The opinion
Digitally signed by
Reporter of Decisions
Reason: I attest to the
Illinois Official Reports accuracy and integrity
of this document
Date: 2022.02.16
14:11:22 -06'00'
Appellate Court
Givens v. City of Chicago, 2021 IL App (1st) 192434
Appellate Court JOHN W. GIVENS, LELAND DUDLEY, and THERESA DANIEL,
Caption as Special Administrator of the Estate of David Strong, Deceased,
Plaintiffs-Appellants, v. THE CITY OF CHICAGO, Defendant-
Appellee.
District & No. First District, Second Division
Nos. 1-19-2434, 1-19-2457 cons.
Filed September 28, 2021
Decision Under Appeal from the Circuit Court of Cook County, No. 16-L-10768; the
Review Hon. Bridget J. Hughes, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Robert J. Napleton, Brion W. Doherty, and David J. Gallagher, of
Appeal Motherway & Napleton, LLP, of Chicago, and Lynn D. Dowd, of
Naperville, for appellants John W. Givens and Theresa Daniel.
Alexander McH. Memmen, of The Memmen Law Firm, LLC, of
Chicago, for other appellant.
Celia Meza, Acting Corporation Counsel, of Chicago (Benna Ruth
Solomon, Myriam Zreczny Kasper, and Elizabeth Mary Tisher,
Assistant Corporation Counsel, of counsel), for appellee.
Panel JUSTICE LAVIN delivered the judgment of the court, with opinion.
Justices Howse and Cobbs concurred in the judgment and opinion.
OPINION
¶1 On April 30, 2012, around 2 a.m., John W. Givens, Leland Dudley, and David Strong, now
deceased, burglarized an electronics store in Chicago, then attempted to escape in a stolen
getaway van. However, police appeared, bearing guns and firing some 76 rounds at the van as
it burst through the store’s garage door. The three burglars were shot multiple times, and Strong
died of his injuries. Following a joint criminal jury trial, Givens and Dudley were found guilty
of felony murder, since Strong was killed (albeit by police gunfire) during the course of their
felony burglary. They were also found guilty of aggravated battery of a police officer and
possession of the stolen van. Givens was sentenced to a total of 32 years’ imprisonment, while
Dudley was sentenced to a total of 37 years. Their criminal convictions were affirmed on
appeal. See People v. Givens, 2018 IL App (1st) 152031-U; People v. Dudley, 2018 IL App
(1st) 152039-U.
¶2 In an unlikely turn of events, Givens and Dudley, along with the special administrator of
Strong’s estate, Theresa Daniel, 1 filed a civil suit against the City of Chicago (City) for their
injuries and Strong’s death by police gunfire. Specifically, they alleged battery, survival, and
wrongful death. Although Givens and Dudley’s battery claims did not survive summary
judgment due to collateral estoppel from their criminal convictions, Strong’s estate proceeded
to trial on its survival, wrongful death, and willful and wanton claims against the City.
Ultimately, Strong’s estate prevailed, obtaining a $1,999,998 jury verdict. The jury
nevertheless also found that Strong, as the burglar, was contributorily willful and wanton as
alleged by the City, where his injuries were proximately caused by his own conduct.
Accordingly, the verdict was reduced to $999,999.
¶3 The City filed a motion for a judgment notwithstanding the verdict based on two special
interrogatories inquiring whether the officers were unjustified in the shooting and were truly
willful and wanton, i.e., intentional or reckless. Since the jury answered “No” to the questions,
the City claimed these interrogatories controlled over the general verdict, and the trial court
granted the City’s motion. As such, the City ultimately won at trial.
¶4 In this consolidated appeal, Givens and Dudley 2 challenge the summary judgment entered
against them, claiming there was no identity between the criminal and civil issues to support
collateral estoppel, while Strong’s estate challenges the judgment notwithstanding the verdict
against it. Strong’s estate argues that based on Illinois Supreme Court precedent, the City was
precluded from alleging Strong was contributorily willful and wanton without first alleging he
was contributorily negligent. The estate further challenges the special interrogatories as
1
The special administrator of Strong’s estate at the time of the original complaint was Beatrice
Strong.
2
We note that Dudley has adopted the appellate briefs and appendix filed on behalf of both Strong
and Givens. Although filed in an untimely manner, the City has not objected to Dudley’s motion.
Dudley likewise adopted Strong’s motion contesting the City’s summary judgment, filed in the trial
court.
-2-
improper in a variety of ways and raises a number of trial errors. The estate argues first that
we must reinstate the full verdict and alternatively reinstate the reduced verdict, and if all else
fails, that we reverse and remand for a new trial. We reinstate the $999,999 reduced verdict for
Strong’s estate and reverse the summary judgment entered against Givens and Dudley.
¶5 BACKGROUND
¶6 The evidence at Strong’s trial—consisting of testimony, surveillance video, and exhibits—
showed that Givens, Dudley, and Strong broke into Mike’s Electronics (2459 South Western
Avenue), located along the corner of Western Avenue and 25th Street in Chicago, by prying
open an air conditioning grate and climbing through. Once inside this car electronics store,
they loaded merchandise into a van parked in the adjoining garage. Meanwhile, the break-in
had been reported to 911 by the upstairs tenant, and 19 police officers appeared a short while
later, casing the entry and exit points and creating a perimeter so as to preclude the burglars’
escape. Police repeatedly announced their presence and identity as “Chicago Police,” while
also aiming flashlights through the showroom windows, located at Western Avenue and 25th
Street, and the garage where the burglars were located. Police stated the building was
surrounded and ordered the burglars to exit with their hands up. The surveillance video showed
the burglars knew the police were there. For example, one saw their flashlights through the
showroom window and hid behind a display wall for a short time before ducking to run into
the adjoining garage, where he loaded more goods inside the van. Another burglar sought to
enter the showroom, but on seeing the flashlights, turned back into the garage.
¶7 Officers surrounded the building’s south-facing, locked metal garage door. Ultimately,
about nine were situated on the east side, while three officers were immediately west of the
garage, including Officer Michael Papin, who stood just next to it. Police attempted to open
the garage door and used flashlights to illuminate the underside, but they were only able to lift
it several inches, prompting one of the burglars to jump back, as shown in the surveillance
video. Police shook the door with a loud banging sound, kicked it, again letting the burglars
know they were outside, surrounded, and had “nowhere *** to go.”
¶8 Meanwhile, several officers had entered a side service door east of the garage into the
vestibule area and managed to kick a hole in the bottom of an inner door that had been
barricaded but led inside the garage. On looking in, for example, one officer saw the van’s
taillights flash on, then saw the van in reverse, and shouted “they’re coming out.” Officer
Adrian Valadez saw these same headlights, only through the Western Avenue showroom
window, and testified that he informed Officer Papin, standing by the garage door on the west
side, to “be careful.” In a sworn statement given hours after the incident, Officer Valadez
acknowledged he had stated “move out of the way” because the van was coming out. Also,
about one minute before the van moved, Officer Jeremy Lorenz, who was located by the
Western Avenue window, radioed the emergency dispatcher, who in turn broadcast the
message that the van lights were activated and the vehicle possibly exiting the building (the
surveillance video confirmed this timing of van lights’ activation). Most officers by the garage
nevertheless claimed not to hear these two warnings on their radios.
¶9 Following these warnings, the van then burst through the metal garage door before crashing
into a vehicle parked along the driveway, pushing it into another on the street; officers claimed
the van lurched forward but ultimately came to a stop. Officers described the van bust and
verbal warnings as happening almost simultaneously, thus taking officers off guard. They
-3-
never imagined the van would burst through the garage door, notwithstanding the prior
warnings. Officers on both the east and west side of the garage testified they believed Officer
Papin not only had been struck by the van but also was being dragged underneath and was
possibly dead. Indeed, the video shows that just as the van bursts forth, Officer Papin hops
back with arms outstretched appearing to be clipped by the backside of the van; however, he
ultimately gains his footing and runs away while shots ring out. At trial, Officer Papin testified
that the van struck his left hip, although it caused only pain and bruising.
