Policeman sued for use of Taser
Jury Instructions-IL > Intentional Torts > Policeman sued for use of Taser
Michael Scandura, James Scandura vs. Village of Lansing and Officer William Kowalski
04 L 3191
Policeman sued for use of Taser
This matter was tried in the Circuit Court of Cook County in 2008. The Plaintiff was injured when shot by a taser gun. He sued police officers and village for battery, false arrest, malicious prosecution, and intentional infliction of emotional distress. Verdict for Defendants who claimed plaintiff mistakenly shot during a domestic disturbance.
IPI 1.01 Preliminary Cautionary Instructions
The law regarding this case is contained in the instructions I will give to you. You must consider the Court’s instructions as a whole, not picking out some instructions and disregarding others. Each party, whether a municipality or an individual, should receive your same fair consideration.
It is your duty to resolve this case by determining the facts and following the law given in the instructions.
You will decide what facts have been proven. Facts may be proven by evidence or reasonable inferences drawn from the evidence. Evidence consists of the testimony of witnesses and of exhibits admitted by the court. You should consider all the evidence without regard to which party produced it. You may use common sense gained from your experiences in life in evaluating what you see and hear during trial.
You are the only judges of the credibility of the witnesses. You will decide the weight to be given to the testimony of each of them. In evaluating the credibility of a witness you may consider that witness’ ability and opportunity to observe, memory, manner, interest, bias, qualifications, experience, and any previous inconsistent statement or act by the witness concerning an issue important to the case.
An opening statement is what an attorney expects the evidence will be. A closing argument is given at the conclusion of the case and is a summary of what an attorney contends the evidence has shown. If any statement or argument of an attorney is not supported by the law or the evidence you should disregard that statement.
IPI 3.01 Rulings and Remarks of the Court
Now that the evidence has concluded, I will further instruct you as to the law and your duties. I have not meant to indicate any opinion as to the facts of this case by any of my rulings, remarks, or instructions.
IPI 3.02 Witness Who Has Been Interviewed by Attorney
An attorney may, if a witness agrees, interview a witness to learn what testimony will be given. Such an interview, by itself, does not reflect adversely on the truth of the testimony of the witness.
IPI 2.01 – Evidence Deposition
The testimony of a Dr. Emilio Soria and Dr. Saif Nazir was presented by video presentation or the reading of the witness’ testimony. You should give this testimony the same consideration you would give it had the witness personally appeared in court.
IPI 2.04 – Expert Testimony
Ms. Kim Harmon testified, in part, based upon records and statements that have not been admitted in evidence. This testimony is allowed for a limited purpose. It is allowed so that the witness may tell you what she relied on to form her opinions. The material being referred to is not evidence in this case and may not be considered by you as evidence. You may consider the material for the purpose of deciding what weight, if any, you will give the opinions testified to by this witness.
IPI 3.01 Rulings and Remarks of the Court
Now that the evidence has concluded, I will further instruct you as to the law and your duties. I have not meant to indicate any opinion as to the facts of this case by any of my rulings, remarks, or instructions.
IPI 3.02 Witness Who Has Been Interviewed by Attorney
An attorney may, if a witness agrees, interview a witness to learn what testimony will be given. Such an interview, by itself, does not reflect adversely on the truth of the testimony of the witness.
IPI 3.04 Circumstantial Evidence
A fact or a group of facts, may, based on logic and common sense, lead you to a conclusion as to other facts. This is known as circumstantial evidence. A fact may be proved by circumstantial evidence. For example, if you are in a building and a person enters who is wet and is holding an umbrella, you might conclude that it was raining outside. Circumstantial evidence is entitled to the same consideration as any other type of evidence.
IPI 3.08 Opinion Testimony
You have heard a witness give opinions about matters requiring special knowledge or skill. You should judge this testimony in the same way you judge the testimony from any other witness. The fact that such person has given an opinion does not mean you are required to accept it. Give the testimony whatever weight you think it deserves, considering the reasons given for the opinion, the witness’s qualification, and all of the other evidence in the case.
14.01 Willful and Wanton Conduct—Definition
When I use the expression “willful and wanton conduct” I mean a course of action which shows actual or deliberate intention to harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others.
