                                        2019 IL App (3d) 170698

                                Opinion filed April 19, 2019
     _____________________________________________________________________________

                                                   IN THE

                                  APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                    2019

     BRIAN DAYTON, Individually and as the
                                     )                       Appeal from the Circuit Court
     Special Administrator of the Estate of Jill
                                     )                       of the 9th Judicial Circuit,
     D. Dayton, Deceased, and AMANDA )                       McDonough County, Illinois.
     DAYTON NEHRING,                 )
                                     )
         Plaintiffs-Appellants,      )                       Appeal No. 3-17-0698
                                     )                       Circuit No. 06-L-9
         v.                          )
                                     )
     THOMAS PLEDGE and THE MCDONOUGH )
     COUNTY SHERIFF’S DEPARTMENT,    )                       Honorable
                                     )                       Richard H. Gambrell,
         Defendants-Appellees,       )                       Judge, Presiding.

     _____________________________________________________________________________

           JUSTICE LYTTON delivered the judgment of the court, with opinion.
           Justices Carter and Holdridge concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                   OPINION

¶1          Plaintiffs Brian Dayton, individually and as special administrator of the estate of Jill D.

     Dayton, and Amanda Dayton Nehring filed a wrongful death and negligence complaint against

     Deputy Thomas Pledge and the McDonough County Sheriff’s Department seeking damages

     related to a high-speed pursuit, which resulted in the death of Jill and bodily injury to Amanda

     when Pledge’s squad car struck the Dayton minivan. The jury returned verdicts in favor of

     plaintiffs, and defendants moved for judgment n.o.v. and a new trial. The trial court granted
     defendants’ motion and vacated the jury’s verdicts. On appeal, plaintiffs argue that (1) judgment

     n.o.v. was inappropriate where reasonable minds might differ as to whether Pledge’s pursuit of

     the fleeing vehicle was willful and wanton, (2) the trial court erred in granting defendant’s

     motion for new trial because the verdicts were not against the manifest weight of the evidence,

     and (3) the verdicts on separate claims were not legally inconsistent. We reverse the judgment of

     the trial court and remand with directions.

¶2                                           BACKGROUND

¶3          Around 11:30 p.m. on September 3, 2004, Pledge responded to a call regarding an erratic

     driver operating a white sports utility vehicle (SUV). Pledge located the SUV headed south on

     Route 67 in a rural area of McDonough County. He followed the vehicle for a few miles on the

     four-lane divided highway. After observing the vehicle swerve several times, Pledge stopped the

     vehicle. As Pledge approached the passenger side, the SUV sped away. Pledge ran back to his

     squad car and pursued the vehicle. The SUV proceeded southbound on Route 67 with its lights

     off. Pledge followed, reaching speeds as high as 110 miles per hour. The SUV and Pledge

     headed into Macomb. As they approached the intersection of Route 67 and University Avenue,

     near Western Illinois University, Pledge announced to dispatch that he was traveling “100” miles

     per hour.

¶4          At the same time, a minivan, driven by Amanda Dayton, was traveling north on Route

     67. Amanda’s mother, Jill, was navigating in the passenger seat. Amanda entered the left turn

     lane at the intersection of University Avenue and Route 67. As she did so, the SUV Pledge was

     pursuing passed through the intersection, directly in front of the minivan. As Amanda continued

     her left turn, Pledge’s squad car entered the intersection and struck the passenger side of the

     minivan, killing Jill and severely injuring Amanda.


                                                     2
¶5          Amanda and her father, Brian, filed suit against Pledge and the McDonough County

     Sheriff’s Department to recover damages for their injuries. The complaint asserted wrongful

     death and bodily injury, alleging that Pledge acted negligently and willfully and wantonly in

     pursuing the SUV and that the sheriff’s department was liable under the respondeat superior

     doctrine. Defendants filed a motion for summary judgment, arguing that plaintiffs’ claims were

     barred by the Local Governmental and Governmental Employees Tort Immunity Act (Tort

     Immunity Act) (745 ILCS 10/2-202 (West 2004)) because Pledge’s pursuit of the fleeing vehicle

     could not be classified as willful and wanton conduct. The trial court denied defendants’ motion,

     and the case proceeded to trial.

¶6          At trial, Amanda and Brian testified on behalf of plaintiffs, and depositions of occurrence

     witness Lindsey Clingan and a medical doctor were read into evidence. Reconstruction specialist

     Michael O’Hern and Pledge testified for the defense. The defense also tendered a line-of-sight

     video created by O’Hern that depicted the position of the vehicles as Pledge approached the

     intersection from Amanda’s point of view. Following closing arguments, the jury returned a

     verdict for defendants, and the Daytons appealed.

¶7          On appeal, the Daytons argued that the trial court erred in, among other things, admitting

     the defense’s line-of-sight video and instructing the jury on the limited use of that video. This

     court found that the Daytons were entitled to a new trial because the trial court abused its

     discretion in admitting the video and that the improper admission resulted in prejudice. See

     Lorenz v. Pledge, 2014 IL App (3d) 130137. We reversed and remanded for a new trial. Id. ¶ 32.

