Givens v. City of Chicago

2023 IL 127837

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 127837)

JOHN W. GIVENS et al., Appellees, v. THE CITY OF CHICAGO, Appellant.

Opinion filed October 19, 2023.

JUSTICE OVERSTREET delivered the judgment of the court, with opinion.

Chief Justice Theis and Justices Rochford and O’Brien concurred in the

judgment and opinion.

Justice Cunningham concurred in part and dissented in part, with opinion,

joined by Justices Neville and Holder White.

OPINION

¶1 After John W. Givens, Leland Dudley, and David Strong burglarized an

electronics store in 2012, they attempted to escape by backing a van out of a closed

garage door, striking a police officer in the process. Chicago police officers fired

their weapons at the van, resulting in Strong’s death and injuries to Dudley and

Givens. Dudley and Givens were thereafter charged, convicted, and sentenced for

felony murder (720 ILCS 5/9-1(a)(3) (West 2012)), aggravated battery to a peace

officer (id. § 12-3.05(d)(4)), and possession of a stolen motor vehicle (625 ILCS

5/4-103(a)(1) (West 2012)). Subsequently, they and Strong’s estate filed a civil

lawsuit in the circuit court of Cook County against defendant, the City of Chicago

(City), alleging the use of excessive force.

¶2 With respect to Dudley and Givens, the circuit court entered summary judgment

for the City based on the collateral estoppel effect of their prior criminal

proceedings. The estate’s lawsuit proceeded to a jury trial, which resulted in a

partial verdict for the estate. However, the circuit court granted the City’s motion

for judgment notwithstanding the verdict based on the jury’s answers to special

interrogatories.

¶3 On appeal, the appellate court reversed the circuit court’s rulings on both issues,

holding that (1) collateral estoppel did not apply to bar Dudley and Givens from

litigating their excessive force claims and (2) the circuit court erred in vacating the

jury’s verdict for the estate. 2021 IL App (1st) 192434. We allowed the City’s

petition for leave to appeal. For the following reasons, we affirm in part and reverse

in part the appellate court’s judgment.

¶4 I. BACKGROUND

¶5 In the early morning hours of April 30, 2012, Givens, Dudley, and Strong

burglarized Mike’s Electronics, a store selling car alarms and audio equipment

located at 2459 South Western Avenue in Chicago. The store consisted of a

showroom and attached garage on the first floor of the building. The three offenders

entered the store through a window by breaking open a metal grate. An occupant

of the second-floor apartment heard noises and notified the police. Multiple police

officers arrived at the scene while Dudley, Givens, and Strong were still inside the

store. Meanwhile, the three offenders took merchandise from the showroom into

the attached garage and loaded it into a van that belonged to the store’s owner. They

then got into the van, put it in reverse, and broke through the closed garage door.

Dudley was in the driver’s seat, Strong was in the front passenger seat, and Givens

was in the back seat. As the van exited the garage at a high rate of speed, it struck

Chicago police officer Michael Papin on his left hip before hitting two other

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vehicles. Eight police officers shot their weapons at the van, firing approximately

75 bullets at the van and its occupants. Strong died at the scene. Givens and Dudley

sustained severe injuries and were later charged criminally.

¶6 After being tried jointly by a criminal jury, Dudley and Givens were convicted

of first degree felony murder predicated on a forcible felony (720 ILCS 5/9-1(a)(3)

(West 2012)), aggravated battery to a peace officer (id. § 12-3.05(d)(4)), burglary

(id. § 19-1(a)), and possession of a stolen motor vehicle (625 ILCS 5/4-103(a)(1)

(West 2012)). People v. Dudley, 2018 IL App (1st) 152039-U, ¶ 2; People v.

Givens, 2018 IL App (1st) 152031-U, ¶ 2. Givens was convicted of aggravated

battery to a peace officer based on an accountability theory for Dudley’s actions.

Givens, 2018 IL App (1st) 152031-U, ¶ 13. Merging the burglary conviction into

the felony murder conviction, the circuit court sentenced Givens to consecutive

prison terms of 20 years for felony murder, 6 years for aggravated battery, and 6

years for possession of a stolen motor vehicle. Id. ¶ 2. Merging Dudley’s burglary

conviction into his felony murder conviction, the circuit court sentenced Dudley to

consecutive prison terms of 25 years for felony murder, 6 years for aggravated

battery, and 6 years for possession of a stolen motor vehicle. Dudley, 2018 IL App

(1st) 152039-U, ¶ 2. Their convictions and sentences were affirmed on appeal. Id.

¶ 48; Givens, 2018 IL App (1st) 152031-U, ¶ 61.

¶7 A. Dudley’s and Givens’s Criminal Appeals

¶8 In Dudley, 2018 IL App (1st) 152039-U, ¶ 18, the appellate court noted that, in

the felony murder context, courts in Illinois adhere to the proximate cause theory

of liability (People v. Hudson, 222 Ill. 2d 392, 401 (2006); People v. Lowery, 178

Ill. 2d 462, 465 (1997)), wherein liability attaches for any death proximately

resulting from an offender’s unlawful activity. The appellate court found it

undisputed that Dudley committed burglary, a forcible felony under Illinois law

(720 ILCS 5/2-8 (West 2012)). Dudley, 2018 IL App (1st) 152039-U, ¶ 20. The

appellate court held that Strong’s death occurred during Dudley’s burglary

commission because Strong was shot during the offenders’ attempt to escape from

the police. Id. The appellate court further held that “Strong would not have been

killed had [Dudley] not carried out that burglary.” Id. In rejecting Dudley’s

argument that he was not liable because Strong’s death was directly attributable to

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the police shooting, the appellate court noted that “the purpose of the felony murder

statute would be defeated if resistance, even in the form of deadly force, could be

considered a sufficient intervening circumstance to terminate a [criminal]

defendant’s liability for felony murder.” Id. ¶ 21.

¶9 The appellate court further rejected Dudley’s claim that Strong’s death was not

a foreseeable consequence of his burglary offense because he was unaware that the

police were outside the store and, given that Dudley and his cooffenders were

unarmed, it was not reasonably foreseeable that the police would use deadly force

in shooting at the van. Id. ¶ 22. The appellate court stated:

“First, [Sergio] Hernandez [(who occupied the second-floor apartment)]

testified that the police continuously announced their presence after they

arrived. More notably, the video footage showed that lights flashed inside the

showroom and the garage, and in both instances, at least one of the offenders

hid. Finally, before [Dudley] drove the van through the garage door, Officers

Lopez and Gonzalez broke a hole through the interior door to the garage, and

continuously yelled ‘Chicago police officers, come out, you’re surrounded, just

come out.’ Thus, [Dudley] had reason to know that once he drove the van

through the garage door, a police officer would be in the vehicle’s path.

Moreover, [Dudley] disregards that the van, itself, was a deadly weapon,

inviting the police to resist its force with their own deadly weapons.” Id.

The appellate court “categorically reject[ed] [Dudley’s] vacuous contention that no

reasonable person could have foreseen that, in reversing a van through a locked

garage door during a burglary commission, he would be met with police resistance

using deadly force.” Id. ¶ 23. The appellate court concluded that Dudley’s felony

murder conviction furthered the purpose of the felony murder statute because he

committed a forcible felony and Strong was killed as a result of the violence

accompanying that felony (720 ILCS 5/9-1(a)(3) (West 2012) (person who kills

another without lawful justification commits first degree murder if, in performing

acts which cause the death, he is committing a forcible felony other than second

degree murder)). Dudley, 2018 IL App (1st) 152039-U, ¶ 24; see also Givens, 2018

IL App (1st) 152031-U, ¶ 30.

¶ 10 The appellate court further addressed whether the circuit court abused its

discretion in excluding evidence of a general order of the Chicago Police

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Department. Dudley, 2018 IL App (1st) 142039-U, ¶ 25. The general order

provided that, when confronted by an oncoming vehicle, officers are authorized to

fire at it to prevent death or great bodily harm to themselves or others but, if it is

known that the vehicle is the only force being used, officers should move out of the

vehicle’s path. Id. The appellate court held that the issue before it involved whether

Strong’s death was a foreseeable consequence of Dudley’s burglary offense, not

whether the police shooting was reasonably foreseeable to Dudley. Id. ¶ 27; see

also Givens, 2018 IL App (1st) 152031, ¶ 34.

¶ 11 In Dudley, the appellate court further held that the evidence at trial was

sufficient to establish that Dudley knowingly caused bodily harm to Officer Papin.

