                                Illinois Official Reports

                                        Appellate Court



                            Lorenz v. Pledge, 2014 IL App (3d) 130137




Appellate Court           MARK LORENZ, GARY LORENZ, and LESLIE LORENZ,
Caption                   Plaintiffs, v. THOMAS PLEDGE and THE McDONOUGH
                          COUNTY SHERIFF’S DEPARTMENT, Defendants-Appellees
                          (Brian Dayton, Individually and as the Special Administrator of the
                          Estate of Jill D. Dayton, Deceased, and Amanda Dayton Nehring,
                          Plaintiffs-Appellants).



District & No.            Third District
                          Docket No. 3-13-0137


Filed                     February 5, 2014
Modified upon
denial of rehearing       June 24, 2014



Held                       In a wrongful death and personal injury action arising from a collision
(Note: This syllabus that occurred when a vehicle driven by one of the plaintiffs made a left
constitutes no part of the turn in front of a sheriff’s squad car engaged in a chase, the verdict for
opinion of the court but the sheriff’s department and the deputy was reversed and the cause
has been prepared by the was remanded for a new trial on the ground that the trial court erred in
Reporter of Decisions admitting the line-of-sight video submitted by defendants, since the
for the convenience of conditions existing at the time of the video were not the same as those
the reader.)               when the accident occurred and there existed significant differences in
                           the details of the video and the facts at trial, and although the defense
                           informed the jury that the video was not a re-creation of the crash, the
                           requirements for the admission of demonstrative evidence were not
                           met and plaintiffs were prejudiced; furthermore, the limiting
                           instruction given about the video was confusing and improper and did
                           not track the applicable pattern instruction.
     Decision Under          Appeal from the Circuit Court of McDonough County, No. 06-L-9;
     Review                  the Hon. Richard H. Gambrell, Judge, presiding.



     Judgment                Reversed and remanded.


     Counsel on              John M. Spesia (argued), Kent Slater, and Jacob Gancarczyk, all of
     Appeal                  Spesia, Ayers & Ardaugh, of Joliet, for appellants.

                             Craig L. Unrath (argued), of Heyl, Royster, Voelker & Allen, of
                             Peoria, and Matthew R. Booker and Douglass R. Bitner, of Heyl,
                             Royster, Voelker & Allen, of Springfield, for appellees.




     Panel                   JUSTICE O’BRIEN delivered the judgment of the court, with
                             opinion.
                             Justice Carter concurred in the judgment and opinion.
                             Justice Schmidt concurred in part and dissented in part upon denial of
                             rehearing, with opinion.




                                             OPINION

¶1         Plaintiffs Brian Dayton, individually and as special administrator of the estate of Jill
       Dayton, deceased, Amanda Dayton Nehring, and others not involved in this appeal, filed
       personal injury and wrongful death actions against defendants Thomas Pledge and the
       McDonough County sheriff’s department, for damages they sustained following a car
       accident between the Daytons’ minivan and a sheriff’s squad car. Following a trial, the jury
       entered a verdict in favor of Pledge and the sheriff’s department. The Daytons appealed. We
       reverse and remand for a new trial.

¶2                                             FACTS
¶3         On September 3, 2004, at approximately 11:30 p.m., defendant McDonough County
       sheriff’s department received a call regarding an erratically driven sport utility vehicle
       (SUV). Defendant Deputy Thomas Pledge, who responded to the call, located and observed
       the SUV. His squad video activated, and after seeing the SUV swerve several times, Pledge
       effectuated a traffic stop. As Pledge approached the stopped SUV, it sped away, and he
       pursued the vehicle. The SUV and Pledge proceeded southbound on Route 67, heading into
       Macomb. Pledge’s vehicle reached speeds as high as 110 miles per hour and was traveling at


                                                 -2-
     100 miles per hour approximately four seconds before he entered the intersection of Route 67
     and University Drive. The SUV turned off its headlights as it neared the intersection.
¶4       At the same time the SUV and Pledge were speeding toward the intersection, a minivan
     traveling northbound on Route 67 and occupied by 16-year-old Amanda Dayton, the driver;
     her mother, Jill Dayton, in the passenger seat; and their friend, Mark Lorenz, in the backseat,
     entered the intersection’s center turn lane to proceed left onto University Drive. The SUV
     passed through the intersection, and as Amanda began the left turn, the squad entered the
     intersection and struck the minivan on the passenger side. Pledge, Amanda and Lorenz were
     injured, and Jill was killed in the accident.
¶5       Plaintiffs Mark Lorenz, Gary Lorenz, Leslie Lorenz (collectively, the Lorenzes), Brian
     Dayton, individually and as special administrator of the estate of Jill Dayton, and Amanda
     Dayton Nehring (collectively, the Daytons) sought to recover damages for their injuries from
     Pledge, individually and as a McDonough County deputy sheriff, and the McDonough
     County sheriff’s department (collectively, the McDonough County defendants). The
     Lorenzes are not part of this appeal. The fourth amended complaint asserted wrongful death
     and bodily injury against Pledge and the sheriff’s department. The complaint alleged that
     Pledge acted both negligently, and willfully and wantonly, and violated provisions of several
     statutes and the sheriff’s department pursuit policy.
¶6       Both parties filed motions in limine. The Daytons sought to preclude a videotape
     prepared by a defense expert witness, Michael O’Hern. The video portrays a visibility or
     line-of-sight study undertaken by O’Hern and designed to give an indication of the line of
     sight down Route 67 that Amanda would have had from the left-turn lane. The Daytons
     argued that the video was an enactment of the crash and its probative value was outweighed
     by its prejudicial effect. Following a hearing, the trial court denied the motion in limine. The
     McDonough County defendants filed a motion for summary judgment, arguing that
     additional negligence counts the Daytons added in their fourth amended complaint were
     barred by tort immunity. The new counts alleged that Pledge was not executing or enforcing
     the law when he pursued the SUV, which the Daytons argued precluded Pledge and the
     sheriff’s department from the protection of tort immunity. The motion was heard and denied,
     and the McDonough County defendants filed a motion seeking certification for an
     interlocutory appeal. The trial court denied the motion for certification.
¶7       A jury trial ensued. Testifying for the Daytons were Pledge, expert witness Robert
     Johnson, Amanda Dayton Nehring, and Brian Dayton. Evidence depositions of an occurrence
     witness and a medical doctor were read into evidence. The occurrence witness testified that
     she saw the accident occur and that the Dayton minivan was starting to turn left when the
     squad car collided with it. The squad car did not swerve or brake and its brake lights did not
     come on. Michael O’Hern testified as an expert witness for the defense. He created the
     line-of-sight video in response to an early claim by the Daytons that there were trees
     blocking Amanda’s visibility. He undertook the experiment to determine whether there were
     any structures impeding Amanda’s view; whether she could see Pledge’s squad car; and
     whether it was necessary for her to yield to oncoming traffic. O’Hern reiterated a number of
     times that the video was not a reconstruction of the accident and explained the various
     differences between the conditions of the actual crash and the line-of-sight experiment,
     including speed, lane position, static position from the left lane, normal driving conditions,
     and an illuminated SUV. The conclusion O’Hern reached from the experiment was that

