dissenting:
I respectfully dissent from the majority opinion in its entirety. In my view, the City was protected by section 2 — 202 of the Tort Immunity Act (Act) (745 ILCS 10/2 — 202 (West 2004)) where Chicago police officer Sung Joo Lee was executing and enforcing the law at the time of the occurrence; moreover, the exception to section 2 — 202 of the Act was not triggered because none of the evidence supported a finding of willful and wanton conduct on the officer’s part. This is true whether or not Officer Lee was engaged in a pursuit or simply going to assist other officers. Even when the evidence is viewed in the light most favorable to plaintiff, the City was entitled to a judgment n.o.v. on these counts. Further, I believe the comments of plaintiffs attorney instructing the jury to answer the special interrogatory regarding execution and enforcement in favor of his client completely eviscerated the utility of that special interrogatory and virtually ensured, in the context of this tragic accident, that the jury would answer as instructed. Finally, the jury instruction on willful and wanton conduct was fatally flawed as was the video prepared by plaintiffs expert. Where the evidence might be considered to be closely balanced, these last issues constitute reversible error and would require a new trial. (In my view, the evidence is actually not closely balanced, it overwhelmingly favors the City, but some might regard it as such.) Moreover, I am not attempting to substitute my evaluation of the facts for that of the jury, nor have I only considered evidence favoring the City, as the majority suggests; there are simply so few facts which favor the plaintiff that this verdict is not sustainable.
I fully appreciate that if we are to ever achieve finality in litigation, great deference must be given to the jury’s conclusions. However, this does not demand slavish adherence to verdicts which are clearly wrong, nor does it relieve this court of its responsibility to critically review jury verdicts. It is apparent to me that this verdict is the result of passion or prejudice in the sense that it is a sympathy verdict against a target defendant. Illinois Pattern Jury Instructions, Civil, No. 1.01[2] (2006) (hereinafter IPI Civil (2006) No. 1.01[2]) (“Your verdict must not be based upon speculation, prejudice, or sympathy”).
EXECUTION & ENFORCEMENT
The City claims it was entitled to judgment n.o.v. because its officer was in the execution and enforcement of the law and I agree. Section 2 — 202 of the Act immunizes all municipal employees for their acts or omission in the execution and enforcement of the law. See 745 ILCS 10/2 — 202 (West 2004). As principal and agent, the City is immunized where its employee is immunized. 745 ILCS 10/2 — 109 (West 2004); Wade v. City of Chicago, 364 Ill. App. 3d 773, 780 (2006). Where a police officer is engaged in a course of conduct designed to carry out or put into effect any law, the immunity applies unless his or her conduct was willful and wanton. Fitzpatrick, 112 Ill. 2d at 221; 745 ILCS 10/2 — 202 (West 2004). Here, Officer Lee was, in my view, so engaged and nothing she did could properly be considered willful and wanton conduct.
The evidence showed that at about 9 p.m. on May 7, 2001, Officer Lee and her partner, Officer Howard Ray, normally assigned to protect Chicago Housing Authority residents, heard a radio dispatch that a homicide suspect was being pursued on the Eisenhower expressway by other officers. Lee and Ray entered the expressway, not to engage in the pursuit, but rather to assist in the eventual apprehension of the suspect, either by controlling traffic at the scene or any other helpful activity. The night was clear and dry, and the highway well lit. At one point after entering the expressway, Lee was required to get off the eastbound expressway and get on the expressway westbound because the pursuit changed directions. Going westbound, with her turn signal and emergency equipment activated, she moved from the first to the third lane and collided with plaintiff because his car either protruded from the shoulder into Lee’s lane or he pulled out from the shoulder in front of her.
The testimony of Chicago police Lieutenant Carolyn Jackson established that all officers were expected to assist other officers should the occasion arise and no permission from superiors was required for such a decision. Contrary to what the majority implies, I gave Jackson’s testimony no more weight than it deserved. Lieutenant Jackson is a ranking officer in the Chicago police department, and her testimony was entirely unrebutted. I have taken issue with a statement which appears in the majority opinion: the majority states that Lieutenant Jackson testified that “if Officers Lee and Ray were assisting in apprehending a suspected felon, they were required under department policy and procedure to advise dispatch.” 378 Ill. App. 3d at 382. This indicates that if these officers were doing exactly what they said they were doing — attempting to assist in the apprehension of a suspected felon — they were required to notify dispatch or be in violation of a general order. After reviewing over 57 pages of Lieutenant Jackson’s testimony, taken in context, it is my position that that is not a correct interpretation of what she said in spite of the majority’s protest regarding the same. She made it crystal clear that it was only officers engaged in or assisting in the pursuit who had to notify dispatch, those being the primary and secondary cars. In her opinion, an officer was not involved in a pursuit unless he could see it, and these officers undisputedly could not see the pursuit because they had to monitor their radio to know where it was going. The majority states its presentation is fair, because it then mentions “countervailing evidence” regarding Jackson’s comments about anticipated radio silence. However, these remarks regarding radio silence have little to do with the issue of whether Lee and Ray violated a general order in not contacting dispatch (except they might not get through if they tried). Jackson’s real opinion is to be found in the veritable mountain of contradictory evidence which shows that it is the opposite of what is said in the majority opinion. Jackson testified that she believed Lee and Ray were not involved in a pursuit, so they were not required to contact dispatch. Further, she clearly maintained that Officer Lee not only did not violate a general order, but she did nothing wrong.
To address a preliminary matter, while the majority claims that whether or not Lee’s emergency equipment was activated is insignificant to its opinion, I think it is an important factor and, further, it is repeatedly referred to in the majority opinion and used as at least a partial basis for some of its conclusions. Therefore, I think it worthy of comment. In my view, there can be no serious dispute that Lee’s equipment was activated. Both officers testified that the emergency equipment was on. Even if one chose to disregard their testimony as biased, an independent witness, Denise Patrick, testified that the lights and sirens were on. Most importantly, the plaintiff, Vernon Hudson, testified to seeing the officers’ lights behind him and hearing the siren moments before the crash.
In spite of this evidence, the majority maintains that it is “questionable” whether the emergency equipment was on, choosing to base its conclusion that the equipment may not have been on primarily upon a halting, confused bit of cross-examination where Officer Ray is questioned by plaintiffs attorney, as well as two bits of speculation it then offers. Ray stated as follows:
Q. [Plaintiffs Attorney:] Did you put the lights on, the oscillating lights and siren on?
A. [Officer Ray:] I can’t recall.
Q. As you sit in this courtroom, you don’t have any memory of turning them on, do you?
A. I know they were on, but I don’t — I can’t recall — I don’t know what — I would have to see the car because sometimes the lights are on the driver’s side, and then sometimes they’re on my side.
