THIRD DI VISI ON November 25, 2009

No. 1-07-3085

CHRISTOPHER RIES and ) Appeal from the MICHAEL

MARTINEZ, ) Circuit Court of ) Cook County. Plaintiff s-Appell ees, ) ) v. ) ) THE CITY OF CHICAGO, a Municipal ) Corporation, ) Honorable ) Susan F. Zwick, Defendant-Appellant. ) Judge Presi ding.

JUSTICE QUI NN delive

red the o pinion of t

he court : Defend ant, the Ci

ty o f Chicag o (City

), appea ls from a j ury

verdict awardin g plaint iffs, Christopher Ries and Michael Martinez, damages in the amount of $4,052,572 and $159,069 respectively , for injuries they sustained w hen a police car, driven by Demario Lowe, struck the car in which the plaintiffs were driving. I mmediately befor

e the accident, Lowe

had stolen the police car after being de

tained in the vehicle alone and unrestrained while the e ngine was running. In addition to the damag es award, the jury answered a special interrog atory finding that the City “eng aged in a course of action which showed an utter indifference to or conscious disregard for the safety

of others.” The City f

iled a posttrial motion seeking a judgment notwithsta

nding the verdict ( n.o.v. ), or in the alternative, a new trial on all issues. The trial court denied that motion and the City now appea ls. For the reasons set forth below, we find that the trial cou rt erre d in deny

ing the C ity’ s motion for

a judgme nt n.o.v.1-07-3085

-2- I. BACKGROUND On February

22, 2002, at approximately 2:15 p.m., Chicago police officer Sergio Oliva was in a grocer y store pa rking l ot at t he int ersect ion o f Kedz ie and Pratt Avenu es in C hicago investigating a multicar accident. When Oliva ar rived at the scene, he parked his squad ca r and exited the v ehicle, leaving the eng ine runni

ng, the key in the ig nition and

the Mars lights activate d. Witnesse s informe d Oliva tha t Lowe had cau sed an ac cident a nd was at tempting to flee the scene. Oliva put L owe in the back of his squad car, without first handcuffing him, and returned to talk to witnesses. Oliva’s squad car did not have a prote ctive barrier to keep detainees in the backseat, and L owe jumped into the driver’s seat of the car and f led the scene. Serge ant Edwa

rd Veth, Oliva’s s

upervisor, witnes sed L owe flee ing the p arking lot in Oliva’s squad car and began pur suit. Officer Charles Elmer heard a ra dio transmission stating that Oliva’s squad car had been stolen, and upon seeing the vehicle pass him, also began pursuit. While fleeing the pursuing officers, L owe hit multiple parked vehicles and then, a little over a mile from where the pursuit began, drove throug h a red light at the intersection of Pratt and Western Avenues at a high rate of spee d and struck the plaintiffs’ vehicle as they were stopped, waiting to make a left turn. Both plaintiffs suffere d multiple injuries. Their damages are not at issue in this case. On Januar

y 20 , 2003, pla

intiffs f iled a co mplaint in t

he circ uit court o f Cook Coun

ty against the City of Chica

go and Oliva alleging that the City , through Oliva, engage d in willful and wanton conduct by

failing to turn off the engine and re move the keys fr

om the ignition of the squad car, properly

restrain or handcuff L owe, place Lowe in a squad car that had a protective1-07-3085

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divider and lock or secure the vehicle’s re ar door. The City and Oliva filed sepa rate motions to dismiss pursuant to sections 2-615 and 2- 619.1 of the Illinois Code of Civil Procedure (735 I LCS 5/2-615 (West 2006) and 735 ILCS 5/2- 619.1 (West 2006)). The City arg ued, in part, that it was immune from liability under se ction 4- 102 of the Local Governme ntal and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/4-102 (West 2006)), which immunizes municipalities and employ ees fro m liability

for fail ure to pr ovide ade quate pol ice prot ection or service or failur e to prevent a crime, and section 4-107 of the Tort I mmunity Act, which immunizes municipalities and em ployees f

rom li abili ty for inj uries caused by the fai lure t o make an arre st or b y releasin g a person in custody (745 I LCS 10/ 4-107 (We st 2006)) . Oliva al so asser ted immunit

y un der those provisions as well as under section 4-106(b) of the Tort I mmunity Act, which immunizes municipalities and employees fr om liability for injuries inflicted by an escaped or escaping prisoner. 745 IL CS 10/4-106(b) (West 2006). The circuit court denied both motions, holding that in Doe v. Ca

lumet City

, 161 I ll. 2d 374 ( 1994), ou r supreme court held that p ursuant t o section 2-202 of the Tort Immunity Act (745 IL CS 10/2-202 (West 2006)), willful and wanton conduct in the execution and enforcement of the law is an established e xception to the immunities granted by the Act. Doe , 161 Ill. 2d at 389-90. On June 9, 2005, the City and Oliva filed a third-par ty complaint ag ainst Lowe and a counter claim ag ainst Ries

seeking contribu tion on the

ground s that Ries

was comp arative ly neglig ent for e

ntering an inter section w

hen it was

unsafe t o do so; fa

iling to ma

intain an adequa te lookout; failing to yield to an appr oaching police vehicle; failing to use his horn; fa iling to take1-07-3085

