APPEAL from the Circuit Court of Cook County; the Hon. HOWARD
LEE WHITE, Judge, presiding.
JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
The plaintiff, Val Lorrie Glover, the administrator of the estate of Gertrude Wilson, filed a four-count amended complaint against the city of Chicago and police officers Daniel Fitzgerald and Thomas Ferry. The complaint sought to recover damages for loss of support, pain and suffering, lost wages and burial expenses that resulted from the shooting death of Gertrude Wilson. Counts I and II based recovery on the absolute liability provisions of section 1-4-5 of the Illinois Municipal Code (Ill. Rev. Stat. 1973, ch. 24, par. 1-4-5). Recovery under count III was based on alleged negligence and indemnification liability pursuant to section 1-4-5 of the Illinois Municipal Code (Ill. Rev. Stat. 1973, ch. 24, par. 1-4-5), and recovery under count IV was based on alleged wilful and wanton conduct.
At the close of the plaintiff's case, the defendants asked for directed verdicts on all counts. The trial court directed verdicts for the city and Ferry on all counts and directed verdicts for Fitzgerald on counts I, II and IV. A verdict was directed in favor of the plaintiff against Fitzgerald on count III, and the jury awarded damages in the amount of $20,000 on that count. The plaintiff filed a post-trial motion seeking judgment against all the defendants and a new trial on the damages issue or a new trial on all the issues against all the defendants. The trial court ordered a new trial against all the defendants on all of the issues. Leave to appeal was granted by this court pursuant to Supreme Court Rule 306 (73 Ill.2d R. 306).
The issues presented on appeal are whether the trial court erred in setting aside its directed verdicts and the jury award and ordering a new trial on all of the issues.
At trial Officer Fitzgerald testified as an adverse witness and stated that he met the decedent in March 1972 when they appeared before a judge to obtain a felony warrant against her ex-husband, Albert Winston. Fitzgerald spoke to the decedent several times during the following year and told her to call him if she knew Albert's whereabouts. On April 12, 1973, at about 5 p.m., the decedent called Fitzgerald to advise him that Albert was in the area and would be at her apartment at about 7 p.m. Fitzgerald arranged to call her at about 7 p.m. and was informed during this second conversation that Albert had a gun.
When Officer Fitzgerald proceeded to the decedent's apartment, he called for assistance and was met by Officers Ferry and DiGiacomo. The decedent's apartment could not be located so Fitzgerald called her for additional directions. She told him that her aunt would direct them to the apartment. After receiving directions from the decedent's aunt, the three officers walked in single file toward the outside stairway leading to the decedent's two-story apartment. Fitzgerald was in the lead, and Ferry and DiGiacomo followed. Fitzgerald had his gun drawn.
Officer Fitzgerald stated that as he approached the stairs, he was fearful of being hurt since Albert Winston had a gun. When Fitzgerald reached the stairs, he saw a man wearing a light-colored t-shirt in a second-floor window. Fitzgerald testified that he then heard gunfire and saw two or three flashes of light, that he assumed was gunpowder burning from a discharged gun, emanate from the second-floor window. When Officer DiGiacomo fell to the ground with a bullet wound in the chest, Fitzgerald believed they were being fired upon and jumped back. He aimed his gun toward the figure that had disappeared from the window and yelled, "Winston, you're under arrest, come on out." The door to the decedent's apartment opened about a foot and one-half to two feet, and Fitzgerald saw the man in the light-colored t-shirt. The man slammed the door and opened it a few seconds later. Fitzgerald saw a hand come out of the door, assumed the man was going to draw a weapon and then fired his gun twice at the man in the door. When Fitzgerald fired his weapon, he believed the decedent's children were present in the apartment.
Upon entering the apartment, Fitzgerald saw the decedent lying on the kitchen floor dressed in red pants and a black sweater. She had been shot by a bullet fired from Fitzgerald's gun. No weapons were found in the decedent's apartment, and there was no evidence to indicate that a weapon had been fired on the premises. Fitzgerald was informed later that the bullet that injured Officer DiGiacomo had been fired from Officer Ferry's gun when the gun slipped from Ferry's hand and discharged. Albert Winston, who was wearing a light-colored t-shirt, was apprehended on the first floor of the apartment.
Officers Thomas Ferry and Joseph DiGiacomo corroborated Fitzgerald's testimony regarding their involvement in the shooting incident. Ferry testified that he dropped his revolver as he drew it from his holster while approaching the stairs. The gun discharged but Ferry did not realize that the bullet had hit DiGiacomo. He saw no weapons being fired from the window of the apartment at the time DiGiacomo was shot and did not know who fired at least two subsequent gunshots. DiGiacomo testified that he did not hear or see any shots being fired before he was hit by a bullet. He did not know where the bullet came from at the time he had been shot.
Gerri Winston, the decedent's daughter, testified that on the night of the shooting, she was at home with her mother, father, sister and brother. Also present were her grandmother and aunt. After her aunt left the apartment, Gerri heard a gun being fired outside and she and her mother went to look out the living room window. Her mother then went to the door and opened it to look out. Gerri looked out the door and saw a policeman lying on the ground. Her mother then closed the door; and as they turned to go back to the living room, two shots were fired. Her mother fell to her knees and crawled to the kitchen. Gerri testified that at the time of the shooting, her father was on the upper floor of the apartment and that he did not come downstairs until after her mother had been shot.
On cross-examination, Gerri testified that her father had been in the apartment on the night of the shooting but could not remember whether he had been there before that day. She admitted that she had stated previously that her father had returned to the apartment 2 or 2 1/2 weeks before the shooting and that he had moved in about 3 days later. Gerri further testified that after the shooting, the decedent reached for a skillet on top of the stove and hit her husband before falling back down. She also stated that on the night before her mother was shot, she had witnessed an altercation between her parents.
After evidence relative to the issue of damages was presented, the plaintiff rested. Thereafter, the trial court granted directed verdicts for the city and Ferry on all counts and directed verdicts for Fitzgerald on counts I, II and IV. A verdict was directed in favor of the plaintiff against Fitzgerald on count III. The defendants then sought to present testimony by several witnesses that Albert Winston was present in the decedent's apartment before the day of her death, that Albert pointed a gun at the decedent on the evening before her death, that the decedent knew that Albert's gun was not in the apartment at the time she told Officer Fitzgerald that Albert had a gun, that a .45-caliber bullet recovered outside the decedent's apartment had markings consistent with the markings in Albert's gun, and that a bystander who witnessed the shooting saw flashes of light emanating from the upper-floor window of the decedent's apartment. The defendants were prohibited from presenting this evidence to the jury since the liability issue had been decided by the directed verdict rulings. Thereafter, the jury returned an award of $20,000 on count III. In ruling on the plaintiff's post-trial motion, the trial court reversed all of the directed verdicts and ordered a new trial on all the issues.
Count I of the plaintiff's amended complaint sought recovery pursuant to section 1-4-5 of the Illinois Municipal Code (Ill. Rev. Stat. 1973, ch. ...