Boyd v. City of Chicago

THIRD DIVISION
December 5, 2007

1-06-0358

JAVON BOYD. ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. )
)
THE CITY OF CHICAGO, a Municipal )
Corporation, and CITY OF CHICAGO POLICE )
OFFICER DARRYL L. CARROTHERS, Star )
No. 19208, ) Honorable
) Richard B. Berland,
Defendants-Appellees. ) Judge Presiding.

PRESIDING JUSTICE QUINN delivered the opinion of the court:

On November 19, 2000, plaintiff Javon Boyd and defendant

Darryl Carrothers, an off-duty police officer, engaged in an

early morning confrontation, which resulted in Carrothers drawing

his gun and shooting plaintiff. Subsequently, plaintiff was

arrested and charged with misdemeanor battery.

After the charge against plaintiff was dropped, he filed

suit against Carrothers and codefendant the City of Chicago

(City) for battery, false arrest, and malicious prosecution.

Following a jury trial, defendants prevailed on all counts. In

this court, plaintiff contends that the trial court erroneously

precluded a witness's testimony and that the verdict was against

the manifest weight of the evidence.
 BACKGROUND

As a result of a November 19, 2000, altercation with

Carrothers, plaintiff was arrested and charged with misdemeanor

battery. The record indicates that four court dates followed.

Carrothers appeared for the first three dates, but failed to

appear for the fourth court date. Although the record is devoid

of the court order, the parties indicate that the charge against

plaintiff was dismissed without prejudice during the fourth court

date. Subsequently, plaintiff filed this civil suit against

Carrothers and the City for battery, false imprisonment, and

malicious prosecution. Carrothers and the City hired separate

counsel to represent them in the present action.

The record shows that during discovery, plaintiff filed his

answers to the City's first set of interrogatories on March 12,

2003. Therein, his answer to defendants' request for names and

contact information for potential witnesses consisted of a list

of five names, including Derrick Sullivan. Plaintiff wrote

"address unknown" next to each name.

In addition, on July 26, 2005, plaintiff filed his answer to

the City's additional interrogatory, which requested:

"Pursuant to Illinois Supreme Court Rule 213,

identify all witnesses who will testify at

trial and state the subject of their testimony. If you seek to

elicit any testimony from a 'controlled expert witness' or an

'independent expert witness,' please make the relevant

disclosures required by the Rule."

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Plaintiff's seven-paragraph answer consisted of six paragraphs in

which he listed documents and claimed he would call any persons

cited therein. Plaintiff did not specify any individual.

Although the record is devoid of the transcript, the record

indicates that the circuit court warned plaintiff's counsel

during a pretrial conference that his answers to the Rule 213

(210 Ill. 2d R. 213) interrogatories, which the City's counsel

served upon him, were deficient. As such, the circuit court

provided plaintiff's counsel with three options: (1) the court

would bar the plaintiff from calling any witnesses except for

plaintiff and Carrothers; (2) plaintiff could take a voluntary

nonsuit, or (3) the parties could reach an agreement outside of

court. The record indicates that the parties provided the

circuit court with a potential list of witnesses. Plaintiff's

counsel provided a list of four potential witnesses, which did

not include Derrick Sullivan.

The record further discloses that the circuit court

addressed the potential jurors prior to jury selection. During

that address, the circuit court noted that potential witnesses

included "plaintiff Javon Boyd, the defendant Officer Darrell

[sic] Carrothers, Detective Maude Noflin, Detective Michael

Spaulding, Catrice Graham, Frank Novat, James Lucas, Bruce Dean,

Derrick Sullivan, and Roel Calima." The jury was then selected.

Prior to opening statements, the parties again discussed

potential witnesses. During that discussion, the circuit court

clarified that Carrothers' counsel could object to plaintiff's

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witnesses. In response, plaintiff's counsel stated:

"I'm not contending that. But if the

position is going to be that he has a right

to object to us calling witnesses, we need to

know that now so that we can decide how to

prepare what we're going to do. Because we

came in here prepared to call the witnesses

that we had agreed upon with the under --

[sic] under the impression that Mr. Thompson

had no standing to object to those witnesses.

Now we find that he does have standing

that he is -- will be asking for a sidebar.

