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06/30/97 BRIAN GREEN v. EDGAR JACKSON

June 30, 1997

BRIAN GREEN, BY HIS MOTHER, HELEN FRITZ, AS PLENARY GUARDIAN, AND ROGER GREEN, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF BRIAN GREEN, PLAINTIFFS-APPELLANTS,
v.
EDGAR JACKSON, INDIVIDUALLY AND AS AGENT, SERVANT AND EMPLOYEE OF WELLS FARGO GUARD SERVICES, INC., A DIVISION OF B.P.S. GUARD SERVICES, INC., WELLS FARGO GUARD SERVICES, INC., A DIVISION OF B.P.S. GUARD SERVICES, INC., AND A.C.A. MANAGEMENT SERVICES COMPANY, A DIVISION OF AMOCO OIL COMPANY, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 86-L-8940. Honorable Michael J. Gallagher, Judge Presiding.

Released for Publication August 5, 1997.

The Honorable Justice Theis delivered the opinion of the court. Cahill, J., concurs. O'brien, J., dissents.

The opinion of the court was delivered by: Theis

The Honorable Justice THEIS delivered the opinion of the court:

Plaintiffs sued A.C.A. Management Services Company, a division of the Amoco Oil Company (Amoco), Edgar Jackson, and Wells Fargo Guard Services, Inc., for injuries suffered by Brian Green on the premises of an Amoco service station. The court entered a directed verdict as to certain claims against Amoco. As to the remaining count, the jury returned a verdict in favor of Amoco. The jury found against Jackson and Wells Fargo, and awarded the plaintiff $3.2 million in damages. However, the jury reduced the award by 75% as the result of Brian Green's comparative negligence. On appeal, plaintiffs argue: (1) the trial court erred in ruling that Brian Green was competent to testify; (2) the trial court erred in allowing defendant Jackson to explain a guilty plea entered in a criminal proceeding; (3) the trial court erred in directing a verdict in favor of Amoco as to certain negligence claims; (4) the verdict was against the manifest weight of the evidence; and (5) the trial court erred in instructing the jury. We affirm the judgment against Wells Fargo and Edgar Jackson. As to Amoco, we affirm the trial court's directed verdict, but reverse as to the erroneous jury instruction and remand for a new trial.

In February of 1986, Roger Green and his son Brian Green stopped at an Amoco gas station located on the corner of Central and Diversey in Chicago, Illinois. Brian exited the vehicle to purchase cigarettes at the Amoco minimart. In the meantime, Edgar Jackson approached the Greens' vehicle. Jackson was a Wells Fargo security guard hired by Amoco to prevent patrons of the 1-2-3 Disco Lounge from parking in Amoco's lot. Jackson and Roger Green began arguing. Brian returned to the vehicle, heard Jackson and Roger arguing, and began to struggle with Jackson. Roger Green joined the struggle. A shot was fired from Jackson's gun, which hit Brian Green between the eyes. Brian's mother and father filed suit against Amoco, Edgar Jackson, and Jackson's employer, the Wells Fargo Guard Services, Inc.

In count I of their four-count complaint, plaintiffs claimed that Wells Fargo failed to comply with certain statutes and negligently permitted Jackson to work as an armed security guard. In count II, plaintiffs alleged that Wells Fargo failed to investigate or train Edgar Jackson for his security guard position. In count III, plaintiffs claimed that Edgar Jackson negligently reported to work without proper uniform and shot Brian Green without legal justification. In count IV, plaintiffs alleged that Amoco failed to: (1) comply with the standard of care for employing security services; (2) establish reasonable security policies; (3) establish policies for hiring security services; (4) establish procedures for training security guards; (5) supervise Edgar Jackson; (6) investigate whether Jackson was qualified to be a security guard; and (7) prohibit Jackson from working without a uniform while carrying a concealed weapon.

