{ "id": 4292263, "name": "PAMELA PLEASANCE, as Special Adm'r of the Estate of Michael Pleasance, Deceased, Plaintiff-Appellee, v. THE CITY OF CHICAGO et al., Defendants-Appellants", "name_abbreviation": "Pleasance v. City of Chicago", "decision_date": "2009-12-14", "docket_number": "No. 1\u201408\u20141510", "first_page": "821", "last_page": "833", "citations": [ { "type": "official", "cite": "396 Ill. App. 3d 821" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "658 N.E.2d 450", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "168 Ill. 2d 83", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 307264 ], "year": 1995, "pin_cites": [ { "page": "100" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/168/0083-01" ] }, { "cite": "724 N.E.2d 949", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "311 Ill. App. 3d 542", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 415354 ], "weight": 4, "year": 1999, "pin_cites": [ { "page": "546" }, { "page": "546" }, { "page": "546" }, { "page": "551", "parenthetical": "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" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/311/0542-01" ] }, { "cite": "755 N.E.2d 1021", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "324 Ill. App. 3d 568", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 256271 ], "year": 2001, "pin_cites": [ { "page": "582" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/324/0568-01" ] }, { "cite": "270 N.E.2d 553", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "132 Ill. App. 2d 402", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2532375 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "407" }, { "page": "407" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/132/0402-01" ] }, { "cite": "803 N.E.2d 405", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "parenthetical": "and cases cited therein" } ], "opinion_index": 0 }, { "cite": "208 Ill. 2d 53", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2463141 ], "year": 2003, "pin_cites": [ { "page": "76-77", "parenthetical": "and cases cited therein" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/208/0053-01" ] }, { "cite": "851 N.E.2d 800", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2006, "pin_cites": [ { "parenthetical": "counsel's improper opening 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" } ], "opinion_index": 0 }, { "cite": "366 Ill. App. 3d 156", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4265580 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "170", "parenthetical": "counsel's improper opening 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" }, { "page": "170" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/366/0156-01" ] }, { "cite": "619 N.E.2d 892", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "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" } ], "opinion_index": 0 }, { "cite": "250 Ill. App. 3d 576", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2919482 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "586", "parenthetical": "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" }, { "page": "585" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/250/0576-01" ] }, { "cite": "651 N.E.2d 617", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "counsel may not argue facts not in evidence or misrepresent the evidence" } ], "opinion_index": 0 }, { "cite": "272 Ill. App. 3d 925", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 252027 ], "year": 1995, "pin_cites": [ { "page": "933", "parenthetical": "counsel may not argue facts not in evidence or misrepresent the evidence" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/272/0925-01" ] }, { "cite": "595 N.E.2d 1165", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "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" } ], "opinion_index": 0 }, { "cite": "230 Ill. App. 3d 786", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5212148 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "794-95", "parenthetical": "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" }, { "page": "792" }, { "page": "792" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/230/0786-01" ] }, { "cite": "468 N.E.2d 1228", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "upholding the Fourth District's holding that it was reversible error to admit details surrounding the decedent's death where the defendants admitted liability" } ], "opinion_index": 0 }, { "cite": "102 Ill. 2d 505", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3156104 ], "year": 1984, "pin_cites": [ { "page": "519", "parenthetical": "upholding the Fourth District's holding that it was reversible error to admit details surrounding the decedent's death where the defendants admitted liability" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/102/0505-01" ] }, { "cite": "762 N.E.2d 70", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "326 Ill. App. 3d 541", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1281454 ], "year": 2001, "pin_cites": [ { "page": "548" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/326/0541-01" ] }, { "cite": "606 N.E.2d 490", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "238 Ill. App. 3d 385", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5155348 