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Freeman v. City of Chicago

Court of Appeals of Illinois, First District, First Division

March 13, 2017

SHERI DENISE FREEMAN, as Independent Administrator for the Estate of TOMMYE RUTH FREEMAN, Deceased, Plaintiff-Appellee,
THE CITY OF CHICAGO, a Municipal Corporation, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 09 L 1068 Honorable Edward S. Harmening, Judge Presiding.

          JUSTICE MIKVA delivered the judgment of the court, with opinion. Justice Harris concurred in the judgment and opinion. Presiding Justice Connors concurred in part and dissented in part, with opinion.


          MIKVA JUSTICE.

         ¶ 1 Defendant City of Chicago (City) appeals from the entry of a jury verdict in favor of plaintiff Sheri Denise Freeman, the administrator of her mother Tommye Ruth Freeman's estate. On July 3, 2008, Tommye Freeman was struck by a vehicle driven by Rodney Jones after Chicago police officers John Kennedy and Dan Passarelli had attempted to pull over Mr. Jones. Mr. Jones sped away from the officers and drove through a red light at the intersection of 76th and State Streets, striking Tommye Freeman, who subsequently died from her injuries. On appeal, the City contends that (1) the circuit court erred in not granting its motion for judgment notwithstanding the verdict because the evidence at trial demonstrated that Officer Kennedy's actions were not the proximate cause of Tommye Freeman's injuries and (2) it is entitled to a new trial because the jury's verdict was the product of coercion. For the following reasons, we affirm.

         ¶ 2 BACKGROUND

         ¶ 3 Sheri Freeman filed a lawsuit in January 2009 on behalf of the estate of her mother, Tommye Freeman, alleging a claim against the City based on the willful and wanton conduct of its police officers, pursuant to both the Wrongful Death Act (740 ILCS 180/1 et seq. (West 2008)) and the Survival Act (755 ILCS 5/27-6 (West 2008)).

         ¶ 4 The jury trial began on June 18, 2015. The evidence presented at trial demonstrated that on July 3, 2008, Officers John Kennedy and Dan Passarelli of the Chicago police department (CPD) attempted to pull over the occupants of a white SUV when the driver of the SUV, Rodney Jones, accelerated away westbound down 78th Street, which is a one-way eastbound street. Officer Kennedy, who was driving the squad car, drove behind the SUV, also going the wrong way down 78th Street before turning onto State Street with the flow of traffic. When the SUV reached 76th and State Streets, it collided with Tommye Freeman's vehicle, resulting in the injuries that lead to Tommye Freeman's death.

         ¶ 5 A. Testimony of Officer John Kennedy

         ¶ 6 Counsel for Sheri Freeman first called Officer Kennedy as an adverse witness. Officer Kennedy agreed to the following facts. At approximately 6:30 p.m. on July 3, 2008, he and his partner, Officer Passarelli, were near 78th Street and Langley Avenue when they were waved down by a man. Officer Kennedy stopped his squad on the side of 78th Street, a one-way eastbound street, to speak with the man, who told the officers that his home had been burglarized. At that time, a white SUV slowly came out of a nearby alleyway, turned right, and proceeded westbound on 78th Street. The man who had waved them down told the officers that the occupants of the SUV had burglarized his home. Officer Kennedy attempted to pull over the SUV by activating his lights and siren and making a u-turn but, as he was attempting to maneuver behind the SUV, the driver of the SUV accelerated away from the officers, continuing westbound on 78th Street. Officer Kennedy followed the SUV on 78th Street, also going the wrong way down this one-way street, still with his oscillating lights activated and intermittently using his siren.

         ¶ 7 Between Langley Avenue and State Street, 78th Street runs through a residential neighborhood. That stretch of 78th Street is a little less than one mile long and has stop signs for eastbound traffic at 11 or 12 intersections. The SUV did not stop at the intersections as it continued west on 78th Street. Officer Kennedy "slow[ed] at some" intersections, "and if there was traffic [he] stopp[ed]." The speed limit on 78th Street is 25 miles per hour and, although Officer Kennedy exceeded the speed limit, he said the SUV was traveling "at a much faster rate" of speed than he was. Officer Kennedy did not know what his highest rate of speed was because he "never looked at [his] speedometer, " but stated that he "was not going at a fast rate [of speed] on 78th Street."

         ¶ 8 Officer Kennedy lost sight of the SUV after it turned right onto State Street from 78th Street. Officer Kennedy also turned right onto State Street and deactivated his lights and siren because he was no longer traveling against the direction of traffic. Officer Kennedy stopped when he noticed the accident at 76th and State Streets. At its maximum distance, the SUV was about four blocks ahead of Officer Kennedy's squad car. A video recording from the BP gas station at the intersection where the accident occurred was played at trial and showed both the crash and Officer Kennedy arriving at the scene about 30 seconds later.

         ¶ 9 Although Officer Kennedy acknowledged that he was violating traffic laws as he drove westbound down 78th Street, he stated that he was "authorized" to do so under certain circumstances, including during the emergency operation of his vehicle or during a pursuit. Officer Kennedy testified that, as a police officer, he knows it is his "duty, obligation, and responsibility" to recognize that motor vehicle pursuits are serious and that engaging in a pursuit is "inherently dangerous" because it poses a risk of injury or death to the officer, to the person being pursued, and to the general public. CPD General Order 03-02 defines a "motor vehicle pursuit" as an "active attempt" by a police officer to apprehend a driver of a vehicle who, "having been given a visual and audible signal by the officer" in an attempt to pull the driver over, "fails or refuses to obey such direction" and "flees or attempts to elude the officer." Officer Kennedy acknowledged that he is responsible for recognizing when a pursuit is not appropriate and that, when determining whether to engage in a pursuit with another vehicle, officers are supposed to conduct a balancing test that weighs "the necessity to immediately apprehend the suspect" against the "inherent risk of pursuit" to the general public.