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       Amanda had a “clear line of sight of both southbound lanes of traffic” for one-half mile as
       observed from the left-turn lane. In addition to the video, O’Hern also based his opinion on
       his experience and training.
¶8          The Daytons timely objected to use of the video, arguing it was cumulative, inaccurate,
       and confusing, and that its probative value was outweighed by its prejudicial effect. The trial
       court overruled the objection and gave a limiting instruction to the jury as follows:
                “The witness has explained why the video was produced and you should consider it
                only for purposes of the consideration that the witness took of the information that’s
                contained therein. You can consider the material for that purpose in deciding what
                weight, if any, you give the opinions that have been testified to by the witness.”
¶9          Based on O’Hern’s review of the squad car video, he concluded that Amanda’s line of
       sight was blocked for one second by the passing SUV but the squad’s emergency lights were
       still visible, and that Amanda could see the approaching squad for 13 to 15 seconds before
       the impact. He further opined that Pledge was traveling at 86 miles per hour entering the
       intersection, slowed to 73.9 miles per hour prior to impact, and to 70 miles per hour at
       impact. O’Hern stated that Amanda “would have a duty to yield and stop and not engage in
       that left turn maneuver in front of the vehicle.” He opined that Amanda had a duty to yield to
       oncoming traffic in general, and to emergency vehicles in particular, when turning left. In
       O’Hern’s professional opinion, Amanda’s failure to yield was the cause of the accident and
       Pledge operated with due regard for the public’s safety.
¶ 10        Pledge testified, in part, that he was aware of the license plate number of the SUV before
       he began to pursue the vehicle. He also heard on the police monitor that the Macomb police
       were placing spike strips to stop the SUV and were prepared to apprehend the driver. He
       anticipated that the SUV would ultimately crash and that it created a “huge safety concern”
       by traveling without its headlights. Pledge knew his speed reached 110 miles per hour during
       the pursuit. He saw the Dayton minivan in the left-turn lane but opted to proceed through the
       intersection in order to keep the SUV in sight. Pledge grew up in the Macomb area and was
       familiar with the intersection where the accident occurred and was aware that other accidents
       occurred there, often involving left-turning vehicles. As an officer, Pledge had responded to
       some of the accident scenes at the intersection. Pledge was also aware that Western Illinois
       University (WIU) was in session, increasing the population in the area of the intersection,
       which was an entrance to campus. It was a holiday weekend, which also increased pedestrian
       and vehicular traffic.
¶ 11        Pledge further testified regarding the sheriff’s department policy regarding high speed
       pursuits. The policy stated that “ ‘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.” (Emphasis in original.) The policy also provides that it is not
       inconsistent with the pursuit policy “that it is sometimes better to discontinue pursuit, than to
       continue pursuit and risk the consequences.” The policy provides other regulations and
       procedures regarding “fresh pursuit,” including advising that the officer must consider, “most
       importantly, the safety of citizens, whose protection is his major objective.” The policy
       allows officers in pursuit to exceed the speed limit and violate other traffic regulations, but
       only with the squad’s lights and siren employed and “[i]f the utmost safety is insured for self
       and others.” Finally, the policy provides that an officer engaged in pursuit is not “relieved of


                                                   -4-
       his duty to drive with ‘due regard’ for the safety of all persons, nor protected from the
       consequences of any reckless disregard for their safety.”
¶ 12       Closing arguments took place. Counsel for the Daytons argued that Amanda’s vehicle
       was only visible for five seconds before the collision as indicated in the squad video. The
       defense objected, to which the trial court responded, as follows:
                   “The objection is that you have misstated the fact. That is, I believe that there was
               testimony or some sort of evidence that there was a period of five seconds within
               which the squad car would have been viewed, and my recollection of the evidence is
               that there was no such testimony from any of the occupants of the [mini]van. There
               was no testimony from the evidence deposition of the occurrence witness, and there
               was no testimony of five seconds. The only testimony that I heard was the opinion
               witness of the defense.”
¶ 13       During deliberations the jury asked to see the squad car video, along with other evidence.
       The video was replayed for the jury. The jury returned a verdict for the McDonough County
       defendants and against the Daytons. The Daytons filed a posttrial motion, maintaining that
       the O’Hern video was improperly admitted; O’Hern improperly gave an opinion on
       Amanda’s duty; they were prejudiced by the defense’s closing argument; and the trial court
       failed to properly instruct the jury. The Daytons’ motion was heard and denied. They
       appealed.

¶ 14                                             ANALYSIS
¶ 15       The Daytons raise four issues on appeal. They challenge the trial court’s rulings on the
       admission of the defense’s line-of-sight video; the limiting instruction concerning the video;
       the limitations on their closing argument; and the defense expert’s testimony regarding
       Amanda’s duty.
¶ 16       The first issue is whether the trial court erred in admitting the defense video. The Daytons
       argue that the line-of-sight video submitted by the defense was improperly admitted. They
       maintain the conditions shown in the video were not substantially similar to the conditions of
       the accident, and the video was inaccurate, misleading, and confusing, unfairly biased to the
       defense theory, and an informal accident reconstruction.
¶ 17       The general guidelines for the admission of experiments are found in Illinois Rules of
       Evidence 401 and 402 (Ill. R. Evid. 401, 402 (eff. Jan. 1, 2011)) regarding relevant and
       irrelevant evidence. Relevant evidence is any evidence that has a tendency to make the
       existence of a fact of consequence in the case more probable or less probable than it would
       be without the evidence. Voykin v. Estate of DeBoer, 192 Ill. 2d 49, 57 (2000); People v.
       Monroe, 66 Ill. 2d 317, 321-22 (1977). In addition, a court may exercise its discretion and
       exclude evidence, even if it is relevant, if the danger of unfair prejudice substantially
       outweighs its probative value. Ill. R. Evid. 403 (eff. Jan. 1, 2011); People v. Hanson, 238 Ill.
       2d 74, 102 (2010). Distinguishing between an experiment (substantive evidence) and the use
       of demonstrative evidence (explanatory evidence) is sometimes difficult and confusing. See
       People v. Hayes, 353 Ill. App. 3d 355, 360 (2004); Foster v. Devilbiss Co., 174 Ill. App. 3d
       359, 365 (1988); Michael H. Graham, Graham’s Handbook of Illinois Evidence § 401.11, at
       190 (10th ed. 2010).



