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Brown v. The City of Chicago

Court of Appeals of Illinois, First District

June 28, 2019

KATHLEEN BROWN, Plaintiff-Appellant,
THE CITY OF CHICAGO, Defendant-Appellee.

          Appeal from the Circuit Court of Cook County. No. 15 L 006900. Honorable Gregory Wojkowski, Judge Presiding.

          PRESIDING JUSTICE MIKVA delivered the judgment of the court, with opinion. Justices Griffin and Walker concurred in the judgment and opinion.



         ¶ 1 The plaintiff in this case, Kathleen Brown, was lying unconscious in an alley near her home when she was run over by a Chicago Police Department vehicle driven by an on-duty officer. Ms. Brown sued the City of Chicago (City), alleging it was vicariously liable for the officer's conduct. The jury found the officer had not been willful and wanton but returned a verdict in favor of Ms. Brown on her negligence count, in an amount reduced by her own contributory negligence. The City then moved for a judgment notwithstanding the verdict, on the basis that the general verdict was inconsistent with the jurors' affirmative answer to a special interrogatory. The special interrogatory asked whether, "[a]t the time the accident occurred," the officer was "en route to [a] domestic disturbance call" that the officer and his partner were dispatched to just prior to striking Ms. Brown. The City argued, and the trial court agreed, that this was legally equivalent to a finding that the officer was "executing or enforcing" the law at the time of the accident, triggering the qualified immunity provided for in section 2-202 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act or Act) (745 ILCS 10/2-202 (West 2014)).

         ¶ 2 On appeal, Ms. Brown challenges this legal equivalency. She maintains that the special interrogatory did not ask the jury to decide an ultimate question of fact and thus did not serve as a true test of the jury's general verdict. Exercising, as we must, all reasonable presumptions in favor of the general verdict, we agree with Ms. Brown that the jury's verdict in her favor was not absolutely irreconcilable with its determination that the officers in this case were en route to a domestic disturbance call. We reverse the trial court's order granting the City's motion for a judgment notwithstanding the verdict and reinstate the jury's verdict in favor of Ms. Brown.

         ¶ 3 I. BACKGROUND

         ¶ 4 The facts of this case are largely undisputed. On the night of July 2, 2015, the plaintiff, Kathleen Brown, was run over by a Chicago police vehicle in an alley near the intersection of Madison Street and Laramie Avenue. At the time of the accident, Ms. Brown was lying unconscious in the alley. The officer driving the vehicle had turned his headlights off so as not to attract attention as he and his partner patrolled the alley for potential narcotics activity. Just before striking Ms. Brown, the officers received a call from their dispatch to respond to a domestic disturbance. They paused to acknowledge the call and-without turning on the vehicle's headlights, emergency lights, or siren-turned north into another portion of the alley, at which point their vehicle ran over Ms. Brown.

         ¶ 5 Ms. Brown sued the City for the negligence and willful and wanton conduct of the driver, Officer David Potter. The City asserted, as affirmative defenses, contributory negligence, failure to mitigate damages, and immunity under section 2-202 of the Tort Immunity Act. Section 2-202 provides that "[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." Id. The City contended that because Officer Potter "had been dispatched and was en route to a call for a domestic disturbance," he was "executing or enforcing the law," thus triggering the qualified immunity afforded by that section.

         ¶ 6 A. Trial Testimony

         ¶ 7 A first trial in this case, held in November 2017, resulted in a hung jury. A second trial, which is the subject of this appeal, took place over four days in early January 2018. The jury heard from Ms. Brown, Officer Potter, his partner Officer Rory Oliver, police dispatcher Paula Trampus, and Timothy Hicks, the City's accident reconstruction expert. The evidence depositions of several medical professionals were also read to the jury, but transcripts of that testimony do not appear in the record on appeal.

