Lacey v. Perrin

53 N.E.3d 90

403 Ill.Dec. 36

Mary LACEY, Plaintiff–Appellant

v.James PERRIN and the City of North Chicago, Defendants–Appellees.

No. 2–14–1114.

Appellate Court of Illinois, Second District.

Dec. 24, 2015.

John M. Falasz Jr. and Andrea R. Falasz, both of John M. Falasz Jr. & Associates, of Chicago, for appellant.

Julie M. Koerner, of O'Halloran, Kosoff, Geitner & Cook, LLC, of Northbrook, for appellees.

OPINION

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

¶ 1 Plaintiff, Mary Lacey, filed a complaint against defendants, James Perrin and the City of North Chicago (City), after Perrin, a police officer for the City, struck a vehicle in which plaintiff was a passenger. The jury returned a general verdict in favor of plaintiff and awarded her $125,016.50. However, the jury also answered in the affirmative two special interrogatories, which asked whether Perrin was in execution and enforcement of the law at the time of the accident and whether Perrin was en route to assist another officer at the time of the accident. The trial court entered judgment in favor of defendants, based on the answers to the special interrogatories. Plaintiff appeals, arguing that: (1) the trial court erred by granting defendants summary judgment on the issue of willful and wanton conduct; (2) the answers to the special interrogatories should be set aside and she should receive a judgment on the general verdict (judgment notwithstanding the verdict) or, in the alternative, a new trial on the issue of liability or an entirely new trial because the special interrogatories were improperly submitted and the answers are against the manifest weight of the evidence; (3) the trial court erred by denying her leave to file a third amended complaint to add a spoliation-of-evidence count; and (4) the trial court abused its discretion by allowing defendants to introduce evidence of the police department's call log, resulting in an unfair trial. We affirm.

¶ 2 I. BACKGROUND

¶ 3 The following facts are not in dispute. On April 14, 2011, at approximately 7:27 p.m., at the intersection of McAlister and South Avenues in Waukegan, Perrin's squad car collided with a 2005 Lincoln Town Car in which plaintiff was a passenger. The Town Car was driven by Margo Willis.¹ The accident occurred at dusk, the street lights had not yet come on, traffic was light, and the weather was fair and dry.

¶ 4 On January 8, 2014, plaintiff filed a second amended, four-count complaint alleging that Perrin was liable due to his negligence and willful and wanton conduct and that the City was liable, based on the theory of respondeat superior, for Perrin's negligent and willful and wanton conduct. Plaintiff alleged that Perrin had a duty of reasonable care and a duty to refrain from willful and wanton conduct with respect to the operation of his police vehicle. Plaintiff alleged that Perrin breached these duties by accelerating into the intersection, past a stop sign, without first determining that the way was clear and that movement was safe, in violation of various City police rules and regulations as well as Illinois statutes, and entering the intersection while looking down and failing to avoid cars already inside the intersection.

¶ 5 On January 23, 2014, defendants filed an answer and affirmative defenses, asserting immunity under, inter alia, section 2–202 (providing immunity to public employees for “act[s] or omission[s] in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct”) and section 2–109 (providing 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”) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2–109, 2–202 (West 2014)). Plaintiff filed an answer to defendants' affirmative defenses, denying that said sections of the Tort Immunity Act provided immunity to defendants.

¶ 6 On March 27, 2014, defendants filed a motion for summary judgment, alleging that there were no genuine issues of material fact regarding whether Perrin was acting in his capacity as a police officer at the time of the accident, whether he was responding to an emergency call for assistance in the apprehension of a fleeing suspect, and whether Perrin was in the execution and enforcement of the law at the time of the collision. Defendants alleged, therefore, that they were immune from liability pursuant to sections 2–202 and 2–109 of the Tort Immunity Act. Defendants attached to their motion the deposition testimony of Perrin, plaintiff, and Willis, Perrin's answers to interrogatories, the call log, and the affidavit of Deputy Police Chief Richard Wilson.