At trial, both parties introduced eyewitness testimony. Leo Baranowicz testified that he was patronizing the 1-2-3 Disco Lounge on the night of the incident. Earlier in the evening, Baranowicz drove into the Amoco station to use the phone. Jackson approached Baranowicz and told him to remove his car from the Amoco lot. Baranowicz testified that Jackson was wearing a green army jacket, and that he did not notice if Jackson was wearing a badge or other insignia of authority. Later, Baranowicz observed Jackson "shooing" other cars from the lot.

At approximately 1:30 a.m., Baranowicz noticed the Greens' vehicle enter the Amoco station. Baranowicz testified that he observed Jackson's altercation with the Greens. According to Baranowicz, Jackson pulled out his revolver, aimed, and shot Brian Green. The defendants introduced evidence undermining Baranowicz's credibility. Specifically, the defendants established that Baranowicz: (1) offered three different versions of the facts prior to trial, (2) admitted he was angry with Jackson for forcing Baranowicz to leave the lot, and (3) had been convicted of two prior felonies.

James Esbrook was working at the Amoco station when the incident occurred. Esbrook testified that he overheard Roger Green tell Jackson, "What are you doing in this neighborhood, nigger, why don't you leave those people alone?" Esbrook stated that while the Greens were beating Jackson and grabbing at his sweater, Jackson never struck back. Esbrook's view of the parties was obstructed when the shot was fired. When Jackson entered the minimart, his face was swollen.

Terrence Dyra was a customer at the Amoco station when the Greens arrived. Dyra overheard Roger Green say, "What are you looking at, nigger?" before Roger exited his vehicle and began beating Jackson. Dyra testified that Brian joined the fight as well. She did not see Edgar Jackson shoot Brian Green.

Edgar Jackson testified that as Brian Green attempted to enter the minimart, Jackson informed Brian that it was locked. Brian responded that Jackson should "fuck [himself] and stuck his finger in the air." Roger Green then rolled down the car window and said, "What are you looking at nigger?" Roger exited the vehicle and asked Jackson, "What's a nigger like you doing up here in this neighborhood anyway?" Jackson told Roger than he was drunk and should leave. Jackson then felt someone hit him from behind and stick something that felt like a gun in his back. The Greens began beating Jackson. Jackson testified that the Greens grabbed at his sweater and exposed Jackson's revolver.

Jackson testified that he heard Roger Green yell, "The nigger's got a gun," and that the Greens reached for Jackson's weapon. In fear of losing his weapon, Jackson drew his gun. Brian Green grabbed the barrel of the gun. Jackson stated that, during the struggle, the gun discharged and Brian Green was shot in the head.

The parties also presented evidence as to Edgar Jackson's training and Amoco's procedures for hiring, training, and supervising employees. Dr. Norman Bottom, a self-employed professional security consultant, testified that Amoco breached a duty of care because he believed there was no uniformed, supervised security at the Amoco station on the night of the shooting. Bottom stated that Jackson was not wearing a uniform or a badge, and noted that Amoco had no policy in place for supervising the newly hired Jackson.

Amoco's expert, Chris McGoey, testified that Amoco communicated to Wells Fargo what its particular needs were for the site. McGoey stated that he did not believe that Amoco was negligent in hiring Wells Fargo or Jackson. Amoco area manager John Ridgeway stated that he did not make a decision as to whether an armed or unarmed security guard should be hired, but left that decision up to Wells Fargo. Amoco moved for a directed verdict as to plaintiffs' claims against Amoco. The trial court granted the motion as to all of plaintiffs' allegations against Amoco, except plaintiffs' claim that Amoco's failure to exercise reasonable care in hiring Wells Fargo to provide security was a proximate cause of Brian's injuries.

After deliberations, the jury returned a verdict in favor of Amoco. The jury found both Wells Fargo and Edgar Jackson negligent and awarded Brian Green damages in the amount of $3.2 million. However, the jury determined Brian Green was comparatively ...


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