Agwomoh v. Village of Dolton , 2022 IL App (1st) 210892 ( 2022 )

2022 IL App (1st) 210892SIXTH DIVISION
October 28, 2022
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
No. 1-21-0892
MARGARET AGWOMOH, Special Administrator of the )
Estate of Solomon Agwomoh, Deceased, )
)
Plaintiff-Appellant, ) Appeal from the
) Circuit Court of
v. ) Cook County.
)
THE VILLAGE OF DOLTON; RYAN PEREZ; ) No. 18 L 2677
ADVOCATE HEALTH AND HOSPITALS )
CORPORATION, d/b/a Advocate Christ Medical Center; ) Honorable
and YALAUNDA THOMAS, M.D., ) Lorna E. Propes,
Defendants ) Judge Presiding.
)
(The Village of Dolton and Ryan Perez, Defendants- )
Appellees). )
PRESIDING JUSTICE MIKVA delivered the judgment of the court, with opinion.
Justices Oden Johnson and Tailor concurred in the judgment and opinion.
OPINION
¶1 Solomon Agwomoh died minutes after a physical altercation with Ryan Perez, a police
officer for the Village of Dolton. The altercation happened in the early hours of March 10, 2018,
at Advocate Christ Medical Center in Oak Lawn. Mr. Agwomoh’s daughter, Margaret Agwomoh,
in her capacity as special administrator of his estate, sued Officer Perez, the Village, the hospital,
and one of its doctors for the wrongful death of her father.
No. 21-0892
¶2 After extensive discovery, the Village of Dolton and Officer Perez moved for summary
judgment as to them, arguing that, because “Officer Perez was providing a police protection service
at the time and place alleged in the complaint,” he was entitled to absolute immunity from civil
suit as a matter of law pursuant to section 4-102 of the Local Governmental and Governmental
Employees Tort Immunity Act (Tort Immunity Act or Act) (745 ILCS 10/4-102 (West 2020)). In
the alternative, these defendants argued that they were also entitled to immunity under section
2-202 of the Act (id. § 2-202), because Ms. Agwomoh failed to show that Officer Perez’s use of
force “in responding to decedent’s dangerous, destructive, and violent use of force was both
without legal justification and willful and wanton conduct.”
¶3 Ms. Agwomoh argued in response that whether Officer Perez was “dispatched to provide
a police protection or service under Section 4-102” and whether he committed willful and wanton
misconduct under section 2-202 were both questions for the trier of fact. The circuit court entered
summary judgment in favor of the Village of Dolton and Officer Perez, concluding that, as a matter
of law, they were entitled to immunity from civil suit under both sections 4-102 and 2-202. Ms.
Agwomoh now appeals.
¶4 Ms. Agwomoh argues that the circuit court’s application of section 4-102 was erroneous
because that provision grants absolute immunity only where a plaintiff alleges a failure to provide
police services, which is not what she alleged in this case. She also argues that section 2-202 was
erroneously applied because genuine issues of material fact remain on the question of whether
Officer Perez’s conduct in the moments leading up to her father’s death was willful and wanton.
¶5 We agree with Ms. Agwomoh that neither section 4-102 nor section 2-202 provides
immunity to Officer Perez and the Village of Dolton as a matter of law. These defendants were
not entitled to summary judgment under section 4-102 because Officer Perez was present at the
2
No. 21-0892
hospital to maintain custody of an arrestee and there was no undisputed evidence that he had
pivoted from his law enforcement role to providing police protection services. In addition, for
section 4-102 to apply the liability alleged must come from the failure to provide police protection
services. Summary judgment was inappropriate under section 2-202 because whether Officer
Perez engaged in willful and wanton misconduct presents a question of fact that ought to go to a
jury. For these reasons, we reverse the circuit court’s grant of summary judgment in favor of the
Village of Dolton and Officer Perez, and we remand for further proceedings.
¶6 I. BACKGROUND
¶7 The following facts are taken from the exhibits and depositions attached to the parties’
summary judgment filings in the circuit court.
¶8 A. The Traffic Accident
¶9 At 12:38 a.m. on March 10, 2018, police received a 911 call reporting a car crash with
injuries at the intersection of Sibley Boulevard and Cottage Grove Avenue in Dolton, Illinois.
Responding to the scene within minutes, Dolton police officers encountered two vehicles that had
sustained “tremendous” damage, and they called for an ambulance. The driver of one of the cars
was shaken but able to communicate with officers and did not appear to have sustained any obvious
injuries. The driver of the other vehicle, Solomon Agwomoh, was in worse shape.
¶ 10 When officers first approached Mr. Agwomoh’s vehicle, a red Ford Escape operating as a
taxicab for “Chicago Elite Cab,” he was unresponsive and appeared to be unconscious. The
vehicle’s air bags had deployed. One of the responding officers, Officer Vincent Nunez, loudly
asked Mr. Agwomoh if he could hear his voice, at which point Mr. Agwomoh came to and
immediately hunched over and vomited into the passenger seat of his vehicle. Officers then
attempted to ask Mr. Agwomoh what he remembered before the collision and Mr. Agwomoh,
3
No. 21-0892
speaking in what was described by Officer Nunez as “a heavy African accent,” stated “I don’t
know! He just hit me.”