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "392-93" }, { "page": "392", "parenthetical": "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" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/238/0385-01" ] } ], "analysis": { "cardinality": 1101, "char_count": 28526, "ocr_confidence": 0.772, "pagerank": { "raw": 6.71284999925883e-08, "percentile": 0.40771624137160123 }, "sha256": "2eb93eb61a1d89b443ae9c0cae558b2eb708fbedc66b4853f259d4420e31e43c", "simhash": "1:f98c9ddfe7c4347f", "word_count": 4579 }, "last_updated": "2023-07-14T21:39:01.503812+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "PAMELA PLEASANCE, as Special Adm\u2019r of the Estate of Michael Pleasance, Deceased, Plaintiff-Appellee, v. THE CITY OF CHICAGO et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE LAMPKIN\ndelivered the opinion of the court:\nPlaintiff, 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\u2019s order denying their posttrial motion challenging that verdict. Defendants contend a new trial is warranted because the underlying trial was fundamentally unfair where plaintiffs 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.\nFACTS\nDefendant 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 plaintiffs 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 \u2014 615 of the Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 615 (West 2002)). Plaintiff later withdrew her survival action.\nOn May 3, 2007, defendants filed a section 2 \u2014 610(d) (735 ILCS 5/2 \u2014 610(d) (West 2006)) responsive pleading demonstrating their \u201cdesire to contest only the amount of damages to which plaintiff may be entitled.\u201d Plaintiff filed a response, alleging defendants\u2019 section 2 \u2014 610(d) pleading admitting liability was insufficient. Defendants filed a reply conceding their section 2 \u2014 610(d) request was insufficient. To cure the procedural defect, defendants filed Weems\u2019 amended answer and the City\u2019s answer to plaintiffs second amended complaint. Specifically, defendants admitted Michael\u2019s death was a result of Weems unintentionally discharging his weapon in the course of arresting someone else, constituting willful and wanton conduct under the 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 \u201cthat 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.\u201d\nA hearing was held on defendants\u2019 section 2 \u2014 610(d) request. The court granted the request. In so ruling, the court said:\n\u201c[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\u2019t be any conduct in term[s] of whether the officer killed [Michael]. It\u2019s just going to be straight on damages, and I\u2019m not going to let them play any games based on that. So, whatever they tell the jury, the jury\u2019s only going to decide what the amount of damages they\u2019re going to give that plaintiff or the heirs for the death of [Michael].\u201d\nWhen plaintiffs counsel asked whether he would be allowed to say \u201cthe City has admitted willful and wanton conduct with respect to the death \u2014 the cause of death of Michael,\u201d the court replied:\n\u201cWe are going to say that the City admits that [Michael] was killed by [Weems] and that we\u2019re here to decide damages on his death. And we\u2019ll let the jury decide.\u201d\nPrior to trial, both parties filed several motions in limine. In relevant part, defendants filed a motion in limine to bar \u201cany undue argument, testimony, or excessive reference to willful and wanton conduct,\u201d argument and comment urging the jury to \u201csend a message\u201d with its verdict, and \u201cany testimony, reference, or argument that the shooting was \u2018murder,\u2019 \u2018unjustified,\u2019 \u2018shocking,\u2019 and all other descriptions of outrage or prejudicial characterizations of the incident.\u201d A hearing was held on December 7, 2007. Plaintiffs counsel objected to limiting his ability to argue that \u201cthis case involves willful and wanton conduct, which has been admitted.\u201d Defendants\u2019 counsel replied:\n\u201cWe do understand that willful and wanton is part of the instructions, and that they will be permitted to discuss that in closing argument.\nOur concern is excessive and prejudicial use of 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\u2019s argued that the jury inflates their verdict. That\u2019s our concern.\u201d\nThe court responded, \u201c[t]he jury has no idea what willful and wanton means. It\u2019s just two W\u2019s. They won\u2019t get it to the point that it means something extremely, extremely terrible.\u201d Defendants\u2019 counsel restated her concern that willful and wanton not be \u201coverly emphasized.\u201d The court granted the motion as to \u201csending a message\u201d and punishing defendants, and denied the motion as to barring the use of willful and wanton conduct, adding it would restrict plaintiffs counsel from \u201ca lot of willful and wanton.\u201d\nDefendants also filed an in limine motion to bar testimony regarding fault. The court denied the motion; however, it instructed plaintiff\u2019s counsel to caution plaintiff from testifying defendants \u201cmurdered or killed\u201d or \u201csome other pejorative [term],\u201d limiting the testimony to \u201cshot and he died.