Morton v. City of Chicago

                                             Third Division
                                             January 22, 1997


                              

No. 1-95-1192

REGINA MORTON,                )    Appeal from 
                              )    the Circuit Court 
     Plaintiff-Appellant,     )    of Cook County.
                              )
          v.                  )    
                              )
CITY OF CHICAGO,              )    The Honorable
                              )    Leonard Levin,
     Defendant-Appellee.      )    Judge Presiding.
     
                         
     Justice Leavitt delivered the opinion of the Court:
     On February 28, 1990, the plaintiff, Regina Morton, was
rendered paraplegic when a car driven by Jamal Massie careened
into her as she was sitting at a bus stop near 59th and State
Streets in Chicago.  At the time, Massie was attempting to elude
police and had been travelling southbound on State Street at
speeds estimated at up to 60 miles per hour.  He crossed into the
northbound lanes, ignored a red light at 59th Street and hit a
taxicab.  His vehicle deflected off the cab and into the
plaintiff, severing her spinal cord.  She sued Massie, as well as
the City of Chicago (the City), alleging that the police had been
negligent and wilful and wanton while in  pursuit of Massie.
     The plaintiff settled with Massie's auto insurer.  Pursuant
to the immunity provided by section 2-202 of the Local
Governmental and Governmental Employees Tort Immunity Act (Tort
Immunity Act) (745 ILCS 10/2-202 (West 1994)), the trial judge
granted summary judgment in favor of the City on the negligence
count.  The wilful and wanton count was tried, and a jury
returned a general verdict in favor of the plaintiff, awarding
$2,000,000 in damages.  The jury apportioned 20 percent of the
liability to the City and 80 percent to Massie.  In response to a
special interrogatory, however, the jury responded "no" to the 
question of whether either or both of the police officers driving
the squad car in pursuit of Massie had acted in a wilful and
wanton manner.  Given the inconsistency between the general
verdict and the answer to the special interrogatory, the trial
judge entered judgment notwithstanding the verdict in favor of
the City. See 735 ILCS 5/2-1108 (West 1994).  We affirm.
     On the day the plaintiff suffered her injuries, Chicago
Police Officer Vance Bonner and Detective Louis Ford were working
together as part of the police department's District 2
"plainclothes" tactical unit.  District 2 is a high crime area
located between 35th and 60th Streets.  Ford and Bonner drove an
unmarked vehicle equipped with a radio, as well as a high
intensity spotlight, "oscillating" headlights and a siren.  The
latter two devices are operated by a switch located underneath
the car's dashboard.  
     According to both Ford and Bonner, on February 28, they
received information that occupants of a red car had been
involved in a gang feud that had erupted in District 2.  The feud
included drive-by shootings, and the officers were informed that
the occupants of the red car would be in possession of guns and
possibly narcotics.  At about 6:40 p.m., Ford was driving, and
the two officers were on 53rd Street between Wabash and State
Streets when they observed a red Nissan stopped in the middle of
the street.  This area of District 2 "was noted for extremely
heavy narcotics trafficking and gang activity."
     Officer Ford stopped his car behind the Nissan and activated
his oscillating headlights in order to alert the car's occupants
that Ford and Bonner were police.  Ford also turned on the
spotlight to illuminate the inside of the Nissan.  Several people
were also milling about outside the Nissan.  Ford and Bonner got
out of their car and announced that they were police officers. 
Each officer removed his gun from its holster.  Officer Bonner
was behind Ford.  As the two approached, Ford observed an
occupant in the front passenger seat point "a small caliber
handgun" at him.  Ford yelled to Bonner that the man had a gun
and then prepared to defend himself by aiming his weapon at the
occupants of the car.  As he did so, Massie, the driver of the
car, drove away, heading east on 53rd Street, accelerating to a
high rate of speed.  
     Ford and Bonner returned to their car and began driving east
on 53rd Street.  Their oscillating headlights remained "on." 