         ¶ 8 Ms. Brown testified that on June 2, 2015, she was living at 56 North Laramie Avenue in Chicago. She and her boyfriend had been out to eat, and she had a few beers. Earlier in the week Ms. Brown had not felt well, and she began to feel ill again later that evening. She took the garbage out and began to walk down the alley to the Walgreens pharmacy on the corner of Latrobe Avenue and Madison Street to get something for her stomach. Ms. Brown explained that there is "a lot of lighting" in that area and "[y]ou can see all the way down the alley." Before she reached the Walgreens, Ms. Brown apparently fell to the ground, unconscious. She awoke sometime later to "a burning sensation" on her face and leg and could not move her legs. Ms. Brown did not know how she came to be lying on the ground or how long she was there, and she did not remember being run over by a police vehicle. The next thing she remembered was waking up in the hospital.

         ¶ 9 Ms. Brown described her extensive injuries for the jury, including broken bones, a crushed pelvis, deep tissue damage and hemorrhaging, third-degree burns requiring multiple skin grafts, and permanent scarring. Ms. Brown underwent six surgeries and months of physical therapy. She still has sharp pains in her left leg, cannot grip or hold anything for very long with her right hand, and has lost some of the sensation in her right leg.

         ¶ 10 Officers Potter and Oliver then gave their account of the night of June 2, 2015. The two were working as beat officers on routine patrol in a marked police vehicle when they saw an individual enter a portion of the alley between Laramie and Latrobe on foot. Although the officers were not aware of any specific criminal activity, there was a building in that area known for drug sales, and Officer Potter "wanted to check it out." He explained that when he is on patrol, he routinely goes through the alleys in the area, "just to make sure that nothing is going on that shouldn't be going on." Officer Potter continued south on Laramie, made a U-turn, and entered another portion of the alley, which he knew from experience intersected with the portion of the alley he was interested in. His vehicle's emergency lights and siren were not activated. The headlights were on but at some point Officer Potter turned them off. He explained that the stretch of alley near the Walgreens parking lot is well lit and he turned his lights off to "minimize [the] vehicle a little bit so people [did not] see [it] and, you know, run, stop what they're doing."

         ¶ 11 When the officers were approximately halfway down the alley, they were dispatched to a domestic disturbance. Officer Oliver explained that "when someone has an emergency or needs police services" and calls 9-1-1, they are connected to the Office of Emergency Management Communications (OEMC), which then dispatches the call to a particular officer or officers. The dispatched assignment is communicated to the officers over the radio and through a computer inside their vehicle. When the domestic disturbance call came in, Officer Potter stopped the vehicle momentarily and used the vehicle's computer touch screen to acknowledge the call. He then began to make a right turn into the north portion of the alley. The vehicle's headlights were still off at this point. Officer Potter explained that the alley was so well lit that it did not occur to him right away to turn his lights back on. He guessed that had he not encountered Ms. Brown, he would have entered the darker part of the alley, realized his lights were still off, and turned them back on. But, he explained, "everything happened so fast."

         ¶ 12 As Officer Potter began to make his turn, he felt "a grinding kind of feeling" and heard someone say "hey." Officer Oliver similarly felt a bump and heard a noise under the vehicle. The officers at first thought they had struck the four-foot concrete retaining wall that ran along the right side of that portion of the alley. They exited the vehicle to investigate and, when they discovered that they had hit Ms. Brown, immediately radioed for an ambulance. As other officers arrived, they used a jack to raise the car up off of Ms. Brown until the ambulance arrived, but did not move her for fear that she might have a neck or spinal cord injury.

         ¶ 13 Neither officer saw Ms. Brown before their vehicle struck her. The retaining wall running along the north and east side of the alley partially blocked their view of what lay around the turn, but Officer Potter was only going three to four miles per hour, was looking outside the front of the vehicle, was not distracted by anything, and the alley was well lit in that area. Ultimately, Officer Potter could not say why he failed to see Ms. Brown. Although he agreed that Ms. Brown was visible in the dash cam video from the evening in question, he noted-as did Officer Oliver-that the view from the dash cam is higher, to the right, and slightly forward compared to what Officer Potter would actually have seen as the driver of the vehicle.