¶ 10 With the domino effect in full swing, this all prompted eight officers to begin firing, mostly
aiming at the driver, until the van’s wheels were “shot out” and it was immobile. Officer
Michael Curry on the west side (near Officers Papin and Valadez) fired his gun 18 times at the
driver but did not know what or who he hit. He shot, notwithstanding that Officer Papin ran
right in front of him away from the scene. Officer Curry stopped firing when the van ceased
moving, perceiving the threat over. Officer Manuel Gonzalez, on the other side of the garage
inside the vestibule by the service door, fired his gun some three times because he thought the
offenders were shooting at officers in an attempt to escape. Officers also testified they were in
fear that the van would drive right back towards them, with three testifying they saw Dudley
(the driver) place it in drive or make similar such motions. Officer Daniel Lopez, for example,
testified that he fired six shots aimed at the driver as the van lurched forward because he had
seen Dudley moving his right arm up and down and believed the van might kill the officers in
front of him. Officer Terrence Pratscher, who had already fired 11 shots at the driver, believing
Officer Papin was struck, then fired a second time after observing the van lurch forward and
Dudley place it in drive.
¶ 11 In fact, officers fired about 76 rounds at the van in an attempt to disable it, and the gear
shift was later confirmed to be in “drive.” Yet, no weapons were ultimately found on the
burglars or inside the van, although there was testimony that the van itself could constitute a
“deadly weapon.” As set forth, the burglars claimed they turned victim because of the excessive
force. The driver Dudley was shot six times; Strong, who was the front-seat passenger, was
also shot eight or nine times; and Givens, who was the back-seat passenger, was shot six times.
Following criminal proceedings, Givens and Dudley were convicted of stealing the van, the
aggravated battery of Officer Papin, and murdering Strong. Thus, at the time of the civil trial,
they were serving their 30-year-plus prison terms.
¶ 12 The parties also presented dueling experts as to whether the use of deadly force was
justified. Dr. Geoffrey Alpert, for Strong’s estate, asserted the shooting was unjustified since
the vehicle was not utilized as a deadly weapon but rather as a method of escape for the burglars
to avoid arrest. At that point the threat was over and no longer imminent. Dr. Alpert believed
that officers had time to move from the van’s path before shooting at it and opined officers
violated police department orders by disregarding radio warnings and failing to remove
themselves from the van’s path. Dr. Alpert noted, for example, that it soon became clear that
Officer Papin had not been hit, dragged underneath the vehicle, or, in his opinion, injured at
all by the van. At that point, the danger to Officer Papin and the other officers had passed. In
addition, Dr. Alpert believed that the van did not drive forward but ricocheted off the other car
a small distance and then stopped on the deflated tire. Dr. Alpert asserted that officers instead
engaged in “contagion fire” by shooting at the van without determining if there was a true
threat. He noted deadly force was a last resort requiring an exact target. Dr. Alpert opined that
the officers’ behavior was willful and wanton, excessive, unreasonable, and unwarranted.
-4-
¶ 13 On the other hand, the City’s expert, Roy G. Taylor, maintained that deadly force was
justified where the burglars exhibited a disregard for human life, since they knew the officers
were outside the garage, yet still used the van as a deadly weapon to effect their escape after
committing the forcible felony of burglary. He noted Illinois law permitted deadly force after
a forcible felony where injury or the likelihood of injury was prevalent. He added that police
believed Officer Papin had been struck, further justifying deadly force. Taylor cited the policy
that police can shoot into a vehicle if they reasonably believe it is necessary to prevent death
or great bodily harm. Moreover, there was testimony that had the van not been disabled, but
continued to drive forward, officers would have had only about one second to react before the
van reached them.
¶ 14 In closing, Strong’s estate argued the police wrongfully killed Strong and that Strong’s
then 10-year-old son was entitled to $7.5 million for his death. Strong’s estate specifically
argued that the police were reckless in their failure to heed the radio and in-person verbal
warnings that the van was about to burst through the garage, and they had other options than
to simply wield their weapons using deadly force. As such the estate’s attorney further argued
police fired their guns without legal justification, whether out of fear or simply because others
were firing, and thereby killed Strong in an intentionally, or at least, recklessly willful and
wanton manner. He argued “[t]here was an actual intent to harm. But if it wasn’t intentional,
certainly—certainly there was a conscious disregard for Mr. Strong’s safety that caused his
injury.” The estate’s attorney noted that while Strong had certainly “done something stupid”
in deciding to burglarize the store and escape as he did, Strong “did not deserve to die by firing
squad.”
¶ 15 The defense asserted that the estate’s argument could be summed up in one sentence: “You
should award us money because you knew that we were about to come out of the door and you
decided not to get out of our way.” The defense argued Strong was at fault since he knew the
police were outside yet chose to ram his car into them anyways after having committed a
forcible felony of burglary, thus showing a complete disregard for human life. The defense
argued that officers, many of whom were war veterans and with families, had only seconds to
react to the van bursting forth from the garage in what placed officers in imminent fear of death
or great bodily harm. Thus, the defense maintained police were justified in using deadly force
for a variety of reasons.
¶ 16 At the close of arguments, the jury received three different verdict forms, verdict form A
for the Strong’s estate showing no contributory fault; verdict form B for Strong’s estate but
assigning some fault to Strong; and verdict form C for the City. The jury chose verdict form
B, ruling in favor of Strong’s estate and awarding it $1,999,998. The jury nevertheless also
found that Strong, as the burglar, was 50% at fault for his injuries due to his own willful and
wanton conduct, and the jury reduced the verdict by about half to $999,999.
¶ 17 In addition, the jury answered three special interrogatories, which were prepared and
written by the court. Special interrogatory No. 1 asked,
“At the time deadly force was used, did the Chicago Police Officers who used
deadly force engage in a course of action without legal justification, which showed an
actual or deliberate intention to harm David Strong?”
Special interrogatory No. 2 asked,
-5-
“At the time deadly force was used, did the Chicago Police Officers who used
deadly force engage in a course of action without legal justification, which showed an
utter indifference or conscious disregard for the safety of others?”
Special interrogatory No. 3 asked,
“At the time deadly force was used against David Strong, did the Chicago Police
Officers who used deadly force reasonably believe that such force was necessary to
prevent imminent death or great bodily harm?”
The jury answered “No,” to all three special interrogatories, and the court permitted the parties
to brief the matter before entering judgment on the verdict.
¶ 18 The City moved for entry of judgment in its favor based on the special interrogatories,
arguing that the answers compelled such a result as they betrayed a failure to establish willful
and wanton conduct, and further, were based on immunity and legal justification principles.
The trial court agreed, finding the answers to the first and second interrogatories controlled the
verdict. Strong’s estate challenged this determination, while Givens and Dudley challenged the
summary judgment motions against them. The trial court denied them relief, and this appeal
followed.
¶ 19 ANALYSIS
¶ 20 On appeal, Strong’s estate maintains that the entire $1,999,998 jury verdict must be
reinstated because the City was barred from reducing damages. To address this dispositive
matter, we turn first to the underlying allegations. Here, for Strong’s estate to prove a claim
under the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2020)) and the Probate Act
of 1975 (755 ILCS 5/27-6 (West 2020)), it was required to prove that the City owed a duty to
Strong, the City breached that duty, the breach of the duty was a proximate cause of Strong’s
injuries or death, and monetary damages resulted to the entitled individuals under the acts.
Bovan v. American Family Life Insurance Co., 386 Ill. App. 3d 933, 938 (2008); see also
Messmore v. Silvis Operations, LLC, 2018 IL App (3d) 170708, ¶¶ 24-25 (noting the
differences between wrongful death and survival claims); Williams v. Manchester, 228 Ill. 2d
404, 421-22 (2008) (noting that aside from the death occurrence, these elements are the same
as for common law negligence).
¶ 21 Because the City would otherwise be immune from liability for negligence, Strong’s estate
also had to prove that the officers’ conduct was willful and wanton, as well as legally
unjustified. See 745 ILCS 10/2-202 (West 2020) (noting that under the Local Governmental
and Governmental Employees Tort Immunity Act, “A public employee is not liable for his act
or omission in the execution or enforcement of any law unless such act or omission constitutes
willful and wanton conduct.”); Price v. City of Chicago, 2018 IL App (1st) 161599, ¶ 29. In
response to allegations by Strong’s estate, the City filed an affirmative defense alleging that
Strong was contributorily willful and wanton, and it was Strong’s own conduct that led to his
untimely death. Thus, at trial, both parties alleged the other was willful and wanton. We note
that “willful and wanton” is not a freestanding, independent tort. See Ziarko v. Soo Line R.R.
