Rice v. White

NO. 4-06-0512 Filed: 5-23-07

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

KATHERINE RICE, Individually and as ) Appeal from
Representative of the Estate of ANGELA ) Circuit Court of
WILLIS, Deceased, ) Sangamon County
Plaintiffs-Appellees, ) No. 00L0023
v. )
SHADY WHITE, TANIKA McCOOL, and )
MICHELETTE HUGHES, )
Defendants-Appellants, )
and )
MARENDA LATHAN, )
Defendant, )
SHADY WHITE, TANIKA McCOOL, and )
MICHELETTE HUGHES, )
Third-Party Plaintiffs, )
and ) Honorable
MEYUNTOE DAVIS, ) Robert J. Eggers,
Third-Party Defendant. ) Judge Presiding.

JUSTICE MYERSCOUGH delivered the opinion of the court:

On October 25, 2005, a jury entered a verdict in favor

of plaintiffs, Katherine Rice, individually and as representative

of the estate of her daughter, Angela Willis (hereinafter

plaintiff), awarding her $700,000 for the wrongful death of

Willis. Defendants Shady White, Tanika McCool, Michelette

Hughes, and Marenda Lathan were found liable for Willis's death.

White, McCool, Hughes, and Lathan were also found to be acting in

concert to bring about Willis's death. Additionally, the jury

apportioned liability among defendants White, McCool, Hughes,

Lathan, and Meyuntoe Davis, a third-party defendant. Davis was
not a party the jury found to be acting in concert with White,

McCool, Hughes, and Lathan. Neither Davis nor Lathan is a party

to this appeal. On May 19, 2006, the trial court denied

defendants' posttrial motions requesting a new trial or a

judgment notwithstanding the verdict. Defendants appeal, arguing

(1) the evidence does not support the jury's findings; (2) the

trial court's allowance of plaintiff's amended complaint adding

in-concert liability was not proper; and (3) in the alternative,

defendants are severally liable for the $700,000 award of damages

to plaintiff. We reverse.

I. BACKGROUND

On January 15, 1999, defendants McCool, Hughes, and

Lathan hosted a party at the home of White, McCool's mother.

Prior to the party, McCool, Hughes, and Lathan distributed a

flyer advertising the party that included the language "We will

check for weapons." Willis attended the party and was killed

when Meyuntoe Davis, another guest at the party, fired shots into

a crowded living room and struck Willis in the forehead.

On January 19, 2000, plaintiff filed a petition

alleging negligence on the part of defendants that resulted in

Willis's death. Plaintiff's claim was filed pursuant to the

Wrongful Death Act (740 ILCS 180/0.01 through 2.2 (West 2000)),

the Premises Liability Act (740 ILCS 130/1 through 5 (West

2000)), and section 27-6 of the Probate Act of 1975 (755 ILCS

- 2 -
5/27-6 (West 2000)).

On July 10, 2002, the trial court granted defendants'

motion for summary judgment on all claims. On June 14, 2003,

this court affirmed the trial court's order of summary judgment

on all counts except the voluntary undertaking of a duty. Rice

v. White, No. 4-02-0646 (June 13, 2003) (unpublished order

pursuant to Supreme Court Rule 23). This court found that

defendants voluntarily undertook a duty "to prevent the entrance

of weapons into their party." Rice, slip order at 14. However,

this court denied defendants summary judgment because it found

that an issue of fact remained as to whether defendants performed

their undertaking negligently and whether that negligence was a

proximate cause of the injury.

On October 24, 2005, the day of the jury trial,

plaintiff moved to amend her complaint to allege in-concert

liability of defendants White, Lathan, McCool, and Hughes. The

amendment stated, "one or more of the defendants knew that the

conduct of one or more of the other defendants was negligent.

Despite this knowledge, one or more of the defendants gave one or

more of the other defendants substantial assistance while engaged

in the negligent conduct." The trial court granted the motion to

amend over objection.

Plaintiff called each of the defendants as adverse

witnesses in her case in chief. Defendant Hughes testified that

- 3 -
she, McCool, and Lathan hosted a party on "January 1, 1999," at

the home of McCool's mother, Shady White. Hughes was then 18

years old. Hughes testified that she had made the flyer. Hughes

testified that she, McCool, and Lathan printed between 100 and

200 flyers. Hughes said the women's plan was to hand them out to

students at Southeast High School, which Hughes attended at that

time.

The flyer read:

"I had a dream that Shammy (Hughes)[,] Rinnie

(Lathan)[,] and Tanika was throwing another

set!!!

211 South Paul; 9:00 p.m.- until ya'll think

the party outside $3.00 at da [sic] door &

Juice included

Jan[.] 15th[,] 1999

(We will check for weapons)."

Hughes testified that she discussed including the

language about checking for weapons with McCool and Lathan before

deciding to put it on the flyer. Hughes said she and the other

women did not discuss how they would check for weapons. She

testified that she did not check anyone at the party for weapons.

Hughes said no one asked her to check for weapons and that she

had never been to a party where guests were checked for weapons.

Hughes said that the girls had seen language like this

- 4 -
on other flyers and that she included the language about checking

for weapons on the flyer as "an afterthought." Hughes testified

that she thought the language on other flyers was meant to

prevent people from bringing weapons. Hughes said, "So, we

thought that it would be a good idea for us to place this on our

flyer as well."

Hughes said they were expecting all of the people at

the party to be high school students. There were people at the

party that night Hughes did not know. Hughes said that she was

not concerned about people she did not know attending the party.

Hughes said the girls did not discuss keeping people they did not

know out of the party. Hughes said that there was someone at the

front door the evening of the party collecting $3 from everyone.

Hughes said that she was going in and out of the house during the

party, as were other guests at the party.

Hughes testified that she knew the victim, Willis, but

that she and Willis were not friends. Hughes said she did not

know the shooter, Meyuntoe Davis, and had no idea he was coming

to the party. Hughes testified that she had no reason to believe

there were going to be any weapons at the party.