                                                   -5-
¶ 18        The foundational requirements for the admission of experiments or tests is “whether the
       ‘essential conditions’ or ‘essential elements’ of the experiment are substantially similar” to
       the conditions at the time of the accident. Brennan v. Wisconsin Central Ltd., 227 Ill. App. 3d
       1070, 1087 (1992). If an experiment is presented as a reenactment, the proponent must
       establish the test was performed under conditions closely duplicating the accident. Brennan,
       227 Ill. App. 3d at 1087. When an experiment is designed to test only one aspect or principle
       related to the cause or result of the accident at issue, the exact conditions of the accident do
       not need to be replicated but that particular aspect or principle must be substantially similar.
       Galindo v. Riddell, Inc., 107 Ill. App. 3d 139, 144 (1982). This court reviews evidentiary
       errors for an abuse of discretion. Bosco v. Janowitz, 388 Ill. App. 3d 450, 463 (2009). The
       admission of demonstrative evidence that may confuse or mislead the jury, or prejudice a
       party, constitutes an abuse of the trial court’s discretion. Hernandez v. Schittek, 305 Ill. App.
       3d 925, 932 (1999). Where a trial court abuses its discretion in admitting evidence, a
       reviewing court should grant a new trial only where “the error was substantially prejudicial
       and affected the outcome of the case.” Taluzek v. Illinois Central Gulf R.R. Co., 255 Ill. App.
       3d 72, 83 (1993).
¶ 19        It is proper to exclude experiments to determine the extent of visibility prior to the
       accident in question if the conditions are not substantially similar. See Kent v. Knox Motor
       Service, Inc., 95 Ill. App. 3d 223, 226 (1981) (where type of vehicle, light condition, and
       conditions of highway in line-of-sight test were not the same, nor substantially the same, as
       during the accident, the trial court’s refusal to admit experiment to determine extent of
       driver’s visibility was not an abuse of discretion); Amstar Corp. v. Aurora Fast Freight, 141
       Ill. App. 3d 705, 709 (1986) (proper to exclude videotape where the difference in vantage
       point from position of video camera and position of driver was significant and misleading);
       French v. City of Springfield, 65 Ill. 2d 74, 81-82 (1976) (city was prejudiced by improper
       admission of motion picture, which depicted area where accident occurred and
       preconditioned the minds of the jurors to accept the plaintiff’s theory of the case). This court
       recently addressed the same issue presented here in Johnson v. Bailey, 2012 IL App (3d)
       110016, and rejected arguments similar to those presented by the McDonough County
       defendants. In Johnson, the trial court improperly admitted photographs that the defense
       argued portrayed the layout of the gas station parking lot where the plaintiff was injured in a
       collision with the defendant. Johnson, 2012 IL App (3d) 110016, ¶ 15. One vehicle shown in
       the photo accurately represented the position of the defendant’s vehicle but the second
       vehicle in the photo was not in a location substantially similar to the location of the plaintiff’s
       vehicle when the accident occurred. Johnson, 2012 IL App (3d) 110016, ¶ 15. In addition to
       depicting the lot’s layout and traffic flow, the photos also showed an inaccurate location of
       the plaintiff’s vehicle, which we considered could mislead the jury. Johnson, 2012 IL App
       (3d) 110016, ¶ 15. Because the photographs did not accurately portray the location of
       plaintiff’s vehicle, we found that the foundation was incomplete and the plaintiff was
       prejudiced by their improper admission. Johnson, 2012 IL App (3d) 110016, ¶ 16.
¶ 20        The same circumstances are present in the instant case. The video does not meet the test
       for admissibility of experimental evidence. For the video to satisfy the foundational
       requirements, the defense needed to establish that the essential conditions of the line-of-sight
       experiment were substantially similar to those that existed when the accident occurred. It is
       undisputed that the essential conditions regarding line of sight were not substantially similar


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       when the video was created. The pursuit involved speeds in excess of 100 miles per hour,
       while the SUV and squad car in the video were driving at 40 miles per hour. The vehicles in
       the experiment were in a different lane than the SUV and Pledge’s vehicle, and standing
       traffic is visible in the video that was not present when the accident occurred. The SUV’s
       lights were on in the video, contrary to the pursued SUV, which had turned off its lights
       during the pursuit. The video was taken from a static position in the left-turn lane, while the
       evidence at trial suggests Amanda’s minivan was consistently moving through the
       intersection.
¶ 21       The McDonough County defendants expressly admit the differences exist, but argue that
       they go to the weight the jury should give the evidence, not to its admissibility. The
       defendants assert the jury was informed repeatedly throughout the trial that the line-of-sight
       experiment was not a re-creation of the accident. We agree with the defense that it repeatedly
       informed the jury that the video was not a re-creation. Nevertheless, that does not relieve the
       McDonough County defendants of the obligation to demonstrate that the essential conditions
       of the line-of-sight evidence offered by their expert were substantially similar to the
       conditions as they appeared in Amanda’s line of sight at the time of the accident. The various
       differences, as discussed above, preclude any substantial similarities regarding line-of-sight
       conditions. Like the defendant in Johnson, the McDonough County defendants cannot
       establish that the essential conditions regarding Amanda’s line of sight were substantially
       similar to the conditions existing when the video experiment was performed. Because the
       defendants cannot satisfy the requirements for the admission of demonstrative evidence, we
       find the video was admitted in error.
¶ 22       We further find that the improper admission prejudiced the Daytons. A critical issue in
       the case was Amanda’s negligence. The effect of the video was to precondition the jury to
       accept the defense’s theory of the accident. Because its essential conditions were not
       substantially similar to conditions when the accident took place, the video had the potential
       to confuse and mislead the jury. The video depicted a different scene than Amanda would
       have seen when the accident occurred and offered a portrayal of the accident’s circumstances
       favorable to the defense. The prejudicial impact of the video outweighed its probative value
       and precluded its admission.
¶ 23       We find that the trial court abused its discretion in allowing the video to be admitted into
       evidence and that the Daytons are entitled to a new trial. Although the resolution of the first
       issue is dispositive, we briefly address the other issues the Daytons raise on appeal to the
       extent they are likely to arise in the new trial.
¶ 24       The Daytons challenge the limiting instruction provided by the trial court regarding the
       defense video, asserting it was confusing, prejudicial and improper. We agree. The Illinois
       Pattern Jury Instructions provide the following instruction on evidence admitted for a limited
       purpose:
                    “The following evidence concerning [(describe evidence)] is to be considered by
                you solely as it relates to [(limited subject matter)]. It should not be considered for
                any other purpose.” Illinois Pattern Jury Instructions, Civil, No. 2.02 (2000)
                (hereinafter, IPI Civil (2000) No. 2.02).
       The trial court instructed the jury as follows:
                    “The witness has explained why the video was produced and you should consider
                it only for purposes of the consideration that the witness took of the information that’s

