The opinion of the court was delivered by: Justice Gordon
Appeal from the Circuit Court of Cook County
Honorable Michael J. Kelly, Judge Presiding.
In April 1991, John Crocker, a minor, shot and killed plaintiff's decedent, Joseph Gaffney (also a minor) at a party. The gun John used belonged to his father, Daniel Crocker, a police officer with the City of Chicago (the City). Gaffney sued Officer Crocker for negligent storage of his weapon and attempted to hold the City liable under a respondeat superior theory. The jury returned a verdict finding both defendants liable and assessing damages of $1.575 million. The jury answered a special interrogatory by a verdict of 10-2 (which all parties agreed to accept) that Officer Crocker was acting within the scope of his employment when he stored his weapon.
The circuit court denied Crocker's motions for judgment notwithstanding the verdict (JNOV) and for a new trial but granted the City's motion for JNOV on the grounds that Daniel was not acting within the scope of his employment at the time he stored the gun at his home. The court also conditionally granted the City a JNOV on immunity grounds but denied its motion for judgment on another special interrogatory and its conditional motion for a new trial. Gaffney appeals the JNOV, and the City conditionally cross-appeals the denial of its motion for a new trial. For the reasons given below, we reverse and remand.
PERTINENT SUBSTANTIVE FACTS
A number of facts pertinent to this appeal are not in dispute. On April 12, 1991, Daniel Crocker was employed as a patrolman with the Chicago Police Department (Department). He was assigned to the Department's court section, where his duties entailed ensuring that officers and other witnesses appeared for scheduled court appearances and approving officers' time slips for such appearances. Crocker was required to carry a gun while at work, and he did carry a .38 caliber revolver. He had purchased the weapon in 1976 with his own money, but the City issued him bullets free of charge.
On April 12, Officer Crocker left work after his shift ended at 3:30 p.m. and returned home. When he arrived at home he unloaded his revolver and placed it and the bullets in an unlocked metal cabinet near the stairway leading to his basement. The revolver was not locked or in any way disabled. Crocker's son, John, took the revolver and bullets from the cabinet at approximately 6:00 p.m. and brought them to a party. At the party, shortly before 11:00 p.m., John shot Joseph Gaffney with the weapon. John was adjudicated delinquent for the shooting. *fn1
At trial, Gaffney's theory of liability with respect to the City *fn2 was that as Daniel's employer, the City was liable for his negligence under the doctrine of respondeat superior. Accordingly, she introduced evidence to show that Crocker was acting in the scope of his employment when he stored the gun. On this issue her two main witnesses were Dr. James Fyfe and Officer Crocker.
Dr. Fyfe, a professor of criminal Justice at Temple University, was allowed to testify as an expert. While the record is not clear, *fn3 it would appear that Fyfe was permitted to testify as an expert in firearms safety. Fyfe testified that the manner in which Crocker stored his gun and bullets was "part of his duties and responsibilities as a Chicago police officer." He stated that the primary reason he so concluded was that Crocker only had the gun because he was a police officer. Fyfe noted that since 1982, when Chicago enacted a municipal ordinance regulating weapon possession (See Chicago Municipal Code §8-20-010 (1992)) it was "virtually impossible for anybody else but a police officer in Chicago to carry a gun around the city." He also noted that the Chicago Police Department disciplined officers for "inattention to duty" for improperly safeguarding firearms; that Chicago Police Superintendent LeRoy Martin had stated in his deposition that properly storing a firearm while off duty was "part of the duty responsibilities of a police officer"; and that a General Order of the Chicago Police Department imposed several requirements on "off duty" officers: they are obliged to respond to emergencies in an appropriate manner; they cannot lend their guns to anyone "except in the most dire kinds of emergency"; and they are restricted as to the kinds of weapons they may carry while off duty. Fyfe stated that the Department "basically requires that some officers store their guns at home because, like Officer Crocker, they have no secure place at work to store them, they've got to take them home."
