THIRD DIVISION December 5, 2007
1-06-0358
JAVON BOYD. ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) ) THE CITY OF CHICAGO, a Municipal ) Corporation, and CITY OF CHICAGO POLICE ) OFFICER DARRYL L. CARROTHERS, Star ) No. 19208, ) Honorable ) Richard B. Berland, Defendants-Appellees. ) Judge Presiding.
PRESIDING JUSTICE QUINN delivered the opinion of the court:
On November 19, 2000, plaintiff Javon Boyd and defendant
Darryl Carrothers, an off-duty police officer, engaged in an
early morning confrontation, which resulted in Carrothers drawing
his gun and shooting plaintiff. Subsequently, plaintiff was
arrested and charged with misdemeanor battery.
After the charge against plaintiff was dropped, he filed
suit against Carrothers and codefendant the City of Chicago
(City) for battery, false arrest, and malicious prosecution.
Following a jury trial, defendants prevailed on all counts. In
this court, plaintiff contends that the trial court erroneously
precluded a witness's testimony and that the verdict was against
the manifest weight of the evidence. BACKGROUND
As a result of a November 19, 2000, altercation with
Carrothers, plaintiff was arrested and charged with misdemeanor
battery. The record indicates that four court dates followed.
Carrothers appeared for the first three dates, but failed to
appear for the fourth court date. Although the record is devoid
of the court order, the parties indicate that the charge against
plaintiff was dismissed without prejudice during the fourth court
date. Subsequently, plaintiff filed this civil suit against
Carrothers and the City for battery, false imprisonment, and
malicious prosecution. Carrothers and the City hired separate
counsel to represent them in the present action.
The record shows that during discovery, plaintiff filed his
answers to the City's first set of interrogatories on March 12,
2003. Therein, his answer to defendants' request for names and
contact information for potential witnesses consisted of a list
of five names, including Derrick Sullivan. Plaintiff wrote
"address unknown" next to each name.
In addition, on July 26, 2005, plaintiff filed his answer to
the City's additional interrogatory, which requested:
"Pursuant to Illinois Supreme Court Rule 213,
identify all witnesses who will testify at
trial and state the subject of their testimony. If you seek to
elicit any testimony from a 'controlled expert witness' or an
'independent expert witness,' please make the relevant
disclosures required by the Rule."
-2- Plaintiff's seven-paragraph answer consisted of six paragraphs in
which he listed documents and claimed he would call any persons
cited therein. Plaintiff did not specify any individual.
Although the record is devoid of the transcript, the record
indicates that the circuit court warned plaintiff's counsel
during a pretrial conference that his answers to the Rule 213
(210 Ill. 2d R. 213) interrogatories, which the City's counsel
served upon him, were deficient. As such, the circuit court
provided plaintiff's counsel with three options: (1) the court
would bar the plaintiff from calling any witnesses except for
plaintiff and Carrothers; (2) plaintiff could take a voluntary
nonsuit, or (3) the parties could reach an agreement outside of
court. The record indicates that the parties provided the
circuit court with a potential list of witnesses. Plaintiff's
counsel provided a list of four potential witnesses, which did
not include Derrick Sullivan.
The record further discloses that the circuit court
addressed the potential jurors prior to jury selection. During
that address, the circuit court noted that potential witnesses
included "plaintiff Javon Boyd, the defendant Officer Darrell
[sic] Carrothers, Detective Maude Noflin, Detective Michael
Spaulding, Catrice Graham, Frank Novat, James Lucas, Bruce Dean,
Derrick Sullivan, and Roel Calima." The jury was then selected.
Prior to opening statements, the parties again discussed
potential witnesses. During that discussion, the circuit court
clarified that Carrothers' counsel could object to plaintiff's
-3- witnesses. In response, plaintiff's counsel stated:
"I'm not contending that. But if the
position is going to be that he has a right
to object to us calling witnesses, we need to
know that now so that we can decide how to
prepare what we're going to do. Because we
came in here prepared to call the witnesses
that we had agreed upon with the under --
[sic] under the impression that Mr. Thompson
had no standing to object to those witnesses.
Now we find that he does have standing
that he is -- will be asking for a sidebar.
