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IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

JUSTICE SLATER delivered the opinion of the court:

The plaintiff, Laurie Lewis, as Administrator of the Estateof her deceased husband, Wilford Lewis, brought this wrongfuldeath action against the defendant, Thomas Haavig, III. The juryreturned a verdict for the plaintiff in the sum of $1,192,753which was reduced by 40% for the decedent's comparativenegligence resulting in a judgment of $715,651. The defendantfiled a post-trial motion seeking a new trial which the trialcourt granted. We granted plaintiff's petition for leave toappeal pursuant to Illinois Supreme Court Rule 306 (166 Ill. 2dR. 306). We reverse the trial court's order and reinstate the$715,651 judgment.

The record reflects that on November 20, 1997, at around1:00 a.m., Sergeant Wilford Lewis, a Village of Bradley policeofficer, responded to a report of an automobile accidentinvolving a single vehicle on Interstate 57 near exit 315. TheBradley police department became involved because the IllinoisState Police were unavailable to respond at the time due todeployment in other areas.

Bourbonnais police officer Myron Devine arrived at theInterstate 57 scene first. A southbound van had crossed themedian and the northbound lanes finally coming to a stop on theexit ramp. Devine saw three injured men walking away from thevan. Devine placed his vehicle near the off ramp at exit 315 andactivated his emergency lights.

Shortly thereafter, officers Lewis and Jensen arrived. Theyboth parked their squad cars immediately to the south of Devine'svehicle and activated their emergency lights. Several ambulancesresponded to the call as well.

Upon their arrival, Lewis and Jensen discovered that theoccupants of the vehicle were confused and unable to respond toquestioning. Lewis and Jensen searched the van and noticed aninfant seat adjacent to an area where a window had been broken. Lewis and Jensen were concerned that a child who had occupied theinfant seat may have been ejected from the van. After theybacked their squad cars up to assure that the ambulances couldapproach the van, Lewis and Jensen started to retrace the path ofthe van along the northbound lanes of Interstate 57.

As Jensen exited his squad car, he saw a vehicle beingdriven by the defendant pass him traveling at about eighty milesper hour. Jensen saw the defendant's vehicle strike SergeantLewis from behind as Lewis was walking northbound in the passinglane. Lewis had been attempting to retrace the van's path inorder to locate what he suspected was an ejected infant.

The defendant testified that on November 20, 1997, he wastraveling from Champaign to the Chicago area after havingattended a concert. He had been driving on Interstate 57 atseventy-five miles per hour during most of his trip fromChampaign. He also traveled most of the distance in the leftlane. The defendant said that as he approached the area of theemergency vehicles, he took his foot off the accelerator andslowed down. When he determined that the emergency vehicles werenot involved in a traffic stop but in an accident scene, hereturned his attention to the roadway, placed his foot back onthe accelerator and almost immediately struck and killed SergeantLewis.

Bradley police officer James Jeck testified that he did notarrive at the location where the van had crashed until afterSergeant Lewis had been killed. He had gotten stuck in themedian while trying to cross over from the northbound lanes tothe southbound lanes. While Jeck waited for a tow truck toremove his vehicle from the median, he listened to the otherofficers at the scene on his police radio. After the tow truckremoved his squad car from the median, Jeck arrived at the scene. He noted that Sergeant Lewis had been wearing dark blue pants, adark blue long sleeve shirt, a dark blue jacket and black boots. None of Lewis' clothing had reflective material on it.

Jeck explained that if an officer plans to inspect theroadway, another officer should be present to slow oncomingtraffic or to alert the inspecting officer of approachingtraffic. Jeck also noted that Bradley police department policiesand procedures dictate that an officer must not put himself inharm's way when searching for potential accident victims. Bradley police officers do not need permission to shut down aninterstate.

Tyrone Kanzaki, a master sergeant with the Illinois StatePolice, testified that he spoke to the defendant immediatelyafter the collision. The defendant told Kanzaki that when heinitially saw all the emergency lights, he slowed down. Thelights were coming from the shoulder of the right lane, so thedefendant moved over to the left-hand lane of traffic. Hecontinued to drive northbound when he saw a flash of metal andheard a loud thud. Kanzaki said that the defendant had actedappropriately when he slowed down and moved from the right laneto the left to avoid a "chaotic" scene.

