Lorenz v. Pledge

• Decision Date: 05 February 2014
• Docket Number: No. 3–13–0137.,3–13–0137.
• Citation: 12 N.E.3d 550
• Parties: Mark LORENZ, Gary Lorenz, and Leslie Lorenz, Plaintiffs, v. Thomas PLEDGE and The McDonough County Sheriff's Department, Defendants–Appellees (Brian Dayton, Individually and as the Special Administrator of the Estate of Jill D. Dayton, Deceased, and Amanda Dayton Nehring, Plaintiffs–Appellants).
• Court: United States Appellate Court of Illinois

12 N.E.3d 550

Mark LORENZ, Gary Lorenz, and Leslie Lorenz, Plaintiffs
v.
Thomas PLEDGE and The McDonough County Sheriff's Department, Defendants–Appellees (Brian Dayton, Individually and as the Special Administrator of the Estate of Jill D. Dayton, Deceased, and Amanda Dayton Nehring, Plaintiffs–Appellants).

No. 3–13–0137.

Appellate Court of Illinois, Third District.

Feb. 5, 2014.
Modified Upon Denial of Rehearing June 24, 2014.

12 N.E.3d 552

John M. Spesia (argued), Kent Slater, and Jacob Gancarczyk, all of Spesia, Ayers & Ardaugh, of Joliet, for appellants.

Craig L. Unrath (argued), of Heyl, Royster, Voelker & Allen, of Peoria, and Matthew R. Booker and Douglass R. Bitner, of Heyl, Royster, Voelker & Allen, of Springfield, for appellees.

OPINION

Justice O'BRIEN delivered the judgment of the court, with opinion.

Plaintiffs Brian Dayton, individually and as special administrator of the estate of Jill Dayton, deceased, Amanda Dayton Nehring, and others not involved in this appeal, filed personal injury and wrongful death actions against defendants Thomas Pledge and the McDonough County sheriff's department, for damages they sustained following a car accident between the Daytons' minivan and a sheriff's squad car. Following a trial, the jury entered a verdict in favor of Pledge and the sheriff's

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department. The Daytons appealed. We reverse and remand for a new trial.

¶ 2 FACTS

¶ 3 On September 3, 2004, at approximately 11:30 p.m., defendant McDonough County sheriff's department received a call regarding an erratically driven sport utility vehicle (SUV). Defendant Deputy Thomas Pledge, who responded to the call, located and observed the SUV. His squad video activated, and after seeing the SUV swerve several times, Pledge effectuated a traffic stop. As Pledge approached the stopped SUV, it sped away, and he pursued the vehicle. The SUV and Pledge proceeded southbound on Route 67, heading into Macomb. Pledge's vehicle reached speeds as high as 110 miles per hour and was traveling at 100 miles per hour approximately four seconds before he entered the intersection of Route 67 and University Drive. The SUV turned off its headlights as it neared the intersection.

¶ 4 At the same time the SUV and Pledge were speeding toward the intersection, a minivan traveling northbound on Route 67 and occupied by 16–year–old Amanda Dayton, the driver; her mother, Jill Dayton, in the passenger seat; and their friend, Mark Lorenz, in the backseat, entered the intersection's center turn lane to proceed left onto University Drive. The SUV passed through the intersection, and as Amanda began the left turn, the squad entered the intersection and struck the minivan on the passenger side. Pledge, Amanda and Lorenz were injured, and Jill was killed in the accident.

¶ 5 Plaintiffs Mark Lorenz, Gary Lorenz, Leslie Lorenz (collectively, the Lorenzes), Brian Dayton, individually and as special administrator of the estate of Jill Dayton, and Amanda Dayton Nehring (collectively, the Daytons) sought to recover damages for their injuries from Pledge, individually and as a McDonough County deputy sheriff, and the McDonough County sheriff's department (collectively, the McDonough County defendants). The Lorenzes are not part of this appeal. The fourth amended complaint asserted wrongful death and bodily injury against Pledge and the sheriff's department. The complaint alleged that Pledge acted both negligently, and willfully and wantonly, and violated provisions of several statutes and the sheriff's department pursuit policy.