¶8          At the second trial, Pledge testified that on September 3, 2004, he received information

     about an SUV headed south on Route 67 being driven by someone that was possibly driving

     under the influence. He waited along Route 67, north of Macomb, and when the SUV passed, he


                                                     3
       pulled out and followed it. He activated his dash camera and followed the SUV for

       approximately three miles. After observing the vehicle swerve several times, Pledge initiated a

       traffic stop, and the SUV pulled over. He confirmed the license plate number and exited the

       squad car. As he approached the passenger side of the SUV, the vehicle sped away. Pledge ran

       back to his car and pursued the vehicle.

¶9            The dash camera video, which was admitted into evidence, shows Pledge running back to

       the car and announcing “pursuit into Macomb.” As the SUV speeds away, the driver turns off the

       lights. The pursuit continues south on Route 67 into Macomb with both vehicles traveling at

       speeds in excess of 100 miles per hour. Roughly a mile north of the intersection Pledge reports

       his speed as “110 miles per hour.”

¶ 10          Pledge testified that he followed the SUV toward the intersection of Route 67 and

       University Avenue with his lights and siren activated. His lights and siren remained on for the

       duration of the pursuit to advise the public of emergency and advise law enforcement of his

       location. He knew University Avenue was the entrance to Western Illinois University and that

       there was increased traffic in the area due to the holiday weekend. He was also aware of prior

       accidents at that intersection. He testified that, as a driver of an emergency vehicle, he was

       permitted to exceed the maximum speed limit so long as he did not endanger life or property. He

       also knew that high-speed pursuits were dangerous to other motorists and “certainly could” put

       innocent people in harm’s way. He noted that the blacked-out vehicle was a “huge safety

       concern” and he was “pretty convinced” that it was going to crash.

¶ 11          Pledge maintained radio contact with the dispatcher during the entire pursuit. At some

       point, he heard the Macomb Police Department “talking about putting out spike strips” to assist




                                                      4
       in apprehending the driver of the SUV. It was his understanding that they were taking steps to

       apprehend the vehicle about one-half mile south of the University Avenue intersection.

¶ 12              As Pledge approaches the city limits of Macomb on the dash camera video, he announces

       a speed of “100” miles per hour and drives past a Clark gas station approximately 1700 feet

       north of University Avenue. He testified that as he passed the station he saw the Dayton minivan

       in the northbound left turn lane with its left turn signal activated. He assumed the vehicle was

       going to make a left turn and was aware of prior collisions from vehicles turning at that

       intersection. Pledge stated that he was going 70 to 75 miles per hour as he passed the gas station.

       The posted speed limit 450 feet north of the intersection was 40 miles per hour.

¶ 13              Approximately 185 feet before the intersection, a white line divides Route 67 and the

       right turn lane. Pledge testified that at the beginning of that dividing line he applied “maximum”

       braking. After the blacked-out SUV passed through the intersection, Pledge collided with the

       Dayton minivan as it was making a left-hand turn. Pledge recalled the traffic signal was green for

       southbound traffic and remained green until the collision. The entire pursuit, from the time

       Pledge ran back to his vehicle to the time his squad car struck the Dayton minivan, lasted 77

       seconds.

¶ 14              Pledge stated that he was aware of the high speed pursuit policy of the McDonough

       County Sheriff’s Department and that compliance with the policy was mandatory. Pledge knew

       that to pursue a vehicle at high speeds he “must comply first with section 3.02,” which required

       him to determine that there was a serious felony involving an actual or threatened attack. 1 Pledge

       1
           Section 3.02, paragraph II states:
                  “A. It is the policy of this Department the [sic] ‘fresh pursuit’ at high speeds is justified
                  only when the officer knows or has reasonable grounds to believe the violator has
                  committed or attempted to commit a serious felony. A serious felony is one that involves
                  an actual or threatened attack which the officer has reasonable cause to believe could or
                  has resulted in death or serious bodily injury, e.g., Aggravated Assault, Armed Robbery,
                                                               5
       also acknowledged that the pursuit of the SUV for suspected driving under the influence was a

       misdemeanor. He admitted that he had no information about a serious felony involving an actual

       or threatened attack at that time. Pledge confirmed that he had the SUV license plate number and

       knew the identity of the owner when he ran back to his squad car and pursued the vehicle. He

       also knew that under section 4.03 of the pursuit policy, he had a duty to avoid contributing to the

       danger already created by the SUV. 2 Pledge intended to apprehend the suspect while exercising

       maximum safety.

¶ 15           Lindsay Clingan was in her car facing west at the University Avenue intersection that

       evening. She waited at the stop light and then turned right onto Route 67. As she headed north on

       Route 67, she looked in her rear view mirror and witnessed Pledge’s squad car crash into the side

       of the Dayton minivan. She testified that before she completed her turn onto Route 67, she saw

       the minivan moving into the left turn lane at the University Avenue intersection. She also saw

       Pledge’s squad car passing the gas station traveling “about 100 miles per hour.” After

       completing her turn, she saw the SUV pass by the minivan. Clingan then saw Pledge heading

       into the intersection and said that “he continued between 90 and 100 miles per hour.” She did not

       see Pledge’s brake lights illuminate in her rear view mirror but admitted that she was talking on

       her cell phone as she was turning. According to her testimony, Pledge did not take any action to

       avoid the minivan.

¶ 16           Amanda testified that she drove to Macomb with her mother and a friend on September 3,

       2004, to visit Western Illinois University. Her mother was riding in the front passenger seat.

