                                                  FIRST DIVISION
                                                  December 14, 2009




No. 1-08-1510

PAMELA PLEASANCE, as Special               )      Appeal from the
Administrator of the Estate of             )      Circuit Court of
Michael Pleasance, Deceased,               )      Cook County.
                                           )
     Plaintiff-Appellee,                   )
                                           )
v.                                         )      No. 04 L 1343
                                           )
THE CITY OF CHICAGO, a Municipal           )
Corporation, and ALVIN WEEMS,              )
Individually and as Employee of            )
the City Of Chicago,                       )      The Honorable
                                           )      William Taylor,
     Defendants-Appellants.                )      Judge Presiding.


     JUSTICE LAMPKIN delivered the opinion of the court:

     Plaintiff, Pamela Pleasance, as special administrator of the

estate of her son, Michael Pleasance, was issued a $12.5 million

jury award in her wrongful death action.       Defendants, the City of

Chicago (the City) and Alvin Weems, appeal the trial court’s

order denying their posttrial motion challenging that verdict.

Defendants contend a new trial is warranted because the

underlying trial was fundamentally unfair where plaintiff’s

counsel repeatedly made improper comments not based on evidence,

and the trial court improperly issued jury instructions.

Defendants also contend the trial court erred in denying their

remittitur request.   We reverse and remand for a new trial.
1-08-1510

FACTS

     Defendant Weems, a Chicago police officer, shot and killed

Michael on March 8, 2003.   On April 18, 2005, plaintiff filed her

second amended complaint alleging wrongful death, survival, and

responsibility for funeral, burial, and medical expenses against

defendants.   The trial court dismissed plaintiff’s claim for

funeral, burial, and medical expenses for failing to state a

cause of action upon which relief may be granted pursuant to

section 2-615 of the Code of Civil Procedure (Code) (735 ILCS

5/2-615 (West 2002)).   Plaintiff later withdrew her survival

action.

     On May 3, 2007, defendants filed a section 2-610(d) (735

ILCS 5/2-610(d) (West 2006)) responsive pleading demonstrating

their “desire to contest only the amount of damages to which

plaintiff may be entitled.”   Plaintiff filed a response, alleging

defendants’ section 2-610(d) pleading admitting liability was

insufficient.   Defendants filed a reply conceding their section

2-610(d) request was insufficient.   To cure the procedural

defect, defendants filed Weems’ amended answer and the City’s

answer to plaintiff’s second amended complaint.   Specifically,

defendants admitted Michael’s death was a result of Weems

unintentionally discharging his weapon in the course of arresting

someone else, constituting willful and wanton conduct under the


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law as stated in Medina v. City of Chicago, 238 Ill. App. 3d 385,

392-93, 606 N.E.2d 490 (1992), despite being unintentional.

Defendants expressly denied “that in disregarding his duty

[defendant Weems] engaged in a course of action which showed an

actual or deliberate intention to cause harm or which, if not

intentional, showed an utter indifference to or conscious

disregard for the safety of others and was then and there guilty

of one or more *** willful and wanton acts or omissions.”

     A hearing was held on defendants’ section 2-610(d) request.

The court granted the request.    In so ruling, the court said:

            “[T]he City has answered enough so that I can have

     a trial only [sic] damages only.    They will not be able

     to bring up willful and wanton before the jury.    There

     won’t be any conduct in term[s] of whether the officer

     killed [Michael].   It’s just going to be straight on

     damages, and I’m not going to let them play any games

     based on that.   So, whatever they tell the jury, the

     jury’s only going to decide what the amount of damages

     they’re going to give that plaintiff or the heirs for

     the death of [Michael].”

When plaintiff’s counsel asked whether he would be allowed to say

“the City has admitted willful and wanton conduct with respect to

the death –- the cause of death of Michael,” the court replied:


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             “We are going to say that the City admits that

     [Michael] was killed by [Weems] and that we’re here to

     decide damages on his death.      And we’ll let the jury

     decide.”