Q. But as you sit here today, you don’t remember if they were on.
A. No, I can’t recall.” (Emphases added.)
It is clear to me that Officer Ray was responding to the first question — inquiring whether he turned the lights and sirens on — presumably as opposed to Officer Lee. The next question skillfully and quickly moves from whether he himself turned on the equipment to whether it was on at all, and he became confused, and responded again that he did “not recall.” Aside from a bit of speculation to be discussed below, this is the only genuine piece of evidence in a record where everybody else involved, including plaintiff, testified to seeing Lee’s lights and hearing sirens immediately before the crash.
Nonetheless, the majority claims that, aside from Ray’s testimony above, there is other evidence that Lee’s equipment was not activated, speculating upon two bits of testimony from Lee herself. Initially, Lee agreed at trial that upon entering the highway, there were “cars all around” and “some must have been passing her.” (These were actually plaintiff’s lawyer’s words; however, Lee agreed, albeit hesitatingly.) The majority then posits that no one would be passing a police car with lights and sirens activated, so Lee’s equipment was probably not on. In fact, in my view, common sense dictates otherwise. Lee said she activated her equipment upon entering the Eisenhower. Where this happens, it usually takes a number of minutes for other drivers to react and move out of the way. Cars certainly do not disappear instantaneously, and cars in front of her or slightly ahead of her may well have to pass to get to the right shoulder. I acknowledge that while this inference might conceivably be considered evidence that her equipment was not activated, in view of the solid testimony that it was, the latter seems unfounded. Further, if cars were actually “moving with her,” it corroborates her testimony that she was going 45 to 50 miles per hour, not 55 to 65 as Denise Patrick said.
Another reason the majority suggests that the emergency equipment was not activated presents an interesting issue. Officer Lee testified that Mr. Hudson pulled out in front of her, but Mr. Hudson maintained he pulled to the shoulder in response to lights and sirens behind him. The majority then speculates that Mr. Hudson actually pulled to the shoulder in response to the pursuers’ lights and sirens, then pulled back into the roadway in front of Lee. The majority then states that while possible, it would be illogical to think that Mr. Hudson would pull over for one set of lights, but pull out in front of Lee if her equipment was activated, so it must mean Lee’s equipment was not on. If true, it would have Mr. Hudson pulling over, waiting for some period of time because the pursuers were well ahead of Lee and she could not even see them, and then pulling out in front of a light-less, sirenless Lee.
However, Mr. Hudson’s testimony contradicts this scenario. He says he was pulling over in response to the lights, not pulling out, when he was hit. In any event, whether pulling out or pulling over, Mr. Hudson maintained that he reacted immediately upon seeing lights in his rearview mirror and hearing sirens and was struck only seconds later. Since it is indisputable that it was Lee who hit him, not the pursuers, it had to be Lee’s equipment Mr. Hudson saw and heard.
The more interesting aspect of this is, had the jury believed that Mr. Hudson pulled in front of Lee, as Officer Lee stated, there can be no question that this verdict is incorrect and the product of sympathy and/or prejudice. The verdict form reveals that the jury found plaintiff 0% negligent and the officers 100% negligent. If plaintiff pulled in front of the officers, this accident would essentially be his fault and surely the verdict would reflect some substantial percentage of negligence on the part of plaintiff. I believe it to be common knowledge on the part of drivers that one is required to yield when pulling into moving traffic from the shoulder of the road. See 625 ILCS 5/11 — 905, 11 — 709.1 (West 2006). In fact, either way, it is evident Mr. Hudson’s car occupied some part of Officer Lee’s lane, so it is surprising that the jury still found him 0% negligent. I take this to be evidence of the jury’s bias against the defendant City.
In one footnote, the majority hypothesized that the emergency equipment was not on, and the officers were driving in violation of a general order to activate it if in a pursuit. 378 Ill. App. 3d at 392 n.4. It then speculates, wholly without citation, that such conduct would “arguably” somehow render the officers unable to enforce the law. 378 Ill. App. 3d at 392 n.4. While this may be just a hypothetical, I note that there is simply no support in the record or in the law for this position, and none is offered. Would the majority also maintain that if these officers had apprehended the suspect after pursuing without permission, the arrest would be illegal?
As for a discussion of case law, the majority then offers something of a survey of the law where officers have and have not been found to be in the execution and enforcement of the law. The first cases are those in which officers were found to be in the execution and enforcement of the law. See Bruecks v. County of Lake, 276 Ill. App. 3d 567 (1995); Morris v. City of Chicago, 130 Ill. App. 3d 740 (1985); Fitzpatrick v. City of Chicago, 112 Ill. 2d 211 (1986).
Bruecks and Morris are virtually identical to the case at bar, although this case is even more compelling for finding the officers within section 2 — 202. In Bruecks, an officer heard a report of shots fired in the area. Bruecks, 276 Ill. App. 3d at 568. Although other officers were responding to the scene, the officer decided to respond as well. Bruecks, 276 Ill. App. 3d at 568. Unlike Officer Lee, he did not activate his emergency equipment and stated that he did not consider the situation to be an emergency. Bruecks, 276 Ill. App. 3d at 568. He was involved in an accident on the way to the scene, negligently striking plaintiff’s vehicle. Bruecks, 276 Ill. App. 3d at 568. The court stated that the officer was “clearly” being called upon to execute the law. Bruecks, 276 Ill. App. 3d at 569. The fact that he was not specifically dispatched to the scene, did not have his emergency equipment activated, and did not subjectively consider this to be an emergency did not affect the court’s decision. Bruecks, 276 Ill. App. 3d at 569. In this case, Officer Lee responded to a radio call and decided to go to the assistance of other officers, although not specifically dispatched to the scene and in spite of the fact that others were also responding. Unlike Bruecks, however, Officer Lee did have her emergency equipment activated. As in Bruecks, Officer Lee was in the execution and enforcement of the law and our result should be the same.
Similarly, in Morris v. City of Chicago, 130 Ill. App. 3d 740 (1985), the court held that an officer who struck plaintiff in plaintiffs parked car while responding to a radio call of a crime in progress was executing and enforcing the law and therefore immune under section 2 — 202. Morris, 130 Ill. App. 3d at 741, 744. The court found that the immunity applied because, at the time of the accident, there was an “unbroken effort” on the officer’s part to respond to the call and thereby execute and enforce the law. Morris, 130 Ill. App. 3d at 744. The court did not agree that the officer could not be said to be executing and enforcing, because he did not actually see a crime in progress. Morris, 130 Ill. App. 3d at 743. Here too, there was an “unbroken effort” on Officer Lee’s part to respond to the radio call as she thought appropriate. Like Morris, there was a crime in progress here as well: a homicide suspect eluding the police. See 625 ILCS 5/11 — 907 (West 2004). (Whether or not a crime has been, or is being committed seems to be key in the case law. See Bruecks, 276 Ill. App. 3d at 568-69; Morris, 130 Ill. App. 3d at 744; Bosen v. City of Collinsville, 166 Ill. App. 3d 848, 850-51 (1987); Leaks v. City of Chicago, 238 Ill. App. 3d 12, 14-15 (1992).) Morris is, in my view, indistinguishable and indeed the majority makes no effort to distinguish it. Bruecks and Morris are therefore controlling in the case at bar and should be followed.