Finally, Fyfe noted that police departments, including Chicago's, could compensate officers for any injuries they sustained as well as for their time if they were involved in "legitimate police action," even though the action occurred outside of their working hours. He gave the example that an officer who caught a car thief off-hours would be compensated "even though he was technically off duty when it occurred." He admitted that he was not aware of Crocker receiving any compensation for the time he took to store his gun and bullets in the cabinet, and he thought that Crocker would not receive "line of duty" disability payments if he had fallen down his basement stairs while placing his gun in the cabinet because "it would not be considered something that he did while furthering the interests of the people of Chicago."
On cross-examination Fyfe stated that his opinions were unaffected by the fact that the gun belonged to Crocker, rather than the City. Further, while he admitted that the Department and the City did not "require" an officer to carry a handgun off of his duty shift, he stated that the reality of the situation was that many officers, including Crocker, had to carry their handguns home while off duty because they were not provided with a location in which to store the guns at work. He admitted that a police officer who intervened in an emergency while off duty was not required to have a gun, although he noted that an officer's possible actions would be limited if he did not have access to a gun. He stated that calling "911" would not be an acceptable response to an emergency if the officer was in fact armed and could reasonably intervene in a life-threatening situation. Fyfe stated that so far as he was aware Chicago did not have any general order, rule or regulation addressing off duty weapon storage, but it did train its officers with respect to off duty storage.
Officer Crocker, who was called as an adverse witness during plaintiff's case in chief, also gave testimony relevant to scope of employment. Officer Crocker testified that he was required to own a gun which conformed to Chicago Police Department regulations; if he did not have such a gun he would not be allowed to report for work. The gun which was used to kill plaintiff's decedent was the gun which he used while on duty. The Department did not provide him with a locker in which to store his weapon at work; accordingly, he brought his gun and bullets home with him every day.
Officer Crocker stated that he did not lock the cabinet or the gun because his life had been threatened several times, and his house had been broken into twice. He also stated that he kept the cabinet and gun unlocked "because I'm a Chicago police officer. If I heard someone screaming, would I have time to get that gun, I don't know. Would I attempt to, hopefully." He finally stated that as a Chicago Police Officer he was required to respond to emergencies at all times even if not on his duty shift, and that sometimes he might need a gun to respond effectively to an emergency if he had it readily available.
Officer Raymond Risley, chief of the Department's organized crime division, testified for the defense that officers could not be disciplined for failing to follow what they learned in training unless it involved violation of an articulated rule. He stated that the Department had no rules, general orders, or directives requiring officers to lock up their guns while at home, off duty. However, Chief Risley admitted that the Department did discipline officers for the way they handled guns at home, while off duty, under a Departmental Rule prohibiting "inattention to duty." Risley also admitted that an officer could be disciplined for failure to respond to an emergency, whether he was on or off duty at the time. Edwin Bishop, a retired Deputy Superintendent in charge of the Bureau of Staff Services for the Department, testified that police officers were authorized to carry a gun at any time. He stated that when officers encountered emergency situations they were required to take some type of action, but what would be appropriate was decided on a case-by-case basis. He stated that the action could be "as little as calling 911," but admitted that depending on the situation an officer could be disciplined for just calling 911 and doing nothing further. He stated, however, that an officer was not required to have a gun when responding to an emergency. He stated that so far as he was aware, all officers were supposed to have lockers where they could store their weapons, although some chose to take their guns home. He admitted that if an officer did not have a locker, he would be forced to take his gun home.
The jury rendered a verdict in favor of plaintiff against both defendants for $1.575 million. On defendants' post-trial motions the court let stand the jury's verdict against Officer Crocker but granted the City judgment notwithstanding the verdict (JNOV) on the basis that Crocker was not acting within the scope of his employment. The court stated in its order that "[i]f Daniel Crocker were, under the facts of this case, acting within the scope of his employment in storing his weapon in his home while off duty and preparing for a weekend of freedom from the job, it is hard to imagine when if ever the home storage of a weapon by a police officer would not be within the scope of employment. Such an interpretation of the 'scope' issue would impose strict liability upon the City of Chicago, under a respondeat superior theory, for any harm caused by the unauthorized, negligent use of a weapon stored in the home of an off duty police officer. The court will not impose such liability." The court conditionally denied the City's request for entry of ...