     Prior to trial, both parties filed several motions in

limine.     In relevant part, defendants filed a motion in limine to

bar “any undue argument, testimony, or excessive reference to

willful and wanton conduct,” argument and comment urging the jury

to “send a message” with its verdict, and “any testimony,

reference, or argument that the shooting was ‘murder,’

‘unjustified,’ ‘shocking,’ and all other descriptions of outrage

or prejudicial characterizations of the incident.”      A hearing was

held on December 7, 2007.     Plaintiff’s counsel objected to

limiting his ability to argue that “this case involves willful

and wanton conduct, which has been admitted.”      Defendants’

counsel replied:

             “We do understand that willful and wanton is part

     of the instructions,1 and that they will be permitted

     to discuss that in closing argument.

             Our concern is excessive and prejudicial use of


     1
         During a pretrial instructions conference, the court ruled,

over defendants’ objection, that an instruction defining willful

and wanton was admissible.

                                   4
1-08-1510

     the terms, you know, which could then be equated with

     punishment and suggesting to the jury that the conduct

     was, you know, willful and wanton and in such a manner

     that it’s argued that the jury inflates their verdict.

     That’s our concern.”

The court responded, “[t]he jury has no idea what willful and

wanton means.    It’s just two W’s.   They won’t get it to the point

that it means something extremely, extremely terrible.”

Defendants’ counsel restated her concern that willful and wanton

not be “overly emphasized.”    The court granted the motion as to

“sending a message” and punishing defendant, and denied the

motion as to barring the use of willful and wanton conduct,

adding it would restrict plaintiff’s counsel from “a lot of

willful and wanton.”

     Defendants also filed an in limine motion to bar testimony

regarding fault.    The court denied the motion; however, it

instructed plaintiff’s counsel to caution plaintiff from

testifying defendants “murdered or killed” or “some other

pejorative [term],” limiting the testimony to “shot and he died.”

     The only information related to Weems’ conduct was

introduced by the trial court prior to voir dire.     The court

advised the potential jurors:

            “The incident that gives rise to this lawsuit


                                  5
1-08-1510

     occurred [on] March 8, 2003.      It took place at

     approximately 6:30 a.m. at the CTA station located at

     95th Street and the Dan Ryan Expressway.      *** City of

     Chicago police officer, Alvin Weems, while on duty

     discharged his gun, which resulted in the death of

     Michael Pleasance.

            The only issue to be decided in this case is the

     amount of damages that will fairly compensate the

     decedent’s mother and brother for the loss that they

     incurred because defendants are only contesting the

     amount of damages resulting from the decedent’s death.

     The circumstances underlying the incident are not

     relevant to your decision because they are not relevant

     to the case.”

     The jury trial proceeded to determine damages for loss of

society.

     During opening statements, plaintiff’s counsel said Michael

was never given the opportunity to secure employment after being

released from jail because he was “gunned down by a Chicago

police officer.”     Plaintiff’s counsel said the City admitted

Michael was shot “with an utter indifference to and conscious

disregard for his safety.”     Plaintiff’s counsel added that

Michael’s “life was taken by the admittedly wrongful conduct of


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1-08-1510

the defendants.”

     Defendants objected to the first two comments.          The

objections were sustained.     Defendants requested a mistrial,

adding they did not object to the comment regarding wrongful

conduct so as not to “draw unnecessary attention to it.”            The

trial court took the request under advisement.2         The court

cautioned:

             “If I hear any other utterances–-gunned down,

     shot, killed, dragged through the streets, anything

     that depicts how this person died, I will grant a

     mistrial, all right?

             So, Counsel, you are on notice that your [sic] to

     say, yes, he was shot.     ***       But if you start to pass

     ‘shot,’ I am going to consider the mistrial.”

     The testimony demonstrated Michael was 23 years old when he

died.     Michael did not have a wife or children.       He lived with

and had a close relationship with Pamela.          Michael was not

employed and never held a consistent job.          Michael was learning-

disabled.     He dropped out of high school in the eleventh grade.

Michael spent almost two years in prison on a drug possession

conviction.     When released from prison in 2002, Michael returned


     2
         The motion was denied after the jury instructions

conference.

