IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS FIRST DISTRICT SIXTH DIVISION
September 7, 2007; withdrawn and opinion filed December 14, 2007
VERNON HUDSON, PLAINTIFF-APPELLEE,
THE CITY OF CHICAGO, A MUNICIPAL CORPORATION, DEFENDANT-APPELLANT AND THIRD-PARTY PLAINTIFF-APPELLANT, (JAMES SCOTT, THIRD-PARTY DEFENDANT-APPELLEE).
Appeal from the Circuit Court of Cook County, Illinois. No. 01 L 6424 Honorable Irwin J. Solganick Judge Presiding.
The opinion of the court was delivered by: Justice Joseph Gordon
Plaintiff, Vernon Hudson, brought suit against defendant, the city of Chicago (the City), and a Chicago police officer, Sung Joo Lee, alleging in two counts that Officer Lee, through negligence and willful and wanton conduct, caused an automobile collision that left Hudson with serious and permanent injuries including paraplegia. Hudson voluntarily dismissed Officer Lee prior to trial and the case proceeded with the City as the sole defendant. The jury found for Hudson on both counts and awarded damages of over $17.5 million. In addition to the general verdict, the jury answered two special interrogatories. The City now appeals, arguing that it was entitled to judgment not withstanding the verdict because it was immune under the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1-101 et seq. (West 2004)) (Tort Immunity Act) from liability for negligence, and because the police officer's conduct was not willful and wanton. The City alternatively argues that it is entitled to a new trial because the trial court improperly allowed Hudson's expert to show a computer simulation of the accident to the jury, because the jury was not properly instructed on what constitutes willful and wanton conduct, and because plaintiff's attorney improperly advised the jury how to answer one of the special interrogatories. For the reasons that follow, we affirm.*fn1
Hudson's fourth amended complaint alleged that the City was liable for his injuries under two theories. In count I, Hudson alleged that Officer Lee was negligent in the following respects:
"a. Exceeded maximum speed limits endangering life and property;
b. Failed to activate sirens, mars lights or emergency signals;
c. Drove her motor vehicle in a manner causing it to lose control and strike Vernon Hudson;
d. Improperly executed a lane change striking Vernon Hudson's motor vehicle;
e. Failed to exercise due care in operation of her vehicle; and
f. Failed to maintain a proper lookout for traffic then and there upon the highway."
Count II of the complaint alleged that Officer Lee's conduct was willful and wanton in the following respects:
"a. Failed to operate the motor vehicle at a speed and in a manner compatible with conditions to ensure that control of the motor vehicle is maintained at all times, in violation of General Order 97-3;
b. Improperly engaged in caravaning [sic] when it was not safe to do so, in violation of General Order 97-3;
c. Improperly participated in a pursuit when she was not authorized to do so in violation of General Order 97-3;
d. In violation of General Order 97-3, drover [sic] her motor vehicle without due regard for the safety of all persons on the highway, including Vernon Hudson;
e. Drove her motor vehicle in a manner causing it to strike Vernon Hudson;
f. Recklessly failed to maintain control over her vehicle;
g. Recklessly executed a lane change striking Vernon Hudson's motor vehicle; and
h. In violation of General Order 97-3, failed to adhere to basic traffic safety practices by moving into lane #1 when it was not safe to do so;
i. In violation of General Order 97-3, used the activity of 'following' as a subterfuge for a vehicle pursuit;
j. In violation of General Order 97-3, improperly engaged in the pursuit when the volume of vehicle traffic made it unsafe; and
k. Failed to abandon the vehicle pursuit when it was the most reasonable course of action in violation of General Order 97-3."
Hudson's claims proceeded to trial on March 11, 2005. Hudson testified that on the night of the accident, May 7, 2001, he left his job as a truck mechanic at about 8:20 p.m., entered the Eisenhower expressway at Damen, and headed west in the rightmost of the four westbound lanes. He stated that somewhere around Kedzie, he heard sirens and saw flashing lights coming from behind him, so he put his turn signal on and pulled over to the right shoulder. Hudson stated that a car had pulled onto the shoulder immediately in front of him so that he had drive beyond that car to get onto the shoulder. He said that his car was "all the way over" onto the shoulder, except that "just the left rear tire might have been on the line." Hudson stated that it was at that point his car was hit, but that he could not remember anything further until he woke up in the hospital sometime later. On cross-examination, Hudson stated that the weather on the night of the accident was dry and clear.
Officer Lee testified on direct examination as an adverse witness that, at the time of the occurrence, she was familiar with the police department general order 97-3, which described under what circumstances police officers could engage in motor vehicle pursuits.
General order 97-3 was entered into evidence and the plaintiff's counsel had Officer Lee read the following provisions aloud:
"These procedures provide Department members with guidelines to follow when engaged in a motor vehicle pursuit. *** Members must be cognizant of the fact that motor vehicle pursuits are a serious matter with a potential for death and/or injury to the officers, persons in the vehicle being pursued, and/or innocent persons in the area and property damage.
Police officers operating unmarked Department vehicles will be permitted to engage in a motor vehicle pursuit only when the fleeing motor vehicle or its occupants represent an immediate and direct threat to life. Whenever a marked Department vehicle becomes available to take over a vehicle pursuit, the unmarked Department vehicle operator will withdraw as the primary pursuit unit and only, with the approval of a supervisor assigned to the pursuit, assume the role of secondary pursuit unit.
At no time will an officer use the activity of 'following'*fn2 as a subterfuge for a vehicle pursuit.
An active pursuit will involve no more than a primary and secondary pursuit unit unless otherwise directed by a supervisor. All other units will remain aware of the direction and progress of the pursuit, but will not actively participate, and will not respond or parallel the pursuit on adjacent streets, unless specifically authorized to do so.
The decision to initiate a pursuit rests with the individual officer. The Department member will only engage in a motor vehicle pursuit when:
d. The necessity of immediate apprehension outweighs the level of inherent danger created by the pursuit;
e. the speeds involved and/or the maneuvering practices engaged in, permit the Department vehicle operator complete control of his vehicle and do not create unwarranted danger to himself or others;
f. the volume of pedestrian and/or vehicular traffic permits continuing the pursuit.
The decision to abandon a vehicle pursuit may be the most reasonable course of action. Officers and their supervisors must continually evaluate the nature of the pursuit in light of its danger and make a judgment to terminate the pursuit, whenever necessary. A pursuit will be immediately terminated whenever:
Speeds involved, volume of pedestrian and/or vehicular traffic, presence of weather and/or road hazards or the distance between vehicles indicates that further pursuit will unnecessarily endanger the public and/or Department members.
The following activities are prohibited during the course of a vehicle pursuit:
c. caravanning*fn3 (unless authorized by a supervisor).
(e) the foregoing provisions do not relieve the driver of an authorized emergency vehicle from the duty of driving with due regard for the safety of all persons, nor do such provision protect the driver from the consequences of his reckless disregard for the safety of others.
The operation of an authorized emergency vehicle does not relieve the driver from the responsibility of driving with due regard for the safety of all persons.
Any Department vehicle operator who is involved in an accident while responding to an emergency situation will be required to justify his actions.
When responding to an emergency situation or assignment, the sworn Department vehicle operator of a marked vehicle will:
2. adhere to basic traffic safety practices.
3. operate the vehicle at a speed and in a manner compatible with weather and local conditions to ensure that control of the vehicle is maintained at all times."
Officer Lee testified that she was not in pursuit of the fleeing suspect and was not "following as a subterfuge" for pursuit in violation of the general order. Rather, she stated that she was attempting to "assist" the other officers who were actually doing the pursuing. Officer Lee admitted, however, that she had never been trained in "assisting."
Officer Lee stated that on the day of the accident she was at the 11th district police station at Kedzie and Harrison with Officer Howard Ray. She said that they had been processing an arrestee and were just leaving the station when they heard a call over the police radio that a homicide suspect in a white van was being pursued on the eastbound lanes of the Eisenhower expressway. Officer Lee acknowledged that the radio dispatcher did not request her participation in the pursuit and that she did not advise her supervisor or the radio dispatcher that she was going to participate in the pursuit. She denied any intention to actively participate in the pursuit and stated that she was not required to advise anyone that she was going to enter the area in which the pursuit was taking place.
Officer Lee testified that, prior to the collision, she and Officer Ray entered the eastbound lanes of the expressway and were traveling for a few minutes when they heard on their police radio that the suspect had turned around and begun to travel in the opposite direction in the westbound lanes. Officer Lee said that they then correspondingly exited the eastbound lanes at Western Avenue and reentered the westbound lanes. She stated that she heard the sirens of other police cars when reentering the expressway, but she was not sure that she saw any of them. She said that she never saw the white van being pursued.