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action to avoid a collision; operating a vehicle under the influe nce of cannabis and cocaine; and operating a vehicle while canna binoids and cocaine were present in his blood. On December 1, 2005, plaintiffs filed a first amended c omplaint adding allegations regarding the police pursuit of L owe that preceded the accident. I n particular, the complaint alleged that the City , through its employee s and agents, engag ed in conduct exhibiting an utter indifference to or conscious reckless disregard for the safety of others by fa

iling to terminate a motor vehicle pursuit when the apprehension of the fleeing motorist outweighed the inherent danger created by

the pursuit to the general public, the speed of the pursuit was e xcessive, the volume of

pedestr ian and ve

hicular traffic endang ered the

travelin g public , the purs

ued vehic le was involved in a property damage accident, and the identity of the fleeing motorist would be easily asce

rtained; and otherwise consciously and recklessly

disregarded Chicago Police Department (CPD) rules and procedures. In their answer to the first amended complaint, the defendants raised an aff irmative defense of Ries’s compara tive negligenc e on the sa

me grou nds as the ir June 2005 counter claim for contribution. Defendants also raised affirmative de fenses under sections 4-102, 4-106, 4-107, and 8-101 of the Tort Immunity Act and the common law doctrine of public officials’ immunity

. Plaintiff s filed a m

otion for partial s ummary judgmen t on defe ndants’ a ffirmat ive defe nse of comparative negligenc e, which the trial court granted on July 13, 2006, finding no nexus between Ries’s drug use and the ac cident. The trial court also dismissed defendants’ remaining affirmative defenses without prejudice, finding as it previously stated, that pursuant to sec tion 2- 202 of the

Tort I mmunity Act (745 IL CS 10/2-202(West 2006 )), willf ul and wa nton cond uct is1-07-3085

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an established exception to immunity protection provided by the Act. Defendants’ subsequent motion to reconsider the summary judg ment ruling was denied. Before the trial started, the court denie d as untimely plaintiffs’ motion to dismiss the defendant’s counterclaim aga inst Ries for contribution. However, based on its earlier gr ant of summary judgme

nt on the affirmative defense of compara tive negligence, the court g ranted plaintiffs’ motion in limine to exclude testimony or inferenc e of comparative fault, to bar the parties from mentioning Ries’s alleged impairment or a lcohol or drug consumption, to bar mention of

whether Ries obser

ved or he ard any

lights, s irens, or

collisions

before or at the time of the inc ident, an

d to bar te stimony

from Dr. Brown, defenda nts’ exper t witness. The cour

t also denied defendants’ motion in limine to bar testimony or arg ument that any offic er violated any CPD general orders. At trial, plaintiffs presented the testimony of several Chicago police officer s, including the thre e direc tly i

nvolved in

the incid ent, as w ell as off

icers who subsequently

investig ated it. First, Oliva testified that on February 22, 2002, he was on detail at a People’s Gas facility when he left to put gas in his supervisor’s squad car. He wa s taking a shortcut through a gr ocery store parking lot when he was flagged down by a g roup of people surrounding a y oung African American man, who was later identified as Dema rio Lowe. Oliva testified that when he stopped and got out of his car to find out what was going on, he left the car running, with the key in the ignition and the Mars lights activated. He was told that Lowe had caused an accident and was trying to run a

way. Oliva testified tha

t Lowe was screa

ming “they

are try ing to kill me.” Oliva grabbed L owe and put him in the back of the squad car and turned a nd walked back to talk to the1-07-3085

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people who had flagged him down. Moments later, he saw Lowe driving away in the squa

d car. He testified that he forgot that the car did not have a partition between the front and back seats. Because his back was to the vehicle, he did not see how Lowe g ot into the front seat, but testified that he thought Lowe jumped over the backseat. In re sponse to q

uestions f rom plaint

iffs’ co unsel, Oli va testif ied that h e was fa

miliar wit h CPD General Order 91-11, entitled “Restraining A rrestees,” which states, in part, that “[a] person taken into Department custody will be restrained and transported in such a manner a s to prevent escape, and to provide for the safety of the person in custody a nd the officers involved.” The order also requires officers to “c arry a uthorized handcuffs” and when taking persons into custody to “condu ct[ ] a thoro

ugh sea rch” an d “ensur [e] that the

persons a re appr opriate ly r

estraine d to prevent escape or injury .” Oliva t

estified that he di d not sear

ch or han dcuff Lowe or ob tain identification from him because he did not have time to do so. Sergeant Veth, Oliva’s supervisor, testified that he too wa s on detail at People’s Gas and responded to the grocery

store parking lot after hearing Oliva on his car radio calling dispatch for assistance. Before entering the parking lot, Sergeant Veth saw some one driving off in Oliva’s squad car approximately 50 or 60 feet away

with the Mars lights on and traveling at approximately 60 to 80 miles per hour. Serg eant Veth informed dispatch that he was pursuing the vehicle and activated his Mars light and sirens. Serg eant Veth testified that he was the primary pursuit vehicle

and saw no other vehicles in pursuit. He also testified that he was driving at approximately 30 to 35 miles per hour and that he terminated the pursuit after less than 100 feet when he r

ealized that, give

n Low e’s spee d and the f act that L owe was d

isobey ing traffic1-07-3085

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signals, he could not catch him. Sergeant Ve th saw Lowe crash into the plaintiffs’ vehicle at the intersection of Pratt and Western. Sergeant Veth testified that he was familiar w ith CPD General Order 97-03-02, entitled “Motor Vehicle Pursuits,” which states, in part, that: “Members must be cog nizant of the fact that motor veh

icle pur suits are

a seriou s matter w

ith a pote ntial for death an d/or injur y to the offic ers, persons in the vehicle being pursued and/or innoce nt persons in the area and property damage. They must also r

ealize tha t they will not be

able to a pprehen d every motorist th ey

have pro bable cause to arrest. An offic er involv ed in a mot or vehic le pursui

t must be pr

epared to justify his actions.” Sergeant Veth testified that when he first saw Lowe flee ing in Oliva’s squad car he determined that apprehending Lowe outweighed any risk to public safety, but that he ter minated pursuit after approximately 50 to 80 fe et, upon determining that due to the high rate of spe ed, the character of the neighbor

hood, and the manner in which Lowe was driving, the benefits of apprehending L owe were outweighed by the risks posed to him, the general public and the suspect. Officer Charles Elmer testified that he was on duty about a block away

from the intersection of Pratt and California Avenues when he hea rd Oliva’s radio transmission that someone had stolen a squad car and was hea ded eastbound on Pratt. Officer Elmer turned westbound on Pratt and saw Lowe’s ve hicle heading toward him at a high ra te of speed. Officer Elmer made a U-turn, activated his Mars light, and star ted following Lowe’s c ar. Officer Elmer did not noti fy

his dispatc

her that he was in

pursuit. B y th e time Of

ficer E lmer rea

ched Cal ifornia Avenue, he had lost sight of L owe’s vehicle. Officer Elmer continued to dr ive east on Pratt and1-07-3085