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1-08-1510

to living with plaintiff.    Plaintiff financially supported

Michael.    He regularly drank alcohol and smoked marijuana.

Michael was looking for a job when he died.     He had a good

relationship with his half-brother, Maurice.

     During closing arguments, plaintiff’s counsel argued:

            “Those [juror] chairs protect all of us.    They

     protect all of us against injustice, and against abuse.

     And it is through this system that we are allowed to

     defend ourselves against abuse and against injustice.

     So it is an awesome responsibility, indeed, and make no

     mistake, this is a very significant manner.

            Your verdict is going to tell your entire

     community whether you’re willing to accept a police

     officer’s willful and wanton killing of a member of our

     society.”

No objection was made by the defense at that time.      The

objection, however, was noted later.

     Later, plaintiff’s counsel said:

            “Society has to have rules.   All civilized

     societies have to have rules.     Those rules govern all

     of our conduct and those rules must be obeyed.

            They must be obeyed in order for us to live

     peacefully with one another.     Without rules, there


                                  8
1-08-1510

     would be no order, and there is no greater perversion

     in our rules of order in our society as when a police

     officer, who is sworn to protect us, shoots and kills

     an innocent member of our society.”

Defendants objected and the court overruled the objection.

     Plaintiff’s counsel continued:

            “We are conditioned, at an early age, about trust,

     about trusting a policeman.

            We put our trust in them from the moment we start

     understanding their role in our lives.      What happens

     when that trust is breached.      How shall we, as a

     society, address the breach of that trust.

            It simply couldn’t be worse when that breach of

     our sacred trust takes place.

            It shocks us.   It appalls, and it should.

            It angers us when a police officer willfully and

     wantonly takes the life of a member of our society.        It

     angers us and it should.”

Defendants objected.    The court sustained the objection and

instructed counsel to “move on.”

     Plaintiff’s counsel then said:

            “Michael was handicapped.    He was mentally

     handicapped.   He needed protection, not willful and


                                   9
1-08-1510

     wanton conduct.

            I’m going to show you what I believe the Court

     will instruct you on the definition of willful and

     wanton conduct.

            Here, again, these words are chosen carefully

     through years of analysis as to define a level of

     conduct.”

     Plaintiff’s counsel read Illinois Pattern Jury Instructions,

Civil, No. 14.01 (2005) (IPI Civil (2005) No. 14.01), defining

willful and wanton conduct, as follows:

            “When I use the expression ‘willful and wanton

     conduct,’ I mean a course of action which shows actual,

     or deliberate intention to harm.    Actual or deliberate

     intention to harm or, which, if not intentional, shows

     an utter indifference to, or conscious disregard for

     the safety of others.”

Plaintiff’s counsel then added:

            “Those are powerful words, indeed.    This is the

     admitted level of conduct in this case.      Admitted

     course of action which shows an actual, or deliberate,

     intentional harm.”

Defendants objected and a sidebar was held.      Defendants argued

that plaintiff’s counsel violated the in limine order and that


                                  10
1-08-1510

the officer’s conduct was not an issue in the case.    The court

overruled the objection, indicating that the court had allowed

plaintiff’s counsel to talk about the police officer “for a very

short period of time.”    The court then said enough had been said

about the subject.    The defense also noted for the record their

objection to plaintiff’s counsel’s earlier arguments about

sending a message to the community with their verdict.

     Plaintiff’s counsel then continued:

            “That is the admitted conduct in this case.

     Again, these words are chosen carefully.

            When you read them, they do not refer to conduct

     that can be explained away or excused.    Those words do

     not refer to conduct that can be forgiven.    They are

     specific in their meaning.”

     Further in closing, plaintiff’s counsel said “[w]illful and

wanton conduct has separated [Michael from his family],” adding

“this case calls on you to do something *** conceptually very

difficult, to examine willful and wanton admitted conduct and

translate this loss into a number.”

     Then, in rebuttal, plaintiff’s counsel retorted:

            “What we saw here was unmitigated character

     assassination.   It wasn’t enough for [defendants] to

     kill Michael Pleasance, then they had to come in here


                                 11
1-08-1510

     and kick dirt on his grave.”