Officer Lee described that when she was entering the westbound expressway, there were "a lot of citizen" cars. She did not change lanes right away, but at some point changed from lane 1, the rightmost lane which she had initially entered, to lane 2, immediately to the left. She stated that she subsequently moved back to lane 1, where the collision occurred. Officer Lee stated that there was traffic "all around" and "they were moving with me." She said that she did not recall whether civilian cars were passing her, but that "they must [have been]. I didn't pay attention to other cars that much." She said that as she was driving on the expressway before the collision, "some cars were going to the right [apparently to yield, but that] some cars were going straight." Officer Lee further stated that at some point prior to the collision she had activated her emergency lights and specifically recalled checking to make sure they were on.
In describing the collision, Officer Lee stated that she had just completed her lane change from lane 2 back to lane 1 when she saw Hudson's car pulling out in front of her from the shoulder. She said she immediately applied the brakes but that she struck the rear of Hudson's car. She said that she lost control of her car after she applied her brakes. In response to questions from plaintiff's counsel about whether anything prohibited her from seeing Hudson's car prior to the collision, she stated: "I was not necessarily looking if someone will merge into my lane from the shoulder." She further stated: "I wasn't looking at the *** lane that I was going in. I was looking at the car in front of me. I looked at the rear mirror, I looked at the side mirror, I looked back. When I knew that it was clear in my lane, I made my lane change." Officer Lee stated that she had been traveling at approximately 45 to 50 miles per hour.
On cross-examination by counsel for the City, Officer Lee stated that at the time of the accident, she believed that the she could help "avert or reduce the seriousness of the situation." She explained:
"It could be as little as traffic control because the offender was going back on and off the expressway going east and west. Citizens are not aware of this. So officers in that area can help the citizens not to get injured *** and also *** it could be that when the officers are affecting arrest on that offender, he might *** grab a girl on the street or citizens on the street, or he could be shooting at people or he could be shooting at officers. I don't know what's going to happen ***. What I know is it was a homicide offender, that he was reasonably believed to be armed, that as many officers' help in that area and listening to or be aware of the progress of the pursuit is necessary."
She further stated that she was trained to "help out" in this manner.
On redirect examination, when asked whether she thought it was okay to violate general order 97-3 and chase the subject, Officer Lee stated: "I did not chase the suspect." She further denied that she was attempting to catch up to the pursuit. She also stated that when she entered the expressway, the pursuit was a half mile to a mile away and that she was "hoping that she [could be] of assistance."
Plaintiff next called Jason Lococo, an Illinois State Police trooper, to testify, who testified that he arrived at the scene of the collision shortly before fire personal and paramedics arrived.
He stated that when he arrived Hudson's vehicle was overturned on the shoulder, but he did not recall the location of Officer Lee's vehicle. After being shown photographs, he stated that Officer Lee's vehicle was facing northeast -- in the opposite direction of the flow of traffic. He noted that the majority of the damage to Officer Lee's vehicle was to the left front portion and that there was damage to its left side of Hudson's vehicle.
Officer Lee's partner, Officer Ray, was next to testify. He stated that on May 7, 2001, he and Officer Lee heard a radio dispatch about a white van being pursued on the 290 (Eisenhower) expressway. He acknowledged that they were not directed or instructed by dispatch to participate in the pursuit, but that they took it upon themselves to do so.
Officer Ray stated that as he and Officer Lee entered the westbound expressway, he could see that there were "a number" of police cars chasing the white van. He acknowledged that neither he nor Officer Lee told dispatch that they saw the pursuit or that they were going to participate in it. He said by the time he and Officer Lee entered the expressway, the actual pursuit was several blocks ahead. He said that there was civilian traffic on the road and that they had to maneuver into different lanes as a result of the traffic in front of them. Officer Ray denied that he and Officer Lee were attempting to apprehend the suspect, averring that they were "intending to assist the officers."
Officer Ray stated that he did not see Hudson's vehicle until right before the impact and that he did not recall seeing it move from the right shoulder in front of their vehicle. He said that he and Officer Lee were in lane 2 or 3 before the crash.
On cross-examination, Officer Ray stated that assisting other officers was part of his duties. He further described that when there is a pursuit of a homicide suspect
"we are able to assist in the pursuit or assist the officers. For instance, say a chase has ended in the offender stopping the vehicle, jumping out of the car. At that point, they may need assistance for information from the neighborhood people explaining where the guy went, and that's where I would come in at. Or they need assistance in apprehending the offender due to the fact he may be able to run fast or he's agile, and that's where I would come in at as far as assisting. Or canvassing the area to apprehend the offender."
He further stated that police officers are not supposed to wait for a supervisor to tell them to assist other officers.
With regard to the minutes preceding the accident, Officer Ray stated that he saw the white van being pursued as he and Officer Lee entered the westbound expressway. He said that Officer Lee did not try to catch up with the pursuit and that she was not traveling at a high rate of speed. He said that they were not in pursuit but that he considered himself an "assistant to the pursuit." He further stated that their vehicle's flashing lights and sirens were on at all times.
On redirect, Officer Ray estimated that Officer Lee was traveling approximately 50 or 55 miles per hour at the time of the accident. He stated that he could not recall whether he or Officer Lee engaged the vehicle's lights, but he knew they were on. However, he later stated that he could not recall if the emergency lights were on.
Lieutenant Carolyn Jackson testified that at the time of the accident she was a field lieutenant and a watch commander. She stated that she was familiar with the police department general orders regarding pursuits. She stated that officers who are "actively involved in pursuit" are actively trailing a suspect's vehicle. She acknowledged that if Officers Lee and Ray left their positions and entered the expressway with their lights and siren on and the pursuit was directly in front of them and they were trailing it, that would mean they were actively engaged in the pursuit. She said that if Officers Lee and Ray were assisting in apprehending a suspected felon, they were required under department policy and procedure to advise dispatch; however, she stated that it was likely that dispatch had ordered radio silence in order to keep contact with the people who were actually doing the pursuit. Lieutenant Jackson also stated that it is a police officer's duty to assist in the apprehension of a fleeing homicide suspect if in the same geographic area. Finally, Lieutenant Jackson stated that in her review of the incident, she learned that 12 to 15 police vehicles were involved in the pursuit.
The jury was next shown the videotaped deposition of an eyewitness, Denise Patrick, who testified that on May 7, 2001, she was standing outside the 290 Lounge, which is located on the south side of the Eisenhower expressway between Homan and Central Park Avenues. Patrick stated that while she was standing outside, she heard sirens and then saw flashing lights on the expressway. She stated that she could see that the police were involved in a chase but could not see who was being pursued. After seeing this pursuit from her vantage outside the 290 Lounge, Patrick went over to the gate that separated the expressway from the street.
Patrick stated that, from that position, she saw a collision, describing that "one car was trying to get over to the shoulder when a police car come from the far left and all the way up to the right and hit him, like right to *** the back of his car almost." She stated that just the front part of Hudson's car was on the shoulder at the point of the impact. She said that the police car was in the far left of the four lanes when she first saw it and that it was going 55 to 65 miles per hour. She said Hudson's car was going approximately 10 miles per hour. She said that the police car "jumped from the [far] left lane" to the far right lane and stated that she did not know why it did so, because the left lane from which the car "jumped" was not impeded by traffic. She further stated the police car struck the back of Hudson's car as he was "approaching to get off on the shoulder."
On cross-examination, Patrick admitted that prior to witnessing the accident she had consumed about four drinks of alcohol. She further acknowledged that she may have previously stated that the police car she witnessed had its emergency lights on at the time of the accident.
Plaintiff next called Dr. Mariusz Ziejewski as an expert witness. Dr. Ziejweski reported that he has a Ph.D. in mechanical engineering and is a member of the faculty of the college of engineering at North Dakota State University. He stated that he is a member of the Society of Automotive Engineers and has presented several peer-reviewed papers in the area of impact analysis to automotive structures. He explained that "impact analysis" involves the "analysis of how vehicle structure deforms when sudden force is applied, in a car collision or in other event."
Dr. Ziejewski explained that he was hired by plaintiff's counsel to "perform engineering analysis and explain how the accident *** occurred, how the vehicles collided, and what happened dynamically to the vehicles as a result of the collision." He stated that the materials he reviewed in reaching his opinion included the traffic crash report, depositions of the police officers involved, the deposition of Hudson, and multiple photographs.
Dr. Ziejewski explained that from the photographs he observed damage to left front of the police vehicle and damage to the entirety of Hudson's vehicle. He noted that the extensive damage to Hudson's vehicle was attributable to the fact that the vehicle had rolled over and made his analysis as to how the accident occurred much more difficult. However, he was able to observe specific damage to the left front quarterpanel and to the left corner of the bottom corner of the bumper.
Dr. Ziejewski determined that the initial point of impact on the police vehicle was at its left front corner. He further stated that the initial point of impact on Hudson's vehicle was at its rear left quarterpanel. He specifically ruled out the possibility that the initial point of impact on Hudson's vehicle was at its rear bumper, explaining that the nature of the damage, which was an indented, v-shape, would not match the initial point of impact at the left front of the police vehicle, which was essentially a straight edge. Dr. Ziejewski further noted that the police vehicle ended up facing against the direction of traffic.