In its order, the majority then moved on to discuss an “extensive” line of cases which find that the public employee involved was not executing and enforcing the law. I acknowledge that there are many such cases, but every one on which the majority relied is so factually different from this case as to be wholly inapposite. In Aikens v. Morris, 145 Ill. 2d 273 (1991), the supreme court found that the act of transporting prisoners was not covered by the immunity. In Simpson v. City of Chicago, 233 Ill. App. 3d 791 (1992), an officer on his way to fill out a missing persons report was not immune. In Leaks v. City of Chicago, 238 Ill. App. 3d 12, 14-15 (1992), a police officer cruising on routine patrol had an accident while backing up after stopping at a corner where some individuals were gathered. Although he maintained that he suspected drug activity, the court disagreed, saying no immunity applied where no crime had in fact been committed, the officer had nothing more than a suspicion that a crime had occurred, and he was essentially just cruising. Leaks, 238 Ill. App. 3d at 17. In Sanders v. City of Chicago, 306 Ill. App. 3d 356, 359 (1999), an officer was initially traveling to assist another officer, but he received word that the emergency was over prior to having an accident. The court disagreed with the trial court’s granting of summary judgment in favor of the City, instead granting summary judgment for the plaintiff, holding that the officer was not immune as a matter of law. Sanders, 306 Ill. App. 3d at 361-62. Clearly, these situations are dramatically different than the one in the case at bar. All the conduct by the officers in the aforementioned cases was either ministerial or routine or became routine by the passing of an emergency (see generally Sanders, 306 Ill. App. 3d at 359-62). Indeed, these cases stand for the proposition that routine activities are generally not immunized. Leaks, 238 Ill. App. 3d at 17; Aikens, 145 Ill. 2d at 278-79; Simpson, 233 Ill. App. 3d at 792-93. However, these situations are wholly unlike going to assist in the apprehension of a homicide suspect who was contemporaneously committing a crime.
In terms of analysis, the entire majority memo first adopts the position that the officers were not in the execution and enforcement of the law because they were not going to assist as they said, but were actually involved in a pursuit in violation of a general order. I note that the violation of a general order may be some evidence of willful and wanton conduct (although not here), but no cases support the proposition that a violation of a general order strips an officer of immunity or the ability to enforce the law (the significance of such a violation, or lack thereof, is extensively discussed in the section of this dissent addressing willful and wanton conduct).
According to the majority, it would be reasonable for the jury to inferentially conclude that the officers were actually pursuing, not going to assist, because they “closely” monitored their radio and changed lanes in response to what lane the fleeing felon was occupying. Both these things actually corroborate Lee’s position that she was going to assist, not pursuing, and not the other way around. Initially, I note that Lieutenant Jackson’s unrebutted testimony was that officers are not in pursuit or caravanning unless they can see the pursuit. Lee said she could not see the pursuit, but further, if she could, it would not have been necessary to monitor her radio to know where she was going or in what lane the felon was driving. Instead, Lee was clear that she never saw the white van that was being pursued and that she moved into the far right-hand lane only so that she would be traveling “in the same direction” if the suspect again exited the expressway, as he had previously done. In short, all of this confirms Lee’s testimony that she was going to assist, not engaged in a pursuit. If the jury believed otherwise, it would, in my view, be against the manifest weight of this evidence. See York v. Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d 147, 178 (2006) (“A new trial should be granted only when the verdict is contrary to the manifest weight of the evidence”). A verdict is against the manifest weight of the evidence when the opposite conclusion is clearly apparent. Redmond v. Socha, 216 Ill. 2d 622, 651 (2005). Here, it is.
The majority then turns the tables and states that the officers could not be in the execution and enforcement of the law because they were going to assist and were not the direct pursuers. Specifically, the majority delineates five specific reasons why the jury was justified in concluding that Lee was not enforcing the law if she was actually going to assist other officers: First, because Lee denied being in direct pursuit, or that she would be “hands-on” in apprehending the criminal; second, because Lee said that she was going to assist in the apprehension, she was merely “available” to enforce the law, not enforcing it; third, related to “availability,” because she was uncertain exactly what assistance would be required, her efforts were simply “unfocused” availability, conduct purportedly not entitled to immunity; fourth, the law being enforced was “nebulous”; and finally, the fifth reason the jury’s verdict is allegedly justified is because it could reasonably believe that Lee and Ray joined in this endeavor for their own amusement — out of curiosity or camaraderie with fellow officers — and were therefore not enforcing the law. None of the above reasons supports the latter conclusion, in my view.
First, the majority’s position that only prime actors, direct pursuers, and/or those who are first to apprehend the criminal enjoy immunity, finds no support in the law. Rather, the opposite is true, as Bruecks v. County of Lake, 276 Ill. App. 3d 567 (1995), Morris v. City of Chicago, 130 Ill. App. 3d 740 (1985), and Bosen v. City of Collinsville, 166 Ill. App. 3d 848 (1987), demonstrate. In those cases, officers began to travel to a scene in response to information received on their radios, as Lee and Ray did here; like Morris, here other cars were responding. Morris, 130 Ill. App. 3d at 742. None of the officers knew exactly what would be required when they arrived. In addition, in Bosen, the officer was exceeding the speed limit, as Lee is alleged to have done here, although the officer in Bosen was estimated to be traveling at 50 miles per hour on wet pavement in a 25-mile-per-hour zone as he responded to a radio call. As in the instant case, the officers in all three cases had an accident prior to reaching the scene, so none actually arrived. Nonetheless, the court found each officer to be unequivocally immune. See Bruecks, 276 Ill. App. 3d at 568-69, Morris, 130 Ill. App. 3d at 744, and Bosen, 166 Ill. App. 3d at 850-51.
Next, the majority maintains this verdict is justified because Lee was only attempting to assist in an apprehension, which allegedly amounts to simply making oneself “available” to enforce the law (citing Leaks), and does not trigger the immunity. Further according to the majority, where Lee did not know precisely what would be required of her when she arrived (traffic control or some other activity), her efforts were tantamount to an “unfocused” availability because no specific law was being enforced, or it was a “nebulous” one, not triggering immunity. I do not believe any of these arguments have merit.