Co., 161 Ill. 2d 267, 274 (1994). Rather, as a separate claim, willful and wanton conduct is
often alleged in conjunction with negligence and can be either intentional or reckless. Doe v.
Coe, 2019 IL 123521, ¶ 34; Poole v. City of Rolling Meadows, 167 Ill. 2d 41, 48-49 (1995).
Here, the parties argued both forms to the jury.
-6-
¶ 22 Comparative Willful and Wanton Conduct
¶ 23 The estate now argues that the City failed to assert a proper affirmative defense because,
under current supreme court law, the City had to specifically allege that Strong was
contributorily negligent, rather than willful and wanton. The estate thus argues that the City’s
contributory fault affirmative defense was not legally cognizable, and a setoff in damages is
disallowed where “all the parties are charged with willful and wanton conduct.” In particular,
the estate maintains “the damages levied against [a] defendant for its willful and wanton
conduct can never be shared with another willful and wanton tortfeasor,” such as Strong.
Consequently, the estate maintains that the reduction in damages due to Strong’s contributory
fault was erroneous and the special interrogatories were not warranted. For these reasons, the
estate asks that we reinstate the entire verdict in its favor.
¶ 24 The City responds that the estate forfeited this issue by failing to raise it below prior to the
lengthy jury trial. We agree but nevertheless address the estate’s arguments because they
impact other contentions raised on appeal and also present an issue of first impression. See
Doe v. Alexian Brothers Behavioral Health Hospital, 2019 IL App (1st) 180955, ¶ 28 n.4
(noting that forfeiture is a limitation on the parties but not on the court). Since the establishment
of Illinois’s comparative fault system, our supreme court has not directly decided whether a
tort claimant’s own reckless willful and wanton conduct precludes him from recovering against
a reckless willful and wanton defendant. See Illinois Pattern Jury Instructions, Civil, No.
B14.03 (2011), Notes on Use (hereinafter IPI Civil (2011)) (noting, “no Illinois case has yet
decided the effect of a plaintiff’s contributory willful and wanton conduct”). The estate, in
raising its rather convoluted claim that the City’s willful and wanton affirmative defense was
impermissible, draws on a line of supreme court decisions dating to the 1990s that examine the
right to claim personal injury damages in the face of willful and wanton conduct.
¶ 25 In the seminal case, Burke v. 12 Rothschild’s Liquor Mart, Inc., 148 Ill. 2d 429 (1992), our
supreme court addressed whether a plaintiff’s negligence could be compared to a defendant’s
willful and wanton conduct, thereby limiting the plaintiff’s recovery. There, the plaintiff,
Burke, went to 12 Rothchild’s Liquor Mart, Inc. (Rothschild’s), and entered into an altercation
over payment for soda pop. The manager ultimately shoved Burke, at which point he fell from
a broken floor tile and struck his head on a steel door panel, immobilizing his arms and legs.
Id. at 433-34. Police then appeared pursuant to the manager’s call, sprayed Burke with an eye-
burning substance, and dragged him from the store only to drop him on the sidewalk before
throwing him into the police paddy wagon so that his head struck the interior steel wall. Id. at
434. Burke became a quadriplegic and sued both Rothschild’s and the City of Chicago for
negligence. Following a jury trial, the two defendants were found jointly liable. Id. at 435.
While Burke was determined to be contributorily negligent as to Rothschild’s, thereby
reducing those damages, the court ruled that Burke’s contributory negligence could not be
compared with the City’s willful and wanton conduct. In other words, the City was not entitled
to a setoff for Burke’s comparative negligence. Id.
¶ 26 The City appealed, arguing the historic rule that “ordinary negligence cannot be compared
with willful and wanton conduct” was unfair. Id. at 440. The supreme court reviewed the
comparative fault statute and tort immunity act then in effect and noted that the act clearly
insulated cities “against suits for negligence” and “punitive damages,” but would not shield
willful and wanton behavior showing a “deliberate intention to cause harm or a complete
indifference to the safety of others.” Id. at 443. From this, Burke concluded that the legislature
-7-
had not shown an intent to disrupt the historic rule. Burke then turned to conflicting case law
on the issue, noting willful and wanton was “capable of various interpretations,” with some
cases treating it as a type of negligence and some treating it as quite distinct. Id. at 444-48.
Following this, the Burke court subscribed to the latter view also expressed in section 500 of
the Restatement (Second) of Torts “that there is a qualitative difference between negligence
and willful and wanton conduct,” since “willful and wanton conduct carries a degree of
opprobrium not found in merely negligent behavior.” Id. at 450-51; Restatement (Second) of
Torts § 500 cmt. g (1965). Rather, it carries the degree of moral blame attached to intentional
harm. As such, Burke reaffirmed the historic rule that a plaintiff’s negligence cannot be
compared with a defendant’s willful and wanton conduct. 3
¶ 27 Notwithstanding its holding, Burke did not distinguish the intentional form of willful and
wanton conduct from the reckless form, as later cases would. Notably, intent denotes that the
actor desires to cause consequences of his act or believes them to be substantially certain to
result. Restatement (Second) of Torts § 8A (1965). Recklessness, on the other hand, denotes
that the actor failed, after knowledge of impending danger, to exercise ordinary care to prevent
it or failed to discover a danger (whether by being reckless or careless) when it could have
been discovered with ordinary care. American National Bank & Trust Co. v. City of Chicago,
192 Ill. 2d 274, 285 (2000). Moreover, Burke left “to the future a determination of whether a
plaintiff’s willful and wanton conduct can be compared with the willful and wanton conduct of
the defendant” (emphases added), which is the scenario that now presents itself to us. Burke,
148 Ill. 2d at 452.
¶ 28 On the heels of Burke, the supreme court issued a plurality opinion in Ziarko, this time
addressing contribution between two defendants, rather than a plaintiff’s contributory
negligence. There, the plaintiff Ronald Ziarko was struck by a Soo Line railroad train. A jury
found Soo Line willful and wanton and the subject railroad yard, Milwaukee Motor, negligent.
Soo Line sought contribution from Milwaukee Motor, but Milwaukee Motor argued that was
impermissible because Soo Line was willful and wanton, i.e., intentional.
¶ 29 Ziarko first observed the contribution statute did not abolish the historic rule dating back
to English common law that contribution is prohibited “between intentional tortfeasors.”
Ziarko, 161 Ill. 2d at 271; see also Gerill Corp. v. Jack L. Hargrove Builders, Inc., 128 Ill. 2d
179, 204-05 (1989) (finding same). Ziarko noted the reasoning that an intentional tortfeasor
whose liability arose from his own deliberate wrong should not “be afforded the equitable
benefits of shifting a portion of that liability to another tortfeasor under principles of
contribution.” Ziarko, 161 Ill. 2d at 271. That, however, was not the case that presented itself
in Ziarko, as explained immediately below.
¶ 30 The Ziarko plurality clarified that Burke’s holding was confined to the form of willful and
wanton conduct that was so morally blameworthy it approached intentional harm. Id. at 273.
Like punitive damages, liability for intentionally willful and wanton conduct aimed to punish
bad behavior. Yet, there were instances when willful and wanton conduct was merely intended
to compensate plaintiffs for their injuries. Ziarko thus recognized a different form of willful
and wanton conduct, which was merely reckless. “Under the facts of one case, willful and
3
The court further reasoned that given that punitive damages were prohibited by statute against the
City, also disallowing the setoff from a plaintiff’s contributory fault might deter municipal defendant’s
wanton and willful conduct.
-8-
wanton misconduct may be only degrees more than ordinary negligence, while under the facts
of another case, willful and wanton acts may be only degrees less than intentional
wrongdoing.” Id. at 275-76. Interpreting Burke to disallow any willful and wanton tortfeasor,
even a merely reckless one, to offset his monetary responsibility was contrary to the current
comparative fault and contribution principles.