Dr. Ziejewski opined that right before the initial impact, Hudson's vehicle was basically pointing to the west, with "some angulation," and that Officer Lee's vehicle was pointing in the opposite direction at some angle. He stated that the left front corner of the police vehicle struck the left rear quarterpanel of Hudson's vehicle. Dr. Ziejewski then demonstrated to the court and jury, using model vehicles, how such an impact would occur.
Dr. Ziejewski further explained that he had created a computer simulation of the accident using the "ED-SMAC" computer program. To run the program, he input the characteristics of the two vehicles involved as well as the road characteristics. He explained the simulation as a graphical representation of physics and stated that the computer program solves the engineering equations to show you how the vehicles would move. He distinguished his computer simulation from animation, explaining that the latter involves merely what you can envision, "like cartoons, with no science behind it."
The computer simulation shown to the jury depicts five lanes of traffic, with the rightmost lane representing the shoulder of the expressway. The car representing Officer Lee's vehicle starts the simulation in the leftmost lane, it starts a hard turn to the right and spins nearly 180 degrees before it contacts the vehicle representing Hudson's vehicle in the shoulder lane. The left front of the police vehicle, which is, at this point, facing opposite the direction of traffic, strikes the left rear of Hudson's vehicle, and then a second impact occurs between the left rear of the police vehicle and the left front of the Hudson vehicle.
On cross-examination by the City, Dr. Ziejewski insisted that a vehicle traveling westbound in dry conditions would require more than one lane's width to spin and end up facing in a northeasterly direction. He agreed that to create the computer simulation, he had to input certain data and that to represent the police vehicle he used data pertaining to a Chevrolet Monte Carlo although the vehicle was actually a Chevrolet Caprice.
He further acknowledged that the computer simulation starts with the police vehicle traveling at a 10-degree angle north of due west and that he then had the vehicle make a "very hard right turn," with the steering wheel at 180 degrees, explaining that there had "to be additional dynamic instability factors," and that he "had to have the police care out of control at the beginning of the run. Otherwise, [it] will never turn around that way." He further stated that, after the turn, he input that the brakes were applied with 50% braking power to the front wheels and 100% braking power to the rear wheels. He explained that if the rear wheels are locked, a car will be less stable in a turn, and the rear of the car will be more likely to "come sliding out and not make the turn with the rest of the car."
Dr. Ziejewski admitted that the year and model of Officer Lee's car were listed as having antilock brakes, but he stated that he did not know whether the police department had removed that feature on Officer Lee's car. Dr. Ziejewski further stated that the simulation had Hudson's vehicle going straight before the accident despite the testimony that it was going slightly to the right. He further acknowledged that the simulation had Hudson's vehicle turning to the right after the impact although Hudson could not recall making any such movement.
Dr. Ziejewski acknowledged that there was no record of skid marks in the material he reviewed and that, normally, such evidence would help in determining speed and direction.
The court instructed the jury on willful and wanton conduct as follows: "When I use the expression 'willful and wanton conduct' I mean a course of action which shows an utter indifference to or a conscious disregard for a person's own safety and the safety of others." The court further stated:
"The plaintiff claims that he was injured and sustained damage and that the conduct of the defendant was willful and wanton in one or more of the following respects:
a. Failed to operate the police car at a speed and in a manner compatible with conditions to ensure that control of the police car was maintained at all times, in violation of General Order 97-3;
b. improperly engaged in caravanning when it was not safe to do so, in violation of General Order 97-3;
c. improperly participated in a pursuit when she was not authorized to do so, in violation of General Order 97-3;
d. in violation of General Order 97-3, drove the police car without due regard for the safety of all persons on the highway, including Vernon Hudson;
e. failed to maintain control over the police car;
f. executed a lane change striking Vernon Hudson's motor vehicle; and
g. in violation of General Order 97-3, failed to adhere to basic traffic safety practices by moving into lane No. 1 when it was not safe to do so;
h. in violation of General Order 97-3, used the activity of following as a subterfuge for a vehicle pursuit;
j. failed to abandon the vehicle pursuit when it was the most reasonable course of action, in violation of General Order 97-3."
The jury was given two special interrogatories. The first asked: "Did Officer Lee act willfully and wantonly at or about the time of the occurrence?" The second asked: "Was Officer Lee executing and enforcing the law at or about the time of the occurrence?"
During closing arguments, Hudson's attorney made the following comment regarding the second special interrogatory: "Ladies and gentlemen, if you're for Vernon, you will answer this special interrogatory no." Counsel also argued that the evidence supported the conclusion that Officer Lee was not enforcing the law. Defense counsel objected to the comment regarding how the jury should answer the interrogatory, and the trial court sustained, admonishing the jury to "disregard that argument."
On March 21, 2005, the jury returned a verdict for Hudson on both counts. In addition, the jury answered the first special interrogatory, regarding whether Lee was willful and wanton, in the affirmative, and the second interrogatory, regarding whether Lee was enforcing the law, in the negative. Thereafter, the trial court entered a judgment on the verdict in the amount of $17,682,374.05.
On May 20, 2005, the City brought a posttrial motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court denied the motion on July 26, 2005, and the City filed a timely notice of appeal on August 24, 2005.
On appeal, the City raises several arguments. The City first contends that it is entitled to judgment as a matter of law because it is immune from liability for negligence under the Tort Immunity Act and because Officer Lee's conduct was not willful and wanton. With regard to the negligence count, the City does not purport to challenge the jury's finding of negligence; rather, the City contends that it was entitled to judgment as a matter of law on the grounds of immunity. Alternatively, the City contends that a new trial is warranted on the negligence count because Hudson's attorney told the jury the effect of answering the special interrogatory which asked whether Officer Lee was enforcing the law. With regard to the willful and wanton count, the City contends it was entitled to judgment as a matter of law because there was insufficient evidence to support the allegation, and because Hudson's expert's testimony and computer simulation in support of that count were improperly admitted. The City finally contends that, in the alternative, it is entitled to a new trial on the willful and wanton count because the admission of the computer simulation was prejudicial and because the jury instructions on willful and wanton conduct were misleading.
Hudson generally disputes all of the City's contentions and additionally contends that any error regarding willful and wanton count would be rendered moot by virtue of the jury's finding with regard to the negligence count. Hudson further points out that the City has never contended that the jury's answers to the special interrogatories were against the manifest weight of the evidence and it has, therefore, waived any objections to those findings. Finally, with regard to his attorney's comments about the special interrogatory, Hudson contends that the trial court cured any error in that comment by immediately sustaining the City's objection and instructing the jury to disregard the comment.
A. The City's Motion for Judgment Notwithstanding the Verdict on the Negligence Count
We first address the City's contention that it was entitled to judgment notwithstanding the verdict on the negligence count because it was immune under the Tort Immunity Act. A judgment non obstante veredicto, or judgment n.o.v., should be entered where all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 504, 229 N.E.2d 504, 510 (1967). We review rulings on judgments n.o.v. de novo. Townsend v. University of Chicago Hospitals, 318 Ill. App. 3d 406, 409, 741 N.E.2d 1055, 1057 (2000).
The City contends that sections 2-202 and 2-109 of the Tort Immunity Act apply in this case to defeat Hudson's claim of negligence. Section 2-202 states: "A public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct." 745 ILCS 10/2-202 (West 2004). Section 2-109 states: "A local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable." 745 ILCS 10/2-109 (West 2004). According to the City, it is immune from liability because Officer Lee was executing or enforcing the law when the accident occurred and she was not acting willfully or wantonly.
Our supreme court has often explained that the Tort Immunity Act "is in derogation of the common law action against local public entities, and must be strictly construed against the public entity involved." Aikens v. Morris, 145 Ill. 2d 273, 278, 583 N.E.2d 487, 490 (1991); Rio v. Edward Hospital, 104 Ill. 2d 354, 362, 472 N.E.2d 421 (1984). The immunity provided by section 2-202 does not extend to all activities of police officers while on duty, but only to acts or omissions while in the actual execution or enforcement of a law. See Arnolt v. City of Highland Park, 52 Ill. 2d 27, 33, 282 N.E.2d 144, 147 (1972); Fitzpatrick v. City of Chicago, 112 Ill. 2d 211, 221, 492 N.E.2d 1292, 1296 (1986); Aikens, 145 Ill. 2d at 278, 583 N.E.2d at 490. The question of whether a police officer is executing and enforcing the law is a factual determination which must be made in light of the circumstances involved in each case. Arnolt, 52 Ill. 2d at 35, 282 N.E.2d at 148-49. However, where the evidence is undisputed or susceptible to only one possible interpretation, the question may be decided as a matter of law. Simpson v. City of Chicago, 233 Ill. App. 3d 791, 792, 599 N.E.2d 1043, 1044 (1992); Sanders v. City of Chicago, 306 Ill. App. 3d 356, 361, 714 N.E.2d 547, 551 (1999).