¶ 11 Officer Ryan Perez, another Dolton police officer present at the scene, peered into Mr.
Agwomoh’s vehicle and saw a plastic cup on the floor containing the residue of a dark-colored
liquid that, according to Officer Perez, smelled of alcohol. This caused Officer Perez to suspect
that Mr. Agwomoh was under the influence. His suspicion grew when paramedics arrived. As Mr.
Agwomoh was being loaded into the ambulance, Officer Perez described his demeanor as
disoriented and recalled that he was “having a hard time” answering the paramedics’ questions.
He also noticed that Mr. Agwomoh’s eyes were bloodshot, and he detected a “strong odor of
alcohol” coming off of him.
¶ 12 A Dolton police sergeant who was also present at the scene, Sergeant Johnson (whose first
name does not appear in the record), surmised that Mr. Agwomoh “appeared to be intoxicated.”
No field sobriety test was conducted, however, as Mr. Agwomoh had been placed in a cervical
collar or “c-collar” by paramedics and his “health was a concern at that point.” Sergeant Johnson
instructed Officer Perez to follow Mr. Agwomoh to the hospital and process him for suspected
driving under the influence (DUI).
¶ 13 Janell Krueger, the lead paramedic on the ambulance team that transported Mr. Agwomoh
to the hospital, also suspected that he might have been under the influence. In her deposition, she
recalled noticing “some kind of scent, maybe alcohol.” She also described Mr. Agwomoh as
“uncooperative” as she and her colleagues attempted to assess his injuries. He “didn’t realize what
was going on,” and he “wanted to leave.” As he was being loaded into the ambulance, he tried to
get off the stretcher and walk away a couple of times. Ms. Krueger recalled that, when they asked
him directly if he had been drinking, his response was “a sarcastic ‘yeah.’ ” The ambulance left
4
No. 21-0892
for Advocate Christ Medical Center at around 1:15 a.m.
¶ 14 In the telemetry log—the document in which a receiving hospital records the preliminary
information it receives from paramedics regarding incoming patients—hospital staff noted that it
was unclear whether Mr. Agwomoh had been wearing a seatbelt at the time of the collision, that
he had been drinking alcohol, and that he was “combative” but “calming down.”
¶ 15 B. Arrival at the Hospital
¶ 16 The ambulance arrived at Advocate Christ Medical Center at 1:26 a.m. The paramedics
brought Mr. Agwomoh to a trauma section of the emergency room (ER) and handed him over to
the hospital’s medical staff. The hospital staff asked the paramedics why Mr. Agwomoh was not
“backboarded all the way,” and the paramedics responded that he “kept getting up” and that they
tried but could not get him to remain on the board. Mr. Agwomoh was placed on a hospital gurney,
and the paramedics departed.
¶ 17 Four medical professionals were present in the ER when Mr. Agwomoh arrived, all of
whom were later deposed: Valerie Avalos, an ER technician; Jolene Lorenz, a registered nurse
assigned to the emergency department that night; Dr. Yalaunda Thomas, a trauma and general
surgeon; and Dr. Graeme Twanow, an ER physician who at the time was a second-year resident.
According to Ms. Avalos, when Mr. Agwomoh arrived, he was “drowsy” and unable to maintain
eye contact or answer the doctors’ questions, but he was not in an agitated state. Ms. Avalos
removed Mr. Agwomoh’s clothes and placed him in a hospital gown. At 1:42 a.m., Dr. Thomas
ordered that Mr. Agwomoh be taken to radiology for various computed tomography (CT) tests to
rule out potential head injuries.
¶ 18 Officer Perez had followed Mr. Agwomoh to the hospital and was present in the ER while
Ms. Avalos and the rest of the trauma team looked him over. At some point before Mr. Agwomoh
5
No. 21-0892
was transported to the radiology department, Officer Perez handcuffed him to the gurney, told Ms.
Avalos that Mr. Agwomoh was in police custody for a suspected DUI, and explained to her that
he would have to stay alongside Mr. Agwomoh as they treated him. Officer Perez also
administered the “Warning to Motorists” to Mr. Agwomoh and attempted to obtain his verbal
consent for a blood sample. Ms. Avalos witnessed this exchange. According to Ms. Avalos, while
Officer Perez was trying to get a yes or no answer regarding a blood sample, Dr. Thomas came in
and made it clear that she wanted Mr. Agwomoh to get a CT scan before “any kind of formal DUI”
processing took place and that “Officer Perez said he was totally okay with it.” Ms. Avalos then
began to push Mr. Agwomoh’s gurney towards the CT scan room, and Officer Perez followed
closely behind. During the walk, which lasted about a minute, Ms. Avalos recalled that Mr.
