Fenton v. City of Chicago

ILLINOIS OFFICIAL REPORTS
Appellate Court
Fenton v. City of Chicago, 2013 IL App (1st) 111596
Appellate Court JAMES FENTON, Special Administrator for the Estate of Henry Fenton,
Caption Deceased, Plaintiff-Appellee, v. THE CITY OF CHICAGO, a Municipal
Corporation, Defendant-Appellant.
District & No. First District, Fourth Division
Docket No. 1-11-1596
Filed January 17, 2013
Held In an action arising from the fatal beating inflicted on plaintiff’s decedent
(Note: This syllabus by the son of decedent’s girlfriend at the end of a night of violent
constitutes no part of arguments, including two 911 calls that led to police intervention, the
the opinion of the court judgment entered against defendant city in excess of $2 million was
but has been prepared affirmed, since decedent was an “abused person” within the meaning of
by the Reporter of the Domestic Violence Act, testimony that defendant’s police officers had
Decisions for the probable cause to arrest the son was properly admitted, and the officers’
convenience of the wilful and wanton conduct in leaving the scene without arresting the son
reader.)
and merely ordering him to wait outside until his girlfriend could take
him to another location was a proximate cause of decedent’s death.
Decision Under Appeal from the Circuit Court of Cook County, No. 06-L-7956; the Hon.
Review James M. Varga, Judge, presiding.
Judgment Affirmed.
Counsel on Stephen R. Patton, Corporation Counsel, of Chicago (Benna Ruth
Appeal Solomon and Myriam Zreczny Kasper, Assistant Corporation Counsel,
of counsel), and Jennifer M. Erickson Baak, Special Assistant
Corporation Counsel, of Denver, Colorado, for appellant.
Michael W. Rathsack and David B. Nemeroff, both of Chicago, for
appellee.
Panel PRESIDING JUSTICE LAVIN delivered the judgment of the court, with
opinion.
Justices Fitzgerald Smith and Pucinski concurred in the judgment and
opinion.
OPINION
¶1 In this appeal, we are asked to consider whether a jury rightly held the City of Chicago
(the City) liable for the actions of two of its police officers. Those officers twice responded
to the 911 calls of Henry Fenton (Fenton) related to a violent argument, only to remove the
agitator, Rovale Brim (Rovale), from the premises in zero-degree weather in the middle of
the night, with instructions to wait outside for at least an hour before his girlfriend would
give him a ride to another location. Only minutes after the officers left him on the sidewalk,
a block from the scene, Rovale returned home where he beat and stabbed Fenton, his
mother’s boyfriend, leading to Fenton’s death. After a lengthy jury trial, which notably
included an expert witness who testified critically about the conduct of the officers, the jury
returned a verdict in excess of $2 million. The jury’s verdict also included answers to special
interrogatories which substantiated its finding that the involved officers acted wilfully and
wantonly in their official activities.
¶2 The lawsuit of plaintiff James Fenton (plaintiff), special administrator for Fenton’s estate,
was premised upon the Illinois Domestic Violence Act of 1986 (the Act) (750 ILCS 60/101
et seq. (West 2002)), on the theory that Fenton was an “abused person” and that the officers’
failure to arrest Rovale was markedly inconsistent with their duties under the Act. At trial
and in this court, the City argues that the Act was not applicable to these events, that its
officers were not in any way wilful and wanton in the discharge of their duties and that none
of their conduct could be properly described as proximately causing the unfortunate murder
of Fenton. We affirm.
¶3 FACTUAL BACKGROUND
¶4 All of the events in this domestic disturbance took place after 1:30 a.m. on March 4,
2002, at a residence on the south side of Chicago, where Fenton lived with his girlfriend,
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Valerie Brim (Valerie), and her 22-year-old son, Rovale. At 1:37 a.m., Fenton called 911 and
requested that police come to their home, telling the operator that there was “violence ***
violent things going on” involving his girlfriend’s son. The operator classified the call as a
“domestic disturbance,” which is dubbed a very high priority response for police officers.
Four minutes later, Valerie made another call regarding the same incident and, at that time,
Chicago police department (CPD) officers Morgan and Roberts were dispatched, arriving
approximately eight minutes later at 1:49 a.m.