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next saw the stolen police car at the site of the collision. Officer Elmer testified that he did not see Officer Veth pursuing L owe. In response to questions from plaintiffs’ counsel, Officer Elmer acknowledged that the Genera l Order 97-03-02 prohibits officers in marked units who are not part of a pursuit fr om followi

ng a ve hicle wit h Mars lig

hts illumina

ted and r equires an offic er to notify the dispatcher w

hen he or she initiates or terminates pursuit of a fleeing suspect. Lieutenant John Szmy, the wa tch commander, testified that he responded to the accide nt scene. He testified that when investigating traffic accidents, police officers frequently plac e the driver in the back of the squad car without handcuf fs. However, he acknowledg ed that if Oliva arrested Lowe

and put him in the back of the squad car without restraining him, he violated General Order 91-11, but testified that L owe was not placed in custody and that Oliva did not believe Lowe was a

n arrestee. Lieutenant William Frapolly testified that as part of his duties as field lieutenant in the 24th District, he reviewed reports of the Febr uary 22, 2002, incident. I n response to questions from plaintiffs’ counsel, Lieutena nt Frapolly testified that Ge neral Order 91-11 states that persons in custody should be re strained and that Oliva admitted that he failed to secure L owe, who was under arrest. L ieutenant Frapolly also testified that although Sergeant Veth said that he stopped pursuing Lowe, he believed Sergeant Veth continued the pursuit in violation of Gene ral Order 97-03-02. Plaintiff s, Martinez and Ries, t

estified that Ries’ s car wa s stopped i n the south

bound, le ftturn lane on Western Avenue, waiting to turn east on Pratt when they were struck by

Lowe on the passenger side. Just before being hit, Martinez saw L owe’s vehicle traveling at approximately 601-07-3085

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miles per hour and shouted “look out.” Ries testified that he did not hear or see the a pproaching police car until their car was struck. Each side presented expert witnesses on police procedur e. Plaintiffs’ expert, John Bowman, opined that Oliva’s conduct caused the squad c ar to be stolen. He testified that Oliva failed to comply with Gene ral Order 91-11 when he placed L owe under arrest and put him in the back of the squad car without restraints, while the eng ine was running and the key s were in the ignition. As to the pursuit, Bowman testified that Sergeant Veth wa s the primary cha se vehicle, that he was driving at 60 to 80 miles per hour, that he chased L owe for one minute and five seconds and did not terminate the pursuit. Bowman testified that it was appropriate f or Sergeant Veth to begin the pursuit but he should have stopped after Lowe hit parked cars, because Ge neral Order 97-03-02 says that pursuits should be terminated when the vehicle is involved in any property da

mage or personal injury

accident. Bowman stated that if a pursuit is terminated, the fleeing suspect will stop “because he doesn’ t want to drive around the City in a stolen police car” and so “[y

]ou assume

the guy is going to bail out o f the ca

r and tak e off on f oot.” Bowman cou

ld not say for sure

that the accident would not have occurred if the pur suit had been terminated, but said that “it would have certainly been much less likely that it would have occurred.” The City ’s expert, Russell L ane, sta ted that O liva acte d appropriately in try ing to se parate Lowe from the crowd by putting him in the squad car so that he could investigate the incident. He testified that it is not unusual for a police officer to put someone in the back of a squad car after a traffic accide

nt without handcuffing him and that although Oliva did not follow Genera l Order 9 1-11, he

acted r easonab ly. He also te stified that it is not u nusual for office

rs to leav e their1-07-3085

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cars ru nning wh ile invest igating a traff ic acci dent and t

hat Oliva did not act inappro

priately in doing so because he was very close to his car. He stated that theft of a police ca r is a “very

rare” occurrence and that Oliva did not have re ason to believe that Lowe would steal the c ar. Lane further te stified that Sergeant Veth acted appropr iately in initiating the pursuit and in continuing pursuit even after L owe collided with parked vehicles, because the ve hicles were unoccupied and there was a need to a pprehend Lowe a

nd get the squad car back. He also opined that continuing the pursuit was not the cause of the accide nt because “there was no way of knowing what Mr. Lowe

was going to do” if the pursuit was terminated. F urthermore, Lane stated that given Lowe ’s speed, by the time Ser geant Veth would have terminated the pursuit and Lowe observed that the pursuit had ended, he would have already driven through the intersection and collided with plaintiffs, although he acknowledge d that this conclusion was speculative. The City made an off

er of proof with regard to the testimony of forensic pathologist Dr. Daniel B rown. Dr . Brown would test

ify that Ries’ s cocaine metabo lite leve l and can nabinoid i

n his blood a

t the time o f the ac cident wo uld have r

esulted in impairme

nt that mad

e Ries les s likely to observe an approaching police c ar and avoid driving into its path, slowed his reaction time, and made him less lik

ely to hear s irens or

a collision with car

s in the vic inity . Dr. Br

own would testify that Ries’s impairment was a c ontributing cause of the accident, but also that he had no information that Ries acted in an impaired state or was doing any thing improper. On March 1, 2007, the trial court stated that it was granting a directed verdict in Oliva’s favor, in part, based on section 4-107 of the Tort I mmunity Act, stating, “I

nsofar as y

ou have predicated y

our case on the escape or the allowa nce of an escape *** that’s immunized under the1-07-3085