         ¶ 10 Officer Kennedy testified that he engaged in that balancing test on July 3, 2008, and that, "within a block or two" of his beginning to follow the SUV, he determined that "a pursuit would be prohibited." Officer Kennedy testified that he was therefore not "in pursuit" of the SUV because he "was not actively trying to apprehend the operator of that vehicle." Instead, he was monitoring the direction of the SUV as it was fleeing. Officer Kennedy testified that had he actively intended to pursue and apprehend the offenders, he "would have been increasing [his] speed, trying to get up behind that vehicle, [and] be a lot closer to that vehicle."

         ¶ 11 B. Testimony of Andrew J. Scott, III

         ¶ 12 Andrew J. Scott, III, testified for Sheri Freeman as an expert on police practice and procedures. Mr. Scott began working in law enforcement in 1977 and worked as a police officer at the North Miami Beach Police Department from 1982 until he retired as the assistant chief in 1998. He then served as the chief of police at the Boca Raton Police Department until 2006, when he began expert witness consulting. Mr. Scott testified that, in preparation for his testimony in this case, he reviewed a great deal of material, including an audio recording of a 9-1-1 call from the day of the accident. On the recording, a woman, Gernell Austin, stated that she was almost struck by a white SUV that was going approximately 80 miles per hour near Vernon Avenue and 78th Street, about four or five blocks west of where the police first began following the SUV.

         ¶ 13 Mr. Scott testified further that motor vehicle pursuits are inherently dangerous because, when an officer engages a suspect in pursuit, the driver being pursued will not want to be caught, "[a]nd some individuals drive so recklessly, so carelessly, they wind up killing individuals- innocent individuals." Mr. Scott stated that termination of a pursuit requires a police officer to stop and turn off his lights and siren because "the odds are the individual being pursu[ed] is going to see that he's no longer being chased and will probably go back into the mode of traffic or get off the main highway or get off of a side street and drive in a relatively normal fashion."

         ¶ 14 Mr. Scott was of the opinion that on July 3, 2008, the officers were engaged in a motor vehicle pursuit as defined by CPD policy. It was also Mr. Scott's opinion that the actions of Officers Kennedy and Passarelli were willful and wanton when they ignored traffic control signals and drove above the speed limit in a "predominantly *** residential area." In Mr. Scott's opinion, the officers' willful and wanton conduct was a contributing factor in the collision and, if the officers had not pursued the SUV or had disengaged from their pursuit of it, the collision at 76th and State Streets would not have occurred. Mr. Scott stated that, "[w]ithout a doubt, but for their actions, [Tommye] Freeman would probably be alive."

         ¶ 15 On cross-examination, Mr. Scott admitted that less than two minutes passed between when the SUV left the alley and when it crashed at 76th and State Streets. Mr. Scott agreed that the distance covered by the vehicles in the instant case was fairly short for a pursuit, because the "average pursuit is approximately two miles, if not a little bit more." In addition, he agreed that once a chase is terminated, the majority of fleeing drivers would begin to drive normally "within a matter of minutes."

         ¶ 16 C. Other Trial Witnesses

         ¶ 17 Sheri Freeman and Shevaz Freeman, the daughter and adopted daughter of Tommye Freeman, testified about their relationship with their mother and the day they learned of her death.

         ¶ 18 Dr. Kimberly Nagy, the doctor who treated Tommye Freeman after the accident, testified about Tommye Freeman's injuries that were caused by the accident. Dr. Nagy also stated that Tommye Freeman died as a result of those injuries.

         ¶ 19 The City presented no witnesses.

         ¶ 20 D. Jury Deliberations and Verdict

         ¶ 21 The jury began deliberating at 4:20 p.m. on June 23, 2015. At 5:42 p.m., the jury had not yet reached a verdict and the circuit court dismissed the jury until 9:30 a.m. the next day.

         ¶ 22 The following day, at approximately 1:38 p.m., the jury sent a note to the circuit court asking, in part, "What happens if we can't reach a unanimous decision?" The court's response read: "No further information in response to above request will be provided. Please continue to deliberate. Thank you, the Court."

         ¶ 23 At approximately 4:50 p.m., the circuit court received word that the jury had reached a verdict. The jury found in favor of Sheri Freeman and awarded her $2, 118, 000. The jury also answered two special interrogatories, stating that the jury found that Officer Kennedy did "engage in a course of conduct which showed an utter indifference to or a conscious disregard for the safety of others" and that the City's conduct was a proximate cause of Tommye Freeman's injuries and death. The verdict and the two interrogatories were all signed by each of the 12 jurors.

         ¶ 24 Counsel for the City requested that the jury be polled. The first seven jurors polled answered affirmatively when asked "was this and is this now your verdict." The eighth juror polled, however, had the following exchange with the court:

"THE COURT: Catherine M. McConaghy, was this and is this now your verdict?
JUROR McCONAGHY: No, your Honor.
THE COURT: This is not your verdict?
JUROR McCONAGHY: It was-it wasn't in the beginning. We had to sign the paper at the end because we were told we wouldn't be let out of the room.
THE COURT: Okay. Is it your voluntary verdict?
JUROR McCONAGHY: Under duress."

         The court polled the remaining four jurors, who responded to the court's question in the affirmative, then returned to Ms. McConaghy:

"THE COURT: Yeah, your signature appears on Verdict Form A, Special Interrogatory No. 1 and ...

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