14.04 Duty to Refrain From Willful and Wanton Conduct—Defendant
Plaintiffs: James Scandura and Michael Scandura
Defendants: Officer William Kowalski and the Village of Lansing, Illinois
It was the duty of the Defendants, Officer William Kowalski and the Village of Lansing, before and at the time of the occurrence, to refrain from willful and wanton conduct which would endanger the safety of James Scandura and Michael Scandura.
720 ILCS 5/7-1,7-5/7th Cir Pattern Inst. 7.09/modified
A police officer is justified in using force which he reasonably believes is necessary to perform the officer’s lawful objectives.
You must decide whether Officer William Kowalski’s use of force was justified from the perspective of a reasonable officer facing the same circumstances that he faced. You must make this decision based on what the officer knew at the time of the incident, not based on what you know now.
IPI 15.01 Proximate Cause
When I use the expression, “proximate cause,” I mean a cause which, in the natural and ordinary course of events, produced the plaintiff’s injuries. It need not be the only cause, nor the last or nearest cause. It is sufficient if it combines with another cause resulting in the injury.
20.01.01 Issues Made by the Pleadings—Negligence and Willful and Wanton Counts
The Plaintiffs claim that they were injured and sustained damage and that the conduct of the defendants was willful and wanton in one or more of the following respects:
1. False Arrest as to Michael Scandura and James Scandura
In this case, the Plaintiffs claim that the Defendants falsely arrested them. To succeed on this claim, James Scandura and Michael Scandura must prove by a preponderance of the evidence that on June 1, 2003 the Defendant, Officer William Kowalski, did not have probable cause to arrest James Scandura and Michael Scandura
See Diamond-7 Modern Federal Jury Instructions-Civil Instruction 7.05
2. Malicious Prosecution as to Michael Scandura and James Scandura:
In this case, the Plaintiff, Michael Scandura, claims that the Defendants maliciously prosecuted him on or after June 1, 2003 when Officer William Kowalski did intentionally make false accusations to the police, and did give false testimony in a court of law, against the Plaintiff, that Michael Scandura by his conduct did place Officer William Kowalski in reasonable apprehension of bodily harm and obstructing a police officer, for the purpose of causing Michael Scandura to be arrested, imprisoned, and convicted a crime.
In this case, the Plaintiff, James Scandura, claims that the Defendants maliciously prosecuted him on or after June 1, 2003 when Officer William Kowalski did intentionally make false accusations to the police, and did give false testimony in a court of law, against the Plaintiff, that James Scandura by his conduct did commit aggravated assault against another by placing another in reasonable apprehension of bodily harm while armed with a baseball bat, for the purpose of causing James Scandura to be arrested, imprisoned, and convicted a crime.
Boyd v. City of Chicago, — N.E.2d —-, 2007 WL 4292075, Ill.App. 1 Dist. (2007) citing Reynolds v. Menard, Inc., 365 Ill.App.3d 812 (2006)
3. Battery as to James Scandura:
In this case the Plaintiff, James Scandura, claims that the Defendants battered his person on June 1, 2003 when Officer William Kowalski with intent and without lawful justification did fire a taser gun at a plaintiff, thereby causing injury to James Scandura.
4. Intentional Infliction of Emotional Distress
In this case the Plaintiffs, Michael Scandura and James Scandura, claim that on or after June 1, 2003, the Defendant, Officer William Kowalski, by his wrongful conduct did intentionally inflict emotional distress upon them and that, through his extreme and outrageous conduct, acted in deliberate disregard of a high probability that emotional distress would follow.
The plaintiffs claim that one or more of the foregoing was a proximate cause of their injuries.
The Defendants deny that they did any of the things claimed by the plaintiffs, deny doing any claimed act or omission on their part was a proximate cause of the Plaintiffs’ claimed injuries, and further deny that the Plaintiffs sustained injuries to the extent claimed.
IPI 21.01 – BURDEN OF PROOF
When I say that a party has the burden of proof on any proposition, or use the expression “if you find,” or “if you decide,” I mean you must be persuaded, considering all the evidence in the case, that the proposition on which a party has the burden of proof is more probably true than not true.