Defendant McCool testified that she hosted the party on

January 15, 1999, at the home of her mother, White. McCool

testified that she was not with Hughes when Hughes typed the

flyer for the party. However, she testified that she saw the

- 5 -
flyer a few days before the party and agreed that the language

about checking for weapons was acceptable. McCool testified that

she did not tell Hughes to remove the language from the flyer and

that, in fact, some of the other language on the flyer was her

idea. She also testified that she thought the language about

checking weapons was a good idea because she did not want people

bringing weapons to the party.

However, McCool said that she did not think that

someone actually bringing weapons to the party was a real

possibility. McCool testified that regardless of her belief that

no one would actually bring weapons to the party, she intended to

check for weapons because that is what the flyer said. She said

that she and the other girls did not have any discussion prior to

the party regarding who would check for weapons or how they would

check for weapons. McCool said they never discussed what they

would do if they found a weapon at the party. McCool said the

girls wanted people to believe that this party was a safe place

to go and that is why they said they would check for weapons on

the flyer. McCool said that she did not have a discussion with

the other girls before the party about checking for weapons

because she thought by including the language on the flyer it

would make people feel safer and discourage people from bringing

a weapon to the party. She said she thought it would scare

people into not bringing weapons.

- 6 -
 McCool testified guests began arriving at 8 p.m.

McCool stated that she saw Lathan checking for weapons at the

party; she also saw her mom, White, checking for weapons. McCool

said White was patting down the guests' arms and down their backs

and legs. McCool was unsure if White checked the guests'

pockets. McCool was asked whether she testified at her

deposition in 2002 that she could not recall if anyone other than

herself was checking for weapons that night. McCool testified

that she was unsure whether her memory of events would be better

at trial in 2006 than it was in 2002 when she gave her sworn

testimony in a deposition.

McCool testified she also checked for weapons by

patting down guests' arms and legs. She testified that someone

else at the party made the guests remove their jackets. However,

McCool said some guests did not remove their jackets. McCool

said she did not check for weapons the entire night. She

estimated she checked for weapons approximately 30 minutes at the

beginning of the party and for a little while during the middle

of the party. McCool testified that she had no training on how

to search a person for weapons. She testified that she watched

her mom pat down people for weapons and "did what she did."

McCool said there were approximately 100 to 150 people

in the house that night. Her mom was the only adult supervision

other than some of her older cousins. McCool said the house was

- 7 -
crowded but that she and the other hosts never discussed refusing

to allow any more people inside. She could not recall if she saw

anyone go outside and then come back inside the house.

McCool said she had never met Davis before the

shooting. McCool testified, however, that she did know the

decedent, Willis. She said that Willis lived across the street

from her and was at her house all the time. Despite spending so

much time at her home, McCool said her and Willis were not

friends. McCool said that she was jealous of Willis because

"[Willis] thought my mom was hers." McCool said that Willis

would "always come over and want to help her clean, just talk to

her. She was just over there all the time." McCool said at one

point she believed Willis liked one of her brothers. McCool said

that she at no time had a plan with Davis to allow him to bring a

gun into the party. McCool said she was aware now that Davis got

into the party with a gun and it was the shots he fired from that

gun at the party that killed Willis. McCool said she never tried

to stop Davis from entering the party.

McCool testified that a fight broke out at the party.

She said she was walking back and forth between the kitchen and

dining room when she heard two boys arguing and saw a girl

standing up on the couch. McCool testified that she said, "You

all need to stop. This party is over." She said that someone

else yelled, "Yeah[,] this party is over." She said she then

- 8 -
heard shots and just stood there. She said she was in shock at

that point. She testified she eventually fell to the ground, and

once she realized what was happening, she crawled into the

kitchen. She said that people had kicked the kitchen door open

and were leaving the house. However, McCool said she did not

want to leave her house, so she went to the basement and waited

with other people until it was quiet. She said that someone

yelled, "A girl is shot." McCool said when she came back

upstairs she saw a girl lying on the ground and a lot of blood.

She said she was running to people's houses saying "Call an

ambulance, please." She later realized that it was Willis who

had been shot.

White, McCool's mother, testified that she gave her

daughter permission to host a party at her house. She said the

party was a going-away party for her son, Nathan White, who was

leaving to attend Gateway. She said that he was already gone on

January 15, 1999, because he had to go to Gateway a week earlier

than expected. White said she did not talk to the other two

girls about the party and that she did not place any conditions

on her agreement to let them host the party at her house.

White said she first saw the flyers before the party

and that was when she learned they were going to charge $3 to

come to the party. She also saw the language about checking for

weapons before the party. She agreed that she thought including

- 9 -
this language on the flyer was a good idea because she did not

want anyone to have a gun at the party.

White said that she was the only adult supervising the

party that night and that there were approximately 100 to 150

guests in her house. She did not place any restrictions on who

could come into the party that night. She said she did not know

several of the people at the party, but they were students who

went to school with her children. She said she was never

concerned about having a lot of guests that she did not know in

her house.

White said she was at the front door collecting money

that night. White said that two other doors went into her house.

She said the other two doors were locked at the time so the only

way for people to get in and out was through the front door. She

said she checked some of the guests for weapons. However, at

White's deposition on January 10, 2002, she said that she left

McCool, Hughes, and Lathan in charge of checking for weapons. At

trial, White agreed that is what she testified to in her

deposition but said that she had shown the girls how to pat down

a person for weapons by demonstrating on some of their guests.

White testified that she had never received any training on how

to conduct a pat-down search for weapons. She said she got the

idea of how to check someone for weapons from television. White

said that after guests paid, one of their hands was stamped and

- 10 -
then they were allowed to go in and out. White said that,

regardless of whether she knew the person, if he or she paid $3,

she allowed that person to go inside the house.

White remembered the decedent, Willis, coming to the

party that evening. White testified that she knew Willis well

because Willis spent a lot of time at her house. She said Willis

and her son Nathan were very close. White said she did not let

Willis in at first because she did not have $3, and White thought

it would be unfair if she let Willis in without paying. White

said Willis went home, returned with $3, and went inside the

house.

White said she did not remember Davis coming to the

party that night. She did not know him prior to the shooting.