Dudley, 2018 IL App (1st) 152039-U, ¶ 30; see 720 ILCS 5/12-3.05(d)(4) (West

2012) (a person commits aggravated battery when, in committing a battery, he

knows the individual battered to be a peace officer); 720 ILCS 5/12-3 (West 2012)

(a person commits battery if he knowingly without legal justification causes bodily

harm to an individual or makes physical contact of an insulting or provoking nature

with an individual). The appellate court stated:

“In his brief, [Dudley] states that ‘[a]lthough the [surveillance] video

indicates that one of the men saw someone outside the storefront, there is no

indication that the men knew the extent of the police presence outside the

garage.’ (Emphasis added.) Thus, [Dudley] apparently concedes that he and/or

his co-offenders were aware of some police presence outside the store and the

garage. Notwithstanding, the surveillance videos also showed that [Dudley,

Givens,] or Strong hid after lights flashed inside the garage. This also supports

the jury’s apparent finding that [Dudley] was aware that the police were outside

the garage. Furthermore, as stated, Officers [Daniel] Lopez and [Manuel]

Gonzalez broke a hole through the interior door to the garage, while

continuously announcing that [Dudley] and his co-offenders were surrounded

by the police. This, alone, supports the jury’s apparent finding that [Dudley]

was aware that the police were outside the garage before he drove the van

through it. Given the foregoing, the evidence supported the jury’s determination

that [Dudley] was aware that, in driving through the garage door, it was

practically certain that a police officer would be hit.” (Emphasis omitted.)

Dudley, 2018 IL App (1st) 152039-U, ¶ 33.

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See also Givens, 2018 Il App (1st) 152031-U, ¶ 45.

¶ 12 On appeal, Givens likewise argued, inter alia, that Strong’s death was an

unforeseeable consequence of the burglary. Givens, 2018 IL App (1st) 152031-U,

¶ 3. The appellate court held that Givens “committed a forcible felony and Strong

was killed as a result of the violence accompanying that felony.” Id. ¶ 28. The

appellate court thus concluded that the evidence was sufficient to sustain Givens’s

felony murder conviction. Id. ¶ 30.

¶ 13 The appellate court noted that Givens did not dispute his involvement with his

cooffenders but argued that his aggravated battery conviction should be reversed

because the State failed to prove that Dudley, as the principal under the

accountability theory for which Givens was tried, knowingly caused bodily harm

to Officer Papin. Id. ¶ 42. The appellate court concluded that “the evidence

support[ed] the jury’s determination that [Dudley] was aware it was practically

certain he would hit a police officer in driving through the garage door.” Id. ¶ 45.

¶ 14 B. Civil Action Below

¶ 15 On November 1, 2016, Givens and Dudley, as well as Theresa Daniel, 1 as

special administrator of Strong’s estate, filed a three-count complaint in the circuit

court of Cook County against the City. Count I alleged battery to Givens and

Dudley. Counts II and III alleged causes of action for survival and wrongful death,

respectively, by the estate. All three counts alleged the police officers committed

battery against the plaintiffs in that they (1) “used excessive force in executing an

arrest,” (2) “used force likely to cause great bodily harm or death when they were

not responding to or in fear of force likely to cause great bodily harm to them,” and

(3) “fired in excess of 70 bullets towards Givens, Dudley and Strong, when the

officers had no justification for the use of deadly force.”

¶ 16 In response to the complaint, the City filed an answer and 10 affirmative

defenses. These included various provisions of the Local Governmental and

Governmental Employees Tort Immunity Act (745 ILCS 10/1-101 et seq. (West

2012)), as well as self-defense and collateral estoppel. The City also alleged as an

1

Bernice Strong was the original named plaintiff and special administrator of Strong’s estate.

Theresa Daniel was later substituted as the named plaintiff.

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affirmative defense Strong’s contributory willful and wanton conduct in engaging

or participating in conduct that placed police officers in imminent fear of death or

great bodily harm to themselves or others.

¶ 17 Thereafter, the City also filed a motion for summary judgment based on

collateral estoppel. The exhibits attached to the motion included the transcript and

jury instructions from Dudley’s and Givens’s joint criminal trial. In its motion, the

City asserted that plaintiffs were estopped from litigating certain issues resolved

during the criminal proceedings because those proceedings resulted in a final

judgment on the merits and involved the same parties. 2 The City identified two

issues that it alleged were conclusively determined in the criminal proceedings.

First, the City alleged that plaintiffs could not relitigate the jury’s finding that the

police shooting that caused their injuries did not constitute an excessive use of force

that became an intervening cause of Strong’s death. Second, the City alleged that

plaintiffs could not relitigate the jury’s finding that their injuries were proximately

caused by their own intentional actions. On the second issue, the City asserted it

was entitled to summary judgment based on the theory that a plaintiff whose

intentional misconduct proximately causes his or her own injuries cannot recover

against other alleged tortfeasors. See, e.g., Poole v. City of Rolling Meadows, 167

Ill. 2d 41, 48 (1995) (a jury is “precluded from reducing a defendant’s damages by

a plaintiff’s contributory negligence if the defendant’s willful and wanton

misconduct was intentional”); Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 280

(1994) (“contribution should not be authorized where the defendant’s willful and

wanton acts amount to intentional behavior”). Noting that Poole and Ziarko dealt

with the issue of contributory fault, the City argued that “the principles are the

same: persons who engage in intentional misconduct which causes injury are not

permitted to blame others for also contributing to cause the same injury.”

¶ 18 Pursuant to the doctrine of collateral estoppel, the circuit court entered summary

judgment against Dudley and Givens, finding their criminal trial precluded their

civil action against the City but denied the City’s request for summary judgment

against the estate. On the same date, the estate was permitted to file a first amended

complaint to allege causes of action for wrongful death and survival based on the

2

Although Strong was not subject to criminal proceedings, the City argued that his estate was

in privity with the other plaintiffs and, thus, was subject to collateral estoppel, because Strong

participated in the same criminal conduct that led to the police shooting.

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City’s willful and wanton misconduct. Specifically, the estate alleged that the City

“acted willfully and wantonly” and “without justification” in, inter alia, shooting

Strong, shooting at the van occupied by Strong, firing weapons without

justification, engaging in “contagion fire” that resulted in injury to Strong, and

using force likely to cause great bodily harm or death.

¶ 19 The City and the estate proceeded to a jury trial on the estate’s claims. At trial,

several surveillance camera videos and police dashcam videos were admitted into

evidence and played for the jury. The evidence showed that 19 police officers

responded to the scene of the burglary while the burglars were still inside the

building. Several police officers shined flashlights into the windows and announced

their presence. One police officer attempted to open the garage door but was unable

to do so. Police officers Jonathan Michel and Jeremy Lorenz were looking into the

windows of the store when they saw the headlights of a vehicle turn on. Officer

Lorenz then radioed a message to a police dispatcher at the City’s office of

emergency management and communications, which stated, “Keep clear. They

might be busting out the door.” The dispatcher repeated the message to the entire

radio zone, which would have been broadcast to every police officer at the scene.

However, several police officers testified at trial that they did not hear the message.

¶ 20 Officer Adrian Valdez testified that he saw the headlights turn on in the garage

and approached Officer Papin, who was standing in front of the garage door. Valdez

testified that he told Papin to “watch out, they’re coming out.” In a later interview,

Valdez told an investigator that he told Papin, “to move out of the way. He’s

coming.” Seconds later, the van crashed through the garage door. The video showed

Papin swerving out of the way of the van and moving to the side. As the van

continued reversing, eight police officers fired at the van approximately 75 times

until it came to a stop. The police officers who shot the van told investigators that

they thought the van hit Papin and dragged him under it. The videos showed that

seven of the eight police officers who shot at the vehicle were standing on the

opposite side of the van from Papin and their line of sight was blocked by the van.

The police officers also reported that the van reversed direction and began moving

forward after it hit a parked vehicle.

¶ 21 Geoffrey Alpert testified for the estate as an expert on police procedures. During

Alpert’s testimony, the estate introduced into evidence the Chicago Police

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Department’s general order and guideline on the use of deadly force, which was in

effect on the date of this incident. Alpert opined that the shooting was excessive,

unreasonable, and unwarranted and that the police officers who fired were willful,

wanton, and reckless and had no legal justification for firing on the van. He testified

that the videos showed that Officer Papin was not run over or dragged by the van

and that one of the police officers who shot at the van could see Officer Papin move

out of the way. In Alpert’s opinion, at the time the police officers began shooting,

any danger to the officers had passed because the van was out of the officers’ way.

He opined that some of the police officers engaged in contagion fire, which he

defined as shooting because other police officers are shooting while being unaware

of the justification for the shooting. Alpert further testified that the video showed

that the van did not move forward after stopping; rather, it ricocheted off another

vehicle then came to a stop because its tires were deflated.

¶ 22 The City’s expert witness, Roy G. Taylor, testified that Illinois law allows

deadly force after a forcible felony where injury or the likelihood of injury is

prevalent. Taylor opined that deadly force was justified in this case because the

offenders knew police 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

also opined that the police officers’ reasonable belief that Officer Papin had been

struck by the van justified the use of deadly force.

