Davis v. City of Chi.

• Decision Date: 29 April 2014
• Docket Number: No. 1–12–2427.,1–12–2427.
• Citation: 8 N.E.3d 120,2014 IL App (1st) 122427,380 Ill.Dec. 189
• Parties: Johnetta DAVIS, as Special Administrator of the Estate of Darryl Hamilton, Deceased, Plaintiff–Appellee, v. The CITY OF CHICAGO, a Municipal Corporation, and David Garza, Defendants–Appellants.
• Court: United States Appellate Court of Illinois

2014 IL App (1st) 122427

8 N.E.3d 120

380 Ill.Dec. 189

Johnetta DAVIS, as Special Administrator of the Estate of Darryl Hamilton, Deceased, Plaintiff–Appellee,

v.The CITY OF CHICAGO, a Municipal Corporation, and David Garza, Defendants–Appellants.

No. 1–12–2427.

Appellate Court of Illinois, First District, Third Division.

March 12, 2014.

Rehearing Denied April 29, 2014.

Stephen R. Patton, Corporation Counsel, Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, Kerrie Maloney Laytin, Assistant Corporation Counsel, of counsel), for appellants.

Cochran, Cherry, Givens, Smith & Montgomery, L.L.C., Chicago (James D. Montgomery, Melvin L. Brooks, John K. Kennedy, of counsel), for appellee.

OPINION

Justice PUCINSKI delivered the judgment of the court, with opinion.

¶ 1 This case is before us on interlocutory appeal after the trial court granted plaintiff's motion for a new trial following a jury's verdict in favor of the defense in her wrongful death suit for the death of her son caused by the defendant police officer. The defendant officer and City of Chicago's defense was that the officer acted in self-defense and reasonably believed the decedent pointed a gun at the officer. The trial court granted a new trial based solely on the defense's references to the decedent's pending gun charge at the time of the shooting in opening statements. Defendants argue that the trial court abused its discretion in granting a new trial on this ground because there was no substantial prejudice to plaintiff by the isolated references to the gun charge.

¶ 2 Plaintiff moved in limine before trial to bar defendants from introducing evidence that the decedent had a court date on a pending gun charge the day after the incident in this case. The court denied plaintiff's in limine pretrial motion and ruled that the defense would be allowed to admit evidence of the decedent's pending gun charge. The defendants thus made two references to the pending gun charge during the defense opening statement. Plaintiff objected but was overruled. After the plaintiff's case and after all but two remaining defense witnesses testified in the defense case, the court sua sponte changed its in limine ruling, finding that the gun charge could not be used to prove motive, and barred admission of the pending gun charge into evidence. Defendants moved for a mistrial based on prejudice to their case but plaintiff opposed a grant of a mistrial, specifically stating that plaintiff believed the remarks in opening statement would not influence the jury. At that time, the trial was near conclusion when the court denied the defense's motion for a mistrial. The trial continued with the last two defense witnesses. No evidence was admitted regarding the pending gun charge and no further reference was made to it. The trial concluded two days later with a verdict for the defense. After the verdict plaintiff moved for a new trial, arguing for the first time that the defense opening statement remarks were prejudicial. The court granted a new trial solely on this basis.

¶ 3 We hold that the plaintiff waived any objection to remarks made by the defense in opening statements concerning the decedent's pending gun charge and, in fact, later opposed the grant of a mistrial based on the same issue. In reviewing for any plain error, we hold that the trial court abused its discretion in granting a new trial where there was no error because at the time of the remarks the court had ruled the evidence admissible and there was no bad faith by the defense in making the remarks, and because there was no showing by plaintiff or any indication in the record of substantial prejudice to plaintiff as a result of those remarks.

¶ 4 Second, we address plaintiff's alternative argument that the grant of a new trial was appropriate due to alleged faulty jury instructions. We hold that the grant of a new trial cannot be supported on the alternate basis of allegedly faulty jury instructions because the court properly instructed the jury on the applicable law regarding willful and wanton conduct in the context of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1–101 et seq. (West 2002)). We therefore reverse and vacate the order granting a new trial and remand with instructions that the circuit court enter judgment on the jury verdict.

¶ 5 BACKGROUND

¶ 6 Plaintiff's four-count complaint alleged wrongful death and survival claims against Officer Garza and the City of Chicago (the City) for the death of her son, Darryl Hamilton. Counts I and II alleged wrongful death and survival claims, respectively, against the City pursuant to respondeat superior based on Officer Garza's commission of a battery in intentionally shooting Hamilton. Counts III and IV alleged wrongful death and survival claims against Officer Garza for battery in intentionally shooting Hamilton.