               Burglary, and Arson of an occupied building.” McDonough County Sheriff’s Department
               Policy § 3.02, ¶ II(A) (2004).
       2
         Section 4.03, paragraph II states:
               “D. ***. It is understood that the officer’s ability to supervise or control other motorists
               by the nature of existing circumstances is limited, but it is his duty to avoid contributing
               to the danger already created by the violating motorists.” McDonough County Sheriff’s
               Department Policy § 4.03, ¶ II(D) (2004).
                                                            6
       Amanda was headed north on Route 67 when she entered the left turn lane at the University

       Avenue intersection. The light was green, and she had her left turn signal on. Amanda testified

       that she did not see any squad car lights or hear sirens, and her mother did not mention any

       emergency lights. She testified that as she moved through the turn lane, “out of nowhere this

       SUV came flying around my car at an insane rate of speed, very, very fast. He had…or it had no

       headlights on. So I didn’t see anything until it went by my window and I just looked and saw it

       and that’s the last thing I remember.”

¶ 17          Amanda suffered a fractured scapula. She testified that immediately after the accident she

       experienced nightmares and flashbacks. Since 2006, she has been under the care of psychologists

       and psychiatrists and has been taking anti-anxiety medication. Her psychiatrist, Dr. Brian

       McFaul, testified that when Amanda first sought psychiatric care in 2006, she had been in a

       chronic state of tension since the collision. McFaul explained that Amanda suffered from anxiety

       and panic attacks and continues to suffer from post-traumatic stress disorder. He prescribed

       Zoloft, an anti-anxiety medication, to elevate her symptoms. Amanda reduced her medication in

       January 2010 and was no longer taking Zoloft when he saw her on April 12, 2010. McFaul stated

       that it was not clear if Amanda discontinued her medication on her own or on the advice of

       another doctor. She had horrible anxiety again and could not eat. McFaul restarted her

       medication, and Amanda’s condition improved.

¶ 18          Dr. Geoffrey Alpert, a professor of criminology at the University of South Carolina,

       testified that he has studied police pursuits for over 30 years and has worked for the National

       Institute of Justice, which helps write pursuit policies for police departments. He opined that,

       while following the SUV for several miles before initiating the traffic stop, Pledge had ample

       time to consider the department policies and determine that a high-speed pursuit would be


                                                      7
       inappropriate. He explained that a well-trained officer understands that fleeing is a possibility

       and evaluates any department policy that may apply. He believed that Pledge’s pursuit violated

       sections 3.02 and 4.03 of the sheriff’s department’s pursuit policy. He noted that section 3.02

       allowed a high-speed pursuit only when the officer “knows or has reason to believe that the

       offender committed a serious felony, which is an attack.” Alpert testified that based on his

       evaluation of the policy provisions, Pledge acted recklessly and with a conscious disregard for

       the safety of others when he engaged in a high-speed pursuit for an offense that was not included

       in the policy. Once the pursuit began, Pledge was “covering too much ground too quickly to

       make decisions properly.”

¶ 19          Alpert also testified that civilian drivers are unpredictable. He noted that drivers typically

       do not expect other vehicles to be traveling 100 miles per hour and they cannot react quickly. He

       believed that pursuing a fleeing vehicle through a congested intersection is “like playing Russian

       roulette” because the officer cannot predict how other drivers will react. Alpert concluded that

       Pledge’s decision to pursue the SUV “turned into a dangerous high speed pursuit, but [Pledge]

       consciously disregarded the safety of everyone, including himself.” He opined that, had Pledge

       complied with the department’s policy, he would not have crashed into the Dayton minivan.

¶ 20          O’Hern, a reconstruction specialist, analyzed the accident by studying photographs, the

       police report, the dash camera video and witness recollections. O’Hern used detailed

       measurements, vehicle location, and speed to explain how Pledge collided with the minivan in

       the right-hand lane of southbound traffic. According to his analysis, Pledge applied “heavy but

       not maximum” braking from the dividing line at the intersection of Route 67 and University

       Avenue to the point of impact. He testified that when Pledge first saw the Dayton minivan in the

       left turn lane, he was 1700 feet north of the intersection. He used standard calculations for


                                                        8
       momentum, time, and distance to estimate Pledge’s speed during the pursuit. Using the dash

       camera video, he calculated Pledge’s speed at an average of 86 miles per hour for the final 185

       feet, 73 miles per hour over the final 65 feet, and 70 miles per hour at impact. He noted that at a

       speed of 100 miles per hour, Pledge’s stopping distance was more than 506 feet. In his opinion,

       Pledge was “definitely slowing” from 110 miles per hour to 86 miles per hour immediately

       before the intersection. O’Hern concluded that Amanda’s failure to yield to oncoming traffic and

       to an emergency vehicle caused the crash.

¶ 21          On cross-examination, O’Hern testified that he found no evidence of skid marks from

       Pledge’s squad car at the intersection or approaching the intersection. He opined that the video

       showed that the lights from the Dayton minivan were visible 13 seconds before impact but

       admitted that two people could disagree about what the video showed. He also noted that

       moments before impact the headlights were obstructed by the SUV for a full second. He stated

       that, when the headlights of the minivan reappeared, Pledge had approximately 2 to 2½ seconds

       to perceive and react to the Dayton minivan. O’Hern testified that 2½ seconds was not a

       sufficient amount of time for Pledge to avoid a crash.