¶ 23 Prior to the conclusion of closing arguments, the circuit court and the parties

participated in multiple jury instruction conferences. At the third jury instruction

conference prior to closing arguments, the estate confirmed that it was submitting

two separate theories to the jury regarding the City’s willful and wanton conduct:

(1) the City was recklessly willful and wanton and (2) the City was intentionally

willful and wanton, and thus, the jury would need instruction on both. In doing so,

the estate acknowledged that submitting a special interrogatory would be

appropriate to clarify the contribution at issue. See Ziarko, 161 Ill. 2d at 280

(“[C]ontribution should not be authorized where the defendant’s willful and wanton

acts amount to intentional behavior.”).

¶ 24 Accordingly, the circuit court clarified at this jury instruction conference that,

if the jury found against the City and in favor of the estate, it must do so based on

(1) the City’s intentional willful and wanton conduct, which would allow the estate

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to recover damages fully, or (2) the City’s reckless willful and wanton conduct,

which would allow the estate to recover damages with a deduction for Strong’s

contributory willful and wanton conduct. See id. Thus, the circuit court noted that,

for example, verdict form A, allowing no reduction of damages, essentially

encompassed a verdict finding the City’s conduct intentionally willful and wanton.

¶ 25 With this concern at issue, i.e., to properly instruct the jury regarding the two

willful and wanton theories alleged by the City, the circuit court drafted and

presented special interrogatories to the parties. The circuit court noted the unique

facts of the case, including that Strong was not the vehicle’s driver who, testimony

revealed, was the target of the shooting, and that considerations of willful and

wanton conduct applied both to the City and Strong. The circuit court proposed

three special interrogatories and specifically noted that special interrogatory No. 1

would test verdict form A, special interrogatory No. 2 would test verdict form B,

and special interrogatory No. 3 would test verdict form C.

¶ 26 As noted, verdict form A provided for a finding in favor of the estate and against

the City and assessed damages without regard to Strong’s contributory conduct.

Verdict form B provided for a verdict for the estate but allowed a reduction of

damages based on Strong’s contributory fault, and verdict form C provided for a

finding in favor of the City and against the estate.

¶ 27 In proposing the special interrogatories, the circuit court requested input or

alternatives to the special interrogatories, and the estate offered none. The estate

suggested that the special interrogatories be “apportioned somewhere on the verdict

form” to avoid “setting this verdict form up for failure.” However, the estate did

not assert that the special interrogatories, particularly special interrogatory No. 2,

consisted of vague, confusing, or impermissibly compound language. Instead, at

this jury instruction conference, the circuit court explained, and the estate

acknowledged, that if, for example, the jury returned verdict form A, with no

reduction of damages, the answer to corresponding special interrogatory No. 1

would control because the jury must find the City’s conduct intentionally willful

and wanton in entering a verdict pursuant to verdict form A. Likewise, the circuit

court clarified that, if the jury returned verdict form B and reduced damages

pursuant to Strong’s contributory fault, the verdict could stand only if the jury found

the City’s conduct recklessly willful and wanton.

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¶ 28 Thus, the circuit court determined that it would give the jury three special

interrogatories in addition to the jury instructions. The special interrogatories stated

as follows:

Special interrogatory No. 1: “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: “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: “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?”

¶ 29 During closing arguments, the estate argued that willful and wanton conduct

was “an actual or deliberate intent to harm, or if not intentional, *** an utter

indifference or conscious disregard for a person’s own safety.” The estate’s closing

continued:

“You’re going to be asked to answer questions. Did they engage in actual

or deliberate intent to harm? Shooting that many bullets without a reasonable

belief, there’s no question. Police don’t shoot their guns unless they are

intending to kill. There was an actual intent to harm. But if it wasn’t intentional,

certainly *** there was a conscious disregard for Mr. Strong’s safety that

caused his injury. ***

One of the questions you will be asked to answer is if they showed an utter

indifference or conscious disregard for the safety of others. The answer to that

is yes. You’ll be asked a similar question, but this one talks about actual or

deliberate intent to harm. The answer to that is yes.”

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¶ 30 Likewise, the City highlighted the special interrogatories’ focus on the

difference between intentional and reckless willful and wanton conduct. During

closing arguments, the City stated:

“The first interrogatory asks if the Chicago police officers who used deadly

force *** engage[d] in a course of action without legal justification which

showed an actual or deliberate intention to harm David Strong? There’s no

evidence of that. There is no evidence that any of these officers acted with a

deliberate intention to harm David Strong. Your answer to this first

interrogatory should be no.

The second interrogatory you’ll be asked to answer: 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? Your answer should

be no. There is no evidence that any of these officers acted with an utter

indifference or conscious disregard for David Strong.”

¶ 31 Prior to the City’s closing argument, outside the presence of the jury, the circuit

court acknowledged again to the parties that the jury would be instructed that, if

Strong’s contributory willful and wanton conduct was 50% or less, the estate may

recover a reduced proportion considering Strong’s willful and wanton conduct. See

Illinois Pattern Jury Instructions, Civil, No. 14.03 (2011) (hereinafter IPI Civil).

However, the circuit court questioned as follows:

“What’s not in here is if they find that the police officers acted intentionally

then they would have no occasion to consider the willful and wanton conduct

of [Strong].”

The estate replied, “I think it would just theoretically be controlled by the special

interrogatory.”

¶ 32 Accordingly, the jury was tasked with considering whether Strong’s actions

amounted to contributory willful and wanton conduct, and if so, by how much;

whether the City’s actions, through its officers, amounted to willful and wanton

conduct; and whether, if willful and wanton, the officers’ actions were intentionally

willful and wanton or recklessly willful and wanton.

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¶ 33 Following the presentation of evidence and closing arguments, the circuit court

provided the jury the following instruction on the definition of willful and wanton

conduct:

“When I use the expression ‘willful and wanton conduct’ I mean 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.” 3

The circuit court instructed the jury that “[i]t was the duty of the [City] before and

at the time of the occurrence, to refrain from willful and wanton conduct which

would endanger the safety of the decedent.”

¶ 34 The jury also received the following instruction:

“It was the duty of the plaintiff’s decedent David Strong, before and at the

time of the occurrence, to refrain from willful and wanton conduct that would

endanger his person. A plaintiff is contributorily willful and wanton if (1) his

conduct is willful and wanton, and (2) such willful and wanton conduct is a

proximate cause of the alleged injury or death.

The plaintiff’s decedent’s contributory willful and wanton conduct, if any,

which is 50% or less of the total proximate cause of the injury or damages for

which recovery is sought, does not bar his recovery. However, the total amount

of damages to which he would otherwise be entitled is reduced in proportion to

the amount of his willful and wanton conduct. This is known as comparative

fault.

If the [estate’s] decedent’s contributory willful and wanton conduct is more

than 50% of the total proximate cause of the injury or damages for which

recovery is sought, it bars [the estate’s] recovery and your verdict shall be for

the [City].”

3

The model instruction provides, “When I use the expression ‘willful and wanton conduct’ I

mean a course of action which 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 the

safety of others.” IPI Civil, No. 14.01.

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¶ 35 The circuit court provided the jury with the three verdict forms and instructed

the jury with respect to the verdict forms as follows:

“If you find for [the estate] and against [the City] and if you further find that

David Strong was not contributorily willful and wanton, then you should use

Verdict Form A.

If you find for [the estate] and against [the City] and if you further find that

David Strong’s injury was proximately caused by a combination of [the City’s]

willful and wanton conduct and David Strong’s contributory willful and wanton

conduct and that David Strong’s contributory willful and wanton conduct was

50% or less of the total proximate cause of the injury or damage for which

recovery is sought, then you should use Verdict Form B.

If you find for [the City] and against [the estate] or if you find that David

Strong’s contributory willful and wanton conduct was more than 50% of the

total proximate cause of the injury or damage for which recovery is sought, then

you should use Verdict Form C.”

¶ 36 After hearing evidence and closing arguments, the jury rendered its verdict

pursuant to verdict form B. The jury found the total amount of damages suffered

by the estate equaled $1,999,998, determined that Strong’s death was proximately

caused by a combination of the City’s willful and wanton conduct and Strong’s

contributory willful and wanton conduct, calculated that Strong was 50% at fault

and the City was 50% at fault, and reduced the estate’s total damages accordingly.

¶ 37 In addition, the jury answered “No” to all three special interrogatories.

Following the verdict, the City moved for judgment on the special interrogatories,

arguing that the jury’s negative answers to the special interrogatories invalidated

the damage award to the estate. The circuit court agreed with the City and

determined that the jury’s answers to the interrogatories controlled the verdict.

Accordingly, the circuit court granted the City’s motion and entered judgment

notwithstanding the verdict for the City, thus nullifying the $999,999 judgment for

the estate.