And if the Court deems his objection is

appropriate, it would change the posture of

our case."

After Carrothers' counsel noted that his Rule 213 objections

would pertain to opinion witnesses, the circuit court stated it

had barred all opinion testimony. Carrothers' counsel then

asserted that he would not object to any fact witnesses disclosed

in the "discovery packet." The parties thereafter proceeded with

opening statements.

Following opening statements, plaintiff testified that on

the evening of November 18, 2000, he went to Rodney's Cocktail

Lounge (Rodney's), which is located on the corner of 71st Street

and Michigan Avenue, to attend the birthday party of his friend

Rhonda Williams. His friend Derrick Sullivan was also in

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attendance.

During the party, plaintiff saw Carrothers. About 2:30 a.m.

on November 19, 2000, plaintiff left Rodney's with his friends

and walked to his car in a parking lot south of 71st Street and

east of Michigan Avenue. As plaintiff started to put his key in

the car door, he heard commotion behind him. When plaintiff

looked, he saw Sullivan on the ground near the median of 71st

Street, which was about 10 to 15 feet from Rodney's. Carrothers

was on top of Sullivan and was hitting Sullivan in the head with

his fists.

Plaintiff began to walk quickly toward the scene to break up

the fight. As he moved within a foot of the men, Carrothers

stood up. Plaintiff testified that he saw a gun on Carrothers'

person but denied that he saw four or five other men striking

Carrothers. Rather, he stated that no one else was around.

Plaintiff described Carrothers' gun as a "[c]hrome or

nickel-plated gun." He testified that it looked like Carrothers

retrieved the gun from his waist as he got up, but then stated

that it looked like it was already in Carrothers' hand as he

rose. Plaintiff swung at Carrothers out of self-defense, but was

unsure whether he struck him. Plaintiff then turned and started

to run toward his car in a diagonal path. As he ran, he heard a

gunshot and fell to the ground. Plaintiff stated, "I felt the

impact on my -- actually on my leg kind of, and I just fell to

the ground." He asserted that he was shot in the right buttocks

and that the bullet exited his front right thigh.

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 After plaintiff fell, he saw Carrothers point the gun at him

again. Plaintiff started to roll on the ground across 71st

Street. He heard what "seemed like five or six shots." When he

got up, he did not see Carrothers or Sullivan. Plaintiff then

ran toward a car he saw at the corner of 71st Street and Michigan

Avenue. There, he told a man, whom he identified as Kevin, that

he had been shot. Kevin drove him to Saint Bernard's Hospital.

At the hospital, a doctor treated plaintiff's wounds and

gave him medication. About 30 minutes after plaintiff arrived at

the hospital, Chicago police officers questioned him. When

plaintiff left the hospital about 7 a.m., the officers escorted

him out and drove him to the police station. There, they

handcuffed him to a bar on the wall of a room. The officers

again questioned plaintiff about the previous night. Sub-

sequently, from 11:30 p.m. until the next morning, plaintiff was

held in a jail cell. Following his release, plaintiff was

charged with misdemeanor battery.

Plaintiff denied that he had a gun during his interaction

with Carrothers. Around July 23, 2001, the charge against

plaintiff was dismissed.

On cross-examination by Carrothers' counsel, plaintiff

restated that he saw Carrothers in Rodney's prior to the

altercation. He saw Carrothers talking to Catrice Graham, whom

he knew through the Williams family. Plaintiff denied that he

saw Carrothers talking to Graham outside Rodney's when he left

the bar. He further denied that he was part of a group that

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circled and struck Carrothers.

On cross-examination by the City's counsel, plaintiff denied

that he saw Carrothers display a police badge during the

confrontation. He further denied that Carrothers was wearing a

police uniform or that any other police officers were in the

area. Carrothers never identified himself as a police officer or

attempted to arrest plaintiff.

Plaintiff next called Carrothers as an adverse witness.

Carrothers testified that as a Chicago police officer, he was

always required to carry his badge and gun when he went out in

public whether or not he was on duty. On November 18, 2000, he

was on furlough and was working as a security guard at the auto

pound at 701 North Sacramento Avenue, which the City owned.