The question as to what activities can be deemed to constitute executing or enforcing the law appears to have been determined on a case-by-case basis. In Fitzpatrick, our supreme court held that investigating a traffic accident constituted an execution or enforcement of the law. Fitzpatrick, 112 Ill. 2d at 221, 492 N.E.2d at 1296. In that case, the plaintiff was in a minor automobile accident with another driver on the Stevenson expressway. Fitzpatrick, 112 Ill. 2d at 215, 492 N.E.2d at 1293. Plaintiff and the other driver pulled their cars onto the median and, shortly thereafter, the police officer defendant pulled his car a few feet behind one of the cars. Fitzpatrick, 112 Ill. 2d at 215, 492 N.E.2d at 1293. While plaintiff and the police officer were examining the damage to one of the cars, a vehicle driven by a third party struck the parked police car, causing it to strike the plaintiff. Fitzpatrick, 112 Ill. 2d at 215, 492 N.E.2d at 1294. In discussing whether the police officer was executing or enforcing the law at the time of plaintiff's injury for purposes of determining whether the defendant's were immunized under section 2-202, our supreme court explained:
" '[e]nforcing the law is rarely a single, discrete act, but is instead a course of conduct.' [Thompson v. City of Chicago, 108 Ill. 2d 429, 433 (1985).] *** Thus, where the evidence establishes that at the time of his alleged negligence a public employee was engaged in a course of conduct designed to carry out or put into effect any law, an affirmative defense based upon section 2-202 and 2-109 of the Tort Immunity Act [citation] should be available to the governmental employee and his employer." Fitzpatrick, 112 Ill. 2d at 221, 492 N.E.2d at 1296.
The supreme court then determined that defendants were entitled to a directed verdict because, even when viewing the evidence in a light most favorable to plaintiff, it was clear that the police officer, who had observed and responded to a traffic accident, was in the process of executing or enforcing applicable traffic laws at the time plaintiff's injury occurred. Fitzpatrick, 112 Ill. 2d at 222, 492 N.E.2d at 1297.
Similarly, in Morris v. City of Chicago, 130 Ill. App. 3d 740, 474 N.E.2d 1274 (1985), the court found that an officer who was responding to a radio report of a crime in process was executing or enforcing the law. There, plaintiff brought suit against the city and a police officer for injuries sustained when his parked car was struck by the officer's police car. Morris, 130 Ill. App. 3d at 741, 474 N.E.2d at 1276. The court found that immunity applied because, at the time of the accident, there was an "unbroken effort" on the officer's part to respond to the call and thereby execute and enforce the law. Morris, 130 Ill. App. 3d at 744, 474 N.E.2d at 1278. The court further rejected plaintiff's contention that the officer could not be said to be executing or enforcing the law because he did not actually see a crime being committed. Morris, 130 Ill. App. 3d at 743, 474 N.E.2d at 1277.
In Bruecks v. County of Lake, 276 Ill. App. 3d 567, 658 N.E.2d 538 (1995), plaintiff brought negligence claims against Lake County and a deputy sheriff alleging that while he was crossing a road on foot, he was struck and injured by the deputy's police car. Bruecks, 276 Ill. App. 3d at 568, 658 N.E.2d at 539. Defendants claimed immunity under section 2-202 and 2-109, contending that when the accident occurred, the deputy was responding to a report of shots fired. Bruecks, 276 Ill. App. 3d at 568, 658 N.E.2d at 539. The trial court granted defendants' motion for summary judgment and plaintiff appealed. Bruecks, 276 Ill. App. 3d at 568, 658 N.E.2d at 539. The appellate court affirmed, finding that the deputy was executing or enforcing the law at the time of the accident and that the defendants were, therefore, immune. Bruecks, 276 Ill. App. 3d at 569, 658 N.E.2d at 540. The court noted: "[The deputy] was responding to a call of shots fired. He clearly was being called upon to execute or enforce a law. The facts that he was not specifically dispatched to the scene, did not have his emergency lights and siren activated, and did not subjectively consider the situation to be an emergency do not alter this conclusion. The cases in which immunity has been found applicable do not require that the officer be engaged in an emergency response." Bruecks, 276 Ill. App. 3d at 569, 658 N.E.2d at 539.
On the other hand, there is an extensive line of cases that has held that ordinary police activities do not qualify as enforcement or execution of the law so as to be protected by section 2-202 immunity. For example, in Aikens, our supreme court found that the act of transporting prisoners did not constitute an execution or enforcement of the law that would immunize the city of Evanston and one of its police officers from the plaintiff's claims of negligence. Aikens, 145 Ill. 2d at 286, 583 N.E.2d at 494. The court noted that unlike the police officers' conduct in other cases where immunity was found to apply, the police officer's conduct in its case "was not shaped or affected in any manner by the nature of duties in either enforcing or executing law." Aikens, 145 Ill. 2d at 286, 583 N.E.2d at 494. The court explained:
"[V]irtually every police function or duty is pursuant to some legal authorization in the broadest sense. [Citation.] Arguably, then the performance of any task while on duty is in enforcement or execution of the law. We do not believe, however, as we have previously stated, that the legislature intended such a result." Aikens, 145 Ill. 2d at 285, 583 N.E.2d at 493.
In Simpson, a police car driven by a Chicago police officer struck and seriously injured a 10-year-old girl riding a bicycle. Simpson, 233 Ill. App. 3d at 792, 599 N.E.2d at 1044. The police officer and the City of Chicago claimed immunity under section 2-202, contending that the police officer was enforcing the law at the time of the accident in that he was on his way to an address where someone had called to report a missing person. Simpson, 233 Ill. App. 3d at 792, 599 N.E.2d at 1044. The trial court granted summary judgment to defendants and the appellate court reversed, noting that the police officer "did not consider the call an emergency and there was no indication that any crime had been committed or that any law required execution or enforcement." Simpson, 233 Ill. App. 3d at 793, 599 N.E.2d at 1044. The court further rejected plaintiff's contention that filling out a missing persons report constituted executing the law, noting that although the police officer's "activities were governed by some legal requirement, [it was] insufficient to raise [those activities] to the level of executing or enforcing the law." Simpson, 233 Ill. App. 3d at 793, 599 N.E.2d at 1045.
In Leaks v. City of Chicago, 238 Ill. App. 3d 12, 606 N.E.2d 156 (1992), a police officer was cruising in a patrol car when he saw several people standing in front of and in the hallway of an apartment building. Leaks, 238 Ill. App. 3d at 14, 606 N.E.2d at 157. The officer testified that he suspected that the people he observed were engaged in illegal drug trade. Leaks, 238 Ill. App. 3d at 14-15, 606 N.E.2d at 157. While reversing his car to further investigate, the officer struck the plaintiff's vehicle and, allegedly, injured the plaintiff. Leaks, 238 Ill. App. 3d at 15, 606 N.E.2d at 158. At trial, the officer and the City raised the affirmative defense of immunity, contending that the officer was enforcing the law at the time of the accident. Leaks, 238 Ill. App. 3d at 14, 606 N.E.2d at 157. On appeal, the court found that the officer was not executing the law, noting that there was "absolutely no indication that [the officer] observed the exchange of any money or the transfer of any drugs, or for that matter any crime at all. *** What remains is a record which only shows several people standing in front of and in the hallway of an apartment building on a summer evening, a common occurrence in most every neighborhood." Leaks, 238 Ill. App. 3d at 17, 606 N.E.2d at 159.
Similarly, in Sanders, a Chicago police officer heard an emergency call that another officer had been attacked. Sanders, 306 Ill. App. 3d at 359, 714 N.E.2d at 550. The officer then proceeded to travel to the area in his squad car; however, shortly thereafter, the police dispatcher confirmed over the police radio that the original officers involved did not need further backup. Sanders, 306 Ill. App. 3d at 359, 714 N.E.2d at 550. About one minute after the radio dispatch, the responding police officer's car struck and killed a child crossing the street. Sanders, 306 Ill. App. 3d at 360, 714 N.E.2d at 551. The appellate court found that the officer and the City were not entitled to summary judgment on the basis of section 2-202 immunity, noting that a jury could find that the emergency was over at the time the accident occurred and that the officer "was merely cruising around in his car" -- an activity not subject to immunity. Sanders, 306 Ill. App. 3d at 361, 714 N.E.2d at 552.
In this case, it is undisputed that a police pursuit was in progress, that Officer Lee heard about the pursuit over her police radio, and that she and Officer Ray then entered the expressway to take part in some manner. Officers Lee and Ray denied taking part in the actual pursuit in violation of the police department general order which limited pursuits to two police vehicles but characterized their involvement as "assistance." When asked to explain what she meant by "assistance," Officer Lee testified that it could include something "as little as traffic control," or that she could be needed to assist if the suspect were to "grab a girl on the street or citizens on the street, or he could be shooting at people or he could be shooting at officers." Officer Ray similarly testified that his and Officer Lee's "assistance" could have been needed if the suspect were to leave his vehicle and flee on foot. He stated that in such an event, he and Officer Lee could then assist by gathering "information from the neighborhood people," or by "apprehending the offender due to the fact he may be able to run fast or he's agile," or "canvassing the area to apprehend the offender."