¶ 38 C. Appellate Court Decision Below

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¶ 39 On appeal, Givens and Dudley challenged the circuit court’s entry of summary

judgment against them, and the estate challenged the circuit court’s entry of

judgment notwithstanding the verdict. The appellate court reversed the entry of

summary judgment and remanded the case for trial as to Givens and Dudley. 2021

IL App (1st) 192434, ¶ 79. The appellate court also reversed the judgment for the

City based on the special interrogatories and reinstated the $999,999 verdict for

Strong’s estate. Id.

¶ 40 With respect to Givens’s and Dudley’s claims, the appellate court held that

collateral estoppel did not apply to bar them because there was no identity of issues

between the criminal case and the civil case. Id. ¶¶ 66-70. The appellate court

explained:

“[T]he 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. ***

Similarly, the criminal prosecution did not encompass civil tort law, where

more than one person may be to blame for causing an injury. [Citation.] 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. *** 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.

[Citation.]

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. *** 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 [Dudley nor Givens] was

permitted to fully support his theory of defense or fully litigate the matter

because it was irrelevant in the criminal trial. [Citation.]

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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.” (Emphasis in original.) Id.

¶¶ 67-70.

¶ 41 With respect to the circuit court’s entry of judgment notwithstanding the verdict

in the estate’s case, the appellate court held that, because the special interrogatories

were “impermissibly compound,” “too broad,” and “vague and confusing,” they

were not absolutely irreconcilable with the verdict. Id. ¶¶ 47-50. The appellate court

held that the negative answer in special interrogatory No. 2 could be reconciled

with the jury’s verdict because the jury could have concluded that special

interrogatory No. 2’s reference to the “ ‘safety of others’ ” was referencing possible

passersby or innocent bystanders, rather than the burglars in the van. Id. ¶ 49.

Accordingly, the appellate court reinstated the jury’s verdict in favor of the estate.

Id. ¶ 50.

¶ 42 Thereafter, this court allowed the City’s petition for leave to appeal. Ill. S. Ct.

R. 315(a) (eff. Oct. 1, 2021).

¶ 43 II. ANALYSIS

¶ 44 On appeal to this court, the City argues that (1) Givens’s and Dudley’s civil

claims are barred by collateral estoppel and (2) the City is entitled to judgment

notwithstanding the verdict in the estate’s case because the jury’s answers to the

special interrogatories were inconsistent with the general verdict.

¶ 45 A. Collateral Estoppel

¶ 46 The circuit court resolved Givens’s and Dudley’s civil lawsuit by granting

summary judgment for the City based on collateral estoppel. Summary judgment is

proper where “the pleadings, depositions, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that

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the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c)

(West 2018). Resolving a lawsuit though summary judgment is a “drastic measure.”

Seymour v. Collins, 2015 IL 118432, ¶ 42. The circuit court must construe the

record strictly against the movant and liberally in favor of the nonmovant and

should only grant the motion if the movant’s right to judgment is clear and free

from doubt. Id. This court reviews de novo the circuit court’s entry of summary

judgment. Bridgeview Health Care Center, Ltd. v. State Farm Fire & Casualty Co.,

2014 IL 116389, ¶ 12.

¶ 47 “Collateral estoppel is an equitable doctrine, the application of which precludes

a party from relitigating an issue decided in a prior proceeding.” American Family

Mutual Insurance Co. v. Savickas, 193 Ill. 2d 378, 387 (2000). The collateral

estoppel doctrine, also referred to as estoppel by verdict, bars a party from

relitigating some controlling fact or question material to the determination of both

cases that has been adjudicated against that party in the prior case. Housing

Authority for La Salle County v. Young Men’s Christian Ass’n of Ottawa, 101 Ill.

2d 246, 252 (1984). Collateral estoppel applies to both findings of fact and

determinations of law. Du Page Forklift Service, Inc. v. Material Handling

Services, Inc., 195 Ill. 2d 71, 78-79 (2001).

¶ 48 “It is generally accepted that a criminal conviction collaterally estops a

defendant from contesting in a subsequent civil proceeding the facts established

and the issues decided in the criminal proceeding. See 50 C.J.S. Judgments § 922

(1997).” Talarico v. Dunlap, 177 Ill. 2d 185, 193 (1997). Nevertheless, the party

asserting collateral estoppel must establish that (1) an issue decided in a prior

adjudication is identical with the one presented in the current litigation, (2) there

was a final judgment on the merits in the prior adjudication, and (3) the party

against whom estoppel is asserted was a party or in privity with a party to the prior

adjudication. Savickas, 193 Ill. 2d at 387. Even when the threshold requirements of

collateral estoppel are met, however, the court may decline to apply the doctrine if

it would result in unfairness to the party sought to be estopped. Id. at 388. 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

a full and fair opportunity to present his case. Id. The applicability of collateral

estoppel is a question of law subject to de novo review. In re A.W., 231 Ill. 2d 92,

99 (2008).

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¶ 49 In this case, the parties do not dispute that the second and third collateral

estoppel requirements have been established. Givens’s and Dudley’s criminal cases

resulted in final judgments on the merits, and the parties against whom estoppel is

asserted are the same parties to the prior adjudication. At issue is the first collateral

estoppel requirement—whether issues decided in the criminal case are identical to

issues raised in Givens’s and Dudley’s civil lawsuit.

¶ 50 The identity of issues analysis encompasses the following principles. The party

asserting collateral estoppel bears the burden of showing “with ‘clarity and

certainty’ that the identical question was decided in an earlier proceeding.” People

v. Pawlaczyk, 189 Ill. 2d 177, 191 (2000) (quoting St. Paul Fire & Marine

Insurance Co. v. Lefton Iron & Metal Co., 296 Ill. App. 3d 475, 487 (1998)). For

an issue to be identical, “the party sought to be bound must actually have litigated

the issue in the first suit and a decision on the issue must have been necessary to

the judgment in the first litigation.” Savickas, 193 Ill. 2d at 387. The application of

estoppel “must be narrowly tailored to fit the precise facts and issues that were

clearly determined in the prior judgment.” Kessinger v. Grefco, Inc., 173 Ill. 2d

447, 467 (1996). Furthermore, “[t]he 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 which might have been litigated and determined.” (Emphasis in

original.) Nowak v. St. Rita High School, 197 Ill. 2d 381, 390 (2001) (citing

Housing Authority for La Salle County, 101 Ill. 2d at 252)).

¶ 51 The City identified two issues that it alleged were raised and conclusively

decided in Givens’s and Dudley’s criminal cases: (1) that the police did not engage

in excessive force and (2) that Givens and Dudley intentionally caused the police

shooting that resulted in their injuries. We examine each contention in turn.

¶ 52 With respect to the first contention, the circuit court in the criminal case allowed

Givens and Dudley to argue that the City’s police officers, not they, were at fault

for Strong’s death because the police officers’ use of deadly force was an

intervening cause of Strong’s death that relieved them of liability. According to the

City, the centerpiece of Givens’s and Dudley’s defense to felony murder was that,

“in attempting to escape the crime scene, they could not have anticipated the police

would use deadly force that would endanger Strong’s life.” Since the jury convicted

Givens and Dudley of felony murder, the City argues that this means the jury

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necessarily rejected Givens’s and Dudley’s claims of excessive force by the police.

The City contends, therefore, that Dudley and Givens are collaterally estopped from

relitigating their claim that the police officers engaged in excessive force when they

shot at the van.

¶ 53 The City is correct that the jury rejected Givens’s and Dudley’s intervening

cause defense. Givens and Dudley argued in their criminal trial that the police

officers’ conduct was an intervening circumstance that broke the causal chain

between their actions and Strong’s death. In convicting Givens and Dudley, the jury

necessarily rejected this argument. The City errs in concluding, however, that the

criminal jury determined that the police officers who caused Givens’s and Dudley’s

injuries did not use excessive force. This argument mischaracterizes the criminal

proceedings and the distinct proximate cause involved in the felony murder rule.

There is no evidence in the record that the jury determined that the police did not,

in fact, use excessive force. On the contrary, consistent with criminal precedent, the

record reveals that the issue of excessive force was not dispositive of whether

Givens and Dudley were guilty of the charged offenses. See Lowery, 178 Ill. 2d at

471-73 (noting that Illinois felony murder principles do not require that a criminal

defendant’s acts constitute the sole and immediate cause of death, this court found

that the proper focus of inquiry was not whether “vigilante” shooter/intended victim

was legally justified in shooting the innocent bystander but whether the criminal

defendant’s actions set in motion a chain of events that ultimately caused the

bystander’s death). Instead, the jury determined that Givens’s and Dudley’s actions

were a proximate cause of Strong’s death, and the issue of whether the police’s

conduct was justified was not before the court.

¶ 54 For example, because the issue of excessive force was not the focus of the prior

criminal trial, the circuit court barred Givens and Dudley from introducing evidence

at trial of then-internal police department policy concerning the use of force. In

explaining to the parties why this evidence was excluded, the circuit court stated

that it was irrelevant:

“General orders of the police department are not anywhere in the jury

instructions I am going to give the jury to make the determination whether these

men are guilty beyond a reasonable doubt of what they are accused of.