Carrothers further testified that he drove to Rodney's after

work at the auto pound and entered the bar about 1:30 a.m. He

confirmed that he had his badge and gun when he entered the bar.

Carrothers stated that he lived about a mile and a half from

Rodney's.

Carrothers asserted that he left Rodney's about 3 a.m. after

he heard the announcement of "last call." As he left the bar and

headed to his car, Carrothers was talking to Graham, whom he met

in the bar. He could not remember what he said to her.

Carrothers stated that six men, including plaintiff, then

attacked him outside the bar. Carrothers asserted that plaintiff

punched him and drew a gun from his pants. In response, as

Carrothers lay on the ground about four feet from plaintiff, who

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faced him with his gun drawn, he drew his gun from his holster

under his sweater and fired at plaintiff.

Carrothers testified that he identified himself as a police

officer several times as the group of men attacked him. He then

heard a man say, "Kill that mother f-----." Carrothers stated

that he and plaintiff ran away from each other as they fired

their weapons.

As Carrothers reached 71st Street, he saw two police

officers in a parked vehicle. Carrothers entered the police car,

but the officers did not pursue plaintiff.

At the police station at 111th Street and Corliss Avenue,

Carrothers recounted the events of his confrontation with

plaintiff for an assistant State's Attorney (ASA). He signed a

complaint against plaintiff as a police officer of the 15th

Chicago Police District. The complaint, which was filed with the

court on November 20, 2000, alleged that plaintiff violated

section 12-3(a)(1) of the Criminal Code of 1961 (720 ILCS 5/12-

3(a)(1) (West 2000)) where he "committed the offense of battery

in that he, without legal justification, knowingly caused bodily

harm to PO Carrothers." In addition, Carrothers appeared in

court three times during proceedings against plaintiff. Each

time, he wore his police uniform, which he was required to do as

a police officer complainant. However, he did not appear the

fourth time when the charge against plaintiff was dismissed.

Plaintiff's counsel then questioned Carrothers about his

February 13, 2001, signed statement, which he gave to Chicago

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police officer James Lucas about the November 19, 2000 incident.

Carrothers admitted that he did not state therein that plaintiff

fired a gunshot at him during the confrontation. The complaint

also did not name plaintiff as one of the persons who had punched

Carrothers in the face.

During questioning by the City's counsel, Carrothers

admitted Chicago police rules and regulations prohibit an officer

from carrying a weapon in certain circumstances. He asserted

that he personally purchased the 9-millimeter Smith and Wesson

handgun he carried with him.

Carrothers testified that he identified himself as a police

officer when several men attacked him, but he never displayed his

police badge. He also stated that he only displayed his weapon

after plaintiff pulled out his handgun. Carrothers did not

arrest any offenders.

Carrothers confirmed that the complaint he signed against

plaintiff alleged misdemeanor battery and that battery against a

police offer constitutes aggravated battery, a felony. He was

never disciplined by the Chicago police department.

During questioning by his counsel, Carrothers testified that

on November 19, 2000, his duties for the Chicago police involved

investigations of narcotics and gang activities. He denied that

he had any contact with his attackers inside Rodney's or that he

punched or kicked Sullivan any time on November 19, 2000.

Carrothers asserted that after he reported the attack to

police officers, whom he saw a couple of blocks from the

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altercation, he went to the University of Chicago Hospital for

treatment. Afterward, he went to the district police station to

answer further questions about the attack.

Carrothers further testified that his handgun was department

approved. He volunteered his handgun to the on-scene sergeant

after the shooting in accordance with police procedure.

Carrothers reasserted that he did not display his badge prior to

the altercation. Carrothers did not know he had hit plaintiff

with a bullet until he arrived at the hospital.

Upon further questioning by plaintiff's counsel, Carrothers

stated that he did not know he shot plaintiff in the buttocks.

He only learned that after reading a report.

Finally, Carrothers testified that he received notice of the

first three hearings with respect to the complaint against

plaintiff. He did not receive notice of the fourth date.

Next, the court allowed the City to call a witness during

the plaintiff's case-in-chief due to the witness's presence in

court. Roel Calima, an intensive care unit nurse at Saint

Bernard's Hospital, testified that he was assigned to the

emergency room on November 19, 2000. On that date, he treated

plaintiff, who had been shot in the right thigh. Plaintiff

received a tetanus shot and a prescription for an antibiotic.