She said that her house was crowded that night. White said that

had she known that weapons were going to be at the party, she

would have cancelled it.

Plaintiff Rice testified that she was decedent Willis's

mother. She said that in 1991 she moved across the street from

White. She said that prior to the party she knew neither White

nor her daughter, McCool, very well. She did not know Hughes,

Lathan, or Davis prior to the party.

Prior to January 15, 1999, Rice said she stopped at

Save-A-Lot and sent Willis inside to get a pizza. Rice said that

when Willis returned to the car, she was holding one of the

- 11 -
flyers for the party. Willis told her mom that McCool had given

her the flyer. Rice said she looked at the flyer and asked

Willis questions about the flyer. Finally, after Willis told her

that White would be at the party to supervise, she gave Willis

permission to attend the party. Rice said the language about

checking for weapons influenced her decision to let Willis attend

the party. She said that she thought it would be a safe place.

Rice estimated Willis went to the party around 11 p.m. Rice said

her daughter returned in five minutes to get money to get into

the party, and Rice gave her $5.

Rice said she realized there was a problem when she

heard a lot of screaming and gunshots. She said she looked out

the window and saw a "guy" in the middle of the street who was

shooting at the house. She called 9-1-1. About 10 minutes

later, a man arrived at her door and told her that her daughter,

Angela Willis, had been shot in the head. Rice headed toward the

house because she wanted to see her daughter but a police officer

stopped her in the street. Rice said she had known the police

officer for 20 years. After that, Rice said things were chaotic

outside. Rice saw a police officer carry her 12-year-old

daughter, Kathy, out of the house. Kathy was covered in blood.

Rice said she had sent Kathy over to the party to get Willis for

her because cars were blocking her driveway and she wanted to

know who they belonged to so that she could ask the owners to

- 12 -
move them. Willis was shot while her sister Kathy was present.

Rice said Willis was active in the church choir and

youth group and that Willis would often come by to visit her

mother at work. Willis also helped take care of her younger

siblings at home and helped with the housework. Rice said Willis

was attending the Lawrence Adult Center to earn high school

credits. Rice also remembered Willis going over to White's house

to help White fix her hair.

Rice said that she believed that it would be White who

would be checking for weapons at the party even though White's

name was not on the flyer. Rice said she could see White's front

door from her house because they live directly across the street

from one another. Rice said she saw White at the door that night

collecting the cover charge. She did not see anyone checking for

weapons.

Michelle Hudson testified that she attended the party

at White's house on January 15, 1999. She said she was 16 or 17

years old at the time. Hudson said she learned of the party from

her cousin, Kamiera Robinson, who showed her the flyer. Hudson

said she was not surprised to see the language about checking for

weapons on the flyer. Hudson stated, "Everybody who has a party

probably would put that on there." Hudson and McCool were also

friends at the time. Hudson also knew Hughes and Lathan. Hudson

said that no one checked her for weapons and she did not see

- 13 -
anyone at all checking for weapons. Hudson testified at trial

that the fact she was not searched for a weapon concerned her.

However, at Hudson's discovery deposition taken in March 2004,

Hudson said that the fact she was not checked for a weapon did

not concern her. She testified that the court reporter got the

question wrong. She said she had meant to correct her deposition

but did not know how.

Hudson said she saw Willis and Davis at the party prior

to the shooting. She said that between 30 and 60 minutes before

the shooting occurred she saw that Davis had a gun, but she did

not tell anyone. Hudson said Davis was in the living room when

she saw the gun and that she was "pretty sure" other people saw

the gun too. Hudson was not sure if anyone told White about the

gun. Hudson did not leave the party after she saw Davis with a

gun. She said she stayed and "gathered her people together."

Rice's daughter Kathy testified at trial that she had

been at the party. Kathy was 12 years old at the time and went

over to the party sometime after Willis had already gone over to

the party. Kathy testified that her mother sent her over to the

house to get Willis. However, in her deposition she denied that

her mother had sent her over to White's house that evening.

Kathy testified she told White, who was at the door when she

arrived, that she was just going in to get her sister. Kathy did

not pay to get inside the house. Kathy said as she proceeded to

- 14 -
go into the house, she saw her sister. Kathy testified she then

went upstairs to use the bathroom. Kathy saw Davis upstairs with

a gun. She did not know Davis before that night. Kathy said

Davis told her to be quiet. She then headed back down the stairs

to go home. Kathy testified she saw "flashing lights" and people

were running. Kathy said when she saw the flashing, she heard

gunshots. She said she ran toward the back door, which had been

kicked open. She said that people were in the streets screaming,

but she did not know why. Kathy said she went back to the front

door, but as she was trying to go in, someone tried, but failed,

to stop her from going inside. Kathy then saw that it was her

sister lying on the floor. Kathy testified that she saw her

sister in the kitchen area and that she got on her knees and

started kissing her. Kathy said her sister did not respond other

than taking a really deep breath.

James Young testified that he had been a police officer

in the City of Springfield for 19 years at the time of trial. He

said in 1999 his position in the Springfield police department

was a crime scene technician. His job entailed locating and

identifying physical evidence at a crime scene, photographing the

scene, shooting video, recording measurements, creating diagrams,

creating sketches, and generally preserving evidence.

Young was called to the scene at approximately midnight

on January 15, 1999. Young testified that when he arrived,

- 15 -
police on the scene had already photographed the scene and

videotaped it. He was instructed to draw a diagram of the floor

plan of White's house. Young's diagram was entered as exhibit

No. 2. Young said he included two bullet holes in the diagram

that were found in the home. Young could not recall finding any

shell casings in the home. He did not diagram where Willis's

body was found. However, Young did recall recovering a gun on a

small landing inside the house. The gun was represented on the

diagram by the numeric 1. The gun found was a Smith & Wesson 9

millimeter. Young testified that he did not know where the gun

came from, nor did he know whose gun it was. Young did not know

what kind of gun Davis used the night of the party. Young said

he did not fingerprint the gun, nor did he know whether it was

ever examined for fingerprints. Young also did not know whether

the bullet casings found in the home that night matched the Smith

& Wesson 9 millimeter gun. He said that information would have

been handled by the Illinois State Police. The parties

stipulated at the close of evidence that Davis shot Angela Willis

with a .357 Magnum pistol the night of the party.