¶ 31 Consequently, Ziarko held “a defendant found guilty of willful and wanton conduct may
seek contribution from a defendant found guilty of ordinary negligence if the willful and
wanton defendant’s acts were found to be simply reckless.” Id. at 280. Because the record in
Ziarko showed Soo Line’s conduct was merely reckless, it could pursue contribution from
Milwaukee Motor. Thus, the holding in Ziarko was confined to determining whether a reckless
defendant could seek reduced damages. The court did not, as the estate maintains, hold that
contributory negligence by the plaintiff is a precondition to reduced damages. Instead, the
plurality opinion noted that the supreme court had not yet addressed “whether a plaintiff’s
willful and wanton acts should serve as a complete bar, or serve as a damage-reducing factor,
in the award of compensatory damages, where the defendant has also engaged in willful and
wanton conduct.” (Emphases added.) Id. at 277-78.
¶ 32 A year later, a majority of the court adopted Ziarko’s holding in Poole, 167 Ill. 2d at 48.
There, a police officer investigating an incident accidentally shot the plaintiff Steven Poole,
and Poole sued the City and its police officer alleging willful and wanton conduct. Id. at 42. A
jury awarded Poole compensatory damages but found Poole was also contributorily negligent.
Id. Extending the analysis in Ziarko, the supreme court observed that whether the damage
award could be reduced based on Poole’s contributory negligence depended on whether the
defendants committed intentional or reckless willful and wanton conduct. Id. at 48-49. If
intentional, there could be no such reduction; if reckless, there could be such a reduction. Poole
concluded it was unclear which type of willful and wanton conduct the jury found defendants
guilty of and reversed and remanded the case for a new trial. Id. at 49-50.
¶ 33 The foregoing cases demonstrate several principles at trial regarding a plaintiff’s
contributory conduct as compared to a defendant’s willful and wanton conduct. See IPI Civil
(2011) No. 14.01, Notes on Use (noting, absent a plaintiff’s contributory fault, “there may be
no need for a jury to determine which form of willful and wanton conduct was committed by
the defendant”). First, a plaintiff’s intentional willful and wanton conduct cannot be compared
to a defendant’s willful and wanton conduct (whether reckless or intentional), thus serving as
a complete bar to the plaintiff’s recovery. Second, a plaintiff who is either negligent or
recklessly willful and wanton can recover from a defendant who is intentionally willful and
wanton, but the damages are not then subject to reduction based on comparative fault
principles. See Poole, 167 Ill. 2d at 48. Third, a plaintiff who is recklessly willful and wanton
can recover from a defendant who is recklessly willful and wanton, and if both parties are
found to have acted in such a manner, the plaintiff’s damages are subject to a reduction based
on comparative fault principles.
¶ 34 If as under Ziarko, a defendant tortfeasor who engages in reckless willful and wanton
conduct may seek contribution from another defendant tortfeasor who commits ordinary
negligence, surely then a defendant tortfeasor who engages in reckless willful and wanton
conduct may have his damages reduced by a plaintiff whose reckless willful and wanton
conduct (which is a heightened standard) contributed to his injuries. The estate’s contrary view
-9-
on appeal 4 would lead to the anomalous result where a plaintiff who is contributorily
negligent, or merely careless, would be entitled to less money after the setoff of damages than
a plaintiff whose conduct was more egregious, i.e., recklessly willful and wanton.
¶ 35 We note that our conclusion departs from the Restatement insofar as the Restatement
prohibits a reckless plaintiff’s recovery against a reckless defendant. See Restatement (Second)
of Torts § 503(3) (1965) (noting,“[a] plaintiff whose conduct is in reckless disregard of his
own safety is barred from recovery against a defendant whose reckless disregard of the
plaintiff’s safety is a legal cause of the plaintiff’s harm”). Our conclusion also departs from
several older cases in existence before the modern comparative fault system that arose with
Alvis v. Ribar, 85 Ill. 2d 1 (1981). Prior case law precluded a negligent plaintiff’s recovery
against a negligent defendant (but not a negligent plaintiff’s recovery against a willful and
wanton defendant). Id. at 5; Burke, 148 Ill. 2d at 441 (noting that “when the defendant’s
conduct was willful and wanton, the plaintiff’s contributory negligence could not be raised as
a defense to bar recovery”); see also IPI Civil (2011) No. 14.01, Comment (“Prior to the
adoption of comparative negligence, [a] defendant’s willful and wanton conduct negated the
defense of contributory negligence.” (citing Green v. Keenan, 10 Ill. App. 2d 53, 60 (1956))).
Significantly, case law likewise precluded a willful and wanton plaintiff’s recovery against a
willful and wanton defendant. See Zank v. Chicago, Rock Island & Pacific R.R. Co., 17 Ill. 2d
473, 476 (1959) (noting, “contributory willful and wanton misconduct of the plaintiff is a
defense for a defendant charged with willful and wanton misconduct”). As stated, we believe
Burke and its progeny changed the course of a willful and wanton plaintiff’s recovery.
¶ 36 We also observe that between the decisions entered in Ziarko and Poole, effective March
9, 1995, the legislature amended Illinois’s comparative fault statute, with the stated purpose of
allocating tort damages based on the “proportionate fault” of the parties. Pub. Act 89-7, § 15
(eff. Mar. 9, 1995) (amending 735 ILCS 5/2-1116). The statute stated that a plaintiff’s
“contributory fault” must be compared to that of the other tortfeasors whose “fault”
proximately caused “the death, injury, loss, or damage for which recovery is sought.” 735 ILCS
5/2-1116(c) (West 1996). This necessarily includes tortfeasors who committed reckless willful
and wanton conduct. The statute defined “ ‘[c]ontributory fault’ ” as “any fault on the part of
the plaintiff (including but not limited to negligence, assumption of the risk, or willful and
wanton misconduct) which is a proximate cause of the death, bodily injury to person, or
physical damage to property for which recovery is sought.” (Emphases added.) Id. § 2-1116(b).
The statute further defined “ ‘[f]ault’ ” in relevant part as “any act or omission that (i) is
negligent, willful and wanton, or reckless *** and (ii) is a proximate cause of death, bodily
injury to person, or physical damage to property for which recovery is sought.” (Emphases
added.) Id.
¶ 37 Taken as a whole, the statute required the willful and wanton conduct by the plaintiff to be
compared with the willful and wanton or reckless acts or omissions of the defendant whose
fault was a proximate cause of the death, injury, loss, or damage for which recovery was
sought. See Roberts v. Alexandria Transportation, Inc., 2021 IL 126249, ¶ 29 (reading the
statute’s plain and ordinary language so as to divine its intent). While that statute was later
4
In fact, when discussing jury instructions during the trial, the estate conceded the City was entitled
to a setoff to the extent it alleged “recklessness versus recklessness.” The estate later repeated this
concession.
- 10 -
declared unconstitutional for other reasons, the now defunct amended statute and the
legislature’s apparent intent to codify the common law confirms our determination: allowing
a plaintiff’s reckless willful and wanton conduct to reduce its damages against a reckless
willful and wanton defendant is consistent with Burke and its progeny. See Ready v.
United/Goedecke Services, Inc., 232 Ill. 2d 369, 381-82 (2008); Best v. Taylor Machine Works,
179 Ill. 2d 367, 467 (1997); see also Bruso v. Alexian Brothers Hospital, 178 Ill. 2d 445, 458
(1997) (in amending a statute, the legislature is presumed to have been aware of judicial
decisions interpreting the statute and to have acted with this knowledge). Given that the statute
did not distinguish between the plaintiff’s reckless or intentional willful and wanton conduct,
it did not upset the common law rule, established in Burke and its progeny, barring recovery
or contribution for intentional willful and wanton conduct.
¶ 38 Having established the state of the law, we must reject the estate’s argument that Ziarko
would only permit a reduction in damages for Strong’s contributory negligence in this case if
the City had alleged ordinary contributory negligence rather than contributory willful and
wanton conduct. We also note that willful and wanton conduct is but a heightened form of
negligence, and one for which the City did raise as an affirmative defense.
¶ 39 Thus, to the extent the estate argues the affirmative defense was legally or factually
inadequate, we disagree. The City alleged and argued that Strong had a duty to refrain from
willful and wanton criminal conduct, he breached that duty, and his conduct proximately
caused his injuries. See Hartmann Realtors v. Biffar, 2014 IL App (5th) 130543, ¶ 20 (noting
that an affirmative defense is a pleading which gives color to the opponent’s claim but asserts
a new matter that defeats the plaintiff’s apparent right of recovery); see also Bell v. Taylor, 827
F.3d 699, 704-05 (7th Cir. 2016) (an affirmative defense limits or excuses the defendant’s
liability by asserting facts and arguments that, if true, will defeat the plaintiff’s claim, even
assuming the allegations in the complaint are true). The City added that this was the case even
if the police officers also caused the injuries, given that Strong was more willful and wanton
than the officers. The City thus adequately alleged willful and wanton conduct as an aggravated
form of negligence that could defeat Strong’s cause of action. See Doe v. Coe, 2019 IL 123521,
¶ 34.