¶5 When they arrived, the officers were confronted with an angry, drunken and boisterous
Rovale, who was yelling at Valerie, while making violent, jerky movements with a bottle in
his hand. Valerie was also apparently drinking. The officers managed to separate the two
individuals after five minutes or so, while Fenton sat off to the side. The officers spoke with
Valerie, who informed them that Rovale had been arguing with Fenton over Rovale’s use of
the telephone and the fact that he was unemployed. Officer Morgan asked Valerie whether
they wanted Rovale to be arrested. She said that she and Fenton did not want Rovale to be
arrested, but requested that he be put in his basement bedroom. Shortly thereafter, Officer
Roberts escorted Rovale to his bedroom, apparently while Rovale was still in an agitated
state. During this first interaction, the officers did not perform a name check on Rovale, who
was a registered sex offender. Officer Roberts talked to Fenton for all of 10 seconds during
the encounter, which lasted approximately 15 minutes.
¶6 At 2:30 a.m., Fenton again called 911. The operator sent it to dispatch, which received
the call shortly thereafter, with the officers being dispatched at 2:32 a.m. Officers Roberts
and Morgan arrived more than 30 minutes later, essentially to the same drama as before, with
Fenton seated on some stairs and the Brims arguing in a loud and boisterous fashion. This
time, Valerie told the officers that Rovale had to be removed from the residence because he
had gotten into another argument with Fenton. Rovale was asked to leave the home, which
he did, indicating that his girlfriend would pick him up in an hour or so and take him to her
home. The outside temperature was said to be zero degrees. Officer Morgan testified that he
and Officer Roberts could not drive Rovale to his girlfriend’s home, which was nearly nine
miles distant, and also testified that the area was too busy to allow them to wait with Rovale
for his girlfriend to arrive. Officer Roberts testified that Rovale turned down his offer of a
ride to the train station. Neither officer talked to Fenton, and Officer Roberts specifically
denied knowing that there was a dispute between Fenton and Rovale.
¶7 Rovale was seen only a block away from the home as the officers left the area. Just six
minutes later, Fenton made his final call, urgently telling the operator that Rovale was going
to break into the home. The officers were again dispatched, only to find Fenton stabbed,
beaten and unconscious from head trauma. He subsequently died. Rovale was arrested, tried
and found guilty of second-degree murder. Detective Thomas Downs, who investigated the
beating, learned from the officers that Rovale and Fenton had been arguing about Rovale’s
use of the phone and his unemployed status. Detective Downs also testified that Valerie told
the officers after the second occurrence that her son and Fenton had gotten into another
argument.
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¶8 PROCEDURAL BACKGROUND
¶9 Plaintiff filed suit against the City based on the conduct of its police officers, the 911 call
takers and the dispatchers. In the complaint, plaintiff alleged that the officers ignored that
Fenton was an abused person within the meaning of the Act. Under the Act, police are
obligated to utilize “all reasonable means to prevent further abuse” if they suspect that
someone has been abused. 750 ILCS 60/304(a) (West 2002). Harassment is included in the
definition of abuse in the statute. 750 ILCS 60/103(1) (West 2002).
¶ 10 At trial, the two officers testified about their two interventions with the three people
living in the home. Both officers testified that they were unaware of any argument between
Rovale and Fenton. As stated, this testimony was severely undermined by the testimony of
Detective Downs, who took statements from the officers that indicated they were informed
by Valerie on the first visit that Rovale had been arguing with Fenton. On the second visit,
Valerie told them that her son had to be removed from the residence because he had gotten
into another argument with Fenton. Remarkably, each officer testified that there was not
probable cause to arrest Rovale for his actions in the home, even though they asked Fenton
and Valerie whether they wanted Rovale to be arrested, which would strongly suggest the
existence of probable cause.
¶ 11 This apparent inconsistency was driven home during the testimony of Chief Deputy
Dottie Davis, whom plaintiff proffered as an expert on police procedures. Davis’s
background also included work as a 911 call taker and as a domestic violence trainer. Prior
to trial, in a motion in limine, the City attempted to bar Davis’s testimony as it related to the
issue of probable cause, among other things, on the ground that it was not a proper subject
for expert testimony. The trial court denied the motion following arguments, finding as
follows:
“I think it would aid the jury of the facts, because this is what police officers do
everyday, right. Normal people don’t. Accountants, plumbers, janitors. We don’t want
them to rely on what they see on all the crime shows.”
