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Brooks v. Lundeen

OPINION FILED MAY 26, 1977.

MARY D. BROOKS, ADM'R OF THE ESTATE OF PAUL L. BROOKS, DECEASED, PLAINTIFF-APPELLEE,

v.

JAY F. LUNDEEN ET AL., DEFENDANTS. — (THE CITY OF ZION ET AL., DEFENDANTS-APPELLANTS; THE CITY OF WAUKEGAN ET AL., DEFENDANTS-APPELLEES.)



APPEAL from the Circuit Court of Lake County; the Hon. HARRY D. STROUSE, JR., Judge, presiding.

MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

This action was brought to recover damages for wrongful death based on theories of negligence and wilful and wanton conduct of defendants. The jury returned a general verdict for plaintiff for $300,000 and responded negatively to a special interrogatory directed to any wilful and wanton conduct of appealing defendants.

Plaintiff-appellee, Mary D. Brooks, administrator of the Estate of Paul L. Brooks, deceased, commenced this cause against defendants, Jay F. Lundeen, City of Zion, Illinois. E. Ray Nichols, Ronald Clark, City of Waukegan, Illinois, and William Uimari. We are concerned on this appeal only with the judgment entered on the verdict against the defendant-appellants, City of Zion, Nichols and Clark.

The trial court denied defendants' motion for judgment n.o.v. and for new trial. The defendants here contend: (1) that there was no evidence they were negligent; (2) that their conduct was not a proximate cause of Brooks' death; (3) that the form of verdict was improper; (4) that the trial court erred in refusing to allow an exhibit to go to the jury during deliberations, in the language of the issues instruction, in allowing prejudicial argument and in not granting a new trial because of the alleged concealment of plaintiff's identity.

The collision which caused the death of plaintiff's decedent, Paul L. Brooks, occurred at 2:30 a.m. on November 7, 1970, near the intersection of Lewis Avenue and Beach Road north of the City of Waukegan in Lake County, Illinois. Defendants Nichols and Clark, who were police officers of the City of Zion, had set up a roadblock on Lewis Avenue with their squad car seeking to intercept the approaching northbound car being driven by Jay F. Lundeen on Lewis Avenue. Lundeen had earlier been observed by a police officer in the nearby City of Waukegan driving with his bright lights on and drifting towards the opposite lane of traffic. The Waukegan officer turned to follow Lundeen's car and it then sped up, ran a red light, and turned north on Lewis Avenue at high speed. The officer radioed he had a possible chase and other squads of Waukegan and Illinois State Police joined the pursuit. The officers testified that Lundeen traveled north on Lewis Avenue at speeds of 85 to 100 miles per hour and they were unable to catch up with him.

John Bucholtz, who was the police radio officer for the nearby City of Zion, received a communication from the Waukegan operation stating, "We have a chase going north on Lewis Avenue, will you assist?" Bucholtz then radioed defendants Nichols and Clark in their squad car informing them there was a high speed chase in excess of 100 m.p.h. going north on Lewis Avenue and instructed them to assist the Waukegan officers.

Nichols and Clark drove to Lewis Avenue and stopped their car just north of the intersecting Beach Road intending to set up a roadblock at that point. Paul Brooks drove up behind and from the north of the squad car stopping his vehicle about 40 feet north of it opposite a school playground and driveway. Nichols, having decided to move south of Beach Road to establish the roadblock, let Clark out of his car at Beach Road and instructed him to get the Brooks' vehicle to the shoulder of the road, out of the way and into a place of safety. Nichols then drove 30 to 40 yards south of Beach Road and positioned the squad car generally in an east-west direction on Lewis Avenue. Both Nichols and Clark testified their car was parked only on the western half of the 22-foot-wide blacktop roadway with its revolving roof lights on. Nichols testified that as he pulled the squad car into position he saw the Lundeen car approaching at 80 to 90 m.p.h., driving in the center of the road using both lanes, and it passed around the squad car to the east partially on the shoulder of the road.

Defendant Clark, a part-time Zion officer, had heard the radio transmissions that a car was coming north on Lewis Avenue at 100 mp.h. When dropped off by Nichols on Beach Road, he observed Brooks moving up in his car and directed him to park on the west shoulder of the road at a place about 60 feet south of the intersection. He did not inform Brooks of the approaching Lundeen car or the purpose of the roadblock. Clark then walked south toward the squad car and after going a short distance saw Lundeen's car coming around it at 90 to 100 m.p.h. traveling in a northwesterly direction. It collided head-on with Brooks' parked vehicle, killing Brooks.

At the time of the collision it was dark and misty and the blacktop was wet and slippery. Lewis Avenue was generally straight and level for about one-half mile south of the roadblock and Beach Road was a public highway running east and west about 60 feet north of the place Clark had directed Brooks to park; there was a school playground area on the northwest corner of the intersection. Neither Nichols or Clark had any previous experience, training or instruction in setting up a roadblock.

Defendants contend first that no evidence of negligence was shown in the establishment of the roadblock or in their positioning of Brooks' car near it. They assert that roadblocks are a subject matter beyond the common knowledge of an ordinary person and that proof of negligence, in that event, requires expert testimony to establish the necessary standards of care and none was produced, citing 65A CJ.S. Negligence § 243(2) (1966) — "Expert Evidence."

• 1, 2 The paragraph referred to by defendants also goes on to state "* * * but the introduction of expert evidence is not necessary where the question relates to matters which are of common experience, observation, or knowledge." (65A C.J.S. Negligence § 243(2), at 671 (1966).) We believe that is the case here. The conduct of defendants in setting up the roadblock and positioning Brooks' car as they did was not technically difficult to understand and the jury would have no need for an expert evaluation of what defendants did or did not do in this circumstance. No specific authority is cited in support of the argument that the standard of care required of defendants can only be grounded on expert testimony, as must the duty of a physician, and we believe none exists.

Defendants also contend in this regard that the testimony was that any decision to employ a roadblock rests in the discretion of the officer on the scene. They assert there was no evidence defendants abused such discretion and thus no basis for a finding of negligence.

Joseph Kostur, District Safety Claims Administrator for the State of Illinois, Department of Transportation Safety, John Samuelian, police shift commander of the City of Zion and George Pasenelli, Chief of Police of Waukegan, testified to the factors which must be considered by an officer in making a roadblock decision. The witnesses were each qualified to testify as they did and stated generally that weather conditions, type of road, visibility, conflicting traffic, the nature of the violation and the safety of citizens were among the considerations going to an officer's decision. Samuelian testified that a fugitive's speed of 100 m.p.h. on a slippery road would suggest a roadblock not be used to intercept him. Pasenelli testified, in response to a hypothetical question, that it was his opinion a citizen's vehicle should not be held in the roadblock area but ordered away from the scene in these circumstances. These witnesses did also testify that the decision to employ a roadblock or not rested with the officers on the scene.

• 3 We agree that defendants made a discretionary decision in this case to employ a roadblock to intercept Lundeen's car. The question of whether they in so doing had a duty to plaintiff's decedent and negligently breached that duty remains and may not be ...


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