During questioning by Carrothers' counsel, Calima reviewed

the medical report of plaintiff's care. He testified that

plaintiff's friends brought him to the hospital. Plaintiff told

him, "I got shot on my right thigh." Calima's report also

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stated:

"And for my assessment, [p]atient presented

to ER with gunshot wound on right side. Able

to move affected leg. Awake, alert, and

oriented. Complained of only slight pain of

infected leg. No shortness of breath noted.

And clear breath sounds bilaterally."

In response to plaintiff's counsel's questioning, Calima

admitted that he was not very familiar with gunshot wounds. He

stated plaintiff had a wound on his right thigh and buttocks.

Although Calima testified that he observed that the buttocks

wound was larger than the front thigh wound, he admitted that he

did not record that observation on plaintiff's medical chart.

Plaintiff next sought to call Derrick Sullivan to testify.

The City's counsel objected, however, that Sullivan was an

undisclosed Rule 213 witness.

The trial court indicated that it had warned plaintiff prior

to trial that his answers to defendants' Rule 213 interrogatories

were deficient and had informed plaintiff that he had the option

to take a voluntary non-suit or to reach an agreement with

defendants. According to the court, defendants had indicated

that the parties had reached an agreement as to four possible

witnesses, which did not include Sullivan. Plaintiff did not

object to this representation.

Despite the omission of Sullivan's name from the list,

plaintiff's counsel contended that he should be able to call

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Sullivan as a witness, because it would not constitute surprise

to defendants, which he argued was the purpose of Rule 213.

Plaintiff's counsel also argued that the trial court had read

Sullivan's name as a witness to be called when addressing the

jury. The trial court responded as follows:

"And we went through that list. I'm not

going to repeat myself. I already told you.

I've already gone through and we did that

before we even commenced jury selection. So

I admonished you that your 213 answers left a

lot to be desired; that you had a right to

take a voluntary nonsuit, if you chose to, at

that time.

And maybe you would be -- maybe, or you

might be allowed to name other witnesses at a

future time if you did that. I encouraged

you to try to reach an agreement as to who

would be called during the trial. I

understood that you had reached an agreement

as to who would be called. And counsel for

the City and for Mr. Carrothers have both

indicated, and you haven't indicated to the

contrary, that they never agreed today to

Sullivan."

Thus, the trial court barred Sullivan's testimony.

Next, James Lukas, a civilian investigator for the police

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department, testified that he interviewed Carrothers on February

13, 2001, and recorded his statement as to the November 19, 2000,

incident. In the statement, Carrothers asserted that Sullivan

punched him in the face, knocked him to the ground, and kicked

him. Carrothers made no reference to plaintiff striking him.

Lukas and Carrothers signed the written report.

Plaintiff then retook the stand to show the jury his scars.

He referred to the scar on his right thigh as the "big scar." He

also showed the scar on his right buttocks cheek.

Next, Chicago police detective Maude Noflin testified that

she and her partner Detective Michael Spaulding investigated the

November 19, 2000, incident. As part of their investigation,

they spoke with witnesses, including Carrothers. Noflin

testified that Carrothers had told them that a man with a white

shirt had a gun at the scene of the shooting, but Noflin conceded

that a white shirt was not recovered from plaintiff at the

hospital. Her testimony also presented that a misdemeanor charge

is established where a person is willing to sign a complaint that

asserts each element of a misdemeanor crime.

On cross-examination by Carrothers' counsel, Noflin

confirmed that she filled out a report of plaintiff's arrest.

Therein, Noflin noted that plaintiff stated that he struck

Carrothers with his fists and that he was a member of a group of

men who attacked Carrothers with their fists and feet.

During further cross-examination by the City's counsel,

Noflin confirmed that she and Spaulding arrested plaintiff. She

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stated they had probable cause to make the arrest based on

statements by witnesses, including Carrothers and plaintiff.

On redirect examination, Noflin conceded that her case

report included a summary of his interview of plaintiff.

Therein, plaintiff never stated that he was among the men who

attacked Carrothers or that he struck Carrothers with his feet.