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               contained therein. You can consider the material for that purpose in deciding what
               weight, if any, you give the opinions that have been testified to by the witness.”
¶ 25       The trial court’s limiting instruction did not track the language of the applicable pattern
       jury instruction. See IPI Civil (2000) No. 2.02. The trial court must give instructions that
       fairly and accurately state the law and are clear enough so the jury is not misled. Eskew v.
       Burlington Northern & Santa Fe Ry. Co., 2011 IL App (1st) 093450, ¶ 31. The limiting
       instruction given by the trial court did not clearly or comprehensively inform the jury that the
       video’s limited purpose related only to line of sight as the basis for the defense expert’s
       opinion.
¶ 26       The Daytons also challenge the trial court’s limitation on their closing argument, arguing
       that the trial court prevented them from offering an inference arising from the squad car
       video. In closing argument, counsel for the Daytons inferred that the squad video depicts a
       five-second period when Amanda could see the approaching squad based on when her
       minivan comes into view on the video. We consider the Daytons’ argument to be supported
       by the evidence presented. The squad video, admitted as substantive evidence without
       objection, was viewed by the jury, which was capable of determining the amount of time it
       thought Amanda had to see the squad car. The opinion of the defense expert that the squad
       was visible to Amanda for 13 seconds was based on his viewing of the squad video. The jury
       was free to reject his conclusion in favor of its own determination based on what the jurors
       saw in the squad video, which was equipped with audio and an onscreen timer. Watching the
       video and counting the seconds are not beyond the ken of the ordinary juror and not subjects
       limited to expert testimony. Kimble v. Earle M. Jorgenson Co., 358 Ill. App. 3d 400, 412-13
       (2005). At retrial, the trial court should not limit the Daytons’ presentation of this argument,
       if appropriate.
¶ 27       Lastly, the Daytons argue that the trial court improperly allowed the defense expert to
       testify regarding Amanda’s duty and that the testimony misstated Illinois duty law and
       prejudiced them. We find there was no error in O’Hern’s testimony regarding Amanda’s
       duty. It is well settled that an expert may opine on an ultimate fact or issue as long as the
       other requirements for the expert testimony are met. Jackson v. Seib, 372 Ill. App. 3d 1061,
       1071 (2007). O’Hern testified that Amanda had a duty to yield to Pledge’s emergency
       vehicle before executing the left turn and that, based on his training, education and
       experience, the cause of the accident was Amanda’s failure to yield. O’Hern’s opinion does
       not impermissibly intrude on the jury’s role because the jury was free to reject O’Hern’s
       opinion. Zavala v. Powermatic, Inc., 167 Ill. 2d 542, 545 (1995).
¶ 28       The dissent claims that it is not necessary to reach the evidentiary issues because, as a
       matter of law, the Daytons cannot demonstrate that Pledge’s actions were willful and wanton.
       To adopt the view of the dissent would be to grant immunity to the police in this
       circumstance when the legislature has specifically declined to do so in the Tort Immunity
       Act. See Suwanski v. Village of Lombard, 342 Ill. App. 3d 248, 259 (2003).
¶ 29       The facts in this case are similar, but not identical, to cases cited by the McDonough
       defendants, and are likewise similar, but not identical, to cases cited by the Daytons in
       support of each side’s argument concerning the imposition of a duty. See, e.g., Hall v.
       Village of Bartonville Police Department, 298 Ill. App. 3d 569 (1998); Suwanski v. Village of
       Lombard, 342 Ill. App. 3d 248 (2003). It is precisely because of the intense focus on the
       particular facts of each case that the determination of whether Pledge’s actions were willful

                                                  -8-
       and wanton are factual matters for the jury to decide. Doe-3 v. McLean County Unit District
       No. 5 Board of Directors, 2012 IL 112479, ¶ 45.
¶ 30       In denying the motion for summary judgment, the trial court found there were many
       factors that weighed for and against a determination of willful and wanton conduct and such
       a determination was a jury question. Evidence was presented at trial bearing on whether
       Pledge’s pursuit was willful and wanton and included the following. Pledge testified he knew
       the license plate number of the SUV before the pursuit began; he knew that the Macomb
       police department had placed spike strips to stop the fleeing SUV; other accidents involving
       vehicles turning left had occurred at the intersection; and there was an increased population
       in the area of the intersection because school was in session and it was a holiday weekend.
       Pledge was also aware that his speed reached 110 miles per hour at one point in the pursuit.
       He saw the Dayton vehicle in the center lane intending to turn left. Pledge believed that the
       SUV would crash during the pursuit and that the SUV created a “huge safety concern” to
       vehicular and pedestrian traffic by traveling with its lights off.
¶ 31       Pledge also acknowledged the existence of and his familiarity with the sheriff’s
       department pursuit policy. The policy allowed officers to engage in a high-speed pursuit only
       with the “utmost safety” and when the officer knows or has reasonable grounds to believe
       that the subject of the pursuit has committed or is going to commit a serious felony. A serious
       felony is one involving “an actual or threatened attack.” Pledge did not know at the time of
       the pursuit whether the SUV driver had committed or was going to commit a serious felony
       involving “actual or threatened attack.” He admitted the pursuit did not meet the criteria of
       the policy but believed it was proper under the circumstances. Pledge admitted it was
       unlikely the SUV was going to stop as a result of the pursuit and in light of its flight from the
       earlier stop and extinguishing its lights to avoid detection by the police. Lastly, an eyewitness
       to the accident testified that she saw the minivan begin the left turn and then get hit by the
       squad car. The officer did not attempt to swerve or brake and she did not observe the squad
       car’s brake lights come on. Based on the evidence presented, we find that the trier of fact is
       entitled to determine whether Pledge’s actions were willful and wanton after considering all
       of the evidence.
¶ 32       For the foregoing reasons, the judgment of the circuit court of McDonough County is
       reversed and the cause remanded.

¶ 33      Reversed and remanded.

¶ 34                   SEPARATE OPINION UPON DENIAL OF REHEARING
¶ 35       JUSTICE SCHMIDT, concurring in part and dissenting in part.
¶ 36       As the majority notes, plaintiffs raise four arguments on appeal: two issues relate to the
       line-of-sight video, one relates to the trial court allegedly limiting plaintiffs’ argument during
       closing, and the final issue concerns the defense expert’s testimony regarding Amanda’s
       duty. Supra ¶ 15. I concur with the majority that the trial court committed no error in
       allowing the defense expert to opine on Amanda’s duty. I dissent from the remainder of the
       majority’s opinion.
¶ 37       The three remaining issues cannot serve as a basis to nullify the jury’s verdict for
       numerous reasons. First, this matter never should have proceeded to trial, rendering any


                                                   -9-
       potential trial errors harmless. Second, assuming that the trial court properly denied
       defendants’ motion for summary judgment, it did not abuse its discretion when admitting the
       line-of-sight video, instructing the jury or during plaintiffs’ closing argument. Finally, the
       jury’s verdict makes clear that it found Deputy Pledge did not act willfully or wantonly. As
       the alleged errors are only relevant to Amanda’s comparative fault and have no bearing on
       Pledge’s actions, they are harmless at best. Even if the verdict had not made it clear, the
       verdict in favor of defendants and against Amanda is a general verdict. The alleged error only
       went to Amanda’s alleged negligence. If we cannot know on which basis the jury ruled, the
       error is not reversible. Witherell v. Weimer, 118 Ill. 2d 321 (1987).