\u201d\nThe only information related to Weems\u2019 conduct was introduced by the trial court prior to voir dire. The court advised the potential jurors:\n\u201cThe incident that gives rise to this lawsuit 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.\nThe only issue to be decided in this case is the amount of damages that will fairly compensate the decedent\u2019s mother and brother for the loss that they incurred because defendants are only contesting the amount of damages resulting from the decedent\u2019s death. The circumstances underlying the incident are not relevant to your decision because they are not relevant to the case.\u201d\nThe jury trial proceeded to determine damages for loss of society.\nDuring opening statements, plaintiffs counsel said Michael was never given the opportunity to secure employment after being released from jail because he was \u201cgunned down by a Chicago police officer.\u201d Plaintiffs counsel said the City admitted Michael was shot \u201cwith an utter indifference to and conscious disregard for his safety.\u201d Plaintiffs counsel added that Michael\u2019s \u201clife was taken by the admittedly wrongful conduct of the defendants.\u201d\nDefendants 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 \u201cdraw unnecessary attention to it.\u201d The trial court took the request under advisement. The court cautioned:\n\u201cIf I hear any other utterances \u2014 gunned down, shot, killed, dragged through the streets, anything that depicts how this person died, I will grant a mistrial, all right?\nSo, Counsel, you are on notice that your [sic] to say, yes, he was shot. *** But if you start to pass \u2018shot,\u2019 I am going to consider the mistrial.\u201d\nThe 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 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.\nDuring closing arguments, plaintiffs counsel argued:\n\u201cThose [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 [sic].\nYour verdict is going to tell your entire community whether you\u2019re willing to accept a police officer\u2019s willful and wanton killing of a member of our society.\u201d\nNo objection was made by the defense at that time. The objection, however, was noted later.\nLater, plaintiffs counsel said:\n\u201cSociety has to have rules. All civilized societies have to have rules. Those rules govern all of our conduct and those rules must be obeyed.\nThey must be obeyed in order for us to live peacefully with one another. Without rules, there 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.\u201d\nDefendants objected and the court overruled the objection.\nPlaintiffs counsel continued:\n\u201cWe are conditioned, at an early age, about trust, about trusting a policeman.\nWe 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?\nIt simply couldn\u2019t be worse when that breach of our sacred trust takes place.\nIt shocks us. It appalls, and it should.\nIt angers us when a police officer willfully and wantonly takes the life of a member of our society. It angers us and it should.\u201d Defendants objected. The court sustained the objection and instructed counsel to \u201cmove on.\u201d\nPlaintiffs counsel then said:\n\u201cMichael was handicapped. He was mentally handicapped. He needed protection, not willful and wanton conduct.\nI\u2019m going to show you what I believe the Court will instruct you on the definition of willful and wanton conduct.\nHere, again, these words are chosen carefully through years of analysis as to define a level of conduct.\u201d\nPlaintiffs counsel read Illinois Pattern Jury Instructions, Civil, No. 14.01 (2005) (IPI Civil (2005) No. 14.01), defining willful and wanton conduct, as follows:\n\u201cWhen I use the expression \u2018willful and wanton conduct,\u2019 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.\u201d\nPlaintiffs counsel then added:\n\u201cThose 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.\u201d\nDefendants objected and a sidebar was held. Defendants argued that plaintiffs counsel violated the in limine order and that the officer\u2019s conduct was not an issue in the case. The court overruled the objection, indicating that the court had allowed plaintiffs counsel to talk about the police officer \u201cfor a very short period of time.\u201d The court then said enough had been said about the subject. The defense also noted for the record their objection to plaintiffs counsel\u2019s earlier arguments about sending a message to the community with their verdict.\nPlaintiffs counsel then continued:\n\u201cThat is the admitted conduct in this case. Again, these words are chosen carefully.\nWhen 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.\u201d\nFurther in closing, plaintiffs counsel said \u201c[w]illful and wanton conduct has separated [Michael from his family],\u201d adding \u201cthis case calls on you to do something *** conceptually very difficult, to examine willful and wanton admitted conduct and translate this loss into a number.\u201d\nThen, in rebuttal, plaintiffs counsel retorted:\n\u201cWhat we saw here was unmitigated character assassination. It wasn\u2019t enough for [defendants] to kill Michael Pleasance, then they had to come in here and kick dirt on his grave.\u201d\nPlaintiffs counsel concluded:\n\u201cI just want to share with you a quote from Martin Luther King that I think about when I\u2019m engaged in trials like this one.