Givens v. City of Chi.

Decision Date28 September 2021
Docket Numbers. 1-19-2434 & 1-19-2457 cons.
Citation2021 IL App (1st) 192434,184 N.E.3d 501,451 Ill.Dec. 914
Parties John W. GIVENS, Leland Dudley, and Theresa Daniel, as Special Administrator of the Estate of David Strong, Deceased, Plaintiffs-Appellants, v. The CITY OF CHICAGO, Defendant-Appellee.
CourtUnited States Appellate Court of Illinois

Robert J. Napleton, Brion W. Doherty, and David J. Gallagher, of Motherway & Napleton, LLP, of Chicago, and Lynn D. Dowd, of Naperville, for appellants John W. Givens and Theresa Daniel.

Alexander McH. Memmen, of The Memmen Law Firm, LLC, of Chicago, for other appellant.

Celia Meza, Acting Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and Elizabeth Mary Tisher, Assistant Corporation Counsel, of counsel), for appellee.

OPINION

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

¶ 1 On April 30, 2012, around 2 a.m., John W. Givens, Leland Dudley, and David Strong, now deceased, burglarized an electronics store in Chicago, then attempted to escape in a stolen getaway van. However, police appeared, bearing guns and firing some 76 rounds at the van as it burst through the store's garage door. The three burglars were shot multiple times, and Strong died of his injuries. Following a joint criminal jury trial, Givens and Dudley were found guilty of felony murder, since Strong was killed (albeit, by police gunfire) during the course of their felony burglary. They were also found guilty of aggravated battery of a police officer and possession of the stolen van. Givens was sentenced to a total of 32 years’ imprisonment, while Dudley was sentenced to a total of 37 years. Their criminal convictions were affirmed on appeal. See People v. Givens , 2018 IL App (1st) 152031-U ; People v. Dudley , 2018 IL App (1st) 152039-U, 2018 WL 4513850.

¶ 2 In an unlikely turn of events, Givens and Dudley, along with the special administrator of Strong's estate, Theresa Daniel1 , filed a civil suit against the City of Chicago (City) for their injuries and Strong's death by police gunfire. Specifically, they alleged battery, survival, and wrongful death. Although Givens and Dudley's battery claims did not survive summary judgment due to collateral estoppel from their criminal convictions, Strong's estate proceeded to trial on its survival, wrongful death, and willful and wanton claims against the City. Ultimately, Strong's estate prevailed, obtaining a $1,999,998 jury verdict. The jury nevertheless also found that Strong, as the burglar, was contributorily willful and wanton as alleged by the City, where his injuries were proximately caused by his own conduct. Accordingly, the verdict was reduced to $999,999.

¶ 3 The City filed a motion for a judgment notwithstanding the verdict based on two special interrogatories inquiring whether the officers were unjustified in the shooting and were truly willful and wanton, i.e. , intentional or reckless. Since the jury answered "No" to the questions, the City claimed these interrogatories controlled over the general verdict, and the trial court granted the City's motion. As such, the City ultimately won at trial.

¶ 4 In this consolidated appeal, Givens and Dudley2 challenge the summary judgment entered against them, claiming there was no identity between the criminal and civil issues to support collateral estoppel, while Strong's estate challenges the judgment notwithstanding the verdict against it. Strong's estate argues that based on Illinois Supreme Court precedent, the City was precluded from alleging Strong was contributorily willful and wanton without first alleging he was contributorily negligent. The estate further challenges the special interrogatories as improper in a variety of ways and raises a number of trial errors. The estate argues first that we must reinstate the full verdict and alternatively reinstate the reduced verdict, and if all else fails, that we reverse and remand for a new trial. We reinstate the $999,999 reduced verdict for Strong's estate and reverse the summary judgment entered against Givens and Dudley.

¶ 5 BACKGROUND

¶ 6 The evidence at Strong's trial—consisting of testimony, surveillance video, and exhibits—showed that Givens, Dudley, and Strong broke into Mike's Electronics (2459 South Western Avenue), located along the corner of Western Avenue and 25th Street in Chicago, by prying open an air conditioning grate and climbing through. Once inside this car electronics store, they loaded merchandise into a van parked in the adjoining garage. Meanwhile, the break-in had been reported to 911 by the upstairs tenant, and 19 police officers appeared a short while later, casing the entry and exit points and creating a perimeter so as to preclude the burglars’ escape. Police repeatedly announced their presence and identity as "Chicago Police," while also aiming flashlights through the showroom windows, located at Western Avenue and 25th Street, and the garage where the burglars were located. Police stated the building was surrounded and ordered the burglars to exit with their hands up. The surveillance video showed the burglars knew the police were there. For example, one saw their flashlights through the showroom window and hid behind a display wall for a short time before ducking to run into the adjoining garage, where he loaded more goods inside the van. Another burglar sought to enter the showroom, but on seeing the flashlights, turned back into the garage.