Ford did not activate the car's siren at that time or at any time
prior to the plaintiff's injury.  He decided not to do so for
several reasons.  He believed it was unsafe to do so because
traffic was heavy at the time, and he did not want to unduly
alarm other drivers who might, for instance "slam on their brakes
[or] move over without looking [in order] to surrender the right-
of-way to the officer."  Ford also stated that sounding his siren
would have been futile "because the fleeing assailant was so far
away that the probability of me apprehending him was somewhat
null at that point."  He did not perceive that he presented any
danger to anyone because the Nissan was so far ahead of him that
the siren would have been ineffective in warning others about the
speeding Nissan.  Finally, Ford believed that it would be unsafe
for him to activate the siren because he would be unable to hear
the sirens of other police cars.
     When he arrived at the corner of 53rd and Wabash, Ford saw
the Nissan turn onto 54th Street, heading west.  Ford testified
that he did not consider himself in "pursuit" of the Nissan,
although in reports he filled out following the arrest of the
Nissan's occupants, Ford indicated that he had been in pursuit of
the car.  In any event, as they continued, Bonner, using the car
radio, apprised other officers in the area of the situation.
     Ford stated that he was driving between 30 and 35 miles per
hour.   As Ford and Bonner proceeded south on Wabash, the Nissan
was about a block ahead of them, but they eventually lost sight
of it.  Ford turned onto 54th Street and drove west, still unable
to see the Nissan.  They reached the intersection of 54th and
State Streets, and Ford saw the Nissan heading south on State
Street, approaching the intersection of 55th Street and Garfield
Boulevard.  Ford waited for traffic to clear and turned
southbound on State Street.  The Nissan passed through a red
light at 55th Street.  Bonner continued relaying the position of
the Nissan to other officers by radio.
     The Nissan gradually increased its distance from Ford and
Bonner to two blocks.  As the officers passed Garfield Boulevard,
Ford saw the Nissan speed through a red light at 57th Street. 
Ford stopped for the red traffic signal at 55th Street and
proceeded when the light turned green.  Ford watched as the
Nissan crossed from the southbound lanes of State Street into the
northbound lanes.  At 57th Street, he stopped for another red
light.  Although he was uncertain if it was before he stopped or
after he passed through the subsequent green light at 57th
Street, Ford watched the Nissan speed through another red light
at 59th Street and strike a cab in the intersection.  Also, at
57th Street, Ford saw another unmarked police vehicle, which he
believed belonged to Officers Hampton and Russell.  Hampton's
testimony confirmed Ford's as to the movement of the Nissan
between 57th and 59th Streets.  Hampton watched the Nissan hit
another car as Ford's vehicle passed him at 57th Street.  
     Ford proceeded to 59th Street and observed that the Nissan
had come to rest underneath the elevated tracks on the east side
of State Street.  Other police officers also arrived, and Ford
informed them that the occupants of the Nissan were armed with
guns.  The officers approached the car with guns drawn.  Massie
had fled, but other passengers were still inside, injured.  They
were arrested.  The plaintiff was discovered, injured, on the
sidewalk.
     The plaintiff's action against the City was premised largely
upon Ford's failure to activate his siren.  She offered into
evidence section VI of Chicago Police Department General Order
81-8, which governs the manner in which police officers are to
engage in emergency vehicular pursuits of suspects.  The policy
underlying section VI is as follows:
     "that a motor vehicle pursuit is justified only when
     the necessity of immediate apprehension outweighs the
     level of inherent danger created by the pursuit. 
     Officers and their supervisors will evaluate the nature
     of the pursuit in light of its dangers and make a
     judgment whenever necessary to terminate the pursuit. 
     AN OFFICER INVOLVED IN A MOTOR VEHICLE PURSUIT MUST BE
     PREPARED TO JUSTIFY HIS ACTIONS."  (Emphasis in
     original.)  General Order 81-8, sec. VI(A).
Section VI(D)(1)(c) provides that "[p]olice officers operating
unmarked Department vehicles may only engage in a motor vehicle
pursuit in the event of an extreme emergency (e.g., when the
fleeing motor vehicle represents an immediate and direct threat
to life or property.)"  General Order 81-8, section VI(D)(1)(c). 
Most important, as regards this action, the operator of an
unmarked police vehicle "will only initiate a motor vehicle
pursuit when *** he *** has activated the high-beam oscillating
head lights and siren."  General Order 81-8, sec. VI(D)(2)(a)(2).
     The plaintiff contended that Ford's and Bonner's failure to
activate their siren was wilful and wanton conduct which caused
her injury.  The plaintiff theorized that had either she or the
driver whose cab was struck by Massie heard a siren, they would
have been made aware of and been able to avoid being struck. 