\nDr. King said: \u2018Injustice anywhere is a threat to justice everywhere.\u2019 Justice here requires a substantial verdict for the Pleasance family for the wrongful death of a loving and beloved son and brother.\u201d (Emphasis added.)\nAt the close of trial, the court issued a curative instruction:\n\u201cStatements 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\u2019s conduct that is inconsistent with the evidence should not be considered by you in your decision.\u201d\nDefendants objected to the second sentence of the curative instruction based on the fact that Weems\u2019 conduct was \u201cnot relevant, in any way, to [the jury\u2019s] determination of damages.\u201d\nThe jury was given Illinois Pattern Jury Instructions, Civil, No. 23.01B (2005) (IPI Civil (2005) No. 23.01B), which admitted the City\u2019s willful and wanton conduct was the proximate cause of Michael\u2019s 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.\nThe jury returned a $12.5 million verdict in plaintiffs favor. The court entered the verdict and denied defendants\u2019 motion for a new trial or a remittitur.\nDECISION\nI. Improper Comments\nDefendants contend they are entitled to a new trial because plaintiffs counsel repeatedly remarked on the circumstances surrounding Michael\u2019s death in error. We agree.\nBecause defendants admitted liability, the trial proceeded solely to determine damages for plaintiffs loss of society. Loss of society includes \u201cthe deprivation of love, companionship, and affection from the deceased person.\u201d Turner v. Williams, 326 Ill. App. 3d 541, 548, 762 N.E.2d 70 (2001). The related instruction given to the jury said:\n\u201cWhen I use the term \u2018society,\u2019 in these instructions I mean the mutual benefits that each family member receives from the other\u2019s continued existence, including love, affection, care, attention, companionship, comfort, guidance, and protection.\u201d Illinois Pattern Jury Instructions, Civil, No. 31.11 (1995).\nThe manner in which Michael died was wholly immaterial to the determination of loss of society. Defendants\u2019 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\u2019s death. See Bullard v. Barnes, 102 Ill. 2d 505, 519, 468 N.E.2d 1228 (1984) (upholding the Fourth District\u2019s holding that it was reversible error to admit details surrounding the decedent\u2019s death where the defendants admitted liability).\nPlaintiff\u2019s counsel\u2019s repeated improper and prejudicial comments require the granting of a new trial. See Rutledge v. St. Anne\u2019s 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\u2019s improper closing arguments and violations of an in limine order). Plaintiffs counsel\u2019s 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\u2019 conduct or his state of mind. The only evidence the jury heard focused on determining damages for loss of society. Therefore, plaintiffs counsel was completely improper in urging the jury to \u201cexamine willful and wanton admitted conduct and translate this loss into a number.\u201d\nAdditionally, it was not the jury\u2019s duty to defend the legal system from \u201cabuse\u201d and \u201cinjustice\u201d; 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\u2019 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\u2019s 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\u2019s improper opening 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\u2019s duty to eradicate the racial injustices described by Dr. Martin Luther King, Jr., as plaintiff\u2019s counsel implied in his concluding remarks.\nThis court has said:\n\u201cThe 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.]\u201d Hansel v. Chicago Transit Authority, 132 Ill. App. 2d 402, 407, 270 N.E.2d 553 (1971).\nHere, the narrow facts were limited to how much plaintiff was entitled to for her loss of society. Plaintiffs counsel\u2019s 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.\nThe court did not restrain plaintiffs counsel from \u201ca lot of willful and wanton,\u201d as indicated. Rather, the court denied defendants\u2019 request for a mistrial based on plaintiff\u2019s counsel\u2019s excessive commentary regarding Weems\u2019 willful and wanton conduct. In addition, despite the court\u2019s admonishment that a mistrial would be granted if plaintiff\u2019s counsel referred to Weems\u2019 having \u201cshot, killed, *** anything that depicts how this person died,\u201d plaintiffs counsel repeatedly described Michael as being killed by defendants\u2019 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\u2019s life. The court\u2019s 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.\nAnd, the court\u2019s curative instruction did not cure plaintiff\u2019s counsel\u2019s 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\u2019 conduct for the jury to consider in assessing plaintiffs counsel\u2019s argument.\nWe 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\u2019s counsel\u2019s comments as plain error because they were \u201cso egregious that they deprived [defendants] of a fair trial and substantially impaired the integrity of the judicial process itself.\u201d Spyrka, 366 Ill. App. 3d at 170. Plaintiffs counsel\u2019s comments were a base appeal to emotion and prejudice. They had no place in this damages trial. Furthermore, plaintiff\u2019s counsel\u2019s 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.