Rice v. White

SUPREME COURT CASES

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Rice v. White

State: Illinois

Court: 4th District Appellate

Docket No: 4-06-0512 Rel

Case Date: 05/23/2007

Preview:NO. 4-06-0512 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT KATHERINE RICE, Individually and as Representative of the Estate of ANGELA WILLIS, Deceased, Plaintiffs-Appellees, v. SHADY WHITE, TANIKA McCOOL, and MICHELETTE HUGHES, Defendants-Appellants, and MARENDA LATHAN, Defendant, SHADY WHITE, TANIKA McCOOL, and MICHELETTE HUGHES, Third-Party Plaintiffs, and MEYUNTOE DAVIS, Third-Party Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Filed:

5-23-07

Appeal from Circuit Court of Sangamon County No. 00L0023

Honorable Robert J. Eggers, Judge Presiding.

JUSTICE MYERSCOUGH delivered the opinion of the court: On October 25, 2005, a jury entered a verdict in favor of plaintiffs, Katherine Rice, individually and as representative of the estate of her daughter, Angela Willis (hereinafter plaintiff), awarding her $700,000 for the wrongful death of Willis. Defendants Shady White, Tanika McCool, Michelette

Hughes, and Marenda Lathan were found liable for Willis's death. White, McCool, Hughes, and Lathan were also found to be acting in concert to bring about Willis's death. Additionally, the jury

apportioned liability among defendants White, McCool, Hughes, Lathan, and Meyuntoe Davis, a third-party defendant. Davis was

not a party the jury found to be acting in concert with White, McCool, Hughes, and Lathan. to this appeal. Neither Davis nor Lathan is a party

On May 19, 2006, the trial court denied

defendants' posttrial motions requesting a new trial or a judgment notwithstanding the verdict. Defendants appeal, arguing (2) the

(1) the evidence does not support the jury's findings;

trial court's allowance of plaintiff's amended complaint adding in-concert liability was not proper; and (3) in the alternative, defendants are severally liable for the $700,000 award of damages to plaintiff. We reverse. I. BACKGROUND On January 15, 1999, defendants McCool, Hughes, and Lathan hosted a party at the home of White, McCool's mother. Prior to the party, McCool, Hughes, and Lathan distributed a flyer advertising the party that included the language "We will check for weapons." Willis attended the party and was killed

when Meyuntoe Davis, another guest at the party, fired shots into a crowded living room and struck Willis in the forehead. On January 19, 2000, plaintiff filed a petition alleging negligence on the part of defendants that resulted in Willis's death. Plaintiff's claim was filed pursuant to the

Wrongful Death Act (740 ILCS 180/0.01 through 2.2 (West 2000)), the Premises Liability Act (740 ILCS 130/1 through 5 (West 2000)), and section 27-6 of the Probate Act of 1975 (755 ILCS - 2 -

5/27-6 (West 2000)). On July 10, 2002, the trial court granted defendants' motion for summary judgment on all claims. On June 14, 2003,

this court affirmed the trial court's order of summary judgment on all counts except the voluntary undertaking of a duty. v. White, No. 4-02-0646 (June 13, 2003) (unpublished order pursuant to Supreme Court Rule 23). This court found that Rice

defendants voluntarily undertook a duty "to prevent the entrance of weapons into their party." Rice, slip order at 14. However,

this court denied defendants summary judgment because it found that an issue of fact remained as to whether defendants performed their undertaking negligently and whether that negligence was a proximate cause of the injury. On October 24, 2005, the day of the jury trial, plaintiff moved to amend her complaint to allege in-concert liability of defendants White, Lathan, McCool, and Hughes. The

amendment stated, "one or more of the defendants knew that the conduct of one or more of the other defendants was negligent. Despite this knowledge, one or more of the defendants gave one or more of the other defendants substantial assistance while engaged in the negligent conduct." amend over objection. Plaintiff called each of the defendants as adverse witnesses in her case in chief. Defendant Hughes testified that The trial court granted the motion to

