{ "id": 5254331, "name": "MARTEL ENTERPRISES et al., Plaintiffs-Appellees, v. THE CITY OF CHICAGO, Defendant-Appellant", "name_abbreviation": "Martel Enterprises v. City of Chicago", "decision_date": "1991-11-15", "docket_number": "No. 1-89-0108", "first_page": "1028", "last_page": "1036", "citations": [ { "type": "official", "cite": "223 Ill. App. 3d 1028" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "552 N.E.2d 1373", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "196 Ill. App. 3d 187", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2491914 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/196/0187-01" ] }, { "cite": "513 N.E.2d 618", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "160 Ill. App. 3d 397", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3650268 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/160/0397-01" ] }, { "cite": "560 N.E.2d 969", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "202 Ill. App. 3d 1082", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2588219 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/202/1082-01" ] }, { "cite": "492 N.E.2d 1364", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "143 Ill. App. 3d 500", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5668183 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/143/0500-01" ] }, { "cite": "487 N.E.2d 1109", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "139 Ill. App. 3d 744", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3567212 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/139/0744-01" ] }, { "cite": "554 N.E.2d 223", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "136 Ill. 2d 132", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3255179 ], "opinion_index": 0, "case_paths": [ "/ill-2d/136/0132-01" ] }, { "cite": "517 N.E.2d 1098", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "164 Ill. App. 3d 194", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3583571 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/164/0194-01" ] }, { "cite": "465 N.E.2d 573", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "125 Ill. App. 3d 22", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3631775 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/125/0022-01" ] }, { "cite": "177 N.E.2d 864", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "32 Ill. App. 2d 354", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5232024 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/32/0354-01" ] }, { "cite": "512 N.E.2d 1027", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "160 Ill. App. 3d 245", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3650551 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/ill-app-3d/160/0245-01" ] }, { "cite": "576 N.E.2d 874", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "217 Ill. App. 3d 46", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5284470 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/217/0046-01" ] }, { "cite": "458 N.E.2d 514", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "120 Ill. App. 3d 36", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3594143 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/120/0036-01" ] }, { "cite": "483 N.E.2d 1258", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1260" } ], "opinion_index": 0 }, { "cite": "108 Ill. 2d 255", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3129539 ], "pin_cites": [ { "page": "259" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/108/0255-01" ] } ], "analysis": { "cardinality": 722, "char_count": 16528, "ocr_confidence": 0.783, "pagerank": { "raw": 1.1282622987529283e-07, "percentile": 0.5751348823811736 }, "sha256": "00caae2e0efdba34152e84424bbd3153e812d1c24e259c94b82343c1040e3b6f", "simhash": "1:426605d620c1f9f5", "word_count": 2703 }, "last_updated": "2023-07-14T19:46:44.574739+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MARTEL ENTERPRISES et al., Plaintiffs-Appellees, v. THE CITY OF CHICAGO, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE LORENZ\ndelivered the opinion of the court:\nAfter a jury trial, the judge entered a directed verdict in favor of plaintiff Martel Enterprises (Martel) on its claim for conversion and the jury returned a verdict in favor of plaintiff Martin Myers on his claim for false imprisonment. Defendant, the City of Chicago (city), now appeals contending that: (1) its statutory immunity defense was applicable to Martel\u2019s conversion claim; and (2) it should have been granted judgment notwithstanding the verdict on Myers\u2019 false imprisonment claim. For the following reasons, we affirm in part, reverse in part, and remand for new trial.\nPlaintiffs filed a complaint alleging that the city was liable for conversion and false imprisonment. The following testimony was presented at trial.\nOn June 20, 1983, several Chicago police officers executed a search warrant at Martel allowing the seizure of \u201cClass \u2018C\u2019 Explosives commonly called Fireworksf:] Roman Candles, Sky Rockets, Firecrackers, etc.\u201d After opening some cartons labelled \u201cClass C Explosives,\u201d the officers seized approximately 170 cases of fireworks including smoke balls, jumping jacks, whistling gemini, snakes, and sparklers.