Although the jury issued the general verdict in her favor, the
trial judge entered judgment for the defendant due to the jury's
answer to the special interrogatory.
     The plaintiff contends that the answer to the special
interrogatory was not inconsistent with the general verdict. 
Special interrogatories "act as a check upon the deliberations of
the jury as to an ultimate question of fact."  LaPook v. City of
Chicago, 211 Ill. App. 3d 856, 865, 570 N.E.2d 708 (1991).  If
the jury's answer to a special interrogatory is inconsistent with
a general verdict, the special interrogatory controls the outcome
of the case.  735 ILCS 5/2-1108 (West 1994).  However, if the
special interrogatory "does not cover all of the issues submitted
to the jury and a reasonable hypothesis exists to permit the
general verdict to be construed consistently with the special
interrogatory, they cannot be said to be irreconcilable and the
special finding will not control."  LaPook, 211 Ill. App. 3d at
865.
     The special interrogatory stated, "Was the conduct of
Detective Louis Ford or Officer Vance Bonner or both wilful and
wanton?"  The plaintiff asserts three bases from which she
concludes that the general verdict was consistent with the
negative answer to the interrogatory.
     First, the plaintiff argues that because the special
interrogatory is in "doubly-disjunctive form, positing three
separate, and essentially mutually exclusive, alternative
questions," a negative answer to the question is consistent with
a general verdict in the plaintiff's favor.  According to the
plaintiff, the jury may have answered "no" to the question
because it found Officer Bonner's conduct as the passenger in
Detective Ford's car to be not wilful and wanton, but issued the
general verdict in the plaintiff's favor because it found Ford's
conduct in failing to use the siren to be wilful and wanton.
     The defendant points out that the plaintiff failed to raise
a specific objection as to the disjunctive form of the
interrogatory and has, therefore, waived the issue.  The
plaintiff responds that her general objections to the giving of
the interrogatory suffice to preserve all issues as to its form. 
Generally, a party's failure to raise a specific objection to the
form of an interrogatory waives that ground when raised on
appeal.  LaPook, 211 Ill. App. 3d at 864.  We have reviewed the
record, and the plaintiff did not object to the disjunctive form
of the interrogatory.  Therefore, it is waived.
     However, as the court in LaPook pointed out, although the
plaintiff may have waived a question as to the form of the
interrogatory, she is still only bound by the interrogatory to
the extent it is inconsistent with the general verdict.  LaPook,
211 Ill. App. 3d at 864-65.  Thus, we still address the
plaintiff's contention because its primary thrust is that the
general verdict was not inconsistent with the negative answer to
the special interrogatory.
     The plaintiff does not explain how the disjunctive form of
the interrogatory renders the answer consistent with the general
verdict, beyond citing the decision in Kirshenbaum v. City of
Chicago, 43 Ill. App. 3d 529, 357 N.E.2d 571 (1976).  There, a
trial judge found that a police officer acted in a wilful and
wanton manner in failing to use his siren.  In that case, the
officer had been pursuing a vehicle at speeds beyond the posted
limit when he collided with the plaintiff's car.  The Kirshenbaum
case is inapposite for many reasons.  The decision resulted from
a bench trial, hence there was no special interrogatory. 
Furthermore, the trial judge specifically found the officer in
that case to have acted in a wilful and wanton manner. 
     We construe special interrogatories "in light of what an
ordinary person would understand them to mean, and not on the
basis of *** abstract mathematical analysis.  LaPook, 211 Ill.
App. 3d at 866.  We believe the language of the special
interrogatory is both plain and clear.  It asks whether Ford or
Bonner or both were wilful and wanton.  The jury's negative
answer is not consistent with any hypothesis that the jury may
have found that one of these men was acting appropriately and the
other was not.  On the contrary, such an understanding by the
jury would have required an affirmative answer to the inquiry.
     The plaintiff argues that because the interrogatory "fails
to limit the inquiry to before and at the time of the
occurrence,"  the jurors may have assessed the officers' conduct
as to time periods which were not relevant to the inquiry before
them.  The plaintiff failed to raise an objection to this matter
of form before the trial judge during the instruction conference,
and it is, therefore, waived for review.  LaPook, 211 Ill. App.