¶ 22          O’Hern further noted that, according to state law, a driver turning left must yield the

       right-of-way to an emergency vehicle upon its immediate approach. He opined that a normally

       prudent person making a left turn in a 40-mile-per-hour speed zone would be looking 200 to 300

       feet down the road for approaching vehicles before making the turn. However, he admitted that if

       Pledge had been traveling 5 seconds behind the SUV instead of 2 seconds, there was “no

       question that the collision would not have occurred.”

¶ 23          Sergeant William McCamant, an Illinois State Trooper who investigated the accident,

       reported to the scene that evening and collected evidence. He stated that there was no indication


                                                       9
       that the Dayton minivan ever stopped or that Pledge applied his brakes. He found no skid marks

       from Pledge’s vehicle prior to impact and no evidence of any other evasive maneuver.

       McCamant used the dash camera video timer, measurements and the mathematical formula for

       speed to form his opinion. He estimated Pledge’s speed at impact as 73 miles per hour in a 40-

       mile-per-hour speed zone.

¶ 24          McCamant testified that on the evening of the accident, Amanda told him that as she

       came up to the intersection she saw an SUV and looked to the south as it drove past her. She

       looked back to the north and saw the squad car but could not stop in time to avoid the collision.

       According to the dash camera video, the crash occurred approximately two seconds after the

       SUV drove through the intersection. McCamant concluded that Amanda had a duty to yield to

       oncoming traffic because she was making a left-hand turn on an unprotected green light. He also

       noted that Amanda had a duty to yield to Pledge’s squad car, as an emergency vehicle, with its

       lights and siren activated.

¶ 25          The jury began deliberations with several verdict forms for both counts. “Verdict Form

       A” for the wrongful death count stated:

                  “We, the jury, find for the Estate of Jill Dayton and Brian Dayton,

              individually, and against Thomas Pledge and the McDonough County Sheriff’s

              Department.

                  First: We find that the total amount of damages suffered by the Estate of Jill

              Dayton, deceased is: _______.

                                                      ***

                  Second: Assuming that 100% represents the total combined negligence of

              Thomas Pledge and Amanda Dayton-Nehring, we find that the percentage of


                                                      10
              negligence that was a proximate cause of the death of Jill Dayton attributable

              solely to Amanda Dayton-Nehring is ___ percent (%).”

       “Verdict Form C” for the bodily injury count provided:

                  “We, the jury, find for Amanda Dayton-Nehring, individually, and against

              Thomas Pledge and the McDonough County Sheriff’s Department and further

              find the following:

                  First: Without taking into consideration the question of the reduction of

              damages due to the negligence of Amanda Dayton-Nehring, individually, we find

              that the total amount of damages suffered by Amanda Dayton-Nehring as a

              proximate result of the occurrence in question is _______.

                                                     ***

                  Second: Assuming that 100% represents the total combined negligence of all

              persons whose negligence proximately contributed to plaintiff, Amanda Dayton-

              Nehring’s injuries and damages, including Thomas Pledge and Amanda Dayton-

              Nehring, we find that the percentage of such negligence attributable solely to

              Amanda Dayton-Nehring is ___ percent (%).”

¶ 26          The jury returned a verdict for the plaintiffs on the wrongful death claim, awarding

       $3,660,968 in damages and finding that the percentage of negligence on Amanda’s part was 0

       percent. It also returned a verdict in favor of Amanda on the bodily injury claim, awarding her

       $468,065 in damages and finding that the percentage of her own negligence attributable to her

       injuries was 12.5%. The trial court certified the verdict and allocated the damages pursuant to the

       Wrongful Death Act. See 740 ILCS 180/2(i) (West 2016).




                                                       11
¶ 27          Defendants filed a motion for judgment n.o.v. and a new trial. The trial court granted

       defendants’ motion for judgment n.o.v. The court concluded that judgment n.o.v. was appropriate

       because plaintiffs failed to prove that Pledge’s conduct was willful and wanton and failed to

       demonstrate proximate cause. Specifically, the court held that it was not foreseeable that

       Amanda would pull into Pledge’s lane to complete a left turn after yielding to the SUV. The trial

       court also granted defendants’ motion for a new trial, finding that the verdicts were against the

       manifest weight of the evidence and legally inconsistent.

¶ 28                                               ANALYSIS

¶ 29                                           I. Judgment N.O.V.

¶ 30          The Daytons first argue that the trial court erred in granting defendants’ motion for

       judgment n.o.v. They claim that defendants are not entitled to judgment as a matter of law

       because, when viewed in the light most favorable to plaintiffs, the evidence showed that Pledge’s

       conduct was willful and wanton and that his pursuit of the SUV was the proximate cause of the

       crash that resulted in Jill’s death and Amanda’s injury.

¶ 31          A motion for judgment n.o.v. should be granted only when all the evidence, viewed in the

       light most favorable to the nonmovant, so overwhelmingly favors the moving party that no other

       verdict based on the evidence could stand. Barth v. State Farm Fire & Casualty Co., 228 Ill. 2d

       163, 177 (2008) (citing Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967)). The

       Pedrick standard is a “very difficult standard to meet, limiting the power of the [trial] court to

       reverse a jury verdict to extreme situations only.” People ex rel. Department of Transportation v.

