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Ozik v. Gramins

October 27, 2003


Appeal from the Circuit Court of Cook County 96 L 10625 Honorable Irwin J. Solganick, Judge Presiding

The opinion of the court was delivered by: Justice McBRIDE


Modified upon Denial of Rehearing

Defendants police officer Timothy Gramins, police officer Ronald Glads, and the Village of Skokie (Village or Skokie) appeal from a judgment in favor of plaintiff Alla Ozik, as special administrator of the estate of Mikhail Ozik, deceased.

In a first amended complaint, Alla Ozik alleged that her 16-year old son, Mikhail Ozik, was a passenger in a vehicle being operated by 19-year-old Alexander Goldberg on September 13, 1995, at 10:16 p.m., when the officers detained and issued traffic citations to Goldberg. She further alleged the officers knew or should have known that the underage Goldberg was intoxicated but allowed Goldberg to retake control of the vehicle at approximately 11:30 p.m. Further, while driving at 11:47 p.m., Goldberg lost control of the vehicle and struck a tree, causing slight injuries to himself and fatal injuries to Mikhail Ozik. Plaintiff sought damages from Goldberg, and the officers and Village, based on the Survival Act (755 ILCS 5/27-6 (West 1994)), the Wrongful Death Act (740 ILCS 180/1 (West 1994)), and the family expense act (see 750 ILCS 65/15 (West 1994)). Plaintiff subsequently dismissed Goldberg pursuant to settlement, for the limits of his $20,000 insurance policy, over the objection of the remaining defendants. Plaintiff filed a second amended complaint naming only the officers and Village as defendants, and her claims proceeded to trial. The jury returned a $1.8 million verdict in plaintiff's favor, reduced the verdict by 35% due to Mikhail Ozik's contributory negligence, and the trial court entered a judgment of $1.14 million against the officers and Village.

On appeal, the officers and Village do not dispute any of the facts adduced at trial and raise only arguments of law. The officers and Village contend the judgment is in error, because: (1) the officers were under no duty to Mikhail Ozik to take custody of Goldberg instead of issuing traffic citations, (2) even if the officers were under an actionable duty, they were immune from tort liability due to sections 4-102 and 4-107 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/4-102, 4-107 (West 1994) (Tort Immunity Act or Act)), and (3) if they were not immune from liability, they were entitled to apportion liability to the dismissed defendant Goldberg, in order to benefit from section 2-1117 of the Code of Civil Procedure (735 ILCS 5/2-1117 (West 1994)), the several liability law.

We review the relevant facts. During the hearing on Alla Ozik's motion to dismiss Goldberg pursuant to the settlement, she indicated Goldberg had tendered the limits of his insurance coverage, was incarcerated, and had no assets. The record discloses that Goldberg was convicted of the reckless homicide of Mikhail Ozik, and began serving a 10-year prison sentence in 1996. The police officers' attorney, who said she was also appearing that day on behalf of the Village, asked for time to file a written objection. Goldberg's attorney responded that the officers and Village lacked standing to object, because they had not filed a counterclaim against Goldberg seeking contribution. He also stated the settlement was in his client's best interests and entered into in good faith, and that unless there were facts showing collusion or fraud between the settling parties, there was no basis for objecting to Goldberg's dismissal. The trial judge allowed the officers' attorney to respond to the contribution and "good faith" arguments. The trial judge then indicated that a briefing schedule was unwarranted and dismissed Goldberg with prejudice.

As indicated above, Alla Ozik subsequently filed a second amended complaint. Defendants denied the material allegations and raised section 2-1117 (735 ILCS 5/2-1117 (West 1994)), the several liability law, as an affirmative defense. The trial judge granted Alla Ozik's motion to strike the affirmative defense. The trial judge also granted Alla Ozik's motion in limine to bar any apportionment of liability under section 2-1117 at the jury trial, and then denied defendants' motion to reconsider this ruling.

John Hudson testified he was a passenger in the backseat of Goldberg's car on the evening of September 13, 1995. He smelled alcohol on Goldberg's breath while Goldberg drove Hudson, Vlad Pikovskiy, and Mikhail Ozik to Evanston. During the drive, Goldberg drank from a 40-ounce bottle of malt liquor. In Evanston, Goldberg continued to drink from the bottle, and Hudson and Pikovskiy smoked marijuana near the car. Goldberg threw the empty bottle out the car's window during the return drive to Skokie and began to drive erratically. Goldberg changed from lane to lane at up to 80 miles per hour, and almost hit a car at Howard and McCormick. Goldberg's eyes were half-closed and bloodshot, and Goldberg was acting drunk. At 60 miles per hour, Goldberg rear-ended a car at McCormick and Dempster, and Hudson was thrown into the front seat. Hudson urged Goldberg to drive away, which Goldberg did by driving northbound in the southbound lanes, turning left against the red light at McCormick and Dempster, and speeding.