Significantly, when plaintiff’s counsel asked Davis the first question related to her opinion
on the issue of probable cause, the City’s lawyer objected, but only as to the “foundation”
of the question and did not refer back to the City’s motion in limine. The court allowed the
witness to then give her opinion that the officers had probable cause to arrest Rovale.
¶ 12 Prior to submitting the case to the jury, plaintiff dismissed the case challenging the call
takers, leaving the conduct of the dispatchers and the officers in the hands of the jury. The
City submitted special interrogatories designed to test the adequacy of proof on wilful and
wanton misconduct against any verdict for plaintiff. The jury returned a verdict in favor of
the City as to the dispatchers, but against the City as to the two officers, specifically
answering the special interrogatories in a manner entirely consistent with a finding that the
officers were wilfully and wantonly liable for their actions and inactions during these
encounters. In a detailed posttrial hearing, the trial court denied defendant’s motion for a
judgment notwithstanding the jury’s verdict and its motion for a new trial, leading to this
timely filed appeal.
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¶ 13 ANALYSIS
¶ 14 The City’s arguments can be broken down into three discrete positions. First, the City
asserts that the trial court should have entered a judgment notwithstanding the verdict
(judgment n.o.v.) in its favor. Specifically, the City urges us to find that Fenton was not an
“abused person” in the context of the Act, thereby removing any special duties under the Act,
and taking it out of the sphere of liability for wilful and wanton misconduct in the execution
and/or enforcement of the law. The City also argues that the trial court should have entered
a judgment n.o.v. in its favor because the proof failed to establish that there was a
supportable proximate causation nexus between the actions of its officers and the murder of
Fenton, since its officers had concluded their professional duties and since Rovale’s actions
broke any causal chain when he came back to the scene. Finally, the City argues that it is
entitled to a new trial because the trial court improperly allowed the jury to hear plaintiff’s
expert testify that the two officers were wilful and wanton for their failure to arrest Rovale
even though they had probable cause to do so. We will examine each contention in turn,
beginning with the City’s challenges to the denial of its motion for a judgment n.o.v., an
issue which we review de novo. Ries v. City of Chicago, 242 Ill. 2d 205, 216 (2011).
¶ 15 DOMESTIC VIOLENCE ACT
¶ 16 The Domestic Violence Act was passed by the Illinois legislature in response to a
societally significant increase in injuries and deaths that stemmed from domestic disputes.
See 750 ILCS 60/102 (West 2002). The studies that detail the sad statistics of potentially
preventable death in domestic arguments are legion, but suffice it to say that it was long ago
recognized that careful intervention by law enforcement and the judiciary has been
recognized to save many lives. At trial and in this court, the City has resolutely focused on
its contention that there was not sufficient information possessed by the responding officers
to suggest that Fenton was an abused person as defined by the Act and, thus, the officers had
no duty to Act.
¶ 17 Section 304(a) of the Act states, in pertinent part, as follows:
“Whenever a law enforcement officer has reason to believe that a person has been
abused, neglected, or exploited by a family or household member, the officer shall
immediately use all reasonable means to prevent further abuse, neglect, or exploitation,
including:
(1) Arresting the abusing, neglecting and exploiting party, where appropriate[.]”
750 ILCS 60/304(a) (West 2002).
In addition, “ ‘Abuse’ means physical abuse, harassment, intimidation of a dependent,
interference with personal liberty or willful deprivation but does not include reasonable
direction of a minor child by a parent or person in loco parentis.” 750 ILCS 60/103(1) (West
2002).
¶ 18 The City’s argument does not pass judicial muster for several reasons. First, it is
uncontradicted that Fenton himself called 911 on three occasions. “Domestic disturbance”
was the law enforcement tag given to each call. In terms of the hoped-for effect on police
response, the “DD” moniker is 1A priority call, which is second only to “officer needs
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assistance.” Several witnesses at trial confirmed the truth of this fact, with one going as far
as suggesting that inclusion of the word “violence” in the domestic disturbance dispatch to
police would constitute surplusage. This is important, because the facts adduced at trial
revealed that those taking the 911 calls were specifically informed of the possibility of
violence, but the officers taking the dispatch were only told of a domestic disturbance. While
the City would place some significance on the absence of the term “violence” in the dispatch
orders, the weight of the testimony at trial belies any such argument. This, combined with
Rovale’s use of alcohol and his violent, jerky movements, should have alerted the officers
that the situation had surpassed mere argument. Furthermore, as alluded to above, the
testimony of the Detective Downs revealed that the officers had indeed been told that Fenton
and Rovale had been arguing prior to each of the 911 calls.