¶ 40 Whether Special Interrogatory Nos. 1 and 2 Were in Proper Form
and the Answers Were Consistent With the General Verdict
¶ 41 Strong’s estate next contends the special interrogatories directed at willful and wanton
conduct were improper. Special interrogatories are meant to test the validity of a jury’s general
verdict on one or more issues of ultimate fact. Brown v. City of Chicago, 2019 IL App (1st)
181594, ¶ 42; Inman v. Howe Freightways, Inc., 2019 IL App (1st) 172459, ¶ 117. Thus, a
special interrogatory is in proper form if, as presented in easily understandable terms, it relates
to an ultimate issue of fact on which the parties’ rights depend and the answer thereto may be
inconsistent with the general verdict. Inman, 2019 IL App (1st) 172459, ¶ 117. It must consist
of a single, direct question that, standing on its own, is dispositive of an issue in the case such
that it would, independently, control the verdict. Id.
¶ 42 Moreover, courts should find an inconsistency between a special finding and the general
verdict only when the two are clearly and absolutely irreconcilable. Price, 2018 IL App (1st)
161599, ¶ 24. If there is a reasonable hypothesis allowing the special finding to be construed
consistently with the general verdict, they are not “absolutely irreconcilable,” and the special
- 11 -
finding will not control. (Internal quotation marks omitted.) Brown, 2019 IL App (1st) 181594,
¶ 42. We exercise all reasonable presumptions in favor of the general verdict, and we review
the propriety of the special interrogatories, as well as the granting of judgment notwithstanding
the jury’s verdict, de novo. Id.
¶ 43 The estate contends special interrogatory Nos. 1 and 2 were improper, as they were
“ambiguous, vague and confusing” and neither invited an answer that was absolutely
irreconcilable with the $999,999 general verdict. Thus, according to the estate, the
interrogatories should not have been given and the jury’s answers thereto cannot control the
general verdict. 5 The City responds that the special interrogatories properly tested the City’s
affirmative defense in the face of the general verdict for Strong’s estate.
¶ 44 As set forth, the jury in this case returned general verdict form B for Strong’s estate and
against the City. In accordance with the instructions, the jury had to find that (1) the police
shot Strong without legal justification insofar as police reasonably believed such force was
necessary to prevent imminent death or great bodily harm or the commission of a forcible
felony, among other bases; (2) the police were willful and wanton in shooting Strong insofar
as they shot him multiple times, shot at the van he occupied, fired without justification, engaged
in contagion fire resulting in his injury, or used force likely to cause great bodily harm;
(3) Strong died; and (4) the officers’ willful and wanton conduct proximately caused Strong’s
death. Yet, in returning verdict form B, the jury also found that Strong was willful and wanton
insofar as he placed officers in imminent fear of death or great bodily harm to themselves or
others, and he was 50% at fault for causing his own death. The court instructed the jury that
willful and wanton conduct was “a course of action which is without legal justification and
shows actual or deliberate intention to harm or which, if not intentional, shows an utter
indifference to or conscious disregard for a person’s own safety and/or the safety of others.”
See IPI Civil (2011) No. 14.01.
¶ 45 On the heels of this, the jury was presented with the special interrogatories, which we
construe from the perspective of an ordinary person in light of the jury instructions and not on
the basis of mere abstract mathematical analysis as an exercise in symbolic logic. LaPook v.
City of Chicago, 211 Ill. App. 3d 856, 866 (1991). Special interrogatory No. 1 asked, “At the
time deadly force was used, did the Chicago Police Officers who used deadly force engage in
a course of action without legal justification, which showed an actual or deliberate intention
5
The City contends the estate waived its contentions. To avoid waiver of an objection to a special
interrogatory, a party must lodge specific objections about the special interrogatory’s form at the jury
instruction conference. Price, 2018 IL App (1st) 161599, ¶ 22; LaPook v. City of Chicago, 211 Ill. App.
3d 856, 864-65 (1991). Whether a special interrogatory is inconsistent with the general verdict,
however, is not subject to waiver. LaPook, 211 Ill. App. 3d at 865 (noting that a plaintiff can be bound
only to the issues the jury’s special interrogatory actually determines). We proceed on the merits
notwithstanding the estate’s failure to raise some of its specific objections at the conference as to the
form of the special interrogatories. See Doe v. Alexian Brothers Behavioral Health Hospital, 2019 IL
App (1st) 180955, ¶ 28 n.4 (addressing the improper form of a special interrogatory even though it was
not objected to until the posttrial motion and noting that forfeiture is a limitation on the parties but not
the on court); see also Struthers v. Jack Baulos, Inc., 52 Ill. App. 3d 823, 826 (1977) (noting that neither
the trial court nor a reviewing court is bound by the failure of a party to specifically challenge a special
interrogatory). Given this as-yet unclear area of law and in the interest of justice, we exercise discretion
to consider the estate’s challenge to the special interrogatories.
- 12 -
to harm David Strong?” (Emphases added.) Special interrogatory No. 2, which was prefaced
the same, asked whether police “showed an utter indifference or conscious disregard for the
safety of others?” (Emphasis added.) Finally, although the estate does not challenge special
interrogatory No. 3, it is worth noting that it asked, “At the time deadly force was used against
David Strong, did the Chicago Police Officers who used deadly force reasonably believe that
such force was necessary to prevent imminent death or great bodily harm?”
¶ 46 The clear aim of these respective questions was to determine whether the officers engaged
in intentional willful and wanton conduct or reckless willful and wanton conduct and whether
deadly force was justified. Yet, the aim fell demonstrably short.
¶ 47 First and foremost, all three special interrogatories were impermissibly compound and
therefore not focused on one element dispositive of the claim. See Simmons v. Garces, 198 Ill.
2d 541, 563 (2002); LaPook, 211 Ill. App. 3d at 865 (noting, a plaintiff is bound only to those
issues actually decided by the jury’s special interrogatory). As to interrogatory Nos. 1 and 2,
they asked whether the use of deadly force by police was unjustified and either intentional
(interrogatory No. 1) or reckless (interrogatory No. 2). However, the jury could have believed
the use of deadly force was justified but either not intentional or not reckless. Likewise, the
jury could have believed the use of deadly force was not justified but was either intentional or
reckless. There are also two ways to interpret interrogatory No. 3. Either the officers did not
believe force was necessary to prevent imminent death or great bodily harm—and, therefore,
they were intentionally acting without authority—or the officers believed force was necessary
to prevent imminent death or great bodily harm but their belief was not reasonable, and they
were therefore reckless. A negative answer to the aforementioned questions would do little to
test the general verdict. See Alexian Brothers Behavioral Health Hospital, 2019 IL App (1st)
180955, ¶ 32. The form of the special interrogatories, accordingly, was “in direct contradiction
to the established rule that a special interrogatory must be phrased as a single, straightforward
question.” See Smart v. City of Chicago, 2013 IL App (1st) 120901, ¶ 37. For this reason alone,
the special interrogatories were improper and should be stricken.
¶ 48 Additionally, the interrogatories were vague and confusing. As to interrogatory No. 1, the
question was impermissibly narrow in focusing on the officers’ intention to “harm David
Strong.” We agree with the estate that the question would have been more effective if directed
at the van’s driver and/or occupants rather than focusing solely on Strong. The jury’s negative
answer to special interrogatory No. 1 could have signified its belief that the officers
intentionally shot at the van’s driver but only recklessly shot Strong. Indeed, this interpretation
would be more consistent with the trial evidence, where police testified that they aimed their
shots at the driver so as to disable the van and prevent further harm. There was no evidence
that police intended to shoot Strong in particular. See Alexian Brothers Behavioral Health
Hospital, 2019 IL App (1st) 180955, ¶ 35 (noting that special interrogatories are to be read in
the context of the claims and instructions to determine potential jury interpretations or
confusion). In that sense, the negative answer can also be reconciled with the general verdict
in favor of Strong but with reduced damages. See Brown, 2019 IL App (1st) 181594, ¶ 42.
