dramatically
different than the one in the case at bar. All the conduct by the officers in the aforementioned cases
was either ministerial or routine, or became routine by the passing of an emergency (see generally,
Sanders, 306 Ill. App. 3d at 359-62). Indeed, these cases stand for the proposition that routine
activities are generally not immunized. Leaks, 238 Ill. App. 3d at 17; Aikens, 145 Ill. 2d at 278-79;
Simpson, 233 Ill. App. 3d at 792-93. However, these situations are wholly unlike going to assist in
the apprehension of a homicide suspect who was contemporaneously committing a crime.
In terms of analysis, the entire majority memo first adopts the position that the officers were
not in the execution and enforcement of the law because they were not going to assist as they said,
but were actually involved in a pursuit in violation of a general order. I note that the violation of a
general order may be some evidence of willful and wanton conduct (although not here), but no cases
support the proposition that a violation of a general order strips an officer of immunity or the ability
to enforce the law (the significance of such a violation, or lack thereof, is extensively discussed in the
section of this dissent addressing willful and wanton conduct).
According to the majority, it would be reasonable for the jury to inferentially conclude that
the officers were actually pursuing, not going to assist, because they “closely” monitored their radio
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and changed lanes in response to what lane the fleeing felon was occupying. Both these things
actually corroborate Lee’s position that she was going to assist, not pursuing, and not the other way
around. Initially, I note that Lieutenant Jackson’s unrebutted testimony was that officers are not in
pursuit or caravanning unless they could see the pursuit. Lee said she could not see the pursuit, but
further, if she could, it would not have been necessary to monitor her radio to know where she was
going or in what lane the felon was driving. Instead, Lee was clear that she never saw the white van
that was being pursued, and that she moved into the far right-hand lane only so that she would be
traveling “in the same direction” if the suspect again exited the expressway as he had previously done.
In short, all of this confirms Lee’s testimony that she was going to assist, not engaged in a pursuit.
If the jury believed otherwise, it would, in my view, be against the manifest weight of this evidence.
See York v. Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d 147, 178 (2006) (“A new trial
should be granted only when the verdict is contrary to the manifest weight of the evidence.”). A
verdict is against the manifest weight of the evidence when the opposite conclusion is clearly
apparent. Redmond v. Socha, 216 Ill. 2d 622, 651 (2005). Here, it is.
The majority then turns the tables and states that the officers could not be in the execution
and enforcement of the law because they were going to assist and were not the direct pursuers.
Specifically, the majority delineates five specific reasons why the jury was justified in concluding that
Lee was not enforcing the law if she was actually going to assist other officers: First, because Lee
denied being in direct pursuit, or that she would be “hands-on” in apprehending the criminal; second,
because Lee said that she was going to assist in the apprehension, she was merely “available” to
enforce the law, not enforcing it; third, related to “availability,” because she was uncertain exactly
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what assistance would be required, her efforts were simply “unfocused” availability, conduct
purportedly not entitled to immunity; fourth, the law being enforced was “nebulous”; and finally, the
fifth reason the jury’s verdict is allegedly justified is because they could reasonably believe that Lee
and Ray joined in this endeavor for their own amusement–out of curiosity or camaraderie with fellow
officers–and were therefore not enforcing the law. None of the above reasons supports the latter
conclusion, in my view.
First, the majority’s position that only prime actors, direct pursuers, and / or those who are
first to apprehend the criminal enjoy immunity, finds no support in the law. Rather, the opposite is
true, as Bruecks v. County of Lake, 276 Ill. App. 3d 567 (1995), Morris v. City of Chicago, 135 Ill.
App. 3d 374 (1985), and Bosen v. City of Collinsville, 166 Ill. App. 3d 848 (1987), demonstrate.
In those cases, officers began to travel to a scene in response to information received on their radios,
as Lee and Ray did here; like Morris, here other cars were responding. Morris, 135 Ill. App. 3d at
742. None of the officers knew exactly what would be required when they arrived. In addition, in
Bosen, the officer was exceeding the speed limit, as Lee is alleged to have done here, although the
officer in Bosen was estimated to be traveling at 50 miles per hour on wet pavement in a 25 miles-
per-hour zone as he responded to a radio call. As in the instant case, the officers in all three cases
had an accident prior to reaching the scene, so none actually arrived. Nonetheless, the court found
each officer to be unequivocally immune. See Bruecks, 276 Ill. App. 3d at 568-69, Morris, 135 Ill.
App. 3d at 744, and Bosen, 166 Ill. App. 3d at 850-51.
Next, the majority maintains this verdict is justified because Lee was only attempting to assist
in an apprehension, which allegedly amounts to simply making oneself “available” to enforce the law
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(citing Leaks), and does not trigger the immunity. Further according the majority, where Lee did not
know precisely what would be required of her when she arrived (traffic control or some other
activity), her efforts were tantamount to an “unfocused” availability because no specific law was
being enforced, or it was a “nebulous” one, not triggering immunity. I do not believe any of these
arguments have merit.