¶ 38                 I. Defendants’ Motion for Summary Judgment/Directed Verdict
¶ 39       It is clear that this case never should have gone to trial and, therefore, any errors in
       evidentiary rulings are, at best, harmless and not a proper basis for reversal. Wade v. City of
       Chicago, 364 Ill. App. 3d 773, 784-85 (2006). Likewise, defendants’ motion for directed
       verdict should have been granted. The evidence at trial clearly establishes that defendants’
       motion for summary judgment should have been granted. While those with nothing more
       important to do can sit and ponder whether Pledge’s decision to follow the fleeing vehicle
       was negligent, no reasonable person could conclude that his actions constituted willful and
       wanton conduct. As a matter of law, the deputy’s conduct did not constitute willful and
       wanton misconduct.
¶ 40       Willful and wanton conduct is “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
       2010). Our supreme court has held that “[w]illful and wanton conduct is found where an act
       was done with actual intention or with a conscious disregard or indifference for the
       consequences when the known safety of other persons was involved.” (Internal quotation
       marks omitted.) Burke v. 12 Rothschild’s Liquor Mart, Inc., 148 Ill. 2d 429, 451 (1992).
¶ 41       The defendants argue that any errors in evidentiary rulings were harmless because the
       plaintiffs, as a matter of law, failed to prove that Pledge was guilty of willful and wanton
       conduct. In dealing with this argument, the majority virtually ignores all the case law cited by
       defendants, including cases from this court affirming summary judgment granted in police
       pursuit cases. The majority’s “analysis” consists of saying that the cases cited by defendants
       in support of their arguments contained “similar, but not identical” facts to those presented
       here. Supra ¶ 29. The majority does not explain what facts made this case similar to the case
       cited by plaintiffs, or why the facts in this case compel a result different than those reached in
       the cases cited by defendants.
¶ 42       The majority simply proclaims, “It is precisely because of the intense focus on the
       particular facts of each case that the determination of whether Pledge’s actions were willful
       and wanton are factual matters for the jury to decide.” Supra ¶ 29. If that is a correct
       statement of the law, then summary judgment, directed verdict and judgment n.o.v. are all
       dead letters. One can only conclude that the majority rejects the notion of taking any issue
       away from the jury. If so, some transparency would be helpful. If the issues presented here
       are always jury questions, then the cases cited by defendants are wrong and the majority
       should say that it is rejecting them.


                                                   - 10 -
¶ 43       The majority argues above (supra ¶ 28) that to adopt my view would be to grant the
       police immunity in this circumstance, despite the legislature’s failure to do so. Of course, this
       argument is disingenuous. Neither defendants nor I have argued for immunity for willful and
       wanton misconduct. Defendants’ argument is straightforward; Pledge’s conduct in this case
       did not, as a matter of law, rise to the level of willful and wanton misconduct. Stated in
       another way, Pledge’s conduct in this case did not create a jury question as to whether it rose
       to the level of willful or wanton misconduct. Nonetheless, the majority’s mischaracterization
       of the dissent is probably the strongest argument in the majority opinion.
¶ 44       Likewise, in paragraph 29 above, the majority refers to “each side’s argument concerning
       the imposition of a duty.” Neither side argued, nor do I, about the imposition of a duty. First
       of all, if the existence of a duty were the issue that would clearly be a question of law. No
       one has argued that the defendant did not have a duty to refrain from willful and wanton
       misconduct. The majority then cites Doe-3 v. McLean County Unit District No. 5 for a
       general proposition of law which that case does not support.
¶ 45       Doe-3 involved a lawsuit brought by pupils of a Champaign County school that were
       molested by a teacher who previously worked in a McLean County school. Doe-3, 2012 IL
       112479, ¶ 3. The pupils claimed the McLean County school district acted willfully and
       wantonly by failing to fully disclose the teacher’s work history. Id. ¶ 8. The defendant
       McLean County school district filed motions to dismiss pursuant to sections 2-615 and
       2-619.1 of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619.1 (West 2010)), claiming it
       owed no duty of care to students in the Champaign County school district. Doe-3, 2012 IL
       112479, ¶ 9. Our supreme court very clearly stated, in its opening line of Doe-3, that the
       “issue in this case is whether defendants owed plaintiffs a duty of care.” Id. ¶ 1.
¶ 46       The majority herein cites to paragraph 45 of the Doe-3 opinion, claiming it mandates in
       “each case that the determination of whether Pledge’s actions were willful and wanton are
       factual matters for the jury to decide.” Supra ¶ 29. What the Doe-3 court actually said in
       paragraph 45 is this:
                    “Finally, we emphasize that our holding in this case is limited to finding, under
                the particular circumstances presented here, that the allegations in plaintiffs’
                complaints are sufficient to establish that defendants owed plaintiffs a duty of care.
                We express no opinion on whether defendants have breached their duty of care,
                whether defendants acted willfully and wantonly, and whether defendants’ breach
                was a proximate cause of plaintiffs’ injuries, which are factual matters for the jury to
                decide.” (Emphasis added.) Doe-3, 2012 IL 112479, ¶ 45.
¶ 47       Again, there is no dispute amongst the parties herein that Pledge owed plaintiffs a duty to
       refrain from acting willfully and wantonly. The majority cites to Doe-3 in an attempt to avoid
       distinguishing cases that hold a court may decide, as a matter of law, whether an officer acted
       willfully and wantonly when conducting a high speed pursuit.
¶ 48       One such case is Hall v. Village of Bartonville Police Department, 298 Ill. App. 3d 569
       (1998). In Hall, the driver of a vehicle that collided with a truck, which was being pursued by
       police, filed suit against the pursuing officer “alleging violations of department procedures,
       willful and wanton conduct, and reckless disregard for the safety of others.” Id. at 570-71. In
       affirming summary judgment on behalf of the officer and his department, this court
       highlighted main facts contained within the record, including: (1) the truck driver’s perceived
       intoxication; (2) the officer activated his lights and siren; (3) the officer noted the truck’s