And if the Court deems his objection is
appropriate, it would change the posture of
our case."
After Carrothers' counsel noted that his Rule 213 objections
would pertain to opinion witnesses, the circuit court stated it
had barred all opinion testimony. Carrothers' counsel then
asserted that he would not object to any fact witnesses disclosed
in the "discovery packet." The parties thereafter proceeded with
opening statements.
Following opening statements, plaintiff testified that on
the evening of November 18, 2000, he went to Rodney's Cocktail
Lounge (Rodney's), which is located on the corner of 71st Street
and Michigan Avenue, to attend the birthday party of his friend
Rhonda Williams. His friend Derrick Sullivan was also in
-4- attendance.
During the party, plaintiff saw Carrothers. About 2:30 a.m.
on November 19, 2000, plaintiff left Rodney's with his friends
and walked to his car in a parking lot south of 71st Street and
east of Michigan Avenue. As plaintiff started to put his key in
the car door, he heard commotion behind him. When plaintiff
looked, he saw Sullivan on the ground near the median of 71st
Street, which was about 10 to 15 feet from Rodney's. Carrothers
was on top of Sullivan and was hitting Sullivan in the head with
his fists.
Plaintiff began to walk quickly toward the scene to break up
the fight. As he moved within a foot of the men, Carrothers
stood up. Plaintiff testified that he saw a gun on Carrothers'
person but denied that he saw four or five other men striking
Carrothers. Rather, he stated that no one else was around.
Plaintiff described Carrothers' gun as a "[c]hrome or
nickel-plated gun." He testified that it looked like Carrothers
retrieved the gun from his waist as he got up, but then stated
that it looked like it was already in Carrothers' hand as he
rose. Plaintiff swung at Carrothers out of self-defense, but was
unsure whether he struck him. Plaintiff then turned and started
to run toward his car in a diagonal path. As he ran, he heard a
gunshot and fell to the ground. Plaintiff stated, "I felt the
impact on my -- actually on my leg kind of, and I just fell to
the ground." He asserted that he was shot in the right buttocks
and that the bullet exited his front right thigh.
-5- After plaintiff fell, he saw Carrothers point the gun at him
again. Plaintiff started to roll on the ground across 71st
Street. He heard what "seemed like five or six shots." When he
got up, he did not see Carrothers or Sullivan. Plaintiff then
ran toward a car he saw at the corner of 71st Street and Michigan
Avenue. There, he told a man, whom he identified as Kevin, that
he had been shot. Kevin drove him to Saint Bernard's Hospital.
At the hospital, a doctor treated plaintiff's wounds and
gave him medication. About 30 minutes after plaintiff arrived at
the hospital, Chicago police officers questioned him. When
plaintiff left the hospital about 7 a.m., the officers escorted
him out and drove him to the police station. There, they
handcuffed him to a bar on the wall of a room. The officers
again questioned plaintiff about the previous night. Sub-
sequently, from 11:30 p.m. until the next morning, plaintiff was
held in a jail cell. Following his release, plaintiff was
charged with misdemeanor battery.
Plaintiff denied that he had a gun during his interaction
with Carrothers. Around July 23, 2001, the charge against
plaintiff was dismissed.
On cross-examination by Carrothers' counsel, plaintiff
restated that he saw Carrothers in Rodney's prior to the
altercation. He saw Carrothers talking to Catrice Graham, whom
he knew through the Williams family. Plaintiff denied that he
saw Carrothers talking to Graham outside Rodney's when he left
the bar. He further denied that he was part of a group that
-6- circled and struck Carrothers.
On cross-examination by the City's counsel, plaintiff denied
that he saw Carrothers display a police badge during the
confrontation. He further denied that Carrothers was wearing a
police uniform or that any other police officers were in the
area. Carrothers never identified himself as a police officer or
attempted to arrest plaintiff.
Plaintiff next called Carrothers as an adverse witness.
Carrothers testified that as a Chicago police officer, he was
always required to carry his badge and gun when he went out in
public whether or not he was on duty. On November 18, 2000, he
was on furlough and was working as a security guard at the auto
pound at 701 North Sacramento Avenue, which the City owned.