I initially note that, in a sense, all officers are “available” for law enforcement just by walking
into the Area to report for their shift, and certainly while they are carrying out routine duties on their
watch. There is, however, a qualitative difference between that kind of routine availability and the
conduct of the officers here. It would be disingenuous to claim that Lee’s “availability” as she
responded to this emergency is in any way the same as the availability of the officer on routine patrol
in Leaks. Furthermore, there is no case law that supports the majority’s holding that immunity does
not apply when officers are only “available” to enforce the law, certainly Leaks and Aikens do not.
One might say that the officers in Bruecks, Morris, and Bosen were merely available at the time they
heard the radio transmission. Where they took a substantial step to respond, however, mere
availability was transformed into law enforcement activity and they were deemed to be immune. See
Bruecks, 276 Ill. App. 3d at 568-69; Morris, 135 Ill. App. 3d at 743-44; and Bosen, 166 Ill. App. 3d
at 850-51. The officers in the case at bar should also be immune.
Puzzlingly, the majority comments that there is “little doubt that had Officer Lee been on her
way to provide traffic control,” or “had the lead officers *** requested backup ***,” immunity would
apply. (Emphasis added.) Slip op. at 27-28. First, this ignores, or claims the jury rejected, the fact
that the officer’s testimony was unrebutted that she was on her way to provide traffic control or do
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anything else which might be helpful. Second, Lt. Jackson testified that officers were expected to
provide assistance, and that decision was up to them. Where officers are expected to provide
assistance, it stands to reason that no request for backup has to be made either. Thirdly, nothing in
the Act precludes immunity and no case is cited that stands for the proposition that an officer is
stripped of immunity solely because no backup was requested or permission given. 745 ILCS 10/2-
202 (West 2004).
Further, there is no confusion about what law was being enforced, nor is it “nebulous.” It is
illegal to elude the police and indisputably, this is the law that was being enforced; Lee and Ray’s
conduct is clearly referable to that law. Simply because the officers did not know what activities
would be required to enforce that law when they arrived, or whether some other law or laws would
simultaneously require enforcement at the scene, i.e., traffic control, etc., does not make this conduct
“unfocused” or strip them of immunity. The majority states “The only law that was in actual need
of enforcement related to the apprehension of the criminal suspect, and Officer Lee explicitly denied
that she was taking part in that enforcement.” Slip op. at 28. (Notably, the only thing Lee “explicitly
denied” was being involved in a pursuit, not law enforcement—she testified that she intended to assist
at the eventual apprehension if such was required, and that is law enforcement. See Bruecks, 276
Ill. App. 3d at 568-69; Morris, 135 Ill. App. 3d at 744; and Bosen, 166 Ill. App. 3d at 850-51.). The
officers here were clearly “engaged in a course of conduct designed to carry out or put into effect any
law.” Wade v. City of Chicago, 364 Ill. App. 3d 773, 780 (2006).
The majority cites Leaks v. City of Chicago, 238 Ill. App. 3d 12 (1992), as authority that
being “available” to enforce the law does not trigger the immunity. Leaks is completely different
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factually and is wholly inapplicable to the case at bar in my view. In Leaks, an officer on routine
patrol backed over someone when leaving a gathering of individuals on a corner. The court said he
was not entitled to immunity because he merely had a “suspicion” that a crime had been committed
(drug activity) where one had actually not been committed. Leaks does not, as the majority claims,
support a proposition that “availability” to enforce the law does not trigger immunity and in fact no
case does. See Bruecks, 276 Ill. App. 3d at 568-69; Morris, 135 Ill. App. 3d at 743-44; and Bosen,
166 Ill. App. 3d at 850-51. In the instant case, unlike Leaks,7 there is nothing routine about a
homicide suspect eluding the police and an emergency situation that demanded the attention of many
officers. Here, Lee and her partner were either responding to a specific call outside their district
about a specific crime in progress at a specific place, the Eisenhower, to assist in the anticipated arrest
in any way that was helpful, or they were pursuing under the same circumstances, albeit in violation
of a general order to notify. Either way, simply because they had an accident prior to having the
opportunity to carry out this task in no way diminishes Lee’s entitlement to immunity under the Act.
See Bruecks, 276 Ill. App. 3d at 568-69; Morris, 135 Ill. App. 3d at 743-44; and Bosen, 166 Ill. App.
3d at 850-51; see also 745 ILCS 10/2-202 (West 2004). Thus, the jury was not “free to conclude,”
7
Moreover, Leaks is not “consonant” with Fitzpatrick v. City of Chicago, 112 Ill. 2d 211
(1986), as the opinion states. In fact, Fitzpatrick is far more supportive of the dissent than the
majority opinion. In Fitzpatrick, no crime had occurred, simply a traffic accident which required
investigating. Accident investigation comes closer to the routine conduct of the officer in Leaks
than that of the officers in in the case at bar. Nonetheless, in Fitzpatrick, unlike Leaks, the officer
was immune.
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as the majority states, that she was not enforcing the law.