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Tort Immunity

Act. The defendant’s motion is well founded with respect to Oliva’s conduc t of the arrest or the failure to arrest or f ailure to allow an escape of 4-107 is well founded. And I ’m granting the [directed verdict] on that.” The c ourt also stated that it was directing a verdict for Oliva on the claims r

egard ing lea ving the key in the ca r and the engine running because that “in and of itself does not arrive at willful and wanton conduct.” The court stated that because Oliva was immune , the City

was also i

mmune pur suant to se ction 4-1 07 of the Act. Desp ite this finding, however, the court issued an order stating that it was deny

ing the City’s motion for a directed verdict against plaintiffs in all respec ts. The court did, however, grant the City a directed verdict on its third-party c omplaint for contribution against Lowe a nd granted Ries’s motion for a directed verdict on the City ’s counterclaim for contribution. During the jury

instructions conference, the court stated that beca use of the directed verdict in Olivia’s favor, plaintiffs could not argue in closing that Oliva’s conduct was willful and wanton. However, the court noted that the plaintiffs’ theor y in the case ha

d been that the “manner in which the police handled this incident was willful and wanton.” The refore, the court subsequently g ave plaintiffs instruction No. 103, over the City’ s objection. Instruction No. 103, in part, a sked the j ury

to deter mine if the

City , throug

h its employ

ees, wa s willful a

nd wanton

in one or more way s, including the following conduct by Oliva: failing to prevent the misappro priation o f a polic e vehicl e; failin g to prop erly

investig ate a tra

ffic ac cident; f

ailing to properl y c onduct a h

it and run investig ation; fa

iling to prevent t

heft of a police ve hicle; fa iling to prevent the unauthorized use of a police vehicle; and fa iling to properly e

xecute or enforce the law during a traffic acc ident. Instruction No. 103 also asked the jury to determine whether the1-07-3085

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City was willful and wanton in failing to terminate a motor vehicle pursuit when apprehension of the fleeing motorist was outweighed by the inherent danger crea

ted by the pursuit to the g eneral public; when the speeds of the pursuit exceeded posted speed limits and the speeds and maneuvering practices eng aged therein caused an inhe rent danger to the gene

ral public; when the volume of pedestrian and vehicular traffic e ndangered the safety

of the traveling public; after the fleeing vehicle was involved in a proper ty damag e accident; and after the fleeing vehicle violated traffic signs or signals. The jury re

turned a verdict for the plaintiffs. Damag es were awarded in the amount of $4,052,073 for Ries and $159,069 for Martinez, and the jury apportioned 35% of the fault to the City and 65% to

Lowe . Answer

ing a spe cial inte

rroga tory , the jury

also foun d that the City engaged in a course

of conduct that showed an utter indifference to or conscious disregard for the safety of othe

rs. The court entered judgment on the ver dict and awarded costs of $1,775. The trial cou rt denie d the City ’s posttri al motion f or a judg ment n.o.v. or in the alternative for a new trial. The City now appea ls. II. AN ALYS IS On appea l, the City contends that it is e

ntitled to a

judgmen t n.o.v. or, alte

rnative ly, that a new tria l should be

grante d. Beca

use we f ind that a judgmen t n.o.v. is warranted in this case, we do not address whether a new trial should be gr anted. A motion for judgme

nt n.o.v. should only be gr anted in those limited cases where all of the evidence and the inference s therefrom, viewed in the light most favorable to the nonmoving party , so overw

helming ly f

avors the movant tha

t no contr ary verdict based on that evid ence co uld1-07-3085

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ever stand. Thornton v. Garcini , 382 Ill. App. 3d 813, 817 (2008). When ruling upon such a motion, the court does not weigh the evidence or make de terminations of credibility and must not substitute its judgment for that of the jury mer ely beca use there are other inferenc es or conclusions that the jury could have drawn or because there ar e other results that the court believes are more reasonable. Thornton , 382 I ll. App. 3d at 817. “ ‘ The cour

t has no ri ght to enter a judgmen t [notwithsta

nding the verdict ] if there is any evidenc e, toge

ther with reasona ble inferences to be drawn theref rom, demonstrating a substantial factual dispute, or where the assessment of credibility of the witnesses or the determination regarding conflicting evidenc e is decisive to the outcome.’ ” Thornton , 382 Ill . App. 3d at 8 17 quo ting Maple v. Gustafson , 151 Ill. 2 d 445, 454 ( 1992). A t rial cou rt’s ruli ng on a motion for

judgmen t n.o.v. is subject to a de

novo standard of review. Thornton , 382 I ll. App. 3d at 817. Whe

n the tria l court ha s errone ously denied a motion for judgmen t n.o.v. , we will reverse the verdict without a remand. Petre v. Cardiova scular Consultants, S.C. , 373 Ill . App. 3d 929 , 939 ( 2007) , citi ng Maple v. Gustafson , 151 Ill. 2d 445, 453 (1992). The City contends that it is e

ntitled to j udgmen

t n.o.v. because

it is immune f

rom liabil ity for the conduct of Oliva and the two officers who pur sued Lowe pursuant to sections 2-109, 4- 106(b), 4-107 and 4-102 of the Tort I mmunity Act. The City

also argues that the trial court erre d in permitting the jury to consider whether the City could be held liable for willful and wanton conduct under section 2-202 of the Act. The trial court’ s instructions to the jury reg arding the City’s liability

for the willful and wanton conduct of its employ ees can be divided into two categories: Oliva’s conduct in failing to pr event Lowe from stea

ling the squad car and the police1-07-3085

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officers’ conduct in pursuing Lowe. We will address each in turn.