                                                  - 11 -
       license plate number before the truck accelerated and sped off; (4) the chase occurred on a
       four-lane highway; (5) the location of the chase was not a densely populated urban area; (6)
       the weather was clear; (7) the road was dry; (8) the duration of the chase was relatively brief;
       and (9) the chase reached speeds of 105 miles per hour near the town of Bartonville. Based
       on those facts, this court affirmed the trial court’s conclusion, that as a matter of law, “the
       officer did not act in disregard for the safety of others.” Id. at 573.
¶ 49       The facts of Hall are incredibly similar to the case at bar. Yet, the majority relieves itself
       of its duty to explain why both the trial court and this court properly found the police officer
       in Hall did not act willfully or wantonly, as a matter of law, and yet a similar determination
       would be improper in this matter. The closest the majority comes to explaining why
       judgment as a matter of law is inappropriate in this case can be found at paragraph 30, supra.
       In it, the majority notes that Pledge knew the license number of the offending vehicle. So did
       the officer in Hall.
¶ 50       This is not a case where the officer would reasonably think, “Oh, I’ll arrest this guy
       tomorrow.” It is a case where a reasonable officer would think, “I’ve gotta get this idiot off
       the road.”
¶ 51       The majority then misquotes the record, claiming Pledge “knew that the Macomb police
       department had placed spike strips to stop the fleeing SUV.” Supra ¶ 30. He knew no such
       thing. During the 75-second chase, he heard over his radio “the Macomb Police Department
       talking about putting out spike strips.” He had no knowledge of where the Macomb police
       department might eventually put the spike strips. He had limited knowledge of how spike
       strips worked as his department did not use them. Since Pledge had “no assumption of where
       it was going to go,” I fail to see how the Macomb police department discussing the
       possibility of setting up spike strips at a location unknown to Pledge is evidence of willful
       and wanton conduct. There was no other evidence regarding the spike strips. Query: Just how
       would the Macomb police know where to put the spike strips unless someone was behind the
       reckless driver reporting his position?
¶ 52       The majority further cites the fact that Pledge “was also aware that his speed reached 110
       miles per hour at one point in the pursuit” as evidence “weighed for” a “determination of
       willful and wanton conduct.” Supra ¶ 30. Again, willful and wanton conduct can only be
       found where an act is done with actual intention to harm or with a conscious disregard or
       indifference for the consequences of your actions. Burke, 148 Ill. 2d at 451. Uncontroverted
       evidence indicated that as the vehicles approached town, Pledge had decreased his speed to
       between 70 and 75 miles per hour. The majority fails to explain how a jury could reasonably
       conclude that Pledge’s decision to significantly slow down as he entered town evinced an
       utter indifference for the safety of others. Instead, the majority simply states that Pledge
       knew his speed reached 110 miles per hour sometime during the incident. That is irrelevant.
       Had Pledge maintained that speed, he would have been through the intersection before
       Amanda turned.
¶ 53       The operative facts in this case are as follows: (1) the driver of the van fled a traffic stop
       and drove at a high rate of speed at night with no lights. (2) Pledge made the snap decision
       that it was best to follow this vehicle rather than let the vehicle continue to drive at a high
       speed with no lights. (3) The pursuit in this case was not the basis for the erratic driving by
       the suspect vehicle. It was in response to a citizen complaint to 911, reporting the suspect
       vehicle driving in an “erratic and menacing” manner. (4) Pledge had his lights and siren

                                                   - 12 -
       activated. (5) The pursuit occurred on a four-lane highway. (6) The location of the pursuit
       was not a densely populated urban area. (7) The weather was clear. (8) The road was dry. (9)
       The visibility was good. (10) The duration of the pursuit from the time the suspect vehicle
       fled the traffic stop to the collision was only 75 seconds. (11) Pledge entered the intersection
       on a green light. (12) The police officer’s speed at the time of impact was between 70 to 75
       miles per hour. (13) Sixteen-year-old Amanda Dayton Nehring made a left turn into the path
       of the oncoming police car, turning between the suspect vehicle and the police car.
¶ 54       To summarize, Pledge had his first encounter with the suspect vehicle after a citizen
       complaint about the nature of the vehicle’s driving. This obviates any argument that it was
       the presence of the police officer that caused the dangerous driving of the suspect vehicle.
       After the stop, the suspect vehicle fled toward Macomb at a high rate of speed with no lights.
       Pledge made a determination that it was better to try to stop that vehicle than it was to let it
       go. I should not need to list the obvious dangers to the public by a vehicle driving at a high
       rate of speed at night with no lights. The fact that the collision took place between the
       plaintiffs’ vehicle and the squad car as opposed to the plaintiffs’ vehicle and the suspect
       vehicle is simply a cruel twist of fate. Had the squad car not slowed, or had it gone faster, it
       likely would have been through the intersection before Amanda made the turn.
¶ 55       No reasonable person could conclude that this deputy’s decision to try to stop a vehicle
       that was driving at night at high speeds with no lights constituted willful and wanton
       behavior. As a matter of law, any error was harmless. Imagine, if you will, a police officer
       parked by the side of the road when a speeding car passes by at night with no lights. Would
       any thinking person suggest that the officer should do nothing because adding a police car
       with lights and siren to the mix would increase the danger?
¶ 56       In this case, we have a driver who is driving in an erratic and dangerous manner
       prompting at least one citizen to call the police. Pledge got behind him, observed more such
       conduct and made the stop. After stopping, the vehicle then fled, turning off its lights and
       driving at a high speed. Pledge determined that the best thing to do was try to stop that
       vehicle. Tragically, this accident happened when a 16-year-old driver made a left turn into
       the path of a police car, which was coming into an intersection at a high speed with its lights
       and siren activated. To suggest that Pledge’s conduct in deciding to try to stop the suspect
       vehicle constituted willful and wanton misconduct or that a jury could find willful and
       wanton misconduct on these facts flies in the face of common sense and numerous reported
       decisions. See, for example, Urban v. Village of Lincolnshire, 272 Ill. App. 3d 1087 (1995);
       County of Sacramento v. Lewis, 523 U.S. 833, 854 (1998); Wade v. City of Chicago, 364 Ill.
       App. 3d 773 (2006).
¶ 57       Plaintiffs argue that the deputy violated department guidelines; maybe so, but most
       probably not. Regardless, this deputy did what any reasonably qualified and conscientious
       police officer would have done faced with the same situation. More importantly, a violation
       of self-imposed rules or internal guidelines does not constitute evidence of willful and
       wanton misconduct. Wade, 364 Ill. App. 3d at 781.

¶ 58                                 II. Claimed Errors Are Harmless
¶ 59      Even if the trial court erred when admitting the video, instructing the jury as to the video
       and commenting during plaintiffs’ closing arguments, such alleged errors are harmless as a
       matter of law as all three of those issues are only relevant to Amanda’s comparative fault.

