Court of Appeals of Illinois, First District, First Division
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.
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.
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
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
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
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
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
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
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: 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."
court polled the remaining four jurors, who responded to the
court's question in the affirmative, then returned to Ms.
"THE COURT: Yeah, your signature appears on Verdict Form
A, Special Interrogatory No. 1 and ...