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That might apply to a civil case and be relevant there. It is not necessarily

relevant here. ***

It is not the law that applies to this case. Those are internal matters of the

Chicago Police Department between the department and the officers who work

for it. For those reasons I found it irrelevant, immaterial, possibly misleading,

and that’s why I sustained the government’s objection.

***

*** In this trial the officers aren’t on trial. [Dudley and Givens] are on trial.

If the officers broke general orders, it doesn’t mean that these men didn’t

necessarily commit criminal acts. This trial is about whether or not [Dudley and

Givens] committed criminal acts. That’s why we are here today. That

apparently will be [a] discussion at another trial at another time perhaps.”

¶ 55 In addition, during the State’s closing argument in the criminal trial, the

prosecutor emphasized to the jury that Dudley’s and Givens’s allegations of

excessive force were irrelevant to the criminal charges:

“Counsel’s argument about the fact that this was excessive force, that’s

irrelevant too. That’s an issue for another day. What those police officers did,

whether their actions were justified, that’s an issue for another day. That has

nothing to do with whether or not these two individuals committed a burglary

and they set into motion a chain of events which resulted in the death of their

buddy ***.

***

*** [I]t doesn’t have to be foreseeable that the police would use excessive

force. That’s not what the law is. *** Once you determine that these chain of

events were set into motion by the fact that they committed a burglary, the rest

is history.

***

Counsel says that the police were wrong, they used excessive force. No

where [sic] in the instructions do you see, no where [sic] in the instructions does

it say that because you got shot [by] the police you get away with crimes. It is

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not in there. *** The fact that the police shot them does not prevent you from

finding them guilty.

***

We are not hiding the fact that there were 74 or 75 cartridge cases found on

the scene. The fact that those shots were fired, the fact that those officers saw

Officer Papin get hit, that’s irrelevant.”

¶ 56 Moreover, the circuit court instructed the jury that, to convict a criminal

defendant of felony murder, it was not necessary to find “that the acts of the

defendant were the sole and immediate cause of death.” The jury was instructed

that a criminal defendant was guilty of felony murder if he committed burglary and

the death of an individual resulted as a direct and foreseeable consequence of the

chain of events set into motion by the burglary. Further, the jury was instructed that

“[i]t is immaterial whether the killing is intentional or accidental or committed by

a third person trying to prevent the commission of the offense of burglary.”

¶ 57 Likewise, in rejecting Givens’s and Dudley’s argument that the police officers’

excessive use of force was an intervening circumstance that broke the causal chain,

the appellate court in the criminal appeals held that the issue was “whether Strong’s

death was a foreseeable consequence of [the] burglary, not whether the police

shooting was foreseeable.” (Emphases in original.) Givens, 2018 IL App (1st)

152031-U, ¶ 34; see also Dudley, 2018 IL App (1st) 152039-U, ¶ 27. Citing the

proximate cause theory of felony murder, the appellate court held that it was

reasonably foreseeable that a death would occur as a result of the criminal

defendants encountering resistance during the commission of a forcible felony.

Givens, 2018 IL App (1st) 152031-U, ¶ 34; see also Lowery, 178 Ill. 2d at 471 (to

relieve a criminal defendant of liability for felony murder, the intervening cause

must be entirely unrelated to the defendant’s underlying criminal acts).

¶ 58 Based on the record before us, we find that the jury in the criminal case did not

conclusively determine whether the police officers who fired their weapons at the

van used excessive force. Nothing in the jury instructions permitted the jury to

make a finding about the legal justification for the shooting. The criminal jury was

told that it was immaterial how Strong’s death occurred. The State argued that the

police shooting was irrelevant to the criminal charges. In sum, the propriety of the

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shooting was neither material nor necessary to the judgment in the criminal case

against Givens and Dudley. Thus, collateral estoppel does not bar them from

relitigating this issue in their civil lawsuit. See Kessinger, 173 Ill. 2d at 462 (for

collateral estoppel to apply, a finding of fact must be both material and controlling

in the prior case and material and controlling in the pending case).

¶ 59 The City’s second contention is that Givens and Dudley are collaterally

estopped from litigating the jury’s finding that they intentionally caused the police

shooting that resulted in Strong’s death. Since the same shooting that caused

Strong’s death also caused Givens’s and Dudley’s injuries, the City argues that the

jury in the criminal case against Givens and Dudley found that they intentionally

caused their own injuries. The City argues that this precludes Givens and Dudley

from pursuing their civil case based on the contributory fault principle that an

intentional tortfeasor cannot recover damages from another intentional tortfeasor.

See Ziarko, 161 Ill. 2d at 271 (“The rule prohibiting contribution among intentional

tortfeasors was founded on the notion that an intentional tortfeasor, whose liability

has arisen ‘entirely [from the tortfeasor’s] own deliberate wrong,’ should not be

afforded the equitable benefits of shifting a portion of that liability to another

tortfeasor under principles of contribution. (W. Keeton, Prosser & Keeton on Torts

§ 50, at 336 (5th ed. 1984) ***.)”).

¶ 60 The jury in the criminal case was not instructed to determine whether Givens

and Dudley caused their own injuries because that issue was not relevant to the

criminal trial. As astutely noted by the appellate court, the criminal prosecution did

not conclusively determine whether, under civil standards, Givens and Dudley were

by degrees willful and wanton in bringing about their own injuries in the form of

the multiple gunshot wounds or whether the officers’ actions proximately caused

Givens’s and Dudley’s injuries. 2021 IL App (1st) 192434, ¶ 67. The issue of

whether Givens’s and Dudley’s injuries were caused by their own willful and

wanton conduct was appropriately reserved for a civil trial.

¶ 61 Givens’s and Dudley’s felony murder convictions pursuant to section 9-1(a)(3)

of the felony murder statute did not establish intentionality with regard to Strong’s

death. See People v. Belk, 203 Ill. 2d 187, 197 (2003) (“whether the perpetrator

intended to kill the victim is irrelevant for purposes of the felony-murder statute”).

The City thus argues that the mens rea the criminal jury found in convicting Dudley

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and Givens of aggravated battery of a peace officer (see Maksimovic v. Tsogalis,

177 Ill. 2d 511, 514 (1997) (“battery” is an “intentional tort[ ]”)) equates to

intentional willful and wanton conduct in their civil action for excessive use of

police force. The City then conjoins this intentionality with the proximate cause

determined in the felony murder (predicated on a forcible felony) context, wherein

Dudley and Givens were determined under the felony murder rule to have

proximately caused Strong’s death. Extrapolating the battery intent with the felony

murder proximate cause, the City then argues that the contributory fault principle

it raised as an affirmative defense bars Givens and Dudley, as intentional tortfeasors

who caused their own injuries, from bringing their claim pursuant to collateral

estoppel principles. However, this degree of extrapolation is not “narrowly tailored

to fit the precise facts and issues that were clearly determined in the prior judgment”

and is not supported by collateral estoppel principles. See Kessinger, 173 Ill. 2d at

467 (application of estoppel “must be narrowly tailored to fit the precise facts and

issues that were clearly determined in the prior judgment”).

¶ 62 Although the sequence of events that culminated in Strong’s death was entirely

precipitated by Strong and his cohorts when they committed a violent crime, the

result reached by the circuit court was not supported by collateral estoppel

principles. See Savickas, 193 Ill. 2d at 389. The fact that Strong’s death would not

have occurred but for the actions of the three offenders does not preclude them from

filing a civil lawsuit challenging the police officers’ use of force in responding to

their crimes.

¶ 63 We find cogent the Seventh Circuit’s comments with regard to a similar

argument regarding a federal action pursuant to 42 U.S.C. § 1983 (2012) against

arresting officers for excessive force in the federal court:

“We note that there is nothing inherently contradictory about pleading

guilty to aggravated battery of a peace officer and bringing a claim of excessive

force. In Illinois, a person may be guilty of aggravated battery of a peace officer

for either causing bodily harm to an officer or making physical contact of an

insulting or provoking nature with an officer. 720 ILCS 5/12-3. Thus, a person

could theoretically be found guilty of aggravated battery for crumpling up a

parking ticket and throwing it at the officer’s foot [citation] or poking a police

officer in the chin [citation]. If a police officer responded to those relatively

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minor insults with deadly force, a claim for excessive force would not be barred

*** simply because the offender pled guilty to aggravated battery of a peace

officer. A civil suit for excessive force in those circumstances would not imply

the invalidity of the conviction.” Tolliver v. City of Chicago, 820 F.3d 237, 243

(7th Cir. 2016).

¶ 64 Moreover, in their complaint, Givens and Dudley alleged that the City’s officers

continued to fire their weapons at the van and its occupants despite the van coming

to a stop. Givens and Dudley alleged that the City’s officers had reloaded their

weapons and continued firing. See, e.g., Beets v. County of Los Angeles, 669 F.3d

1038, 1042-43 (9th Cir. 2012) (holding that, although action pursuant to 42 U.S.C.