Kamiera Robinson testified that she attended the party

at White's house on January 15, 1999. Robinson was 15 years old

at the time. Robinson said she had known McCool, Hughes, and

Lathan since she was little. Robinson testified that prior to

the party she had seen the girls' flyer. She said she had seen

- 16 -
the flyer at a city basketball tournament at the Prairie Capitol

Convention Center. Robinson said White was at the door when she

arrived at the party and that White took her money but did not

check her for weapons. However, Robinson recalled that someone

else checked her for weapons. Robinson could not remember who it

was that checked her. However, in Robinson's deposition she

testified that no one checked her for weapons that night.

Robinson said she saw Willis at the party and that she was

talking to Willis when she was shot. Robinson said that Willis

initially fell onto her after being shot.

After the conclusion of plaintiff's evidence, defense

counsel moved for a directed verdict. Defense counsel argued

that plaintiff had failed to establish negligence on the part of

defendants and had not established proximate causation as a

result of defendants' conduct. The trial court denied the

motion. Plaintiff argued that the testimony from Hughes that she

did not check for weapons at all and McCool's testimony, that she

only checked for weapons the first 30 minutes and for a short

while later that evening, was sufficient evidence defendants

breached their duty. Plaintiff argued to the court, "It was a

gun, actually two guns, but one in particular, was carried into

that party, and the decedent was shot, and we have--we believe

there's enough evidence to go to the jury on this." The trial

court denied defendants' motion. Defendants renewed their motion

- 17 -
at the close of all evidence, and the court again denied their

motion.

Next, plaintiffs moved the trial court to rule that

defendants were subject to in-concert liability as a matter of

law. The court denied the motion and stated it was a question of

fact that would be submitted to the jury.

Although the recitation of the jury instructions was

not transcribed by the court reporter, the common-law record and

jury instruction conference reflect that the following

instructions were given to the jury as submitted by defendants:

"When I use the word 'negligence' in

these instructions, I mean the failure to do

something which a reasonably careful person

would do, *** under circumstances similar to

those shown by the evidence. The law does

not say how a reasonably careful person would

act under those circumstances. That is for

you to decide." Illinois Pattern Jury

Instructions, Civil, No. 10.01 (1995)

(hereinafter IPI Civil (1995)).

"When I use the words 'ordinary care,' I

mean the care a reasonably careful person

would use under circumstances similar to

those shown by the evidence. The law does

- 18 -
not say how a reasonably careful person would

act under those circumstances. That is for

you to decide." IPI Civil (1995) No. 10.02.

"When I use the expression 'proximate

cause,' I mean that cause which, in natural

or probable sequence, produced the injury

complained of. It need not be the only

cause, nor the last or nearest cause. It is

sufficient if it concurs with some other

cause acting at the same time, which in

combination with it, causes the injury." IPI

Civil (1995) No. 15.01.

"The plaintiff claims that she was

injured and sustained damage and that the

defendants were negligent in one or more of

the following respects:

Marenda Lathan negligently failed to

exercise reasonable and ordinary care for the

safety of the persons attending the party

when she allowed Meyuntoe Davis to enter the

party with a loaded weapon.

Tanika McCool negligently failed to

exercise reasonable and ordinary care for the

safety of the persons attending the party

- 19 -
when she allowed Meyuntoe Davis to enter the

party with a loaded weapon.

Shady White negligently failed to

exercise reasonable and ordinary care for the

safety of the persons attending the party

when she allowed Meyuntoe Davis to enter the

party with a loaded weapon.

Michelette Hughes negligently failed to

exercise reasonable and ordinary care for the

safety of the persons attending the party

when she allowed Meyuntoe Davis to enter the

party with a loaded weapon.

The plaintiff further claims that one or

more of the foregoing was a proximate cause

of her injuries.

Marenda Lathan denies that she did any

of the things claimed by the plaintiff,

denies that she was negligent in doing any of

the things claimed by the plaintiff and

denies that any claimed act or omission on

the part of the defendant was a proximate

cause of the plaintiff's claimed injuries.

Tanika McCool denies that she did any of

the things claimed by the plaintiff, denies

- 20 -
 that she was negligent in doing any of the

things claimed by the plaintiff and denies

that any claimed act or omission on the part

of the defendant was a proximate cause of the

plaintiff's claimed injuries.

Shady White denies that she did any of

the things claimed by the plaintiff, denies

that she was negligent in doing any of the

things claimed by the plaintiff and denies

that any claimed act or omission on the part

of the defendant was a proximate cause of the

plaintiff's claimed injuries.

Michelette Hughes denies that she did

any of the things claimed by the plaintiff,

denies that she was negligent in doing any of

the things claimed by the plaintiff and

denies that any claimed act or omission on

the part of the defendant was a proximate

cause of the plaintiff's claimed injuries.

The defendants further deny that the

plaintiff sustained damages to the extent

claimed."

See IPI Civil (1995) No. 20.01.

"The plaintiff has the burden of proving

- 21 -
 each of the following propositions [as to

each defendant]:

First, that the defendant acted or

failed to act in one of the ways claimed by

the plaintiff as stated to you in these

instructions and that in so acting, or

failing to act, the defendant was negligent;

Second, that the plaintiff was injured;

Third, that the negligence of the

defendant was a proximate cause of the injury

to the plaintiff.

You are to consider these propositions

as to each defendant separately." IPI Civil

(1995) No. B21.02.01.

Plaintiff tendered the following instructions:

"It was the duty of defendants, before

and at the time of the occurrence to use

ordinary care for the safety of Angela

Willis. This means that it was the duty of

defendants to be free from negligence."

See IPI Civil (1995) No. 10.04.

"One who voluntarily undertakes to

render services to another is subject to

liability for bodily harm caused to the other

- 22 -
 by one's failure to exercise due care in the

performance of the undertaking."