A. City’s I

mmunity for Office

r Oliva’s Conduct First, a s to Oliva’ s conduc t, the City argue s that it is e

ntitled to a

judgmen t n.o.v. pursuant to section 2-109 of t

he Tort I mmunity Act. Sec tion 2-109provides that “[a] lo cal publi c entity is not liable for an in jury resulting from an a

ct or omiss ion of its e

mploy ee wher e the emp loy ee is not liable .” 745 I

LCS 10/ 2-109 (We st 2006). T

he City asserts t hat plain tiffs’ th eory

of City liability in this cas e was responde at superio r and that because the trial court ruled that Oliva was immune from liability and that his conduct was not willful and wanton, the City , as his employer, should als o not be fo

und liable . For sup

port, the City cites Kirk v. Mic

hael Ree se Hospita

l & Medical Center , 117 I ll. 2d 507, 5 33 (1987) , which he ld that “[w ]here the agent i s not guil

ty, it

necessa rily follows th at the pa

rty for whom he acted , the maste r, cannot be guil

ty. ” The City

also asserts t hat beca use the pl aintiffs

did not app eal the d

irected verdict in Oliva’ s favor, the City is entitled t o a judg ment n.o.v. on claims involving his conduct. See, e.g. , Bausback v. K mart Corp. , 194 Ill. App. 3d 325, 330-31 (1990) (finding that the trial court erred in deny ing an employ er’s moti on for jud

gment n.o.v. after the jury exonerat ed individ ual employe es on cla

ims of false imprisonment and battery ). Plaintiff s contend , howeve

r, that the City is not entit

led to a ju dgment n.o.v. because the trial court only issued a pa rtial directed verdict in Oliva’s favor and did not addre ss all of the charges related to Oliva’s conduc t. In particular, the plaintiffs asse rt that the circuit court’s directed verdict only

addressed charges re lated to failing to make an arrest or re leasing a person in custody

, which is a

ddresse d in sectio

n 4-107 of

the Act, a

nd did not a

ddress charge s relate d to1-07-3085

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leaving the key

in the ignition. As plaintiffs acknowledge, the rec ord shows that the trial court’s statemen ts about th e extent a

nd effe ct of the

directe d verdict in Oliva’ s favor w ere unc lear, wi th the court stating at times that it was directing a verdict under sections 4-106 and 4-107 of the Act and at other times s tating that it was only under se ction 4-1 07 and als o stating that it cov ered al l of Oliva’s conduct including his leaving the key s in the ignition, while at other times stating that it only addressed his failure to arrest Lowe. Howe

ver, plaintiffs assert that despite this lack of clarity, the trial c ourt’s decision to permit the plaintiffs’ jury instruction to include charges related to Oliva’s conduct shows that the court did not enter a direc ted verdict on the charges related to Low e’s takin

g of the car, an d theref ore the Ci ty is not entitle d to a judg

ment n.o.v. on that ground. We disagree. The court’s directe d verdict order stated: “The court g rants a directed verdict in favor of Sergio Oliva and ag ainst plaintiff and for costs.” It did not limit the directed verdict to only cer

tain aspects of Oliva’s conduct nor did it state that it was only a partial directed verdict . Althoug

h the tria l court’s in-cour t stateme nts reg arding

the dire cted ver

dict wer e less than clear, the court did plainly assert that, afterward, Oliva was not a par ty to the case. The court stated more than once that Oliva is “no longer a party to this case”

and that “Oliva has been dismissed o

ut of this c ase,” a

nd that for that re ason, pla intiffs c ould not ar

gue to the jury

in closing that his conduct was willful and wanton. While plaintiffs argue that the tria l court’s inclusion of Oliva’ s conduc t in the jur y in struction s is evide

nce that the dire cted ver

dict was only partial, it actually shows the tria l court erred in issuing its jury instructions. Once the trial court found tha t Oliva wa s no long er a par ty to the case because he was imm

une from liability and his1-07-3085

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conduct was not willful and wanton, the court should not have issued an instruction that permitted the jury to find the City liable based on his conduct. Pursuant to section 2-109, a local public entity, like the City cannot be held liable for an injury resulting from an act or omission of an employee

where the employ

ee is not liable. 745 IL CS 10/2-109 (West 2006). Therefore, the City cannot be

held liab le for wi llful and wanton con duct in re lation to O liva’s co nduct. B. City ’s Im

munity for Polic e Conduct

During Pursuit We now turn to the conduct of the two police officers who pursued L owe up to the point when he crashed into plaintiffs’ vehicle. The City contends that it is immune from liability for their conduct pursuant to se ction 4-1 06(b) of the Tort I

mmunity Act, whic

h provide s immunity

to public entities and public employees f or “[a]ny injury

inflicted by an esc aped or escaping prisoner .” 745 I

LCS 10/ 4-106(b) (West 2006 ). The City

also arg ues that the trial c ourt err ed in letting the case go to the jury on the basis that the City could be held liable under section 2-202 of the Act for willf

ul and wa nton cond uct beca use sect ion 2-202 d

oes not limi

t the abso lute immunity provided by

section 4-106 of the Tort Immunity Act and could not apply in the instant case because the case we

nt to the jury only

against the City a

nd not an individual City employ ee. The issue of section 4-106 immunity is addre ssed first and then we address whether section 2- 202 provides an exception to that grant of immunity