Agwomoh was calm.
¶ 19 C. The Altercation in the CT Scan Room
¶ 20 Officer Perez uncuffed Mr. Agwomoh in the CT scan room. He then left Mr. Agwomoh
and Ms. Avalos alone next to the scanner and stepped into the adjacent viewing room, where he
could continue to observe what was going on through a window. Also in the viewing room was a
CT technologist named Tariq Elkhatib. Mr. Elkhatib operated the scanner’s control panel and,
from where he was seated, could see the entire CT scan room. When Mr. Elkhatib first observed
Mr. Agwomoh being wheeled into position next to the scanner, he recalled him being “perfectly
calm.”
¶ 21 The CT machine that the medical staff planned on using was one they often used for
pediatric patients. While it was the same size as a typical CT machine, the ring around the tube
where the patient enters the machine was painted with monkey faces. Ms. Avalos prepared Mr.
Agwomoh for his scan. She was assisted in this task by a CT technician named Thomas O’Donnell.
6
No. 21-0892
Mr. O’Donnell described Mr. Agwomoh as calm and quiet when he first arrived for his CT scan.
His first impression was that Mr. Agwomoh was a cooperative patient. Ms. Avalos, Mr. Agwomoh,
and Mr. O’Donnell were the only people in the CT scan room.
¶ 22 As Ms. Avalos and Mr. O’Donnell attempted to transfer Mr. Agwomoh from the hospital
gurney onto the CT scan bed, Mr. Agwomoh appeared to be startled, and his demeanor shifted. He
stepped off the gurney and repeatedly asked Ms. Avalos where his clothes were. Ms. Avalos sternly
directed Mr. Agwomoh to get back onto the gurney, but he did not comply. He then ripped off his
cervical collar and tossed it at the floor. Ms. Avalos recalled that he became “combative” and made
it clear to her that he wanted to leave the room.
¶ 23 Ms. Avalos testified that at this point she became concerned about her personal safety. She
explained in her deposition that she remembered Mr. O’Donnell calling Officer Perez back into
the room to help them deal with Mr. Agwomoh, but she acknowledged that it is possible she was
the one who called Officer Perez back in for assistance. According to Officer Perez, Ms. Avalos
looked at him at that moment with a “scared look” on her face, a “come help me” look.
¶ 24 Observing Mr. Agwomoh’s sudden shift in demeanor from the viewing room, Mr. Elkhatib
also recalled feeling fearful for the safety of those around him. He described Mr. Agwomoh as a
“really big guy” who was suddenly on his feet, naked, loud, and agitated. Mr. Elkhatib “didn’t
know what to expect” and “felt helpless.” After Mr. Agwomoh tossed his c-collar to the ground,
Mr. Elkhatib recalled that he began yelling something about “voodoo magic.” According to Mr.
Elkhatib, Mr. Agwomoh was “pointing at everybody in the room and saying, I’ll put voodoo on
you” or “something like that.” Other witnesses also recalled Mr. Agwomoh’s references to
“voodoo” in that moment.
¶ 25 Officer Perez entered the CT scan room in a matter of seconds and ordered Mr. Agwomoh
7
No. 21-0892
to get back onto the gurney. According to Officer Perez’s own testimony, after Mr. Agwomoh
ignored his verbal commands to get back on the cart, he attempted to get handcuffs back on Mr.
Agwomoh. Mr. Agwomoh “pulled away” from the officer, at which point Officer Perez threatened
to tase Mr. Agwomoh if he did not comply. Mr. Agwomoh did not comply. Officer Perez then
discharged his Taser towards Mr. Agwomoh in drive-stun mode. Mr. O’Donnell and Mr.
Elkhatib’s recollections were similar to Officer Perez’s. According to Mr. O’Donnell, “next thing
I knew, the officer came in, demanded the patient calm down. The patient didn’t calm down. The
officer threatened him with a Taser and it went from there.” Mr. Elkhatib also testified that Officer
Perez first tased Mr. Agwomoh after an initial warning.
¶ 26 Ms. Avalos’s testimony differed slightly. While Officer Perez, Mr. Elkhatib, and Mr.
O’Donnell all recalled the Taser being deployed after a verbal warning and prior to any significant
physical contact between Officer Perez and Mr. Agwomoh, Ms. Avalos claimed in her deposition
that, even before using the Taser, Officer Perez was already engaging in a physical struggle with
Mr. Agwomoh, which included the officer delivering at least one punch. None of the other
witnesses recalled this pre-Taser punch. Another difference is that Ms. Avalos distinctly
remembers that Mr. Agwomoh “advanced towards” Officer Perez as soon as the officer reentered
the room and ordered him to get back on the cart. She recalled Mr. Agwomoh “fast-paced walking
toward [Officer Perez]” in a “confrontational manner.”
