New Ruling in Ozik Shows Court's Knowledge of Law

In September, I wrote a column on a significant case out of the First District Appellate Court on joint and several liability, which found that there were no error in refusing to allocate fault to a defendant who has settled in good faith prior to trial. Ozik v. Grammins, No. 1-00-3280 (decided June 30, 2003). No sooner than that column appeared, the court withdrew its opinion and issued a new one based upon its denial of a rehearing. Ozik v. Grammins, (No. 1-00-3280, 1st Dist. decided Oct. 27, 2003).

Ozik involved the death of a teenager in a car accident. Alla Ozik filed a complaint against the Village of Skokie and two of its police officers for allegedly letting a drunken minor drive away from the scene of an accident; the driver, minutes later, got involved in another accident that killed Ozik’s son.

The plaintiff’s theory was that the officers merely gave the driver some traffic citations after the first accident because they were near the end of their shift and did not want to work overtime to process an arrest.

I applauded the court for its sound analysis of the several liability statute 735 ILCS 5/2-1117 (2003), but came under fire from various defense counsel who viewed it as possibly undermining their ability to utilize the empty-chair defense. (Chicago Lawyer, "Ozik leads to bad public policy." David H. Levitt and Michael L. Resis, November, 2002).

In its subsequent decision, the court held that the defendants had waived their argument altogether on allocation of fault because they failed to establish that they offered a jury instruction on the issue. The court, in its 34-page revised opinion, meticulously explained the underlying procedure here at trial and found that the defendants had not properly preserved this issue on appeal.

The court went on to explain that, in order to avoid waiver, a party must offer instructions supporting all of the claims, defense and theories; must clearly identify the instructions on the records; must make sure to file the instructions as exhibits for the record on appeal; and must get a ruling on the record for each instruction as well as attach copies of the refused instructions as exhibits in any post-trial motion.

None of these actions was completed by defendants in a timely manner.

Another significant issue to come out of this case is that public officials can be held responsible for willful and wanton conduct. In Ozik, the police officers contended they were not liable because they were under no duty to the decedent to take custody of the driver, and that even if they had a duty, they were shielded from liability under the tort immunity statute.

The court in Ozik, though, held that under state statute, zero tolerance means a driver under the age of 21 with a blood-alcohol concentration of more than .00 but less than .10 will have his or her license suspended. 625 ILCS 5/11-508-1 (2003).

The court found that the officers have no discretion; where there is probable cause that a minor violated the zero tolerance rule, the driver must be taken to the police station.

When the driver was tested at the hospital after the second accident, medical personnel said he was obviously under the influence, and his blood alcohol test indicated, according to experts, that he was grossly intoxicated.

The court agreed with the plaintiff and stated that officers are under a duty to execute and enforce the law in a manner free of willful and wanton conduct or reckless indifference to the safety of others. A municipality and its employees "owe a common law duty to preserve the community’s well-being, and this duty is owed to the public at large rather than to specific members of the community."

Although this means that an individual may not recover for negligence, the court went on to say that 745 ILCS 2-202, the Tort Immunity Act, clearly establishes an exception to this duty if the police officer’s conduct amounts to willful and wanton. This is defined by the statute as "a course of action which shows an actual or deliberate intention to cause harm of which, if not intentionally, show an utter indifference to or conscious disregard for the safety of others or their property" 745 ILCS 10/1-210 (2003).

The court said it cannot depart from the plain language expressed by the legislature in a statute. The court cited Doe v. Calumet City, 161 Ill.2d 374, 641 N.E.2d 498 (1994), in which the Illinois Supreme Court found that the plaintiff could recover by proving a municipality and its officers’ engaged in willful and wanton conduct when responding to a 911 call. That case also abrogated cases provide a "blanket immunity" to governmental employees under section 4-102 and 4-107 of the Tort Immunity Act.

The Illinois Supreme Court in Doe "indicated there was some apparent ‘confusion [in the lower courts] concerning whether willful and wanton conduct constitutes a separate cause of action,’ and then ...answered this question in the affirmative." Id. 161 Ill.2d at 388-391.

The apportionment of fault regarding a settled defendant has been established in previous case law. As the Ozik court found in its initial decision, Blake v. Hy Ho Restaurant, Inc., 273 Ill.App.3d 372, 652 N.E.2d 807(Dist. 1995), clearly held that a defendant who has previously settled cannot be included in apportionment of fault at tr5ial because that party is no longer a defendant based upon the plain and ordinary meaning of the statute. 735 ILCS 5/2-1117 (2003).

 "When the City settled and was dismissed from the action, it ceased to be a defendant. The statute does not include former defendants or dismissed defendants. To read dismissed defendants into section 2-1117 and require that they be apportioned fault after their dismissal would be a gross contortion of the legislative did not include or intend." Ozik, quoting Blake v. Hy Ho Restaurant, Inc., 273 Ill.App.3d at 376.

Twice the court in Ozik has indicated it understands the law and knows how to enforce it.

It is a brave and knowledgeable court that is willing to withdraw an opinion to clarify its reasoning that impacts so many.