September 7, 2007; withdrawn and opinion filed December 14, 2007
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. ...