- 3 -

she, McCool, and Lathan hosted a party on "January 1, 1999," at the home of McCool's mother, Shady White. years old. Hughes was then 18 Hughes

Hughes testified that she had made the flyer.

testified that she, McCool, and Lathan printed between 100 and 200 flyers. Hughes said the women's plan was to hand them out to

students at Southeast High School, which Hughes attended at that time. The flyer read: "I had a dream that Shammy (Hughes)[,] Rinnie (Lathan)[,] and Tanika was throwing another set!!! 211 South Paul; 9:00 p.m.- until ya'll think the party outside $3.00 at da [sic] door & Juice included Jan[.] 15th[,] 1999 (We will check for weapons)." Hughes testified that she discussed including the language about checking for weapons with McCool and Lathan before deciding to put it on the flyer. Hughes said she and the other She

women did not discuss how they would check for weapons.

testified that she did not check anyone at the party for weapons. Hughes said no one asked her to check for weapons and that she had never been to a party where guests were checked for weapons. Hughes said that the girls had seen language like this - 4 -

on other flyers and that she included the language about checking for weapons on the flyer as "an afterthought." Hughes testified

that she thought the language on other flyers was meant to prevent people from bringing weapons. Hughes said, "So, we

thought that it would be a good idea for us to place this on our flyer as well." Hughes said they were expecting all of the people at the party to be high school students. party that night Hughes did not know. There were people at the Hughes said that she was

not concerned about people she did not know attending the party. Hughes said the girls did not discuss keeping people they did not know out of the party. Hughes said that there was someone at the

front door the evening of the party collecting $3 from everyone. Hughes said that she was going in and out of the house during the party, as were other guests at the party. Hughes testified that she knew the victim, Willis, but that she and Willis were not friends. Hughes said she did not

know the shooter, Meyuntoe Davis, and had no idea he was coming to the party. Hughes testified that she had no reason to believe

there were going to be any weapons at the party. Defendant McCool testified that she hosted the party on January 15, 1999, at the home of her mother, White. McCool

testified that she was not with Hughes when Hughes typed the flyer for the party. However, she testified that she saw the - 5 -

flyer a few days before the party and agreed that the language about checking for weapons was acceptable. McCool testified that

she did not tell Hughes to remove the language from the flyer and that, in fact, some of the other language on the flyer was her idea. She also testified that she thought the language about

checking weapons was a good idea because she did not want people bringing weapons to the party. However, McCool said that she did not think that someone actually bringing weapons to the party was a real possibility. McCool testified that regardless of her belief that

no one would actually bring weapons to the party, she intended to check for weapons because that is what the flyer said. She said

that she and the other girls did not have any discussion prior to the party regarding who would check for weapons or how they would check for weapons. McCool said they never discussed what they McCool said the

would do if they found a weapon at the party.

girls wanted people to believe that this party was a safe place to go and that is why they said they would check for weapons on the flyer. McCool said that she did not have a discussion with

the other girls before the party about checking for weapons because she thought by including the language on the flyer it would make people feel safer and discourage people from bringing a weapon to the party. She said she thought it would scare

people into not bringing weapons. - 6 -

McCool testified guests began arriving at 8 p.m. McCool stated that she saw Lathan checking for weapons at the party; she also saw her mom, White, checking for weapons. McCool

said White was patting down the guests' arms and down their backs and legs. pockets. McCool was unsure if White checked the guests' McCool was asked whether she testified at her

deposition in 2002 that she could not recall if anyone other than herself was checking for weapons that night. McCool testified

that she was unsure whether her memory of events would be better at trial in 2006 than it was in 2002 when she gave her sworn testimony in a deposition. McCool testified she also checked for weapons by patting down guests' arms and legs. She testified that someone However, McCool She

else at the party made the guests remove their jackets. McCool said some guests did not remove their jackets. said she did not check for weapons the entire night.