¶ 6 Both parties filed motions in limine. The Daytons sought to preclude a videotape prepared by a defense expert witness, Michael O'Hern. The video portrays a visibility or line-of-sight study undertaken by O'Hern and designed to give an indication of the line of sight down Route 67 that Amanda would have had from the left-turn lane. The Daytons argued that the video was an enactment of the crash and its probative value was outweighed by its prejudicial effect. Following a hearing, the trial court denied the motion in limine. The McDonough County defendants filed a motion for summary judgment, arguing that additional negligence counts the Daytons added in their fourth amended complaint were barred by tort immunity. The new counts alleged that Pledge was not executing or enforcing the law when he pursued the SUV, which the Daytons argued precluded Pledge and the sheriff's department from the protection of tort immunity. The motion was heard and denied, and the McDonough County defendants filed a motion seeking certification for an interlocutory appeal. The trial court denied the motion for certification.

¶ 7 A jury trial ensued. Testifying for the Daytons were Pledge, expert witness Robert Johnson, Amanda Dayton Nehring, and Brian Dayton. Evidence depositions of an occurrence witness and a medical doctor were read into evidence. The occurrence witness testified that she saw the

12 N.E.3d 554

accident occur and that the Dayton minivan was starting to turn left when the squad car collided with it. The squad car did not swerve or brake and its brake lights did not come on. Michael O'Hern testified as an expert witness for the defense. He created the line-of-sight video in response to an early claim by the Daytons that there were trees blocking Amanda's visibility. He undertook the experiment to determine whether there were any structures impeding Amanda's view; whether she could see Pledge's squad car; and whether it was necessary for her to yield to oncoming traffic. O'Hern reiterated a number of times that the video was not a reconstruction of the accident and explained the various differences between the conditions of the actual crash and the line-of-sight experiment, including speed, lane position, static position from the left lane, normal driving conditions, and an illuminated SUV. The conclusion O'Hern reached from the experiment was that Amanda had a “clear line of sight of both southbound lanes of traffic” for one-half mile as observed from the left-turn lane. In addition to the video, O'Hern also based his opinion on his experience and training.

¶ 8 The Daytons timely objected to use of the video, arguing it was cumulative, inaccurate, and confusing, and that its probative value was outweighed by its prejudicial effect. The trial court overruled the objection and gave a limiting instruction to the jury as follows:

“The witness has explained why the video was produced and you should consider it only for purposes of the consideration that the witness took of the information that's contained therein. You can consider the material for that purpose in deciding what weight, if any, you give the opinions that have been testified to by the witness.”

¶ 9 Based on O'Hern's review of the squad car video, he concluded that Amanda's line of sight was blocked for one second by the passing SUV but the squad's emergency lights were still visible, and that Amanda could see the approaching squad for 13 to 15 seconds before the impact. He further opined that Pledge was traveling at 86 miles per hour entering the intersection, slowed to 73.9 miles per hour prior to impact, and to 70 miles per hour at impact. O'Hern stated that Amanda “would have a duty to yield and stop and not engage in that left turn maneuver in front of the vehicle.” He opined that Amanda had a duty to yield to oncoming traffic in general, and to emergency vehicles in particular, when turning left. In O'Hern's professional opinion, Amanda's failure to yield was the cause of the accident and Pledge operated with due regard for the public's safety.

¶ 10 Pledge testified, in part, that he was aware of the license plate number of the SUV before he began to pursue the vehicle. He also heard on the police monitor that the Macomb police were placing spike strips to stop the SUV and were prepared to apprehend the driver. He anticipated that the SUV would ultimately crash and that it created a “huge safety concern” by traveling without its headlights. Pledge knew his speed reached 110 miles per hour during the pursuit. He saw the Dayton minivan in the left-turn lane but opted to proceed through the intersection in order to keep the SUV in sight. Pledge grew up in the Macomb area and was familiar with the intersection where the accident occurred and was aware that other accidents occurred there, often involving left-turning vehicles. As an officer, Pledge had responded to some of the accident scenes at the intersection. Pledge was also aware that Western Illinois University (WIU) was in session, increasing the population in the area of the intersection, which was an entrance to campus. It was a holiday

12 N.E.3d 555

weekend, which also increased pedestrian and vehicular traffic.

¶ 11 Pledge further testified regarding the sheriff's department policy regarding high speed pursuits. The policy stated that “ ‘fresh pursuit’ at high speeds is justified only when the officer knows or has reasonable grounds to believe the violator has committed or attempted to commit as serious felony.” (Emphasis is original.) The policy also provides that it is not inconsistent with the pursuit policy “that it is sometimes...