It only stated that plaintiff struck Carrothers in the head.

Thereafter, plaintiff sought to call Chicago police officer

Jacqueline Roberson. Defendants asserted that plaintiff had not

previously requested Roberson's appearance. Defendants, however,

agreed to attempt to obtain Roberson's appearance in court.

Subsequently, Roberson testified that she saw Carrothers in

Rodney's on November 19, 2000, prior to the incident. They each

knew the other was a police officer. Upon exiting the bar with

others at closing time, she heard two gunshots but did not

witness an attack on Carrothers. Carrothers, however, ran up to

her and said he had been "jacked." He did not state that a

person had pulled a gun on him. Roberson called 9-1-1 to report

a shooting.

After plaintiff rested, defendants made a motion for

directed verdict. The circuit court denied that motion.

Thereafter, the City called Catrice Graham to testify. She

stated that on November 19, 2000, she went to Rodney's to

celebrate her cousin's birthday. During the party, Carrothers

approached her to engage in conversation, but she declined.

Carrothers, who was in street clothes, walked away, but he

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attempted to speak to Graham again when they were leaving the

bar. Graham's family members then got into a heated conversation

with Carrothers and the verbal dispute evolved into a physical

altercation. Graham testified that Carrothers never identified

himself as a police officer.

On cross-examination by Carrothers' counsel, Graham

confirmed that she was a friend of plaintiff and that plaintiff

had suggested a romantic relationship with her in the past. She

also confirmed that she saw Sullivan approach Carrothers with his

fist clenched and witnessed Carrothers fall to the ground, at

which time he appeared to reach for a gun. However, she neither

saw plaintiff or Sullivan strike Carrothers nor witnessed any

other physical contact. She did hear three to five gunshots.

When asked about further details, Graham explained that she ran

away from the scene when she saw Sullivan make a fist.

Spaulding testified that he interviewed witnesses following

the November 19, 2000, incident. He arrested plaintiff and

Sullivan after each admitted hitting Carrothers. Carrothers

identified plaintiff as one of the men who struck him.

On cross-examination by plaintiff's counsel, Spaulding

reviewed his general progress report (GPR). The GPR disclosed

that, during an interview, Carrothers asserted that he identified

himself as an officer at the scene of the incident. Carrothers

also stated that plaintiff pulled a weapon on him, and he

admitted that he fired his weapon. The report indicated,

however, that plaintiff denied he had a weapon.

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 All parties then rested. Following closing arguments, the

jury returned a verdict for defendants. Plaintiff now appeals.

ANALYSIS

I. Supreme Court Rule 213(f)(1)

On appeal, plaintiff first contends that the trial court

abused its discretion when it barred Sullivan's testimony. We

disagree.

"The exclusion or admission of evidence by the circuit court

is reviewed under an abuse of discretion standard and will not be

reversed absent an abuse of that discretion." Kim v. Mercedes-

Benz, U.S.A., Inc., 353 Ill. App. 3d 444, 452 (2004). An abuse

of discretion occurs only where no reasonable person would take

the view adopted by the circuit court. Kim, 353 Ill. App. 3d at

452.

In the case at bar, the circuit court reprimanded plaintiff

before the start of trial that his answers to defendants' Rule

213 interrogatories were deficient. The court informed plaintiff

that he could take a voluntary nonsuit or reach an agreement with

defendants. Thereafter, plaintiff and the City reached an

agreement as to four witnesses that plaintiff would call at

trial. That list did not include Sullivan. The record shows

that Carrothers' counsel also agreed he would not challenge any

agreement plaintiff and the City reached.

In this court, plaintiff now contends that despite the

pretrial agreement encompassing calling four witnesses, which did

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not include Sullivan, the circuit court abused its discretion by

barring Sullivan's testimony. In its brief, the City initially

asserts that plaintiff never challenged the validity of its

pretrial agreement as to the list of four witnesses and, thus,

plaintiff has waived any argument regarding Sullivan's testimony.

Whether or not the plaintiff waived this issue, we find no error

with the circuit court's decision.