It is clear that had Officer Lee been actually providing traffic control at the time of the accident, section 2-202 immunity would apply. See Fitzpatrick,112 Ill. 2d at 221, 492 N.E.2d at 1296 (investigating traffic accident constituted executing or enforcing the law). There is also little doubt that had Officer Lee merely been on her way to provide traffic control, immunity would apply. See Morris, 130 Ill. App. 3d at 744, 474 N.E.2d at 1277 (immunity applied where officer was on his way to area where a crime was in progress); Bruecks, 276 Ill. App. 3d at 569, 658 N.E.2d at 539 (immunity applied where police officer was on his way to area where shots were fired). Likewise, it is clear that had the vehicle pursuit ended and had the lead officers then requested backup due to the suspect taking a hostage or shooting at the police, Officer Lee's travel to that area would be covered by the immunity in section 2-202. See Sanders, 306 Ill. App. 3d at 361, 714 N.E.2d at 552. (responding to a call for assistance from other officers covered by section 2-202 immunity). Finally, there can be no dispute that had Officer Lee been attempting to apprehend the suspect with the permission of her supervisors she would have been immune from negligence under section 2-202.
However, under the evidence presented, the jury was free to conclude that none of these scenarios occurred in this case. Officers Lee and Ray specifically denied that they were trying to apprehend the suspect. Moreover, there was no specific indication in the record that traffic control was actually required or requested or that the officers engaged in the actual pursuit required or requested backup. The only law that was in actual need of enforcement related to the apprehension of the criminal suspect, and Officer Lee explicitly denied that she was taking part in that enforcement. Thus, the jury could have concluded that Officer Lee was not involved in enforcing or executing the law, but was merely making herself available to enforce or execute the law should the need arise.*fn4 The mere fact that a police officer acts on the speculation that she may be required to enforce or execute some, as yet, undetermined law is not enough to activate the immunity set forth in section 2-202. Thus, there was no immunity from negligence in Leaks, where the officer merely had a suspicion that drug laws required enforcement because there was no specific indication that any law was actually being broken. Leaks, 238 Ill. App. 3d at 17, 606 N.E.2d at 159. Similarly, here, Officer Lee's explanation for her actions amounted merely to suspicion that an undetermined law might need enforcing. Moreover, the situation here is even more removed from the actual enforcement or execution of law because, unlike in Leaks, where the officer suspected that drug laws were being broken, the hypothetical situations described by Officer Lee that might have required her to enforce the law were far less focused in that they spanned from traffic control to dealing with a gunman with a hostage.
Furthermore, that Officer Lee was not enforcing or executing any law is additionally supported by the fact that she was aware of the departmental rules prohibiting her from joining the pursuit, caravanning with the pursuing officers, or from following as a subterfuge for pursuit. Moreover, the evidence showed that 12 to 15 other police vehicles were already involved in the pursuit. Thus, despite her explanations to the contrary, the jury may have found that Officer Lee was not on the expressway to enforce the law, but was merely following the pursuit out of personal interest in the outcome or some unofficial camaraderie with her fellow officers who were leading the pursuit. Therefore, viewing the evidence in a light most favorable to Hudson, we cannot say that the jury erred in determining that Officer Lee was not enforcing or executing the law at the time of the collision. Pedrick, 37 Ill. 2d at 504, 229 N.E.2d at 510. Accordingly, we must affirm the trial court's refusal to grant the City judgment n.o.v. on the negligence count.
B. The City's Motion for a New Trial on the Negligence Count
The City, however, alternatively contends that it is entitled to a new trial on the negligence count because plaintiff's attorney told the jury how to answer one of the special interrogatories. During closing arguments plaintiff's, counsel stated:
"The judge wants to have you answer the following question: Was Officer Lee executing and enforcing the laws at the time of the occurrence?
That's what we went over earlier when we were talking about their affirmative defense where they're trying to claim this was an emergency.
Ladies and gentlemen, I respectfully submit to you that the answer to this question is no, Officer Lee was not enforcing the law at or about the time of the occurrence.
Ladies and gentlemen, if you're for Vernon, you will answer this special interrogatory no.
The evidence is overwhelming that the City has not met their burden of proof. And that's what it is. We each have burdens of proof in this case. The City has to establish their burden of proof that Officer Lee, that there was that probability that we talked about of there being an apprehension.
The City has their burden of proof. It's not our responsibility to rebut it.
We spent a lot of time on it and I think the evidence is overwhelming that we have rebutted it. The City has not met their burden of proof and, based on that failure, we ask you to check off no, Officer Lee was not executing or enforcing the law."
The City claims that it is entitled to a new trial based upon the excerpt of this closing argument where counsel said: "[I]f you're for Vernon, you will answer this special interrogatory no."
Generally, we will not reverse a trial court's refusal to grant a new trial unless the court abused its discretion. Maple v. Gustafson, 151 Ill. 2d 445, 455, 603 N.E.2d 515 (1992). Similarly, "[t]he scope of closing argument is within the sound discretion of the trial court and the reviewing court will reverse only if the argument is prejudicial." Eaglin v. Cook County Hospital, 227 Ill. App. 3d 724, 732-33, 592 N.E.2d 205, 211 (1992).
This issue was addressed by our supreme court in Sommese v. Mailing Brothers, Inc., 36 Ill. 2d 263, 222 N.E.2d 263 (1966). In that case, plaintiff's counsel told the jury that a special interrogatory had been "slipped in" by defendant's counsel and that the jury should harmonize its answer to the interrogatory with the verdict so as not " 'to deprive this woman of any right to recovery.' " Sommese, 36 Ill. 2d at 266, 222 N.E.2d at 470. Although defendant made no objection to the statement until it brought a posttrial motion, the supreme court held that the argument improperly informed the jury of the source of the interrogatory and defeated the purpose of a special interrogatory by advising the jury to conform its answer to its verdict so as to protect the verdict without regard to the evidence. Sommese, 36 Ill. 2d at 266-67, 222 N.E.2d at 470. The court explained:
"It is generally recognized that the function of a special interrogatory is to require the jury's determination as to one or more specific issues of ultimate fact and is a check upon the deliberations of the jury. 'Special interrogatories are used for the purpose of testing the general verdict against the jury's conclusions as to the ultimate controlling facts.' [Citation.]" Sommese, 36 Ill. 2d at 267, 222 N.E.2d at 470.
The court further stated:
"It is clear that plaintiff's attorney improperly alerted the jury to the fact that its decision to assess damages would be nullified by an affirmative answer to the interrogatory. Thus, the safeguard against a jury awarding damages out of passion or prejudice or sympathy without first making specific factual determinations and then applying the law thereto was thwarted." Sommese, 36 Ill. 2d at 267-68, 222 N.E.2d at 470.
The court then concluded that the error was prejudicial and mandated a new trial. Sommese, 36 Ill. 2d at 268, 222 N.E.2d at 470.
The supreme court again addressed this issue in Batteast v. Wyeth Laboratories Inc., 137 Ill. 2d 175, 560 N.E.2d 315 (1990). In that case, plaintiff's counsel told the jury on two occasions that if it "wanted to award the plaintiffs damages from the defendant drug company, its answer to the interrogatory would have to be that the hospital was not the sole cause of the injuries." Batteast, 137 Ill. 2d at 185-86, 560 N.E.2d at 320-21. The trial court denied defense counsel's objection to the statements and did not issue a cautionary instruction. The supreme court noted that it is improper to inform a jury of the necessity of conforming its answer to a special interrogatory with its general verdict, but that it is proper to urge a jury to answer a special interrogatory in accordance with the evidence. Batteast, 137 Ill. 2d at 186, 560 N.E.2d at 321. The supreme court then determined that although counsel did not expressly state that the jury's answer to the special interrogatory had to be consistent with the verdict, neither did he argue that the jury should base its answer on the evidence. Batteast, 137 Ill. 2d at 186, 560 N.E.2d at 321. Rather, the court noted, counsel's argument was that the jury had to answer the special interrogatory in a certain way if the jury wanted to make an award in favor of the plaintiff. Batteast, 137 Ill. 2d at 186, 560 N.E.2d at 321. The court determined the argument to be improper; however, it nevertheless avoided making a final determination based on that language since it found that a new trial was warranted for other reasons. Batteast, 137 Ill. 2d at 186, 560 N.E.2d at 321. Moreover, although the court deemed the statement in its case improper, it upheld the appellate decision in Levin v. Welsh Brothers Motor Service, Inc., 164 Ill. App. 3d 640, 518 N.E.2d 205 (1987), where a similar statement was deemed to be permissible. Batteast, 137 Ill. 2d at 186, 560 N.E.2d at 321.