¶ 7 Officers surrounded the building's south-facing, locked metal garage door. Ultimately, about nine were situated on the east side, while three officers were immediately west of the garage, including Officer Michael Papin, who stood just next to it. Police attempted to open the garage door and used flashlights to illuminate the underside, but they were only able to lift it several inches, prompting one of the burglars to jump back, as shown in the surveillance video. Police shook the door with a loud banging sound, kicked it, again letting the burglars know they were outside, surrounded, and had "nowhere *** to go."

¶ 8 Meanwhile, several officers had entered a side service door east of the garage into the vestibule area and managed to kick a hole in the bottom of an inner door that had been barricaded but led inside the garage. On looking in, for example, one officer saw the van's taillights flash on, then saw the van in reverse, and shouted "they're coming out." Officer Adrian Valadez saw these same headlights, only through the Western Avenue showroom window, and testified that he informed Officer Papin, standing by the garage door on the west side, to "be careful." In a sworn statement given hours after the incident, Officer Valadez acknowledged he had stated "move out of the way" because the van was coming out. Also, about one minute before the van moved, Officer Jeremy Lorenz, who was located by the Western Avenue window, radioed the emergency dispatcher, who in turn broadcast the message that the van lights were activated and the vehicle possibly exiting the building (the surveillance video confirmed this timing of van lights’ activation). Most officers by the garage nevertheless claimed not to hear these two warnings on their radios.

¶ 9 Following these warnings, the van then burst through the metal garage door before crashing into a vehicle parked along the driveway, pushing it into another on the street; officers claimed the van lurched forward but ultimately came to a stop. Officers described the van bust and verbal warnings as happening almost simultaneously, thus taking officers off guard. They never imagined the van would burst through the garage door, notwithstanding the prior warnings. Officers on both the east and west side of the garage testified they believed Officer Papin not only had been struck by the van but also was being dragged underneath and was possibly dead. Indeed, the video shows that just as the van bursts forth, Officer Papin hops back with arms outstretched appearing to be clipped by the backside of the van; however, he ultimately gains his footing and runs away while shots ring out. At trial, Officer Papin testified that the van struck his left hip, although it caused only pain and bruising.

¶ 10 With the domino effect in full swing, this all prompted eight officers to begin firing, mostly aiming at the driver, until the van's wheels were "shot out" and it was immobile. Officer Michael Curry on the west side (near Officers Papin and Valadez) fired his gun 18 times at the driver but did not know what or who he hit. He shot, notwithstanding that Officer Papin ran right in front of him away from the scene. Officer Curry stopped firing when the van ceased moving, perceiving the threat over. Officer Manuel Gonzalez, on the other side of the garage inside the vestibule by the service door, fired his gun some three times because he thought the offenders were shooting at officers in an attempt to escape. Officers also testified they were in fear that the van would drive right back towards them, with three testifying they saw Dudley (the driver) place it in drive or make similar such motions. Officer Daniel Lopez, for example, testified that he fired six shots aimed at the driver as the van lurched forward because he had seen Dudley moving his right arm up and down and believed the van might kill the officers in front of him. Officer Terrence Pratscher, who had already fired 11 shots at the driver, believing Officer Papin was struck, then fired a second time after observing the van lurch forward and Dudley place it in drive.

¶ 11 In fact, officers fired about 76 rounds at the van in an attempt to disable it, and the gear shift was later confirmed to be in "drive." Yet, no weapons were ultimately found on the burglars or inside the van, although there was testimony that the van itself could constitute a "deadly weapon." As set forth, the burglars claimed they turned victim because of the excessive force....

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    • United States
    • U.S. District Court — Northern District of Illinois
    • August 17, 2022
    ...not be afforded the equitable benefits of shifting a portion of that liability to another tortfeasor.”); Givens v. City of Chicago, 451 Ill.Dec. 914, 926 (1st Dist. 2021), appeal allowed, 452 Ill.Dec. 43 (2022) (citations omitted) (“[A] plaintiff who is either negligent or recklessly willfu......

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