                                      2014 IL App (3d) 130137

                                 Opinion filed February 5, 2014
                        Modified Upon Denial of Rehearing June 24, 2014
     ______________________________________________________________________________

                                               IN THE

                                APPELLATE COURT OF ILLINOIS

                                         THIRD DISTRICT

                                             A.D., 2014

     MARK LORENZ, GARY LORENZ, and                  ) Appeal from the Circuit Court
     LESLIE LORENZ,                                 ) of the 9th Judicial Circuit
                                                    ) McDonough County, Illinois
            Plaintiffs,                             )
                                                    )
            v.                                      )
                                                    )
     THOMAS PLEDGE and THE McDONOUGH )
     COUNTY SHERIFF’S DEPARTMENT,                   ) Appeal No. 3-13-0137
                                                    ) Circuit No.     06-L-9
            Defendants-Appellees                    )
                                                    )
     (Brian Dayton, Individually and as the         )
     Special Administrator of the Estate of Jill D. )
     Dayton, Deceased, and Amanda Dayton            )
     Nehring,                                       ) Honorable
                                                    ) Richard H. Gambrell,
            Plaintiffs-Appellants).                 ) Judge, Presiding
     ______________________________________________________________________________

           JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
           Justice Carter concurred in the judgment and opinion.
           Justice Schmidt dissented, with opinion.
           Justice Schmidt also 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 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

                                                    -2-
     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

                                                    -3-
     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 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

                                                     -4-
       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

       as serious felony.” (Emphasis is original.) The policy also provides that it is not inconsistent

                                                        -5-
       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 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

                                                       -6-
       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.



                                                      -7-
       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).

¶ 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

                                                       -8-
       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

       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

       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

                                                      -9-
       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



                                                     - 10 -
       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 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

                                                         - 11 -
       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

                                                       - 12 -
       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 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

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       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 as 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


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¶ 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

       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

                                                       - 15 -
       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

                                                       - 16 -
       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.

¶ 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



                                                       - 17 -
       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;

                                                          - 18 -
       (2) the officer activated his lights and siren; (3) the officer noted the truck's 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

                                                        - 19 -
       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 activated. (5) The pursuit

       occurred on a four-lane highway. (5) The location of the pursuit was not a densely populated

       urban area. (6) The weather was clear. (7) The road was dry. (8) The visibility was good. (9)

       The duration of the pursuit from the time the suspect vehicle fled the traffic stop to the collision

                                                       - 20 -
       was only 75 seconds. (10) Pledge entered the intersection on a green light. (11) The police

       officer's speed at the time of impact was between 70 to 75 miles per hour. (12) 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.

                                                       - 21 -
       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 decision.

       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. 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

                                                        - 22 -
       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.



                                                      - 23 -
¶ 64          The errors complained 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.

¶ 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.



                                                       - 24 -
¶ 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 video's 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



                                                       - 25 -
       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 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

                                                       - 26 -
       ¶ 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                           M r.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

                                                         - 27 -
¶ 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

       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

                                                        - 28 -
                       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)).



                                                        - 29 -
¶ 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 v. Weimer, 118 Ill. 2d at 339.




                                                      - 30 -