Before trial, plaintiff brought a motion in limine toprohibit the introduction of any evidence regarding SergeantLewis' previous hearing loss and use of a hearing aid at the timehe was struck by the defendant's vehicle. The plaintiff arguedthat any evidence of Lewis' hearing loss was irrelevant becausean evaluation conducted ten years before the accident haddetermined that his hearing loss did not impact his abilities asa police officer. The defendant argued that Lewis' hearing losswas highly relevant because a jury could reasonably infer thatLewis may not have heard the defendant's oncoming vehicle andshould have exercised greater care for his own safety in light ofhis hearing impairment. The trial court granted the plaintiff'smotion in limine.

During a jury instruction conference, the defendant tenderedinstruction number four. I.P.I 70.03; 625 ILCS 5/11-1003(a)(West 1997). The instruction read, in pertinent part:

"There was in force in the State ofIllinois at the time of the occurrence inquestion a certain statute which providedthat: Every pedestrian crossing a roadway atany point other than within a markedcrosswalk or within an unmarked crosswalk atan intersection shall yield the right-of-wayto all vehicles upon the roadway." 625 ILCS5/11--1003(b) (West 1997).

The defendant also tendered jury instruction number five. I.P.I.60.01; 625 ILCS 5/11--1007(b) (West 1997). The instructionprovided:

"There was in force in the State ofIllinois at the time of the occurrence inquestion a certain statute which providedthat:

Where a sidewalk is not available, anypedestrian walking along and upon a highwayshall walk only on a shoulder, as far aspracticable from the edge of the roadway.

If you decide that a party violated thestatute on the occasion in question, then youmay consider that fact together with all theother facts and circumstances in evidence indetermining whether and to what extent, ifany, a party was negligent before and at thetime of the occurrence."

The plaintiff argued that these instructions should not betendered to the jury because Lewis, as a police officer, was nota pedestrian under the Illinois Vehicle Code. The trial courtagreed and refused to tender the instructions.

The jury ultimately returned a verdict awarding theplaintiff $161,885 for loss of past economic benefits, $868,100for loss of future economic benefits and $162,768 for loss ofsociety, for a total award of $1,192,753. The jury foundSergeant Lewis 40% negligent, resulting a net award of $715,651.

After trial, the defendant filed a post-trial motion seekingjudgment n.o.v. or, in the alternative, a new trial. Thedefendant argued that the trial court erred in: (1) refusing toinstruct the jury about Sergeant Lewis' statutory duties as apedestrian; and (2) refusing to permit the defendant to presentevidence regarding Lewis' hearing impairment. The trial courtcommented that it did not err in refusing to tender instructionnumber four to the jury because this case did not involve a roadwith a crosswalk. However, the trial judge believed that he hadcommitted error by refusing to tender jury instruction numberfive to the jury. Therefore, the trial court vacated thejudgment and awarded a new trial.

On appeal, the plaintiff first argues that the trial courtabused its discretion in granting the defendant's motion for anew trial. She contends that the court properly denied juryinstruction number five at trial because a police officer actingin an emergency situation should not be held to the same standardas an ordinary pedestrian. In response, the defendant arguesthat the trial court properly granted a new trial after it haderroneously refused to instruct the jury on Sergeant Lewis'statutory duty as a pedestrian. In the alternative, thedefendant argues that the trial court properly ordered a newtrial because: (1) he was entitled to a statutory juryinstruction that required Sergeant Lewis to yield the right ofway to approaching motorists; and (2) the trial court erred inrefusing to permit the defendant to present relevant evidenceregarding Sergeant Lewis' hearing impairment.

The decision to grant a post-trial motion and order a newtrial is within the sound discretion of the trial court and willnot be disturbed absent a clear abuse of discretion. Bishop v.Baz, 215 Ill. App. 3d 976, 980, 575 N.E.2d 947 (1991). Further,it is in the trial court's discretion to determine whether a juryinstruction is applicable and accurately states the law. Hobartv. Shin, 185 Ill. 2d 283, 705 N.E.2d 907 (1998).

In Illinois, a pedestrian is defined as "any person afoot,including a person with a physical, hearing or visualdisability." 625 ILCS 5/1--158 (West 1997). Section 11 of theIllinois Vehicle Code directs pedestrians walking along and upona highway to walk only on a shoulder, as far as practicable fromthe edge of the roadway when a sidewalk is not available. 625ILCS 5/11--1007(b) (West 1997). Additionally, every pedestriancrossing a roadway at any point other than within a markedcrosswalk shall yield the right-of-way to all vehicles upon theroadway. 625 ILCS 5/11--1003(a) (West 1997).