¶ 27 According to Officer Perez, after drive-stunning Mr. Agwomoh for the first time without
success, he gave additional warnings and then drive-stunned him a second time. Then he “backed
up, told [Mr. Agwomoh] he was going to be tased, at which point he continued to disregard [Officer
Perez’s] commands.” Officer Perez then discharged his Taser for a third time, but this time instead
of using drive-stun mode, he pulled the trigger and fired the cartridge at Mr. Agwomoh. The Taser
8
No. 21-0892
prongs landed on Mr. Agwomoh’s torso. Officer Perez recalled that upon firing his Taser, Mr.
Agwomoh “charged me with his arm out.”
¶ 28 After the Taser cartridge was fired, Ms. Avalos recalled Mr. Agwomoh pinning Officer
Perez up against the wall and putting his hands in the officer’s vest. She further recalled Officer
Perez repeatedly telling Mr. Agwomoh “don’t do this, don’t do this.” While pushed up against the
wall, Officer Perez punched Mr. Agwomoh in the head several times. Mr. O’Donnell counted
between 5 and 10 strikes to Mr. Agwomoh’s face and the back of his head. At some point either
immediately before or during this physical struggle, Mr. Agwomoh had shed his gown and was
now fully naked. This witnesses also noticed that Mr. Agwomoh had urinated on the floor,
although it is unclear exactly when that happened.
¶ 29 Mr. Elkhatib, comparing the scene he was witnessing to something out of The Incredible
Hulk, recalled that Mr. Agwomoh just “would not go down” and seemed “barely affected by the
tasing” and the punches. He recalled that soon after Mr. Agwomoh had moved on Officer Perez—
which he interpreted as an attempt to grab his Taser—and Officer Perez began punching Mr.
Agwomoh in response, the two fell to the ground and ended up in a wrestling match. He speculated
that it is possible they slipped on Mr. Agwomoh’s urine. Ms. Avalos called security, who arrived
shortly after the two hit the floor.
¶ 30 Tom Giusto, a nurse working nearby, heard Ms. Avalos’s call for assistance, which he
described as “frantic,” and he dropped what he was doing to get to the CT scan room. Dr. Twanow,
working with another patient elsewhere in the hospital, recalled a nurse coming up to him and
telling him, “your patient went berserk in the CT scanner, he tore off his c-collar and attacked the
cop.” In response, Dr. Twanow ordered the preparation of a sedative and hurried to the CT scan
room.
9
No. 21-0892
¶ 31 The first hospital security officer to arrive at the room was Andre Walker. The first thing
Mr. Walker saw upon entering the CT scan room was Mr. Agwomoh on top of Officer Perez. He
recalled that Officer Perez had Mr. Agwomoh in “somewhat of a headlock.” Mr. Walker jumped
into the fray and put Mr. Agwomoh in an “arm bar” so that Officer Perez could get back on his
feet. Mr. Walker and Officer Perez then worked together to get Mr. Agwomoh facedown on the
ground and put him in handcuffs. Mr. Walker recalled that for a time, as they tried to regain control
of him, Officer Perez had his knee on Mr. Agwomoh’s back.
¶ 32 A nurse then injected Mr. Agwomoh in the buttocks with the sedative ordered by Dr.
Twanow. After the sedative took effect, Officer Perez and hospital security staff—Mr. Walker and
two other security officers who arrived after him—picked Mr. Agwomoh up and put him back on
the gurney, where they placed him in restraints. According to Mr. Walker, “the whole sequence,”
from the moment he entered the room until the moment Mr. Agwomoh was secured, lasted
between five and eight minutes. Shortly after Mr. Agwomoh was sedated and put back on the
gurney, Dr. Thomas, the attending trauma doctor, arrived. She noticed that Mr. Agwomoh was no
longer breathing. The restraints were removed, and medical staff immediately began to perform
CPR. The efforts to resuscitate Mr. Agwomoh were unsuccessful, and he was pronounced dead at
2:53 a.m.
¶ 33 D. The Medical Examiner’s Report
¶ 34 On March 11, 2018, the day after Mr. Agwomoh’s death, Dr. Jon Gates of the Cook County
Medical Examiner’s Office issued a postmortem report declaring the manner of Mr. Agwomoh’s
death to be homicide. In the section of the report describing evidence of injury, Dr. Gates noted
multiple blunt force injuries and the presence of the barbs from the Taser, which remained lodged
in Mr. Agwomoh’s torso. Dr. Gates opined that Mr. Agwomoh died from “hypertensive
10
No. 21-0892
arteriosclerotic cardiovascular disease” but that “stress due to physical struggle was a significant
contributing condition.”
¶ 35 The cause of Mr. Agwomoh’s death, Dr. Gates explained, was multifactorial: “[t]he
temporal relationship between the physical struggle and the decedent becoming unresponsive
indicates interplay between the body’s physiologic response to stress and the underlying heart
disease identified at autopsy.” According to an attached toxicology report, Mr. Agwomoh had a
blood alcohol concentration (BAC) of 0.194 grams of alcohol per 100 milliliters of blood, over
twice the legal limit for operating a vehicle.