Carrothers further testified that he drove to Rodney's after
work at the auto pound and entered the bar about 1:30 a.m. He
confirmed that he had his badge and gun when he entered the bar.
Carrothers stated that he lived about a mile and a half from
Rodney's.
Carrothers asserted that he left Rodney's about 3 a.m. after
he heard the announcement of "last call." As he left the bar and
headed to his car, Carrothers was talking to Graham, whom he met
in the bar. He could not remember what he said to her.
Carrothers stated that six men, including plaintiff, then
attacked him outside the bar. Carrothers asserted that plaintiff
punched him and drew a gun from his pants. In response, as
Carrothers lay on the ground about four feet from plaintiff, who
-7- faced him with his gun drawn, he drew his gun from his holster
under his sweater and fired at plaintiff.
Carrothers testified that he identified himself as a police
officer several times as the group of men attacked him. He then
heard a man say, "Kill that mother f-----." Carrothers stated
that he and plaintiff ran away from each other as they fired
their weapons.
As Carrothers reached 71st Street, he saw two police
officers in a parked vehicle. Carrothers entered the police car,
but the officers did not pursue plaintiff.
At the police station at 111th Street and Corliss Avenue,
Carrothers recounted the events of his confrontation with
plaintiff for an assistant State's Attorney (ASA). He signed a
complaint against plaintiff as a police officer of the 15th
Chicago Police District. The complaint, which was filed with the
court on November 20, 2000, alleged that plaintiff violated
section 12-3(a)(1) of the Criminal Code of 1961 (720 ILCS 5/12-
3(a)(1) (West 2000)) where he "committed the offense of battery
in that he, without legal justification, knowingly caused bodily
harm to PO Carrothers." In addition, Carrothers appeared in
court three times during proceedings against plaintiff. Each
time, he wore his police uniform, which he was required to do as
a police officer complainant. However, he did not appear the
fourth time when the charge against plaintiff was dismissed.
Plaintiff's counsel then questioned Carrothers about his
February 13, 2001, signed statement, which he gave to Chicago
-8- police officer James Lucas about the November 19, 2000 incident.
Carrothers admitted that he did not state therein that plaintiff
fired a gunshot at him during the confrontation. The complaint
also did not name plaintiff as one of the persons who had punched
Carrothers in the face.
During questioning by the City's counsel, Carrothers
admitted Chicago police rules and regulations prohibit an officer
from carrying a weapon in certain circumstances. He asserted
that he personally purchased the 9-millimeter Smith and Wesson
handgun he carried with him.
Carrothers testified that he identified himself as a police
officer when several men attacked him, but he never displayed his
police badge. He also stated that he only displayed his weapon
after plaintiff pulled out his handgun. Carrothers did not
arrest any offenders.
Carrothers confirmed that the complaint he signed against
plaintiff alleged misdemeanor battery and that battery against a
police offer constitutes aggravated battery, a felony. He was
never disciplined by the Chicago police department.
During questioning by his counsel, Carrothers testified that
on November 19, 2000, his duties for the Chicago police involved
investigations of narcotics and gang activities. He denied that
he had any contact with his attackers inside Rodney's or that he
punched or kicked Sullivan any time on November 19, 2000.
Carrothers asserted that after he reported the attack to
police officers, whom he saw a couple of blocks from the
-9- altercation, he went to the University of Chicago Hospital for
treatment. Afterward, he went to the district police station to
answer further questions about the attack.
Carrothers further testified that his handgun was department
approved. He volunteered his handgun to the on-scene sergeant
after the shooting in accordance with police procedure.
Carrothers reasserted that he did not display his badge prior to
the altercation. Carrothers did not know he had hit plaintiff
with a bullet until he arrived at the hospital.
Upon further questioning by plaintiff's counsel, Carrothers
stated that he did not know he shot plaintiff in the buttocks.
He only learned that after reading a report.
Finally, Carrothers testified that he received notice of the
first three hearings with respect to the complaint against
plaintiff. He did not receive notice of the fourth date.
Next, the court allowed the City to call a witness during
the plaintiff's case-in-chief due to the witness's presence in
court. Roel Calima, an intensive care unit nurse at Saint
Bernard's Hospital, testified that he was assigned to the
emergency room on November 19, 2000. On that date, he treated
plaintiff, who had been shot in the right thigh. Plaintiff
received a tetanus shot and a prescription for an antibiotic.