The acts of individuals whose duties require them to be onthe highway must be judged by a standard more liberal than in thecase of an ordinary pedestrian who has no care other than his ownsafety. Flanagan v. Valente, 31 Conn. Supp. 143, 325 A.2d 532(Superior Ct. 1974).

Here, both parties concede that no Illinois court hasaddressed the issue of whether a police officer, in the course ofresponding to an emergency, is held to the same standard as anordinary pedestrian. We hold that he is not.

The plaintiff has cited to several other jurisdictions whichhave reviewed this issue and determined that a police officer oremergency responder will not be held to the duty of a pedestrianunder similar circumstances. We are persuaded by those cases.

In Knutter v. Bakalarski, 52 Wis. 2d 751, 191 N.W.2d 235(1971), a volunteer fireman was struck by a vehicle whilecrossing a highway as he attempted to locate a fire. TheWisconsin Supreme Court held that the fireman had a lesser dutythan an ordinary pedestrian when crossing the highway. It notedthat the fireman, "was entitled to have uppermost andpredominately in his mind the fact that he was attempting tolocate a fire and prevent destruction. In such a frame of mind,he cannot and should not be compared with the average pedestriancrossing a street but with an ordinarily prudent fireman undersimilar conditions." Knutter, 52 Wis. 2d at 758, 191 N.W.2d at239.

In Dailey v. Lange, 20 Wash. App. 12, 578 P.2d 1322 (1978),the court found that a police officer who was injured whiledirecting traffic at an accident scene was not a pedestrian forpurposes of instructing the jury as to his duty. A policeofficer is not required to keep a constant lookout forapproaching vehicles and "is not held to the same duty as apedestrian". Dailey v. Lange, 20 Wash. App. 12, 578 P.2d at1325. In Sutton v. Shuffelberger, 31 Wash. App. 579, 643 P.2d920 (1982), the court approved a jury instruction which providedfor a "special duty situation of a police officer" who was struckwhile in the course of traffic enforcement.

A similar result was reached in Clayborne v. Mueller, 266Md. 30, 291 A.2d 443 (1972). In that case, a police officer wasinjured while standing next to a stopped vehicle. In approvingan instruction which required the jury to consider whether theinjured police officer exercised due care based upon his positionas a police officer, the court noted, "This was not strictly apedestrian case because it was not a situation where thepedestrian was disputing a motorist's right of way". Claybornev. Mueller, 266 Md. at ___, 291 A.2d at 447.

In granting the defendant's motion for a new trial, thecourt focused on the fact that the defendant could not havedifferentiated Sergeant Lewis, dressed in dark clothes, from anyother person crossing the highway at night. While this is true,the focus of our consideration is on the duty that Sergeant Lewiswas under as a police officer looking for an ejected infant onthe highway in the middle of the night. Common sense dictatesthat a police officer under these circumstances cannot be held tothe same duty as a pedestrian crossing a highway. Therefore, thetrial court erred in vacating the judgment and ordering a newtrial based on its failure to tender jury instruction numberfive. That instruction was properly denied because SergeantLewis did not have the same duty as an ordinary pedestrian underthe circumstances of this case.

In the alternative, the defendant argues that he is entitledto a new trial because the trial court should have tenderedinstruction number four to the jury. That instruction listed thestatutory mandate that every pedestrian crossing a roadway at anypoint other than a marked crosswalk must yield the right-of-wayto all vehicles upon the roadway. See 625 ILCS 5/11--1003(a)(West 1997).

We reject this contention. The defendant was not entitledto have jury instruction number four tendered to the jury becauseSergeant Lewis was not a pedestrian. He was acting in hiscapacity as a police officer responding to an emergency when hewas struck by the defendant.

Finally, the defendant claims that he is entitled to a newtrial because the trial court erred in granting the plaintiff'smotion in limine to exclude evidence regarding Sergeant Lewis'hearing impairment. A trial court's decision to grant a motionin limine will not be disturbed absent an abuse of discretion. Hallowell v. University of Chicago, 334 Ill. App. 3d 206, 777N.E.2d 435 (2002).