. Plaintiffs assert that section 4-106 does not immunize the City from liability for the police officers’ failure to terminate pursuit. Plaintiffs assert that their lawsuit wa s not premised on the injuries c aused by

an esca ping pri soner but

rather by t he police office rs’ fail ure to te rminate pursuit, which caused Lowe to drive recklessly a

nd crash into them. Whether or not Lowe wa s1-07-3085

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an escaped prisoner was immaterial, plaintiffs contend; he drove recklessly

because he was being chased by the

police, not because he was a prisoner. We disag ree. In deter

mining whether an arrest has occurred and, there fore, whether a person is in custody, this court must determine whether, in light of the surrounding circumstanc es, a reasonable innocent person would have considered himself free to leave. People v. Washington , 363 Ill. App. 3d 13, 23-24 (2006). Illinois courts consider the following fa ctors in determining whether an arre st has occurred: (1) the time, place, length, mood, and mode of the encounter between the defendant and the police; (2) the number of police officers prese nt; (3) any indicia of f

ormal arrest or restraint, such as the use of handcuffs or drawing of guns; (4) the intention of the officers; (5) the subjective be lief or understanding of the defendant; (6) whe ther the defendant was told he could refuse to a ccompany the police; (7) whether the defendant wa s transported in a police car; (8) whether the defendant was told he was free to leave; (9) whe ther the defendant was told he was under ar rest; and (10) the language used by

officers. Washington , 363 I ll. App. 3d at 24. No s ingle f

actor is dispositive, and in each case the court considers all of the circumstances surrounding the detention. Washington , 363 Ill. App. 3d at 24. In this case, Oliva placed L owe in the back of the squad car to investiga te allegations that Lowe was try ing to fl ee the sc ene of a

n accide nt. Lowe clea

rly did not con sider hims elf fre e to leave as he then decided to steal the squad ca r in order to escape and was still try ing to escape when he crashed into plaintiffs’ car. I n addition, the record shows that plaintiffs agreed tha t Lowe was under a

rrest when he was placed in the back of the squad car, by

eliciting testimony at trial from Oliva and their expert witness to show that Oliva violated General Order 91-11,1-07-3085

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entitled “Restraining Arrestees,” by failing to properly

restrain a person taken into CPD custody

. This conduct falls within the meaning of section 4-106 of the Tort I mmunity Act, and theref

ore, under the plain language of that provision, the City is immune from liability injuries inflicted by Lowe as an esca

ped or escaping prisoner. Plaintiffs contend that basing the City’ s liability for injuries that result from an improper pursuit on

whether or not the

driver o f the ca

r being chased i s a prisoner would improper ly expand the immunity provided by section 4-106. Plaintiffs cite Fatiga to v. Villa

ge of O lymp ia Fields , 281 Ill. App. 3d 347 (1996), for support. I n Fatiga to , plaintiffs sued the municipality and two police

office rs alleging that

the offic ers wer

e guilty of willfu l and wan ton condu ct when, in responding to a domestic dispute, they ordered the husband to leave the house and, while driving intoxicated, he crashed into plaintiffs’ automobile. Fatiga to , 281 Ill. App. 3d at 348-50. Rely ing

on Doe , this court found that police officers can be held liable for injuries proximately caused by their willful and wanton conduct in the enforcement and execution of the law under section 2- 202. Fatiga

to , 281 Ill. App. 3d at 354. Plaintiffs contend that pursuant to the City ’s view of section 4-106 of the Act, if that driver had been an e scaped prisoner, the plaintiffs would not be able to r ecover and the le gislatu

re did not intend suc

h a resul t becaus e the off

icer’s c onduct in that scenario would be separate from the drive r’s "escaped prisoner" status. Plaintiffs’ reliance

on Fatiga to , however, is misplaced, first because it did not involve section 4-106(b) re garding escaped or escaping prisoner s and secondly be cause, as will be discussed below, Doe , on which the Fatiga to court relied, was limited by our supreme court in DeSmet v. County of Rock I sland , 219 Ill. 2d 497 (2006).1-07-3085

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Section 2- 202 of the

Tort I mmunity Act provides that “ [a] public e mploy ee is not li able 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 (West 2006). The City asserts that the trial court erred in permitting the jury to find the City liable under section 2-202 be cause (1) courts have rejected the idea that section 2-202 provides a willful and wanton exception to other immunities i

n the Act or otherw

ise provi des a ca

use of ac tion for w illful and wanton c onduct; and (2) section 2-202 only applies to municipal employees, not to public entities, like the City

. The argument that section 2-202 crea tes a willful and wanton exception that can limit the absolute immunities a

fforde d by

other pr ovisions of

the Tort I

mmunity Act deri ves prima rily from Doe v. Ca

lumet City

, 161 Ill. 2d 374 (1994), and its progeny . In Doe , an intrud er broke into Jane Doe’s apartment in the middle of the night and threatene d to rape and kill her. Doe , 161 I ll. 2d at 381. Jane pleaded with the intruder not to attack her in front of her two childre n. Doe , 161 Ill. 2d at 381. As the intruder directed the children out of the bedroom, Jane ran out the front door of the apartment. Doe , 161 Ill. 2d at 381. The intruder locked himself inside the a partment with the children. Doe , 161 Ill. 2d at 381. When the police arrived, Jane told Office r Horka what happened, explaining that her children were still in danger inside the apartment. Doe , 161 Ill. 2 d at 381-8 2. Despite Jane’s an d her nei ghbors ’ repea

ted requ ests, Off icer Hor ka refu sed to break down the locked door because he did not want to be responsible for the property damage. Doe , 161 Ill. 2d at 382. Other officer s restrained Jane and prevented the neighbors from breaking down the door. Doe , 161 Ill. 2d at 382. Officer Hor ka continued to refuse to enter the apartment, despite direct orders from his supervisor, knowledg e that both the rear balcony and1-07-3085