¶ 36 E. The Expert Witnesses
¶ 37 John G. Peters, Ph.D., a former law enforcement officer and an expert in use of force
policies and Taser safety, was retained by Ms. Agwomoh to render an expert opinion in this case.
In his report, Dr. Peters reached four overall conclusions: (1) the Village of Dolton Police
Department’s training practices on the proper use of Taser guns fell below national standards, as
they did not include a “competency-based testing” component, (2) Officer Perez failed to follow
either proper Taser usage standards or Dolton Police Department policies when he decided to use
his Taser first in drive-stun mode, which is “known to produce no neuromuscular incapacitation,”
(3) Officer Perez likewise failed to follow proper Taser usage standards when, after unsuccessfully
discharging the Taser in drive-stun mode, he fired the Taser cartridge at Mr. Agwomoh’s chest
area, and (4) Officer Perez’s decision not to handcuff Mr. Agwomoh’s wrists in front of him prior
to the CT scan fell below national handcuffing standards. These four failures, Dr. Peters concluded
in his report, “constitute[d] utter indifference to and/or disregard for the decedent.”
¶ 38 At his deposition, Dr. Peters answered “yes” when asked if the “manner and sequence” in
which Officer Perez used his Taser “needlessly endangered” Mr. Agwomoh. He also explained
11
No. 21-0892
that the purpose of drive-stun mode is not incapacitation but pain compliance. Drive-stuns,
according to Dr. Peters, “seldom calm[ ] a situation,” and they are “known in the industry to just
make people angry.” For this reason, his opinion was that drive-stunning Mr. Agwomoh was
exactly the wrong response to the volatile situation Officer Perez found himself in.
¶ 39 Defendants’ expert, Robert T. Johnson, was a law enforcement policy and practices
consultant and a retired lieutenant colonel from the Illinois State Police who has served as an
independent investigator in police misconduct cases. Mr. Johnson disagreed with the conclusions
reached by Dr. Peters. Mr. Johnson’s overall critique of Dr. Peters’s analysis was that Dr. Peters
had unfairly examined the incident not from the perspective of a reasonable officer on the scene
but rather with “20/20 hindsight.” In Mr. Johnson’s view, this analytical distance allowed Dr.
Peters to minimize the extent to which Officer Perez was forced to make split-second decisions in
a situation that was “tense, uncertain, and rapidly evolving.”
¶ 40 F. Summary Judgment
¶ 41 On March 8, 2021, the circuit court entered summary judgment in favor of Officer Perez
and the Village of Dolton. In its written ruling, the court determined that when Officer Perez
“entered the CT area and began to engage with the patient, he was providing police protective
services to the hospital staff as well as for Mr. Agwomoh himself.” Citing Payne v. City of
Chicago, 2014 IL App (1st) 123010, and Turner v. City of Champaign, 970 F.3d 563 (7th Cir.
2020), the court reasoned that this type of protective action was “precisely the type of conduct
anticipated by section 4-102” of the Tort Immunity Act (745 ILCS 10/4-102 (West 2020)).
Accordingly, the circuit court concluded that these defendants were entitled to summary judgment
as a matter of law under section 4-102. The court did no analysis of whether there was a failure to
provide police protective services or whether any such failure contributed to the alleged wrongful
12
No. 21-0892
death of Mr. Agwomoh.
¶ 42 The court found that summary judgment was also warranted under section 2-202 of the Act
(id. § 2-202) because there was no issue of material fact as to whether Officer Perez’s actions rose
to the level of willful and wanton. In its ruling, the court chastised Ms. Agwomoh for including in
her filings numerous “misleading” factual assertions that, in the court’s view, were “entirely
unsupported, and often contradicted, by the record.”
¶ 43 The court noted that, contrary to Ms. Agwomoh’s insinuations, “[n]ot one eyewitness
described Perez’[s] actions as excessive or unnecessary.” Further,
“[e]ach member of the medical staff who was present in the immediate area testified in one
way or another that they at some time during these events felt fear for their own safety.
Each witness testified that [Mr.] Agwomoh was acting in an aggressive manner. It’s also
instructive that no member of the medical staff themselves attempted to physically control
[Mr.] Agwomoh. This was left to Perez and hospital safety personnel once they arrived.”
¶ 44 The court concluded that Ms. Agwomoh failed to produce any “evidence that could support
a finding that defendant Perez acted unreasonably or with utter indifference to or a conscious
disregard of the safety of Mr. Agwomoh.” Accordingly, it also found that summary judgment in
favor of Officer Perez and the Village of Dolton was appropriate under section 2-202 of the Act.
¶ 45 The circuit court denied Ms. Agwomoh’s motion for reconsideration and made a finding
that there was no just reason to delay the enforcement or appeal of its order under Illinois Supreme
Court Rule 304(a) (eff. Mar. 8, 2016). This appeal followed.
