Ozik v. Gramins

• Decision Date: 27 October 2003
• Docket Number: No. 1-00-3280.,1-00-3280.
• Citation: 279 Ill.Dec. 68,345 Ill. App.3d 502,799 N.E.2d 871
• Parties: Alla OZIK, as Special Adm'r of the Estate of Mikhail Ozik, Deceased, Plaintiff/Appellee, v. Timothy GRAMINS; Ronald Glad, and the Village of Skokie, a Municipal Corporation, Defendants/Appellants.
• Court: United States Appellate Court of Illinois

799 N.E.2d 871

279 Ill.Dec. 68

345 Ill. App.3d 502

Alla OZIK, as Special Adm'r of the Estate of Mikhail Ozik, Deceased, Plaintiff/Appellee, v. Timothy GRAMINS; Ronald Glad, and the Village of Skokie, a Municipal Corporation, Defendants/Appellants.

No. 1-00-3280.

Appellate Court of Illinois, First District, First Division.

October 27, 2003.

Barbara M. Meyer and Henry E. Mueller, Skokie, and Botti, Marinaccio & De-Longis, Ltd., Oak Brook (Aldo E. Botti, Jean M. Lasics, and Thomas E. Haught, of counsel), for Defendants-Appellants.

Manchik & Romaker (Craig L. Manchik, of counsel), and Novoselsky Law Offices (David A. Novoselsky and Leslie J. Rosen, of counsel), Chicago, for Plaintiff-Appellee.

Justice McBRIDE delivered the opinion of the court upon denial of rehearing:

Defendants police officer Timothy Gramins, police officer Ronald Glads, and the Village of Skokie (Village or Skokie) appeal from a judgment in favor of plaintiff Alla Ozik, as special administrator of the estate of Mikhail Ozik, deceased.

In a first amended complaint, Alla Ozik alleged that her 16-year old son, Mikhail Ozik, was a passenger in a vehicle being operated by 19-year-old Alexander Goldberg on September 13, 1995, at 10:16 p.m., when the officers detained and issued traffic citations to Goldberg. She further alleged the officers knew or should have known that the underage Goldberg was intoxicated but allowed Goldberg to retake control of the vehicle at approximately 11:30 p.m. Further, while driving at 11:47 p.m., Goldberg lost control of the vehicle and struck a tree, causing slight injuries to himself and fatal injuries to Mikhail Ozik. Plaintiff sought damages from Goldberg, and the officers and Village, based on the Survival Act (755 ILCS 5/27-6 (West 1994)), the Wrongful Death Act (740 ILCS 180/1 (West 1994)), and the family expense act (see 750 ILCS 65/15 (West 1994)). Plaintiff subsequently dismissed Goldberg pursuant to settlement, for the limits of his $20,000 insurance policy, over the objection of the remaining defendants. Plaintiff filed a second amended complaint naming only the officers and Village as defendants, and her claims proceeded to trial. The jury returned a $1.8 million verdict in plaintiff's favor, reduced the verdict by 35% due to Mikhail Ozik's contributory negligence, and the trial court entered a judgment of $1.14 million against the officers and Village.

On appeal, the officers and Village do not dispute any of the facts adduced at trial and raise only arguments of law. The officers and Village contend the judgment is in error, because: (1) the officers were under no duty to Mikhail Ozik to take custody of Goldberg instead of issuing traffic citations, (2) even if the officers were under an actionable duty, they were immune from tort liability due to sections 4-102 and 4-107 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/4-102, 4-107 (West 1994) (Tort Immunity Act or Act)), and (3) if they were not immune from liability, they were entitled to apportion liability to the dismissed defendant Goldberg, in order to benefit from section 2-1117 of the Code of Civil Procedure (735 ILCS 5/2-1117 (West 1994)), the several liability law.

We review the relevant facts. During the hearing on Alla Ozik's motion to dismiss Goldberg pursuant to the settlement, she indicated Goldberg had tendered the limits of his insurance coverage, was incarcerated, and had no assets. The record discloses that Goldberg was convicted of the reckless homicide of Mikhail Ozik, and began serving a 10-year prison sentence in 1996. The police officers' attorney, who said she was also appearing that day on behalf of the Village, asked for time to file a written objection. Goldberg's attorney responded that the officers and Village lacked standing to object, because they had not filed a counterclaim against Goldberg seeking contribution. He also stated the settlement was in his client's best interests and entered into in good faith, and that unless there were facts showing collusion or fraud between the settling parties, there was no basis for objecting to Goldberg's dismissal. The trial judge allowed the officers' attorney to respond to the contribution and "good faith" arguments. The trial judge then indicated that a briefing schedule was unwarranted and dismissed Goldberg with prejudice.