During questioning by Carrothers' counsel, Calima reviewed
the medical report of plaintiff's care. He testified that
plaintiff's friends brought him to the hospital. Plaintiff told
him, "I got shot on my right thigh." Calima's report also
-10- stated:
"And for my assessment, [p]atient presented
to ER with gunshot wound on right side. Able
to move affected leg. Awake, alert, and
oriented. Complained of only slight pain of
infected leg. No shortness of breath noted.
And clear breath sounds bilaterally."
In response to plaintiff's counsel's questioning, Calima
admitted that he was not very familiar with gunshot wounds. He
stated plaintiff had a wound on his right thigh and buttocks.
Although Calima testified that he observed that the buttocks
wound was larger than the front thigh wound, he admitted that he
did not record that observation on plaintiff's medical chart.
Plaintiff next sought to call Derrick Sullivan to testify.
The City's counsel objected, however, that Sullivan was an
undisclosed Rule 213 witness.
The trial court indicated that it had warned plaintiff prior
to trial that his answers to defendants' Rule 213 interrogatories
were deficient and had informed plaintiff that he had the option
to take a voluntary non-suit or to reach an agreement with
defendants. According to the court, defendants had indicated
that the parties had reached an agreement as to four possible
witnesses, which did not include Sullivan. Plaintiff did not
object to this representation.
Despite the omission of Sullivan's name from the list,
plaintiff's counsel contended that he should be able to call
-11- Sullivan as a witness, because it would not constitute surprise
to defendants, which he argued was the purpose of Rule 213.
Plaintiff's counsel also argued that the trial court had read
Sullivan's name as a witness to be called when addressing the
jury. The trial court responded as follows:
"And we went through that list. I'm not
going to repeat myself. I already told you.
I've already gone through and we did that
before we even commenced jury selection. So
I admonished you that your 213 answers left a
lot to be desired; that you had a right to
take a voluntary nonsuit, if you chose to, at
that time.
And maybe you would be -- maybe, or you
might be allowed to name other witnesses at a
future time if you did that. I encouraged
you to try to reach an agreement as to who
would be called during the trial. I
understood that you had reached an agreement
as to who would be called. And counsel for
the City and for Mr. Carrothers have both
indicated, and you haven't indicated to the
contrary, that they never agreed today to
Sullivan."
Thus, the trial court barred Sullivan's testimony.
Next, James Lukas, a civilian investigator for the police
-12- department, testified that he interviewed Carrothers on February
13, 2001, and recorded his statement as to the November 19, 2000,
incident. In the statement, Carrothers asserted that Sullivan
punched him in the face, knocked him to the ground, and kicked
him. Carrothers made no reference to plaintiff striking him.
Lukas and Carrothers signed the written report.
Plaintiff then retook the stand to show the jury his scars.
He referred to the scar on his right thigh as the "big scar." He
also showed the scar on his right buttocks cheek.
Next, Chicago police detective Maude Noflin testified that
she and her partner Detective Michael Spaulding investigated the
November 19, 2000, incident. As part of their investigation,
they spoke with witnesses, including Carrothers. Noflin
testified that Carrothers had told them that a man with a white
shirt had a gun at the scene of the shooting, but Noflin conceded
that a white shirt was not recovered from plaintiff at the
hospital. Her testimony also presented that a misdemeanor charge
is established where a person is willing to sign a complaint that
asserts each element of a misdemeanor crime.
On cross-examination by Carrothers' counsel, Noflin
confirmed that she filled out a report of plaintiff's arrest.
Therein, Noflin noted that plaintiff stated that he struck
Carrothers with his fists and that he was a member of a group of
men who attacked Carrothers with their fists and feet.
During further cross-examination by the City's counsel,
Noflin confirmed that she and Spaulding arrested plaintiff. She
-13- stated they had probable cause to make the arrest based on
statements by witnesses, including Carrothers and plaintiff.
On redirect examination, Noflin conceded that her case
report included a summary of his interview of plaintiff.
Therein, plaintiff never stated that he was among the men who
attacked Carrothers or that he struck Carrothers with his feet.
