Givens v. City of Chicago
Citation2023 IL 127837
Date Filed2023-10-19
Docket127837
Cited16 times
StatusPublished
Full Opinion (html_with_citations)
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 to42 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 under42 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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