The jury awarded $700,000 to the victim's estate and

found defendants White, McCool, Lathan, and Hughes acted in

concert in bringing about Willis's death. The jury attributed

fault to defendants in the following proportions:

Shady White 19%

Maranda Lathan 2%

Tanika McCool 2%

Michelette Hughes 2%

Meyuntoe Davis (third party) 75%

Several posttrial motions were filed. On May 19, 2006,

the trial court heard these motions, including a motion under

section 2-1202(b) of the Code of Civil Procedure (735 ILCS 5/2-

1202(b) (West 2004)) requesting the court set aside the jury

verdict. The court, without comment, denied all defendants'

posttrial motions. This appeal followed.

II. ANALYSIS

On appeal, defendants raise three issues: (1) whether

the evidence at trial supports the jury's findings, (2) whether

the trial court erred in allowing defendants to amend their

complaint to add an allegation of in-concert liability, and (3)

whether defendants are jointly and severally liable for the

- 23 -
damages. Because we find defendants prevail on the first issue

regarding sufficiency of the evidence, we decline to address the

remaining issues.

A. Effect of This Court's Prior Rule 23 in This Case

This case was before this court on appeal in 2002.

According to the law-of-the-case doctrine, a determination of a

question of law will generally be held to be binding throughout

the subsequent stages of the case when the issue decided has been

made on a prior appeal to a court of last resort. People v.

Lyles, 208 Ill. App. 3d 370, 376, 567 N.E.2d 396, 400 (1990)

("'[A]n appellate court's determination on a legal issue is

binding on both the trial court on remand and appellate court on

a subsequent appeal given the same case and substantially the

same facts.' [Citation.]").

"Generally, the law[-]of[-]the[-]case doctrine bars

relitigation of an issue previously decided in the same case."

Krautsack v. Anderson, 223 Ill. 2d 541, 552, 861 N.E.2d 633, 642,

(2006), citing People v. Tenner, 206 Ill. 2d 381, 395, 794

N.E.238, 247 (2002). "'[T]he determination of a question of law

by the [a]ppellate [c]ourt on the first appeal may, as a general

rule, be binding upon it on the second appeal.'" Krautsack, 223

Ill. 2d at 552, 861 N.E.2d at 642, quoting Zerulla v. Supreme

Lodge Order of Mutual Protection, 223 Ill. 518, 520, 79 N.E. 160,

161 (1906).

- 24 -
 Illinois recognizes two exceptions to this doctrine:

(1) when the supreme court, following the first appeal, makes a

contrary ruling on the precise issue of law on which the

appellate court based its former opinion; or (2) when the

appellate court finds that its prior decision is palpably

erroneous, but only when the court remanded the case for a new

trial on all of the issues." Lyles, 208 Ill. App. 3d at 376, 567

N.E.2d at 400, citing Stallman v. Youngquist, 152 Ill. App. 3d

683, 689, 504 N.E.2d 920, 923-24 (1987), rev'd on other grounds,

125 Ill. 2d 267, 531 N.E.2d 355 (1988). Neither exception

applies in this case. Therefore, our order remains binding on

the parties in this case.

B. The Trial Court Erred in Failing To Grant Defendants' Motion
for a Directed Verdict at the Close of Plaintiff's Evidence

At the close of plaintiff's evidence, defendants moved

for a directed verdict, arguing that plaintiff had not

established negligence on the part of White, McCool, or Hughes.

Defendants continue to argue on appeal that plaintiff failed to

introduce evidence that satisfied the burden of proving by a

preponderance of the evidence that any of the defendants acted

negligently. Redmond v. Socha, 216 Ill. 2d 622, 646, 837 N.E.2d

883, 897 (2005) (plaintiff bears the burden of proving every

necessary element of her negligence case by a preponderance of

the evidence).

In support of their motion for a directed verdict,

- 25 -
defendants argued that plaintiff's evidence had also failed to

establish that defendants' conduct was the proximate cause of

decedent's injury. In response, plaintiff argued to the court,

"It was a gun, actually two guns, but one in particular, was

carried into that party, and the decedent was shot, and we have--

we believe there's enough evidence to go to the jury on this."

The trial court denied defendants' motion. Defendants renewed

their motion at the close of all evidence and the court again

denied their motion.

"[V]erdicts ought to be directed and judgments n.o.v.

entered only in those cases in which all of the evidence, when

viewed in its aspect most favorable to the opponent, so

overwhelmingly favors [the] movant that no contrary verdict based

on that evidence could ever stand." Pedrick v. Peoria & Eastern

R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14 (1967); see

also City of Evanston v. Ridgeview House, Inc., 64 Ill. 2d 40,

57, 349 N.E.2d 399, 407-08 (1976) (noting that the standard in

Pedrick only applies in jury-tried cases). The standard of

review when the trial court denies a directed verdict is de novo.

City of Mattoon v. Mentzer, 282 Ill. App. 3d 628, 633, 668 N.E.2d

601, 604 (1996).

The plaintiff bore the burden of presenting evidence at

trial to support every element of her claim of negligence. Old

Second National Bank of Aurora v. Aurora Township, 156 Ill. App.

- 26 -
3d 62, 65, 509 N.E.2d 692, 695 (1987) (essential elements of

recovery under the Wrongful Death Act includes a duty, a breach

of that duty, and damages that resulted from defendants' breach).

Even when examining the evidence in a light most favorable to

plaintiff, we find the trial court erred when it denied

defendants' motion for a directed verdict.

1. Defendants Voluntarily Undertook
a Duty To Check for Weapons

The supreme court has recognized:

"'It is axiomatic that every person owes to

all others a duty to exercise ordinary care

to guard against injury which naturally flows

as a reasonably probable and foreseeable

consequence of his act, and that such duty

does not depend upon contract, privity of

interest[,] or the proximity of relationship,

but extends to remote and unknown persons.'"

Frye v. Medicare-Glaser Corp., 153 Ill. 2d

26, 32, 605 N.E.2d 557, 560 (1992), quoting

Nelson v. Union Wire Rope Corp., 31 Ill. 2d

69, 86, 199 N.E.2d 769, 779 (1964).