¶ 49 The estate further argues that interrogatory No. 2 was too broad, insofar as it was directed
at “safety of others,” and the jury could have concluded that this referenced possible passersby
or innocent bystanders rather than the burglars in the van. The evidence would tend to support
this interpretation since there was testimony that officers did not know who or what they hit
when shooting. As such, the estate maintains the question was ambiguous. The estate maintains
- 13 -
the “ambiguity could have easily resulted in a negative answer,” even if the jury believed the
officers were acting recklessly towards the van’s occupants. The estate contends, and we agree,
that the negative answer therefore could be reconciled with the general verdict in its favor.
¶ 50 Because there was a reasonable hypothesis that allowed interrogatory Nos. 1 and 2 to be
construed consistently with the general verdict, the interrogatories were not “absolutely
irreconcilable” with the general verdict. See id. The attempted clarification as to whether the
officers’ conduct was intentional or reckless failed, and the special interrogatories did not
guard the integrity of the general verdict, as required. See Blue v. Environmental Engineering,
Inc., 215 Ill. 2d 78, 112 (2005). For these reasons, the special findings cannot control, and we
must reinstate the jury’s verdict.
¶ 51 The City nonetheless maintains that Poole precludes this result because it is impossible to
determine whether Strong’s conduct could be compared to that of the officers. In other words,
the City maintains there was no factual finding as to whether the officers’ conduct was reckless
or intentional such that damages may be reduced in accordance with verdict form B.
¶ 52 In Poole, discussed above, the jury awarded the plaintiff Poole about $200,000 for his
injuries. The trial judge reduced the award by a third due to Poole’s contributory negligence,
and Poole filed a motion for judgment notwithstanding the verdict, arguing he was entitled to
the full jury award of $200,000 because the defendants were willful and wanton under Burke
(which had not yet distinguished reckless versus intentional willful and wanton conduct). The
trial court agreed, but the supreme court reversed. As set forth, after adopting Ziarko, the
supreme court found it was unclear from the pleadings or jury instructions which type of willful
and wanton conduct the jury found defendants guilty of. The court also noted no special
interrogatory was submitted on the matter. As such, the court stated it could not determine
whether the damages should be reduced by Poole’s contributory conduct. 6
¶ 53 Significantly, Poole also cited Pedrick for the familiar standard that judgments
notwithstanding the verdict must be entered “only in those cases in which all of the evidence,
when viewed in its aspect most favorable to the opponent, so overwhelmingly favors [the]
movant that no contrary verdict based on that evidence could ever stand” (Pedrick v. Peoria &
Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967)). See Poole, 167 Ill. 2d at 50. Thus, viewing the
evidence in favor of the defendant-opponents, Poole concluded it could not say the evidence
so overwhelmingly showed they were intentionally willful and wanton such that the plaintiff’s
contributory negligence could not be considered in reducing damages.
¶ 54 This case reaches us at a different juncture. Here, the City was the movant seeking
judgment notwithstanding the verdict based on the special interrogatories. Yet, overriding a
jury’s verdict is a drastic step that affects public confidence in the jury system. Brown, 2019
6
In reaching this conclusion, we observe that Poole suggests, but does not mandate, that a special
interrogatory be given to distinguish reckless and intentional willful and wanton conduct. Instead, the
pleadings, arguments, evidence, general jury instructions, special interrogatories, or some combination
thereof must demonstrate which type of willful and wanton conduct both parties are liable of. See Poole,
167 Ill. 2d at 49-50; see also Ziarko, 161 Ill. 2d at 282 (permitting contribution between the defendants
where the record did not reflect that the jury found one defendant’s willful and wanton conduct to have
been intentional); IPI Civil (2011) No. 14.01, Notes on Use (noting that there may be a jury finding
distinguishing reckless from intentional willful and wanton conduct via the instruction or a special
interrogatory).
- 14 -
IL App (1st) 181594, ¶ 58; see also 735 ILCS 5/2-1108 (West 2018) (stating, “[u]nless the
nature of the case requires otherwise, the jury shall render a general verdict”). As such, a
verdict must be allowed to stand if any facts exist allowing the verdict to be harmonized with
the jury’s special findings, even without knowing a precise basis for the jury’s verdict. Brown,
2019 IL App (1st) 181594, ¶ 58. “Although the law at present not only allows but requires
courts to pose special interrogatories to a jury designed to undermine the often hard-fought
consensus that their general verdict represents, courts have a duty to exercise all reasonable
presumptions in favor of the jury’s verdict.” Id. That is just what we do now.
¶ 55 Here, as stated, the jury returned verdict form B holding the City liable and also finding
Strong contributorily at fault. On this same verdict form, the jury reduced the damages by half
(whereas there was no such jury finding in Poole). Consistent with the jury verdict, the
evidence showed that both Strong and the officers were recklessly willful and wanton in their
conduct. See Mazikoske v. Firestone Tire & Rubber Co., 149 Ill. App. 3d 166, 181 (1986)
(noting, the resulting general verdict will be sustained if there are one or more good causes of
action or counts to support it (citing Moore v. Jewel Tea Co., 46 Ill. 2d 288, 294 (1970))). The
police had some knowledge of the impending danger, which was the van exiting the garage.
Several officers verbally warned that the van was exiting, and two radio warnings were issued
about a minute before the van exited, although very few of the officers heard them. Thus,
officers failed to use ordinary care to prevent what was at that point an expected danger, injury
to themselves from the van. They likewise could have discovered the danger by merely
listening to their radios or better coordinating with one another. When the van did burst through
the garage, officers then recklessly fired 76 rounds towards it, apparently without much regard
to who they were firing at. Although officers claimed to aim for the driver, they shot all three
burglars multiple times. See Restatement (Second) of Torts § 500 cmt. d (1965) (noting that
where a person knows or has reason to know that others are in range of his conduct involving
serious risk of harm, that is conclusive of recklessness toward them). Officer Papin, who
appeared to be the main reason many fired their weapons, also walked away from the scene
with minimal injury.
¶ 56 Likewise, the evidence showed that Strong and his cohort knew at various points that police
were by the store windows, the garage, and side entry door. As the burglars hopped into the
van, police were trying to enter through the side door and yelling at them. Thus, Strong and his
cohort were equally reckless in failing to acknowledge the pending danger of striking an officer
or bystander when they burst through the garage door, as well as the resistance such actions
would inspire in the police.
¶ 57 It is the province of the jury to resolve conflicts in the evidence, pass on the credibility of
witnesses, and decide what weight should be given to witnesses’ testimony. Price, 2018 IL
App (1st) 161599, ¶ 40. Given that the evidence in this case supported a finding of
recklessness, as well as the aforementioned presumptions, we must reinstate the jury verdict
of $999,999. Moreover, viewing the evidence in a light most favorable to the estate as the
nonmovant, we cannot say it so overwhelmingly favored the City or, under Poole, showed that
the officers were intentionally willful and wanton to preclude the jury’s reduction of damages
in form B. We further note that the City has effectively conceded (albeit in the context of their
argument in favor of the special interrogatories) that the officers did not intend to harm Strong.
This concession is consonant with the conclusion that police thereby acted in a reckless
manner.
- 15 -
¶ 58 We note this result is also consistent with the new iteration of the statute on special
interrogatories, section 2-1108 of the Code of Civil Procedure (735 ILCS 5/2-1108 (West
2020)), which applies to trials commencing on or after January 1, 2020. That new version
makes the decision of whether to submit a special interrogatory a discretionary matter for the
trial judge, rather than one of law garnering de novo review. Cf. 735 ILCS 5/2-1108 (West
2018). In the event of an inconsistency between the special and general verdict, the judge “shall
direct the jury to further consider its answers and verdict.” 735 ILCS 5/2-1108 (West 2020). A
new trial then becomes a matter of discretion if the jury cannot render a general verdict
compatible with any special finding. Finally, it permits the parties during closing “to explain
to the jury what may result if the general verdict is inconsistent with any special finding.” Id.