¶ 19 In its brief, the City forcefully argues that the conduct of these officers does not legally
rise to the level of wilful and wanton misconduct. Section 305 of the Act states as follows:
“Any act of omission or commission by any law enforcement officer acting in good faith
in rendering emergency assistance or otherwise enforcing this Act shall not impose civil
liability upon the law enforcement officer or his or her supervisor or employer, unless the
act is a result of willful or wanton misconduct.” 750 ILCS 60/305 (West 2002).
See also Jane Doe-3 v. McLean County Unit District No. 5 Board of Directors, 2012 IL
112479, ¶ 19 (finding that willful and wanton conduct is an aggravated form of negligence
requiring proof that the defendant had a duty, breached its duty, and that the breach
proximately caused the plaintiff’s injury). In essence, the City argues that even if one
concedes that Fenton was an “abused person” under the Act, the officers acted in a
professional manner and in keeping with the wishes of Fenton and Valerie, who refused the
offer to have Rovale arrested. While not entirely specious, this argument shrugs off a line of
precedent related to wilful and wanton misconduct. Our supreme court long ago recognized
a gray area between negligent conduct and wilful and wanton misconduct. See generally
Mattyasovszky v. West Towns Bus Co., 61 Ill. 2d 31 (1975). There is simply no requirement
that plaintiff prove conduct that approaches intentional acts in order to prove wilful and
wanton misconduct. Wilful and wanton misconduct, after all, is properly described as
occupying that area between simple negligence and intentional wrongdoing. Ziarko v. Soo
Line R.R. Co., 161 Ill. 2d 267, 275-76 (1994). One might, for example, be able to argue that
the officers’ conduct in leaving the residence after the first complaint was negligent
(ignoring, for the moment, the “offer” to arrest Rovale), but failing to arrest the provocateur
after being quickly summoned again is surely consistent with wilful and wanton misconduct,
because the officers were in possession of a very powerful fact when they arrived the second
time. Specifically, the officers knew that their efforts to get Rovale to cool down were
demonstrably ineffective.
¶ 20 Failing to act under those circumstances is consistent with a segue into wilful and wanton
misconduct, since the most volatile player in this domestic drama was seen to exhibit the
very same behavior after the police intervened the first time. This conduct was exacerbated
by the decision to leave Rovale on the sidewalk where he supposedly would wait patiently
in the freezing weather for an hour. The officers essentially hoped that Rovale would not turn
around and finish what he had started.
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¶ 21 We also find it significant that Fenton himself called 911 twice, drawing the police
presence at his home. (As noted, he also called as Rovale was poised to break into the home
and ultimately kill Fenton.) On those first two occasions, despite being summoned by Fenton,
the evidence at trial revealed that the responding officers never got his version of what had
been simmering inside his home that prompted his request for emergency assistance. At least
one of responding officers was, in a timely fashion, informed that the assailant was also
arguing with Fenton and not just with Valerie, but there was no evidence that either officer
ever conducted a detailed interview with him. For obvious reasons, the officers admitted that
they performed an inadequate investigation.
¶ 22 That is certainly consistent with the jury finding that the officers’ actions and inactions
amounted to wilful and wanton misconduct in their handling of this domestic disturbance.
As noted in the testimony of Chief Deputy Davis, the fact that somebody made the call to
911 does not automatically mean that he is the victim of abuse. Similarly, however, that fact
surely does not exclude the caller from truly occupying that status. The court and the jury
heard plenty of evidence to support a finding that the officers had probable cause to arrest
Rovale for disturbing the peace or for harassment under the Act. When we view the totality
of this evidence, which included graphic descriptions of the drunken, boisterous and
unpredictable behavior of the assailant here, it is easy to defend a jury finding that the
officers exhibited an utter disregard for the safety of Fenton, who wound up murdered by the
man that the police escorted to the sidewalk after leaving Fenton behind for a second time.