       Smith, 258 Ill. App. 3d 710, 714 (1994). The trial court must resolve evidentiary conflicts in

       favor of the plaintiff, and if it finds any evidence which, if believed, could support a verdict for

       the plaintiff, it is error to direct a verdict for the defendant. Hicks v. Hendricks, 33 Ill. App. 3d


                                                        12
       486, 490 (1975). The court has no right to enter a judgment n.o.v. if there is any evidence,

       together with reasonable inferences, demonstrating a factual dispute or where the credibility of

       the witnesses or an assessment of the conflicting evidence is decisive to the outcome of the trial.

       Maple v. Gustafson, 151 Ill. 2d 445, 454 (1992). We review de novo a trial court’s decision to

       grant or deny a motion for judgment n.o.v. Harris v. Thompson, 2012 IL 112525, ¶ 15. That is,

       the reviewing court applies the same Pedrick standard as did the trial court. Id.

¶ 32                                      A. Willful and Wanton Conduct

¶ 33             The Tort Immunity Act provides that “[a] public employee is not liable 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 2014). The Act further defines willful

       and wanton conduct as “a course of action which shows an actual or deliberate intention to cause

       harm or which, if not intentional, shows an utter indifference to or conscious disregard for the

       safety of others or their property.” 745 ILCS 10/1-210 (West 2014). Whether conduct is willful

       and wanton is ultimately a question of fact for the jury. Doe v. Calumet City, 161 Ill. 2d 374, 390

       (1994).

¶ 34             Defendants argue that the trial court did not err in granting judgment notwithstanding the

       verdict in their favor because there was no evidence to show that Pledge acted with utter

       indifference to or conscious disregard for the safety of others. They contend that, as matter of

       law, an officer’s violation of internal policy and speeding do not constitute willful and wanton

       conduct, citing our decision in Hall v. Village of Bartonville Police Department, 298 Ill. App. 3d

       569 (1998).

¶ 35             In Hall, the driver of a vehicle collided with a truck, which was being pursued by police.

       The driver filed suit against the pursuing officer alleging violations of department procedures,


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       willful and wanton conduct, and reckless disregard for the safety of others. Id. at 570-71. In

       affirming summary judgment in favor of the officer and the department, this court noted that the

       pursuit was not in a densely populated urban area and the duration of the chase was relatively

       brief. Id. at 573.

¶ 36           However, the facts in this case are more analogous to those in Suwanski v. Village of

       Lombard, 342 Ill. App. 3d 248 (2003). In Suwanski, the court recognized that determining willful

       and wanton conduct in the context of police pursuits is difficult and should be made on a case by

       case basis:

               “We begin our analysis by observing that in the context of police pursuits there

               exists a wide array of factual possibilities which create a range of conduct that

               will fall somewhere on the spectrum of liability. Some situations will be so benign

               as to clearly be, as a matter of law, below the theoretical minimum for willful and

               wanton conduct. Those cases should, of course, be disposed of by summary

               judgment. There may also be some cases where the circumstances are so

               egregious that one could say, as a matter of law, that the officer acted willfully

               and wantonly. The third possibility is those circumstances where the question of

               willful and wanton conduct is the subject of reasonable argument. It is those cases

               that cannot be decided as a matter of law and must be put to the jury.” Id. at 257.

¶ 37           In this case, the question of willful and wanton conduct is open to reasonable argument.

       Certain facts support a finding that Pledge’s conduct was not willful and wanton, including the

       erratic maneuvers of the SUV and the suspected DUI violation, the rural four-lane highway on

       which the pursuit began, Pledge’s use of his emergency lights and siren, and his attempt to

       reduce his speed as he entered the intersection. But undisputed facts also support a finding of


                                                        14
       willful and wanton conduct. The testimony revealed that Pledge had obtained the license plate

       number of the SUV when he initiated the stop, he knew there had been prior accidents at the

       intersection of Route 67 and University Avenue, he was traveling 100 to 110 miles per hour as

       he approached Macomb, and the black-out SUV was also traveling in access of 100 miles per

       hour. The department’s pursuit policy justified high-speed pursuit only if the violator had

       committed a felony involving an actual or threatened attack, and Pledge testified that the SUV

       had not committed a felony involving an actual or threatened attack. Thus, the trier of fact could

       have made the reasonable inference that the identity of the suspect was obtainable from the

       license plate number without the high speed pursuit and that the officer’s decision to pursue the

       vehicle into Macomb, in violation of department policy, showed an utter indifference for the

       safety of others.

¶ 38          All the evidence, when viewed in the light most favorable to the Daytons, was sufficient

       to create an issue of fact as to whether Pledge’s conduct was willful and wanton such that Pledge

       was liable for his actions as an employee of the McDonough County Sheriff’s Department. The

       jury found that Pledge’s high speed pursuit demonstrated willful and wanton behavior; we have

       no basis to disturb that determination.

¶ 39                                             B. Proximate Cause

¶ 40          In an action for negligence, including one in which the defendant’s alleged conduct is

       willful and wanton, a plaintiff must prove that the defendant owed a duty to the plaintiff, that the

       defendant breached this duty, and that the breach was the proximate cause of the plaintiff’s

       injuries. Abrams v. City of Chicago, 211 Ill. 2d 251, 257 (2004). A proximate cause analysis

       involves two aspects: cause-in-fact and legal cause. Rivera v. Garcia, 401 Ill. App. 3d 602, 610

       (2010). The primary question in a cause-in-fact analysis is whether a defendant’s conduct was a


                                                        15
       material element and a substantial factor in bringing about the injury. Harrison v. Hardin County

       Community Unit School District No. 1, 197 Ill. 2d 466, 476 (2001). Where reasonable minds

       could differ as to whether a defendant’s conduct was a substantial factor in bringing about a

       plaintiff’s injury, the question is one for the jury to decide. Lee v. Chicago Transit Authority, 152

       Ill. 2d 432, 455 (1992). Legal cause, on the other hand, involves an assessment of foreseeability.