The majority next claims that the jury was again “free to conclude” that the officers were not
enforcing the law because they joined in this pursuit for their own amusement, either out of personal
curiosity or camaraderie with their fellow officers. First, I note that there is not a scintilla of evidence
that this was the reason these officers responded. The jury may also have concluded that they were
not enforcing the law because they were going to the movies or the beach, but that would not be
justified either. I acknowledge that the jury is free to draw reasonable inferences from the evidence,
but they are not free to indulge in pure, unsupported speculation or flights of fancy. See generally,
IPI Civil, Nos. 1.01 and 3.04. Moreover, the fact that “12 to 15” cars were involved in this effort
is irrelevant and does not bolster the majority’s “camaraderie” argument, because neither Lee nor Ray
knew how many cars were involved. In fact, it appears that no one knew, at the time of the incident,
how many cars were involved until after the incident was over.
Moreover, I note that neither personal curiosity nor camaraderie is inconsistent with enforcing
the law. It is reasonable to assume that there is some curiosity to learn about a situation and more
that a bit of camaraderie involved in any effort officers make to assist each other or ensure one
another’s safety. This does not mean that because camaraderie or personal interest is part of the
motivation for some law enforcement activity, that such activity may not still be legitimately
characterized as law enforcement, entitling the officers so engaged to immunity. For example, if
officers rush to assist an officer down at the scene of a bank robbery, and have an accident on the
way, they would be, in my view, enforcing the law, even though part of their motivation stems from
a feeling of camaraderie or loyalty to a fellow officer. See generally, Bruecks, 276 Ill. App. 3d at
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568-69; Morris, 135 Ill. App. 3d at 743-44; and Bosen, 166 Ill. App. 3d at 850-51. Therefore,
camaraderie or even curiosity cannot be said to be mutually exclusive with law enforcement, and I
know of no case which holds otherwise.
Finally, on the point of enforcement, the majority insists that, when viewed in the light most
favorable to Mr. Hudson, where General Order 97-03 provides that only two cars may pursue
without an “exception for assistance,” it “seriously calls into question” whether Lee was “truly
attempting” to enforce the law or “even assist.” I frankly completely fail to see how one flows from
the other. Even if Lee were involved in a pursuit in violation of a general order (to seek
authorization), how does that “seriously call into question” whether she was “truly attempting to
enforce the law” or “assist” in its enforcement? She would simply have missed a step–she did not
call in. This argument suggests that the majority incorrectly elevates the violation of a general order
to the violation of an actual law, perhaps taking the officer outside the scope of his or her
employment and making him unable to enforce the law, or some such theory (as it intimated in a
footnote in the opinion). However, the majority is aware, as the jurors are not, that internal standards
of any organization have no legal effect whatsoever, their violation is not even negligence per se; such
a violation, if one occurred here, certainly did not remove the officers from the scope of employment.
See Wade v. City of Chicago, 364 Ill. App. 3d 773, 781 (2006), citing Morton v. City of Chicago,
284 Ill. App. 3d 444, 454 (1997). Further, there is no authority to support an argument that an
officer cannot be enforcing the law if in violation of a general order, and the majority cites to none.
COMMENT ON SPECIAL INTERROGATORY
Related to the above discussion of execution and enforcement of the law, is plaintiff’s
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attorney’s comment on the special interrogatory relating to enforcement in closing argument.
Counsel stated, “Ladies and gentlemen[,] if you’re for Vernon[,] you will answer this special
interrogatory [N]o.” This comment completely eviscerated the purpose of the special interrogatory,
which is to test a general verdict (Simmons v. Garces, 198 Ill. 2d 541, 555 (2002)), and could not
fairly be said to be made “in accordance with the evidence” as case law requires. Batteast v. Wyeth
Laboratories, Inc., 137 Ill. 2d 175, 186 (1990). The comment appears by itself at the end of
counsel’s closing. With regard to placing it in the context of the evidence, counsel’s sole effort to
do that, if indeed that is what it was, was an off-handed reference to “other arguments” regarding
“their affirmative defense made earlier.” There is no attempt to define the limits of enforcement or
draw the jury’s attention to what is and is not enforcement, or exactly what Officer Lee did to take
her out of the parameters of enforcement. The majority states that the comment is permissible
because counsel did not “solicit the jury to harmonize its answer to the special interrogatory with its
verdict nor did he delineate or emphasize the need to answer the special interrogatory with a ‘no’ if
it wanted to award plaintiff damages.” It seems to me he actually did both when he told the jury if
they were “for Vernon”–in other words, if they wanted to give Vernon a verdict, i.e., money, they
would answer the interrogatory “No.” His remark emphasizes the relationship between the answer
to the interrogatory and the verdict in no uncertain terms and I think it is incorrect to say it does not.
Batteast v. Wyeth Laboratories, Inc., 137 Ill. 2d 175, 186 (1990), cited by the majority in its
opinion, is more supportive of the dissent. In Batteast, the supreme court found a comment which
was virtually identical to the one in this case to be improper where that lawyer told the jury that if
they wanted to make an award in favor of plaintiff they had to answer an interrogatory a certain way.
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The Batteast court unequivocally found this comment to be improper, but reversed on other grounds,
so we will never know if they would have reversed if the comment was the sole issue.