I initially note that, in a sense, all officers are “available” for law enforcement just by walking into the area to report for their shift, and certainly while they are carrying out routine duties on their watch. There is, however, a qualitative difference between that kind of routine availability and the conduct of the officers here. It would be disingenuous to claim that Lee’s “availability” as she responded to this emergency is in any way the same as the availability of the officer on routine patrol in Leaks. Furthermore, there is no case law that supports the majority’s holding that immunity does not apply when officers are only “available” to enforce the law; certainly Leaks and Aikens do not. One might say that the officers in Bruecks, Morris, and Bosen were merely available at the time they heard the radio transmission. Where they took a substantial step to respond, however, mere availability was transformed into law enforcement activity and they were deemed to be immune. See Bruecks, 276 Ill. App. 3d at 568-69; Morris, 130 Ill. App. 3d at 743-44; Bosen, 166 Ill. App. 3d at 850-51. The officers in the case at bar should also be immune.
Puzzlingly, the majority comments that there is “little doubt that had Officer Lee merely been on her way to provide traffic control,” or “had the lead officers *** requested backup,” immunity would apply. (Emphasis added.) 378 Ill. App. 3d at 392. First, this ignores, or claims the jury rejected, the fact that the officer’s testimony was unrebutted that she was on her way to provide traffic control or do anything else which might be helpful. Second, Lieutenant Jackson testified that officers were expected to provide assistance and that decision was up to them. Where officers are expected to provide assistance, it stands to reason that no request for backup has to be made either. Third, nothing in the Act precludes immunity and no case is cited that stands for the proposition that an officer is stripped of immunity solely because no backup was requested or permission given. 745 ILCS 10/2 — 202 (West 2004).
Further, there is no confusion about what law was being enforced, nor is it “nebulous.” It is illegal to elude the police and, indisputably, this is the law that was being enforced; Lee and Ray’s conduct is clearly referable to that law. Simply because the officers did not know what activities would be required to enforce that law when they arrived, or whether some other law or laws would simultaneously require enforcement at the scene, i.e., traffic control, etc., does not make this conduct “unfocused” or strip them of immunity. The majority states, “The only law that was in actual need of enforcement related to the apprehension of the criminal suspect, and Officer Lee explicitly denied that she was taking part in that enforcement.” 378 Ill. App. 3d at 392. (Notably, the only thing Lee “explicitly denied” was being involved in a pursuit, not law enforcement — she testified that she intended to assist at the eventual apprehension if such was required, and that is law enforcement. See Bruecks, 276 Ill. App. 3d at 568-69; Morris, 130 Ill. App. 3d at 744; Bosen, 166 Ill. App. 3d at 850-51.) The officers here were clearly “engaged in a course of conduct designed to carry out or put into effect any law.” (Emphasis added.) Fitzpatrick, 112 Ill. 2d at 221.
The majority cites Leaks v. City of Chicago, 238 Ill. App. 3d 12 (1992), as authority that being “available” to enforce the law does not trigger the immunity. Leaks is completely different factually and is wholly inapplicable to the case at bar in my view. In Leaks, an officer on routine patrol backed over someone when leaving a gathering of individuals on a corner. The court said he was not entitled to immunity because he merely had a “suspicion” that a crime had been committed (drug activity) where one had actually not been committed. Leaks does not, as the majority claims, support a proposition that “availability” to enforce the law does not trigger immunity and in fact no case does. See Bruecks, 276 Ill. App. 3d at 568-69; Morris, 130 Ill. App. 3d at 743-44; Bosen, 166 Ill. App. 3d at 850-51. In the instant case, unlike Leaks,7 there is nothing routine about a homicide suspect eluding the police and an emergency situation that demanded the attention of many officers. Here, Lee and her partner were either responding to a specific call outside their district about a specific crime in progress at a specific place, the Eisenhower, to assist in the anticipated arrest in any way that was helpful, or they were pursuing under the same circumstances, albeit in violation of a general order to notify. Either way, simply because they had an accident prior to having the opportunity to carry out this task in no way diminishes Lee’s entitlement to immunity under the Act. See Bruecks, 276 Ill. App. 3d at 568-69; Morris, 130 Ill. App. 3d at 743-44; Bosen, 166 Ill. App. 3d at 850-51; see also 745 ILCS 10/2 — 202 (West 2004). Thus, the jury was not “free to conclude,” as the majority states, that she was not enforcing the law.
The majority next claims that the jury was again “free to conclude” that the officers were not enforcing the law because they joined in this pursuit for their own amusement, either out of personal curiosity or camaraderie with their fellow officers. First, I note that there is not a scintilla of evidence that this was the reason these officers responded. The jury may also have concluded that they were not enforcing the law because they were going to the movies or the beach, but that would not be justified either. I acknowledge that the jury is free to draw reasonable inferences from the evidence, but it is not free to indulge in pure, unsupported speculation or flights of fancy. See generally IPI Civil (2006) Nos. 1.01, 3.04. Moreover, the fact that “12 to 15” cars were involved in this effort is irrelevant and does not bolster the majority’s “camaraderie” argument, because neither Lee nor Ray knew how many cars were involved. In fact, it appears that no one knew, at the time of the incident, how many cars were involved until after the incident was over.
Moreover, I note that neither personal curiosity nor camaraderie is inconsistent with enforcing the law. It is reasonable to assume that there is some curiosity to learn about a situation and more than a bit of camaraderie involved in any effort officers make to assist each other or ensure one another’s safety. This does not mean that because camaraderie or personal interest is part of the motivation for some law enforcement activity, that such activity may not still be legitimately characterized as law enforcement, entitling the officers so engaged to immunity. For example, if officers rush to assist an officer down at the scene of a bank robbery and have an accident on the way, they would be, in my view, enforcing the law, even though part of their motivation stems from a feeling of camaraderie or loyalty to a fellow officer. See generally Bruecks, 276 Ill. App. 3d at 568-69; Morris, 130 Ill. App. 3d at 743-44; Bosen, 166 Ill. App. 3d at 850-51. Therefore, camaraderie or even curiosity cannot be said to be mutually exclusive with law enforcement, and I know of no case which holds otherwise.
Finally, on the point of enforcement, the majority insists that, when viewed in the light most favorable to Mr. Hudson, where general order 97 — 03 provides that only two cars may pursue without an “exception for assistance,” it “seriously calls into question” whether Lee was “truly attempting” to enforce the law or “even assist.” I frankly completely fail to see how one flows from the other. Even if Lee were involved in a pursuit in violation of a general order (to seek authorization), how does that “seriously call into question” whether she was “truly attempting to enforce the law” or “assist” in its enforcement? She would simply have missed a step — she did not call in. This argument suggests that the majority incorrectly elevates the violation of a general order to the violation of an actual law, perhaps taking the officer outside the scope of his or her employment and making him unable to enforce the law, or some such theory (as it intimated in a footnote in the opinion). However, the majority is aware, as the jurors are not, that internal standards of any organization have no legal effect whatsoever; their violation is not even negligence per se; and such a violation, if one occurred here, certainly did not remove the officers from the scope of employment. See Wade v. City of Chicago, 364 Ill. App. 3d 773, 781 (2006), citing Morton v. City of Chicago, 286 Ill. App. 3d 444, 454 (1997). Further, there is no authority to support an argument that an officer cannot be enforcing the law if in violation of a general order, and the majority cites to none.