¶ 46 II. JURISDICTION
¶ 47 The circuit court denied Ms. Agwomoh’s motion to reconsider and entered its Rule 304(a)
finding on July 29, 2021. Ms. Agwomoh timely filed her notice of appeal on August 2, 2021. We
13
No. 21-0892
have jurisdiction pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016), governing
appeals from final judgments as to one or more but fewer than all the parties.
¶ 48 III. ANALYSIS
¶ 49 As our code of civil procedure makes clear, “[s]ummary judgment is proper when ‘the
pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.’ ” Bremer v. City of Rockford, 2016 IL 119889, ¶ 20 (quoting 735 ILCS 5/2-1005(c)
(West 2008)). “The purpose of summary judgment is not to try an issue of fact but to determine
whether one exists.” Monson v. City of Danville, 2018 IL 122486, ¶ 12. “A genuine issue of
material fact precluding summary judgment exists where the material facts are disputed, or, if the
material facts are undisputed, reasonable persons might draw different inferences from the
undisputed facts.” (Internal quotation marks omitted.) Id. “In ruling on a motion for summary
judgment, we must construe the pleadings, depositions, admissions, and affidavits strictly against
the movant and liberally in favor of the opponent.” Beaman v. Freesmeyer, 2019 IL 122654, ¶ 22.
We review a grant of summary judgment de novo. Id.¶ 50 As our supreme court explained in Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494,
510 (1967), where questions of fact are involved, a court may only grant summary judgment as a
matter of law if the evidence, when viewed in the light most favorable to the nonmovant, so
overwhelmingly favors the movant that “no contrary verdict based on that evidence could ever
stand.”
¶ 51 This appeal implicates two separate provisions of the Tort Immunity Act: section 4-102
and section 2-202.
¶ 52 Section 4-102 of the Act, titled “Police protection,” reads, in relevant part, as follows:
14
No. 21-0892
“Neither a local public entity nor a public employee is liable for failure to establish a police
department or otherwise provide police protection service or, if police protection service is
provided, for failure to provide adequate police protection or service, failure to prevent the
commission of crimes, failure to detect or solve crimes, and failure to identify or apprehend
criminals.” 745 ILCS 10/4-102 (West 2020).
¶ 53 Section 2-202 of the Act, titled “Execution or enforcement of law,” reads, “[a] public
employee is not liable for his act or omission in the execution or enforcement of any law unless
such act or omission constitutes willful and wanton conduct.” Id. § 2-202.
¶ 54 On appeal, Ms. Agwomoh argues that the circuit court erred in granting summary judgment
in favor of Officer Perez and the Village of Dolton because questions of fact preclude summary
judgment under both of these immunity provisions. Section 4-102 was misapplied, Ms. Agwomoh
argues, because, as the statutory text makes clear, that provision grants absolute immunity only
where there has been a “failure to provide adequate police protection or service” (emphasis in
original), which she maintains is not what she has alleged caused the death of her father. She also
argues that summary judgment was improperly granted pursuant to section 2-202 because
“minimally, the record demonstrates the existence of genuine issues of material fact for a jury’s
resolution” on the question of whether Officer Perez’s treatment of Mr. Agwomoh amounted to
willful and wanton misconduct. We address each of Ms. Agwomoh’s arguments in turn.
¶ 55 A. Absolute Immunity Under Section 4-102
¶ 56 Our supreme court has referred to section 4-102 of the Act as a codification of the “common
law blanket immunity *** which immunizes a municipality and its employees for the failure to
provide police protection.” Aikens v. Morris, 145 Ill. 2d 273, 282 (1991). Appellate court panels
have applied section 4-102 to immunize police officers from civil suit where they are performing
15
No. 21-0892
some function other than traditional law enforcement. For example, Illinois courts have granted
absolute immunity under section 4-102 in cases where police officers were providing aid,
assistance, or rescue services to stranded drivers and vehicles involved in traffic accidents (Long
v. Soderquist, 126 Ill. App. 3d 1059 (1984); Kavanaugh v. Midwest Club, Inc., 164 Ill. App. 3d
213 (1987)) and in cases where law enforcement failed to respond after receiving a call to assist a
motorist who had driven off the road (DeSmet v. County of Rock Island, 219 Ill. 2d 497 (2006)).
Section 4-102 may also apply where a police officer fails to perform a “community caretaking”
function (id. at 520), something our supreme court has defined in other contexts as the “capacity
in which the police act when they are performing some task unrelated to the investigation of crime,
such as helping children find their parents, mediating noise disputes, responding to calls about
missing persons or sick neighbors, or helping inebriates find their way home.” People v.
McDonough, 239 Ill. 2d 260, 269 (2010).