In O’Connell by Nelson v. City of Chicago, 285 Ill. App. 3d 459, 467 (1996), the court stated
that lawyers could make mention of special interrogatories, “but the line is crossed when jurors are
told to harmonize or confirm their interrogatory answer with their general verdict.” I presume this
directive from the case law does not mean such remarks are only objectionable where the magic
words “harmonize” or “conform the verdict” are used. Where that is the actual effect of a comment,
I believe it to be improper. See generally, O’Connell by Nelson v. City of Chicago, 285 Ill. App. 3d
at 467. Here, counsel’s directive to the jury, in my view, had just such an effect. Simply because the
comment was only made once, “briefly,” as the majority states, taken in context or in any other way,
this comment was reversible error and literally shaped the jury’s finding that this officer was not in
the execution of the law where the evidence shows she was. Sommese v. Maling Bros., Inc., 36 Ill.
2d 263, 268 (1966) (holding that the statement by plaintiff’s attorney to the jury during closing
argument to “harmonize” its answer on the special interrogatory with its general verdict was
improper).
Significant to our case, the Sommese court also stated that “[e]ven if an objection had been
made to the argument and sustained, defense counsel would be unable to overcome the fact that the
jury had already obtained the forbidden information, not only as to the source of the interrogatory,
but as to the effect of the interrogatory.” Sommese, 36 Ill. 2d at 268. Like Sommese, in the case at
bar, the City objected, it was sustained, and the jury was later instructed that argument is not
evidence. However, under these circumstances, I would not indulge in what is often a legal fiction
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that the bell can be unrung by an instruction to disregard. See Sommese, 36 Ill. 2d at 268. While
Sommese is slightly different in that there, the lawyer told the jury which side had submitted the
special interrogatory, the attorney’s actions in this case improperly let the jury know the effect of the
answer. I also note that, where counsel instructed the jury not to find Officer Lee in the execution
and enforcement of the law if they were “for Vernon,” they were also alerted to the inextricable link
between their answer to the interrogatories and the final outcome of the case—a link juries do not
necessarily make on their own. This may well have influenced their answer to the next special
interrogatory regarding willful and wanton. Finally, even though this improper comment occurred
only once, it was so prejudicial as to deny defendant a fair trial, and is reversible error on that ground
alone. Ramirez v. City of Chicago, 318 Ill. App. 3d 18, 26 (2000).
WILLFUL & WANTON
The plaintiff contended, and the jury and the majority agreed, that even if Officer Lee was in
the execution and enforcement of the law, her conduct was willful and wanton, bringing her within
the exception found in section 2-202 of the Act. I disagree.
Willful and wanton conduct is “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.” 745 ILCS 10/1-210 (West 2004). Willful and
wanton conduct consists of more than mere inadvertence, incompetence, or unskillfulness. See
Geimer v. Chicago Park District, 272 Ill. App. 3d 629, 637 (1995). As the courts have interpreted
this phrase, proof is required that the defendant knew that his or her actions were likely to cause
injury to another. In Medina v. City of Chicago, 238 Ill. App. 3d 385, 392 (1992), for example, this
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court described conduct as willful and wanton when “a person *** ignores known or plainly
observable dangerous conditions and does something that will naturally and probably result in injury
to another.” To prove willful and wanton conduct, a plaintiff must show that the defendant, “by
deliberately inflicting ‘a highly unreasonable degree of harm’ on the plaintiff, ‘approache[d] the
degree of moral blame attached to intentional harm.’ ” Morton v. City of Chicago, 286 Ill. App. 3d
444, 452 (1997), quoting Burke v. 12 Rothschild’s Liquor Mart, Inc., 148 Ill. 2d 428, 448 (1992)
(alteration in original); accord Wade v. City of Chicago, 364 Ill. App. 3d 773, 783 (2006).
In the opinion, the majority states the jury verdict is “clearly” sustainable on willful and
wanton apparently for two reasons: because Lee allegedly made a “hard right turn,” and the officer’s
car purportedly “jumped” across two lanes. I initially note that the “hard right” turn, which the
majority relies on as “clear” evidence of willful and wanton conduct, was literally made up by the
expert and is nowhere to be found in the evidence. I acknowledge that Lee would have had to veer
to the right to cross lanes, but if she executed what most of us consider a “hard” right turn, i.e., as
in turning a corner, she would have been going sideways across the lanes. There simply is no
evidence of a hard right turn, and “jumping” (as described by Denise Patrick) across multiple lanes
does not, in my view, provide corroboration of a hard right turn or anything else; in fact, no one even
knows what is meant by this term.
In the first place, I think it obvious that “jumped” in this context is nothing more than a
colloquialism, and not a description of what actually occurred. The majority complains that I take
the term “literally” and I maintain that this is the only appropriate way to take it–to define the word
by its plain and commonly accepted definition. Unlike the majority’s dictionary definition, my
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Webster’s defines jumping to mean, “to spring from the ground...,” sudden leap “upward” (Webster’s
New Compact Format Dictionary Book Essentials Publications 1987): obviously, it would border
on the ridiculous to claim that Lee’s car was actually jumping or “leaping upward,” where the highest
speed anyone claims she was going is 65 miles per hour on dry pavement.