As indicated above, Alla Ozik subsequently filed a second amended complaint. Defendants denied the material allegations and raised section 2-1117 (735 ILCS 5/2-1117 (West 1994)), the several liability law, as an affirmative defense. The trial judge granted Alla Ozik's motion to strike the affirmative defense. The trial judge also granted Alla Ozik's motion in limine to bar any apportionment of liability under section 2-1117 at the jury trial, and then denied defendants' motion to reconsider this ruling.

John Hudson testified he was a passenger in the backseat of Goldberg's car on the evening of September 13, 1995. He smelled alcohol on Goldberg's breath while Goldberg drove Hudson, Vlad Pikovskiy, and Mikhail Ozik to Evanston. During the drive, Goldberg drank from a 40-ounce bottle of malt liquor. In Evanston, Goldberg continued to drink from the bottle, and Hudson and Pikovskiy smoked marijuana near the car. Goldberg threw the empty bottle out the car's window during the return drive to Skokie and began to drive erratically. Goldberg changed from lane to lane at up to 80 miles per hour, and almost hit a car at Howard and McCormick. Goldberg's eyes were half-closed and bloodshot, and Goldberg was acting drunk. At 60 miles per hour, Goldberg rear-ended a car at McCormick and Dempster, and Hudson was thrown into the front seat. Hudson urged Goldberg to drive away, which Goldberg did by driving northbound in the southbound lanes, turning left against the red light at McCormick and Dempster, and speeding.

Goldberg pulled the car over at a McDonald's restaurant in response to a pursuing police car and got out of the car when directed by an officer. Goldberg used the door to pull himself from the seat and for support while Goldberg swayed and swerved. Goldberg lost his balance twice before the officers motioned him to the sidewalk, and he then swerved and swayed to the sidewalk. During the one-leg-stand test, Goldberg kept putting his foot down to regain balance. The test was repeated, and Goldberg again lost his balance and put his foot down.

The officers returned Goldberg to the car and had Goldberg drive back toward the accident scene, to a Clark station. Hudson fell asleep in the car for 60 to 90 minutes and woke up around 11:30, when the officers allowed Goldberg to drive away with Hudson, Ozik, and Pikovskiy as his passengers. At around 11:45, Goldberg dropped Hudson and Pikovskiy off at their neighboring homes. At around 12 midnight, Goldberg drove away, tires screeching.

Vlad Pikovskiy, the other backseat passenger, testified Goldberg's breath had a strong odor of alcohol during the drive to Evanston and that Goldberg's speech was slurred. On the way back to Skokie, Goldberg began driving 80 miles per hour, swerving into oncoming traffic, and almost hit some parked cars. Pikovskiy warned Goldberg he was going to rear-end a car, and Goldberg applied the brakes, putting his car into a skid. Goldberg's car struck the other car at 30 to 40 miles per hour, pushing it forward about one car's length and into the intersection. Pikovskiy told Goldberg that Goldberg was drunk and to leave the scene of the accident, which Goldberg did. When the police approached the car, Goldberg's window was down, and Pikovskiy heard the officers say the car smelled like weed and liquor. Goldberg almost fell down when he got out of the car at the McDonald's, stumbled and held onto the car door, then swayed to the sidewalk. During the one-leg-stand test, Goldberg put his foot down right away. When Goldberg followed the police officer to the Clark station, Goldberg was swerving the car within the lane. At the Clark station, he walked the same way he had walked at the McDonald's. When he drove away from the Clark station, Goldberg was swerving the car within the lane. Goldberg dropped Pikovskiy off at 11:50 or 11:55. Pikovskiy acknowledged that he was convicted of theft in 1997 and two residential burglaries in 1999.

Alexander Goldberg testified that he drank 80 to 120 ounces of beer and malt liquor on September 13, 1995, and had his last drink about an hour before rear-ending the car at McCormick and Dempster. The police officer that stopped Goldberg asked Goldberg if Goldberg was drunk and said he smelled weed in the car. Goldberg was sure the officers were going to know he was drunk because the car stank of weed and he stank of alcohol. He never said he had taken Tylenol Cold & Flu. He was dizzy and noticeably swayed next to the car. He could not stand on one foot because he was drunk. One of the officers returned the car keys to Goldberg and told him to follow the officer to the Clark station. At the Clark station he was given a test with a flashlight shining in his eyes. He was given some tickets, and overheard the officers talking about what a wild bunch of kids they were and that they had been drinking and smoking marijuana. The officers were laughing when they talked about Goldberg being drunk. Goldberg dropped off Hudson and Pikovskiy, and was going to drop off Mikhail Ozik when he lost control of the car approximately seven minutes after being released by the officers.

Rickey Ussery testified that he and his wife were injured when their car was struck by a hit-and-run driver. Ussery drove to the nearby Clark station, where he called 911 and reported the other car's license plate. Approximately 45 minutes after the accident, at almost 11 p.m., two police cars escorted the other car to the Clark station. One officer, whom Ussery had seen do a U-turn and follow the other car, told Ussery that the other driver was drunk or high...