B21.02.02 Burden of Proof on the Issues—Willful and Wanton Counts/B21.03 Burden of Proof on the Issues—FALSE IMPRISONMENT/MODIFIED
As to the Complaint for False Arrest and Imprisonment brought by the plaintiffs, they have the burden of proving each of the following propositions by a preponderance of the evidence as to the defendants:
(1) That Defendant, Officer William Kowalski, caused Plaintiffs to be arrested and imprisoned; and
(2) That Defendant, Officer William Kowalski, acted intentionally and without having probable cause to believe that Plaintiffs committed an offense.
“Probable cause” is defined as a state of facts that would lead a person of ordinary caution and prudence to believe, or to entertain an honest and strong suspicion, that the person arrested committed the offense charged. But it does not need to be based on evidence that would be sufficient to support a conviction.
Rodgers v. Peoples Gas, Light & Coke Company, 733 N.E.2d 835 (1st Dist. 2000). See Federal Civil Inst. 7th Cir 7.06
If you find from your consideration of all the evidence that each of the propositions required of Plaintiffs have been proved, then your verdict should be for Plaintiffs.
If, on the other hand, you find from your consideration of all the evidence, that any one of the propositions Plaintiffs are required to prove have not been proved, then your verdict should be for Defendants.
B21.02.02 Burden of Proof on the Issues—Willful and Wanton Counts/B21.03 Burden of Proof on the Issues—MALICIOUS PROSECUTION/MODIFIED
As to the Complaint for Malicious Prosecution brought by the plaintiffs, they have the burden of proving by a preponderance of the evidence each of the following propositions as the defendants:
(1) Defendants commenced an original criminal proceeding against plaintiffs;
(2) The proceeding was terminated in plaintiffs’ favor;
(3) The defendant lacked “probable cause” for commencing the proceeding;
(4) Defendants commenced the proceeding with “malice”; and
(5) Plaintiffs were damaged by the commencement of the proceeding.
Malice as an element of malicious prosecution means that the prosecution was brought based upon improper motives.
Fabiano v. City of Palose, 336 Ill App. 3d 635 (1st Dist 2003)
Rodgers v. Peoples Gas, Light & Coke Company, 733 N.E.2d 835 (1st Dist. 2000).
If you find from your consideration of all the evidence that each of the propositions required of Plaintiff has been proved, then your verdict should be for Plaintiff.
If, on the other hand, you find from your consideration of all the evidence, that any one of the propositions Plaintiff is required to prove has not been proved, then your verdict should be for Defendant(s).
B21.02.02 Burden of Proof on the Issues—Willful and Wanton Counts/B21.03 Burden of Proof on the Issues—BATTERY /MODIFIED
As to the Complaint for Battery brought by James Scandura, he has the burden of proving by a preponderance of evidence each of the following propositions:
(1) That Officer William Kowalski had the intent without lawful justification to cause a harmful contact with James Scandura.
(2) That Officer William Kowalski actually made unauthorized physical contact with James Scandura that was harmful.
(3) That James Scandura was injured; and
(4) That Officer William Kowalski’s actions proximately caused the injury to James Scandura.
If you find from your consideration of all the evidence that each of these propositions have been proved, then your verdict should be for the plaintiff, James Scandura.
On the other hand, if you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict should be for the defendants.
B21.02.02 Burden of Proof on the Issues—Willful and Wanton Counts/B21.03 Burden of Proof on the Issues—Intentional Infliction/ MODIFIED
As to the Complaint for Intentional Infliction of Emotional Distress, brought
by James Scandura and Michael Scandura, they have the burden of prove each of the following propositions:
(1) That Officer William Kowalski’s conduct was extreme and outrageous;
(2) That Officer William Kowalski either intended that his conduct inflict severe emotional distress, or knew that there was a high probability that his conduct would cause such distress; and
(3) That Officer William Kowalski’s conduct in fact proximately caused severe emotional distress.
Wall v. Pecaro, 204 Ill. App. 3d 362, 367 (Ill. App. Ct. 1990)
Hayes v. Illinois Power Co., 225 Ill.App.3d 819, 587 N.E.2d 559, Ill.App. 4 Dist.,1992. citing Tobias v. Winkler (1987), 156 Ill.App.3d 886, 109 Ill.Dec. 211, 509 N.E.2d 1050.