The majority instead applies an alternative definition, “moving quickly,” apparently from a
different Webster’s. I would agree that if Lee was going up to 65 miles per hour, some might equate
that with “moving quickly.” I do not agree, however, that going at a speed permissible by law for
conditions and veering right to cross two lanes after exercising due care, which is all she essentially
did, could conceivably be raised to the level of willful and wanton conduct. While it is true that jurors
may properly find something willful and wanton in one case and simply negligence in another, mere
incompetence or inadvertence is not enough (Geimer v. Chicago Park District, 272 Ill. App. 3d 629,
637 (1995)); willful and wanton always must have a quasi-intentional character that is entirely lacking
here. Murray v. Chicago Youth Center, 224 Ill. 2d 213, 237 (2007). Fictional “hard right” turns and
“jumping” police cars are hardly “clear” evidence of willful and wanton conduct, in my view. In fact,
such evidence is virtually illusory when compared to the real evidence of the officers’ conduct in the
instant case.
In that regard, a thorough review of what plaintiff says amounts to willful and wanton conduct
plainly shows that none of these acts, standing either alone or in conjunction with each other, comes
close to meeting the high bar of reckless disregard required for willful and wanton. Five of plaintiff’s
allegations accuse the officers of some violation of a general order regarding pursuit (b, c, i, j, and
k), two allude to simple driving violations which plaintiff claims is in derogation of a general order
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(a and h), and some (a, e, f, and g) are only allegations relating to violation of various rules of the
road under the Illinois Vehicle Code (625 ILCS 5/11-100 et seq. (West 2004)). Most amounted to
nothing more than negligence, and the addition of the word “recklessly” does not transform conduct
which is merely negligent into willful and wanton, i.e., “Recklessly failed to maintain control over her
motor vehicle,” “Recklessly executed a lane change, striking Vernon Hudson’s motor vehicle,” etc.
See Winfrey v. Chicago Park District, 274 Ill. App. 3d 939, 943 (1995) (“When the plaintiff is
alleging that the defendant engaged in willful and wanton conduct, such conduct must be shown
through well-pled facts, and not by merely labelling [sic] the conduct willful and wanton.”); Robb v.
Sutton, 147 Ill. App. 3d 710, 714 (1986) (“Recklessness connotes wilful [sic] and wanton conduct.”)
Further, in my view, Officer Lee’s conduct could not be classified as willful and wanton as
I understand the term, even if she had been engaged in a pursuit without permission and in violation
of a general order. The majority states that a violation of a general order may be considered by the
jury to be “some” evidence of willful and wanton conduct and I acknowledge that it may be. See
First Springfield Bank & Trust v. Galman, 188 Ill. 2d 252, 256 (1999). Significantly, however, in
order to be considered even “some” evidence of willful and wanton conduct, the violation of the
general order in and of itself, must be a proximate cause of this accident or one of them. See First
Springfield Bank & Trust, 188 Ill. 2d at 256 (“To recover damages based upon a defendant’s alleged
statutory violation, a plaintiff must show that *** (3) the violation proximately caused her injury.”).
For example, if a general order required an officer to wear a blue hat in a pursuit and she was wearing
green, the violation of the general order would have nothing to do with the accident. So too in this
case, permission or lack thereof, had absolutely nothing to do with Lee’s driving that evening, and
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this accident would have occurred whether or not permission had been requested or given. As for
her presence on the road, there is no evidence that permission would have been denied if requested,
so it is reasonable to assume she would have been there and the accident would have occurred.
Moreover, her presence on the road is not an issue because it is impermissible to reason back to
infinity to establish probable cause, i.e., if Officer Lee had never been born, the accident would not
have occurred either. See Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928)
(Cardozo, C.J.).
Because the violation of the general order is not in this case proximately related to the
occurrence, the jury would then have had to have based its decision that Lee was willful and wanton
on her conduct alone. As previously noted, the crux of this allegedly willful and wanton conduct on
the part of Officer Lee is that, going at or slightly above the speed limit,8 if one believes witness
Denise Patrick’s testimony perhaps enhanced by four drinks and many obstacles blocking her view.9
8
I am not “excusing” a speed above the limit, as the majority states, and indeed no excuse is needed
for an officer in these circumstances. In an emergency, an officer may exceed the speed limit if such
will not endanger others and can reasonably expect citizens to clear the way pursuant to statute. 625
ILCS 5/11-205(c), -907(a) (West 2004). There would be no reason for Officer Lee to think a slightly
elevated speed in virtually ideal driving conditions that evening would pose a danger.