Goldberg pulled the car over at a McDonald's restaurant in response to a pursuing police car and got out of the car when directed by an officer. Goldberg used the door to pull himself from the seat and for support while Goldberg swayed and swerved. Goldberg lost his balance twice before the officers motioned him to the sidewalk, and he then swerved and swayed to the sidewalk. During the one-leg-stand test, Goldberg kept putting his foot down to regain balance. The test was repeated, and Goldberg again lost his balance and put his foot down.

The officers returned Goldberg to the car and had Goldberg drive back toward the accident scene, to a Clark station. Hudson fell asleep in the car for 60 to 90 minutes and woke up around 11:30, when the officers allowed Goldberg to drive away with Hudson, Ozik, and Pikovskiy as his passengers. At around 11:45, Goldberg dropped Hudson and Pikovskiy off at their neighboring homes. At around 12 midnight, Goldberg drove away, tires screeching.

Vlad Pikovskiy, the other backseat passenger, testified Goldberg's breath had a strong odor of alcohol during the drive to Evanston and that Goldberg's speech was slurred. On the way back to Skokie, Goldberg began driving 80 miles per hour, swerving into oncoming traffic, and almost hit some parked cars. Pikovskiy warned Goldberg he was going to rear-end a car, and Goldberg applied the brakes, putting his car into a skid. Goldberg's car struck the other car at 30 to 40 miles per hour, pushing it forward about one car's length and into the intersection. Pikovskiy told Goldberg that Goldberg was drunk and to leave the scene of the accident, which Goldberg did. When the police approached the car, Goldberg's window was down, and Pikovskiy heard the officers say the car smelled like weed and liquor. Goldberg almost fell down when he got out of the car at the McDonald's, stumbled and held onto the car door, then swayed to the sidewalk. During the one-leg-stand test, Goldberg put his foot down right away. When Goldberg followed the police officer to the Clark station, Goldberg was swerving the car within the lane. At the Clark station, he walked the same way he had walked at the McDonald's. When he drove away from the Clark station, Goldberg was swerving the car within the lane. Goldberg dropped Pikovskiy off at 11:50 or 11:55. Pikovskiy acknowledged that he was convicted of theft in 1997 and two residential burglaries in 1999.

Alexander Goldberg testified that he drank 80 to 120 ounces of beer and malt liquor on September 13, 1995, and had his last drink about an hour before rear-ending the car at McCormick and Dempster. The police officer that stopped Goldberg asked Goldberg if Goldberg was drunk and said he smelled weed in the car. Goldberg was sure the officers were going to know he was drunk because the car stank of weed and he stank of alcohol. He never said he had taken Tylenol Cold & Flu. He was dizzy and noticeably swayed next to the car. He could not stand on one foot because he was drunk. One of the officers returned the car keys to Goldberg and told him to follow the officer to the Clark station. At the Clark station he was given a test with a flashlight shining in his eyes. He was given some tickets, and overheard the officers talking about what a wild bunch of kids they were and that they had been drinking and smoking marijuana. The officers were laughing when they talked about Goldberg being drunk. Goldberg dropped off Hudson and Pikovskiy, and was going to drop off Mikhail Ozik when he lost control of the car approximately seven minutes after being released by the officers.

Rickey Ussery testified that he and his wife were injured when their car was struck by a hit-and-run driver. Ussery drove to the nearby Clark station, where he called 911 and reported the other car's license plate. Approximately 45 minutes after the accident, at almost 11 p.m., two police cars escorted the other car to the Clark station. One officer, whom Ussery had seen do a U-turn and follow the other car, told Ussery that the other driver was drunk or high on drugs. When Ussery left the Clark station at about 11:15, the officers and other driver were still there.

Skokie police officer Ronald Glad, one of the officers who detained Goldberg at the McDonald's at 10:16 p.m., testified he began working as a police officer in 1990. He smelled cigarettes when he approached Goldberg's car. Goldberg denied being in an accident and denied drinking. Goldberg spoke with a Russian accent without slurring. He never heard Goldberg say he had taken Tylenol Cold & Flu. There was no evidence Goldberg had been drinking. An officer needs reasonable suspicion to conduct field sobriety tests, and his reason for testing Goldberg was to detect impairment from alcohol. He administered a one-leg-stand test, and Goldberg did fine. Officer Gramins did the same test and a horizontal gaze nystagmus (HGN). He asked Officer Wolfer to do an HGN, because Officer Wolfer had a penlight, and Goldberg passed the HGN administered by Officer Wolfer. Skokie police policy did not require that three types of tests be administered, and an officer could elect any of the field sobriety tests. He was conducting a DUI and zero tolerance investigation, but he remained three-to-four feet away and did not attempt to smell Goldberg's breath. This was not a violation of procedure. Goldberg's breath smelled like cigarettes, not alcohol.