As plaintiff's own counsel recognized in contesting

Carrothers' initial preservation of his right to contest

plaintiff's and the City's agreement as to the list of four

witnesses, the purpose of disclosure is to allow the other party

to determine how to proceed. Such decisions include whether to

depose a disclosed witness. Here, plaintiff failed to disclose

any witnesses in accordance with Rule 213(f)(1). Despite such

failure, the circuit court allowed the parties to reach an

agreement as to which witnesses plaintiff would call. In

addition, the record discloses the circuit court's flexibility in

allowing plaintiff to call Roberson, who defendants indicated had

not been previously requested. Given this record, we conclude

that the circuit court clearly did not abuse its discretion in

barring the testimony of Sullivan.

Plaintiff's brief mischaracterizes the circuit court's

decision to bar Sullivan's testimony as a discovery sanction.

Nonetheless, as the City and Carrothers contend, plaintiff would

lose under the sanction analysis as well.

Whether a party violated a discovery rule is an issue of law

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that we review de novo. Dalan/Jupiter, Inc. v. Draper & Kramer,

Inc., 372 Ill. App. 3d 362, 369-70 (2007), citing People v. Hood,

213 Ill. 2d 244, 256 (2004). Supreme Court Rule 213(f)(1)

provides:

"Upon written interrogatory, a party

must furnish the identities and addresses of

witnesses who will testify at trial and must

provide the following information:

(1) Lay Witnesses. A "lay witness" is a

person giving only fact or lay opinion

testimony. For each lay witness, the party

must identify the subjects on which the

witness will testify. An answer is

sufficient if it gives reasonable notice of

the testimony, taking into account the

limitations on the party's knowledge of the

facts known by and opinions held by the

witness." 210 Ill. 2d R. 213(f)(1).

As discussed above, plaintiff clearly violated Rule 213(f)(1) by

failing to name witnesses, much less provide witnesses' contact

information and the subject of their testimony.

That said, the imposition of a sanction for the violation of

a discovery rule, provided by Supreme Court Rule 219(c) (166 Ill.

2d R. 219(c)), falls within the discretion of the circuit court.

A sanction will not be reversed absent an abuse of that

discretion. Nedzvekas v. Fung, 374 Ill. App. 3d 618, 620-21, 872

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N.E.2d 431, 434 (2007). The factors that the circuit court must

consider when imposing sanctions include: "(1) the surprise to

the adverse party; (2) the prejudicial effect of the witness'

testimony; (3) the nature of the testimony; (4) the diligence of

the adverse party; (5) the timeliness of the objection; and (6)

the good faith of the party seeking to offer the testimony."

Nedzvekas, 374 Ill. App. 3d at 621, 872 N.E.2d at 435. No single

factor is determinative, and each case presents a unique factual

situation that the court must consider. Nedzvekas, 374 Ill. App.

3d at 621, 872 N.E.2d at 435.

Here, the parties' briefs focus primarily on the surprise

element of Sullivan's testimony. Plaintiff, in particular,

argues that defendants would not have been surprised by

Sullivan's testimony because eyewitnesses had placed Sullivan at

the scene and Sullivan had even pled guilty to battering

Carrothers. The City responds that it did not depose Sullivan as

a result of plaintiff's failure to name Sullivan pursuant to

Supreme Court Rule 213. Further, we find that plaintiff's

attempt to call Sullivan as a witness, despite a deficient answer

to Supreme Court Rule 213 interrogatories and pretrial agreement,

would have raised issues as to plaintiff's diligence and his good

faith. Even when the trial court allowed the parties to agree to

witnesses to be called by plaintiff, plaintiff did not disclose

Sullivan. In addition, Sullivan's testimony would have been

cumulative in nature. Given these factors, we conclude that the

circuit court would not have erred had it barred Sullivan's

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testimony under its Rule 219 authority.

II. Manifest Weight of the Evidence

Plaintiff next contends that the verdict in this case was

against the manifest weight of the evidence. He argues that the

evidence established his claims of battery, false arrest, and

malicious prosecution. As the City asserts, however, the record

does not contain plaintiff's posttrial motion to vacate the

jury's verdict. Rather, plaintiff simply attached that motion to

his brief, which was not appropriate. In re Parentage of Melton,

321 Ill. App. 3d 823, 826 (2001). Moreover, that motion did not

include this issue, and thus the issue is waived. People v.