However, there is no general duty to protect against

the criminal acts of third persons. Jackson v. Shell Oil Co.,

272 Ill. App. 3d 542, 547, 650 N.E.2d 652, 655 (1995). An

exception to this rule will only be made if there exists (1) a

- 27 -
special relationship between the parties, and (2) the criminal

act was reasonably foreseeable. Jackson, 272 Ill. App. 3d at

542, 650 N.E.2d at 655.

On appeal in 2002, we held that no special relationship

existed between the parties to this case and affirmed the trial

court's grant of the summary judgment motion in favor of

defendants on that point. Rice, slip order at 9-14. However,

citing Wakulich v. Mraz, 203 Ill. 2d 223, 245-46, 785 N.E.2d 843,

856 (2003), and interpreting all of the evidence in plaintiff's

favor, as required in reviewing a ruling on defendants' motion

for summary judgment, this court went on to find that defendants

had voluntarily undertaken "a duty to prevent the entrance of

weapons into their party." Rice, slip order at 14. In Wakulich,

the supreme court held that the defendants had voluntarily

undertaken a duty to care for decedent although the defendants

and decedent shared no special relationship. In Wakulich, the

defendants had taken charge of a young girl who had become

intoxicated at their home. More than merely allowing her to

"sleep it off," the defendants in that case moved decedent to

another room, removed her vomit-stained blouse, and propped a

pillow under her head to prevent aspiration. The defendants in

Wakulich also prevented other persons from intervening in the

care of decedent. The defendants in Wakulich eventually removed

decedent from their home while she was still unconscious, and she

- 28 -
later died. The supreme court held that the defendants'

affirmative acts of caring for decedent after she became

unconscious imposed a duty to use reasonable care. Wakulich, 203

Ill. 2d at 245-46, 785 N.E.2d at 856. The court in Wakulich said

that the defendants' liability was not contingent on their

relationship with decedent for purposes of the voluntary-

undertaking count of the plaintiff's claim. Wakulich, 203 Ill.

2d at 242, 785 N.E.2d at 854. The court found that this holding

did not circumvent the rule requiring a special relationship

between the parties before imposing a duty because the

defendants' liability arose by virtue of "their voluntary

assumption of a duty to care for [decedent] after she became

unconscious, irrespective of the circumstances leading up to that

point." Wakulich, 203 Ill. 2d at 242, 785 N.E.2d at 854.

Even though defendants' duty herein was defined by this

court in the Rule 23 order issued on appeal of this case in 2002,

the duty instructions given at trial were not an accurate

reflection of that duty. The jury was instructed as follows:

"It was the duty of defendants, before and at

the time of the occurrence to use ordinary

care for the safety of Angela Willis. This

means that it was the duty of defendants to

be free from negligence."

See IPI Civil (1995) No. 10.04.

- 29 -
 This instruction, proffered by plaintiff, embodies a

general negligence claim. Defendants' voluntarily assumed duty

in this case was to check the entrants to the party for weapons.

This instruction, however, significantly broadens defendants'

duty to one of ordinary care appropriate only in a general

negligence claim, not a negligence claim based on the voluntary

assumption of a duty.

After this court found that defendants owed a duty to

decedent under Wakulich, this court reversed the trial court's

grant of summary judgment in favor of defendants because we found

a material issue of fact remained regarding whether defendants

negligently carried out their voluntarily assumed duty to check

for weapons and whether defendants' negligence was the proximate

cause of decedent's injury. Rice, slip order at 17.

2. No Evidence Showed Defendants
Breached Their Duty to Check for Weapons

To establish a prima facie case for negligence,

plaintiff must put forth evidence that defendants breached their

duty owed to the plaintiff. Old Second National Bank of Aurora,

156 Ill. App. 3d at 65, 509 N.E.2d at 695. A defendant breaches

her duty when she deviates from the applicable standard of care.

Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247, 270, 864 N.E.2d

249, 263 (2007) (common-law negligence requires plaintiff to

establish the existence of a duty of care owned by the defendant,

a breach of that duty, an injury proximately caused by the

- 30 -
defendant's breach, and damages). Failure to exercise due care

in the performance of a voluntarily assumed duty generally

results in the imposition of tort liability on the party that has

assumed such a duty. Cross v. Wells Fargo Alarm Services, 82

Ill. 2d 313, 412 N.E.2d 472 (1980). However, a voluntary duty is

limited to the extent of the undertaking. Wakulich, 203 Ill. 2d

at 241, 785 N.E.2d at 854; Torres v. City of Chicago, 352 Ill.

App. 3d 533, 535, 816 N.E.2d 816, 818 (2004) (noting that the

court in Wakulich adopted section 323 of the Restatement (Second)

of Torts).

Illinois relies on section 323 of the Restatement

(Second) of Torts to assess when a breach of a voluntary

undertaking has occurred. LM ex rel. KM v. United States, 344

F.3d 695, 701 (7th Cir. 2003) (noting Illinois has adopted

sections 323 and 324 of the Restatement (Second) of Torts);

Torres, 352 Ill. App. 3d at 535, 816 N.E.2d at 818 (noting the

supreme court adopted section 323 of the Restatement in

Wakulich). Section 323, titled "Negligent Performance of

Undertaking to Render Services," establishes liability for

failure to exercise reasonable care to perform an undertaking if

(1) a party undertakes to do something and then fails to exercise

reasonable care in a way that increases a third party's risk of

harm; or (2) the harm is suffered because of the other's reliance

upon the undertaking. Comment b to section 323 of the

- 31 -
Restatement provides:

"One who *** renders gratuitous services

to [another], is not subject to liability to

[her] for failure to have the competence or

to exercise the skill normally required of

persons doing such acts, if the other who

accepts the services is aware, through

information given by the actor or otherwise,

of [her] incompetence." Restatement (Second)

of Torts §323, Comment b, at 135-36 (1965).