It only stated that plaintiff struck Carrothers in the head.
Thereafter, plaintiff sought to call Chicago police officer
Jacqueline Roberson. Defendants asserted that plaintiff had not
previously requested Roberson's appearance. Defendants, however,
agreed to attempt to obtain Roberson's appearance in court.
Subsequently, Roberson testified that she saw Carrothers in
Rodney's on November 19, 2000, prior to the incident. They each
knew the other was a police officer. Upon exiting the bar with
others at closing time, she heard two gunshots but did not
witness an attack on Carrothers. Carrothers, however, ran up to
her and said he had been "jacked." He did not state that a
person had pulled a gun on him. Roberson called 9-1-1 to report
a shooting.
After plaintiff rested, defendants made a motion for
directed verdict. The circuit court denied that motion.
Thereafter, the City called Catrice Graham to testify. She
stated that on November 19, 2000, she went to Rodney's to
celebrate her cousin's birthday. During the party, Carrothers
approached her to engage in conversation, but she declined.
Carrothers, who was in street clothes, walked away, but he
-14- attempted to speak to Graham again when they were leaving the
bar. Graham's family members then got into a heated conversation
with Carrothers and the verbal dispute evolved into a physical
altercation. Graham testified that Carrothers never identified
himself as a police officer.
On cross-examination by Carrothers' counsel, Graham
confirmed that she was a friend of plaintiff and that plaintiff
had suggested a romantic relationship with her in the past. She
also confirmed that she saw Sullivan approach Carrothers with his
fist clenched and witnessed Carrothers fall to the ground, at
which time he appeared to reach for a gun. However, she neither
saw plaintiff or Sullivan strike Carrothers nor witnessed any
other physical contact. She did hear three to five gunshots.
When asked about further details, Graham explained that she ran
away from the scene when she saw Sullivan make a fist.
Spaulding testified that he interviewed witnesses following
the November 19, 2000, incident. He arrested plaintiff and
Sullivan after each admitted hitting Carrothers. Carrothers
identified plaintiff as one of the men who struck him.
On cross-examination by plaintiff's counsel, Spaulding
reviewed his general progress report (GPR). The GPR disclosed
that, during an interview, Carrothers asserted that he identified
himself as an officer at the scene of the incident. Carrothers
also stated that plaintiff pulled a weapon on him, and he
admitted that he fired his weapon. The report indicated,
however, that plaintiff denied he had a weapon.
-15- All parties then rested. Following closing arguments, the
jury returned a verdict for defendants. Plaintiff now appeals.
ANALYSIS
I. Supreme Court Rule 213(f)(1)
On appeal, plaintiff first contends that the trial court
abused its discretion when it barred Sullivan's testimony. We
disagree.
"The exclusion or admission of evidence by the circuit court
is reviewed under an abuse of discretion standard and will not be
reversed absent an abuse of that discretion." Kim v. Mercedes-
Benz, U.S.A., Inc., 353 Ill. App. 3d 444, 452 (2004). An abuse
of discretion occurs only where no reasonable person would take
the view adopted by the circuit court. Kim, 353 Ill. App. 3d at
452.
In the case at bar, the circuit court reprimanded plaintiff
before the start of trial that his answers to defendants' Rule
213 interrogatories were deficient. The court informed plaintiff
that he could take a voluntary nonsuit or reach an agreement with
defendants. Thereafter, plaintiff and the City reached an
agreement as to four witnesses that plaintiff would call at
trial. That list did not include Sullivan. The record shows
that Carrothers' counsel also agreed he would not challenge any
agreement plaintiff and the City reached.
In this court, plaintiff now contends that despite the
pretrial agreement encompassing calling four witnesses, which did
-16- not include Sullivan, the circuit court abused its discretion by
barring Sullivan's testimony. In its brief, the City initially
asserts that plaintiff never challenged the validity of its
pretrial agreement as to the list of four witnesses and, thus,
plaintiff has waived any argument regarding Sullivan's testimony.
Whether or not the plaintiff waived this issue, we find no error
with the circuit court's decision.