                                                  - 13 -
       None of those issues are relevant to whether Pledge acted with willful or wanton disregard
       for the safety of others.
¶ 60       If a circuit court commits an evidentiary error or errs when instructing a jury, “we must
       determine if that error is harmless or reversible.” Nolan v. Weil-McLain, 233 Ill. 2d 416, 429
       (2009). A “party is not entitled to reversal based upon the trial court’s evidentiary rulings
       unless the error substantially prejudiced the aggrieved party and affected the outcome of the
       case.” Wilbourn v. Cavalenes, 398 Ill. App. 3d 837, 848 (2010). “The party seeking reversal
       bears the burden of establishing such prejudice.” Id. The alleged errors of which plaintiffs
       complain are harmless.
¶ 61       Reversal is in no event appropriate as to the jury’s verdict in favor of defendants and
       against Amanda. With no objection from Amanda’s counsel, the trial court instructed the jury
       to complete verdict form K in favor of the defendants if “you find for defendants against
       Amanda Dayton Nehring on Count IX of the complaint, or if you find that plaintiff Amanda
       Dayton Nehring’s contributory negligence was more than 50% of the total proximate cause
       of the injury or damage for which she seeks recovery.”
¶ 62       Amanda’s counsel chose not to ask, through special interrogatory, whether any defense
       verdict against her was based on the jury’s belief that Pledge did not act willfully or wantonly
       or whether it was based on the belief that Amanda was more than 50% contributorily
       negligent for this accident. We need not speculate on the issue, as when “there is a general
       verdict and more than one theory is presented, the verdict will be upheld if there was
       sufficient evidence to sustain either theory, and the [party], having failed to request special
       interrogatories, cannot complain.” Witherell v. Weimer, 118 Ill. 2d 321, 329 (1987).
       Therefore, the alleged errors, even if error, are not reversible.
¶ 63       Moreover, it is clear from a review of the jury instructions and verdict forms returned that
       the jury found Pledge’s actions were not willful and wanton. While defendants filed an
       affirmative defense against Amanda arguing comparative fault, the jury instructions clearly
       state that if “you find that there was negligence on the part of the driver of the vehicle in
       which Mark Lorenz and Jill Dayton were riding, then the driver’s negligence cannot be
       charged to these passengers.” Undoubtedly, the verdict forms returned in favor of the
       passengers necessitated a finding that Deputy Pledge did not act willfully and wantonly
       toward those plaintiffs.
¶ 64       The errors complained of are irrelevant with respect to whether Pledge acted willfully or
       wantonly. The majority acknowledges that these errors weigh only upon Amanda’s
       comparative fault. While discussing the line-of-sight video, the majority makes no comment
       regarding how Amanda’s line of sight is relevant whatsoever to Pledge’s actions, yet
       acknowledges that “[a] critical issue in the case was Amanda’s negligence.” Supra ¶ 22.
       Again, it is the plaintiffs’ burden to explain how these errors substantially prejudiced them
       and affected the outcome of the case. Id. Plaintiffs, and the majority, have failed to explain
       how Amanda’s line-of-sight, or whether Amanda could see the squad car for more than five
       seconds, renders Pledge’s decision to pursue the vehicle more or less willful and wanton.
       Undoubtedly, those matters are relevant to Amanda’s comparative fault. However, the jury
       instructions and verdict forms indicate the jury clearly found Pledge did not act willfully and
       wantonly. As the alleged evidentiary errors are irrelevant to that finding, any potential error
       is harmless.


                                                  - 14 -
¶ 65                                  III. No Abuse of Discretion
¶ 66      I disagree with the majority’s conclusions that the trial court abused its discretion when
       admitting the line-of-sight video, instructing the jury regarding the video and when
       commenting on plaintiffs’ five-second argument during closing arguments.

¶ 67                                       a. Line-of-Sight Video
¶ 68       The majority acknowledges that the “jury was informed repeatedly throughout the trial
       that the line-of-sight experiment was not a re-creation of the accident” (supra ¶ 21) yet,
       nevertheless, concludes that for “the video to satisfy the foundational requirements, the
       defense needed to establish that the essential conditions of the line-of-sight experiment were
       substantially similar to those that existed when the accident occurred” (supra ¶ 20). The
       majority uses that passage to create a more exacting standard than our rules of evidence
       employ.
¶ 69       The majority acknowledges, then ignores, the evidentiary rule which holds that “when an
       experiment is not represented to be a reenactment of the accident and it deals with one aspect
       or principle directly related to the cause or result of the occurrence, the exact conditions of
       the accident need not be duplicated.” (Emphases added.) Galindo, 107 Ill. App. 3d at 144;
       supra ¶ 18. Clearly, the trial court found that the line-of-sight aspect of the accident and of
       the video were substantially similar to warrant the video’s introduction into evidence for the
       limited purpose of showing that singular aspect of the occurrence. I find that the trial court
       did not abuse its discretion on the matter. The authorities cited by the majority, Kent, Amstar
       Corp., French, and Johnson (supra ¶ 19) do not persuade me otherwise.
¶ 70       In Kent and Amstar Corp., each appellate court deferred to the discretion of the trial court
       when measuring the similarities or differences between the actual facts of the accident and
       the circumstances under which the videos sought to be introduced into evidence were
       created. Kent, 95 Ill. App. 3d at 225 (“The narrow issue to be determined is whether in the
       instant case the trial court abused its discretion by its ruling.”); Amstar Corp., 141 Ill. App.
       3d at 709 (“We believe, therefore, that the court’s discretion was not abused.”).
¶ 71       In French, our supreme court found the trial court erred when admitting a video with the
       stated “purpose *** to familiarize the jury with the area surrounding the accident.” French,
       65 Ill. 2d at 81. In reversing the trial court’s decision to admit the video, the French court
       specifically noted that the proffered video “was filmed in daylight, while the accident
       occurred at night.” Id. at 82. Moreover, the French court found that the trial judge made
       comments suggesting “that the film was a dry run of the events which occurred the night of
       the collision.” Id. No comments exist in the case at bar suggesting that the trial judge led the
       jury to believe this video was a “dry run” of the events of the night of the accident.
       Furthermore, both the video introduced herein and the accident occurred at night rendering
       this case significantly different than French.
¶ 72       The majority further justifies its decision to ignore the trial court’s discretion and negate
       the jury verdict by citing to Johnson, 2012 IL App (3d) 110016, a case in which a majority of
       this court followed a similar path. Strangely, the dissenting member of the Johnson court
       now cites Johnson with approval. I agree with the assessment of the dissent in Johnson that
       the Johnson majority failed to give proper deference to the trial court and the standard of
       review, instead, choosing to independently consider each similarity and difference between
       the photograph and scene, which were matters “that went to the weight of the evidence and

                                                  - 15 -
       not to the admissibility of the evidence.” Johnson, 2012 IL App (3d) 110016, ¶ 26 (Carter, J.,
       dissenting).
¶ 73       After observing the testimony of the witnesses, the trial court found sufficient similarities
       between the video and the facts of the accident to admit the video for the limited purpose of
       showing the line-of-sight of vehicles traveling in the direction of plaintiff’s vehicle. I cannot
       say no reasonable person could agree with the position taken by the trial court.