¶ 23 Along the same vein, the City’s argument is quite cynical when one considers the fact
that it conveniently ignores that these police officers did precious little to protect Valerie, the
woman that they suggest was the only one who was being harassed by the assailant. Trying
to predict what an irascible, violent and drunken man will do in a domestic dispute with his
mother and her boyfriend could be an uncertain enterprise, but the potential for catastrophe
is greater if one does not get everyone’s version of what is going on within the household.
If Valerie had been the victim here, the City’s argument would gain no legal purchase.
Considering the fact that there were only two potential victims in the home that evening, and
one of them was killed, the City leans on a rather slender reed when it tries, in a not-so-subtle
fashion, to argue that the only predictable victim was Valerie, not Fenton. Under these facts,
the jury was justified in its finding that the officers should have done more to protect
individuals who were abused within the meaning of the Act from the rage that the officers
witnessed in Rovale. Finally, it merits mention that the public policy behind this Act would
not be furthered if law enforcement could escape liability by merely claiming that the
assailant was acting more malevolently toward someone other than the ultimate victim. The
sort of outcome that occurred here is inarguably foreseeable, a point which will be
emphasized below.
¶ 24 Our holding in this specific regard finds ample support in the comments of the trial court
during the hearing on defendant’s posttrial motion. In that hearing, the court went to great
lengths to describe the volatile nature of Rovale’s observed conduct at the scene, which led
the trial judge to conclude that a jury could indeed find that Fenton was a protected person
under the Act.
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¶ 25 PROXIMATE CAUSATION/LEAVING THE SCENE
¶ 26 The City strongly argues that any potential liability was extinguished when its officers
left the scene of the disturbance after sending Rovale onto the sidewalk outside the residence.
As mentioned, the officers observed him walk all of one block before leaving in their squad
car. This action, according to the City, ended any legal duty that it might have possessed
during the domestic disputes themselves. In making this argument, the City is really
combining a duty argument with a causation argument.
¶ 27 Proximate cause is generally a question of fact to be decided by the jury. Thompson v.
Gordon, 241 Ill. 2d 428, 438-39 (2011). In some circumstances, the trial court can decide as
a matter of law that the appropriate standard has not been met and decide the issue. See Rice
v. White, 374 Ill. App. 3d 870, 891 (2007). Here, the City argues that the trial judge should
have granted a judgment in its favor because of plaintiff’s alleged failure to supply the
necessary causation evidence.
¶ 28 As it relates to duty, the City suggests that supreme court precedent dictates that it cannot
be subjected to “generalized, open-ended duty to protect victims of domestic violence.” See
Lacey v. Village of Palatine, 232 Ill. 2d 349, 365 (2009). While we certainly agree with the
quoted language from that case, we find that the facts of Lacey are measurably far afield from
the factual circumstances in this case, so as to render Lacey of no benefit to the City’s
arguments. The decision in Lacey stemmed from a lengthy domestic dispute where the
decedent’s ex-boyfriend was making arrangements to kill her. Palatine police learned that
the ex-boyfriend had a history of harassment allegations and arrests in his background, but
ultimately terminated their investigation after being reassured by his lawyer that he meant
no harm. While the case was actively being investigated, Palatine police provided extensive
protection to the decedent, but all of this ceased when the investigation was closed.
Approximately six weeks later, the ex-boyfriend brutally killed his ex-girlfriend and her
mother. In rejecting any liability on the part of the police, the court correctly noted that the
plaintiff was essentially arguing that the police had an ongoing and potentially unlimited duty
to provide police protection. Id. at 364-65. Under those circumstances, the court felt that
even the most liberal construction of the Act would not require that sort of continuing duty.
¶ 29 Here, we are dealing with a timeline that is articulated in minutes, not days, weeks or
months. If Lacey is properly described as dealing with a six-week window, the contested time
period here was no more than six minutes long. These officers left the angry, drunken
perpetrator less than a block from the scene of the confrontation, when they had twice been
summoned, only moments apart, to deal with the effects of his outbursts. While it would be
manifestly absurd to allow the defendant to seek legal refuge in a case where the plaintiff
sought to impose liability for the failure to provide around-the-clock protection for a threat,
here, all the officers had to do was arrest Rovale. A finding that the officers should have
arrested Rovale is supported not only by the expert’s testimony (discussed infra), but also
by the officers’ testimony that they actually asked Fenton and Valerie if they wanted Rovale
to be taken into custody. That is tantamount to an admission of probable cause to arrest.