As plaintiff's own counsel recognized in contesting
Carrothers' initial preservation of his right to contest
plaintiff's and the City's agreement as to the list of four
witnesses, the purpose of disclosure is to allow the other party
to determine how to proceed. Such decisions include whether to
depose a disclosed witness. Here, plaintiff failed to disclose
any witnesses in accordance with Rule 213(f)(1). Despite such
failure, the circuit court allowed the parties to reach an
agreement as to which witnesses plaintiff would call. In
addition, the record discloses the circuit court's flexibility in
allowing plaintiff to call Roberson, who defendants indicated had
not been previously requested. Given this record, we conclude
that the circuit court clearly did not abuse its discretion in
barring the testimony of Sullivan.
Plaintiff's brief mischaracterizes the circuit court's
decision to bar Sullivan's testimony as a discovery sanction.
Nonetheless, as the City and Carrothers contend, plaintiff would
lose under the sanction analysis as well.
Whether a party violated a discovery rule is an issue of law
-17- that we review de novo. Dalan/Jupiter, Inc. v. Draper & Kramer,
Inc., 372 Ill. App. 3d 362, 369-70 (2007), citing People v. Hood,
213 Ill. 2d 244, 256 (2004). Supreme Court Rule 213(f)(1)
provides:
"Upon written interrogatory, a party
must furnish the identities and addresses of
witnesses who will testify at trial and must
provide the following information:
(1) Lay Witnesses. A "lay witness" is a
person giving only fact or lay opinion
testimony. For each lay witness, the party
must identify the subjects on which the
witness will testify. An answer is
sufficient if it gives reasonable notice of
the testimony, taking into account the
limitations on the party's knowledge of the
facts known by and opinions held by the
witness." 210 Ill. 2d R. 213(f)(1).
As discussed above, plaintiff clearly violated Rule 213(f)(1) by
failing to name witnesses, much less provide witnesses' contact
information and the subject of their testimony.
That said, the imposition of a sanction for the violation of
a discovery rule, provided by Supreme Court Rule 219(c) (166 Ill.
2d R. 219(c)), falls within the discretion of the circuit court.
A sanction will not be reversed absent an abuse of that
discretion. Nedzvekas v. Fung, 374 Ill. App. 3d 618, 620-21, 872
-18- N.E.2d 431, 434 (2007). The factors that the circuit court must
consider when imposing sanctions include: "(1) the surprise to
the adverse party; (2) the prejudicial effect of the witness'
testimony; (3) the nature of the testimony; (4) the diligence of
the adverse party; (5) the timeliness of the objection; and (6)
the good faith of the party seeking to offer the testimony."
Nedzvekas, 374 Ill. App. 3d at 621, 872 N.E.2d at 435. No single
factor is determinative, and each case presents a unique factual
situation that the court must consider. Nedzvekas, 374 Ill. App.
3d at 621, 872 N.E.2d at 435.
Here, the parties' briefs focus primarily on the surprise
element of Sullivan's testimony. Plaintiff, in particular,
argues that defendants would not have been surprised by
Sullivan's testimony because eyewitnesses had placed Sullivan at
the scene and Sullivan had even pled guilty to battering
Carrothers. The City responds that it did not depose Sullivan as
a result of plaintiff's failure to name Sullivan pursuant to
Supreme Court Rule 213. Further, we find that plaintiff's
attempt to call Sullivan as a witness, despite a deficient answer
to Supreme Court Rule 213 interrogatories and pretrial agreement,
would have raised issues as to plaintiff's diligence and his good
faith. Even when the trial court allowed the parties to agree to
witnesses to be called by plaintiff, plaintiff did not disclose
Sullivan. In addition, Sullivan's testimony would have been
cumulative in nature. Given these factors, we conclude that the
circuit court would not have erred had it barred Sullivan's
-19- testimony under its Rule 219 authority.
II. Manifest Weight of the Evidence
Plaintiff next contends that the verdict in this case was
against the manifest weight of the evidence. He argues that the
evidence established his claims of battery, false arrest, and
malicious prosecution. As the City asserts, however, the record
does not contain plaintiff's posttrial motion to vacate the
jury's verdict. Rather, plaintiff simply attached that motion to
his brief, which was not appropriate. In re Parentage of Melton,
321 Ill. App. 3d 823, 826 (2001). Moreover, that motion did not
include this issue, and thus the issue is waived. People v.