¶ 7 Defendants asserted the affirmative defense for Officer Garza of immunity under section 2–202 of the Act, which provides that “[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.” 745 ILCS 10/2–202 (West 2002). The City asserted immunity under section 2–109 of the Act, which provides that “[a] local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable.” 745 ILCS 10/2–109 (West 2002). At trial, the City and Officer Garza presented evidence that Officer Garza shot Hamilton in self-defense because he saw Hamilton point a gun at him.

¶ 8 Prior to this trial, plaintiff had voluntarily dismissed the action just before the first trial was scheduled to take place. Plaintiff then refiled and there were two trials prior to the trial at issue in this appeal. The first trial resulted in a mistrial during voir dire, and the second trial resulted in a hung jury, split 7 to 5.¹ In this trial, the court initially denied plaintiff's motion in limine to bar evidence that Hamilton had a pending gun charge against him, with a hearing in court set for the day after the shooting, and the jury heard a reference in opening statements regarding the pending gun charge. The court later sua sponte changed its ruling and barred evidence of the pending gun charge. No issue is raised in this appeal regarding the previous trials. The retrial began on October 6, 2011.

¶ 9 Trial Testimony

¶ 10 The following facts are from the transcript of the trial testimony.

¶ 11 The evening of December 2, 2003, Darryl Hamilton was watching television with his grandmother, Bessie Hamilton. Bessie's house was on the east side of Dante Avenue in Chicago, directly across from the Enrico Fermi Elementary School. Plaintiff, Darryl's mother, lived a half-block away from Bessie, on the other side of the school. Darryl would spend time at both homes. Sometime around 9:20 p.m., Darryl left Bessie's house.

¶ 12 At approximately 9:30 p.m., Officer Garza and his partner, Officer John Moss, were patrolling in a marked police squad car in the area around 70th Street and Dorchester Avenue in Chicago, the intersection where the school is located. Officer Garza testified that this area was known for gang shootings, narcotic sales, burglaries and other crimes, and the officers had received orders to pay attention to it.

¶ 13 Officer Garza first observed Hamilton as the officers were driving southbound on Dorchester, across from the school, near the intersection of 70th and Dorchester. Officer Garza testified that Hamilton's behavior seemed suspicious because it was late at night, the school was closed, no one else was around, and Hamilton was standing in front of the school, looking up and down the street. When Hamilton saw the squad car, he immediately turned and started walking quickly toward the school grounds. The officers followed Hamilton in their squad car into the school parking lot and pulled up alongside him near the southeast corner of the school. Hamilton's hands were not visible. Instead, they were in his waistband area “bunched up.” Hamilton took a step or two toward the squad car, then immediately turned and started running away.

¶ 14 Officer Garza exited the squad car and pursued Hamilton on foot. He lost sight of Hamilton when Hamilton rounded the southeast corner of the school, heading southwest. When Officer Garza rounded the corner, he saw Hamilton squatting to pick up a gun off the pavement. Hamilton looked up at Officer Garza and pointed the gun at him. Officer Garza reversed and tried to take cover behind the corner of the school building. Officer Garza did not have his gun out at that time. The south side of the school was well lit with artificial lighting.

¶ 15 Hamilton took off running again westbound along the south wall of the school. Hamilton then rounded the southwest corner of the school and ran north. Officer Garza again lost sight of Hamilton. Officer Garza continued to run west, unholstered his gun, and followed Hamilton around the corner. Officer Garza was yelling, “Stop, police, drop the gun.”

¶ 16 When Officer Garza regained sight of Hamilton after rounding the southwest corner of the school, he saw Hamilton running north on the west side of the school. The lighting on the west side of the school was not as good as it was on the south side of the school, but it was sufficient for Officer Garza to see. Officer Garza was holding his gun in a “low ready position,” approximately 8 to 10 inches below his eyes. He looked for and focused on the gun in Hamilton's hand. As Hamilton ran, Hamilton glanced back, swung his arm holding the gun out, and extended the gun back, pointing toward the corner where Officer Garza was. Officer Garza testified that he feared imminent death or great bodily harm and thought Hamilton was going to kill him. Officer Garza fired four rapid shots at Hamilton. One shot struck Hamilton on his right upper arm and another...