§ 1983 must not be used as an end run around the problem of two inconsistent

judgments arising out of the same facts (Heck v. Humphrey, 512 U.S. 477, 486-87

(1994)), an allegation of excessive force by a police officer would not be barred by

Heck if it were distinct temporally or spatially from the factual basis for the criminal

conviction); Gilbert v. Cook, 512 F.3d 899, 900-01 (7th Cir. 2008) (citing Heck,

512 U.S. 477, for its holding that a criminal offender can file an action under 42

U.S.C. § 1983 against a public official who uses unreasonable force after the crime

is completed); VanGilder v. Baker, 435 F.3d 689, 692 (7th Cir. 2006) (same);

Brumitt v. Smith, No. 3:20-cv-00260-TWP-MPB, 2023 WL 403964, *4-6 (S.D. Ind.

Jan. 25, 2023) (same).

¶ 65 Thus, the City has not met its burden of showing with “clarity and certainty”

that the identical question was decided in the earlier proceeding, thereby bringing

it within the principles of collateral estoppel. See Pawlaczyk, 189 Ill. 2d at 191.

Accordingly, Givens and Dudley are not barred by the doctrine of collateral

estoppel from litigating their civil claims against the City for excessive police force.

¶ 66 We emphasize, however, that our decision on this issue is limited to determining

whether Givens and Dudley are barred from litigating their civil claims based on

the collateral estoppel effect of their prior criminal proceedings. We make no

finding on the merits of their claims or whether they should ultimately prevail in

their civil case.

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¶ 67 B. Special Interrogatories

¶ 68 The second issue in this appeal concerns the circuit court’s decision to enter

judgment for the City in the estate’s civil case, notwithstanding the jury’s general

verdict for the estate and against the City.

¶ 69 Special interrogatories are governed by section 2-1108 of the Code of Civil

Procedure (Code), which, at the time of trial, stated:

“Unless the nature of the case requires otherwise, the jury shall render a general

verdict. The jury may be required by the court, and must be required on request

of any party, to find specifically upon any material question or questions of fact

submitted to the jury in writing. Special interrogatories shall be tendered,

objected to, ruled upon and submitted to the jury as in the case of instructions.

Submitting or refusing to submit a question of fact to the jury may be reviewed

on appeal, as a ruling on a question of law. When the special finding of fact is

inconsistent with the general verdict, the former controls the latter and the court

may enter judgment accordingly.” 735 ILCS 5/2-1108 (West 2018).

¶ 70 “A special interrogatory serves ‘as guardian of the integrity of a general verdict

in a civil jury trial.’ ” Simmons v. Garces, 198 Ill. 2d 541, 555 (2002) (quoting

O’Connell v. City of Chicago, 285 Ill. App. 3d 459, 460 (1996)). Its purpose is to

test the validity of the general verdict against the jury’s special finding of an issue

of ultimate fact. Id. A special interrogatory 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 with respect thereto.” Northern Trust Co. v.

University of Chicago Hospitals & Clinics, 355 Ill. App. 3d 230, 251 (2004); see

also Simmons, 198 Ill. 2d at 563. If a jury’s special finding of fact is inconsistent

with the general verdict, the special finding controls, and the general verdict cannot

stand. 735 ILCS 5/2-1108 (West 2018); Simmons, 198 Ill. 2d at 555. The jury’s

answer to a special interrogatory is inconsistent with the general verdict where it is

“ ‘clearly and absolutely irreconcilable with the general verdict.’ ” Simmons, 198

Ill. 2d at 555-56 (quoting Powell v. State Farm Fire & Casualty Co., 243 Ill. App.

3d 577, 581 (1993)). Whether the jury’s answer to a special interrogatory is

inconsistent with the general verdict is a question of law subject to de novo review.

735 ILCS 5/2-1108 (West 2018); Brown v. City of Chicago, 2019 IL App (1st)

181594, ¶ 42. We also exercise de novo review of the circuit court’s grant of a

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judgment notwithstanding the verdict. Thornton v. Garcini, 237 Ill. 2d 100, 107

(2009).

¶ 71 In the civil case below, because the City would otherwise be immune from

liability for acts or omissions in the execution or enforcement of any law, the estate

alleged that the officers’ conduct was willful and wanton. See 745 ILCS 10/2-202

(West 2012) (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”). The estate alleged that, through its officers, the City “acted

willfully and wantonly” and “without justification” in, inter alia, shooting Strong,

shooting at the van occupied by Strong, firing weapons without justification,

engaging in “contagion fire” that resulted in injury to Strong, and using force likely

to cause great bodily harm or death. As an affirmative defense, the City alleged that

Strong’s contributory willful and wanton conduct in engaging or participating in

conduct that placed police officers in imminent fear of death or great bodily harm

to themselves or others served as a basis to defeat or reduce the City’s liability. See

Doe v. Coe, 2019 IL 123521, ¶ 34 (“Willful and wanton conduct is regarded as an

aggravated form of negligence.”). The City further maintained that its officers were

justified in using deadly force. See 720 ILCS 5/7-1(a) (West 2012) (one is justified

in using deadly force when “he reasonably believes that such force is necessary to

prevent imminent death or great bodily harm to himself or another, or the

commission of a forcible felony”). The jury instructions reflected these allegations.

¶ 72 Moreover, the estate proceeded to trial under theories involving the City’s

intentional willful and wanton conduct and its reckless willful and wanton conduct.

Pursuant to Poole, the parties agreed that special interrogatory Nos. 1 and 2 would

test whether the jury’s verdict found that the City was intentionally willful and

wanton or recklessly willful and wanton. See Poole, 167 Ill. 2d at 48 (a damage

award cannot be reduced by the plaintiff’s contributory negligence if the

defendant’s willful and wanton conduct was “intentional” but can be reduced if the

defendant’s willful and wanton conduct was merely “reckless”); 4 see also Ziarko,

4

In Poole, this court held that it was unclear from the jury’s verdict which type of willful and

wanton conduct the defendants were found guilty of because the jury instruction “was not limited

to a particular kind of willful and wanton misconduct, and no special interrogatory was submitted

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161 Ill. 2d at 280. The circuit court clarified that the purpose of special interrogatory

No. 2, specifically, was to test the jury’s verdict pursuant to verdict form B.

¶ 73 After hearing evidence and closing arguments, the jury rendered its verdict

pursuant to verdict form B. Pursuant to verdict form B, the jury found the total

amount of damages suffered by the estate was $1,999,998, determined that Strong

was 50% at fault, determined that the City was 50% at fault, and reduced the estate’s

total damages accordingly. For this verdict to stand, the jury must have concluded

that the City engaged in reckless willful and wanton conduct, as opposed to

intentional willful and wanton conduct or no willful and wanton conduct. See

Poole, 167 Ill. 2d at 48.

¶ 74 This question of recklessness, as noted by the circuit court during the jury

instruction conferences and at a hearing held after the jury’s verdict, was tested by

special interrogatory No. 2, which stated:

“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?”

However, the jury answered the correlating special interrogatory No. 2, intended to

test the verdict entered pursuant to verdict form B, in the negative.

¶ 75 Recognizing the inconsistency of the jury’s answer to special interrogatory No.

2 and its verdict pursuant to verdict form B, the circuit court entered judgment in

the City’s favor. The appellate court disagreed with the circuit court’s judgment,

finding that the jury’s answers to the special interrogatories could not control the

verdict because the special interrogatories were compound, vague, and confusing.

2021 IL App (1st) 192434, ¶¶ 47-50. However, in proposing the special

interrogatories, the circuit court requested input or alternatives to the special

interrogatories, and the estate offered none. The estate did not argue that special

interrogatory No. 2 was vague, confusing, or impermissibly compound. Indeed, the

estate not only acquiesced in the proffered language but acknowledged, upon the

to the jury to determine whether the type of willful and wanton misconduct defendants were guilty

of was reckless or intentional.” Poole, 167 Ill. 2d at 49. To be clear, Poole did not hold that a special

interrogatory is the only way to ascertain the jury’s finding on whether the defendant is guilty of

reckless or intentional willful and wanton conduct.

- 27 -

circuit court’s request for further clarification or input, that the special

interrogatories would test and control the verdict. During closing arguments, the

parties understood and emphasized that the special interrogatories questioned

specifically whether the City’s conduct was intentionally willful and wanton and

whether the City’s conduct was recklessly willful and wanton. Indeed, the estate

concedes the following in its brief:

“[T]he court, counsel, and jury in our case were all acutely aware of the

significance of the distinction with respect to intentional versus reckless

conduct as it pertained to contribution. *** To that end, ample evidence was

adduced at trial by both parties regarding whether the City’s conduct was

reckless versus intentional, it was debated in jury instruction conferences, and

[the estate’s] counsel even referenced it in opening statements and closing

arguments.”

