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08/10/95 STEVEN POOLE v. CITY ROLLING MEADOWS ET

August 10, 1995

STEVEN POOLE, APPELLEE,
v.
THE CITY OF ROLLING MEADOWS ET AL., APPELLANTS.



The Honorable Justice Miller delivered the opinion of the court: Justice Nickels, dissenting: Justices Heiple and Harrison join in this dissent.

The opinion of the court was delivered by: Miller

JUSTICE MILLER delivered the opinion of the court:

On August 18, 1984, plaintiff, Steven Poole, was shot by Michael Conroy, an on-duty police officer with the Rolling Meadows police department. Plaintiff subsequently brought an action in the circuit court of Cook County against defendants, Conroy and the City of Rolling Meadows, to recover damages for injuries he sustained as a result of the shooting. As amended, plaintiff's two-count complaint alleged that defendants were guilty of willful and wanton misconduct which resulted in Poole's injuries. The complaint further alleged that Conroy violated section 1983 of the Federal civil rights statute. See 42 U.S.C. § 1983 (1982).

With respect to the section 1983 claim, the jury returned a verdict in favor of Conroy. On the State-law claim that defendants acted willfully and wantonly, the jury found in favor of plaintiff and assessed compensatory damages in the amount of $199,164.81. Because the jury further determined that plaintiff was 75% contributorily negligent, the trial judge reduced the award by that percentage and entered judgment on the verdict for $49,791.20.

Plaintiff challenged the reduction of damages, arguing that damages based on willful and wanton misconduct could not be reduced by a plaintiff's contributory negligence. The trial judge granted plaintiff's motion toreinstate the full jury award and entered judgment notwithstanding the verdict in the amount of $199,164.81. Defendants' post-trial motion challenging the modified judgment was denied. On appeal, the appellate court affirmed the trial judge's reinstatement of the full award of damages. (253 Ill. App. 3d 154.) We thereafter granted defendants' petition for leave to appeal. 145 Ill. 2d R. 315(a).

FACTS

The incident giving rise to the complaint filed against defendants occurred during the early evening hours of August 18, 1984. On that date, Conroy and three other police officers responded to a call from a neighbor that an individual had been seen entering the home of plaintiff's mother through a second-floor window. While investigating the incident, Conroy mistakenly shot plaintiff, who was coming out of the home's basement into a first-floor hallway.

As a result of the shooting and plaintiff's injury, plaintiff filed suit against defendants. As amended, plaintiff's two-count complaint alleged that defendants were guilty of willful and wanton misconduct in causing plaintiff's injuries and that Conroy violated section 1983 of the Federal civil rights statute (42 U.S.C. § 1983(1982)). In their answer to the count of the complaint alleging willful and wanton misconduct, defendants pled as an affirmative defense that plaintiff's injuries resulted, in whole or in part, from plaintiff's willful and wanton misconduct or omissions. On the last day that evidence was heard at trial, defendants filed an amended answer. The amended answer was identical in all respects to the original answer except that defendants alleged plaintiff's contributory negligence, rather than plaintiff's willful and wanton misconduct, as an affirmative defense. Plaintiff's motion to strike the amended answer was denied.

During the conference on jury instructions, plaintiff argued that any contributory negligence on his part should not reduce a damage award based on defendants' willful and wanton misconduct. At the time of trial, however, two decisions from the Fourth District of the Appellate Court sanctioned a comparison of plaintiff's contributory negligence with defendant's willful and wanton misconduct under the doctrine of comparative fault. (See Yates v. Brock (1989), 191 Ill. App. 3d 358, 361, 138 Ill. Dec. 605, 547 N.E.2d 1031; State Farm Mutual Automobile Insurance Co. v. Mendenhall (1987), 164 Ill. App. 3d 58, 61, 115 Ill. Dec. 139, 517 N.E.2d 341; see also Illinois Pattern Jury Instructions, Civil, No. 21.02.02 (3d ed. 1993), Notes on Use, at 21--10; Davis v. United States (7th Cir. 1983) 716 F.2d 418, 429; Downing v. United Auto Racing Association (1991), 211 Ill. App. 3d 877, 895-898, 156 Ill. Dec. 352, 570 N.E.2d 828; see generally Annot., Application of Comparative Negligence in Action Based on Gross Negligence, Recklessness, or the Like, 10 A.L.R.4th 946 (1981).) The trial judge ruled that the jury could consider plaintiff's contributory negligence in reducing the damages awarded for defendants' willful and wanton misconduct, and over plaintiff's objection, instructed the jury accordingly.