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door were ajar, and an offe r by para medics for a “lock pick,” locksmith and ladder. Doe , 161 I ll. 2d at 382-83. Eventually, a police department investigator arrived and disc overed that the back door of the apartment was unlocked. Doe , 161 I ll. 2d at 38 3. Upon en tering the apar tment he found that the intruder had repeatedly raped Jane’s daughter and had choke d and threatened her

son. Doe , 161 Ill. 2d at 383. Ja ne , o n b eh al f o f h er se lf an d h er ch il dr en , s ue d C al um et Ci ty, Officer Horka, and severa l other officers charging

them with negligence, intentional infliction of emotional distress, and gender discrimination. Our supr eme cour t revers ed the tr

ial cour t’s orde r gran ting the municipa lity ’s motion to dismiss, recognizing a willful and wanton exception to the immunity other wise provided by section 4-102 of the Act. Doe , 161 Ill. 2d at 385-86. The court held that whe re the complaint repeatedly

alleged that Officer Horka was in control of the entire crime scene, including the actions of the other officers, a rational trier of fact could find that his conduct was willful and wanton, thereby

excepting him from immunity. Doe , 161 Ill. 2d at 390-91. However, the allegations were insufficient to crea te a jury question re garding willful and wanton conduct by the other officers who had responded to the sce ne. Doe , 161 I ll. 2d at 39 1. Subsequ ent case s, relying on Doe , similarly held that section 2-202' s exception for willful and wanton conduct prevailed over the immunity pr ovided by section 4-102 of the Act. See Fatiga

to , 281 Ill. App. 3d 347 (c itin g Doe to find that section 2-202's exception for willful and wanton conduct prevailed over the immunity

afford ed by section 4 -102); Ozik v. Gramins , 345 Ill. App. 3d 502 (2003) (holding that Doe abrogated cases relied on by police officers to support their argument that section 4-102 provided blanket immunity over section 2-202's willful and wanton exception).1-07-3085

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The City arg

ues that section 2-202's willful and wanton exception has only been applied to section 2-102 of t

he Tort I mmunity Act and there is no

basis to a pply it to the ab solute immunity provided by s ection 4- 106(b) r

egard ing esc aped or e scaping

prisoners. We agr

ee with the City. Even if we ag

reed with plaintiff’s position, we would hold that section 2-202's willful and wanton exception would not apply to section 4-106( b) under the facts of this case. The holding in Doe an d i ts pr og en y wa s r ec en tl y li mi te d b y DeSmet v. County of Rock Island , 219 Ill. 2d 497 (2006). I n DeSmet , a passing motorist witnessed a car drive off the r oad and into a ditch and reporte d the acc ident by

telephone, but poli ce and r escue pe rsonnel f ailed to respond, and the driver of the car died. DeSmet , 219 I ll. 2d at 50 0-02. On a ppeal to o ur supre me court, th e defen

dants, wh ich inclu ded seve ral loca l gover nment ent ities and t heir emp loy ees, contended that they

did not owe a duty to the plaintiff or, in the a lternative, were immune under section 4-102 of the Act. DeSmet , 219 Ill . 2d at 500. T he pla inti ff, ci ting Doe , asserted that defendants engage d in willful and wanton conduct pursuant to section 2-202 of the Act and, therefore, were not affor

ded immunity under section 4-102 of the Act. DeSmet , 219 Ill. 2d at 515. Our supreme court declined to address whether defendants owed the plaintiff a duty and instead d isposed of

the case by a naly zing the i mmunity issue. The

court dis tinguish ed the fa cts from Doe , noting that in DeSmet: (1) the police did not respond to the scene; (2) even if the police had responded, they would not have been “enforcing or executing” the law; and (3) the police did not exert control over the scene and therefore did not alter the circumstances, for better

or worse. DeSmet , 219 Ill. 2d at 520-21. As a result, the court found that because the police were1-07-3085

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not executing or enforcing the law and did not exerc ise control over the injured driver, section 2- 202 did not operate as an exception to section 4-102 immunity. DeSmet , 219 Ill. 2d at 521. This court recently

applied DeSmet

in Antho ny v. Cit y of Chica go , 382 Ill. App. 3d 983 (2007), w here the plaintiff s sued the City for dama ges re sulting f

rom patro ns’ deat hs at a nightclub after a disturbance that resulted in a pileup in the stairwell. The plaintiffs alleged that the City engag ed in willf

ul and wa nton cond uct by allowing an excess ive numbe

r of peop le to enter the nightclub despite knowledge tha t it was structurally unsafe , lacked adequate exits, and was operating in violation of occupancy limits, municipal ordinances, and court orders and by undertaking the police duty of crowd control but then failing to extricate trapped patrons. Anthony , 382 Ill. App. 3d at 986. On interlocutory appeal, this court considered, inter alia, whether section 2-202 created an e xception to the immunity afforded by section 4-102 of the Act. Anthony , 382 Ill. App. 3d at 985. The court not ed that DeSmet

limited the conjunctive applicability of the willful and wa nton exception in section 2-202 to section 4-102 of the Act and the unique facts present in Doe. Anthony , 382 Ill. App. 3d at 991. The DeSmet court emphasized that the conduct of the officer who controlled the sce ne and prevented others from rescuing the endange

red children was a distinguishing fact critical to Doe ’s holding. Anthony , 382 Ill. App. 3d at 995. The Anthony court fo und that th e plaintif

fs faile d to alleg e facts sufficient to show that the City exercised the r equisite degree of control over the sc ene in a manner that altered the status quo to the club patrons’ detriment. Anthony , 382 Ill. App. 3d at 995. The court noted that there were no alleg ations, as there were in Doe , that the police restrained or prevented any one from rendering assistance. Anthony , 382 Ill. App. 3d at 995.1-07-3085