\nOfficer Joseph Carone was assigned to the gang crimes unit of the police department but participated in the search at Martel. He testified that the cartons of Class C explosives seized from Martel did not contain Roman candles, sky rockets, or firecrackers, as listed in the search warrant. Carone believed that Class C exp\u00edosives were illegal. He testified that a statute defined Class C explosives as any fireworks that produced an audio or visual effect, which would violate State and city laws. However, after reading the statute in question on the witness stand, he conceded that the statute did not include the term \u201cClass C\u201d explosive. In his opinion, the fireworks seized from Martel were illegal although he was not a specialist in that area.\nLieutenant Frank Radke was also assigned to the gang crimes unit and was present during the search. He testified that Carone examined the cartons of fireworks at Martel and told him that they were all Class C explosives. Radke testified that he believed Class C explosives violated State and city laws based on information from Officer Carone and officers from the bomb and arson unit.\nMyers, the owner and president of Martel, was arrested for possession of illegal fireworks. He was taken to the police station and charged under a State law that defined \u201cfireworks\u201d as \u201cany explosive composition, or any substance or combination of substances, or article prepared for the purpose of producing a visible or audible effect of a temporary exhibitional nature by explosion, combustion, deflagration or detonation.\u201d (111. Rev. Stat. 1981, ch. 1271/2, par. 127.) Myers was processed and released within an hour.\nThe day after the search, the bomb squad of the police department destroyed the fireworks seized from Martel. Officer James Brown, an explosives technician, explained that the fireworks were quickly destroyed under general orders of the police department which provided that if seized contraband was hazardous, it should be destroyed as soon as possible. Brown testified that when the fireworks were ignited, he heard and saw numerous audio and visual effects.\nMichael Myers, vice-president of Martel, admitted that the fireworks seized by the police department would create a visual or audio effect if ignited but they would not explode.\nOn July 7, 1983, an assistant State\u2019s Attorney dismissed the charge against Myers with leave to reinstate and an order was entered, without a hearing, requiring the police department to return the seized fireworks to Myers.\nThe trial judge barred the city from presenting evidence of an ordinance allowing the police to destroy seized property which was dangerous to store (Chicago Municipal Code \u00a72 \u2014 84\u2014170 (1990)) because Myers was charged with possession of fireworks under State law. The judge also excluded evidence of the police department\u2019s orders to destroy hazardous contraband as soon as possible.\nAt the close of evidence, the trial judge found that the city\u2019s defense under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act or Act) (Ill. Rev. Stat. 1989, ch. 85, par. 1 \u2014 101 et seq.) did not apply to an action for conversion. Based on a finding that the fireworks seized from Martel were legal, the judge entered a directed verdict in Martel\u2019s favor on liability for the conversion claim. The jury considered the issue of damages for the conversion and awarded Martel $16,000.\nOn the false imprisonment claim, the jury returned a verdict in Myers\u2019 favor, finding that the police willfully and wantonly arrested him without probable cause. The jury awarded Myers $25,000. The city\u2019s motion for judgment notwithstanding the verdict was denied.\nThe city now appeals.\nOpinion\nI\nThe city first argues that the trial court erred when it directed a verdict in Martel\u2019s favor on the conversion claim without applying the Tort Immunity Act. Martel does not directly respond to this argument.\nUnder sections 2 \u2014 109 and 2 \u2014 202 of the Tort Immunity Act, a municipality is not liable for an injury resulting from the act or omission of its employee committed in the execution or enforcement of any law unless the act or omission was willful and wanton. (Ill. Rev. Stat. 1989, ch. 85, pars. 2 \u2014 109, 2 \u2014 202.) \u201cWillful and wanton conduct\u201d is defined as \u201ca 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.\u201d Ill. Rev. Stat. 1989, ch. 85, par. 1-210.\nThe city argues that the Act provides immunity because it defines \u201cinjury\u201d as \u201cdamage to or loss of property\u201d and conversion is a tort action involving such damage. (Ill. Rev. Stat. 1989, ch. 85, par. 1 \u2014 204.) The city recognizes that conversion is an intentional tort but it does not consider how the requirement of intent impacts on the application of the Act.\nAlthough conversion is considered an intentional tort because it requires \u201can intentional exercise of dominion or control over a chattel\u201d (In re Thebus (1985), 108 Ill. 2d 255, 259, 483 N.E.2d 1258, 1260, quoting Restatement (Second) of Torts \u00a7222A (1965)), it does not require proof of malice, culpability, or conscious wrongdoing (Douglass v. Wanes (1983), 120 Ill. App. 3d 36, 458 N.E.2d 514). It is also not necessary to show an intent to interfere with the rights of others; however, an act which is merely negligent is not sufficient to establish conversion. Restatement (Second) of Torts \u00a7223, Comment b, at 436-37, \u00a7224, Comment b, at 437, Comment c, at 438 (1965).