9
I am well aware the jury may accept Patrick’s testimony, but in this case, I would deem
acceptance of such flawed testimony more evidence that this verdict is the result of bias against
the City. Patrick admitted to having had four shots. She was viewing the scene from a street
above the Eisenhower and looking across many lanes of traffic, after dark with the bright lights of
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The night was clear and dry, the road well-lit, her emergency equipment was activated, her turn signal
was on, she checked her mirrors, and she was responding to an emergency. Lee changed lanes twice,
and Patrick said that Lee moved from the far left lane to the far right lane (two lanes), colliding with
Hudson’s car. Officer Lee’s testimony was that after she merged from the second lane into the right
lane, Hudson’s car came from the shoulder into her lane, and that although she slammed on the
brakes, she was unable to avoid hitting him. There was no testimony rebutting Officer Lee’s
statement that she sought to avoid colliding with Hudson’s vehicle, and that would be a ridiculous
assumption, given that she and her partner were in the car. I also point out that the officer safely
traversed both lanes and would have gone directly forward if Mr. Hudson’s car had not been
protruding into her lane either because he failed to fully pull over or was pulling out in front of Lee.
Taken as a whole, then, this testimony does not even come close to a conscious disregard for the
safety of others or the degree of moral blame attached to intentional harm. Moran v. City of
Chicago, 286 Ill. App. 3d 444, 452 (1997); see also 745 ILCS 10/1-210 (West 2004). The fact that
her turn signal was on, her emergency equipment was activated and that she braked in an attempt to
avoid the collision, in fact, shows just the opposite—a conscious regard for the safety of others.
Therefore, neither the violation of the general order nor the conduct itself could be evidence of
anything other than negligence, if that. If the jury found otherwise, they were wrong because such
a conclusion is against the manifest weight of the evidence. York, 222 Ill. 2d at 178.
the roadway and the “el” platform. It is not surprising that she was able to see the blue lights and
hear Lee’s siren, under these circumstances, but other evidence she offers seems very
questionable–elevated speed, “jumping,” etc.
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Bosen v. City of Collinsville, 166 Ill. App. 3d 848 (1987), presents a similar situation,
although this case is a stronger one for not finding willful and wanton conduct. In Bosen, a police
officer responded to a burglar alarm at a private residence. Bosen, 166 Ill. App. 3d at 849. Traffic
was heavy and the pavement wet, and the officer activated his emergency lights and used his siren
intermittently as he drove. Bosen, 166 Ill. App. 3d at 849. At an intersection, the officer noticed
another car crossing in front of him. Bosen, 166 Ill. App. 3d at 849. While he tried to avoid colliding
with the other car, he could not. Bosen, 166 Ill. App. 3d at 849. The court found that the officer had
been driving in excess of the speed limit, but it nonetheless concluded that the officer’s actions were
not willful and wanton. Bosen, 166 Ill. App. 3d at 849-50. In reaching this conclusion, the court
noted that the officer was using his emergency lights and his siren intermittently, and sought to avoid
the collision. Bosen, 166 Ill. App. 3d at 850. Even though he was unable to do so, that was merely
negligence. Bosen, 166 Ill. App. 3d at 850.
Unlike in Bosen, driving conditions in the instant case were virtually ideal, and Lee had taken
every precaution prior to executing her lane change. Like the officer in Bosen, Lee slammed on her
brakes to avoid a collision but was unable to do so. Thus, the case at bar is virtually indistinguishable
from Bosen and the officer’s conduct cannot be considered willful and wanton. Even where the
evidence is viewed in the light most favorable to plaintiff, a judgment n.o.v. should have been granted.
Similarly, in Sanders v. City of Chicago, 306 Ill. App. 3d 356 (1999), the defendant police
officer heard an emergency call that two fellow officers were being attacked at a location outside of
the defendant officer’s beat. Sanders, 306 Ill. App. 3d at 359. Without requesting permission to do
so, the officer left his beat and proceeded to the location of the attack. Sanders, 306 Ill. App. 3d at
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359. While en route, he heard that the suspect had been cornered but not yet searched. Sanders, 306
Ill. App. 3d at 359. The defendant officer observed stopped traffic in his lane of travel, switched to
the opposite lane in order to reach the scene more rapidly, and struck a pedestrian, who ultimately
died. Sanders, 306 Ill. App. 3d at 359-60. The defendant officer claimed not to have heard a radio
dispatch that no further help was needed. Sanders, 306 Ill. App. 3d at 359.
Despite traveling in the wrong lane of travel, being outside his regular beat, and the fact that
the accident occurred after the suspect had been cornered, the court affirmed the jury’s finding the
officer did not act in a willful and wanton manner. Sanders, 306 Ill. App. 3d at 367. The court noted
that, although the officer entered the wrong traffic lane, he was responding to an emergency call from
fellow officers, and prior to entering the wrong lane, the officer activated his siren, slowed down, and
ensured there were no cars coming in the opposite direction. Sanders, 306 Ill. App. 3d at 367.
In the instant case, unlike Sanders, the emergency was ongoing at the time of the accident,
and both Officer Lee and the officer in Sanders were involved in serious accidents while responding
to the information they received over their radios, but the evidence is clear that Lee’s turn signal and
emergency equipment were activated. The officer in Sanders, however, was found not to have acted
in a willful and wanton manner, and given this evidence, this should have been the finding here.