Enoch, 122 Ill. 2d 176, 186 (1988).

Even if we reviewed this issue, plaintiff's arguments would

fail. A verdict is against the manifest weight of the evidence

where the opposite conclusion is clearly evident from the

evidence or where the jury's findings are unreasonable or

arbitrary and not based on the evidence. Maple v. Gustafson, 151

Ill. 2d 445, 454 (1992). A reviewing court gives great deference

to a jury's findings, including the weight of witness testimony

and other evidence. Wildman, Harrold, Allen & Dixon v. Gaylord,

317 Ill App. 3d 590, 599 (2000).

A. Battery

We first address plaintiff's claim of battery. The tort of

battery is defined as the unauthorized touching of another's

person. Welton v. Ambrose, 351 Ill. App. 3d 627, 636 (2004),

citing Curtis v. Jaskey, 326 Ill. App. 3d 90, 93 (2001).

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However, as Carrothers argues, Illinois recognizes self-defense

as an affirmative defense to such a claim in civil cases.

Thompson v. Petit, 294 Ill App. 3d 1029, 1035 (1998). The

factors to consider in determining whether a person acted in

self-defense are: (1) whether the individual was the aggressor;

(2) whether the danger of harm was present; (3) whether unlawful

force, either criminal or tortious, was threatened; (4) whether

the individual actually believed danger existed, his use of force

was necessary to avoid harm, and that the amount of force he used

was necessary; and (5) whether the individual's use of force was

reasonable even if mistaken. First Midwest Bank of Waukegan v.

Denson, 205 Ill. App. 3d 124, 129 (1990).

Here, Carrothers testified that he was attacked by a group

of men outside Rodney's as he was speaking to Graham. He

asserted that the attack was unprovoked and continued even after

he identified himself as a police officer. Further, he stated

that he saw plaintiff draw a gun. In response, Carrothers drew

his gun and fired at plaintiff. This testimony set forth each

factor of self-defense as provided in Denson. In addition,

Detectives Noflin and Spaulding provided testimony that supported

Carrothers' testimony about the altercation.

Although plaintiff's testimony contradicted Carrothers'

version of events, the jury evidently found Carrothers' testimony

more credible. Since the jury, as the trier of fact, stood in

the best position to ascertain the witnesses' credibility, we

find there is no reason to disturb the jury's verdict for

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Carrothers.

B. False Arrest

We next address plaintiff's claim of false arrest. To

establish a claim of false arrest, plaintiff had to show that he

was restrained by the defendant and that the defendant acted

without probable cause. Reynolds v. Menard, Inc., 365 Ill. App.

3d 812, 819 (2006).

In the case at bar, Carrothers did not arrest plaintiff.

However, plaintiff contends that Carrothers was liable due to his

filing a complaint against plaintiff. We recognize that Illinois

courts have held that a plaintiff can recover against a private

defendant for false arrest where the defendant directed the

officers to make the arrest or the defendant's complaint was the

sole basis for the arrest. Randall v. Lemke, 311 Ill. App. 3d

848, 852 (2000). Although Carrothers was a police officer, we

find the Randall analysis persuasive in the case at bar.

Plaintiff argues that Carrothers was liable for his false

arrest because Carrothers' complaint was the sole source of

information provided to procure his arrest. The record, however,

refutes plaintiff's claim. Rather, the record shows that

Detectives Noflin and Spaulding, the arresting officers, did not

arrest plaintiff until after they spoke with witnesses including

Carrothers and plaintiff, who the detectives asserted admitted to

striking Carrothers. Given that the record neither shows

Carrothers directed the officers to arrest plaintiff nor

demonstrates that Carrothers' complaint was the sole basis for

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plaintiff's arrest, plaintiff cannot sustain a claim of false

arrest. Randall, 311 Ill. App. 3d at 852.

We thus find that the jury did not err in ruling for

Carrothers on the claim of false arrest.

