they please the court consul my name is john space i'm here on behalf of the dayton family and amanda dayton nearing a march twenty fourth two thousand seventeen a mcdonough county jury returned general verdicts in favor of the dayton family and amanda de niro and against the mcdonough county sheriff's office and officer pledge the jury found that officer pledges guilty of includes findings by two different trial judges that there was sufficient evidence from which the jury could conclude that officer pledges conduct was willful and wanton the history also includes a finding by the trial judge here judge gambrell during that march two thousand and seventeen trial it was god's judge gambrell who decided that the evidence admitted at trial was sufficient to support the jury instruction containing no less than eight different factors from which the jury could decide whether officer pledges conduct was willful and wanton the general verdicts returned by the jury in favor of the plaintiff's result in a presumption that the jury found in favor of the plaintiffs on each or all  expert opinions that's dr alford did miss ability those opinions is not contested and they came in largely without any objection the admissibility of the evidence that was admitted on the speed of the pledge squad car once again came in largely without objection and it is not an issue in this appeal neither is the evidence of breaking and there was conflicting evidence about breaking but there is no claims that the verdicts here were based on passion or prejudice or that the amount of damages is somehow in error and there is no claim that the defendants here were denied a fair trial notwithstanding that history all of the evidence that was properly admitted and presented to the jury on september twenty eighth of two thousand and seventeen six months after the verdicts judge gambro the side of himself that the defendants were entitled to prevail and an alternative be granted a new trial his decision is sustainable in the trial judge's seven page order he said it's six police pursuit cases he never once mentions this court's decision in what i'll call pledge under this court's own precedent that decision in pledge one was binding both on the trial court on remand and on this court on this appeal in pledge one this court identified twelve factors we refer to them as the pledge factors bearing on whether pledges pursuit was willful and wanton and those factors were all proven a trial we provided the court with a chart that showed the proofs of each one you can imagine the whiteboard getting prepared for tr to twelve pledge factors and we did that this court said that could based on the evidence presented we find that the trier of fact is entitle to determine whether pledges actions were willful and wanton after considering and this is all of the evidence the second trial in this case was not about the pledge factors alone we considered the criticism of the defense i'm sorry the dissent in the pledge one opinion the dissent believe there was not enough evidence for a reasonable person to conclude that there was willful incline and wanton contact so we presented more evidence yet more evidence of what officer pledge knew and more importantly when he knew it seven hundred feet before the point of impact as a clark gas station on the west side of route sixty seven i asked this question of officer pledge is it your testimony that add or near that clark station you look at your speedometer and you were going seventy to seventy five miles an hour his answer i think so yes what did pledge know at that time seven hundred feet before impact he knew there was a minivan in the left turn lane university at the intersection with the university drive knew the minivan had left turn signal on he made a quote fair assumption that that minivan was going to turn left in front of him and what about the minivan the video shows and the eyewitness testimony was that minivan was moving moving through the turn lane moving through the intersection what else that pledge no he knew that university drive intersection was dangerous he responded himself to other oxen's there are other accidents involving injuries he did the s u v was not likely to stop some would call that a futile pursuit he knew that his pursuit was likely to end in a crash he just thought it was going to be the s u v that was going to be the one who crashed and instead of slowing down the evidence at trial established that officer pledged increased his speed and a point four hundred forty to four hundred fifty feet before impact i asked officer pledged this question so at that time you looked at your and you reported your speed to answer troop i asked him you said on the video just so we're clear that you were going a hundred right his answer right and you meant one hundred mph his answer right all the while as officer pledged increases speed the minivan kept moving how do we know that because i asked their expert for mechanic this question isn't it tr based on your review of the video the dayton minivan never stop answer that's the way it  the minivan keeps moving and he never even considered discontinuing the pursuit oh there was ample evidence of a conscious disregard in fact i did see that touches this regard to this jury no less than one thousand times in my closing argument we are very focused about what we had to prove here and the jury fully understood it needed to find a conscious disregard reply to reach the point two hundred fifty feet prior to impact there was a white dividing line for right turning traffic is still going ninety to a hundred miles an hour how do we know that eyewitness lindsey poignant here's the question so can you give us an