COMMENT ON SPECIAL INTERROGATORY
Related to the above discussion of execution and enforcement of the law is plaintiffs attorney’s comment on the special interrogatory relating to enforcement in closing argument. Counsel stated, “Ladies and gentlemen[,] if you’re for Vernon[,] you will answer this special interrogatory [N]o.” This comment completely eviscerated the purpose of the special interrogatory, which is to test a general verdict (Simmons v. Garces, 198 Ill. 2d 541, 555 (2002)) and could not fairly be said to be made “in accordance with the evidence” as case law requires. Batteast v. Wyeth Laboratories, Inc., 137 Ill. 2d 175, 186 (1990). The comment appears by itself at the end of counsel’s closing. With regard to placing it in the context of the evidence, counsel’s sole effort to do that, if indeed that is what it was, was an offhanded reference to “other arguments” regarding “their affirmative defense made earlier.” There is no attempt to define the limits of enforcement or draw the jury’s attention to what is and is not enforcement, or exactly what Officer Lee did to take her out of the parameters of enforcement. The majority states that the comment is permissible because counsel did not “solicit the jury to harmonize its answer to [the special interrogatory with its] verdict *** nor did he delineate or emphasize the need to answer the special interrogatory with a ‘no’ if the jury wanted to award plaintiff damages.” 378 Ill. App. 3d at 396. It seems to me he actually did both when he told the jurors if they were “for Vernon” — in other words, if they wanted to give Vernon a verdict, i.e., money — they would answer the interrogatory “No.” His remark emphasizes the relationship between the answer to the interrogatory and the verdict in no uncertain terms and I think it is incorrect to say it does not.
Batteast v. Wyeth Laboratories, Inc., 137 Ill. 2d 175, 186 (1990), cited by the majority in its opinion, is more supportive of the dissent. In Batteast, the supreme court found a comment which was virtually identical to the one in this case to be improper where that lawyer told the jury that if they wanted to make an award in favor of plaintiff they had to answer an interrogatory a certain way. The Batteast court unequivocally found this comment to be improper, but reversed on other grounds, so we will never know if they would have reversed if the comment was the sole issue.
In O’Connell v. City of Chicago, 285 Ill. App. 3d 459, 467 (1996), the court stated that lawyers could make mention of special interrogatories, “[b]ut the line is crossed when jurors are told to harmonize or conform their interrogatory answer with their general verdict.” I presume this directive from the case law does not mean such remarks are only objectionable where the magic words “harmonize” or “conform the verdict” are used. Where that is the actual effect of a comment, I believe it to be improper. See generally O’Connell v. City of Chicago, 285 Ill. App. 3d at 467. Here, counsel’s directive to the jury, in my view, had just such an effect. Simply because the comment was only made once, “briefly,” as the majority states, taken in context or in any other way, this comment was reversible error and literally shaped the jury’s finding that this officer was not in the execution of the law where the evidence shows she was. Sommese v. Maling Brothers, Inc., 36 Ill. 2d 263, 268 (1966) (holding that the statement by plaintiffs attorney to the jury during closing argument to “harmonize” its answer on the special interrogatory with its general verdict was improper).
Significant to our case, the Sommese court also stated that “[e]ven if an objection had been made to the argument and sustained, defense counsel would be unable to overcome the fact that the jury had already obtained the forbidden information, not only as to the source of the interrogatory, but as to the effect of the interrogatory.” Sommese, 36 Ill. 2d at 268. Like Sommese, in the case at bar, the City objected, it was sustained, and the jury was later instructed that argument is not evidence. However, under these circumstances, I would not indulge in what is often a legal fiction that the bell can be unrung by an instruction to disregard. See Sommese, 36 Ill. 2d at 268. While Sommese is slightly different in that there, the lawyer told the jury which side had submitted the special interrogatory, the attorney’s actions in this case improperly let the jury know the effect of the answer. I also note that, where counsel instructed the jurors not to find Officer Lee in the execution and enforcement of the law if they were “for Vernon,” they were also alerted to the inextricable link between their answer to the interrogatories and the final outcome of the case — a link juries do not necessarily make on their own. This may well have influenced their answer to the next special interrogatory regarding willful and wanton. Finally, even though this improper comment occurred only once, it was so prejudicial as to deny defendant a fair trial, and is reversible error on that ground alone. Ramirez v. City of Chicago, 318 Ill. App. 3d 18, 26 (2000).
WILLFUL & WANTON
The plaintiff contended, and the jury and the majority agreed, that even if Officer Lee was in the execution and enforcement of the law, her conduct was willful and wanton, bringing her within the exception found in section 2 — 202 of the Act. I disagree.
Willful and wanton conduct is “a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property.” 745 ILCS 10/1 — 210 (West 2004). Willful and wanton conduct consists of more than mere inadvertence, incompetence, or unskillfulness. See Geimer v. Chicago Park District, 272 Ill. App. 3d 629, 637 (1995). As the courts have interpreted this phrase, proof is required that the defendant knew that his or her actions were likely to cause injury to another. In Medina v. City of Chicago, 238 Ill. App. 3d 385, 392 (1992), for example, this court described conduct as willful and wanton when “[a] person *** ignores known or plainly observable dangerous conditions and does something that will naturally and probably result in injury to another.” To prove willful and wanton conduct, a plaintiff must show that the defendant, “by deliberately inflicting ‘a highly unreasonable degree of harm’ on the plaintiff, ‘approache[d] the degree of moral blame attached to intentional harm.’ ” Morton v. City of Chicago, 286 Ill. App. 3d 444, 452 (1997), quoting Burke v. 12 Rothschild’s Liquor Mart, Inc., 148 Ill. 2d 429, 448 (1992); accord Wade v. City of Chicago, 364 Ill. App. 3d 773, 783 (2006).
In the opinion, the majority states the jury verdict is “clearly” sustainable on willful and wanton apparently for two reasons: because Lee allegedly made a “hard right turn,” and the officer’s car purportedly “jumped” across two lanes. I initially note that the “hard right turn,” which the majority relies on as “clear” evidence of willful and wanton conduct, was literally made up by the expert and is nowhere to be found in the evidence. I acknowledge that Lee would have had to veer to the right to cross lanes, but if she executed what most of us consider a “hard” right turn, i.e., as in turning a corner, she would have been going sideways across the lanes. There simply is no evidence of a hard right turn, and “jumping” (as described by Denise Patrick) across multiple lanes does not, in my view, provide corroboration of a hard right turn or anything else; in fact, no one even knows what is meant by this term.
