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Mcdonnell v. City of Chicago





APPEAL from the Circuit Court of Cook County; the Hon. JAMES A. GEROULIS, Judge, presiding.


Rehearing denied January 18, 1982.

Plaintiff Michael McDonnell filed an action for damages for injuries sustained in an altercation with defendant Fred McKinley, a police officer employed by defendant city of Chicago and as a security guard for defendant McCormick Inn Corporation. The jury returned a verdict in favor of plaintiff and against all defendants and awarded plaintiff $225,000 in damages. Defendants appeal.

On appeal, all defendants contend that plaintiff's counsel improperly implied that McKinley was intoxicated and that the trial court erred in excluding from evidence plaintiff's dramshop complaint. McCormick Inn Corporation also contends that (1) the trial court erred in denying its motion for a judgment notwithstanding the verdict; (2) plaintiff's argument to the jury that McCormick Inn improperly supervised McKinley was prejudicial because the matter was not an issue; (3) plaintiff's references to his domestic situation were improper and prejudicial; (4) excerpts from a transcript of McKinley's extra-judicial statement erroneously were read to the jury; and (5) the conduct of plaintiff's counsel deprived McCormick Inn of a fair trial. The city of Chicago also contends that the trial court erred in refusing an instruction based on the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1979, ch. 85, pars. 2-109 and 2-202).

We affirm.

At approximately 9:30 p.m. on November 10, 1973, plaintiff Michael McDonnell, his wife, and several friends went to a cocktail lounge at the McCormick Inn. They left the lounge at 11:30 p.m. Plaintiff testified that as he and his wife waited in the parking area for their car, he was bumped by McKinley and pushed into a column. McKinley continued walking and plaintiff stated, "Why don't you watch where you're going?" McKinley turned and told plaintiff that he was a Chicago police officer and worked at the Inn. He stated that plaintiff was under arrest. McKinley then drew his gun and threatened to shoot plaintiff. When McKinley repeated the threat, plaintiff's wife ran into the hotel lobby to seek assistance. McKinley began firing his gun and plaintiff was struck in his leg. Bystanders disarmed McKinley after he fired two or three shots. Plaintiff further testified that he neither struck nor antagonized McKinley. He consumed four or five drinks while in the lounge, but was not intoxicated.

Patricia McDonnell, plaintiff's wife, testified that after plaintiff was bumped by McKinley, plaintiff told McKinley to watch where he was going. McKinley stated that he was a police officer, that he worked for McCormick Inn and that plaintiff was under arrest. McKinley was shouting profanities and threatened to shoot plaintiff. Mrs. McDonnell sought assistance and upon returning to the scene heard a number of shots. Her husband did nothing to provoke McKinley's conduct. On cross-examination, Mrs. McDonnell could not recall telling the assistant State's Attorney that her husband was intoxicated on the evening in question or that her husband and McKinley were "actually going to fight."

Plaintiff's witness Daniel Comm witnessed the altercation. As he waited in line at the parking cashier, he saw McKinley pointing a pistol at plaintiff and heard McKinley shouting obscenities. Unaware that McKinley was a police officer, Comm ran behind McKinley, pulled him to the ground, and struggled to keep the gun pointed away from bystanders. While both men were on the ground, the gun fired four times. Comm's wife tried to wrench the gun from McKinley's hand, but another man came to Mrs. Comm's assistance and took the gun from McKinley.

Edmond Hanley and his wife accompanied the McDonnells to the McCormick Inn. Hanley testified that they were waiting in the lobby when plaintiff and his wife went outside to the parking area. Moments later, Mrs. McDonnell ran into the lobby and shouted that someone was about to shoot her husband. Hanley went to the parking area and heard McKinley say "I'm going to blow your * * * brains out." Upon hearing the gun fire, Hanley dropped to the ground. He had three or four drinks that evening. He neither threatened nor ran toward McKinley.

Defendant Fred McKinley was called as an adverse witness. He testified that on the date of the occurrence, he was employed as a Chicago police officer and a security guard for McCormick Inn. He had been a policeman for eight years and a security guard for two years. As he left the Inn at the end of his shift as security guard he heard plaintiff say "good-bye, nigger." McKinley told Mrs. McDonnell to take her husband home because he might get arrested. Plaintiff then charged McKinley and struck McKinley three or four times. McKinley told plaintiff he was under arrest after plaintiff struck McKinley the first time. McKinley further testified that he drew his revolver only after plaintiff and Hanley began approaching and threatening him. At this same time, he announced that he was a police officer. Moments later, he was grabbed by Daniel Comm. As he and Comm fell to the ground, a number of people charged at him. McKinley fired his gun, trying to expend the ammunition. He feared that someone would take the weapon from him and use it to shoot him. Although the first shot was fired in the direction of plaintiff, McKinley did not intentionally aim the revolver in plaintiff's direction. He tried to aim the remainder of the shots toward the ceiling.

McKinley was also called to testify as a defense witness. His testimony was substantially similar to that noted above. Additionally, he testified that the incident occurred after he had checked out at midnight.

Paul Froelich, a defense witness, testified that as he waited in line near the parking cashier, he heard plaintiff and McKinley arguing. He saw McKinley draw his gun. Shortly thereafter, Comm grabbed McKinley and the men fell to the ground. Plaintiff jumped McKinley and the gun fired. Froelich approached the three men and twisted the gun from McKinley's hand.

Bruce Wexler, the general manager of McCormick Inn during 1973, testified he saw plaintiff and McKinley surrounded by a crowd of people in the parking area. Plaintiff and McKinley were talking loudly and plaintiff struck McKinley. McKinley drew his revolver, announced his office and stated that plaintiff was under arrest. Wexler also heard McKinley say he would "blow [plaintiff's] * * * head off." A man from the crowd forced McKinley to the ground. McDonnell jumped both men. Wexler then heard three or four gunshots. Two security guards from the Inn intervened and stopped the men from fighting. During the incident, Wexler noted that plaintiff was weaving and intoxicated.

Susan Bouchey was at McCormick Inn on the evening in question. While in the parking lot waiting room, a man staggered past her group and asked if anyone wanted to dance. The man crossed the driveway, and she later saw him in front of a crowd of people. Another man was aiming a gun at him, and the men were shouting. As Bouchey drove from the Inn, she heard gunfire.

Howard Pierson, the Inn's security consultant, testified he recommended that the Inn hire McKinley as a security guard. Pierson had been a police commander for eight years prior to becoming a security consultant and had worked with McKinley during that time. He recommended McKinley for the security guard position because McKinley had been a good police officer. Most of the men hired by the Inn as guards were police officers. They worked at the Inn while off duty.

First, all defendants cite as error the attempt by plaintiff's counsel to imply that McKinley was intoxicated. During direct examination, plaintiff was asked whether he had seen McKinley in the Inn prior to the altercation. Plaintiff responded he had seen McKinley sitting in the lounge. When counsel asked if plaintiff could see whether McKinley was drinking, defense counsel for the Inn objected on the ground ...

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