Enoch, 122 Ill. 2d 176, 186 (1988).
Even if we reviewed this issue, plaintiff's arguments would
fail. A verdict is against the manifest weight of the evidence
where the opposite conclusion is clearly evident from the
evidence or where the jury's findings are unreasonable or
arbitrary and not based on the evidence. Maple v. Gustafson, 151
Ill. 2d 445, 454 (1992). A reviewing court gives great deference
to a jury's findings, including the weight of witness testimony
and other evidence. Wildman, Harrold, Allen & Dixon v. Gaylord,
317 Ill App. 3d 590, 599 (2000).
A. Battery
We first address plaintiff's claim of battery. The tort of
battery is defined as the unauthorized touching of another's
person. Welton v. Ambrose, 351 Ill. App. 3d 627, 636 (2004),
citing Curtis v. Jaskey, 326 Ill. App. 3d 90, 93 (2001).
-20- However, as Carrothers argues, Illinois recognizes self-defense
as an affirmative defense to such a claim in civil cases.
Thompson v. Petit, 294 Ill App. 3d 1029, 1035 (1998). The
factors to consider in determining whether a person acted in
self-defense are: (1) whether the individual was the aggressor;
(2) whether the danger of harm was present; (3) whether unlawful
force, either criminal or tortious, was threatened; (4) whether
the individual actually believed danger existed, his use of force
was necessary to avoid harm, and that the amount of force he used
was necessary; and (5) whether the individual's use of force was
reasonable even if mistaken. First Midwest Bank of Waukegan v.
Denson, 205 Ill. App. 3d 124, 129 (1990).
Here, Carrothers testified that he was attacked by a group
of men outside Rodney's as he was speaking to Graham. He
asserted that the attack was unprovoked and continued even after
he identified himself as a police officer. Further, he stated
that he saw plaintiff draw a gun. In response, Carrothers drew
his gun and fired at plaintiff. This testimony set forth each
factor of self-defense as provided in Denson. In addition,
Detectives Noflin and Spaulding provided testimony that supported
Carrothers' testimony about the altercation.
Although plaintiff's testimony contradicted Carrothers'
version of events, the jury evidently found Carrothers' testimony
more credible. Since the jury, as the trier of fact, stood in
the best position to ascertain the witnesses' credibility, we
find there is no reason to disturb the jury's verdict for
-21- Carrothers.
B. False Arrest
We next address plaintiff's claim of false arrest. To
establish a claim of false arrest, plaintiff had to show that he
was restrained by the defendant and that the defendant acted
without probable cause. Reynolds v. Menard, Inc., 365 Ill. App.
3d 812, 819 (2006).
In the case at bar, Carrothers did not arrest plaintiff.
However, plaintiff contends that Carrothers was liable due to his
filing a complaint against plaintiff. We recognize that Illinois
courts have held that a plaintiff can recover against a private
defendant for false arrest where the defendant directed the
officers to make the arrest or the defendant's complaint was the
sole basis for the arrest. Randall v. Lemke, 311 Ill. App. 3d
848, 852 (2000). Although Carrothers was a police officer, we
find the Randall analysis persuasive in the case at bar.
Plaintiff argues that Carrothers was liable for his false
arrest because Carrothers' complaint was the sole source of
information provided to procure his arrest. The record, however,
refutes plaintiff's claim. Rather, the record shows that
Detectives Noflin and Spaulding, the arresting officers, did not
arrest plaintiff until after they spoke with witnesses including
Carrothers and plaintiff, who the detectives asserted admitted to
striking Carrothers. Given that the record neither shows
Carrothers directed the officers to arrest plaintiff nor
demonstrates that Carrothers' complaint was the sole basis for
-22- plaintiff's arrest, plaintiff cannot sustain a claim of false
arrest. Randall, 311 Ill. App. 3d at 852.
We thus find that the jury did not err in ruling for
Carrothers on the claim of false arrest.