3. Malicious Prosecution

Finally, we address plaintiff's claim of malicious

prosecution. "Illinois does not favor suits for malicious

prosecution due to the public policy interest in the exposure of

crime." Ross v. Mauro Chevrolet, 369 Ill. App. 3d 794, 801

(2006), citing Reynolds, 365 Ill. App. 3d at 819. That said, to

establish a claim of malicious prosecution, plaintiff had to show

(1) the commencement or continuation of an original criminal or

civil proceeding by defendants, (2) termination of the proceeding

in favor of plaintiff, (3) the absence of probable cause for the

proceeding, (4) the presence of malice on defendants' part, and

(5) damages resulting to plaintiff. Reynolds, 365 Ill. App. 3d

at 818-19. The absence of any one of these elements bars

plaintiff's claim. Swick v. Liautaud, 169 Ill. 2d 504, 512

(1996).

We first note that the record is devoid of a circuit court

order disposing of the criminal proceedings. Plaintiff argues

that the circuit court dismissed the case and thus terminated the

criminal proceedings in his favor. Defendants counter that the

court's action did not constitute a judgment in plaintiff's

favor. The City further contends that the charge was not

dismissed but, rather, characterizes the court's action as

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striking the case with leave to reinstate.

Our research has not unearthed a malicious prosecution case

that stems from the dismissal of an underlying criminal case or

where an underlying criminal case was stricken with leave to

reinstate. However, we find that the supreme court's ruling in

Swick provides guidance.

In Swick, our supreme court analyzed whether the State's

decision to nol-pros a criminal charge against the plaintiff in

the underlying criminal case constituted a favorable termination

in order for plaintiff to establish a claim of malicious

prosecution. The supreme court noted that in a civil malicious

prosecution context, "the majority rule is that a criminal

proceeding has been terminated in favor of the accused when a

prosecutor formally abandons the proceeding via a nolle prosequi,

unless the abandonment is for reasons not indicative of the

innocence of the accused." Swick, 169 Ill. 2d at 513, citing

Restatement (Second) of Torts §§659, 660, 661 (1977). The court

explained:

"The abandonment of the proceedings is not

indicative of the innocence of the accused

when the nolle prosequi is the result of an

agreement or compromise with the accused,

misconduct on the part of the accused for the

purpose of preventing trial, mercy requested

or accepted by the accused, the institution

of new criminal proceedings, or

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 impracticability of bringing the accused to

trial." Swick, 169 Ill. 2d at 513, citing

Restatement (Second) of Torts §§660, 661

(1977).

Our supreme court adopted the majority rule, but also stated that

the plaintiff bore the burden of demonstrating that the

termination of proceedings was favorable for him. Swick, 169

Ill. 2d at 513. The court then asserted that the plaintiff in

that case failed to provide any evidence that the State's

decision to nol-pros the criminal charge resulted in a favorable

termination for him. Swick, 169 Ill. 2d at 514. As such, the

supreme court reversed the jury's verdict for the plaintiff and

remanded the case for a new trial on the malicious prosecution

count. Swick, 169 Ill. 2d at 514.

Here, despite the lack of clarity regarding the exact

characterization of the circuit court's order terminating the

criminal proceedings, we observe that the criminal proceedings

ceased when Carrothers failed to appear for the fourth court

date. Neither this fact nor any other evidence in the record

supports an inference that the dismissal of the criminal case was

the result of any of the exceptions set forth in Swick.

Consequently, we find that plaintiff's argument that he met his

burden as to the second element of his malicious prosecution

claim arguably has merit.

Nonetheless, the record reveals strong evidence that

probable cause for the prosecution was present. As stated above,

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the detectives in the case at bar interviewed witnesses,

including Carrothers and plaintiff. The detectives further

asserted that plaintiff admitted to striking Carrothers. Given

this record a rational jury could have found that plaintiff

failed to prove that probable cause did not exist to prosecute

plaintiff. Thus, the jury did not err in delivering a verdict

for Carrothers on the claim of malicious prosecution.

Finally, since plaintiff's claims against the City were

predicated on Carrothers' employment as a Chicago police officer,

and we have concluded that the jury's verdicts for Carrothers

were correct, we find that the jury did not err in ruling for the

City.

CONCLUSION

For these reasons, we affirm the judgment of the circuit

court of Cook County.

Affirmed.

GREIMAN and THEIS, JJ., concur.

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