3d at 864.  However, as with her previous contention, we must
examine the substance of the claim to determine whether, with
regard to the time-frame issue, the jury's answer to the
interrogatory is consistent with the general verdict.
     We construe a special interrogatory within the context of
all of the instructions to determine how it was understood by the
jury.  LaPook, 211 Ill. App. 3d at 856;  Vuletich v. Bolgla, 85
Ill. App. 3d  810, 817, 407 N.E.2d 566 (1980).  We believe a
properly instructed jury, like the one here, would logically
consider events during the time and circumstances surrounding the
plaintiff's case.  In Stephenson v. Air Products & Chemicals,
Inc., 114 Ill. App. 2d 124, 252 N.E.2d 366 (1969), relied upon by
the plaintiff, the absence of a time-frame from the rejected
interrogatory was confusing because the jury was being asked to
assess damages for an injury that resulted from negligence
occurring five years before the injury.  Also, as the defendant
notes, to the extent the interrogatory may have expanded the time
frame the jury could consider, it offered the plaintiff a larger
window of time within which to prove her case.  
     Finally, the plaintiff contends that the failure of the
interrogatory to include all of the policemen involved in the
pursuit of Massie's car renders the jury's answer of no
consequence.  The plaintiff explains that the jury's general
verdict reflects that it found that an agent of the defendant was
guilty of wilful and wanton conduct.  Thus, because other
officers responded to Officer Bonner's radio call and the
evidence indicates that none of them sounded a siren, the answer
as to Ford and Bonner is not inconsistent with the general
verdict which indicated that the jury believed that some other
officer acted in a wilful and wanton manner.   
     The trial judge rejected this form of the interrogatory
because he believed that Detective Ford and Officer Bonner were
the only officers involved in the pursuit of Massie.  We review a
judge's decision to not give an interrogatory as a question of
law.  735 ILCS 5/2-1108.  Generally, a trial judge has no
discretion to reject a special interrogatory which is proper in
form.  Pry v. Alton & Southern Railway Co., 233 Ill. App. 3d 197,
598 N.E.2d 484 (1992).  Likewise, however, it is error for a
trial judge to submit a special interrogatory on an issue when
the record contains no evidence upon which the jury could rely to
answer the question.  Paul v. Garman, 310 Ill. App. 447, 34 N.E.2d 884 (1941); Nosko v. O'Donnell, 260 Ill. App. 544 (1931). 
Here, there is simply no evidentiary basis to support a
conclusion that anyone other than Officer Bonner and Detective
Ford acted in a wilful and wanton manner.  Although other
officers may have responded to Bonner's radio call, there is no
evidence that any of them were in pursuit of Massie's car, as
that term is defined in General Order 81-8:
          "A motor vehicle pursuit is an active attempt by
     an officer operating a Department vehicle to apprehend
     any driver or operator of a motor vehicle who, having
     been given a visual or audible signal by the officer
     directing such driver or operator to bring his vehicle
     to a stop, willfully fails or refuses to obey such
     direction."  General Order 81-8, sec. VI(C).
General Order 81-8 does not require all officers who are aware of
or who observe a pursuit to begin sounding their sirens to
generally warn the public.  Thus, evidence that police personnel
other than Ford and Bonner did not sound their sirens as they
converged on the suspects does not constitute evidence of their
wilful and wanton conduct.  The trial judge did not err in
limiting the special interrogatory to Ford and Bonner.
     The plaintiff next contends that there was no evidentiary
basis for the jury's negative response to the special
interrogatory, and, therefore, she was entitled to judgment.  In
order to establish that the jury's verdict was against the
manifest weight of the evidence, the plaintiff must show that
"the opposite conclusion is clearly evident or the findings of
the jury are unreasonable, arbitrary, and not based on any
evidence."  DiMarco v. City of Chicago, 278 Ill. App. 3d 318,
325, 662 N.E.2d 525 (1996).  Here, the evidence amply supports
the jury's answer to the special interrogatory.