In Levin, plaintiff's counsel advised the jury that if it answered "yes" to a special interrogatory which asked whether plaintiff's negligence was the sole proximate cause of his injuries, there could be no verdict for plaintiff. Levin, 164 Ill. App. 3d at 651, 518 N.E.2d at 212. The plaintiff's counsel argued that had he not been interrupted by defendant's objection to his statement, he would have explained to the jury that the reason there could not be a verdict for the plaintiff if they answered "yes" was that, if plaintiff's negligence were the sole proximate cause of his injury, that would mean the plaintiff had failed to prove his case and could not recover. Levin, 164 Ill. App. 3d at 651, 518 N.E.2d at 212. The appellate court noted that, unlike in Sommese, plaintiff's counsel did not state the source of the special interrogatory, he did not state that the answer thereto would supersede the verdict, and he did not bid the jury to harmonize its verdict with its answer to the interrogatory. Levin, 164 Ill. App. 3d at 652, 518 N.E.2d at 213. The court further noted that although counsel's statement could be construed as advising the jury of the "legal effect" of its answer, it was equally plausible that counsel was "merely advising the jury of the answer's logical 'effect' -- namely, that in contrast to a situation of comparative negligence, if the sole negligence were Levin's then Levin could not recover against anyone else." Levin, 164 Ill. App. 3d at 652, 518 N.E.2d at 213. The court then held that "[i]n view of the ambiguity and brevity" of the statement, "as well as the *** cautionary instruction by the trial judge," the trial court did not commit reversible error in denying a mistrial. Levin, 164 Ill. App. 3d at 652, 518 N.E.2d at 213.
The supreme court in Batteast distinguished its facts from those in Levin by noting that, unlike in that case, the improper statement was made twice, the trial court denied defendant's objection to plaintiff's statement regarding the special interrogatory, no cautionary instruction was given, and the statement was not ambiguous. Batteast, 137 Ill. 2d at 186, 560 N.E.2d at 321.
We find the instant facts to be more similar to those in Levin than those in Batteast.
In this case, as in Levin, plaintiff's counsel did not solicit the jury to harmonize its answer to be consistent with the verdict (as was the case in Sommese), nor did he delineate or emphasize the need to answer the special interrogatory with a "no" if the jury wanted to award plaintiff damages. Although counsel briefly stated "if you're for Vernon, you will answer *** no," when taken in full context, as set forth above, the thrust of counsel's argument centered upon the weight of the evidence favoring that answer wherein counsel emphasized to the jury that based upon the evidence presented and in the light of the City's burden of proof, an answer of "no" was required. As noted, just prior to and following the objected to statement, Hudson's attorney emphasized that the evidence supported the conclusion that Officer Lee was not enforcing the law. He also emphasized that it was the City's burden to prove its affirmative defense that Officer Lee was enforcing the law and, therefore, immune. Such comment on a special interrogatory is permissible.
This result was recognized in O'Connell v. City of Chicago, 285 Ill. App. 3d 459, 674 N.E.2d 105 (1996), where the court explained:
"The decisions describe the two sides of the line that has been drawn: plaintiff's lawyer may ask the jury for a certain answer to the interrogatory, based on the evidence, and that jury may be told a contrary answer will mean no recovery for the plaintiff. But the line is crossed when jurors are told to harmonize or conform their interrogatory answer with their general verdict, or, as was done in this case, when jurors are told inconsistency would mean the plaintiff's case is not proved. That is impermissible linkage." O'Connell, 285 Ill. App. 3d at 467, 674 N.E.2d at 111.
Accord Kosinski v. Inland Steel Co., 192 Ill. App. 3d 1017, 1028, 549 N.E.2d 784, 790-91 (1989) (new trial not required where counsel stated: " 'If you listen to what negligence is and what he was doing, *** if you answer that interrogatory any way other than no, then you are saying the accident is [plaintiff's] fault and he can't recover,' " because statement properly asked jury to answer the interrogatory based on the evidence and did not tell jury its award of damages would be nullified by a "yes" answer to the interrogatory); Burns v. Howell Tractor & Equipment Co., 45 Ill. App. 3d 838, 848, 360 N.E.2d 377, 385 (1977) (new trial not required where counsel stated: " 'if you answer that Interrogatory any way than "no," then you are saying, "It is his fault and he can't recover" ' "); Moore v. Checker Taxi Co., 133 Ill. App. 2d 588, 273 N.E.2d 514 (1971) (new trial not required where counsel stated: "If you believe he was not guilty of negligence that caused this accident, you should answer no to [the interrogatory], because if [plaintiff] was guilty of negligence, then he can't recover ***"). Accordingly, we cannot find that the trial court abused its discretion in denying the City's motion for a new trial on this basis.
C. The City's Motion for Judgment Notwithstanding the Verdict on the Willful and Wanton Count
The City next contends that the evidence adduced at trial was insufficient for the jury to reach a finding of willful and wanton conduct, noting that the only evidence regarding Officer Lee's conduct prior to the accident consisted of the testimonies of Officers Lee and Ray, the testimony of the witness Patrick, and the testimony and computer simulation of plaintiff's expert, Dr. Ziejewski. The City contends that the trial testimony did not support a finding of willful and wanton conduct and that the computer simulation was improperly admitted. Therefore, the City argues that, as with the negligence count, it was entitled to judgment n.o.v.
We note that the jury's award to Hudson, which did not include punitive damages, can be sustained by our affirmance of the negligence count alone. See Moore v. Jewel Tea Co., 46 Ill. 2d 288, 294, 263 N.E.2d 103, 106 (1970) ("It is settled law that where several causes of actions are charged and a general verdict results, the verdict will be sustained if there are one or more good causes of action or counts to support it"). Nevertheless, for the reasons discussed below, we additionally find that the jury was also free to side with Hudson on the willful and wanton count.
Section 1-210 of the Tort Immunity Act defines willful and wanton conduct as: "a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property." 745 ILCS 10/1-201 (West 2004). Our supreme court has recently recounted that willful and wanton conduct " ' "approaches the degree of moral blame attached to intentional harm, since the defendant deliberately inflicts a highly unreasonable risk of harm upon others in conscious disregard of it." ' [Citation.]" Murray v. Chicago Youth Center, 224 Ill. 2d 213, 237, 864 N.E.2d 176, 190 (2007), quoting Burke v. 12 Rothschild's Liquor Mart, Inc., 148 Ill. 2d 429, 448, 593 N.E.2d 522 (1992). The court further noted that willful and wanton conduct is " 'quasi-intentional' " and is qualitatively different from negligence. Murray, 224 Ill. 2d at 237, 864 N.E.2d at 190, quoting Burke, 148 Ill. 2d at 450, 593 N.E.2d 522. The question of whether an injury has been inflicted by willful and wanton conduct is a question of fact to be determined by a jury. Murray, 224 Ill. 2d at 236, 864 N.E.2d at 189.
The City argues that Dr. Ziejewski's testimony and computer simulation were improper and that, in the absence of that evidence, there was insufficient other evidence remaining to support the jury's finding of willful and wanton conduct. As shall be discussed below, we do not consider Dr. Ziejewski's testimony and computer simulation improper; however, we also disagree with the City's conclusion that, in the absence of that evidence, the jury could not have found Officer Lee's conduct willful and wanton. As noted, Officer Lee testified that she was driving within the speed limit at 45 to 50 miles per hour, that her emergency lights were activated, and that she had changed lanes from lane 2 to lane 1 when Hudson's car pulled out in front of her from the shoulder. She stated that she applied the brakes once she saw Hudson's car and that she then lost control. She also stated: "I was not necessarily looking if someone will merge into my lane from the shoulder. *** I wasn't looking at the lane that I was going in, I was looking at the car in front of me." Officer Ray's testimony was similar Officer Lee's in many respects; however, he expressed some uncertainty as to whether the vehicle's emergency lights were activated and he also said that the police vehicle was in lane 2 or 3 before the collision. Patrick testified that Officer Lee's vehicle was traveling at 55 to 65 miles per hour, that Hudson's vehicle was traveling at 10 miles per hour and that just the front of Hudson's vehicle was on the shoulder at the time of the accident. She further stated that Officer Lee's vehicle "jumped from the left lane" all the way to the right even though there was nothing obstructing Officer Lee's forward progress.