JURY INSTRUCTION
Nonetheless, the jury did find the above conduct to be willful and wanton. In my view, this
finding is easily attributable to the erroneous issues instruction they were given as well as plaintiff’s
expert’s video discussed below. The instruction reflected plaintiff’s complaint as to what he
maintained officers had done in a willful and wanton manner. As previously stated, most of the
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conduct can only be described as simple negligence, (see, notably counts a, c, e, f, and g); the
remaining allegations allege violations of general orders regarding pursuit (b, c, h, & j), which if
proven, are not even negligence per se.
I am fully aware of the well-established rule that what a jury deems willful and wanton must
be decided by the circumstances of each case and what may only amount to negligence in one case
may be willful and wanton in another. Streeter v. Humrichouse, 357 Ill. 234, 238 (1934). However,
there is a qualitative difference between negligence and willful and wanton conduct that always
differentiates the two: negligence never has the intentional or quasi-intentional character of willful
and wanton conduct. See Murray, 224 Ill. 2d at 237, quoting Burke, 148 Ill. 2d at 450. For this
reason, a jury may not link two (or ten, for that matter) negligent acts and say that, combined, they
amount to willful and wanton. “Willful and wanton” is a different animal. See generally, Burke, 148
Ill. 2d at 450. The jury appears to have ignored this qualitative difference here. If they found a lack
of “due care” and / or “changing lanes” (or some combination thereof) to be willful and wanton, they
were simply wrong.
I am also aware that this jury was properly instructed as to what actually does constitute
willful and wanton conduct as the majority notes. However, they were then confronted by an
instruction that had a laundry list of things which plaintiff claimed to be willful and wanton conduct,
but were in reality only negligent acts. There is no reason to assume that they were able to discern
that these acts, alleged in the instruction to be willful and wanton, were actually only negligence.
Therefore, there can be no confidence in their conclusions.
This is especially true of those subparagraphs containing alleged violations of general orders.
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I doubt that it would surprise anyone if the average juror would equate a violation of a general order
with willful and wanton conduct. Nonetheless, our courts in Illinois have repeatedly held that a
violation of an organization’s internal standards are not even negligence per se, let alone willful and
wanton conduct per se, reasoning that they do not impose legal duties. Morton, 283 Ill. App. 3d at
454. See also Floyd v. Rockford Park District, 355 Ill. App. 3d 695, 702 (2005) (holding that a
public entity’s violation of its own rules does not constitute proof of negligence much less willful and
wanton conduct). Indeed, this trial court early on properly granted the City’s motion in limine to
prevent plaintiff’s counsel from arguing that a violation of a general order was willful and wanton
conduct per se. They were nonetheless provided with an instruction that implied that it was.
I agree with the City that this jury was likely confused by the list of what plaintiff claimed to
be willful and wanton conduct and an incorrect assumption that a violation of a general order is
willful and wanton behavior on the part of a police officer. This instruction was thus highly
prejudicial to the City and may have tipped the balance in plaintiff’s favor in this close case. N.W.I.
International, Inc. v. Edgewood Bank, 291 Ill. App. 3d 247, 258 (1997). Moreover, even if any of
the subparagraphs of plaintiff’s complaint properly described willful and wanton conduct, most could
only be considered mere negligence, and we will never know upon which one or ones the jury relied
in reaching the verdict. Where a jury is instructed that it may find the defendant liable for acts which
legally cannot be the basis of liability, then any resultant verdict must be set aside even if other
theories were properly before the jury. Darby v. Checker Co., 6 Ill. App. 3d 188 (1972).
The majority claims that the City has waived the instruction issue because they failed to
proffer an instruction which pointed out the defect and gave a correct instruction. I note that waiver
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is a limitation on the parties, not on this court and we may dispense with waiver when the interests
of justice so demand. In re Estate of Funk, 221 Ill. 2d 30, 97 (2006); see also Mellon v. Coffelt, 313
Ill. App. 3d 619, 626 (2000) (holding that, “in the interest of justice,” the court would review a
waived argument on appeal from a motion to dismiss). This is such a case, and the City is entitled
to a new trial on this issue.
ADMISSION OF THE VIDEO
The City contends on appeal, and I agree, that it is entitled to a new trial because a video
created by plaintiff’s expert, Doctor Ziejewski, was erroneously admitted. I note that a video is a
most powerful piece of evidence, perhaps disproportionately so—an observation requiring no
citation, in my view. The doctor presented this film to the jury as though it was a mathematically and
scientifically accurate representation of what occurred the evening of May 7th, based on the immutable
laws of physics. He even made it clear that his production was not an “animation” because they were
similar to cartoons with no science behind them. Doctor Ziejewski also suggested that the computer
would solve “all equations,” implying it would fill in the blanks. In reality, it was Doctor Ziejewski
who filled them in.
There are at least six important facts which the expert seemed to literally invent, since either
there was no testimony about these at trial or the trial testimony is directly contradictory to his video.