¶ 57 The circuit court in this case found that, as a matter of law or undisputed fact, “[o]nce Perez
entered the CT area and began to engage with the patient, he was providing police protective
services to the hospital staff as well as for Mr. Agwomoh himself.” This type of protective action,
the court reasoned, was “precisely the type of conduct anticipated by section 4-102.” The Village
of Dolton and Officer Perez argue the circuit court’s application of section 4-102 was correct, and
like the circuit court, they rely on this court’s decision in Payne and the Seventh Circuit’s decision
in Turner as analogous cases where police were summoned to protect citizens who were having
mental health crises and failed to prevent those citizens from injuring themselves.
¶ 58 We do not find Payne and Turner to be applicable in this context, however, as this case
involves an entirely different type of police-citizen interaction. Here, Officer Perez was present at
the hospital not to provide support to someone having a mental health crisis but because Mr.
16
No. 21-0892
Agwomoh was under arrest, and Officer Perez had been ordered to follow him to the hospital for
the purpose of continuing a DUI investigation. In our view, the fact that Mr. Agwomoh was in
police custody on a criminal matter at the time of his injury makes this case categorically different
from Payne and Turner.
¶ 59 Here, there is an abundance of evidence that Officer Perez was present at the hospital to
keep watch over his detainee. As Ms. Avalos’s testimony suggests (see supra ¶ 18), Officer Perez
was waiting for Mr. Agwomoh’s medical needs to be addressed so that he could proceed to collect
evidence and complete his arrest for the suspected DUI. From his perspective, the CT scans
ordered by Dr. Thomas were a prerequisite to him performing these actions. Thus, a reasonable
fact-finder could conclude that Officer Perez was not providing police protection services.
¶ 60 In addition, as Ms. Agwomoh argues, under the plain language of section 4-102, an officer
is not liable “for failure to provide adequate police protection or service.” (Emphasis added.) 745
ILCS 10/4-102 (West 2020). Thus, even if we were to accept the circuit court’s finding that Officer
Perez was engaged in police protection services at the time of Mr. Agwomoh’s death, it remains
unclear to us what exactly those police protection services were, whether there was a failure in the
provision of those services, and whether that failure ultimately caused Mr. Agwomoh’s death.
Summary judgment should not have been granted to the defendants for these additional reasons.
¶ 61 As Ms. Agwomoh did not file a cross motion for summary judgment on this 4-102 defense,
we need not decide whether, based on this record, the immunity provision is inapplicable as a
matter of law. The parties can litigate that issue on remand. In either event, summary judgment
should not have been entered in favor of the defendants pursuant to section 4-102.
¶ 62 B. Qualified Immunity Under Section 2-202
¶ 63 To the extent that he was not engaged in police protection services, Officer Perez was
17
No. 21-0892
unquestionably engaged in the “execution or enforcement” of the law when his fatal altercation
with Mr. Agwomoh occurred. This placed him squarely in the realm of section 2-202. Pursuant to
that section, he and the Village are entitled to immunity unless the officer’s conduct was “willful
and wanton.” This is defined elsewhere in the Act as “a 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.” Id. § 1-210.
¶ 64 As our supreme court explained in Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 274 (1994),
“[t]here is no separate and independent tort of ‘willful and wanton’ misconduct.” Instead, willful
and wanton misconduct is essentially an aggravated form of negligence: “a hybrid between
conduct considered negligent and conduct considered intentionally tortious.” Sparks v. Starks, 367
Ill. App. 3d 834, 837 (2006); see also Romito v. City of Chicago, 2019 IL App (1st) 181152, ¶ 30
(“[a] qualitative difference necessarily exists between willful and wanton misconduct and ordinary
negligence; willful and wanton misconduct should shock the conscience”).
¶ 65 Determining whether a public employee’s actions amount to willful and wanton conduct
is normally a question of fact to be resolved by a jury, but a court may hold as a matter of law that
the employee’s actions did not amount to willful and wanton conduct where no other contrary
conclusion can be drawn from the record presented. Williams v. City of Evanston, 378 Ill. App. 3d
590, 597 (2007). In this case, the circuit court drew that conclusion and granted summary judgment
in favor of Officer Perez and the Village of Dolton pursuant to section 2-202 after determining that
Ms. Agwomoh “ha[d] produced no evidence that could support a finding that defendant [Officer]
Perez acted unreasonably or with utter indifference to or a conscious disregard of the safety of Mr.
Agwomoh.” We disagree.
¶ 66 When Mr. Agwomoh was transported to the CT scan room, he was disoriented, possibly
18
No. 21-0892
suffering from a head injury, and presumably drunk. Officer Perez was aware of Mr. Agwomoh’s
compromised state, as he had observed the severe damage to Mr. Agwomoh’s car in the traffic
accident, and the reason he had accompanied Mr. Agwomoh to the hospital was to obtain a blood
sample as evidence in a drunk driving investigation. Mr. Agwomoh stood up from the gurney,
demanded his clothes, tossed his c-collar to the floor, and expressed his desire to leave the room.