In the first place, I think it obvious that “jumped” in this context is nothing more than a colloquialism, and not a description of what actually occurred. The majority complains that I take the term “literally” and I maintain that this is the only appropriate way to take it — to define the word by its plain and commonly accepted definition. Unlike the majority’s dictionary definition, my Webster’s defines “jumping” to mean, “to spring from the ground,” sudden leap “upward” (Webster’s New Compact Format Dictionary 1987); obviously, it would border on the ridiculous to claim that Lee’s car was actually jumping or “leaping upward,” where the highest speed anyone claims she was going is 65 miles per hour on dry pavement.
The majority instead applies an alternative definition, “moving quickly,” apparently from a different Webster’s. I would agree that if Lee was going up to 65 miles per hour, some might equate that with “moving quickly.” I do not agree, however, that going at a speed permissible by law for conditions and veering right to cross two lanes after exercising due care, which is all she essentially did, could conceivably be raised to the level of willful and wanton conduct. While it is true that jurors may properly find something willful and wanton in one case and simply negligence in another, mere incompetence or inadvertence is not enough (Geimer v. Chicago Park District, 272 Ill. App. 3d 629, 637 (1995)); willful and wanton always must have a quasi-intentional character that is entirely lacking here. Murray v. Chicago Youth Center, 224 Ill. 2d 213, 237 (2007). Fictional “hard right” turns and “jumping” police cars are hardly “clear” evidence of willful and wanton conduct, in my view. In fact, such evidence is virtually illusory when compared to the real evidence of the officers’ conduct in the instant case.
In that regard, a thorough review of what plaintiff says amounts to willful and wanton conduct plainly shows that none of these acts, standing either alone or in conjunction with each other, comes close to meeting the high bar of reckless disregard required for willful and wanton. Five of plaintiffs allegations accuse the officers of some violation of a general order regarding pursuit (b, c, i, j, and k), two allude to simple driving violations which plaintiff claims are in derogation of a general order (a and h), and some (a, e, f, and g) are only allegations relating to violation of various rules of the road under the Illinois Vehicle Code (625 ILCS 5/11 — 100 et seq. (West 2004)). Most amounted to nothing more than negligence, and the addition of the word “recklessly” does not transform conduct which is merely negligent into willful and wanton, i.e., “Recklessly failed to maintain control over her motor vehicle,” “Recklessly executed a lane change, striking Vernon Hudson’s motor vehicle,” etc. See Winfrey v. Chicago Park District, 274 Ill. App. 3d 939, 943 (1995) (“When the plaintiff is alleging that the defendant engaged in willful and wanton conduct, such conduct must be shown through well-pled facts, and not by merely labelling the conduct willful and wanton”); Robb v. Sutton, 147 Ill. App. 3d 710, 714 (1986) (“Recklessness connotes wilful and wanton conduct”).
Further, in my view, Officer Lee’s conduct could not be classified as willful and wanton as I understand the term, even if she had been engaged in a pursuit without permission and in violation of a general order. The majority states that a violation of a general order may be considered by the jury to be “some” evidence of willful and wanton conduct and I acknowledge that it may be. See First Springfield Bank & Trust v. Galman, 188 Ill. 2d 252, 256 (1999). Significantly, however, in order to be considered even “some” evidence of willful and wanton conduct, the violation of the general order in and of itself must be a proximate cause of this accident or one of them. See First Springfield Bank & Trust, 188 Ill. 2d at 256 (“To recover damages based upon a defendant’s alleged statutory violation, a plaintiff must show that *** (3) the violation proximately caused her injury”). For example, if a general order required an officer to wear a blue hat in a pursuit and she was wearing green, the violation of the general order would have nothing to do with the accident. So too in this case, permission or lack thereof had absolutely nothing to do with Lee’s driving that evening, and this accident would have occurred whether or not permission had been requested or given. As for her presence on the road, there is no evidence that permission would have been denied if requested, so it is reasonable to assume she would have been there and the accident would have occurred. Moreover, her presence on the road is not an issue because it is impermissible to reason back to infinity to establish probable cause, i.e., if Officer Lee had never been born, the accident would not have occurred either. See Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928) (Cardozo, C.J.).
Because the violation of the general order is not in this case proximately related to the occurrence, the jury would then have had to have based its decision that Lee was willful and wanton on her conduct alone. As previously noted, the crux of this allegedly willful and wanton conduct on the part of Officer Lee is that, going at or slightly above the speed limit,8 if one believes witness Denise Patrick’s testimony perhaps enhanced by four drinks and many obstacles blocking her view.9 The night was clear and dry, the road well-lit, her emergency equipment was activated, her turn signal was on, she checked her mirrors, and she was responding to an emergency. Lee changed lanes twice, and Patrick said that Lee moved from the far left lane to the far right lane (two lanes), colliding with Hudson’s car. Officer Lee’s testimony was that after she merged from the second lane into the right lane, Hudson’s car came from the shoulder into her lane, and that although she slammed on the brakes, she was unable to avoid hitting him. There was no testimony rebutting Officer Lee’s statement that she sought to avoid colliding with Hudson’s vehicle, and that would be a ridiculous assumption, given that she and her partner were in the car. I also point out that the officer safely traversed both lanes and would have gone directly forward if Mr. Hudson’s car had not been protruding into her lane either because he failed to fully pull over or was pulling out in front of Lee. Taken as a whole, then, this testimony does not even come close to a conscious disregard for the safety of others or the degree of moral blame attached to intentional harm. Morton v. City of Chicago, 286 Ill. App. 3d 444, 452 (1997); see also 745 ILCS 10/1 — 210 (West 2004). The fact that her turn signal was on, her emergency equipment was activated and that she braked in an attempt to avoid the collision, in fact, shows just the opposite — a conscious regard for the safety of others. Therefore, neither the violation of the general order nor the conduct itself could be evidence of anything other than negligence, if that. If the jury found otherwise, it was wrong because such a conclusion is against the manifest weight of the evidence. York, 222 Ill. 2d at 178.
Bosen v. City of Collinsville, 166 Ill. App. 3d 848 (1987), presents a similar situation, although this case is a stronger one for not finding willful and wanton conduct. In Bosen, a police officer responded to a burglar alarm at a private residence. Bosen, 166 Ill. App. 3d at 849. Traffic was heavy and the pavement wet, and the officer activated his emergency lights and used his siren intermittently as he drove. Bosen, 166 Ill. App. 3d at 849. At an intersection, the officer noticed another car crossing in front of him. Bosen, 166 Ill. App. 3d at 849. While he tried to avoid colliding with the other car, he could not. Bosen, 166 Ill. App. 3d at 849. The court found that the officer had been driving in excess of the speed limit, but it nonetheless concluded that the officer’s actions were not willful and wanton. Bosen, 166 Ill. App. 3d at 849-50. In reaching this conclusion, the court noted that the officer was using his emergency lights and his siren intermittently and sought to avoid the collision. Bosen, 166 Ill. App. 3d at 850. Even though he was unable to do so, that was merely negligence. Bosen, 166 Ill. App. 3d at 850.