¶ 30 Despite the sad, and indeed horrific, facts of Lacey, those presented in this matter sub
judice are much more consistent with the type of incidents that the Act was specifically
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trying to curb. Here, the police were not dealing with a long-simmering argument; they were
presented with a drunken young man arguing with his mother and her boyfriend. The officers
in the instant case were not embarked upon a long investigation where they had to interview
many people in different areas and attempt to discern just how legitimate the potential threat
might have been. Instead, they were confronted with a volatile, domestic argument in the heat
of a drunken moment, where intervention by police and removal of the antagonist were not
only predictable, but such actions were suggested by the policemen themselves, who offered
to arrest and remove Rovale. These circumstances, then, are quite removed from the open-
ended scenario from Lacey.
¶ 31 In a related way, the City attempts to argue that the murderous actions of Rovale were
not proximately caused by any action or inaction by the City’s officers. In making this
argument, the City directly argues that Rovale’s returning to beat and stab Fenton was
unforeseeable. Specifically, the City cites precedent for the legal premise that the “relevant
inquiry *** is whether the injury *** would [be seen] as a likely result of his or her conduct.”
See Abrams v. City of Chicago, 211 Ill. 2d 251, 258 (2004). Answered simply, the possibility
that this drunken, angry young man whose conduct had twice required police intervention
might return to the residence and act in a violent manner strikes us as probable and very
likely, especially since the police left him on a sidewalk outside the house in zero degree
weather while he was still in an agitated state of mind. If the beating had taken place the
following day, week or month, the City’s argument would be much more persuasive, but it
must fall on deaf ears here.
¶ 32 The City points this court to an auto/pedestrian accident case in support of its proximate
cause argument. In First Springfield Bank & Trust v. Galman, 188 Ill. 2d 252, 257-61 (1999),
the supreme court found testimony of proximate cause lacking where the defendant did
nothing more than furnish a “condition” that made the injury possible. In that case, the
defendant illegally parked his truck. Thereafter, a student from a nearby school was killed
by a driver whose view of potential jaywalking pedestrians was blocked by the illegally
parked vehicle. In so holding, the court noted that it was not “reasonably foreseeable that
violating a ‘no parking’ sign at mid-block would likely result in a pedestrian’s ignoring a
marked crosswalk at the corner.” Id. at 261. Thus, in Galman, defendant’s conduct amounted
only to providing a condition that made the injury possible, defeating legal cause. Id. at 259-
60. Here, however, the City argues that Galman shields it from liability, because the
“evidence *** was not a basis for the officers to anticipate that Rovale would break in and
murder Henry.” This naked assertion is made wholly in ignorance of the evidence that
officers were informed of a recurrent argument between Rovale and Fenton. It also offends
both common sense and the well-documented fact that domestic disputes often erupt into
serious violence in a very quick fashion. This argument is also undermined by Officer
Roberts’ testimony that he instructed Valerie to lock the door to the home after Rovale was
escorted from the premises, because he was contemplating the possibility that Rovale might
return. Based on our detailed review of the record, it is plain that these officers had two very
clear opportunities to effectively prevent Rovale’s predictable behavior on the night in
question, leading to a very easily understood proximate cause nexus in this matter.
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¶ 33 EXPERT OPINION ON PROBABLE CAUSE
¶ 34 The City further contends that it is entitled to a new trial because the trial court
improperly allowed Davis, plaintiff’s expert witness on police procedure, to testify that the
two officers had probable cause to arrest Rovale on each of the two occasions that they were
called about his conduct. Specifically, the City claims that the subject of probable cause is
not appropriate for expert testimony because the subject matter is within the ken of the
average juror and does not involve application of any scientific principles. Watkins v.
Schmitt, 172 Ill. 2d 193, 205-06 (1996). The City argues that probable cause is not a concept
that is difficult to comprehend and the expert’s opinion did not aid this jury in its search for
the truth. See McCormick v. McCormick, 180 Ill. App. 3d 184, 205 (1988). Accordingly, the
City contends that the court’s instruction defining probable cause was more than sufficient
to inform the jury on the topic. We review a trial court’s decision to admit expert opinion for
an abuse of discretion. Van Gelderen v. Hokin, 2011 IL App (1st) 093152, ¶ 36.