       Suwanski, 342 Ill. App. 3d at 255. “[A] negligent act is a legal proximate cause of an injury if the

       injury is of the type that a reasonable person would foresee as a likely result of his conduct.” Id.

       Proximate cause may be shown by inferences drawn from circumstantial evidence. Calloway v.

       Bovis Lend Lease, Inc., 2013 IL App (1st) 112746, ¶ 77.

¶ 41            Whether a defendant’s conduct represented a breach of duty and whether that conduct

       proximately caused the plaintiff’s injury or death are generally issues of fact for the jury to

       decide. Thompson v. Gordon, 241 Ill. 2d 428, 438-39 (2011). The proximate cause of an injury

       can be decided as a matter of law only when the facts are undisputed and there can be no

       difference in the judgment of reasonable people as to the inference to be drawn from them.

       Calloway, 2013 IL App (1st) 112746, ¶ 78 (citing Zerbenski v. Tagliarino, 67 Ill. App. 3d 166,

       172 (1978)).

¶ 42            Here, the trial court found that plaintiffs failed to prove legal cause because “[i]t was not

       foreseeable or reasonable to expect Pledge to believe the Dayton minivan would pull into his

       lane to complete her turn after yielding to the SUV.” We disagree. Based on the testimony of the

       witnesses and the inference drawn from the evidence, reasonable people could reach different

       judgments as to the foreseeability that Pledge’s pursuit would place civilian drivers in harm’s

       way and the foreseeability that the Dayton minivan would be unable to stop in time to avoid the

       crash.


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¶ 43          Pledge testified that he knew high-speed police pursuits were dangerous to other motorist

       and “certainly could” put innocent people at risk of injury. He stated that as he continued his

       pursuit at speeds in excess of 100 miles per hour, the SUV turned off its lights. He also testified

       that he was “pretty convinced” that the SUV he was pursuing at excessive speeds would crash as

       it proceeded toward Macomb and he was aware of other left-hand-turn collisions at the

       approaching intersection. O’Hern’s reconstruction of the physical evidence revealed that

       Amanda had a two-second window after the blacked-out SUV passed to visualize Pledge’s car

       and make corrective maneuvers to avoid the impact. Other witnesses provided circumstantial

       evidence to support the reasonable inference that the accident was foreseeable. Alpert testified

       that a pursuit through an intersection is like “playing Russian roulette” because, even with

       emergency lights, third-party reactions are unpredictable. Thus, the jury had a basis for

       concluding that the crash was of the type that a reasonable person would foresee as a likely result

       of a high-speed pursuit through an intersection.

¶ 44          In Suwanski, the court stated:

              “As for legal causation, a jury could also find under these facts that it was

              reasonably foreseeable that chasing the [violator’s] vehicle at high rates of speed

              through residential and commercial suburban streets, knowing [the violator] was

              running stop signs and red lights, would result in injury to some third person.

              Officer Bradford could be found to have reasonably anticipated that [the

              violator’s] conduct and the resulting collision were the natural and probable result

              of his own conduct in chasing her vehicle under these particular conditions.”

              Suwanski, 342 Ill. App. 3d at 256.




                                                          17
       Similarly, under these circumstances, a rational jury could have concluded that it was reasonably

       foreseeable that following a fleeing SUV with its lights off, traveling over 100 miles per hour in

       evening conditions, and approaching a city intersection at a speed more than twice the speed

       limit would result in injury to some bystander.

¶ 45          Foreseeability is also demonstrated by evidence of the department’s pursuit policy.

       Pledge testified that the policy required officers to conduct a balancing test before engaging in a

       pursuit of a violator. To engage in a high-speed pursuit, the policy required officers to first

       determine whether there was a serious felony involving an “actual or threatened attack.” Pledge

       admitted that he had no information about a serious felony involving an actual or threatened

       attack when he began his pursuit of the SUV. He was also aware that a pursuit should cease

       when the offense is a misdemeanor and the identity of the violator is known. Such policies

       reflect the foreseeability of accidents like the one that occurred in this case. See Rivera, 401 Ill.

       App. 3d at 611 (department’s pursuit policy is inexorably linked to the foreseeable injuries or

       death of bystanders as a result of a dangerous pursuit).