The estate also asserts in its brief that, in finding the City liable and Strong to be

50% at fault, the jury must have deemed the City’s willful and wanton conduct to

be reckless. Yet, the jury’s inconsistent finding in special interrogatory No. 2

irreconcilably conflicts with such a verdict.

¶ 76 Although the circuit court indicated, posttrial, that it could have allowed more

time for objections or proposals, the estate at no time specified an objection to

special interrogatory No. 2’s form, offered an alternative, or requested additional

time to do so. Accordingly, the estate’s failure to specifically object to the form of

the special interrogatory when proffered at the instructions conference forfeited any

claim of error in the giving of that special interrogatory. See Saldana v. Wirtz

Cartage Co., 74 Ill. 2d 379, 387 (1978); see also Ill. S. Ct. R. 239(b) (eff. Apr. 8,

2013) (grounds of objection to any jury instruction shall be particularly specified).

This requirement “ensure[s] that the trial court has the opportunity to correct a

defective instruction and to prevent the challenging party from gaining an unfair

advantage by failing to act when the trial court could remedy the faulty instruction

and then obtaining a reversal on appeal.” Mikolajczyk v. Ford Motor Co., 231 Ill.

2d 516, 557-58 (2008).

¶ 77 Moreover, it is fundamental to our adversarial process that a party forfeits his

right to complain of an error where to do so would be inconsistent with the position

taken by that party in an earlier court proceeding. McMath v. Katholi, 191 Ill. 2d

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251, 255 (2000) (“A party cannot complain of error which he induced the court to

make or to which he consented.”). Having procured a ruling from the court in

accordance with his view, a party is bound by the trial court’s action in that regard.

In re Detention of Swope, 213 Ill. 2d 210, 217 (2004); Drainage Commissioners of

Drainage District No. 2 v. Drainage Commissioners of Union Drainage Dist. No.

3, 211 Ill. 328, 331 (1904). This rule’s rationale is obvious. It would be manifestly

unfair to allow the estate a second trial upon the basis of error which it injected into

the proceedings. See McMath, 191 Ill. 2d at 255.

¶ 78 Even so, special interrogatory No. 2 was not confusing or improper in form but

instead presented a single, straightforward question relating to an ultimate issue of

fact upon which the rights of the parties depended. See Simmons, 198 Ill. 2d at 563.

A special interrogatory, testing the jury’s verdict, must be read in context with the

court’s other instructions. See id. Here, special interrogatory Nos. 1 and 2 each

mirrored one of two alternatives found in the definition of willful and wanton

conduct given to the jury. The jury was instructed that “willful and wanton conduct”

includes “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.”

¶ 79 The jury was thus instructed on the two types of willful and wanton conduct

that could support a verdict in the estate’s favor: (1) intentional, i.e., a course of

action without legal justification showing actual or deliberate intention to harm,

and (2) reckless, i.e., a course of action without legal justification showing an utter

indifference to or conscious disregard for a person’s own safety and/or the safety

of others. See Poole, 167 Ill. 2d at 49-50. The estate made clear that it was

proceeding on both theories of willful and wanton conduct, and the parties

understood that a verdict pursuant to verdict form B would stand only if the City’s

conduct was recklessly willful and wanton, an ultimate fact that would be tested by

special interrogatory No. 2.

¶ 80 Special interrogatory No. 2 included the description of reckless willful and

wanton conduct and tested the verdict entered by the jury as to the specific issue of

ultimate fact: was the City recklessly willful and wanton? See Stanphill v. Ortberg,

2018 IL 122974, ¶ 33 (“A special interrogatory is proper and must be given upon a

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party’s request if it tests an ultimate fact on which the rights of the parties depend.”).

The jury answered in the negative, thus finding that the City’s conduct was not

recklessly willful and wanton. It is evident from the record that the parties and the

circuit court contemplated that the jury’s answer to special interrogatory No. 2

would control the verdict reached pursuant to verdict form B.

¶ 81 Consistent with posttrial statements made by the circuit court, but contrary to

the appellate court’s holding, we find implausible the suggestion that special

interrogatory No. 2 was confusing because it could have been alluding to possible

passersby or innocent bystanders. The evidence, arguments, and instructions before

the jury clearly set out what special interrogatory No. 2 was testing. We will not

convolute the reading of this special interrogatory to conclude that the jury was

confused in answering it.

¶ 82 In answering “no” to special interrogatory No. 2, the jury determined that at the

time deadly force was used, the City’s officers who used deadly force did not

engage in a course of action without legal justification that showed an utter

indifference or conscious disregard for the safety of others, i.e., they did not engage

in reckless willful and wanton conduct. The answer to this interrogatory, standing

on its own, was dispositive of the estate’s claim. The jury’s negative answer to

special interrogatory No. 2 was clearly and absolutely irreconcilable with the jury’s

verdict, which apportioned fault on both parties and was appropriate only if the

City’s conduct was recklessly willful and wanton. See Simmons, 198 Ill. 2d at 556;

see also Borries v. Z. Frank, Inc., 37 Ill. 2d 263, 266 (1967) (“a jury more clearly

understands a particularized special interrogatory than a composite of all of the

questions in a case, and therefore a special finding upon which a jury presumably

has more intensively focused its attention should prevail over an inconsistent

general verdict”).

¶ 83 Indeed, a court “may not conclude from the mere fact of inconsistency between

a general verdict and a special interrogatory that the jury was confused by the

interrogatory.” Simmons, 198 Ill. 2d at 563-64. “To do so would nullify the

provision of section 2-1108 of the Code *** that states that a special interrogatory

controls where there is inconsistency.” Id. at 564; see 735 ILCS 5/2-1108 (West

2018). The purpose of a special interrogatory is to guard the integrity of a general

verdict in a civil jury trial and to test the validity of the general verdict against the

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jury’s special finding of an issue of ultimate fact. Simmons, 198 Ill. 2d at 555. The

Code requires that a special finding, compared to the general verdict and found to

be inconsistent, controls. 735 ILCS 5/2-1108 (West 2018).

¶ 84 For these reasons, the circuit court properly held that the jury’s special finding,

by answering “no” to special interrogatory No. 2, related to an ultimate issue of fact

upon which the rights of the parties depended and was clearly and absolutely

irreconcilable with the verdict returned. See Simmons, 198 Ill. 2d at 555-56.

Accordingly, pursuant to section 2-1108 of the Code, the circuit court properly

determined that the jury’s determination on special interrogatory No. 2 controlled

and properly entered judgment in the City’s favor. See 735 ILCS 5/2-1108 (West

2018).

¶ 85 III. CONCLUSION

¶ 86 For the foregoing reasons, we affirm that portion of the appellate court’s

judgment reversing the circuit court’s order granting summary judgment in favor

of the City and against Dudley and Givens pursuant to the doctrine of collateral

estoppel. We reverse that portion of the appellate court’s judgment reversing the

circuit court’s judgment notwithstanding the verdict and entering judgment in favor

of the City and against the estate.

¶ 87 Appellate court judgment affirmed in part and reversed in part.

¶ 88 Circuit court judgment affirmed in part and reversed in part.

¶ 89 Cause remanded.

¶ 90 JUSTICE CUNNINGHAM, concurring in part and dissenting in part:

¶ 91 I agree with the majority’s determination that the collateral estoppel doctrine

does not bar Givens and Dudley from litigating their civil claims against the City.

Supra ¶ 65. I write separately because I disagree with the majority’s conclusion that

the jury’s answer to special interrogatory No. 2 was inconsistent with the jury’s

general verdict in favor of Strong’s estate and against the City. Unlike the majority,

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I would give effect to the jury’s clear intent to find in favor of the estate and award

damages to the estate.

¶ 92 The jury in this case rendered its general verdict using verdict form B. Verdict

form B states: “We, the jury, find for plaintiff, Theresa Daniel, Administrator of

the Estate of David Strong, deceased, and against the defendant, City of Chicago.”

The jury awarded damages to the estate in the amount of $1,999,998. On the same

verdict form, the jury made a finding that David Strong was 50% at fault and the

City was 50% at fault, for Strong’s death. After reducing the estate’s total damages

by the percentage of David Strong’s fault, the jury entered a final award of damages

to the estate in the amount of $999,999.

¶ 93 The jury also answered “no” to special interrogatory No. 2, which stated:

“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?”

¶ 94 The majority now holds that the jury’s negative response to special

interrogatory No. 2, standing alone, is irreconcilable with the jury’s verdict in favor

of the estate and against the City. Supra ¶¶ 75, 82. Therefore, according to the

majority, the general verdict cannot stand. I disagree.

¶ 95 A jury’s answer to a special interrogatory is inconsistent with the general

verdict only where it is “ ‘clearly and absolutely irreconcilable with the general

verdict.’ ” Simmons v. Garces, 198 Ill. 2d 541, 555-56 (2002) (quoting Powell v.