¶ 74                                         b. Jury Instruction
¶ 75        I also disagree with the majority’s conclusion that the trial court’s limiting instruction
       amounted to reversible error. Supra ¶ 25. Even assuming the instruction was erroneous for
       failing to follow IPI Civil (2000) No. 2.02 as the majority claims, such error is reversible
       only if it prejudiced the complaining party by misleading the jury and affecting the outcome
       of the trial. Solich v. George & Anna Portes Cancer Prevention Center of Chicago, Inc., 273
       Ill. App. 3d 977 (1995).
¶ 76        Ignoring the prejudice requirement, the majority concludes that the instruction amounted
       to reversible error as it “did not clearly or comprehensively inform the jury that the video’s
       limited purpose related only to line of sight as the basis for the defense expert’s opinion.”
       Supra ¶ 25. The majority cannot seriously be claiming that the jury was confused regarding
       the purpose of the video.
¶ 77        Four short paragraphs above its conclusion, the majority “agree[s] with the defense that it
       repeatedly informed the jury that the video was not a re-creation.” Supra ¶ 21. Moreover, just
       prior to the introduction of the video at trial, it’s creator, O’Hern, stated:
                    “The purpose of the video was there was–Mr. Johnson had given some indication
                that there were trees and stuff that blocked the view or the line of sight for Amanda
                Dayton and that was one of the issues of why she couldn’t see the squad car
                approaching. So obviously, going there in the daylight you can sit in that turn lane or
                be in that turn lane and look all the way down University Drive, see it all the way to
                Tower Road. So you could see it during the day. We did a video to just show that at
                night you can see all the way down there regardless of the lane you’re in. And,
                furthermore, that you can see the flashing lights of the squad car as it approaches the
                intersection.”
¶ 78        The number of times the parties referred to the video as a line-of-sight video and
       reminded the jury that it was not a reenactment are too numerous to count. Plaintiffs’ own
       counsel highlighted this fact as, on cross-examination, plaintiffs’ counsel read a part of
       O’Hern’s deposition transcript in which O’Hern testified that the reason the video was
       created was due to “an issue with one of the–with your expert, your pursuit expert, indicating
       that the shrubbery and bushes and stuff played a part in the visibility.” To suggest that the
       jury was misled by the court’s instruction regarding the video or the instruction somehow
       prejudiced the plaintiffs is belied by the record on appeal.

¶ 79                       c. Plaintiffs’ “Five-Second” Argument on Closing
¶ 80       I also disagree with the majority’s conclusion that the trial court committed reversible
       error by “limiting” the plaintiffs’ ability to argue that it is reasonable to infer from the squad
       car video that Amanda could only see the squad car for five seconds before impact. During


                                                   - 16 -
       plaintiffs’ closing arguments, counsel reiterated his recollection of O’Hern’s testimony,
       specifically that O’Hern opined that the squad car would have been visible to Amanda for 13
       seconds.
¶ 81        While doing so, counsel played the squad car video, starting it and stopping it during the
       course of his arguments concerning what he believed the video showed. He stated, “If Mr.
       O’Hern is correct, then you will see Amanda Dayton’s van at 32 minutes flat, because you
       will see it for 13 seconds, because Amanda has 13 seconds to see him. He has 13 seconds to
       see her. None of you are accident reconstruction people, but I bet all of you can see this tape.
       Let’s look at the tape from 32 minutes for the next 13 seconds. And let’s see if at 32 minutes,
       we can actually see Amanda Dayton.”
¶ 82        After showing the jury the last 13 seconds of the video, plaintiffs’ counsel stated, “When
       you look at the video of this accident which is in evidence, you will be able to understand the
       following simple point. Amanda Dayton and Officer Pledge saw each other for a total of five
       seconds. At the 32 minutes and eight seconds is the first time he saw her.” Defense counsel
       objected, claiming no one testified to the five-second time frame. Plaintiffs’ counsel
       responded that the five-second time frame is a reasonable inference from the squad car video
       as the jurors can see for themselves when Amanda’s headlights come into focus.
¶ 83        The record reflects that the trial court never actually ruled on the objection. The court
       stated:
                    “At no point did I hear anybody testify that there was a five-second window. So,
                let me just advise the jury that any statement made by a lawyer that’s not based on the
                evidence should be disregarded by you. You should use your own recollection of the
                evidence, not mine, not the attorneys, your own. Again, I remind you that what the
                lawyers say during argument is not evidence. Okay.”
¶ 84        Immediately thereafter, plaintiffs’ counsel stated:
                    “You will have the opportunity to judge for yourself. You will have an
                opportunity to look at the evidence. You will have an opportunity to see from the
                evidence how long Amanda Dayton and Officer Pledge had a chance to see each
                other. If I have misstated anything, ignore what I have said.”
¶ 85        Plaintiffs’ counsel continued noting, “We’re going to run the tape again. *** I asked you
       to look at the tape and decide for yourself ***. All you have to do is look at the tape and
       judge for yourself. You don’t need me to try and convince you of anything. *** See how
       long they can see each other. See when they can first see the car.”
¶ 86        The record reflects, and the majority ignores, the fact that plaintiffs’ counsel never sought
       a ruling on defendants’ objection and the trial court never explicitly ruled on the matter.
       Counsel voluntarily abandoned his five-second argument; he was never forced to do so by
       the court. Our supreme court held long ago that where there is no ruling made on an
       objection, an appellate court has nothing to review. Mitchell v. Chicago, B. & Q. Ry. Co., 265
       Ill. 300 (1914). “ ‘To avail of an objection, counsel must insist upon a ruling of the trial court
       upon the objection, and must either obtain a ruling or a refusal of the court to rule. Mere
       failure to rule is not sufficient.’ ” Karris v. Woodstock, Inc., 19 Ill. App. 3d 1, 10 (1974)
       (quoting Cusanelli v. Steele, 287 Ill. App. 490, 495 (1936), citing City of Salem v. Webster,
       192 Ill. 369 (1901)).



                                                   - 17 -
¶ 87       The record is clear that the trial court never sustained defendants’ objection to plaintiffs’
       counsel’s five-second argument. Moreover, the trial court freely allowed plaintiffs’ counsel
       to continue on his chosen course of arguing that the jury can draw its own conclusion as to
       whether Amanda’s vehicle is visible for 13 seconds or some other amount of time. The trial
       court’s statements on the matter are in no way reversible error.

¶ 88                                          IV. Conclusion
¶ 89       For the foregoing reasons, I find that the record contains no evidence that Deputy Pledge
       acted with willful and wanton disregard for the safety of others. As such, summary
       judgment/directed verdict should have been granted in favor of the defendants. I further find
       the trial court did not abuse its discretion when admitting the line-of-sight video or when
       instructing the jury as to the video’s limited purpose. Similarly, the trial court did not err
       when commenting on plaintiffs’ five-second argument during closing. Finally, plaintiffs’
       claims of error are only relevant to issues regarding Amanda’s comparative fault and have no
       bearing on the issue of Pledge’s alleged willful and wanton misconduct. As such, they cannot
       serve as bases to reverse. Witherell, 118 Ill. 2d at 339.




                                                  - 18 -