On appeal in 2002, this court held that this standard,

outlined in Comment b of the Restatement, was the correct

standard but a material issue of fact remained whether defendants

breached this standard. Rice, slip order at 16. Since

defendants' undertaking was to check for weapons, the question of

fact was whether they failed to carry out that undertaking with

such competence and skill as each defendant possessed and, if

not, whether decedent was aware of her incompetence. See

Restatement (Second) of Torts §323, Comment b, at 136 (1965).

The evidence reflected that none of the defendants were

particularly adept at checking for weapons. White testified that

the extent of her knowledge on how to conduct a pat-down search

came from television and that she demonstrated how to conduct a

pat-down search to the other three defendants. More important,

- 32 -
no evidence suggests how defendants deviated from the applicable

standard of care.

Absent evidence defendants breached their voluntarily

assumed duty, this court must reverse, even in the face of such

an egregious loss and Davis's criminal act.

3. Jury Instructions Did Not Properly State Standard of Care

Further, the jury instructions regarding standard of

care given in this case were erroneous and require reversal. The

jury instructions regarding the applicable standard of care were

overwhelmingly confusing in this case. The following jury

instructions, all of which were given, described the standard of

care the jury should apply in this case:

"When I use the word 'negligence' in

these instructions, I mean the failure to do

something which a reasonably careful person

would do, *** under circumstances similar to

those shown by the evidence. The law does

not say how a reasonably careful person would

act under those circumstances. That is for

you to decide." IPI Civil (1995) No. 10.01.

"When I use the words 'ordinary care,' I

mean the care a reasonably careful person

would use under circumstances similar to

those shown by the evidence. The law does

- 33 -
 not say how a reasonably careful person would

act under those circumstances. That is for

you to decide." IPI Civil (1995) No. 10.02.

"The plaintiff has the burden of proving

each of the following propositions [as to

each defendant]:

First, that the defendant acted or

failed to act in one of the ways claimed by

the plaintiff as stated to you in these

instructions and that in so acting, or

failing to act, the defendant was negligent."

IPI Civil (1995) No. B21.02.01.

"One who voluntarily undertakes to

render services to another is subject to

liability for bodily harm caused to the other

by one's failure to exercise due care in the

performance of the undertaking."

The jury was also instructed that the issue in this case was

whether:

"[Each defendant] negligently failed to

exercise reasonable and ordinary care for the

safety of the persons attending the party

when she allowed Meyuntoe Davis to enter the

party with a loaded weapon." IPI Civil (1995)

- 34 -
 No. 20.01.

We note that the apparent confusion regarding the

applicable standard of care may be due, in part, to the fact that

moments before opening statements were to begin, the trial court

granted plaintiff's motion to amend her complaint. The amendment

alleged that defendants were subject to in-concert liability.

This amendment alleged an entirely new theory of liability that

had never been raised by plaintiff in earlier pleadings.

However, even despite the myriad of jury instructions relating to

the standard of care in this case, not one instruction accurately

states the applicable standard.

The standard of care must be limited to the extent of

defendants' undertaking. Their undertaking was not generally for

the safety of the persons at the party, as the jury was

instructed. Their undertaking was not to prevent Davis from

entering the party with a loaded weapon, as the jury was

instructed. Their undertaking was to check for weapons, and the

question for the jury was whether they failed to carry out that

undertaking with reasonable care. Since there was a complete

absence of evidence regarding this standard, no reasonable juror

could have found defendants to have breached their duty to use

reasonable care.

4. No Evidence Was Presented To Establish Defendants' Acts Were
the Proximate Cause of Decedent's Injuries

In addition to evidence that each defendant breached

- 35 -
her duty to the plaintiff, to establish a prima facie case of

negligence, plaintiff must establish that defendants' breach was

the proximate cause of decedent's injury. Calles, 224 Ill. 2d at

270, 864 N.E.2d at 263. Proximate cause includes both cause in

fact and legal cause. First Springfield Bank & Trust v. Galman,

188 Ill. 2d 252, 257-58, 720 N.E.2d 1068, 1072 (1999). Cause in

fact exists where there is a reasonable certainty that a

defendant's acts caused the injury or damage. Mann v. Producer's

Chemical Co., 356 Ill. App. 3d 967, 972-73, 827 N.E.2d 883, 887-

88 (2005) (holding that the plaintiff must demonstrate as part of

her prima facie case proximate cause by showing that decedent

relied on the defendant's voluntarily assumed duty in his

decision to cross the street). Proximate cause is usually a

question of fact; however, a court may determine lack of

proximate cause as a matter of law where the facts alleged do not

sufficiently establish both cause in fact and legal cause.

Rogers v. Reagan, 355 Ill. App. 3d 527, 532, 823 N.E.2d 1016,

1019-20 (2005).

On appeal in 2002, this court stated, "One who

undertakes to render services to another is liable for physical

harm resulting from the other's reliance on the undertaking."

Rice, slip order at 15, citing Wakulich, 203 Ill. 2d at 242-43,

785 N.E.2d at 855, and Restatement (Second) of Torts §323, at 135

(1965). In that Rule 23 order, this court said:

- 36 -
 "A reasonable jury could conclude the purpose

of the warning was to increase attendance,

and, consequently, some guests at the party,

including decedent attended in reliance upon

defendants' promise to restrict the entry of

weapons." Rice, slip order at 15.

Plaintiff's allegation in the amended complaint states:

"[Defendants] owed a duty of reasonable care

under the circumstances regarding the state

of the premises or acts done or omitted on

them to confiscate and restrict the entry of

and use thereon of any and all weapons. ***

Defendants carelessly and negligently failed

to exercise reasonable and ordinary care of

the safety of the persons attending the party

when they allowed Meyuntoe Luva Davis to

enter the party with a loaded weapons, after

voluntarily undertaking the duty to check for

weapons as advertised on the party fliers."

Under a voluntary undertaking theory, to establish

proximate cause of the injury, the cause-in-fact component

requires a showing that a plaintiff relied on the defendant's

conduct. Restatement (Second) of Torts §323(b), at 135 (1965);

Mann, 356 Ill. App. 3d at 972, 827 N.E.2d at 888. In Frye, 153

- 37 -
Ill. 2d at 32-33, 605 N.E.2d at 560, the supreme court relied on

section 323 of the Restatement (Second) of Torts to determine

whether the defendants proximately caused plaintiff's injury.