These briefly are: (i) the expert used the wrong make and model of vehicle (though the right one was
surely available); (ii) the simulation starts with Hudson’s vehicle going straight, despite testimony it
was going to the right; (iii) Officer Lee’s vehicle starts at ten degrees off due West, despite there
being no testimony to that effect; (iv) Officer Lee’s vehicle spun 180 degrees around before the
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impact, despite there being no supporting testimony; (v) her brakes were applied in a certain manner
(50% to the front, 100% to the rear), absent any evidence; and (vi) Hudson steered his car to the
right after impact, without any testimony to this effect. None of the above was contained in the
evidence and Dr. Ziejewski even admitted that when he had “to introduce dynamic instability” in
order to have the police car spinning out of control across the highway absent any testimony that it
was, he interjected or invented the locking brake theory, though he did not know if the brakes
actually did lock or if the police car had locking brakes. In fact, since there were no materials
regarding skid marks, etc., Ziejewski did no more than look at pictures of damage to the cars.
French v. City of Springfield, 65 Ill. 2d 74 (1976), is instructive on this issue. In French, the
court remanded for a new trial where a video was improperly introduced. French, 65 Ill. 2d at 81-82.
The plaintiff claimed it was proffered merely to acquaint the jury with the area, but the court held it
was meant to be a representation of what actually occurred and contained material mistakes. French,
65 Ill. 2d at 81-82. In our case, the admission was more clearly in error because Dr. Ziejewski said
it was a representation of what occurred, not a simulation, and made no bones about his opinion that
this presentation was a bullet proof recreation of the accident based on scientific principles. Thus,
the instant case is even more compelling than French.
Hiscott v. Peters, 324 Ill. App. 3d 114 (2001) is also on point, but again the instant case is
far more dramatic in terms of missing or false “facts.” In Hiscott, the expert stated that the
defendant’s car went into a “yaw” once it left the gravel shoulder and returned to the pavement,
although there was no physical evidence to support that opinion. Hiscott, 324 Ill. App. 3d at 119.
The appellate court held there was no evidence of yawing or that the defendant was braking at the
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time of the accident. Hiscott, 324 Ill. App. 3d at 123-24. In our case, the expert injected not one
or two, but six “facts” into his video which are wholly unsupported by the evidence and / or
contradict it.
The majority attempts to distinguish Hiscott by saying that in Hiscott there was “insufficient”
evidence of the expert’s theory, but in this case, all the missing facts could be found inferentially in
other evidence introduced at trial. In my view, the connections that the majority seeks to make
between these missing “facts” and other evidence in the record are entirely improper in that they are
well beyond what might be fairly considered reasonable inferences from the evidence, and must
themselves be the subject of expert testimony. See Wade v. City of Chicago Heights, 295 Ill. App.
3d 873, 882 (1998) (holding that expert testimony is proper where the evidence offers “ ‘knowledge
and application of principles of science beyond the ken of the average juror.’ ”), quoting Zavala v.
Powermatic, Inc., 167 Ill. 2d 542, 546 (1995); see also Compton v. Ubilluz, 353 Ill. App. 3d 863,
867 (2004) (“Evidence is ‘beyond the ken’ of the average juror when it involves knowledge or
experience that a juror generally lacks.”).
For example, the majority asserts that Dr. Ziejewski’s statement that Officer Lee made a “hard
right turn” prior to the collision is supported by Patrick’s testimony that the vehicle “jumped” across
the lanes. As previously discussed, there are varying definitions of “jumping,” and we, therefore, do
not even know what it means. Moreover, “jumping” does not provide corroboration of anything, let
alone a hard right turn. The purported hard right turn was literally made up by the expert; further,
any connection that might exist between “jumping” and turns is outside the knowledge of the average
layman, and must be offered by an expert.
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Next, the majority states that Ziejewski’s injection of the 180 degree spin across the highway
finds corroboration in the fact that the police car came to rest facing Hudson’s car. Aside from the
fact that there was no evidence of a spinning police car from anyone but the expert, a more
reasonable conclusion was that the police car simply was turned around by this hard impact. Third,
as though it has established a fact with its 180 degree hypothesis, the majority concludes that the
application and locking of Officer Lee’s brakes—found nowhere in the evidence—is borne out by the
fact that the police car traveled across three lanes and spun 180 degrees. Clearly, she could travel
across three lanes wholly absent locking brakes and may well have. Moreover, the officers denied
any spinning until impact and no one saw the police car spinning across the lanes.
Because I am not an expert, I haven’t any idea if a hard right turn is corroborated by
“jumping,” whether the direction the police car faced postaccident had anything to do with a 180
degree spin, or whether this alleged spin means that Officer Lee’s brakes locked. In my view, such
conclusions are well beyond a “reasonable inference from the evidence,” and are purely a matter for
expert testimony. These may not properly be offered by the majority as a reason to justify the fact
that this expert drew conclusions either absent evidence or in derogation of it. The missing “facts”
are thus not in the evidence either directly or inferentially; therefore, this video lacked foundation and
was erroneously admitted, requiring a new trial. French and Hiscott are directly on point, and if they
are correctly decided, then this case is not, at least on the issue of the video. I further agree with the
City that along with the erroneous instruction, this video was very influential in the jury’s conclusion
that the officer’s conduct was willful and wanton.
For the foregoing reasons, I respectfully dissent.
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