     The jury was instructed that to find for the plaintiff, it
had to conclude that the defendant had engaged in "a course of
action which shows an utter indifference to or conscious
disregard for the safety of others."  Our courts have interpreted
this to mean that a plaintiff must prove that the defendant's
conduct was reckless (Ziarko v. Soo Line Railroad Co., 161 Ill. 2d 267, 273-74, 641 N.E.2d 402 (1994)), and by deliberately
inflicting "a highly unreasonable risk of harm" on the plaintiff,
"approache[d] the degree of moral blame attached to intentional
harm."  Burke v. 12 Rothschild's Liquor Mart, Inc., 148 Ill. 2d 429, 448, 593 N.E.2d 522 (1992).
     Here, the evidence showed that Detective Ford and Officer
Bonner stopped their squad car behind another car the occupants
of which were suspected of illegal activity.  When the officers
left their vehicle, a passenger in that car pointed a gun toward
Detective Ford.  Massie sped away from the police officers, who
were left standing in the street.  The officers returned to their
car, and with oscillating headlights engaged, began to follow
Massie.  The officers testified that they never exceeded 35 miles
per hour as they followed Massie.  They briefly stopped at red
lights and otherwise obeyed safety rules, as dictated by General
Order 81-8.  The plaintiff presented no witnesses who testified
otherwise.
     The officers' testimony as to their speed and conduct is
supported not only by their testimony that Massie's lead over the
officers doubled during the course of the pursuit, but by that of
Officer Hampton, who stated that the accident occurred while Ford
and Bonner were around 57th Street, nearly two blocks away. 
Although the passenger in the taxi hit by Massie's car testified
that the police arrived very quickly to the scene of the
accident, we note that the pursuit did not cover a vast distance. 
     We believe the evidence in the record shows the officers'
due regard for the safety of the general population.  The sole
basis in the record upon which the plaintiff seeks to hold the
defendant liable is that Detective Ford's failure to activate his
siren, in and of itself, constituted wilful and wanton conduct.  
     The plaintiff asserts that Ford's action was in violation of
section 12-601(b) of the Illinois Vehicle Code, which states that
the operator of an emergency vehicle, when pursuing a suspected
violator of the law "shall sound [his] siren *** when necessary
to warn pedestrians and other drivers." (Emphasis added.)  625
ILCS 5/12-601(b) (West 1994).  Although it is unclear whether the
plaintiff offered this statute as an evidentiary basis in the
trial court, clearly, it contemplates that operators of emergency
vehicles will exercise discretion in using their sirens.  This is
in accord with our case law, under which the failure of a police
officer to activate a siren during a pursuit, without more, is
not evidence of wilful and wanton conduct.  E.g. Valiulis v.
Scheffels, 191 Ill. App. 3d 775, 789-90, 547 N.E.2d 1289 (1989).
     Also, in Kirshenbaum v. City of Chicago, the court upheld a
finding that a police officer who collided into an oncoming
vehicle while pursuing it was wilful and wanton for failing to
activate his siren.  The record in that case contained evidence
that the angle of the morning sun would have blinded oncoming
cars.  Kirshenbaum, 43 Ill. App. 3d at 532-34.  Here, there was
no evidence to show that Detective Ford's activation of his siren
would have successfully warned people who were at least two
blocks away that Massie was approaching.  In fact, Ford stated
that one of the reasons he did not activate his siren was that he
did not think it would act as a successful warning given the
distance between his car and Massie's.  
     We also do not believe that Detective Ford's "violation" of
General Order 81-8, section VI(D)(2)(a)(2), in and of itself,
constituted wilful and wanton conduct.  That section requires
operators of unmarked police vehicles to activate their siren
when engaged in a pursuit.  We note, initially, that the record
could have supported a reasonable finding by the jury that Ford
and Bonner were not "pursuing" Massie.  The evidence shows that
Ford did not travel at speeds equal to Massie.  Furthermore, Ford
stopped his car for traffic signals.  He testified that he did
not consider himself to be in pursuit of Massie, although we
recognize that in arrest reports filled out in conjunction with
the incident, Ford wrote that he was in pursuit.  
     Even assuming the jurors found that Ford and Bonner were
pursuing Massie, they could have reasonably accepted, as evidence
of due care, Ford's explanation for not turning on his siren. 
Ford stated that he wanted to avoid alarming other drivers, who
might slam on their brakes, thus increasing the danger of the
situation.  As we noted earlier, Ford also believed that he was
unlikely to apprehend Massie because Massie was far ahead of
Ford's squad car.