estimate of how fast the officer was going as he headed into the intersection answer no objection by the way an would guess he continued between ninety and a hundred miles an hour the admissibility of that testimony is not contested here on appeal even their own expert who was called at this trial could not get pledge down to eighty six miles an hour until he was about one hundred fifty feet before the point of impact half way down that dividing line and he still going eighty six miles an hour more than double the speed limit their expert testified he needed five hundred six feet to stop but we know this he never even braked here's the question that once again the trooper pamela isn't it true mr there was no indication in the video that officer pledge applied the brakes his answer correct no braking what about an invasive maneuver no no skids either ample evidence of a conscious disregard abundant evidence i would say to this court overwhelming evidence from which the jury could have determined there was a conscious disregard one more thing their own expert said there were five seconds when dating meaning red minivan was in full view five seconds that's seven hundred fifty feet of a line of sight not with the trial judge said in his order to this four thousand feet and during that period of time there was one socket of a full of struction of these vehicles and one officer pledged to you he didn't slow down he didn't break important during the two minutes that pledge followed the herrera vehicle that s u v before he even turned his emergency lights on dr alford said a quote well trained officer thinks through his what his or hers policy is in this case did i have an attack no should i pursue no two times at trial i asked officer pledge you're not here to tell you today to tell us that you had discretion to violate this mandatory policy are you and he said no i'm not he didn't have discretion to violate the policy and he didn't just violate one policy he violated multiple multiple provisions in the sheriff's a policy with regard to the pursuit dr albert what's reckless and disregarded the safety of everyone no one's here contesting the admissibility of that evidence but it is completely disregarded by the trial judge and i doubt we're going to hear from the defendants today either i'd like to address this one this is not close this is not a close case i want to briefly touch on the allegedly inconsistent verdicts number one the allegedly inconsistent verdicts have no impact on the wrongful death verdict none not according to the express lanes or wrongful death act not according to the instruction that was given to the jury they were specifically told you are not to consider the contributory negligence negligence of amanda da if anything the sole aim of the alleged inconsistent verdicts is on amanda dayton's ability to recover her proportionate share of the wrongful death verdict and possibly her own injury claim though there really is no dispute that the twelve and a half percent is somehow an error the verdicts are are not inconsistent regardless and here's why the first contributory negligence is qualitatively different th negligence in toward so says the fourth district appellate court in three different decisions starting with lolly og and ending with the law there was no disparate finding on amanda dayton's disregard for her own safety because there was only one such finding there was no disparate finding of her responsibility in tort because the result the one such bundle these were different claims one involved in injury one involved death i would submit to the court no different than the facts in the bows yako case that cited with approval by our supreme court in read in both yako there was a forty percent finding of contributory negligence and zero in to work for property damage and injury claim  because the speed caused the complete destruction of the minivan not just the minivan did precisely where jill dayton was sitting was completely destroyed by the speed of pledge and what about the injuries spinal then we have the defendant's bringing out testimony about there was a driver the two year delay between when a man that they saw a psychiatric care after the after the crash and i cross examination they brought out the continuous improvement once she started with psychiatric care that was their own cross examination the jury could have easily factored that in and said she delayed in getting treatment but you know what here's the thing we don't even get to the inconsistent we don't even get to the inconsistent verdicts because that issue's been forfeited there's been no jury instruction that's been provided to this court or to the trial court that would cure this alleged error of the possibility that they say now there shouldn't if even bend the possibility that the jury make this disparate finding no such instruction was ever submitted and this is a classic case of invited air a party you invited here by not objecting to an answer a jury question is not entitled to a new trial quote to allow a defendant to object on appeal to the jury's to the trial court response of the jury's question that he agreed to a trial would offend all notions of fair play so what do we have here with the defense counsel says my preference that's his words my preference is that the jury be instructed that they've been told everything they have all the instructions in a post trial says absolutely absolutely they agreed with the jury's with the with the trial court's instruction that allowed the jury to make findings on both contributory negligence and on the it please the court will i'm morally bearcat and i am here on behalf of the apple e mcdonald county sheriff's department and