¶ 7 On May 27, 2014, plaintiff filed her response to defendants' motion for summary judgment, alleging the following. There were genuine issues of material fact, by virtue of Perrin's deposition testimony and a computer assisted operations report of police radio transmissions (CAD report), regarding whether Perrin was responding to an emergency call for assistance in the apprehension of a fleeing suspect. Therefore, plaintiff denied the affirmative defense that Perrin was in the execution and enforcement of the law at the time of the collision. Further, plaintiff alleged that there were genuine issues of material fact regarding whether Perrin's operation of his squad car rose to the degree of culpability necessary to determine that he exhibited an utter indifference or conscious disregard for the safety of others. Plaintiff incorporated by reference the deposition testimony of plaintiff, Perrin, and Willis. Plaintiff attached her answer to defendants' affirmative defenses, the deposition testimony of Wilson, the CAD report, dated June 18, 2013, and police department rules and regulations 10.9 through 10.13 and 10.19.

¶ 8 On June 11, 2014, defendants filed a reply in support of their motion for summary judgment. Defendants argued that whether the vehicle driven by the fleeing suspect was taken without permission or was stolen had no impact on defendants' entitlement to summary judgment; when he collided with plaintiff, Perrin was not engaged in routine work but rather was attempting to assist City police officer Gary Grayer to apprehend the suspects in an emergency situation.

¶ 9 On June 24, 2014, the trial court granted defendants' motion for summary judgment regarding plaintiff's claims alleging willful and wanton conduct. The trial court stated in its written order that summary judgment was granted on the following issues:

“1) fleeing and eluding is execution and enforcement of the law; and

2) willful and wanton conduct-the Court finding there is no issue of material fact that Perrin's conduct was merely negligent, but not willful and wanton.

The sole issue remaining is whether Perrin was responding to an emergency call, the Court finding a question of fact remains on this issue.”

¶ 10 On July 9, 2014, plaintiff filed a motion to file a third amended complaint to add, inter alia, a negligent-spoliation-of-evidence count against the City. Plaintiff's motion alleged the following. The City ordinarily keeps original dispatch tapes “for a period of 90 days.” Thirty-three days after the accident, plaintiff's counsel “requested that Donna Murphy of Claims One, the duly authorized agent of [the City], preserve ‘any radio traffic by [the City] dispatch center ... for a period of one hour before to one hour after the collision.’ ” This request was made “well within the 90 day time frame.” On December 6, 2013, plaintiff's counsel sent to the City a request to produce the original police dispatch tapes. “The CD containing the requested dispatch tapes produced by [the City] in response to Plaintiff's Discovery Request were not the originals and are useless because they appear to be edited and are devoid of any indication as to the times that the calls were placed.” Plaintiff also alleged that she needed to amend her complaint due to the trial court's ruling that “Perrin was not guilty of willful and wanton misconduct.”

¶ 11 Attached to plaintiff's motion was a January 7, 2014, letter in which plaintiff's counsel was advised that the City was unable to produce the original dispatch tapes, because they were destroyed. The letter also stated that “there would be no time stamps on [the City's] original [dispatch] tape.” Also attached was the April 29, 2014, deposition of Wilson, in which plaintiff's counsel learned that, if the original dispatch tapes had not been destroyed by the City, the exact times that calls were made would have been ascertainable by listening to the original tapes on the City's equipment.

¶ 12 The January 7, 2014, letter provided:

“It is the practice of North Chicago to automatically erase these recordings after 90 days. * * * In this matter, the original recording was copied and saved onto a disc. It is from that disc that copies of the recording were made and produced to you and others in this litigation. It is important to note that we are advised there would be no time stamps on North Chicago's original 911 tape, and that the copy of the audio that you have is complete.”

Wilson's deposition testimony provided:

“Q. Okay. When the original recordings are made, are the times that calls are made on the original tapes?

A. Yes. If you're playing back from the system itself, yes you can see the time.”

¶ 13 On July 14, 2014, after hearing argument from counsel, the trial court, Judge Thomas M. Schippers presiding, denied plaintiff's motion for leave to file a third amended complaint.

¶ 14 On July 14, 2014, the case proceeded to trial solely on the negligence counts in plaintiff's second amended complaint, regarding whether Perrin was in the execution and enforcement of the law at the time of the accident.

¶ 15 At trial Perrin testified as follows. Before the accident he was on patrol and heard a call over the radio that Grayer was requesting assistance...