     While section VI(D)(2)(a)(2) speaks in mandatory terms, we
cannot conclude that an officer's reasoned determination to not
follow its dictates amounts to evidence of wilful and wanton
conduct per se.  Violation of a statute does not constitute
negligence per se because the evidence of violation may be
rebutted by  proof that a party acted reasonably under the
circumstances.  Leaks v. City of Chicago, 238 Ill. App. 3d 12,
18, 606 N.E.2d 156 (1992).   Indeed, the violation of self-
imposed rules or internal guidelines, such as General Order 81-8,
does not normally impose a legal duty, let alone constitute
evidence of negligence, or beyond that, wilful and wanton
conduct.  Blankenship v. Peoria Park District, 269 Ill. App. 3d
416, 422-23, 647 N.E.2d 287 (1995).  
     In regard to the evidence in this case, we reiterate that
which this court stated recently:
          "'In order for a defendant's acts or omissions to
     be characterized as wilful or wanton, they must have
     been committed with actual or deliberate intention to
     harm or with an utter indifference to or conscious
     disregard for the safety of others.  *** In evaluating
     the conduct of the police officers here, we must be
     mindful of the reason for their pursuit of [Massie]. 
     The evidence *** establishes that [Massie] was driving
     his car in a reckless manner and endangering the public
     before the police began to chase him.'"
Urban v. Village of Lincolnshire, 272 Ill. App. 3d 1087, 1095,
651 N.E.2d 683 (1995) quoting Breck v. Cortez, 141 Ill. App. 3d
351, 360-61, 490 N.E.2d 88 (1986).
     As in the Urban case, the record simply contains no evidence
that Detective Ford or Officer Bonner acted in the manner
required for the plaintiff to recover.  Rather, the evidence is
to the contrary, and the jury's answer to the special
interrogatory must govern the general verdict.
     Even were we to conclude otherwise, we agree with the
defendant that the record contains absolutely no evidence upon
which the jury could rely to conclude that any action by the
police officers in this case was the proximate cause of the
plaintiff's injuries.  When the plaintiff received her injuries,
the police were approximately two blocks away from her and
Massie's car.  The absence of a siren did not impact on Massie's
actions in driving through a red light and into oncoming traffic. 
While the officers' initial actions in stopping behind Massie's
car may have served as the impetus for Massie to act as he did in
speeding from the scene, Massie's subsequent actions, alone,
caused this tragedy.  There is no evidence that the actions of
the officers were a proximate cause of the plaintiff's injuries. 
Thompson v. County of Cook, 154 Ill. 2d 374, 382-83, 609 N.E.2d 290 (1993); Nelson v. Thomas, 282 Ill. App. 3d 818, 668 N.E.2d 1109 (1996).  Thus, were we to have held otherwise as to the
special interrogatory, we would conclude, as urged by the
defendant, that the jury's general verdict was against the
manifest weight of the evidence.    
     As a final matter, we address the plaintiff's contention
that the trial judge erred in entering summary judgment on her
negligence count against the defendant.  Of course, the
defendant's employees and agents are immunized in this regard by
section 2-202 of the Tort Immunity Act, so long as they are
engaged in the "execution or enforcement of any law". 745 ILCS
10/2-202.  The plaintiff contends that the police officers
involved in pursuing Massie were not engaged in law enforcement
at the time.  
     Here, the police suspected Massie and his passengers of
being involved in drive-by shootings.  Massie's car was blocking
the road when Detective Ford stopped behind him, activating his
oscillating lights, a recognizable sign of police activity.  One
of Massie's passengers drew a gun on Detective Ford, and Massie
sped off, violating numerous traffic laws.  Detective Ford
followed.  These facts, as well as our case law, establish that
any contention that the police involved here were not engaged in
law enforcement is utterly baseless.  See, e.g., Fitzpatrick v.
City of Chicago, 112 Ill. 2d 211, 221, 492 N.E.2d 1292 (1986);
Bruecks v. County of Lake, 276 Ill. App. 3d 567, 658 N.E.2d 538
(1995); Urban, 272 Ill. App. 3d at 784-85.  
     For all of the foregoing reasons the judgment of the Circuit
Court is affirmed.
     Affirmed.
     Zwick, P.J., and McNamara, J., concur.