officer thomas pledge i refer to them together as officer pledge in the opening section of officer pledges argument he set forth the standard of review and the test that must be applied to a motion for a judgment notwithstanding the for of course the standard of review is de novo and the supreme court set forth the test which is that all evidence when viewed in a light most favorable to the pony so overwhelmingly favors the movement movement that no contrary verdict based on that evidence could stand it was that peter peter standard by which judge gambro exhaustively analyze the record in this case he employed the peter good standard for throughout his discussion of the motion for judgment notwithstanding the verdict and use the manifest weight of the evidence when he was discussing whether or not a new trial should be awarded there is no question that judge gambrell applied the correct standard and when the peter court in deciding on the cut correct standard for a judgment ovi the supreme court expressly rejected the test that required a motion for such a judgment be rejected if there was any evidence at all to support the jury verdict why because the court tells us that literal application of the test prohibits direction of the verdict even though the evidence relied on for the verdict is so overwhelmingly  that the verdict cannot stand that's a very important statement by the court in peter if the evidence upon which the verdict steen says so overwhelmingly rebut it by the remainder of the evidence that verdict cannot stand this case must be affirmed on the question of whether or not judge or i'm sorry officer thomas harm no there's been no evidence of that so did he show an utter indifference to the safety of others or did he act in conscious disregard of that safety that's the determinative question seventy three at the point of impact that is a question that's determinative of the outcome of the case in piedras the supreme court examined the other testimony of those three witnesses to see whether there was anything instructive about the program the value of their testimony the court noted that it looked to see whether those witnesses testified consistent with facts that other witnesses testified to as  but there is also what opposing counsel established was live footage footage of the events as they actually unfolded and that's the dash cam video and when two experts only one retained the other  doing his job as a state police officer use that video they both were able to come to consistent findings that he was going seventy to seventy three miles at the point at impact he had slowed down ten miles an hour and by the time that he got to unfortunately the dayton band he was going seventy to seventy three miles per hour so i am saying that you are not acting with absolute indifference to the safety of others when you slow a vehicle for some thirty miles per hour while you're approaching an intersection and let's also remember that that intersection there were no press pedestrians there was no cross traffic there was only one who vehicle going north by the time he got to that intersection and that was clearly and he testified that she believed he was going one hundred miles an hour that no she saw him who review mere while she was talking to her boyfriend on the phone and driving north that's very similar to the analysis or to the kind of facts that that supreme court analyze and when the supreme court did that it concluded that the testimony of the seven overwhelmingly we bided the testimony of the three witnesses in this case judge gambrell did the same  or thomas pledge they both apply the same sort of test mathematical to the video and concluded arrived at the same conclusions that he was going seventy to seventy three miles an hour at the point  had to have slowed his vehicle he had to have great well the park station was seventeen hundred miles out or seven hundred feet out and by the time he got to the pass in the turning lane where you can turn off it was yes it was eleven thirty at night she would have seen the brake lights if she had been looking at the moment that he applied the bricks but were just more if she observed the whole thing is not right that is her testimony yes but when was the whole it actually play out and her testimony was that she was driving north and unless she was completely disregarding her duty to watch where she was going and this is our woman who was also talking on the phone to her boyfriend at the same time so judge gambrell looked at her testimony and then took the testimony of the two experts that is based on the actual footage of the events as they unfolded that night this isn't something that was recreated this isn't a video that thomas kludges expert came up with this is the dash cam video and  so he did not testify that he did not break it is an absolute impossibility to slow a car from a hundred and end up at seventy without having braked there is no slowing of the speed would negate your conscious disregard which your whole orders yes that was i'm actually talking more about it because of the questions but yes that is the point how do you act with an absolute complete disregard and utter indifference to anybody's safety when you are also slowing your be get vehicle those two things do not work together at all if that it wasn't just those two  burrell also viewed the video and when he really viewed the video what he saw was bad officer pledged had his lights and sirens activated the entire chase and evidence from the defendants that there were just one but then you have the eyewitness testimony and so then normally when you ask for a jury trial you know there's a jury question and there are these  testimony of the