by Laura A. Weizeorick (Spring 2016)
Local government agencies should take note of a recent Illinois Second District Appellate case, Lacey v. Perrin, 2015 IL App (2d) 141114, that reinforced the protections provided by the Illinois Tort Immunity Act and allowed the jury’s inconsistent answers to two special interrogatories to overturn a verdict for the plaintiff.
On an April evening in 2011, Officer James Perrin’s squad car entered an intersection and collided with a Lincoln Town Car in which plaintiff Mark Lacey was a passenger. At the time of the accident, Officer Perrin was responding to a call for assistance from another officer involved in the pursuit of a vehicle. The suspect was reported to have taken a vehicle without permission. At no time did Officer Perrin believe the other officer was in peril.
Plaintiff sued the officer for negligent and willful and wanton conduct, and the officer asserted immunity. Under Section 2-202 of the 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.” (745 ILCS 10/2-202) The critical question under the Tort Immunity Act is whether the officer’s acts constituted “willful and wanton conduct.”
In contrast to negligence, “willful and wanton conduct” requires proof of a “heightened state of mind.” The Illinois Supreme Court and the legislature have defined willful and wanton conduct as a course of action which shows actual or deliberate intent to harm or which shows an utter indifference to or conscious disregard for a person’s own safety or the safety or property of others.
The Circuit Court of Lake County entered summary judgment for the police officer on plaintiff’s claim for willful and wanton conduct finding that (1) fleeing and eluding is execution and enforcement of the law; and (2) the officer’s actions in entering the intersection at a low speed only after he cleared it, by looking both left and right, did not rise to the level of willful and wanton conduct. The case went to trial solely on the negligence counts, regarding whether the police officer was in the execution and enforcement of the law at the time of the accident. If Officer Perrin was found to be executing or enforcing the law, then the negligence count would, too, fail.
The jury returned a general verdict in favor of plaintiff, awarding damages in the amount of $125,016.50. However, the jury also made two factual findings in the case that were inconsistent with the general verdict. The jury responded affirmatively to the following two special interrogatories: 1) Do you find that James Perrin was en route to assist [another officer] at the time of the collision with [plaintiffs]; and 2) Do you find that James Perrin was in the execution and enforcement of the law at the time of the collision with [plaintiffs]?
Thus, the jury found Officer Perrin was enforcing the law, but yet found for the plaintiff. In light of the inconsistent verdicts from the jury, the trial court entered judgment in favor of the defendant police officer. Plaintiff appealed.
The Second District affirmed the lower court as to both the grant of summary judgment and the overturning of the general verdict. As to the grant of summary judgment, the Second District found as a matter of law that willful and wanton conduct had not been established, as the pursuit ended almost immediately, covered less than a block, and reached speeds of only 30 miles per hour.
As to the special interrogatories, the appellate court noted that the purpose of a special interrogatory is to serve as a check on the jury’s deliberation. In this case, the court determined that the special interrogatories were properly submitted to the jury, as they each related to an ultimate issue of fact upon which the rights of the parties depended, were inconsistent with the general verdict, consisted of a single direct question, and were not prejudicial, repetitive misleading, confusing, or ambiguous.
Further, the court found that the jury’s affirmative answers were not against the manifest weight of the evidence. There was evidence that the defendant officer received a radio call requesting assistance and that the defendant officer was en route to assist the other officer when the accident occurred. Accordingly, the jury could have found that he was acting in execution and enforcement of the law. There is no requirement that an officer be responding to an emergency or for a crime to have been committed to meet the standard.
Moreover, under Section 2-1108 of the Code of Civil Procedure, (735 ILCS 5/2-1108), “when the special finding of fact is inconsistent with the general verdict, the former controls the latter and the court may enter judgment according.” Thus, the trial court’s nullification of the jury’s general verdict for $125,016.50 was proper.
The holding in Lacey v. Perrin underscores the importance of special interrogatories to clarify confusing jury instruction and affirms the validity of immunity for public officers for mere negligence, insisting on truly egregious or willful and wanton conduct to attach liability.