\nII. Improper Jury Instructions\nDefendants 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 \u201ca course of action which shows actual or deliberate intention to harm.\u201d\nIt is within the trial court\u2019s 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.\nIPI Civil (2005) No. 14.01 provides:\n\u201cWhen I use the expression \u2018willful and wanton conduct\u2019 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\u2019s own safety) (and) (the safety of others)].\u201d\nThe Notes on Use say:\n\u201cThis 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. ***\nIf there is no issue as to the plaintiffs 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.\u201d IPI Civil (2005) No. 14.01, Notes on Use, at 70.\nThe 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 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\u2019s 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\u2019 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).\nThe error was compounded when plaintiff\u2019s counsel read the instruction and said:\n\u201cThose 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.\u201d\nThe error in giving the instruction was prejudicial and entitles defendants to a new trial.\nBecause we are remanding this cause for a new trial, we 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.\nIPI Civil (2005) No. 23.01B provides:\n\u201cThe 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].\u201d\nThe Notes on Use section advises that admitted liability can mean \u201cdifferent things to different people\u201d; 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.\nDuring the instructions conference, defendants submitted the following proposed IPI Civil (2005) No. 23.01B:\n\u201cThe defendants, City of Chicago and Alvin Weems[,] have admitted that Alvin Weems discharged his 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.\u201d\nThe trial court ultimately rejected that instruction in favor of plaintiffs proposed IPI Civil (2005) No. 23.01B:\n\u201cThe 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\u2019s death.\u201d\nPlaintiffs proposed IPI Civil (2005) No. 23.01B was submitted to the jury over defendants\u2019 objection.\nAs we have repeatedly stated, there was no evidence presented regarding Weems\u2019 conduct. The jury was merely advised \u201cCity of Chicago police officer, Alvin Weems, while on duty discharged his gun, which resulted in the death of Michael Pleasance.\u201d While defendants admitted liability pursuant to section 2 \u2014 610(d) of the Code in their answers to plaintiffs complaint, the substance of the answers was not presented as evidence to the jury. And, the only discussion of willful and wanton conduct was contained within defendants\u2019 answers, in that Michael\u2019s 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.\nThe admission in defendants\u2019 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 \u2014 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\u2019s verdict finding the defendant\u2019s 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).\nWe conclude defendants\u2019 proposed IPI Civil (2005) No. 23.01B would have sufficiently informed the jury of the \u201cother fault conduct\u201d admitted in this case. \u201cWillful and wanton\u201d is not listed in the bracketed language and using that undefined, legalistic language could confuse the jury. \u201cThe other fault\u201d 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 weapon, proximately causing Michael\u2019s death, would have clearly told the jury what was being admitted. We note, however, that the second sentence of defendants\u2019 proposed IPI Civil (2005) No. 23.01B should have instructed the jury to \u201creasonably and fairly compensate the Plaintiff for decedent\u2019s loss of society,\u201d instead of for his \u201cinjuries,\u201d as submitted.\nIII. Remittitur\nWe need not address defendants\u2019 remittitur contention.\nCONCLUSION\nWe reverse the judgment of the trial court and remand this cause for a new trial.\nReversed and remanded.\nGARCIA and PATTI, JJ., concur.\nDuring a pretrial instructions conference, the court ruled, over defendants\u2019 objection, that an instruction defining willful and wanton was admissible.\nThe motion was denied after the jury instructions conference.", "type": "majority", "author": "JUSTICE LAMPKIN" } ], "attorneys": [ "Mara S. Georges, Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and Kerrie Maloney Laytin, Assistant Corporation Counsel, of counsel), for appellants.", "Michael W. Rathsack, Allen N. Schwartz, and Craig P. Mannarino, of Chicago, for appellee." ], "corrections": "", "head_matter": "PAMELA PLEASANCE, as Special Adm\u2019r of the Estate of Michael Pleasance, Deceased, Plaintiff-Appellee, v. THE CITY OF CHICAGO et al., Defendants-Appellants.\nFirst District (1st Division)\nNo. 1\u201408\u20141510\nOpinion filed December 14, 2009.\n\u2014Rehearing denied January 12, 2010.\nMara S. Georges, Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and Kerrie Maloney Laytin, Assistant Corporation Counsel, of counsel), for appellants.\nMichael W. Rathsack, Allen N. Schwartz, and Craig P. Mannarino, of Chicago, for appellee." }, "file_name": "0821-01", "first_page_order": 837, "last_page_order": 849 }