State Farm Fire & Casualty Co., 243 Ill. App. 3d 577, 581 (1993)). “If a special

interrogatory does not cover all the issues submitted to the jury and a ‘reasonable

hypothesis’ exists that allows the special finding to be construed consistently with

the general verdict, they are not ‘absolutely irreconcilable[,]’ and the special finding

will not control.” Id. at 556 (quoting Powell, 243 Ill. App. 3d at 581). In making

this determination, a court must exercise all reasonable presumptions in favor of

the general verdict. Blue v. Environmental Engineering, Inc., 215 Ill. 2d 78, 112

(2005).

¶ 96 In this case, the estate’s claim against the City was for willful and wanton

conduct. Willful and wanton conduct, which is regarded as an aggravated form of

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negligence, is a single cause of action. Doe v. Coe, 2019 IL 123521, ¶ 78. There are

two types of willful and wanton conduct—“intentional” willful and wanton conduct

and “reckless” willful and wanton conduct. Poole v. City of Rolling Meadows, 167

Ill. 2d 41, 48-49 (1995). The estate chose to proceed at trial against the City on both

theories of willful and wanton conduct. The jury was properly instructed that

“willful and wanton conduct” could mean either an “actual or deliberate intention

to harm” (i.e., intentional) or “an utter indifference to or conscious disregard for a

person’s own safety and or the safety of others” (i.e., reckless). The parties also

addressed both theories in their closing arguments.

¶ 97 Where a plaintiff argues multiple, alternative theories in support of a claim and

a special interrogatory addresses only one of these theories, it is axiomatic that a

negative answer to the special interrogatory is not inconsistent with a general

verdict because the answer, by itself, is not dispositive of the claim. See Inman v.

Howe Freightways, Inc., 2019 IL App (1st) 172459, ¶¶ 118-19; Abruzzo v. City of

Park Ridge, 2013 IL App (1st) 122360, ¶¶ 68-72; Jablonski v. Ford Motor Co., 398

Ill. App. 3d 222, 273-76 (2010); Northern Trust Co. v. University of Chicago

Hospitals & Clinics, 355 Ill. App. 3d 230, 252-54 (2004). Here, the jury’s negative

response to special interrogatory No. 2, standing alone, was not inconsistent with

the jury’s general verdict for the estate. Special interrogatory No. 2 pertained only

to “reckless” willful and wanton conduct and not “intentional” willful and wanton

conduct. Based on the jury’s negative response to special interrogatory No. 2, the

jury could have reasonably found that the City’s conduct was not recklessly willful

and wanton but was intentionally willful and wanton. Such a finding would be

perfectly consistent with the jury’s general verdict in favor of the estate. Because

there is at least one scenario in which the jury’s answer to special interrogatory No.

2 and its general verdict can be read consistently, there is no “absolute”

irreconcilability that supports vacating the jury’s verdict. See Brown v. City of

Chicago, 2019 IL App (1st) 181594, ¶ 49; see also Price v. City of Chicago¸ 2018

IL App (1st) 161599, ¶ 44 (where “a reasonable hypothesis exists capable of

reconciling the special finding with [the] general verdict, the two are not absolutely

irreconcilable and the general verdict controls”).

¶ 98 The majority rejects this reasoning. Instead, the majority holds that, in rendering

its general verdict, the jury “must have concluded that the City engaged in reckless

willful and wanton conduct, as opposed to intentional willful and wanton conduct

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or no willful and wanton conduct.” Supra ¶ 73. The majority presumes that verdict

form B corresponds to a finding of reckless willful and wanton conduct, because

this court held in Poole that a damage award cannot be reduced by the plaintiff’s

contributory negligence if the defendant’s willful and wanton conduct was

“intentional” but can be reduced if the defendant’s willful and wanton conduct was

merely “reckless.” Supra ¶ 73 (citing Poole, 167 Ill. 2d at 48). Based on this

presumption, the majority concludes that the jury’s negative answer to special

interrogatory No. 2, which addressed reckless willful and wanton conduct, is

inconsistent with the jury’s general verdict. Supra ¶¶ 74-75. This conclusion is

erroneous, for two reasons.

¶ 99 First, the majority errs in presuming that special interrogatory No. 2

corresponded to verdict form B. Verdict form B does not mention reckless willful

and wanton conduct. Indeed, it does not use the terms “reckless,” “willful and

wanton,” or any of the specific terms included in the definition of reckless willful

and wanton conduct set forth in special interrogatory No. 2 or in the jury

instructions. Thus, verdict form B does not indicate whether the jury found that the

defendant was liable for intentional willful and wanton conduct or reckless willful

and wanton conduct.

¶ 100 Secondly and significantly, the jury was not made aware of the supposed

“coordination” between the special interrogatories and the verdict forms. Although

the attorneys and the trial court discussed their intention, and the assumption, that

special interrogatory No. 2 corresponded to verdict form B, this discussion took

place outside the presence of the jury and was never conveyed to the jury at any

time. The jury was never informed that it should use verdict form B if it found that

the defendant’s conduct was recklessly willful and wanton. In addition, the jury

was not instructed on the Poole principle that a defendant’s damages may be

reduced by contributory negligence only if the defendant’s willful and wanton

conduct was reckless. The majority errs in ascribing legal meaning to the jury’s

verdict based on legal principles of which the jury was entirely unaware. It is

impossible to conclude, therefore, that the jury’s negative answer to special

interrogatory No. 2 is inconsistent with its general verdict for the estate simply

because it used verdict form B.

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¶ 101 In the absence of any evidence in the record, the majority cites a portion of the

estate’s brief where the estate concedes that “ ‘[t]he court, counsel, and jury in our

case were all acutely aware of the significance of the distinction with respect to

intentional versus reckless conduct as it pertained to contribution.’ ” Supra ¶ 75. As

the majority is aware, however, this court does not simply accept a party’s

concession on a factual or legal issue without first confirming its accuracy.

Beacham v. Walker, 231 Ill. 2d 51, 60-61 (2008); People v. Horrell, 235 Ill. 2d 235,

241 (2009); People v. Kliner, 185 Ill. 2d 81, 116 (1998). We have an obligation to

read the record to ascertain the correctness of a party’s concession. People v.

Carter, 2015 IL 117709, ¶ 22; People v. Denson, 2014 IL 116231, ¶ 10. In this case,

the estate’s concession has no support in the factual record.

¶ 102 Moreover, special interrogatory No. 2 was worded in such a way that a

reasonable hypothesis exists that the jury’s answer to the question was consistent

with the verdict. As the appellate court below noted, special interrogatory No. 2

refers to the police officers’ utter indifference or conscious disregard for the

“ ‘safety of others.’ ” 2021 IL App (1st) 192434, ¶¶ 48-49. The jury reasonably

could have concluded that this question “referenced possible passersby or innocent

bystanders rather than the burglars in the van.” Id. ¶ 49. The ambiguous language

in the interrogatory may have resulted in the jury giving a negative response “even

if the jury believed the officers were acting recklessly towards the van’s occupants.”

Id. For this reason, as well, the jury’s negative answer can be reconciled with its

general verdict for the estate. The majority finds that the estate forfeited any

objections to the form of the interrogatories by agreeing to them prior to trial

(supra ¶¶ 75-78), but the issue raised in this appeal is not whether the special

interrogatories should have been given to the jury. Rather, the issue is whether the

jury’s answers to the special interrogatories were inconsistent with the general

verdict. This issue cannot be forfeited. See Morton v. City of Chicago, 286 Ill. App.

3d 444, 449-50 (1997); LaPook v. City of Chicago, 211 Ill. App. 3d 856, 864-65

(1991).

¶ 103 With its decision today, the majority is vacating a clear, unambiguous jury

verdict in favor of a poorly worded, ill-conceived special interrogatory that, as far

as the jury was aware, had no connection to the verdict form. It is unprecedented

for a court to nullify a jury’s verdict based on the jury’s answer to a special

interrogatory when the legal significance of the special interrogatory was not

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communicated to the jury. “Overriding a jury’s verdict is a drastic step that affects

public confidence in the jury system.” Brown, 2019 IL App (1st) 181594, ¶ 58.

Accordingly, there is no principled basis to vacate the jury’s verdict in this case.

¶ 104 Under these circumstances, where there is no inconsistency between the jury’s

general verdict and the jury’s special finding, the proper remedy is to disregard the

jury’s special finding and reinstate the judgment on the general verdict. Id. ¶¶ 58,

61. I would affirm the appellate court’s judgment, which reversed the trial court’s

judgment for the defendant City of Chicago on the special interrogatories and

reinstated the judgment for Strong’s estate.

¶ 105 For the foregoing reasons, I respectfully dissent.

¶ 106 JUSTICES NEVILLE and HOLDER WHITE join in this partial concurrence,

partial dissent.

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