The jury subsequently returned a verdict in favor of Conroy on the section 1983 claim. On the State-law claim based on allegations of willful and wanton misconduct, the jury found for plaintiff and assessed damages in the amount of $199,164.81. The amount of damages was reduced by 75%, the percentage of contributory negligence the jury attributed to plaintiff. Judgment for plaintiff was, therefore, entered on the jury's verdict in the amount of $49,791.20.

In his post-trial motion, plaintiff challenged the reduction of damages, arguing that the amount of defendants' liability award could not be reduced by the percentage of plaintiff's contributory negligence. Betweenthe time judgment was entered on the verdict and the filing of the post-trial motion, the First District of the Appellate Court issued its opinion in Burke v. 12 Rothschild's Liquor Mart, Inc. (1991), 209 Ill. App. 3d 192, 154 Ill. Dec. 80, 568 N.E.2d 80. The Burke court disagreed with the Fourth District cases and held that a defendant who was found guilty of willful and wanton misconduct was not entitled to a reduction in damages based on a plaintiff's contributory negligence. ( Burke, 209 Ill. App. 3d at 203-06.) In light of the appellate court's decision in Burke, the trial judge granted plaintiff's request for post-trial relief and entered judgment notwithstanding the verdict in the amount of $199,164.81. Defendants' post-trial motion challenging the modified judgment was denied.

On appeal, defendants argued, among other things, that the trial judge erred in reinstating the full award of damages. Defendants contended that because of the change in law engendered by Burke, the appropriate remedy was a remand for a new trial to allow the jury to determine whether plaintiff acted willfully and wantonly and, if so, to compare plaintiff's willful and wanton misconduct with defendants' willful and wanton misconduct. Because Burke held that a plaintiff's contributory negligence could not reduce a defendant's liability based on willful and wanton misconduct, defendant's contended that a new trial was warranted to allow them to proceed on a correct theory of the law.

After the appeal was filed in the appellate court, but before the case was decided, this court affirmed the appellate court's decision in Burke. ( Burke v. 12 Rothschild's Liquor Mart, Inc. (1991), 148 Ill. 2d 429, 170 Ill. Dec. 633, 593 N.E.2d 522.) In Burke, this court held that a plaintiff's negligence could not reduce a damage award based on the willful and wanton misconduct of a defendant. This determination was based on the "qualitative distinction" between acts of simple negligence and willful and wanton misconduct. "Willful and wanton misconduct carries a degree of opprobrium not found in merely negligent behavior ***." Burke v. 12 Rothschild's Liquor Mart, Inc. (1992), 148 Ill. 2d 429, 451, 170 Ill. Dec. 633, 593 N.E.2d 522.

Based on this court's decision in Burke, the appellate court in the present case found that the trial judge's decision to reinstate the full damage award was proper. Relying on Medina v. City of Chicago (1992), 238 Ill. App. 3d 385, 179 Ill. Dec. 658, 606 N.E.2d 490, the appellate court also rejected defendants' argument that the appropriate remedy was a new trial to allow defendants to assert the affirmative defense of plaintiff's willful and wanton misconduct. (253 Ill. App. 3d at 160-61.) In Medina, the appellate court, faced with facts similar to the present case, reinstated the full jury ...


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