¶ 46          Defendants maintain that Amanda had a duty to yield to Pledge’s emergency vehicle and

       that her decision to turn was not foreseeable. However, the facts do not support the argument that

       Amanda was an intervening cause that broke the chain of causation. The intervention of

       independent concurrent or intervening forces will not break a causal connection if the

       intervention of such forces was itself probable or foreseeable. See Freeman v. City of Chicago,

       2017 IL App (1st) 153644, ¶ 49 (intervening cause of suspect’s reckless driving did not break

       causal connection where it was foreseeable that, in response to officer’s high speed pursuit the

       wrong way down a one-way street, the suspect would continue to drive recklessly and strike an

       innocent bystander). Amanda testified that the SUV, with its lights off, came out of nowhere at


                                                         18
       an “insane” rate of speed. She turned her head to follow the SUV and as she turned back, Pledge

       struck the side of the minivan. Pledge testified that he saw the Dayton minivan with its turn

       signal engaged as his vehicle and the SUV approached the intersection traveling 100 miles per

       hour. Given the high rate of speed at which Pledge was traveling and the distraction of the SUV,

       it was foreseeable that Pledge might hit the minivan as he passed through the intersection

       moments after the fleeing vehicle. Amanda’s continuation through the left-turn lane after the

       SUV passed was not an intervening force that broke the causation link between Pledge’s conduct

       and the crash that occurred two seconds later. Accordingly, the trial court erred in granting

       defendants’ motion for judgment n.o.v. on the element of proximate cause.

¶ 47          Based on the above discussion, we cannot conclude, as a matter of law, that when viewed

       in the light most favorable to the Daytons, the evidence presented at trial so overwhelmingly

       favored Pledge and the McDonough County Sheriff’s Department that no contrary verdict could

       ever stand. See Pedrick, 37 Ill. 2d at 510. We therefore reverse the trial court’s order granting

       defendants’ motion for judgment n.o.v.

¶ 48                                               II. New Trial

¶ 49          Plaintiffs also claim that the trial court erred in granting a new trial based on the manifest

       weight of the evidence.

¶ 50          A new trial should be granted only when the verdict is contrary to the manifest weight of

       the evidence. York v. Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d 147, 178-79

       (2006). A verdict is considered against the manifest weight of the evidence where the opposite

       result is clearly evident or where the findings of the jury are unreasonable, arbitrary, and not

       based on the evidence. Maple, 151 Ill. 2d at 454. It is well settled that “[i]t is the province of the

       jury to resolve conflicts in the evidence, to pass upon the credibility of the witnesses, and to


                                                        19
       decide what weight should be given to the witnesses’ testimony.” (Internal quotation marks

       omitted.) Redmond v. Socha, 216 Ill. 2d 622, 652 (2005). “Only if the verdict was palpably

       erroneous and wholly unwarranted, was clearly the result of passion or prejudice, or appears to

       be arbitrary, unreasonable, and not based upon the evidence will it be overturned.” Friedland v.

       Allis Chalmers Co. of Canada, 159 Ill. App. 3d 1, 9 (1987). A court’s ruling on a motion for a

       new trial will not be reversed absent an abuse of discretion. Maple, 151 Ill. 2d at 455.

¶ 51          In granting defendants’ motion for a new trial, the trial court found that the jury was

       provided “uncontradicted evidence” that Amanda had sufficient time to perceive and react to

       Pledge’s emergency vehicle. The testimony at trial, however, was not uncontradicted. Defense

       experts testified that Amanda may have had up to twelve seconds to react. But O’Hern admitted

       that her line of sight was temporarily blocked by the SUV and that she may have had only two to

       three seconds to react to Pledge’s vehicle after being distracted by the SUV. At trial, the

       evidence established that a driver has a duty to yield to an emergency vehicle that is immediately

       approaching. Based on O’Hern’s reconstruction testimony, Pledge was traveling 85 miles per

       hour as he entered the intersection. Expert witness Alpert testified that a normally prudent driver

       would not have a reasonable amount of time to perceive, react, and stop to avoid Pledge at that

       excessive rate of speed. Moreover, there is nothing in the record to indicate that the jury failed to

       consider all of the evidence, including the dash camera video. As O’Hern conceded after

       watching the video himself, two reasonable people could disagree about whether Amanda had

       sufficient time to see Pledge’s vehicle and stop before making a left-hand turn.

¶ 52          To reverse a jury verdict as against the manifest weight of the evidence, we must find that

       it is unreasonable, arbitrary, and not based on the evidence or that the opposite conclusion is

       readily apparent. See id. at 454. Here, the evidence supports conflicting inferences about


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       Pledge’s attempt to reduce his speed as he entered the intersection and Amanda’s ability to

       perceive the squad car on its immediate approach. The jury was also faced with conflicting

       testimony as to whether Pledge attempted to avoid the crash and contradictory opinions from the

       expert witnesses. The jury was free to accept some pieces of evidence and reject others. It was

       also free to determine the credibility of the witnesses and weigh their testimony. See Redmond,

       216 Ill. 2d at 652 (it is the jury’s function to resolve any conflicts between the witnesses’

       testimony). Merely because the jury did not find in defendants’ favor does not signify a failure to

       consider the evidence. See Kahn v. James Burton Co., 5 Ill. 2d 614, 623 (1955) (reviewing court

       will not set aside a verdict merely because the jury could have found differently or because we

       feel that other conclusions would be more reasonable).

¶ 53          In this case, we cannot say that the jury’s determination was unreasonable, arbitrary, and

       not based on the evidence presented or that the opposite conclusion is clearly apparent. The

       verdicts were not against the manifest weight of the evidence.

¶ 54                                   III. Legally Inconsistent Verdicts

¶ 55          The question still remains whether a new trial is justified on the basis that the jury’s

       disparate findings as to Amanda’s negligence are legally inconsistent.

¶ 56          A “legally inconsistent verdict” is one:

              “in which the same element is found to exist and not to exist, as when a defendant is

              acquitted of one offense and convicted of another, even though the offenses arise from

              the same set of facts and an element of the second offense requires proof that the first

              offense has been committed.” Black’s Law Dictionary 1791 (10th ed. 2014).