Plaintiff’s counsel concluded:

            “I just want to share with you a quote from Martin

     Luther King that I think about when I’m engaged in

     trials like this one.

            Dr. King said: ‘Injustice anywhere is a threat to

     justice everywhere.’    Justice here requires a

     substantial verdict for the Pleasance family for the

     wrongful death of a loving and beloved son and

     brother.”   (Emphasis added.)

     At the close of trial, the court issued a curative

instruction:

            “Statements of the lawyers in this case are not

     evidence.   You should base your decision in this case

     solely on the testimony and the exhibits admitted into

     evidence.   Any comment or characterization by the

     attorneys about the officer’s conduct that is

     inconsistent with the evidence should not be considered

     by you in your decision.”

Defendants objected to the second sentence of the curative

instruction based on the fact that Weems’ conduct was “not

relevant, in any way, to [the jury’s] determination of damages.”

     The jury was given Illinois Pattern Jury Instructions,


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Civil, No. 23.01B (2005) (IPI Civil (2005) No. 23.01B), which

admitted the City’s willful and wanton conduct was the proximate

cause of Michael’s death and instructed the jury to determine the

appropriate damages.     The jury also received IPI Civil (2005) No.

14.01, defining willful and wanton conduct.

     The jury returned a $12.5 million verdict in plaintiff’s

favor.   The court entered the verdict and denied defendants’

motion for a new trial or a remittitur.

DECISION

I.   Improper Comments

     Defendants contend they are entitled to a new trial because

plaintiff’s counsel repeatedly remarked on the circumstances

surrounding Michael’s death in error.    We agree.

     Because defendants admitted liability, the trial proceeded

solely to determine damages for plaintiff’s loss of society.

Loss of society includes “the deprivation of love, companionship,

and affection from the deceased person.”     Turner v. Williams, 326

Ill. App. 3d 541, 548, 762 N.E.2d 70 (2001).    The related

instruction given to the jury said:

            “When I use the term ‘society,’ in these

     instructions I mean the mutual benefits that each

     family member receives from the other’s continued

     existence, including love, affection, care, attention,


                                  13
1-08-1510

     companionship, comfort, guidance, and protection.”

     Illinois Pattern Jury Instructions, Civil, No. 31.11

     (1995).

     The manner in which Michael died was wholly immaterial to

the determination of loss of society.    Defendants’ liability,

willful and wanton or otherwise, was not relevant to the love,

affection, care, attention, companionship, comfort, guidance, and

protection Pamela lost as a result of Michael’s death.    See

Bullard v. Barnes, 102 Ill. 2d 505, 519, 468 N.E.2d 1228 (1984)

(upholding the Fourth District’s holding that it was reversible

error to admit details surrounding the decedent’s death where the

defendants admitted liability).

     Plaintiff’s counsel’s repeated improper and prejudicial

comments require the granting of a new trial.    See Rutledge v.

St. Anne’s Hospital, 230 Ill. App. 3d 786, 794-95, 595 N.E.2d

1165 (1992) (a new trial was granted where the plaintiff was

prejudiced by the defense counsel’s improper closing arguments

and violations of an in limine order).    Plaintiff’s counsel’s

comments were not based on the evidence presented at trial.

Lecroy v. Miller, 272 Ill. App. 3d 925, 933, 651 N.E.2d 617

(1995) (counsel may not argue facts not in evidence or

misrepresent the evidence).   Indeed, there was no evidence

presented regarding Weems’ conduct or his state of mind.    The


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only evidence the jury heard focused on determining damages for

loss of society.    Therefore, plaintiff’s counsel was completely

improper in urging the jury to “examine willful and wanton

admitted conduct and translate this loss into a number.”