\nThe intent required to establish conversion does not necessarily fall within the definition of willful and wanton conduct in the Act. The Act defines \u201cwillful and wanton\u201d as an intent to harm, conscious wrongdoing, or utter disregard; however, conversion does not require evidence of an intent to interfere with another\u2019s rights, malice, culpability, or conscious wrongdoing. Although evidence of negligent conduct will not support an action for conversion, it may be proven without evidence of willful and wanton conduct as defined in the Act. As a result, the city in this case may be immune from liability if the officers\u2019 conduct was not willful and wanton.\nAdditionally, under sections 2 \u2014 109 and 2 \u2014 203, a municipality is not liable if its employee \u201cacts in good faith, without malice, and under the apparent authority of an enactment that is unconstitutional, invalid or inapplicable *** except to the extent that he would have been liable had the enactment been constitutional, valid and applicable.\u201d (Ill. Rev. Stat. 1989, ch. 85, pars. 2 \u2014 109, 2 \u2014 203.) In this case, the city contends that the officers relied on a State law and a city ordinance defining illegal fireworks and a city ordinance allowing destruction of seized contraband that was dangerous to store. Under sections 2 \u2014 109 and 2 \u2014 203, the city in this case may be immune from liability if the officers relied on the enactments and acted in good faith without malice.\nTherefore, the Tort Immunity Act was applicable to Martel\u2019s claim of conversion and the directed verdict in Martel\u2019s favor must be reversed and remanded for new trial.\nTwo other issues related to the conversion claim must be considered because they will impact on the new trial. The city contends that the trial judge improperly excluded evidence of the city ordinance which allowed the police to destroy seized property that was dangerous to store (Chicago Municipal Code \u00a72 \u2014 84\u2014170 (1990)). On review, a ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion. {Vaughn v. Granite City Steel Division of National Steel Corp. (1991), 217 Ill. App. 3d 46, 576 N.E.2d 874.) The ordinance should have been considered because it was relevant to whether the officers were executing or enforcing a law at the time they destroyed the fireworks and whether they relied on the ordinance in good faith and without malice. The exclusion of this evidence was an abuse of discretion.\nThe city also contends Martel was required to establish that the fireworks were legal as element of conversion. In an action for conversion, plaintiff must prove: (1) defendant assumed unauthorized and wrongful control or ownership over the personalty of plaintiff; (2) plaintiff\u2019s right in the property; (3) the right to immediate possession of the property; and (4) a demand for possession. (Naiditch v. Shaf Home Builders, Inc. (1987), 160 Ill. App. 3d 245, 512 N.E.2d 1027.) The city relies on People v. Fratto (1961), 32 Ill. App. 2d 354, 177 N.E.2d 864, which stated that the law will not recognize an ownership right to contraband. However, Fratto, a criminal case, did not consider whether a plaintiff in a civil action for conversion must prove that the property involved was legal, as the city argues. The elements of a conversion action, as stated above, do not require such proof.\nII\nConcerning Myers\u2019 false imprisonment claim, the city argues that it should have been granted judgment notwithstanding the verdict because the evidence showed the officers had probable cause to arrest Myers for possession of illegal fireworks. It relies on evidence that the officers had a valid search warrant and the fireworks seized from Martel violated State and city laws. Myers responds that the evidence did not support a finding of probable cause because, although the officers had a search warrant, they did not have an arrest warrant and the fireworks were legal.\nIn an action for false imprisonment, a plaintiff must show that the restraint was unreasonable or without probable cause. (Hajawii v. Venture Stores, Inc. (1984), 125 Ill. App. 3d 22, 465 N.E.2d 573.) Probable cause is an absolute bar to a claim of false imprisonment. Fulk v. Roberts (1987), 164 Ill. App. 3d 194, 517 N.E.2d 1098.\nJudgment notwithstanding the verdict should only be entered when all of the evidence, viewed in a light most favorable to the opponent, so overwhelmingly favors the movant that a contrary verdict based on that evidence could not stand. (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223.) In ruling on the motion, the trial judge may not substitute his judgment for that of the jury as to the credibility of witnesses and he may not determine the preponderance of the evidence. (In re Village of Bridgeview (1985), 139 Ill. App. 3d 744, 487 N.E.2d 1109.) If the evidence demonstrates a substantial factual dispute or if the outcome is dependent on the assessment of the witnesses\u2019 credibility or the resolution of conflicting evidence, judgment notwithstanding the verdict should not be entered. Lee v. Grand Trunk Western R.R. Co. (1986), 143 Ill. App. 3d 500, 492 N.E.2d 1364.