Section 323 states:

"One who undertakes, gratuitously or for

consideration, to render services to another

which he should recognize as necessary for

the protection of the other's person or

things, is subject to liability to the other

for physical harm resulting from his failure

to exercise reasonable care to perform his

undertaking, if

(a) his failure to exercise such care

increases the risk of such harm, or

(b) the harm is suffered because of the

other's reliance upon the undertaking."

Restatement (Second) of Torts §323, at 135

(1965).

"Under Illinois law, a plaintiff's reliance on the

defendant's promise is an independent, essential element in cases

of nonfeasance." Bourgonje v. Machev, 362 Ill. App. 3d 984, 997,

841 N.E.2d 96, 108 (2005); Chisolm v. Stephens, 47 Ill. App. 3d

999, 1007, 365 N.E.2d 80, 86 (1977) ("Plaintiff correctly argues

that liability for nonfeasance in connection with a gratuitous

- 38 -
undertaking may arise where the beneficiaries had relied on its

performance. [Citations.] Under those circumstances[,] the

element of reliance lies at the very heart of the cause of

action, and is a basic and necessary prerequisite to liability");

Stephen v. Swiatkowski, 263 Ill. App. 3d 694, 704, 635 N.E.2d

997, 1005 (1994) (holding a plaintiff can only recover for

nonfeasance if he "can show that he reasonably relied on the

defendant for protection").

Here, the allegations in the complaint encompass a

theory of misfeasance and nonfeasance. In the complaint,

plaintiff alleges defendants were negligent in their acts "done

or omitted." The court in Wakulich explained that the historical

reason behind the distinction between nonfeasance and misfeasance

was that "'[t]he mere breach of a promise, without more, was

regarded as "non[]feasance," for which any action must be in

assumpsit, upon the contract and upon proof of a consideration

for the promise, rather than on the case under any theory of tort

liability.'" Wakulich, 203 Ill. 2d at 246, 785 N.E.2d at 856,

quoting Restatement (Second) of Torts §323, Comment on Caveat d,

at 138 (1965); see also W. Keeton, Prosser & Keeton on Torts §56,

at 373-82 (5th ed. 1984). However, the distinction is

inconsequential in this case because the record contains no

evidence sufficient to support a finding that defendants' action

or inaction was the proximate cause of decedent's injury. No

- 39 -
evidence was presented that decedent relied on defendants' flyer

stating they would check for weapons or that decedent relied on

defendants' alleged attempts at checking guests for weapons.

To establish proximate cause in this case, decedent

must have relied on defendants' assertion that they would check

for weapons in order to establish that defendants' conduct was

the proximate cause of decedent's injury. In Chisolm, 47 Ill.

App. 3d at 1007, 365 N.E.2d at 86, the supreme court stated:

"'Reliance may reasonably be placed

where there is a deceptive appearance that

performance had been made, or where a

representation of performance has been

communicated to plaintiff by defendant, or

where plaintiff is otherwise prevented from

obtaining knowledge or substitute performance

of the undertaking.' [Citations.] Moreover,

'to justify reliance, [a] plaintiff must be

unaware of the actual circumstances and not

equally capable of determining such facts.'"

Bourgonje, 362 Ill. App. 3d at 1005, 841

N.E.2d at 115, quoting Chisolm, 47 Ill. App.

3d at 1007, 365 N.E.2d at 86.

The court in Mann held that liability cannot be based

on surmise or conjecture. Mann, 356 Ill. App. 3d at 974, 827

- 40 -
N.E.2d at 889. Rather, liability of a defendant can be

established when there is a "reasonable certainty" that

defendant's actions caused the injury. Mann, 356 Ill. App. 3d at

974, 827 N.E.2d at 889. Although direct evidence of decedent's

reliance on defendants' promise to check for weapons was not

presented, "reasonable certainty" may be established by inference

from circumstantial evidence. Mann, 356 Ill. App. 3d at 975, 827

N.E.2d at 890 (decedent did not regain consciousness after being

struck by a car in an intersection and instead plaintiff had to

rely on eyewitness accounts of the accident to establish whether

decedent relied on defendant's action in deciding to cross the

street).

However, the test set forth in section 323 of the

Restatement, and adopted by the supreme court in Wakulich, was

apparently never considered during this trial. No evidence was

presented that decedent or any other partygoer relied on

defendants' voluntarily assumed duty to check for weapons. No

evidence was presented as to when Davis came to the party, how

Davis got inside the house, whether Davis was searched, how Davis

was searched, or whether Davis was in possession of a gun when he

arrived at the party. Rather, plaintiff argued to the trial

court, and on appeal, that the mere fact that Davis had a gun at

the party proves negligence on the part of defendants. In point

of fact, the gun could have been in the household prior to the

- 41 -
party and its presence entirely unrelated to the search for

weapons.

Plaintiff's conclusory argument, that "if there was a

gun in the party, there must have been negligence," presents a

res ipsa loquitur theory of negligence. Essentially, plaintiff

argues that it is immaterial that she establish negligence on the

part of any one defendant because the evidence of a gun in the

party proves that at least one of the defendants must have been

negligent. This was not the theory pleaded by plaintiff, nor is

it compatible with the voluntary duty established in this case,

which was to check for weapons.

Absent evidence establishing that decedent relied on

defendants' undertaking, plaintiff failed to establish that

defendants' conduct was the proximate cause of decedent's injury.

III. CONCLUSION

By failing to present sufficient evidence to the court

of defendants' breach or proximate cause, plaintiff failed to

establish a prima facie case of negligence based on a voluntary

assumption of a duty, and defendants were entitled to a directed

verdict as a matter of law. Because we find defendants were

entitled to a directed verdict, we decline to address defendants'

additional arguments. Therefore, based on the foregoing reasons,

we find the trial court erred in denying defendants' motion for a

directed verdict. We reverse.

- 42 -
Reversed.

STEIGMANN, P.J., and KNECHT, J., concur.

- 43 -