     Additionally, it was not the jury’s duty to defend the legal

system from “abuse” and “injustice”; to send a message to the

community regarding police conduct in general; to decipher the

laws of society and how the police subverted them; to place the

entire police department on trial; or to rely on Officer Weems’

conduct or state of mind in any manner in order to determine

damages.    Zoerner v. Iwan, 250 Ill. App. 3d 576, 586, 619 N.E.2d

892 (1993) (in a trial limited to determining proximate cause and

damages, the defense counsel’s closing argument improperly urged

the jury to send a message to drunk drivers and not provide a

reward to a drunk driver); Spyrka v. County of Cook, 366 Ill.

App. 3d 156, 170, 851 N.E.2d 800 (2006) (counsel’s improper open

and closing arguments appealed to emotion rather than evidence by

asking the jury to tap into its moral outrage and send a message

with its verdict); see also People v. Johnson, 208 Ill. 2d 53,

76-77, 803 N.E.2d 405 (2003) (and cases cited therein).

Moreover, it was certainly not the jury’s duty to eradicate the

racial injustices described by Dr. Martin Luther King, Jr., as

plaintiff’s counsel implied in his concluding remarks.


                                 15
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     This court has said:

     “The province of the jury is the resolution of factual

     issues in the narrow context of the case before them,

     not the rendering of moral or social judgments in the

     verdict form.   The purpose of argument by counsel is to

     assist the jury fairly, deliberately and impartially to

     arrive at the truth of the facts submitted to them for

     their decision.   [Citation.]     It is error for counsel

     to indulge in assertions which appeal to the passions

     of the jury and have no bearing or relation to the case

     whatsoever.   [Citation.]”    Hansel v. Chicago Transit

     Authority, 132 Ill. App. 2d 402, 407, 270 N.E.2d 553

     (1971).

Here, the narrow facts were limited to how much plaintiff was

entitled to for her loss of society.      Plaintiff’s counsel’s

comments had no place in the instant damages trial other than to

inflame the passion of the jury and influence its verdict.        See

Hansel, 132 Ill. App. 2d at 407.

     The court did not restrain plaintiff’s counsel from “a lot

of willful and wanton,” as indicated.      Rather, the court denied

defendants’ request for a mistrial based on plaintiff’s counsel’s

excessive commentary regarding Weems’ willful and wanton conduct.

In addition, despite the court’s admonishment that a mistrial


                                  16
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would be granted if plaintiff’s counsel referred to Weems’ having

“shot, killed, *** anything that depicts how this person died,”

plaintiff’s counsel repeatedly described Michael as being killed

by defendants’ willful and wanton conduct, by defendant police

officer shooting and killing an innocent member of society, and

willfully and wantonly taking the life of a member of our

society, by actual, deliberate, or intentional conduct, by

wrongful conduct, or by conduct that was with utter indifference

to Michael’s life.   The court’s sustaining a number of the

objections was not sufficient to cure the prejudice inflicted,

especially where it failed to admonish the jury to disregard

those comments.   Rutledge, 230 Ill. App. 3d at 792.

     And, the court’s curative instruction did not cure

plaintiff’s counsel’s pervasive prejudicial comments.      See

Prairie v. Snow Valley Health Resources, Inc., 324 Ill. App. 3d

568, 582, 755 N.E.2d 1021 (2001).      Indeed, the curative

instruction itself was misleading because there was no evidence

of defendants’ conduct for the jury to consider in assessing

plaintiff’s counsel’s argument.

     We recognize that some of the comments were not objected to

by defendants and that the failure to object generally results in

waiver.   Zoerner, 250 Ill. App. 3d at 585.     We, however, review

plaintiff’s counsel’s comments as plain error because they were


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“so egregious that they deprived [defendants] of a fair trial and

substantially impaired the integrity of the judicial process

itself.”    Spyrka, 366 Ill. App. 3d at 170.    Plaintiff’s counsel’s

comments were a base appeal to emotion and prejudice.      They had

no place in this damages trial.      Furthermore, plaintiff’s

counsel’s remarks and insinuations in his opening statements and

closing arguments were too pervasive and insidious to have had no

prejudicial effect on the jury.      Rutledge, 230 Ill. App. 3d at

792.