¶ 35 In response, plaintiff initially argues that defendant forfeited this issue by failing to make
an appropriate objection when Davis was first asked about her opinion on probable cause
during her testimony. We agree. As mentioned above, defendant had earlier filed a motion
in limine to prevent the admission of this opinion and the court declined to grant the motion.
When the witness was asked for her opinion of whether the police had probable cause to
arrest Rovale during the first call, defense counsel merely objected to the “foundation” for
the question. The court denied the objection. When the witness was asked essentially the
same question related to the second encounter, no objection was made.
¶ 36 An objection to foundation is not sufficient to alert the trial court to the City’s claim that
the question is not a proper subject for an expert’s opinion. See Townsend v. Fassbinder, 372
Ill. App. 3d 890, 906-07 (2007). We also note that the court’s ruling with respect to
foundation was entirely correct, inasmuch as Davis possessed the necessary qualifications
and training on police procedures relative to domestic disturbances. Furthermore, Davis had
reviewed the related CPD general orders and all of the reports from the underlying
occurrence and the investigation into the beating of Fenton. The foundation for her opinion
was well established. The City, however, harkens back to its motion in limine to bar Davis
from expressing any opinion related to probable cause to arrest Rovale at either time that they
were at the premises responding to a 911 call. During the motion hearings, the City cited
various purported infirmities with the opinions being offered by Davis. None of those
infirmities related to foundation for her opinion. Instead, the City objected that the witness
should not be allowed to interpret the law. It also argued that the subject of probable cause
and the law related to disorderly conduct were issues that the jury could easily understand
without an expert’s assistance. Nonetheless, a contemporaneous objection was required.
Wingo v. Rockford Memorial Hospital, 292 Ill. App. 3d 896, 904 (1997). This rule is
appropriate, because the party wishing to exclude evidence has the burden to properly inform
the trial judge as to the specific nature of its objection to the proffered testimony. Townsend,
372 Ill. App. 3d at 906-07. Thus, merely objecting to foundation related to the first police
visit and failing to object at all related to the second encounter falls well short of preserving
the issue on appeal.
¶ 37 Furthermore, the opinion of the expert was appropriate under the unique facts and
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circumstances of the case sub judice. As earlier alluded to above, plaintiff claimed that the
officers were wilful and wanton in their failure to arrest Rovale and remove him from the
premises. It is axiomatic that a police officer must have probable cause to believe that a
person has committed a crime before an arrest can be made. People v. Neal, 2011 IL App
(1st) 092814, ¶ 10. Here, plaintiff claims that the officers had probable cause to arrest Rovale
for either disturbing the peace or for violation of the Act. Both of the police officers were
allowed to testify that they did not believe that they had probable cause to arrest Rovale.
Despite this testimony, the officers acknowledged that they essentially offered to arrest him,
if Valerie and Fenton so desired. Given the evidence that Officers Morgan and Roberts
offered to arrest a man, whom they claimed to lack probable cause to arrest, the trial court
was entitled to find that the jury could benefit from an expert who could give them a better
understanding of this concept than the pattern jury instruction. As the trial court found, the
average individual has no prior consideration of probable cause outside what one sees on
television. It also bears mentioning that the City had two defenses that revolved around the
two very different forms of causation, probable cause and proximate cause. The testimony
of an expert in this sort of muddled civil, but quasi-criminal, context strikes us as quite
appropriate. See also Hayter v. City of Mount Vernon, 154 F.3d 269, 274 (5th Cir. 1998)
(permitting expert opinion regarding probable cause).
¶ 38 CONCLUSION
¶ 39 As stated, the evidence presented at trial permitted a finding that Fenton was an abused
person within the meaning of the Act, that the officers’ conduct was wilful and wanton, and
that their conduct was a proximate cause of Fenton’s death. We also find that the under these
unique circumstances, the trial court properly permitted Davis to testify regarding probable
cause to assist the jury.
¶ 40 For all of the reasons stated, the judgment of the trial court is affirmed in all respects.
¶ 41 Affirmed.
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