Here, we find no abuse of discretion. Lewis' hearing losswas not relevant because Sergeant Lewis had been cleared forpolice activities ten years prior to the accident. There was noevidence indicating that his hearing loss in any way impaired hisability to act as a police officer. Further, it is highlyunlikely that even if Sergeant Lewis had heard the defendant'svehicle that he would have been able to take any evasive actionconsidering the speed of the defendant's vehicle at the time ofimpact. The trial court properly granted the plaintiff's motionto exclude this evidence.

In sum, we find that the trial court erred in vacating thejudgment and ordering a new trial. Sergeant Lewis, as a policeofficer responding to an emergency situation, was not under thesame duty as an ordinary pedestrian when he was struck by thedefendant. The trial court properly denied jury instructionsfour and five and excluded evidence of the hearing loss.

The order of the circuit court of Kankakee County grantingthe motion for a new trial is reversed and the judgment, based onthe jury's verdict, is reinstated.

Reversed; verdict reinstated.

PRESIDING JUSTICE McDADE, dissenting:

After carefully considering the opinion of the majority, Ifind that, for the reasons which follow, I cannot agree with thedecision to reverse the trial court's order of a new trial and I,therefore, respectfully dissent.

Even though he falls squarely within the statutorydefinition of "any person afoot," (615 ILCS 5/1 -- 158 (West1997)), and even though he has moved away from the scene of theaccident, the majority finds that a police officer, acting in thecourse of his duties, is not a "pedestrian." He is, therefore,not held to the same duty as an "ordinary pedestrian."

I have no real quarrel with either that conclusion or thereasoning on which it rests, and I could probably concur on thatbasis but for my other concerns. This court, however, has thelatitude to affirm a decision of the trial court not only for thereason given but also for any reason which finds support in therecord. Burd v. Industrial Commission, 207 Ill. App. 3d 371,382, 566 N.E.2d 35, 42 (1991). It is for other, but related,reasons that I believe the order granting a new trial should beaffirmed.

In arriving at the conclusion that a police officer, actingin the course of his duties, is not a pedestrian, the majorityacknowledges that this is a case of first impression in Illinoisand relies solely on cases from other states. Illinois also hasno statute which addresses the due care standard for a policeman"afoot" on the highway in the course of his duties. It seemsclear that the jury reached its decision in a vacuum of legalguidance about Officer Lewis's duty of care for his own safety onthe highway, rendering the verdict speculative.

Moreover, the majority makes no suggestion about how therelative standards of care of public servants with legitimatebusiness on and about the highway and those of motoristslegitimately driving on the highway should be balanced. In thiscase, the police officer had moved away from the scene of theaccident and was walking in a traffic lane on an interstatehighway at 1:00 in the morning wearing dark clothing without anyreflective material and alone, without the safety backup requiredby his departmental rules. In light of these facts, it appearsthat the majority makes motorists insurers to some degree of thesafety of anyone on the highway who is wearing, or is entitled towear, a uniform or badge, no matter what the conditions, as longas he or she is on the job. Here the jury reduced the verdict by40%, apparently finding that to be the proportion of theofficer's comparative fault, and the majority reinstates thisdiscounted verdict. But, in the absence of a standard, how is itpossible to say whether the reduction was not enough, too much,or just right? For this reason, too, I believe a new trial iswarranted.

Finally, I think the trial court erred in excludingtestimony of the officer's hearing impairment. Evidence of thatimpairment was ruled irrelevant on the basis of a ten-year-olddetermination that his hearing loss did not impact his abilitiesas a police officer. Even assuming there had been no negativechanges in his hearing in the intervening ten years and furtherassuming that his hearing aid was turned on, an assessment thatthe officer could perform his duties as a police officer issimply not the same issue as whether he could discern aparticular vehicle approaching him from the rear on a highwaywhere people and other vehicles were actively involved with anaccident scene. These are, in my opinion, legitimate questionsto be considered and answered by the finder of fact. The juryfound plaintiff's deceased 40% at fault without any knowledge ofhis hearing impairment; the impact of this information could bevery significant. This provides yet another reason to send thismatter back for a new trial.

For these reasons, I would affirm the order of the KankakeeCounty Circuit Court granting a new trial in this matter, and Itherefore dissent from the majority opinion.