         ¶ 14 Both officers testified that they believed they were "en route" to the domestic disturbance when the accident occurred. Officer Oliver noted that they did not routinely activate their lights or siren when responding to a call. And Officer Potter explained that if he had kept driving west, he would have come to Latrobe Avenue, a southbound one-way street. He needed to go north to get to the domestic disturbance call, so he turned north in the alley, planning to make two rights and come out again on Laramie Avenue, a two-way street going both north and south. This route also would have led to the portion of the alley that Officer Potter testified he was interested in investigating that evening, a building on the southwest corner of Laramie and Washington that he said was known for drug activity.

         ¶ 15 Officer Potter stated that he was not executing or enforcing any law when he and Officer Oliver entered the alley or when they briefly stopped their vehicle to acknowledge the domestic disturbance call. However, he testified that he was executing or enforcing the law when the car began to roll forward again because at that point he "proceeded to go on the dispatched call." He was impeached on this point, however, with a contradictory answer he gave at his deposition. At trial, both officers were certain that at the moment they acknowledged the domestic disturbance call and rolled forward they had abandoned their efforts to investigate potential illegal activity in the alley. As Officer Potter explained, "[i]f you're given a dispatch call, unless you have somebody in custody or detained or you're on another call, that's your job. Anything that you're doing, you need to stop, and unless it's an emergency, you need to go to your call for service."

         ¶ 16 Paula Trampus, a police dispatcher with the Chicago OEMC 9-1-1 center, was called to testify regarding the types of dispatch records OEMC generates. She explained the difference between a unit query-which follows a particular police unit and shows, within a given period of time, "any calls that [those particular] officer[s] [were] dispatched to or *** may have assisted on or may have initiated themselves"-and an event query-which is specific to a particular event and may include information about more than one responding police unit. Ms. Trampus noted that the unit query for Officers Potter and Oliver on July 2, 2015, showed that at 11:14:41 p.m., the officers were dispatched to a domestic disturbance, which they acknowledged five seconds later from the police mobile data terminal in their vehicle. About a minute later, however, OEMC records indicated a "preemption event" preventing the officers from responding to the domestic disturbance. This corresponded with the event query for the accident involving Ms. Brown, which the officers had radioed in from the alley.

         ¶ 17 The City then called Timothy Hicks, a forensic engineer specializing in accident reconstruction. Mr. Hicks had reviewed the dash cam video, police reports, and officer depositions in this case. He met with Officer Potter to determine the officer's height while standing and seated. Mr. Hicks then took the same police vehicle that was involved in the accident to the scene, placed a 12-inch orange cone where the first visible portion of Ms. Brown's body had been, and compared what Officer Potter would have seen with what the dash cam video depicted. Mr. Hicks explained that the dash cam-which is located to the right of the rearview mirror, 6 inches higher than the driver's line of sight and 24 inches forward-provides "a much better vantage point" than a driver of the vehicle would have. He determined, within a 10% margin of error, that Officer Potter had only 29 inches of vehicle travel distance in which Ms. Brown's body would have been visible to him. At speeds of between 2.5 and 5 miles per hour, this would have resulted in less than one second of visibility, occurring just before the vehicle stopped to acknowledge the domestic disturbance, and with no visibility after that point.

         ¶ 18 At multiple times during the trial, the jury was also shown all or part of the dash cam footage of the accident. This footage first shows a male figure walking into the north portion of the alley. The police vehicle then makes a U-turn and turns west into the south portion of the alley, where its headlights are turned off. The vehicle proceeds slowly down the alley, very briefly comes to a stop, rolls forward again, and turns into the north portion of the alley, all with its lights still off. In the video, Ms. Brown is lying face-up just beyond the corner of the retaining wall running along the right side of the vehicle. Her head and upper torso come into view just as the vehicle stops and remain visible for several seconds before the vehicle turns into the ...

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