II.    Improper Jury Instructions

       Defendants contend the trial court erred in issuing IPI

Civil (2005) No. 14.01 over their objection.      Defendants

expressly take issue with that part of the instruction defining

willful and wanton conduct as “a course of action which shows

actual or deliberate intention to harm.”

       It is within the trial court’s discretion to decide what

jury instructions should be given.       Brady v. McNamara, 311 Ill.

App. 3d 542, 546, 724 N.E.2d 949 (1999).      We will not disturb

that decision unless the court abuses its discretion.      Brady, 311

Ill. App. 3d at 546.    Error, however, will be found where an

instruction is given that is not supported by the evidence.

Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 100,

658 N.E.2d 450 (1995); Brady, 311 Ill. App. 3d at 546.


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     IPI Civil (2005) No. 14.01 provides:

             “When I use the expression ‘willful and wanton

     conduct’ I mean a course of action, which [shows actual

     or deliberate intention to harm] [or which, if not

     intentional,] [shows an utter indifference to or

     conscious disregard for (a person’s own safety) (and)

     (the safety of others)].

The Notes on Use say:

             “This instruction is to be given when an

     accompanying instruction has indicated the consequences

     of a finding of willful and wanton conduct in the given

     case.    The first bracketed phrase should be used only

     when a deliberate intention to harm is alleged and is

     supported by evidence sufficient to make a submissible

     case.    ***

             If there is no issue as to the plaintiff’s

     contributory fault, then there may be no need for a

     jury to determine which form of willful and wanton

     conduct was committed by the defendant.”     IPI Civil

     (2005) No. 14.01, Notes on Use, at 70.

     The trial court gave IPI Civil (2005) No. 14.01 in its

entirety in error.     Contrary to the Notes on Use, the first

bracketed phrase was used even though there was no evidence


                                  19
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demonstrating Weems deliberately intended to harm Michael.

Moreover, the instruction was unnecessary altogether.       There was

no consequence to the finding of willful and wanton conduct where

defendants already admitted the conduct which caused the death of

Michael and there was no issue regarding Michael’s contributory

fault.   The instruction provided multiple definitions for willful

and wanton conduct while none of them were pertinent to the issue

at trial, namely, how much the estate should be compensated for

its loss of society.    The instruction served only to focus the

jury on Weems’ conduct, of which there was no evidence.      See

Brady, 311 Ill. App. 3d at 551 (giving a comparative negligence

instruction was prejudicial, reversible error where comparative

negligence was not at issue and there was no evidence to support

the instruction).

     The error was compounded when plaintiff’s counsel read the

instruction and said:

            “Those are powerful words, indeed.   This is the

     admitted level of conduct in this case.     Admitted

     course of action which shows an actual, or deliberate,

     intentional harm.”

     The error in giving the instruction was prejudicial and

entitles defendants to a new trial.

     Because we are remanding this cause for a new trial, we


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address the form of IPI Civil (2005) No. 23.01B submitted to the

jury.   We recognize defendants did not raise the issue in their

appellate brief; however, we address the issue in order to avoid

potential confusion to the jury on remand.

     IPI Civil (2005) No. 23.01B provides:

            “The defendant admits that [he] [she] [it] [was

     negligent] [produced an unreasonably dangerous product]

     [other fault conduct].    The defendant also admits that

     [his] [her] [its] [negligence] [unreasonably dangerous

     product] [other fault conduct] was a proximate cause of

     [injuries] [damage] to the plaintiff.    You need only

     decide what amount of money will reasonably and fairly

     compensate the plaintiff for those [injuries]

     [damages].”

The Notes on Use section advises that admitted liability can mean

“different things to different people”; therefore, the

instructions must clearly state what is admitted and what must be

proved to avoid confusion.    IPI Civil (2005) No. 23.01B, Notes on

Use, at 116.

     During the instructions conference, defendants submitted the

following proposed IPI Civil (2005) No. 23.01B:

            “The defendants, City of Chicago and Alvin

     Weems[,] have admitted that Alvin Weems discharged his


                                 21
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     weapon and that this conduct was a proximate cause of

     the death of the decedent.    You need only decide what

     amount of money will reasonably and fairly compensate

     the Plaintiff for those injuries.”