Thus, considering solely this evidence (to the exclusion of Dr. Ziejewski's testimony and simulation, which the City objects to), the jury was free to disbelieve the City's position that Hudson pulled out in front of Officer Lee's vehicle while she was turning into lane 1 from lane 2. Likewise, the jury was free to give great weight to Officer Lee's admission that she was not "looking at the lane that [she] was going in," as well as to Patrick's description that Officer Lee's vehicle "jumped" from lane 4 to lane 1 for no apparent reason. These testimonies are not the strongest conceivable evidence of willful and wanton conduct. Thus, viewing the evidence in a light most favorable to Hudson, we cannot conclude that the jury in this case was unreasonable in reaching such a conclusion. See Pedrick, 37 Ill. 2d at 504, 229 N.E.2d at 510. The jury may well have concluded that in failing to look at the lane she was merging into and in "jumping" multiple lanes of traffic, Officer Lee was acting with utter indifference to or in conscious disregard for the safety of others. Although, there was testimony that there was nothing obstructing Officer Lee from continuing forward in her lane, she testified that there were multiple civilian cars present with her on the expressway. Thus, the jury may have concluded that Officer Lee's actions in crossing multiple lanes of traffic at once under such conditions without looking at the lane she was traveling into was a deliberate infliction of an unreasonable risk of harm upon those civilians, including Hudson. See Murray, 224 Ill. 2d at 237, 864 N.E.2d at 190. This conclusion is sustainable even in the absence of Dr. Ziejewski's testimony and computer simulation, to which the City has objected. Accordingly, we affirm the trial court's denial of the City's motion for judgment n.o.v. on this count.
D. The City's Motion for a New Trial on the Willful and Wanton Count
1. Expert Testimony and Computer Simulation
However, the City also contends that it is entitled to a new trial on the willful and wanton count because Dr. Ziejewski's testimony and computer simulation were prejudicial.*fn5 The City argues that the computer simulation lacked a sufficient factual basis, pointing out that Dr. Ziejewski input several variables into the computer program he used to create the simulation that were not supported by any evidence, namely that Dr. Ziejewski used the wrong make and model of vehicle to represent Officer Lee's vehicle; that the simulation starts with Hudson's vehicle going straight despite testimony that it was moving to the right; that Officer Lee's vehicle starts at 10 degrees off due west despite there being no testimony to that effect; that Officer Lee's vehicle spins nearly 180 degrees before the impact despite there being no testimony to that effect, that Officer Lee's brakes were applied in a certain manner (50 percent to the front and 100 percent to the rear) despite there being no supporting testimony or physical evidence regarding the vehicle's braking system; and that Hudson steered his car to the right after the impact. In this regard, the City contends that Dr. Ziejewski's computer simulation was not sufficiently based on data from the record and was, therefore, prejudicial. We disagree.
Generally, the opinion testimony of an expert is admissible if the expert is qualified by knowledge, skill, experience, training, or education in a field that has at least a modicum of reliability, and if the testimony would aid the jury in understanding the evidence. Wiegman v. Hitch-Inn Post of Libertyville, Inc., 308 Ill. App. 3d 789, 799, 721 N.E2d 614, 623 (1999). The admission of an expert's testimony lies within the sound discretion of the trial court. Wiegman, 308 Ill. App. 3d at 799, 721 N.E2d at 623. We will not reverse an erroneous ruling unless the error was prejudicial or the result of the trial has been materially affected. Stricklin v. Chapman, 197 Ill. App. 3d 385, 388, 554 N.E.2d 658, 660 (1990).
An expert's opinion is only as valid as the reasons for the opinion. Soto v. Gaytan, 313 Ill. App. 3d 137, 146, 728 N.E.2d 1126, 1132-33 (2000). Reconstruction testimony is testimony that seeks to recreate an accident, including "who hit whom, where was the impact and how fast the parties were going as determined by skid marks, debris, and damage to the vehicles." Finfrock v. Eaton Asphalt Co., 41 Ill. App. 3d 1020, 1023, 355 N.E.2d 214 (1976); Stricklin,197 Ill. App. 3d at 389, 554 N.E.2d at 660-61. In order for reconstruction testimony to be admissible, there must be sufficient data about the accident in evidence to provide a reasonable basis for the expert's opinion. J. Corkery, Illinois Civil & Criminal Evidence §702.111, at 408 (2000). "The trial court is not required to blindly accept the expert's assertion that his testimony has an adequate foundation. Rather, the trial court must look behind the expert's conclusion and analyze the adequacy of the foundation." Soto, 313 Ill. App. 3d at 146, 728 N.E.2d at 133. See also Dyback v. Weber, 114 Ill. 2d 232, 244, 500 N.E.2d 8 (1986) ("An expert witness' opinion cannot be based on mere conjecture and guess"); Modelski v. Navistar International Transportation Corp., 302 Ill. App. 3d 879, 886, 707 N.E.2d 239 (1999) (expert's opinions based on guess, speculation, or conjecture as to what the witness believed might have happened are inadmissible).
In support of its position, the City cites Hiscott v. Peters, 324 Ill. App. 3d 114, 754 N.E.2d 839 (2001). However, we find that case inapposite. In Hiscott, plaintiff brought suit against defendants for injuries sustained in an automobile accident. Hiscott, 324 Ill. App. 3d at 117, 754 N.E.2d at 842. At trial, plaintiff called Seyfried, a traffic accident reconstructionist, as an expert witness. Hiscott, 324 Ill. App. 3d at 118, 754 N.E.2d at 844. Seyfried testified that he had reviewed the accident report, which included a number of measurements of skid marks and a gouge mark in the pavement at the scene of the accident. Hiscott, 324 Ill. App. 3d at 118, 754 N.E.2d at 844. He also reviewed photographs of the accident scene, the vehicles, and several depositions. Hiscott, 324 Ill. App. 3d at 118, 754 N.E.2d at 844. Based on these observations, he testified to the movement of the vehicles involved in the accident, including that defendant "was faced with an emergency situation and that his vehicle likely went into a 'yaw' once it left the gravel shoulder and returned to the pavement." Hiscott, 324 Ill. App. 3d at 122, 754 N.E.2d at 847. Defendant argued that it was error to permit Seyfried to testify as to the path his vehicle took when there was no physical evidence to support the opinion. Hiscott, 324 Ill. App. 3d at 122, 754 N.E.2d at 847. The appellate court agreed, noting that contrary to the expert's opinion, there was no evidence that defendant's vehicle was " 'yawing' " or that defendant was braking at the time of the accident. Hiscott, 324 Ill. App. 3d at 122, 754 N.E.2d at 847. The court further noted: "There was simply no *** factual basis to support Seyfried's opinion because there was insufficient physical evidence to provide him with the basic data needed to reconstruct the accident." Hiscott, 324 Ill. App. 3d at 124, 754 N.E.2d at 848. The court concluded that because Seyfried's testimony related directly to the central controversies in the case, namely, how the accident took place, that testimony could not be said to have had no effect on the outcome of the trial and that it may have "tipped the scales" for the jury. Hiscott, 324 Ill. App. 3d at 124, 754 N.E.2d at 848.
In contrast, there was sufficient factual basis in this case for Dr. Ziejewski to reach his conclusions. Although he used data from a Monte Carlo rather than a Caprice in his simulation, he explained that he adjusted the characteristics of the car within the computer program to conform with the characteristics of the police car. His conclusion that Officer Lee's vehicle traversed four lanes of traffic before striking Hudson's vehicle is support by Patrick's testimony that Hudson's vehicle was "trying to get over to the shoulder when [Officer Lee's vehicle] come from the far left and all the way up to the right and hit him, like right to *** the back of his car almost." Moreover, Dr. Ziejewski's assertion that Officer Lee made a hard right turn prior to the collision is supported by Patrick's testimony that vehicle "jumped" across the lanes. Although there was no direct testimony that Officer Lee's vehicle had spun nearly 180 degrees before the collision, that conclusion is supported by the undisputed evidence that the police vehicle, which was originally heading in the same westward direction as plaintiff's vehicle, came to rest facing in nearly the opposite direction. Finally, although there was no testimony to support Dr. Ziejewski's assertion regarding the application and locking of Officer Lee's brakes, that hypothesis was supported by the evidence that Officer Lee's vehicle traveled across multiple lanes and spun nearly 180 degrees.
Arguably, however, even if we were to agree with the City that the computer simulation was insufficiently founded, the jury could have reached its finding of willful and wanton even without Dr. Ziejewski's computer simulation. Essentially, the computer simulation added emphasis to the conclusion warranted by the testimonial evidence that Officer Lee lost control of the vehicle and had begun to spin prior to hitting Hudson. As noted, Officer's Lee and Ray testified that their vehicle started in lane 2 or 3 and ended up facing opposite the direction of traffic -- creating a sufficient basis for inference as to how their vehicle came to reach its final position. Moreover, although Patrick did not articulate in her testimony that Officer Lee's vehicle spun nearly 180 degrees before the collision, her testimony that the vehicle "jumped" across the lanes, and that it came "from the far left and all the way up to the right," is certainly consistent with and helpful to corroborate that conclusion. In sum, we cannot say that the admission of Dr. Ziejewski's testimony and computer simulation was erroneous or, in any event, that it would necessitate a new trial.