       There is no authority for the proposition that verdicts in a civil case must be without any

       conceivable flaw in logic, only that they must be legally consistent. Redmond, 216 Ill. 2d at 650.


                                                         21
       A “verdict is not legally inconsistent unless it is absolutely irreconcilable.” Tedeschi v.

       Burlington Northern R.R. Co., 282 Ill. App. 3d 445, 449 (1996). Reviewing courts will exercise

       all reasonable presumptions in favor of a jury’s verdict. Redmond, 216 Ill. 2d at 643-44. Verdicts

       will not be considered irreconcilably inconsistent if they are supported by any reasonable

       hypothesis. Id.

¶ 57          In Illinois, comparative negligence allows parties to recover damages that are not

       attributable to their own fault. Alvis v. Ribar, 85 Ill. 2d 1, 16 (1981). A comparative negligence

       instruction permits the trier of fact to reduce a plaintiff’s damages by the percentage of fault

       attributable to the plaintiff. Id. at 25. Under this standard, however, the party seeking to reduce

       the damage award bears the burden of proving by a preponderance of the evidence the essential

       elements of an action in negligence. Boasiako v. Checker Taxi Co., 140 Ill. App. 3d 210, 213

       (1986). Comparative negligence applies when “[t]he plaintiff’s negligence is a legally

       contributing cause of [her] harm if, but only if, it is a substantial factor in bringing about [her]

       harm and there is no rule restricting [her] responsibility for it.” Restatement (Second) of Torts

       § 465(1) (1965).

¶ 58          In Boasiako, the appellate court upheld a verdict finding the plaintiff in an automobile

       collision 40% negligent for his own injuries but not guilty on a counterclaim alleging that he

       caused property damage to defendant’s vehicle. Boasiako, 140 Ill. App. 3d at 211. On appeal,

       defendants argued that because the same individual was found 40% at fault in one verdict, but

       not negligent in the other, the verdicts were legally inconsistent and could not stand. The

       appellate court held that the two verdicts were consistent, stating that “[t]he principles of

       comparative negligence do not relieve [counterplaintiff] of proving by a preponderance of the

       evidence the essential elements of an action in negligence.” Id. at 213. It noted that the jury could


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       determine that the plaintiff’s damages should be reduced based on his own negligence and still

       conclude that the defendants failed to prove the elements of their counterclaim. Id.

¶ 59            Here, as in Boasiako, the jury’s decisions as to whether Amanda contributed to the death

       of Jill and whether she contributed to her own injuries addressed distinctly different claims. They

       are reconcilable because the jury could have rationally decided that defendants did not prove by

       a preponderance of the evidence one or more elements of the comparative negligence defense

       against the wrongful death claim, even though it determined that defendants satisfied the burden

       of proof of the comparative negligence defense against the bodily injury claim.

¶ 60            On the claim of wrongful death, Amanda and Clingan testified the Pledge pursued the

       SUV through the University Avenue intersection at an excessive rate of speed. As he approached

       the intersection, Pledge announced on the dash camera video that he was traveling 100 miles per

       hour. Alpert further testified that no reasonable person could have detected Pledge’s squad car

       and reacted in enough time to avoid the collision in the two seconds Amanda had to see Pledge

       after the SUV passed through her line of sight at the intersection. Thus, the jury could have made

       the reasonable hypothesis that defendants failed to meet their burden of proving that Amanda

       disregarded the safety of her mother or that her breach of duty was a proximate cause of Jill’s

       death.

¶ 61            On Amanda’s claim for her own injuries, she testified that she suffered a fractured

       scapula and experienced nightmares and flashbacks after the accident. Her psychiatrist, Dr.

       McFaul, testified that Amanda first sought medical treatment for her post-traumatic stress in

       2006, two years after the accident. He noted that Amanda reduced her Zoloft medication in

       January 2010 and had discontinued her medication when he saw her on April 12, 2010. At that

       time, Amanda had escalated symptoms of anxiety and could not eat. He testified that once she


                                                       23
       started taking her medication again, as previously prescribed, her condition improved. Thus, the

       jury could have found that Amanda’s failure to timely seek and maintain psychiatric care

       contributed to her emotional injuries.

¶ 62          Based on the evidence presented to the jury, it is not inconsistent to assess a percentage

       of fault to Amanda for one claim but not the other. The jury could have reasonably determined

       that Jill’s death was solely caused by Pledge, while concluding that Amanda’s failure to seek and

       follow the advice of her doctor contributed to her emotional pain and suffering. Thus, the jury’s

       verdict was supported by a reasonable hypothesis that Amanda contributed to her own injuries

       but did not contribute to the death of Jill. See Lee, 152 Ill. 2d at 470 (where the jury has a

       reasonable basis for its award, a reviewing court will not disturb its verdict). The verdicts are not

       inconsistent and do not require a new trial.

¶ 63                                             CONCLUSION

¶ 64          The judgment of the circuit court of McDonough County is reversed, and the cause is

       remanded with directions to reinstate the jury’s verdicts on both claims, as well as the order

       allocating damages. On remand, the court is directed to award postjudgment interest from the

       date of the final judgment, March 27, 2017, to the date of satisfaction. See 735 ILCS 5/2-1303

       (West 2016).

¶ 65          Reversed and remanded with directions.




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