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James Fenton, Special Administrator v. the City of Chicago

January 17, 2013

JAMES FENTON, SPECIAL ADMINISTRATOR
HENRY FENTON, DECEASED,
PLAINTIFF-APPELLEE,
v.
THE CITY OF CHICAGO, A MUNICIPAL CORPORATION,
DEFENDANT-APPELLANT.



Appeal from the for the Estate of Circuit Court of Cook County 06L7956 Honorable James M. Varga Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Lavin

PRESIDING JUSTICE LAVIN delivered the judgment of the court, with opinion. Justices Fitzgerald Smith and Pucinski concurred in the judgment and opinion.

OPINION

¶ 1 In this appeal, we are asked to consider whether a jury rightly held the City of Chicago (the City) liable for the actions of two of its police officers. Those officers twice responded to the 911 calls of Henry Fenton (Fenton) related to a violent argument, only to remove the agitator, Rovale Brim (Rovale), from the premises in zero-degree weather in the middle of the night, with instructions to wait outside for at least an hour before his girlfriend would give him a ride to another location. Only minutes after the officers left him on the sidewalk, a block from the scene, Rovale returned home where he beat and stabbed Fenton, his mother's boyfriend, leading to Fenton's death. After a lengthy jury trial, which notably included an expert witness who testified critically about the conduct of the officers, the jury returned a verdict in excess of $2 million. The jury's verdict also included answers to special interrogatories which substantiated its finding that the involved officers acted wilfully and wantonly in their official activities.

¶ 2 The lawsuit of plaintiff James Fenton (plaintiff), special administrator for Fenton's estate, was premised upon the Illinois Domestic Violence Act of 1986 (the Act) (750 ILCS 60/101 et seq. (West 2002)), on the theory that Fenton was an "abused person" and that the officers' failure to arrest Rovale was markedly inconsistent with their duties under the Act. At trial and in this court, the City argues that the Act was not applicable to these events, that its officers were not in any way wilful and wanton in the discharge of their duties and that none of their conduct could be properly described as proximately causing the unfortunate murder of Fenton. We affirm.

¶ 3 FACTUAL BACKGROUND

¶ 4 All of the events in this domestic disturbance took place after 1:30 a.m. on March 4, 2002, at a residence on the south side of Chicago, where Fenton lived with his girlfriend, Valerie Brim (Valerie), and her 22-year-old son, Rovale. At 1:37 a.m., Fenton called 911 and requested that police come to their home, telling the operator that there was "violence *** violent things going on" involving his girlfriend's son. The operator classified the call as a "domestic disturbance," which is dubbed a very high priority response for police officers. Four minutes later, Valerie made another call regarding the same incident and, at that time, Chicago police department (CPD) officers Morgan and Roberts were dispatched, arriving approximately eight minutes later at 1:49 a.m.

¶ 5 When they arrived, the officers were confronted with an angry, drunken and boisterous Rovale, who was yelling at Valerie, while making violent, jerky movements with a bottle in his hand. Valerie was also apparently drinking. The officers managed to separate the two individuals after five minutes or so, while Fenton sat off to the side. The officers spoke with Valerie, who informed them that Rovale had been arguing with Fenton over Rovale's use of the telephone and the fact that he was unemployed. Officer Morgan asked Valerie whether they wanted Rovale to be arrested. She said that she and Fenton did not want Rovale to be arrested, but requested that he be put in his basement bedroom. Shortly thereafter, Officer Roberts escorted Rovale to his bedroom, apparently while Rovale was still in an agitated state. During this first interaction, the officers did not perform a name check on Rovale, who was a registered sex offender. Officer Roberts talked to Fenton for all of 10 seconds during the encounter, which lasted approximately 15 minutes.

¶ 6 At 2:30 a.m., Fenton again called 911. The operator sent it to dispatch, which received the call shortly thereafter, with the officers being dispatched at 2:32 a.m. Officers Roberts and Morgan arrived more than 30 minutes later, essentially to the same drama as before, with Fenton seated on some stairs and the Brims arguing in a loud and boisterous fashion. This time, Valerie told the officers that Rovale had to be removed from the residence because he had gotten into another argument with Fenton. Rovale was asked to leave the home, which he did, indicating that his girlfriend would pick him up in an hour or so and take him to her home. The outside temperature was said to be zero degrees. Officer Morgan testified that he and Officer Roberts could not drive Rovale to his girlfriend's home, which was nearly nine miles distant, and also testified that the area was too busy to allow them to wait with Rovale for his girlfriend to arrive. Officer Roberts testified that Rovale turned down his offer of a ride to the train station. Neither officer talked to Fenton, and Officer Roberts specifically denied knowing that there was a dispute between Fenton and Rovale.

¶ 7 Rovale was seen only a block away from the home as the officers left the area. Just six minutes later, Fenton made his final call, urgently telling the operator that Rovale was going to break into the home. The officers were again dispatched, only to find Fenton stabbed, beaten and unconscious from head trauma. He subsequently died. Rovale was arrested, tried and found guilty of second-degree murder. Detective Thomas Downs, who investigated the beating, learned from the officers that Rovale and Fenton had been arguing about Rovale's use of the phone and his unemployed status. Detective Downs also testified that Valerie told the officers after the second occurrence that her son and Fenton had gotten into another argument.

¶ 8 PROCEDURAL BACKGROUND

¶ 9 Plaintiff filed suit against the City based on the conduct of its police officers, the 911 call takers and the dispatchers. In the complaint, plaintiff alleged that the officers ignored that Fenton was an abused person within the meaning of the Act. Under the Act, police are obligated to utilize "all reasonable means to prevent further abuse" if they suspect that someone has been abused. 750 ILCS 60/304(a) (West 2002). Harassment is included in the definition of abuse in the statute. 750 ILCS 60/103(1) (West 2002).

¶ 10 At trial, the two officers testified about their two interventions with the three people living in the home. Both officers testified that they were unaware of any argument between Rovale and Fenton. As stated, this testimony was severely undermined by the testimony of Detective Downs, who took statements from the officers that indicated they were informed by Valerie on the first visit that Rovale had been arguing with Fenton. On the second visit, Valerie told them that her son had to be removed from the residence because he had gotten into another argument with Fenton. Remarkably, each officer testified that there was not probable cause to arrest Rovale for his actions in the home, even though they asked Fenton and Valerie whether they wanted Rovale to be arrested, which would strongly suggest the existence of probable cause.

¶ 11 This apparent inconsistency was driven home during the testimony of Chief Deputy

Dottie Davis, who plaintiff proffered as an expert on police procedures. Davis's background also included work as a 911 call taker and as a domestic violence trainer. Prior to trial, in a motion in limine, the City attempted to bar Davis's testimony as it related to the issue of probable cause, among other things, on the ground that it was not a proper subject for ...


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