Unlike in Bosen, driving conditions in the instant case were virtually ideal, and Lee had taken every precaution prior to executing her lane change. Like the officer in Bosen, Lee slammed on her brakes to avoid a collision but was unable to do so. Thus, the case at bar is virtually indistinguishable from Bosen and the officer’s conduct cannot be considered willful and wanton. Even where the evidence is viewed in the light most favorable to plaintiff, a judgment n.o.v. should have been granted.
Similarly, in Sanders v. City of Chicago, 306 Ill. App. 3d 356 (1999), the defendant police officer heard an emergency call that two fellow officers were being attacked at a location outside of the defendant officer’s beat. Sanders, 306 Ill. App. 3d at 359. Without requesting permission to do so, the officer left his beat and proceeded to the location of the attack. Sanders, 306 Ill. App. 3d at 359. While en route, he heard that the suspect had been cornered but not yet searched. Sanders, 306 Ill. App. 3d at 359. The defendant officer observed stopped traffic in his lane of travel, switched to the opposite lane in order to reach the scene more rapidly, and struck a pedestrian, who ultimately died. Sanders, 306 Ill. App. 3d at 359-60. The defendant officer claimed not to have heard a radio dispatch that no further help was needed. Sanders, 306 Ill. App. 3d at 359.
Despite traveling in the wrong lane of travel, being outside his regular beat, and the fact that the accident occurred after the suspect had been cornered, the court affirmed the jury’s finding the officer did not act in a willful and wanton manner. Sanders, 306 Ill. App. 3d at 367. The court noted that, although the officer entered the wrong traffic lane, he was responding to an emergency call from fellow officers, and prior to entering the wrong lane, the officer activated his siren, slowed down, and ensured there were no cars coming in the opposite direction. Sanders, 306 Ill. App. 3d at 367.
In the instant case, unlike Sanders, the emergency was ongoing at the time of the accident, and both Officer Lee and the officer in Sanders were involved in serious accidents while responding to the information they received over their radios, but the evidence is clear that Lee’s turn signal and emergency equipment were activated. The officer in Sanders, however, was found not to have acted in a willful and wanton manner, and given this evidence, this should have been the finding here.
JURY INSTRUCTION
Nonetheless, the jury did find the above conduct to be willful and wanton. In my view, this finding is easily attributable to the erroneous issues instruction it was given as well as plaintiff’s expert’s video discussed below. The instruction reflected plaintiffs complaint as to what he maintained officers had done in a willful and wanton manner. As previously stated, most of the conduct can only be described as simple negligence (see, notably, counts a, c, e, f, and g); the remaining allegations allege violations of general orders regarding pursuit (b, c, h, & j), which if proven, are not even negligence per se.
I am fully aware of the well-established rule that what a jury deems willful and wanton must be decided by the circumstances of each case and what may only amount to negligence in one case may be willful and wanton in another. Streeter v. Humrichouse, 357 Ill. 234, 238 (1934). However, “ ‘there is a qualitative difference between negligence and willful and wanton conduct’ ” that always differentiates the two: negligence never has the intentional or quasi-intentional character of willful and wanton conduct. See Murray, 224 Ill. 2d at 237, quoting Burke, 148 Ill. 2d at 450. For this reason, a jury may not link 2 (or 10, for that matter) negligent acts and say that, combined, they amount to willful and wanton. “Willful and wanton” is a different animal. See generally Burke, 148 Ill. 2d at 450. The jury appears to have ignored this qualitative difference here. If it found a lack of “due care” and/or “changing lanes” (or some combination thereof) to be willful and wanton, it was simply wrong.
I am also aware that this jury was properly instructed as to what actually does constitute willful and wanton conduct as the majority notes. However, it was then confronted by an instruction that had a laundry list of things which plaintiff claimed to be willful and wanton conduct, but were in reality only negligent acts. There is no reason to assume that it was able to discern that these acts, alleged in the instruction to be willful and wanton, were actually only negligence. Therefore, there can be no confidence in their conclusions.
This is especially true of those subparagraphs containing alleged violations of general orders. I doubt that it would surprise anyone if the average juror would equate a violation of a general order with willful and wanton conduct. Nonetheless, our courts in Illinois have repeatedly held that a violation of an organization’s internal standards are not even negligence per se, let alone willful and wanton conduct per se, reasoning that they do not impose legal duties. Morton, 286 Ill. App. 3d at 454. See also Floyd v. Rockford Park District, 355 Ill. App. 3d 695, 702 (2005) (holding that a public entity’s violation of its own rules does not constitute proof of negligence, much less willful and wanton conduct). Indeed, this trial court early on properly granted the City’s motion in limine to prevent plaintiff’s counsel from arguing that a violation of a general order was willful and wanton conduct per se. They were nonetheless provided with an instruction that implied that it was.
I agree with the City that this jury was likely confused by the list of what plaintiff claimed to be willful and wanton conduct and an incorrect assumption that a violation of a general order is willful and wanton behavior on the part of a police officer. This instruction was thus highly prejudicial to the City and may have tipped the balance in plaintiffs favor in this close case. NWI International, Inc. v. Edgewood Bank, 291 Ill. App. 3d 247, 258 (1997). Moreover, even if any of the subparagraphs of plaintiffs complaint properly described willful and wanton conduct, most could only be considered mere negligence, and we will never know upon which one or ones the jury relied in reaching the verdict. Where a jury is instructed that it may find the defendant liable for acts which legally cannot be the basis of liability, then any resultant verdict must be set aside even if other theories were properly before the jury. Darby v. Checker Co., 6 Ill. App. 3d 188 (1972).
The majority claims that the City has waived the instruction issue because it failed to proffer an instruction which pointed out the defect and gave a correct instruction. I note that waiver is a limitation on the parties, not on this court, and we may dispense with waiver when the interests of justice so demand. In re Estate of Funk, 221 Ill. 2d 30, 97 (2006); see also Mellon v. Coffelt, 313 Ill. App. 3d 619, 626 (2000) (holding that, “in the interest of justice,” the court would review a waived argument on appeal from a motion to dismiss). This is such a case, and the City is entitled to a new trial on this issue.
ADMISSION OF THE VIDEO
The City contends on appeal, and I agree, that it is entitled to a new trial because a video created by plaintiffs expert, Doctor Ziejewski, was erroneously admitted. I note that a video is a most powerful piece of evidence, perhaps disproportionately so — an observation requiring no citation, in my view. The doctor presented this film to the jury as though it was a mathematically and scientifically accurate representation of what occurred the evening of May 7, based on the immutable laws of physics. He even made it clear that his production was not an “animation” because they were similar to cartoons with no science behind them. Doctor Ziejewski also suggested that the computer would solve “all equations,” implying it would fill in the blanks. In reality, it was Doctor Ziejewski who filled them in.