witnesses and took the jury verdict back away from the jury it overturned the jury verdict and they did that by examining the witnesses of the testimony and determining that that testimony that said there were no lights was overwhelmingly rebuttal by the remaining testimony and that's when judge gambro found that clinton's testimony was overwhelmingly rebut r well obviously one of those were presented to him in the alternative which is completely permissible he did  he found that the evidence that supported that was stu's support the verdict was overwhelmingly rebutted by the remaining evidence and so he he granted the motion j n o v but because thomas pledged had also requested a new trial in the alternative judge gambro then examined the manifest weight of the evidence and determined that he did not bat it supported a conclusion that was contrary  v was properly granted and that will end the matter yes it's in the alternative so if i'm sorry  saw that the road was clear and dry there were no other vehicles in in the vicinity and all of these factors are the same factors that appellate courts in this state have over and over and over planes if you will find them so factually different that they cannot be applied it is not the same thing to chase a suspect in a suburb of chicago in a mix of residential and commercial as it is on a highway in near mccomb that is literally there was one other car going south bound one there were only five going northbound by the time that case ensued he had not heard that they had in fact placed any spike strips this was a very first intersection that thomas came across on this on this  pursuit and he slowed down and he braked his car so that his speed dropped thirty miles an hour if you are acting in absolute with absolute complete indifference to the safety of their folks or if you have a knowing disregard for that safety you do not sell your car down that much thank you that could constitute will form wauconda the other thing that this court importantly decided and i believe is consistent with all of the decisions that are little or those really factors in that decision of where the more description with the audience was with regard to remembering the judgment that i think they're both but there's no question that this case turns on its own facts and that's how this court's decision in pledge one is consistent with all the police pursuit cases this is a uniquely intense focus on the facts of the case this court happened to identify twelve from which a jury could have found willful and wanton we proved all of them as i said before we prove more the petrik standard does not allow the defendants here to construe the facts most favorably to them and that's what they've done it's very clear that's what they've done just as holder does this question about why are we talking about the trial judge's  i don't know that the rulings are inconsistent i just know they're wrong both of them abhi because there was substantial evidence here to support this verdict so the question about the point of the point where the did he was familiar with the area he responded to accidents at that intersection before but here's the thing there's overwhelming focus on pledge slowing down and the evidence  trial was that even if you believe that he slowed down and you and you agree with this approach of three to one right there are three witnesses who said slow down there's only one who said he didn't so we lose even if you agree with that which is not the law the best they can do is their experts saying that halfway through that white dividing line about one hundred sixty feet before impact pledges got a speed down to eighty six miles per hour and you know what that doesn't make him an reckless seem pledge was reckless way back at four hundred forty feet he was actually reckless at five hundred sixty and six hundred seven hundred eight hundred while because as he approached that intersection he was increasing his speed or maintaining it at one hundred miles an hour two and a half times the limit one hundred forty six feet per second versus fifty nine and you know what he couldn't stop his stopping distance at eighty six miles an hour is five hundred feet so even if he started slowing down halfway through that dividing line one hundred sixty feet before the crash that doesn't make him reckless he had to sleep disregard all these facts way back way before that were incident thank you in the event that the that the court considers this argument about the inconsistent  offered an approach for the court the opposition is there not inconsistent but if the court did decide that there's no claim here that the twelve point five percent wasn't supported by the evidence and if they have to be the same as the defendant suggest even if you get to that issue then apply the twelve and a half percent to amanda's share of the wrongful death verdict her proportion of the wrongful death for and we'll agree to remove her if that's the vehicle that the court decides the last thing i'd say i this we're asking that the court that this court reversed judge gambro reverses decision on the j and reverses decision on a new trial reinstate the verdicts and award the plaintiffs their post judgment interest there's no question that the amount of this verdict was certain which is a requirement for post judgment interest and there's also no question that the defendants have had the benefit of that money since the time the judgment was entered on the verdicts so we've cited the a case of the court i believe the statute is clear that not only are is the plate if you're asking for a reversal of judgment gambr reinstatement of verdicts but also for post judgment interest thank you very much