If you find from your consideration of all the evidence that each of these propositions has been proved, then your verdict should be for the plaintiff, James Scandura.
On the other hand, if you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict should be for the defendants.
IPI 34.04 Mortality Tables as Evidence of Damages
According to a table of mortality in evidence, the life expectancy of a male aged 21 years is 54.92 years, and the life expectancy of a male aged 48 is 30.13 years. These figures are not conclusive. They are the average life expectancy of persons who have reached those ages. They may be considered by you in connection with other evidence relating to the probable life expectancies of James Scandura and Michael Scandura in this case, including evidence of each’s occupation, health, habits and other activities, bearing in mind that some persons live longer and some persons live less than the average.
IPI 30.01 Measure of Damages
If you decide for any plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate him for any of the following elements of damages proved by the evidence to have resulted from the willful and wanton conduct of the defendants, taking into consideration the nature, extent and duration of damages.
The emotional distress experienced and reasonably certain to be experienced in the future.
The physical pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries.
Whether any of these elements of damages has been proved by the evidence is for you to determine.
IPI.36.01 In Absence of Liability—No Occasion to Consider Damages
If you decide for the defendants as to any plaintiff on the question of liability, you will have no occasion to consider the question of damages as to that plaintiff.
41.01 Two or More Plaintiffs
The rights of the plaintiffs, Michael Scandura and James Scandura, are separate and distinct. Each is entitled to a fair consideration of his own case and you will decide each plaintiff’s case as if it were a separate lawsuit. Each plaintiff’s case must be governed by the instructions applicable to that case.
50.01 Both Principal and Agent Sued—No Issue as to Agency
The defendants are sued as principal and agent. The defendant, Village of Lansing, is the principal and the defendant, Officer William Kowalski, is its agent. If you find that the defendant, Officer William Kowalski, is liable, then you must find that the defendant Village of Lansing, is also liable.
However, if you find that Officer William Kowalski, is not liable, then you
must find that the defendant, Village of Lansing, is not liable.
B45.01 – FORMS OF VERDICT
When you retire to the jury room you will first select a foreperson. He or she will preside during your deliberations.
Your verdict must be unanimous.
Forms of verdicts are supplied with these instructions. After you have reached your verdict, fill in and sign the appropriate form of verdict and return it to the court. Your verdict must be signed by each of you. You should not write or mark upon this or any of the other instructions given to you by the court.
The parties in this case are:
Plaintiffs: James Scandura and Michael Scandura
Defendants: Officer William Kowalski and the Village of Lansing, Illinois
If you find for any one of the Plaintiffs and against Defendants, then you should use Verdict Form A.
If you find for Defendants and against both of the Plaintiffs, then you should use Verdict Form B.
IPI B45.01.A – VERDICT FORM A
VERDICT FORM A [PROPOSED MOD.]
We, the jury, find for Plaintiff Michael Scandura and against Defendants,
Officer William Kowalski and the Village of Lansing . We assess the damages in the
sum of $________________________________________.
We, the jury, further find for Plaintiff, James Scandura, and against Defendants,
Officer William Kowalski and the Village of Lansing. We assess the damages in the sum
of $_____________________________________.
If you find that the defendants were not liable to one of the plaintiffs, then you
should enter a zero (-0-) as to that person.
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VERDICT FORM B
We, the jury, find for the defendants, Officer William Kowalski and the Village
of Lansing, and against both of the plaintiffs, James Scandura and Michael Scandura.
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(Foreperson
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IPI 60.01 Violation of Statute, Ordinance, or Administrative Regulation
There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:
A person commits an assault when, without lawful authority, he engages in conduct which places another in reasonable apprehension of receiving a battery.
720 ILCS 5/12-1
A person commits aggravated assault when in committing an assault he uses a deadly weapon or assaults a police officer.
720 ILCS 5/12-2
A person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual, either by person or device.
720 ILCS 5/12-3 (as modified)
A person who knowingly resists or obstructs the performance by one known to the person to be a peace officer of any authorized act within his official capacity commits the offense of obstruction of a police officer.
If you decide that a party violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether and to what extent, if any, a party was at fault before and at the time of the occurrence.