It could take up to four hours to process a DUI. When Officer Gramins issued the five citations to Goldberg, Officer Glad was not aware that Goldberg had driven the wrong direction on McCormick, turned left against a red light, and crossed a double line. Goldberg could have been cited for reckless driving. The criteria for reckless driving and leaving the scene of an accident are very similar, and they carry the same punishment because they are both Class A misdemeanors. Reckless driving requires a custodial arrest; however, leaving the scene of accident does not.

Goldberg left around 11:10 p.m. or 11:15 p.m. and did not drive unusually. Officer Glad spoke with Officer Gramins for a few minutes and then returned to the station. He arrived at the station at 11:20 p.m. or 11:25 p.m. and had no paper work to complete.

Skokie police officer Timothy Gramins testified he was the officer who made the U-turn and followed Goldberg after the first collision. He was hired by Skokie in 1995 and took training at the Chicago Police Academy. He was not required to administer any specific number of the standardized field sobriety tests and could administer the ones he felt were appropriate.

Goldberg was smoking and he told Goldberg to put out the cigarette. Goldberg's breath did not smell of alcohol. Goldberg denied drinking and said he had taken Tylenol Cold & Flu for a cold. Officer Gramins had no idea how much or when Goldberg took the Tylenol Cold & Flu, but he conducted an HGN test and one-leg-stand test to detect if Goldberg was impaired by the medication. Goldberg spoke with a Russian accent, without slurring. Goldberg did really well on the tests and was not impaired.

Under the zero tolerance law, someone under 21 years could not consume alcohol and drive. If he stopped an under-21 driver for speeding, for example, and detected the driver had consumed one drop of alcohol, he could not allow him to continue driving. It was his duty to take the driver to the station for a breathalyzer test or to the hospital for a blood or urine test. After the test, the person could not drive home and would be turned over to a "reasonable sober" party to be taken home.

He cited Goldberg for failing to reduce speed to avoid an accident, leaving the scene of a property damage accident, speeding, driving left of center, and having one headlight. He did not cite Goldberg for driving northbound in the southbound lanes of McCormick after striking Ussery's vehicle, turning left against a red after striking Ussery's vehicle, leaving the scene of a personal injury accident, or reckless driving, in his discretion. He denied that his reason for not writing additional or different citations was that he would have had to complete more paperwork or make a custodial arrest of Goldberg at the end of his work shift. He was scheduled to work until 11:15 p.m., but would be paid overtime if he worked longer. Goldberg left the Clark station at 11:15 p.m., and Officer Gramins arrived back at the station at approximately 11:30 p.m..

Skokie police detective Richard Wolfer testified that he began working for Skokie in 1989 and was a patrol officer on September 13, 1995. When he arrived at the McDonald's all of the car's occupants were standing on the sidewalk, and he never saw any of them walk. When he searched the car it smelled of smoke. He administered an HGN test to Goldberg because Officer Glad asked him to and he did not know why Officer Glad made this request. He administered the test by holding a penlight 8 to 10 inches away from Goldberg's face. He held the penlight at maximum deviation for approximately one second. When asked if he was required to hold the penlight at maximum deviation for four seconds in order to properly administer an HGN test, Officer Wolfer testified he had "never heard of how many seconds" he was supposed to hold the light at maximum deviation. Goldberg followed the instructions about the test and passed the test. Goldberg's eyes were not watery, and his breath smelled of cigarettes, not alcohol, when he was 12 to 18 inches away. Goldberg did not stumble and stood without swaying or falling. Field sobriety tests cannot be administered arbitrarily, and an officer must first have a suspicion. Under certain circumstances, it could take all four of the field sobriety tests to determine if someone was impaired. Officer Wolfer was called away to the scene of an arson and left before anyone else did.

Skokie police sergeant Frederick W. Brehmer testified he worked as an evidence technician at the fatal accident scene. Goldberg's vehicle crossed from one side of Dempster to the other, across all four traffic lanes and a center turn lane, struck a tree, and broke in half. The front half of the vehicle continued to travel an additional 46 feet, and the trunk lid flew onto the roof of an adjacent building.

Skokie police officer Vincent Pszczolkowski, who became a police officer in 1981, testified he was dispatched to the fatal accident scene, where he found Goldberg lying on his side on the pavement and checked Goldberg for injuries. He was not checking for impairment, and he did not detect an odor of alcohol. Mikhail Ozik was buckled in the passenger's seat, with his body facing backward. Mikhail Ozik's chest was moving when he approached. There was no pulse at the wrist and he covered Mikhail Ozik with a blanket. He cited Goldberg for doing 80 miles per hour in a 35-mile-per-hour zone. Goldberg was taken to the hospital, and Pszczolkowski continued ...

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