There are at least six important facts which the expert seemed to literally invent, since either there was no testimony about these at trial or the trial testimony is directly contradictory to his video. These briefly are: (i) the expert used the wrong make and model of vehicle (though the right one was surely available); (ii) the simulation starts with Hudson’s vehicle going straight, despite testimony it was going to the right; (iii) Officer Lee’s vehicle starts at ten degrees off due West, despite there being no testimony to that effect; (iv) Officer Lee’s vehicle spun 180 degrees around before the impact, despite there being no supporting testimony; (v) her brakes were applied in a certain manner (50% to the front, 100% to the rear), absent any evidence; and (vi) Hudson steered his car to the right after impact, without any testimony to this effect. None of the above was contained in the evidence and Dr. Ziejewski even admitted that when he had “to introduce dynamic instability” in order to have the police car spinning out of control across the highway absent any testimony that it was, he interjected or invented the locking brake theory, though he did not know if the brakes actually did lock or if the police car had locking brakes. In fact, since there were no materials regarding skid marks, etc., Ziejewski did no more than look at pictures of damage to the cars.
French v. City of Springfield, 65 Ill. 2d 74 (1976), is instructive on this issue. In French, the court remanded for a new trial where a video was improperly introduced. French, 65 Ill. 2d at 81-82. The plaintiff claimed it was proffered merely to acquaint the jury with the area, but the court held it was meant to be a representation of what actually occurred and contained material mistakes. French, 65 Ill. 2d at 81-82. In our case, the admission was more clearly in error because Dr. Ziejewski said it was a representation of what occurred, not a simulation, and made no bones about his opinion that this presentation was a bulletproof recreation of the accident based on scientific principles. Thus, the instant case is even more compelling than French.
Hiscott v. Peters, 324 Ill. App. 3d 114 (2001), is also on point, but again the instant case is far more dramatic in terms of missing or false “facts.” In Hiscott, the expert stated that the defendant’s car went into a “yaw” once it left the gravel shoulder and returned to the pavement, although there was no physical evidence to support that opinion. Hiscott, 324 Ill. App. 3d at 119. The appellate court held there was no evidence of yawing or that the defendant was braking at the time of the accident. Hiscott, 324 Ill. App. 3d at 123-24. In our case, the expert injected not one or two but six “facts” into his video which are wholly unsupported by the evidence and/or contradict it.
The majority attempts to distinguish Hiscott by saying that in Hiscott there was “insufficient” evidence of the expert’s theory, but in this case, all the missing facts could be found inferentially in other evidence introduced at trial. In my view, the connections that the majority seeks to make between these missing “facts” and other evidence in the record are entirely improper in that they are well beyond what might be fairly considered reasonable inferences from the evidence, and must themselves be the subject of expert testimony. See Wade v. City of Chicago Heights, 295 Ill1. App. 3d 873, 882 (1998) (holding that expert testimony is proper where the evidence offers “ ‘knowledge and application of principles of science beyond the ken of the average juror’ ”), quoting Zavala v. Powermatic, Inc., 167 Ill. 2d 542, 546 (1995); see also Compton v. Ubilluz, 353 Ill. App. 3d 863, 867 (2004) (“Evidence is ‘beyond the ken’ of the average juror when it involves knowledge or experience that a juror generally lacks”).
For example, the majority asserts that Dr. Ziejewski’s statement that Officer Lee made a “hard right turn” prior to the collision is supported by Patrick’s testimony that the vehicle “jumped” across the lanes. As previously discussed, there are varying definitions of “jumping,” and we, therefore, do not even know what it means. Moreover, “jumping” does not provide corroboration of anything, let alone a hard right turn. The purported hard right turn was literally made up by the expert; further, any connection that might exist between “jumping” and turns is outside the knowledge of the average layman, and must be offered by an expert.
Next, the majority states that Ziejewski’s injection of the 180-degree spin across the highway finds corroboration in the fact that the police car came to rest facing Hudson’s car. Aside from the fact that there was no evidence of a spinning police car from anyone but the expert, a more reasonable conclusion was that the police car simply was turned around by this hard impact. Third, as though it has established a fact with its 180-degree hypothesis, the majority concludes that the application and locking of Officer Lee’s brakes— found nowhere in the evidence — is borne out by the fact that the police car traveled across three lanes and spun 180 degrees. Clearly, she could travel across three lanes wholly absent locking brakes and may well have. Moreover, the officers denied any spinning until impact and no one saw the police car spinning across the lanes.
Because I am not an expert, I haven’t any idea if a hard right turn is corroborated by “jumping,” whether the direction the police car faced postaccident had anything to do with a 180-degree spin, or whether this alleged spin means that Officer Lee’s brakes locked. In my view, such conclusions are well beyond a “reasonable inference from the evidence,” and are purely a matter for expert testimony. These may not properly be offered by the majority as a reason to justify the fact that this expert drew conclusions either absent evidence or in derogation of it. The missing “facts” are thus not in the evidence either directly or inferentially; therefore, this video lacked foundation and was erroneously admitted, requiring a new trial. French and Hiscott are directly on point, and if they are correctly decided, then this case is not, at least on the issue of the video. I further agree with the City that along with the erroneous instruction, this video was very influential in the jury’s conclusion that the officer’s conduct was willful and wanton.
For the foregoing reasons, I respectfully dissent.
Moreover, Leaks is not “consonant” with Fitzpatrick v. City of Chicago, 112 Ill. 2d 211 (1986), as the opinion states. In fact, Fitzpatrick is far more supportive of the dissent than the majority opinion. In Fitzpatrick, no crime had occurred, simply a traffic accident which required investigating. Accident investigation comes closer to the routine conduct of the officer in Leaks than that of the officers in in the case at bar. Nonetheless, in Fitzpatrick, unlike Leaks, the officer was immune.
I am not “excusing” a speed above the limit, as the majority states, and indeed no excuse is needed for an officer in these circumstances. In an emergency, an officer may exceed the speed limit if such will not endanger others and can reasonably expect citizens to clear the way pursuant to statute. 625 ILCS 5/11 — 205(c), 11 — 907(a) (West 2004). There would be no reason for Officer Lee to think a slightly elevated speed in virtually ideal driving conditions that evening would pose a danger.
I am well aware the jury may accept Patrick’s testimony, but in this case, I would deem acceptance of such flawed testimony more evidence that this verdict is the result of bias against the City. Patrick admitted to having had four shots. She was viewing the scene from a street above the Eisenhower and looking across many lanes of traffic, after dark with the bright lights of the roadway and the “el” platform. It is not surprising that she was able to see the blue lights and hear Lee’s siren, under these circumstances, but other evidence she offers seems very questionable — elevated speed, “jumping,” etc.