The trial court ultimately rejected that instruction in favor of

plaintiff’s proposed IPI Civil (2005) No. 23.01B:

            “The Defendants admit that they were willful and

     wanton.   The Defendants also admit that their willful

     and wanton conduct was the proximate cause of the death

     of the decedent.   You need only decide what amount of

     money will reasonably and fairly compensate the

     Plaintiff for the decedent’s death.”

Plaintiff’s proposed IPI Civil (2005) No. 23.01B was submitted to

the jury over defendants’ objection.



     As we have repeatedly stated, there was no evidence

presented regarding Weems’ conduct.    The jury was merely advised

“City of Chicago police officer, Alvin Weems, while on duty

discharged his gun, which resulted in the death of Michael

Pleasance.”    While defendants admitted liability pursuant to

section 2-610(d) of the Code in their answers to plaintiff’s

complaint, the substance of the answers was not presented as

evidence to the jury.    And, the only discussion of willful and


                                  22
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wanton conduct was contained within defendants’ answers, in that

Michael’s death resulted because Weems unintentionally discharged

his weapon in the course of arresting someone else, constituting

willful and wanton conduct under the law as stated in Medina.

     The admission in defendants’ answer of willful and wanton

conduct as defined by Medina allowed the trial to proceed solely

on damages because defendants removed themselves from the

potential protection of the Local Governmental and Governmental

Employees Tort Immunity Act (745 ILCS 10/1-101 et seq. (West

2002)).   The Medina court, however, said willful and wanton

conduct need not be intentional, as here.     Medina, 238 Ill. App.

3d at 392   (affirming the jury’s verdict finding the defendant’s

conduct was willful and wanton where he unholstered his handgun,

put his finger on the trigger, and approached the decedent

despite no evidence of criminal activity up until that time).

     We conclude defendants’ proposed IPI Civil (2005) No. 23.01B

would have sufficiently informed the jury of the “other fault

conduct” admitted in this case.    “Willful and wanton” is not

listed in the bracketed language and using that undefined,

legalistic language could confuse the jury.    “The other fault”

conduct, to avoid confusion, should only state what is admitted

and what must be proved.   See IPI Civil (2005) No. 23.01B, Notes

on Use, at 116.   Instructing the jury that Weems discharged his


                                  23
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weapon, proximately causing Michael’s death, would have clearly

told the jury what was being admitted.   We note, however, that

the second sentence of defendants’ proposed IPI Civil (2005) No.

23.01B should have instructed the jury to “reasonably and fairly

compensate the Plaintiff for decedent’s loss of society,” instead

of for his “injuries,” as submitted.

III. Remittitur

     We need not address defendants’ remittitur contention.

CONCLUSION

     We reverse the judgment of the trial court and remand this

cause for a new trial.

     Reversed and remanded.

     GARCIA and PATTI, JJ., concur.




        REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT



        PAMELA PLEASANCE, as Special Administrator of the
              Estate of Michael Pleasance, Deceased,

                         Plaintiff-Appellee,

                                 v.

 THE CITY OF CHICAGO, a Municipal Corporation, and ALVIN WEEMS,
      Individually and as Employee of the City of Chicago,

                                 24
1-08-1510


                       Defendants-Appellants.



                         No. 1-08-1510

                     Appellate Court of Illinois
                   First District, FIRST DIVISION

                          December 14, 2009


Justice Bertina E. Lampkin authored the opinion of the court:

              Justice Garcia and Justice Patti concur.


            Appeal from the Circuit Court of Cook County.
              The Hon. William Taylor, Judge Presiding.


                    COUNSEL FOR APPELLANTS
  Mara S. Georges, Corporation Counsel of the City of Chicago,
                        Chicago, IL 60602
     OF COUNSEL: Benna Ruth Solomon, Myriam Zreczny Kasper
                    and Kerrie Maloney Laytin


                       COUNSEL FOR APPELLEE
 Michael W. Rathsack, Allen N. Schwartz and Craig P. Mannarino,
                         Chicago, IL 60602




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