estimated she checked for weapons approximately 30 minutes at the beginning of the party and for a little while during the middle of the party. McCool testified that she had no training on how She testified that she watched

to search a person for weapons.

her mom pat down people for weapons and "did what she did." McCool said there were approximately 100 to 150 people in the house that night. Her mom was the only adult supervision McCool said the house was

other than some of her older cousins. - 7 -

crowded but that she and the other hosts never discussed refusing to allow any more people inside. She could not recall if she saw

anyone go outside and then come back inside the house. McCool said she had never met Davis before the shooting. McCool testified, however, that she did know the She said that Willis lived across the street Despite spending so

decedent, Willis.

from her and was at her house all the time.

much time at her home, McCool said her and Willis were not friends. McCool said that she was jealous of Willis because McCool said that Willis

"[Willis] thought my mom was hers."

would "always come over and want to help her clean, just talk to her. She was just over there all the time." McCool said at one McCool said

point she believed Willis liked one of her brothers.

that she at no time had a plan with Davis to allow him to bring a gun into the party. McCool said she was aware now that Davis got

into the party with a gun and it was the shots he fired from that gun at the party that killed Willis. to stop Davis from entering the party. McCool testified that a fight broke out at the party. She said she was walking back and forth between the kitchen and dining room when she heard two boys arguing and saw a girl standing up on the couch. all need to stop. McCool testified that she said, "You She said that someone She said she then McCool said she never tried

This party is over."

else yelled, "Yeah[,] this party is over." - 8 -

heard shots and just stood there. that point.

She said she was in shock at

She testified she eventually fell to the ground, and

once she realized what was happening, she crawled into the kitchen. She said that people had kicked the kitchen door open However, McCool said she did not

and were leaving the house.

want to leave her house, so she went to the basement and waited with other people until it was quiet. yelled, "A girl is shot." She said that someone

McCool said when she came back

upstairs she saw a girl lying on the ground and a lot of blood. She said she was running to people's houses saying "Call an ambulance, please." had been shot. White, McCool's mother, testified that she gave her daughter permission to host a party at her house. She said the She later realized that it was Willis who

party was a going-away party for her son, Nathan White, who was leaving to attend Gateway. She said that he was already gone on

January 15, 1999, because he had to go to Gateway a week earlier than expected. White said she did not talk to the other two

girls about the party and that she did not place any conditions on her agreement to let them host the party at her house. White said she first saw the flyers before the party and that was when she learned they were going to charge $3 to come to the party. She also saw the language about checking for She agreed that she thought including - 9 -

weapons before the party.

this language on the flyer was a good idea because she did not want anyone to have a gun at the party. White said that she was the only adult supervising the party that night and that there were approximately 100 to 150 guests in her house. She did not place any restrictions on who She said she did not know

could come into the party that night.

several of the people at the party, but they were students who went to school with her children. She said she was never

concerned about having a lot of guests that she did not know in her house. White said she was at the front door collecting money that night. White said that two other doors went into her house.

She said the other two doors were locked at the time so the only way for people to get in and out was through the front door. She said she checked some of the guests for weapons. However, at

White's deposition on January 10, 2002, she said that she left McCool, Hughes, and Lathan in charge of checking for weapons. trial, White agreed that is what she testified to in her deposition but said that she had shown the girls how to pat down a person for weapons by demonstrating on some of their guests. White testified that she had never received any training on how to conduct a pat-down search for weapons. She said she got the White At

idea of how to check someone for weapons from television.

said that after guests paid, one of their hands was stamped and - 10 -

then they were allowed to go in and out.

White said that,

regardless of whether she knew the person, if he or she paid $3, she allowed that person to go inside the house. White remembered the decedent, Willis, coming to the party that evening. White testified that she knew Willis well She said Willis

because Willis spent a lot of time at her house. and her son Nathan were very close.