\nIn this case, the officers had a warrant to search Martel for Class C explosives, listed as Roman candles, sky rockets, and firecrackers. The officers found cartons labelled \u201cClass C Explosives,\u201d which contained various types of fireworks but not the types listed in the warrant. The officers testified that they seized the cartons believing that all Class C explosives violated State and city laws although they did not normally work in that area. Myers was arrested, without a warrant, for possession of illegal fireworks.\nThis evidence must be viewed in a light most favorable to Myers. Although the fireworks seized from Martel were not the same type of fireworks listed in the search warrant, they were seized and Myers was arrested based on Officer Carone\u2019s and Lieutenant Radke\u2019s belief that they violated State and city laws. However, their testimony showed that their knowledge in the area was limited. Carone\u2019s testimony that Class C explosives were defined as illegal in the statute was inaccurate and Radke relied on Carone\u2019s information. Radke also relied on officers from the bomb and arson unit but those officers did not testify at trial. This evidence did not overwhelmingly favor a finding of probable cause to arrest Myers. The determination of whether the officers had probable cause was dependent on an assessment of Carone\u2019s and Radke\u2019s credibility, which was for the jury to resolve. If the jury believed them, it would have found they had probable cause; however, based on its verdict, it is apparent that the jury discredited their testimony. It would have been improper for the trial judge to assess the credibility of the witnesses in ruling on a motion for judgment notwithstanding the verdict. Although a different conclusion may have been reasonable, neither the trial judge nor this court may substitute its judgment for that of the jury. As a result, the denial of the city\u2019s motion for judgment notwithstanding the verdict was proper.\nThe city also argues that the the trial judge improperly instructed the jury on false imprisonment.\nA judgment will not be reversed on appeal for an error in jury instructions unless the instructions clearly misled the jury and the appellant was prejudiced. (Villa v. Crown Cork & Seal Co. (1990), 202 Ill. App. 3d 1082, 560 N.E.2d 969.) In this case, the city offered an instruction which stated that Myers claimed he was unlawfully arrested \u201cwithout probable cause and not in good faith\u201d and that the city alleged \u201cthere was probable cause to arrest [Myers] and that it acted reasonably and in good faith.\u201d The trial judge deleted the references to good faith and gave the instruction to the jury. The city argues that the references to good faith should not have been deleted, relying on Riley v. Fairfield (1987), 160 Ill. App. 3d 397, 513 N.E.2d 618. In Riley, the court found that police officers with a valid arrest warrant who mistakenly arrested a person were immune from liability for false imprisonment if they acted in good faith. However, Riley did not consider the sufficiency of jury instructions for false imprisonment and does not support the city\u2019s argument that it was reversible error to exclude the reference to good faith in the instruction. The city did not establish that it was substantially prejudiced from the instruction.\nThe city also argues that the jury\u2019s verdict on the false imprisonment claim should be overturned because it was influenced by the trial judge\u2019s finding, when he entered a directed verdict against the city on the conversion claim, that the fireworks were legal. The city failed to cite authority to support this argument. An appellate court need not address an issue which is not supported with authority and, as a result, the issue is waived. 134 Ill. 2d R. 341(e)(7); Board of Regents for Regency Universities v. Human Rights Comm\u2019n (1990), 196 Ill. App. 3d 187, 552 N.E.2d 1373.\nIn conclusion, the directed verdict against the city on the conversion claim is reversed and remanded for a new trial, and the jury\u2019s verdict against the city on the false imprisonment claim is affirmed.\nAffirmed in part; reversed in part; and remanded for new trial.\nMURRAY and GORDON, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE LORENZ" } ], "attorneys": [ "Kelly R. Welsh, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Mardell Nereim, Assistant Corporation Counsel, of counsel), for appellant.", "Michael J. Goggin, of Oak Park, for appellees." ], "corrections": "", "head_matter": "MARTEL ENTERPRISES et al., Plaintiffs-Appellees, v. THE CITY OF CHICAGO, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1 \u2014 89\u20140108\nOpinion filed November 15, 1991.\nRehearing denied February 6, 1992.\nKelly R. Welsh, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Mardell Nereim, Assistant Corporation Counsel, of counsel), for appellant.\nMichael J. Goggin, of Oak Park, for appellees." }, "file_name": "1028-01", "first_page_order": 1052, "last_page_order": 1060 }