2. Willful and Wanton Issue Instruction
The City finally contends that it is entitled to a new trial because the jury was improperly instructed that willful and wanton conduct could include conduct akin to ordinary negligence and that violation of police department rules should be deemed willful and wanton. As noted, the jury was instructed that willful and wanton conduct involves "a course of action which shows an utter indifference to or a conscious disregard for a person's own safety and the safety of others." This definition is essentially the same as the pattern jury instruction for willful and wanton conduct (see Illinois Pattern Jury Instructions, Civil, No. 14.01 (2000) (hereinafter IPI Civil (2000)) and is not objected to by the City. Rather, the City objects to the trial court's subsequently given issues instruction regarding Hudson's claims on the willful and wanton count. The City first contends that subparagraphs d, e, and f failed to take into account the state of mind required for willful and wanton conduct and implied that the jury could find willful and wanton conduct for acts that would normally only amount to negligence. Therefore, the City concludes that it was error to include these allegations in the issue instruction. We disagree.
The decision to grant or deny a jury instruction is within the trial court's discretion. Sanders, 306 Ill. App. 3d at 364, 714 N.E.2d at 554. The standard for determining whether the trial court abused its discretion is whether, taken as a whole, the instructions fully, fairly and comprehensively informed the jury of the relevant legal principles. Sanders, 306 Ill. App. 3d at 364, 714 N.E.2d at 554. As a general rule, a judgment will not be reversed where the jury instructions are faulty unless they mislead the jury and the complaining party suffered prejudice. Dabros v. Wang, 243 Ill. App. 3d 259, 269, 611 N.E.2d 1113, 1120 (1993).
The issue instruction given in this case was based on IPI Civil (2000) No. 20.01 , which states:
"The plaintiff further claims that he was injured and sustained damage and that the conduct of the defendant was willful and wanton in one or more of the following respects:
[Set forth in simple form without undue emphasis or repetition those allegations of the complaint as to willful and wanton conduct which have not been withdrawn or ruled out by the court and are supported by the evidence.]" (Bracketed material original).
The instruction actually given in this case conforms with the pattern instruction. It included the same first sentence as the pattern instruction and then, as directed, it set forth the allegations of Hudson's complaint as to willful and wanton conduct. The first sentence of the instruction itself made clear that the jury had to determine whether any of the enumerated allegations were true and whether they amounted to willful and wanton conduct. As noted, the jury was given the correct definition of willful and wanton. Moreover, a subsequently given burden of proof instruction further clarified that the jury had to determine whether the allegations in the issue instruction amounted to willful and wanton conduct. That instruction explained that it was Hudson's burden to prove "the defendant acted or failed to act in one of the ways claimed by the plaintiff as stated to you in these instructions and that in so acting, or failing to act, the defendant was willful and wanton." (Emphasis added.) IPI CIVIL (2000) No. B21.02.02.
In addition, the City's objection to the format of this issue instruction is contradicted by its own alternate submission. The very same deficiency it now contends is present in the given instruction, namely, that the allegations failed to take proper account of the state of mind involved in willful and wanton conduct, was present in the alternate instruction the City proffered at the instructions conference. In fact, in its alternate instruction, the City submitted an instruction identical to plaintiff's subparagraph f in the very same format.
The City's argument with regard to subparagraph d is slightly more compelling. As noted, that allegation stated Officer Lee "drove the police car without due regard for the safety of all persons on the highway" (emphasis added). The City contends that failing to use "due regard" is synonymous with negligence and the instruction, therefore, confused the jury as to the definition of willful and wanton. In support, the City cites Sanders, where the court noted that section 11-205(e) of the Illinois Vehicle Code (625 ILCS 5/11-205(e) (West 2004)), which uses the phrase "due regard," imposed a duty to refrain from negligence. Sanders, 306 Ill. App. 3d at 362, 714 N.E.2d at 552. While we agree with the City that use of the term "due regard" in a willful and wanton issue instruction is questionable even where it so appears in the pleading, we do not believe the use of the phrase in this case was misleading or prejudicial. See Dabros, 243 Ill. App. 3d at 269, 611 N.E.2d at 1120.
The term "due regard" was never mentioned in the negligence jury instructions and was only referenced by plaintiff's attorney during closing arguments where he defined the term as referring to reckless behavior. While discussing the various allegations in the willful and wanton count, Hudson's attorney stated that subparagraph d alleged that Officer Lee "was in violation of the general order, [in that she] drove the police car without due regard for the safety of all the persons on the highway, including Vernon Hudson." He then explained: "[T]hat means, like we heard in the general order, we can't drive reckless. That's what reckless means, you can't be heedless; you can't be unaware of what's going on and go ahead anyway." Thus, despite the connection made between "due regard" and the negligence standard of ordinary care in various sources outside the scope of this trial, the jury in this case was presented with an explanation of the allegation consistent with the willful and wanton definition. As Hudson's attorney explained, failure to use due regard meant being reckless or being unaware of what's going on, but going anyway. This is consistent with the definition of willful and wanton conduct, which includes having conscious disregard for the safety of others. Thus, we cannot conclude that the jury in this case was misled by the use of the phrase "due regard" or that the City was thereby prejudiced.
The City further contends that the willful and wanton issue instruction was erroneous in that it suggested in seven of the nine allegations that violation of the police department general order constituted willful and wanton conduct per se. We agree that countermanding a police department general order does not constitute negligence or willful and wanton conduct per se. This has been established in Morton v. City of Chicago, 286 Ill. App. 3d 444, 454, 676 N.E.2d 985, 992 (1997). However, Morton implicitly indicates that a violation of an internal police department rule can constitute some evidence of willful and wanton conduct. The court in that case stressed that violation of a police department general order would not "in and of itself" constitute willful and wanton conduct, that the jury could have found that there was a valid reason for the officer in that case to not following the general order, and that "the violation of self-imposed rules or internal guidelines *** does not *** alone constitute evidence of negligence, or beyond that, wilful and wanton conduct. [Citation.]" Morton, 286 Ill. App. 3d at 454, 676 N.E.2d at 992. Thus, Morton impliedly stands for the proposition that, although a violation of an internal rule will not automatically constitute willful and wanton conduct, a jury may considere it along with other evidence in reaching a determination of willful and wanton conduct. Therefore, the jury here could have found that Officer Lee's failure to abide the general order by caravanning or pursuing the suspect or failing to adhere to basic traffic safety practices was willful and wanton under the particular circumstances of this case.
Moreover, we cannot agree that this instruction was confusing or prejudicial when considered in light of the jury instructions as a whole. See Harden v. Playboy Enterprises, Inc., 261 Ill. App. 3d 443, 453, 633 N.E.2d 764, 771 (1993) ("Jury instructions are to be viewed as a whole and reversible error occurs only when serious prejudice to a right to a fair trial has been proven"). As noted above, the jury was correctly instructed as to the definition of willful and wanton conduct, as well as to Hudson's burden of proof with regard to the allegations in the issue instruction. Thus, it was clear that in order to find for plaintiff, the jury not only had to believe one or more of the allegations in the willful and wanton issue instruction, but it also had to determine that the conduct alleged qualified as willful and wanton. Therefore, we reject the City's contention that the willful and wanton issue instruction misled the jury into thinking that violation of the police department general order constituted willful and wanton conduct per se.
Moreover, we note that the City may well have failed to preserve any objection it would have to the given jury instructions by not tendering a correct alternate instruction in the court below. See Deal v. Byford, 127 Ill. 2d 192, 202-03, 537 N.E.2d 267, 271 (1989) ("To preserve an objection to a jury instruction a party must both specify the defect claimed and tender a correct instruction"). After objecting to the instruction tendered by plaintiff, the City proffered the following instruction as an alternate:
"The plaintiff claims that he was injured and sustained damage and that the conduct of the defendant was willful and wanton in one or more of the following respects:
a. Failed to operate the motor vehicle at a speed and in a manner compatible with conditions to ensure that control of the motor vehicle is maintained at all times;
b. Executed a lane change striking Vernon Hudson's motor vehicle."
Along with reference to the police department general order, this instruction omitted plaintiff's allegations that Officer Lee was willful and wanton for caravanning, for participating in the pursuit, for failing to maintain control over her car, for moving into lane 1 when it was not safe to do so, for following as a subterfuge for pursuit, and for failing to abandon the pursuit. This conduct was placed in issue and could have constituted willful and wanton conduct if perpetrated with utter indifference to or a conscious disregard for the safety of others. As noted, the pattern jury instruction requires that the allegations of the complaint be set forth unless they have been withdrawn, ruled out by the court, or are not supported by the evidence. IPI Civil (2000) No. 20.01.01. The City has not contended, nor can it, that any of the allegations of the issue instruction were excluded or ruled out by the court. Nevertheless, the City omitted those alleged acts from its proffered instruction and thereby failed to provide a sufficient alternate instruction to preserve its objection. See Deal, 127 Ill. 2d at 202-03, 537 N.E.2d at 271.
For all the foregoing reasons, we affirm judgment of the trial court. Affirmed.
FITZGERALD SMITH, P.J., and McNULTY, J., concur.