¶ 59 The amendment clearly shows the legislature’s desire to place the general verdict on a
pedestal as a trophy that few special interrogatories can knock down. See Roberts, 2021 IL
126249, ¶ 29 (reading the statute’s plain and ordinary language so as to divine the legislature’s
intent). In short, the amendment codifies the already existing common law giving ultimate
deference to the general verdict. See Bruso, 178 Ill. 2d at 458. While this iteration of section
2-1108 did not apply in the present case, tried in May 2019, we find it persuasive authority to
support our result. See also Brown, 2019 IL App (1st) 181594, ¶ 59 (noting that cases where
incompatibility arises serve as “a good illustration of the need for the increased flexibility” that
the amendment of section 2-1108 aims to provide).
¶ 60 Whether the Trial Court Erred in Granting the Summary Judgment
Motion Against Givens and Dudley
¶ 61 We next address the granting of summary judgment against Givens and Dudley under
de novo review. See Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995).
Summary judgment is appropriate only when the pleadings, depositions, and admissions,
together with affidavits, in the record show there is no genuine issue of material fact and that
the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2020);
Horwitz v. Holabird & Root, 212 Ill. 2d 1, 8 (2004). We construe the evidence strictly against
the movant and liberally in favor of the nonmoving party. Espinoza, 165 Ill. 2d at 113.
Summary judgment should not be granted unless the right of the moving party is clear and free
from doubt. Horwitz, 212 Ill. 2d at 8.
¶ 62 As set forth, although Givens, Dudley, and Strong all participated in the events, only
Strong’s civil suit was permitted to proceed. The claims of Givens and Dudley were dismissed
based on collateral estoppel from their criminal convictions. Criminal convictions can have an
estoppel effect on civil litigation like the present when three threshold requirements are met.
American Family Mutual Insurance Co. v. Savickas, 193 Ill. 2d 378, 387 (2000); Enadeghe v.
Dahms, 2017 IL App (1st) 162170, ¶ 12. The issue decided in the criminal case must be
identical with that in the civil case, there must have been a judgment on the merits in the
criminal case, and the party against whom the estoppel is asserted must have been a party to
the prior adjudication. Savickas, 193 Ill. 2d at 387; Enadeghe, 2017 IL App (1st) 162170, ¶ 12.
In addition, no unfairness must result to the party who is estopped from relitigation. Savickas,
193 Ill. 2d at 388; Enadeghe, 2017 IL App (1st) 162170, ¶ 12. The court, in determining
whether estoppel should apply, must balance the need to limit litigation against the right to an
adversarial proceeding in which a party is accorded full and fair opportunity to present his case.
Savickas, 193 Ill. 2d at 388; Enadeghe, 2017 IL App (1st) 162170, ¶ 12.
- 16 -
¶ 63 The only dispute before us is the identity of issues. Givens and Dudley maintain there was
no identity of issues because the officers’ alleged willful and wanton conduct was not litigated
in their criminal cases, making collateral estoppel inapplicable. The City takes a different tack
and argues the officers’ conduct at first blush is irrelevant. The City maintains the criminal
cases demonstrated that Givens and Dudley’s “own intentional conduct caused their injuries”
and precluded any finding that the officers were unjustified in the shooting. As such, the City
maintains the two offenders are now barred from civil recovery.
¶ 64 The City, as the party asserting collateral estoppel, bears a heavy burden of demonstrating
with clarity and certainty that Givens and Dudley’s prior criminal convictions determined
identical matters. See People v. Pawlaczyk, 189 Ill. 2d 177, 191 (2000); Peregrine Financial
Group, Inc. v. Martinez, 305 Ill. App. 3d 571, 581 (1999). For collateral estoppel to apply, it
must be conclusive that a fact was so in issue that it was necessarily decided by the court
rendering the prior judgment. Peregrine, 305 Ill. App. 3d at 581; see also Gauger v. Hendle,
2011 IL App (2d) 100316, ¶ 114 (collateral estoppel is narrowly tailored to fit the precise facts
and issues that were clearly determined in the prior judgment). In that sense, a judgment in the
first suit operates as an estoppel only as to the point or question actually litigated and
determined and not as to other matters that might have been litigated and determined. Gauger,
2011 IL App (2d) 100316, ¶ 114.
¶ 65 For the reasons that follow, we reject the City’s claim that collateral estoppel applies here.
In Givens, 2018 IL App (1st) 152031-U, and Dudley, 2018 IL App (1st) 152039-U, this court
considered the sufficiency of the evidence to sustain the burglars’ felony murder and
aggravated battery convictions, among other claims. At issue was whether the felony murder
statute applies when someone resisting the underlying felony (in this case the police) fired the
fatal shots killing the victim (i.e., Strong). In upholding the convictions, we found that liability
attaches for any death that is a proximate or direct and foreseeable consequence of the
defendant’s underlying felony. We noted that encountering resistance, even if deadly, when
committing a forcible felony like burglary was a direct and foreseeable consequence of the
felony. We thus upheld the felony murder convictions of Givens and Dudley because Strong’s
death was a direct and foreseeable result of the offenders’ burglary, notwithstanding that it was
the police officers who shot Strong. We also upheld Givens’s and Dudley’s aggravated battery
convictions, rejecting the argument that the conduct was unknowing or reckless. We held the
burglars knew there were police outside the garage, and the evidence supported the jury’s
determination that “it was practically certain” the offenders would hit a police officer, which
happened to be Officer Papin, when driving through the garage door. Givens, 2018 IL App
(1st) 152031-U, ¶ 46; Dudley, 2018 IL App (1st) 152039-U, ¶ 23. We also rejected Givens’s
and Dudley’s contentions that the trial court abused its discretion in excluding evidence about
the officers’ use of force policy.
¶ 66 Several matters distinguish the criminal case. 7 First and foremost, with respect to felony
murder, this court did not determine whether Givens and Dudley were intentional in murdering
Strong. On appeal, we expressly observed that a defendant may be found guilty of felony
murder regardless of intent and that the mental state is derived only from the underlying offense
7
As to Givens’s and Dudley’s criminal cases, we note that any discrepancies between the civil and
criminal trials may be challenged in a postconviction petition. However, we offer no comment on the
merits of such a petition.
- 17 -
(here, burglary). Givens, 2018 IL App (1st) 152031-U, ¶ 26. At the criminal jury trial, for
example, consistent with the jury instructions, the State emphasized in closing arguments that
“it is immaterial whether the killing is intentional or accidental,” so long as a death occurs in
the course of the felony. On appeal we noted that liability automatically attaches under those
facts. Thus, it was clear that Givens and Dudley intended to commit burglary by knowingly
entering the building absent authority and with intent to commit theft. It was likewise clear that
they intended to commit aggravated battery by striking Officer Papin, knowing him to be a
police officer.
¶ 67 Yet, the criminal prosecution did not conclusively determine whether, under civil
standards, Givens and Dudley were by degrees intentionally or recklessly willful and wanton
in bringing about their own injuries in the form of the substantial gunshot wounds. In that
sense, this case is distinguishable from Savickas, 193 Ill. 2d at 388, where collateral estoppel
was found to apply. There, the homeowner’s insurance company was absolved from defending
or indemnifying Savickas, who previously had been found guilty by a criminal jury of
intentional murder. The supreme court noted his mental state was necessary to his conviction
and concluded that finding established Savickas “ ‘intended or expected’ ” the result of his
actions, thus excluding him from coverage by the insurance company. Unlike in Savickas, the
exact issue was not litigated in this case. The City’s argument to the contrary that the criminal
jury found the two burglars were intentional tortfeasors, which could foreclose a civil suit,
must therefore be rejected.
¶ 68 Similarly, the criminal prosecution did not encompass civil tort law, where more than one
person may be to blame for causing an injury. See Leonardi v. Loyola University of Chicago,
168 Ill. 2d 83, 100 (1995). While the criminal jury certainly found Strong’s death was a direct
and foreseeable result of the offenders’ burglary, and thus the death was a proximate cause of
Givens’s and Dudley’s unlawful activity, the criminal jury did not also consider whether the
officers’ actions or omissions directly or immediately caused the injuries. On appeal, we wrote,
for example, “[t]he issue here is whether Strong’s death was a foreseeable consequence of
defendant’s burglary, not whether the police shooting was foreseeable.” (Emphasis omitted
and in original.) Givens, 2018 IL App (1st) 152031-U, ¶ 34; see also Dudley, 2018 IL App
(1st) 152039-U, ¶ 27 (same). Indeed, the police potentially could be liable for willful and
wanton conduct whether it contributed wholly or partly to Givens’s and Dudley’s injuries so
long as it was one of the proximate causes of the injury. See Leonardi, 168 Ill. 2d at 92-93 (“A
person who is guilty of negligence cannot avoid responsibility merely because another person
is guilty of negligence that contributed to the same injury.” (Emphasis omitted.)).