He then started waving his arms around and shouting about voodoo. As the photographs of the CT
scan room show, the CT machine Mr. Agwomoh was being loaded into had monkey faces painted
all over it, which might explain the fact that he was referring to “voodoo.”
¶ 67 When Officer Perez reentered the CT scan room, he would have observed that no effort
had yet been made to calm Mr. Agwomoh down or explain to him what was going on. As he
testified, he gave Mr. Agwomoh verbal commands to get back onto the cart. When those
commands were “disregarded,” he attempted to handcuff Mr. Agwomoh, who pulled away from
him. Then, after warning him that he would be tased if he did not comply, Officer Perez deployed
his Taser twice in drive-stun mode. At some point, although it is unclear when, Mr. Agwomoh
urinated on the floor.
¶ 68 As Dr. Peters explained in his report and subsequent deposition, the use of a Taser in
drive-stun mode “seldom calms a situation,” and they are “known in the industry to just make
people angry.” The fact that Officer Perez twice used his Taser in drive-stun mode on Mr.
Agwomoh, whose only noncompliance up to that moment was a refusal to get back on a gurney
so that he could receive medical care and who, according to all the witnesses, had been perfectly
calm just moments earlier, could support a finding that Officer Perez acted willfully and wantonly.
¶ 69 While we do not address them here, there may well have been other actions by Officer
Perez that could also support such a finding. Counsel for Ms. Agwomoh suggested at oral argument
19
No. 21-0892
that Officer Perez committed nine distinct acts that could each support a finding of willful and
wanton conduct. While we failed to see nine distinct acts in her recitation, in focusing our analysis
on Officer Perez’s use of his Taser in drive-stun mode, we do not mean to suggest that this was
the only possible act committed by Officer Perez that morning that could support a finding of
willful and wanton conduct.
¶ 70 We also note that, at oral argument, counsel for defendants asserted that Officer Perez did
not use his Taser until after Mr. Agwomoh advanced on him. When questioned on this point by
the court, counsel declared that this was undisputed by the witnesses. But we have closely reviewed
the deposition testimony, and of the four surviving witnesses to the altercation, only Ms. Avalos
testified that Mr. Agwomoh “advanced on” Officer Perez prior to his use of the Taser. The three
other witnesses—Mr. O’Donnell, Mr. Elkhatib, and Officer Perez himself—testified that Mr.
Agwomoh was tased before he had advanced on anyone. Thus, contrary to defense counsel’s
characterizations of the evidence, in our view, there were genuine issues of material fact related to
the sequence of events and when exactly Officer Perez chose to deploy his taser.
¶ 71 Finally, both the circuit court and the defendants highlight the fact that not one of the
eyewitnesses described Officer Perez’s actions as excessive or unnecessary, but the three witnesses
who observed the use of the Taser—Ms. Avalos, Mr. O’Donnell, and Mr. Elkhatib—were medical
professionals, not individuals with expertise in police use of force procedures. As such, they would
have no reason to recognize whether Officer Perez’s actions, and the specific way in which he
used his Taser device, demonstrated conscious disregard for Mr. Agwomoh’s welfare and safety.
¶ 72 We are not unsympathetic to the points made by the defendants’ expert witness Robert T.
Johnson. We fully appreciate that police officers have a difficult job and that they often find
themselves in “tense, uncertain, and rapidly evolving situations” where they must make split-
20
No. 21-0892
second decisions using “well-reasoned discretion.” However, as we stated in Suwanski v. Village
of Lombard, 342 Ill. App. 3d 248, 259 (2003), “[w]hile we agree that police officers should be able
to perform their duties as free as possible from liability concerns, there must be some reasonable
limit to their exercise of discretion.” In cases like this one, where reasonable minds might draw
different inferences from the same undisputed facts, it is the role of the jury to decide whether
Officer Perez’s exercise of discretion crossed a line and exhibited an utter indifference to or
conscious disregard for the safety of Mr. Agwomoh.
¶ 73 Viewing the evidence in the light most favorable to Ms. Agwomoh, we find that under the
specific facts of this case there exists a jury question sufficient to preclude summary judgment on
the issue of whether Officer Perez engaged in willful and wanton conduct in the moments leading
up to Mr. Agwomoh’s death.
¶ 74 IV. CONCLUSION
¶ 75 For the foregoing reasons, we reverse and remand this case for further proceedings in
accordance with this opinion.
¶ 76 Reversed and remanded.
21
No. 21-0892
Agwomoh v. Village of Dolton, 2022 IL App (1st) 210892Decision Under Review: Appeal from the Circuit Court of Cook County, No. 18-L-2677;
the Hon. Lorna E. Propes, Judge, presiding.
Attorneys Robert J. Napleton and Cameron J. Botticelli, of Motherway &
for Napleton, LLP, of Chicago, and Lynn D. Dowd, of Naperville,
Appellant: for appellant.
Attorneys ShawnTe Raines and Jeffrey C. Grossich, of Ancel Glink, P.C.,
for of Chicago, for appellees.
Appellee:
22