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Therefore, the court concluded that se ction 2-202 did not apply as an e xception to section 4-102 immunity. Anthony , 382 Ill. App. 3d at 995. In this case, the City , relying on DeSmet

and Anthony , asserts that plaintiffs cannot invoke section 2-202 as a basis to hold the City liable for the police conduct in pursuing Lowe, because no evidence was prese nted showing that the officers were in c ontrol of the scene when the plain tiffs we re injure d or prev ented others fro m assisting , which th e City asserts i s requir

ed in order to invoke section 2-202. Plaintiffs argue, howeve r, that this case is distinguishable from DeSmet , because it involves active pursuit rather than a failure to come to the scene. Given that the police were chasing Lowe, they we re exercising some control over the scene, pla intiffs contend. Plaintiffs also assert that neither section 2-202 nor DeSmet states that section 2-202 only applies when the police actively pre

vent other people from rendering a ssistance. We find, pursuant to DeSmet , that because the police officers who pursue d Lowe did not control the scene at the intersection where the pla intiffs were injured, the plaintiffs cannot invoke section 2 -202 as a

n exception to section 4-106 imm unity . First, t

he plaint iffs are correct in asserting that section 2-202 is not limited to cases where the police pre vented others from rendering assistance, although suc h actions by the police would pr ovide strong evidence that they are in control of the scene. I n Doe , Officer Horka’s refusal to allow other s to provide assistance was determinative of the issue of control of the scene. Doe , 1 61 Ill . 2 d a t 3 90 -9 1. Su bs eq ue nt ly, in Anthony , this court held that the police did not exercise the requisite degree of control over the scene, noting that there were no a llegations that the police restrained or preve nted someone from rendering assistance. Anthony , 382 Ill. App. 3d at 995. However, be cause there could be1-07-3085

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instance s in which t

he police are in c ontrol of

a scene even thou

gh they are not a ctively preventing others from assisting, we re ject the City’s assertion that this is a require ment for invoking section 2-202. That said, we find that in this case, there is not adequate evidenc e of police control of the scene of the accident in order to invoke section 2-202 of the Act. Plaintiffs contend that the police officers’ pursuit inherently means that they contr

olled the scene of the accident. Howeve r, the police were not present at the intersection of Pratt and Wester n at the time of the accident and they had no dir

ect cont rol over the plain tiffs, as Office r Horka did in Doe. Therefore, we find that section 2-202 of the Act does not apply here as an exception to section 4-106 immunity. The City also cont ends that section 2 -202 of the Act doe s not apply here be cause the case went t o the j ury only again st th e Cit y and not a ny indiv idual City emp loyee. "Th e plai n langu age of section 2 -202 of the Act states that a " ' public employee

is not liabl e for his

act or om

ission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton cond uct.' (Emphas is added.) 7 45 ILCS 10/2-202 (W est 2006)." Anthony , 382 Ill. App. 3d at 995-96. This court has held that section 2-202 does not apply as an exception to section 4- 102 of the Act when the complaint did not name an individual public employ ee as a defendant. Barne s v. Chica

go Housi ng Authority , 326 Ill. App. 3d 710, 719 (2001). Plaintiff s first as sert that Barnes does not apply here because the discussion of section 2- 202 was mere dicta . This argument is of no consequence, howeve r, since subsequent opinions issued by this court have c oncurred with Barnes on this issue. See Ware v . Cit y of Chica go , 375 Ill. A pp. 3d 574, 581 (2007 )(“[section 2-202 ] explicitly address es public employees , not1-07-3085

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gover nment ent ities such as the City

” (empha sis in original)); Anthony , 382 Ill. App. 3d at 995- 96 (“The plain language

of section 2-202 does not purport to apply to public entities , such as the City.” (emphasis in origina l)). Plaintiff s also ass ert that Barnes is distinguishable from this case because they are suing the City under responde

at superio r while the plaintiffs in Barnes sued the Chicago Housing Authority for institutional neglig ence and did not plead that specific acts by CHA employees resulted in damages. Beca use under responde

at superio r the City would be liable for the willful and want on conduc

t if one of its employ

ees is lia ble, plai ntiffs as sert that

it is more r

easonab le to find that the legislature intended section 2-202 of the Act to cove r municipal entities and municipa l employ ees, eve n if only one is named. Fur

ther, pla intiffs a ssert tha

t the leg islature

did not intend to limit section 2-202 to situations where the municipal employee could be identified. We disagree. As this court noted in Ware , section 2-202 does not create a basis for liability. Ware , 375 Ill. App. 3d at 581. I nstead, willful and wanton conduct is only c onsidered, after it has been determined that the plaintiff is owed a duty by the municipality, in analyzing whether it is liable

for a br each of that duty or wheth er it is immu

ne under the Tort I

mmunity Act. Ware , 375 Ill . App. 3d at 5 81, ci ting Village of Bloomingdale v. CDG Enterpr ises, Inc. , 196 Ill. 2d 484, 490 (2001). In the instant case, the plaintiffs name d Oliva and the City as defe ndants. The two officers who were involved in the pursuit of L owe were never named as de fendants. However, before the case went to the jury , Oliva was dismissed pursuant to the trial court’s directed verdict, leaving the City

as the only named de fendant. Because the City was the only re

maining1-07-3085

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defendant and section 2-202 of the Act does not apply to entities, it cannot be used to uphold a ju dg me nt ag ai ns t t he Ci ty.

III. CONCL USION

Pursuant t

o section 2-109 of t

he Tort I mmunity Act, “[a] lo cal publi c entity is not liabl e for an injury r

esulting from an act or omission of its employ ee where the employ

ee is not liable.” 745 I LCS 10/

2-109 (We st 2006). T

herefore, aft

er the tr ial cour t grant ed a dire cted ver

dict in favor of Oliva, it s hould not ha

ve permi tted the ju ry to conside

r whethe r the City engag ed in willful and wanton conduct based on Oliva’s actions, as the City was immune from liability. The City was also immune from liability pursuant to section 4-106 of the Tort Immunity Act for the conduct of the police officers who pursued L owe after he stole the police squad car, a nd the trial court erred in permitting the jury to consider whether the City could be held liable for willful and wanton conduct under section 2-202 of the Act. For the reasons set forth above, we r everse the order of the trial court deny ing the City’s motion for

judgmen t n.o.v. Reversed. MURPHY, P.J. and COLEMAN, J., concur.1-07-3085

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