¶ 69 Relatedly, the criminal jury did not consider whether the police officers’ actions were
justified or excessive, since the jury was disallowed from considering that evidence. During
the criminal trial, the judge expressly excluded testimony about the general orders of the police
department, stating that was better left to a civil case. On appeal, we noted “no evidence
otherwise suggested that the police would not shoot under [the] circumstances.” Givens, 2018
IL App (1st) 152031-U, ¶ 52; Dudley, 2018 IL App (1st) 152039-U, ¶ 42. While the defense
attorneys for Givens and Dudley argued in closing that the police shooting was reckless, a
result of fear, or an overreaction involving excessive force, neither defendant was permitted to
fully support his theory of defense or fully litigate the matter because it was irrelevant in the
criminal trial. Cf. Enadeghe, 2017 IL App (1st) 162170, ¶¶ 15-17 (noting that the defendant’s
- 18 -
prior criminal conviction for battery could serve as a basis for civil liability where the
defendant had a full and fair opportunity to litigate all relevant issues in his criminal trial).
¶ 70 The focus of the criminal trial thus was on the offenders’ conduct, not the officers’ duty to
respond appropriately to a crime consistent with their training, society’s expectations, and the
law. In short, the criminal case dealt with whether Givens and Dudley committed crimes
against the public. The civil case is designed to deal with whether the public, i.e., the City via
its police officers, committed wrongs against Givens and Dudley. For the reasons stated above,
the City has not fulfilled its heavy burden of demonstrating with clarity and certainty that
Givens and Dudley’s prior criminal convictions determined identical matters as would arise in
a civil proceeding. We conclude collateral estoppel does not apply to bar their civil suit.
¶ 71 We believe that fairness standards associated with collateral estoppel also dictate this
result. See id. ¶ 12 (noting, “no unfairness must result to the party who is estopped from
relitigation”). It is manifestly unjust to permit Strong’s case, brought by his estate, to proceed
in the civil context but not the case of Givens and Dudley, where the only distinguishing factor
is that Strong died from his injuries while Givens and Dudley lived. Viewing the evidence
liberally in favor of Givens and Dudley, as the nonmoving parties, summary judgment for the
City should not have been granted. See In re Estate of Berry, 277 Ill. App. 3d 1088, 1092
(1996) (noting that summary judgment is a drastic remedy and should only be allowed when
the record clearly is devoid of any genuine issue of material fact). On remand, Givens and
Dudley will have the opportunity to amend their complaint, which presently alleges only
battery, and proceed to trial.
¶ 72 Trial Errors
¶ 73 Given our holding and in the interest of judicial economy, we address several issues that
are likely to recur on remand. See Shackelford v. Allstate Fire & Casualty Insurance Co., 2017
IL App (1st) 162607, ¶ 10. Plaintiffs argue that the trial court erred in barring testimony from
two employees who reviewed this police shooting for the Civilian Office of Police
Accountability (COPA). 8 COPA is the civilian oversight agency of the Chicago Police
Department and investigates complaints of excessive force or incidents where a person dies or
sustains a serious bodily injury as a result of police actions. Here, COPA issued a final report
finding the shooting justified, but prior to trial, the estate’s counsel noted that an investigator
and supervisor from COPA had both recommended the opposite, that the shooting was not
justified and violated police policy (notably, these employees were subsequently fired).
Counsel requested that they be permitted to testify about their findings, but the trial court barred
the testimony as irrelevant and distracting.
¶ 74 Plaintiffs maintain these officials should be permitted to testify on remand. The City
disagrees and relies on Bulger v. Chicago Transit Authority, 345 Ill. App. 3d 103, 116-17
(2003), holding that evidence of a Chicago bus driver’s violation of an internal rule and
mandated retraining was inadmissible in a negligence suit. The City also cites another case
barring evidence of post-accident remedial measures to impeach or prove prior negligence, but
those cases are inapposite. Here, plaintiffs’ proposed witnesses are from an independent
agency responsible for assessing whether the officers’ actions were justified based on
misconduct complaints; the evidence does not involve post-remedial measures. Regardless, a
8
COPA replaced the Independent Police Review Authority.
- 19 -
jury may consider an officer’s violation of a police department rule, along with other evidence,
in reaching a determination about misconduct. See Hoffman v. Northeast Illinois Regional
Commuter R.R. Corp., 2017 IL App (1st) 170537, ¶ 47. We see no reason for barring testimony
from those who evaluated the shooting, as they were mandated and trained to do, and found
the shooting lacked justification, the very heart of the civil case. See Ford v. Grizzle, 398 Ill.
App. 3d 639, 646 (2010) (noting that evidence is relevant “if it has any tendency to make the
existence of any fact that is of consequence to the determination of the action more or less
probable than it would be without the evidence”). Of course this testimony must be limited to
the investigator/supervisor’s opinion on the matter and not venture into a discussion of their
firing or removal from COPA.
¶ 75 Plaintiffs also contend that the officers “arranged a story that the minivan struck Officer
Papin in order to retroactively justify the shooting.” To support this theory at trial, the estate
pointed to a portion of the surveillance videotape, which has no sound, showing officers some
20 minutes after the shooting talking amongst themselves in a group and gesticulating. Some
were pointing at the disabled van. The estate also proposed eliciting testimony from its expert,
Dr. Alpert, that officers are disallowed from consulting after a shooting. We have reviewed the
tape and agree with the City that this proposed evidence is entirely too speculative to support
the theory that officers arranged a cover-up. See People v. Cloutier, 156 Ill. 2d 483, 501 (1993)
(noting that evidence that is remote, uncertain, or speculative may be rejected on the grounds
of relevancy). Regardless, the estate was not precluded from challenging whether the van
struck Officer Papin, and this may be done again on remand.
¶ 76 Plaintiffs next contend that the court should not have admitted reconstruction animation
videos from several officers’ points of view as demonstrative evidence. Trial testimony showed
the animations were rendered from 3D laser scans of the scene at 2459 S. Western Avenue,
surrounding cameras, and also the surveillance video to accurately recreate the officers’
perspectives. The videos thus were admissible to aid the jury’s understanding as they were
relevant and fair. See Preston v. Simmons, 321 Ill. App. 3d 789, 801 (2001); see also Webb v.
Angell, 155 Ill. App. 3d 848, 861 (1987) (noting the requirements for foundation). Plaintiffs
nonetheless complain that the video from Officer Curry’s perspective omits Officer Papin
“running right across his face” and the videos as a whole inaccurately portray lighting and the
van’s headlights and show the driver shifting the gear into drive contrary to Dudley’s testimony
(but consistent with that of the officers). All this goes to the weight of the evidence and not its
admissibility. See Preston, 321 Ill. App. 3d at 801-02. On remand, the parties will have the
opportunity to correct any claimed inaccuracies or to again cross-examine the animator as to
them at trial.
¶ 77 Last, plaintiffs contend the trial court incorrectly excluded allegations of willful and
wanton conduct as part of the issues instruction. At trial, the estate sought to instruct the jury
that police officers were willful and wanton in failing to stand clear of the garage door, placing
themselves before a moving van, and failing to heed verbal and radio warnings, as well as
using excessive force. This conduct could be construed as a course of action showing
indifference or disregard for the officers’ own safety, which contributed to the excessive
shooting. We agree that on remand, plaintiffs should be permitted to instruct the jury that this
evidence supports a finding of reckless willful and wanton conduct by the officers. See
Lounsbury v. Yorro, 124 Ill. App. 3d 745, 751 (1984) (noting, a court must instruct the jury on
- 20 -
all issues reasonably presented by the evidence).
¶ 78 CONCLUSION
¶ 79 Based on the foregoing, we reinstate the jury’s verdict in favor of Strong’s estate for
$999,999. We therefore reverse the trial court’s judgment notwithstanding the verdict. We also
reverse the trial court’s granting of summary judgment against Givens and Dudley and remand
the case for proceedings consistent with this opinion.
¶ 80 Reversed and remanded.
- 21 -