3. Malicious Prosecution
Finally, we address plaintiff's claim of malicious
prosecution. "Illinois does not favor suits for malicious
prosecution due to the public policy interest in the exposure of
crime." Ross v. Mauro Chevrolet, 369 Ill. App. 3d 794, 801
(2006), citing Reynolds, 365 Ill. App. 3d at 819. That said, to
establish a claim of malicious prosecution, plaintiff had to show
(1) the commencement or continuation of an original criminal or
civil proceeding by defendants, (2) termination of the proceeding
in favor of plaintiff, (3) the absence of probable cause for the
proceeding, (4) the presence of malice on defendants' part, and
(5) damages resulting to plaintiff. Reynolds, 365 Ill. App. 3d
at 818-19. The absence of any one of these elements bars
plaintiff's claim. Swick v. Liautaud, 169 Ill. 2d 504, 512
(1996).
We first note that the record is devoid of a circuit court
order disposing of the criminal proceedings. Plaintiff argues
that the circuit court dismissed the case and thus terminated the
criminal proceedings in his favor. Defendants counter that the
court's action did not constitute a judgment in plaintiff's
favor. The City further contends that the charge was not
dismissed but, rather, characterizes the court's action as
-23- striking the case with leave to reinstate.
Our research has not unearthed a malicious prosecution case
that stems from the dismissal of an underlying criminal case or
where an underlying criminal case was stricken with leave to
reinstate. However, we find that the supreme court's ruling in
Swick provides guidance.
In Swick, our supreme court analyzed whether the State's
decision to nol-pros a criminal charge against the plaintiff in
the underlying criminal case constituted a favorable termination
in order for plaintiff to establish a claim of malicious
prosecution. The supreme court noted that in a civil malicious
prosecution context, "the majority rule is that a criminal
proceeding has been terminated in favor of the accused when a
prosecutor formally abandons the proceeding via a nolle prosequi,
unless the abandonment is for reasons not indicative of the
innocence of the accused." Swick, 169 Ill. 2d at 513, citing
Restatement (Second) of Torts §§659, 660, 661 (1977). The court
explained:
"The abandonment of the proceedings is not
indicative of the innocence of the accused
when the nolle prosequi is the result of an
agreement or compromise with the accused,
misconduct on the part of the accused for the
purpose of preventing trial, mercy requested
or accepted by the accused, the institution
of new criminal proceedings, or
-24- impracticability of bringing the accused to
trial." Swick, 169 Ill. 2d at 513, citing
Restatement (Second) of Torts §§660, 661
(1977).
Our supreme court adopted the majority rule, but also stated that
the plaintiff bore the burden of demonstrating that the
termination of proceedings was favorable for him. Swick, 169
Ill. 2d at 513. The court then asserted that the plaintiff in
that case failed to provide any evidence that the State's
decision to nol-pros the criminal charge resulted in a favorable
termination for him. Swick, 169 Ill. 2d at 514. As such, the
supreme court reversed the jury's verdict for the plaintiff and
remanded the case for a new trial on the malicious prosecution
count. Swick, 169 Ill. 2d at 514.
Here, despite the lack of clarity regarding the exact
characterization of the circuit court's order terminating the
criminal proceedings, we observe that the criminal proceedings
ceased when Carrothers failed to appear for the fourth court
date. Neither this fact nor any other evidence in the record
supports an inference that the dismissal of the criminal case was
the result of any of the exceptions set forth in Swick.
Consequently, we find that plaintiff's argument that he met his
burden as to the second element of his malicious prosecution
claim arguably has merit.
Nonetheless, the record reveals strong evidence that
probable cause for the prosecution was present. As stated above,
-25- the detectives in the case at bar interviewed witnesses,
including Carrothers and plaintiff. The detectives further
asserted that plaintiff admitted to striking Carrothers. Given
this record a rational jury could have found that plaintiff
failed to prove that probable cause did not exist to prosecute
plaintiff. Thus, the jury did not err in delivering a verdict
for Carrothers on the claim of malicious prosecution.
Finally, since plaintiff's claims against the City were
predicated on Carrothers' employment as a Chicago police officer,
and we have concluded that the jury's verdicts for Carrothers
were correct, we find that the jury did not err in ruling for the
City.
CONCLUSION
For these reasons, we affirm the judgment of the circuit
court of Cook County.
Affirmed.
GREIMAN and THEIS, JJ., concur.
-26-