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01/22/97 REGINA MORTON v. CITY CHICAGO

January 22, 1997

REGINA MORTON, PLAINTIFF-APPELLANT,
v.
CITY OF CHICAGO, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. The Honorable Leonard Levin, Judge Presiding.

Released for Publication February 28, 1997.

Justice Leavitt delivered the opinion of the Court. Zwick, P.j., and McNamara, J., concur.

The opinion of the court was delivered by: Leavitt

Justice Leavitt delivered the opinion of the Court:

On February 28, 1990, the plaintiff, Regina Morton, was rendered paraplegic when a car driven by Jamal Massie careened into her as she was sitting at a bus stop near 59th and State Streets in Chicago. At the time, Massie was attempting to elude police and had been travelling southbound on State Street at speeds estimated at up to 60 miles per hour. He crossed into the northbound lanes, ignored a red light at 59th Street and hit a taxicab. His vehicle deflected off the cab and into the plaintiff, severing her spinal cord. She sued Massie, as well as the City of Chicago (the City), alleging that the police had been negligent and wilful and wanton while in pursuit of Massie.

The plaintiff settled with Massie's auto insurer. Pursuant to the immunity provided by section 2-202 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2-202 (West 1994)), the trial judge granted summary judgment in favor of the City on the negligence count. The wilful and wanton count was tried, and a jury returned a general verdict in favor of the plaintiff, awarding $2,000,000 in damages. The jury apportioned 20 percent of the liability to the City and 80 percent to Massie. In response to a special interrogatory, however, the jury responded "no" to the question of whether either or both of the police officers driving the squad car in pursuit of Massie had acted in a wilful and wanton manner. Given the inconsistency between the general verdict and the answer to the special interrogatory, the trial judge entered judgment notwithstanding the verdict in favor of the City. See 735 ILCS 5/2-1108 (West 1994). We affirm.

On the day the plaintiff suffered her injuries, Chicago Police Officer Vance Bonner and Detective Louis Ford were working together as part of the police department's District 2 "plainclothes" tactical unit. District 2 is a high crime area located between 35th and 60th Streets. Ford and Bonner drove an unmarked vehicle equipped with a radio, as well as a high intensity spotlight, "oscillating" headlights and a siren. The latter two devices are operated by a switch located underneath the car's dashboard.

According to both Ford and Bonner, on February 28, they received information that occupants of a red car had been involved in a gang feud that had erupted in District 2. The feud included drive-by shootings, and the officers were informed that the occupants of the red car would be in possession of guns and possibly narcotics. At about 6:40 p.m., Ford was driving, and the two officers were on 53rd Street between Wabash and State Streets when they observed a red Nissan stopped in the middle of the street. This area of District 2 "was noted for extremely heavy narcotics trafficking and gang activity."

Officer Ford stopped his car behind the Nissan and activated his oscillating headlights in order to alert the car's occupants that Ford and Bonner were police. Ford also turned on the spotlight to illuminate the inside of the Nissan. Several people were also milling about outside the Nissan. Ford and Bonner got out of their car and announced that they were police officers. Each officer removed his gun from its holster. Officer Bonner was behind Ford. As the two approached, Ford observed an occupant in the front passenger seat point "a small caliber handgun" at him. Ford yelled to Bonner that the man had a gun and then prepared to defend himself by aiming his weapon at the occupants of the car. As he did so, Massie, the driver of the car, drove away, heading east on 53rd Street, accelerating to a high rate of speed.

Ford and Bonner returned to their car and began driving east on 53rd Street. Their oscillating headlights remained "on." Ford did not activate the car's siren at that time or at any time prior to the plaintiff's injury. He decided not to do so for several reasons. He believed it was unsafe to do so because traffic was heavy at the time, and he did not want to unduly alarm other drivers who might, for instance "slam on their brakes [or] move over without looking [in order] to surrender the right-of-way to the officer." Ford also stated that sounding his siren would have been futile "because the fleeing assailant was so far away that the probability of me apprehending him was somewhat null at that point." He did not perceive that he presented any danger to anyone because the Nissan was so far ahead of him that the siren would have been ineffective in warning others about the speeding Nissan. Finally, Ford believed that it would be unsafe for him to activate the siren because he would be unable to hear the sirens of other police cars.

When he arrived at the corner of 53rd and Wabash, Ford saw the Nissan turn onto 54th Street, heading west. Ford testified that he did not consider himself in "pursuit" of the Nissan, although in reports he filled out following the arrest of the Nissan's occupants, Ford indicated that he had been in pursuit of the car. In any event, as they continued, Bonner, using the car radio, apprised other officers in the area of the situation.

Ford stated that he was driving between 30 and 35 miles per hour. As Ford and Bonner proceeded south on Wabash, the Nissan was about a block ahead of them, but they eventually lost sight of it. Ford turned onto 54th Street and drove west, still unable to see the Nissan. They reached the intersection of 54th and State Streets, and Ford saw the Nissan heading south on State Street, approaching the intersection of 55th Street and Garfield Boulevard. Ford waited for traffic to clear and turned southbound on State Street. The Nissan passed through a red light at 55th Street. Bonner continued relaying the position of the Nissan to other officers by radio.

The Nissan gradually increased its distance from Ford and Bonner to two blocks. As the officers passed Garfield Boulevard, Ford saw the Nissan speed through a red light at 57th Street. Ford stopped for the red traffic signal at 55th Street and proceeded when the light turned green. Ford watched as the Nissan crossed from the southbound lanes of State Street into the northbound lanes. At 57th Street, he stopped for another red light. Although he was uncertain if it was before he stopped or after he passed through the subsequent green light at 57th Street, Ford watched the Nissan speed through another red light at 59th Street and strike a cab in the intersection. Also, at 57th Street, Ford saw another unmarked police vehicle, which he believed belonged to Officers Hampton and Russell. Hampton's testimony confirmed Ford's as to the movement of the Nissan between 57th and 59th Streets. Hampton watched the Nissan hit another car as Ford's vehicle passed him at 57th Street.

Ford proceeded to 59th Street and observed that the Nissan had come to rest underneath the elevated tracks on the east side of State Street. Other police officers also arrived, and Ford informed them that the occupants of the Nissan were armed with guns. The officers approached the car with guns drawn. Massie had fled, but other passengers were still inside, injured. They were arrested. The plaintiff was discovered, injured, on the sidewalk.

The plaintiff's action against the City was premised largely upon Ford's failure to activate his siren. She offered into evidence section VI of Chicago Police Department General Order 81-8, which governs the manner in which police officers are to engage in emergency ...


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