Find Legal Information

SECOND DIVISION

December 4, 1998

Nos. 1-96-4448, 1-97-1411, consolidated

JUSTICE GORDON delivered the opinion of the court:

In April 1991, John Crocker, a minor, shot and killed plaintiff's decedent, Joseph Gaffney(also aminor) at a party. The gun John used belonged to his father, Daniel Crocker, a police officerwiththe City of Chicago (the City). Gaffney sued Officer Crocker for negligent storage of his weaponand attempted to hold the City liable under a respondeat superiortheory. The jury returned averdict finding both defendants liable and assessing damages of $1.575 million. The juryanswered a special interrogatory by a verdict of 10-2 (which all parties agreed to accept) thatOfficer Crocker was acting within the scope of his employment when he stored his weapon.

The circuit court denied Crocker's motions for judgment notwithstanding the verdict (JNOV)andfor a new trial but granted the City's motion for JNOV on the grounds that Daniel was not actingwithin the scope of his employment at the time he stored the gun at his home. The court alsoconditionally granted the City a JNOV on immunity grounds but denied its motion for judgmenton another special interrogatory and its conditional motion for a new trial. Gaffney appeals theJNOV, and the City conditionally cross-appeals the denial of its motion for a new trial. For thereasons given below, we reverse and remand.

PERTINENT SUBSTANTIVE FACTS

A number of facts pertinent to this appeal are not in dispute. On April 12, 1991, DanielCrockerwas employed as a patrolman with the Chicago Police Department (Department). He wasassigned to the Department's court section, where his duties entailed ensuring that officers andother witnesses appeared for scheduled court appearances and approving officers' time slips forsuch appearances. Crocker was required to carry a gun while at work, and he did carry a .38caliber revolver. He had purchased the weapon in 1976 with his own money, but the City issuedhim bullets free of charge.

On April 12, Officer Crocker left work after his shift ended at 3:30 p.m. and returned home. When he arrived at home he unloaded his revolver and placed it and the bullets in an unlockedmetal cabinet near the stairway leading to his basement. The revolver was not locked or in anyway disabled. Crocker's son, John, took the revolver and bullets from the cabinet atapproximately 6:00 p.m. and brought them to a party. At the party, shortly before 11:00 p.m.,John shot Joseph Gaffney with the weapon. John was adjudicated delinquent for theshooting.⁽¹⁾

At trial, Gaffney's theory of liability with respect to the City⁽²⁾ was that as Daniel's employer, theCity was liable for his negligence under the doctrine of respondeatsuperior. Accordingly, sheintroduced evidence to show that Crocker was acting in the scope of his employment when hestored the gun. On this issue her two main witnesses were Dr. James Fyfe and Officer Crocker.

Dr. Fyfe, a professor of criminal justice at Temple University, was allowed to testify as anexpert. While the record is not clear,⁽³⁾ it would appear thatFyfe was permitted to testify as an expert infirearms safety. Fyfe testified that the manner in which Crocker stored his gun and bullets was"part of his duties and responsibilities as a Chicago police officer." He stated that the primaryreason he so concluded was that Crocker only had the gun because he was a police officer. Fyfenoted that since 1982, when Chicago enacted a municipal ordinance regulating weaponpossession (See Chicago Municipal Code