White said she did not let

Willis in at first because she did not have $3, and White thought it would be unfair if she let Willis in without paying. White

said Willis went home, returned with $3, and went inside the house. White said she did not remember Davis coming to the party that night. She did not know him prior to the shooting. White said that

She said that her house was crowded that night.

had she known that weapons were going to be at the party, she would have cancelled it. Plaintiff Rice testified that she was decedent Willis's mother. White. She said that in 1991 she moved across the street from She said that prior to the party she knew neither White She did not know Hughes,

nor her daughter, McCool, very well. Lathan, or Davis prior to the party.

Prior to January 15, 1999, Rice said she stopped at Save-A-Lot and sent Willis inside to get a pizza. Rice said that

when Willis returned to the car, she was holding one of the - 11 -

flyers for the party. her the flyer.

Willis told her mom that McCool had given

Rice said she looked at the flyer and asked Finally, after Willis told her

Willis questions about the flyer.

that White would be at the party to supervise, she gave Willis permission to attend the party. Rice said the language about

checking for weapons influenced her decision to let Willis attend the party. She said that she thought it would be a safe place. Rice said

Rice estimated Willis went to the party around 11 p.m.

her daughter returned in five minutes to get money to get into the party, and Rice gave her $5. Rice said she realized there was a problem when she heard a lot of screaming and gunshots. She said she looked out

the window and saw a "guy" in the middle of the street who was shooting at the house. She called 9-1-1. About 10 minutes

later, a man arrived at her door and told her that her daughter, Angela Willis, had been shot in the head. Rice headed toward the

house because she wanted to see her daughter but a police officer stopped her in the street. officer for 20 years. outside. Rice said she had known the police

After that, Rice said things were chaotic

Rice saw a police officer carry her 12-year-old Kathy was covered in blood.

daughter, Kathy, out of the house.

Rice said she had sent Kathy over to the party to get Willis for her because cars were blocking her driveway and she wanted to know who they belonged to so that she could ask the owners to - 12 -

move them.

Willis was shot while her sister Kathy was present. Rice said Willis was active in the church choir and

youth group and that Willis would often come by to visit her mother at work. Willis also helped take care of her younger Rice said Willis

siblings at home and helped with the housework.

was attending the Lawrence Adult Center to earn high school credits. Rice also remembered Willis going over to White's house

to help White fix her hair. Rice said that she believed that it would be White who would be checking for weapons at the party even though White's name was not on the flyer. Rice said she could see White's front

door from her house because they live directly across the street from one another. Rice said she saw White at the door that night She did not see anyone checking for

collecting the cover charge. weapons.

Michelle Hudson testified that she attended the party at White's house on January 15, 1999. years old at the time. She said she was 16 or 17

Hudson said she learned of the party from Hudson

her cousin, Kamiera Robinson, who showed her the flyer.

said she was not surprised to see the language about checking for weapons on the flyer. Hudson stated, "Everybody who has a party Hudson and McCool were also Hudson

probably would put that on there." friends at the time.

Hudson also knew Hughes and Lathan.

said that no one checked her for weapons and she did not see - 13 -

anyone at all checking for weapons.

Hudson testified at trial

that the fact she was not searched for a weapon concerned her. However, at Hudson's discovery deposition taken in March 2004, Hudson said that the fact she was not checked for a weapon did not concern her. question wrong. She testified that the court reporter got the She said she had meant to correct her deposition

but did not know how. Hudson said she saw Willis and Davis at the party prior to the shooting. She said that between 30 and 60 minutes before

the shooting occurred she saw that Davis had a gun, but she did not tell anyone. Hudson said Davis was in the living room when

she saw the gun and that she was "pretty sure" other people saw the gun too. gun. gun. Hudson was not sure if anyone told White about the

Hudson did not leave the party after she saw Davis with a She said she stayed and "gathered her people together." Rice's daughter Kathy testified at trial that she had

been at the party.

Kathy was 12 years old at the time and went

over to the party sometime after Willis had already gone over to the party. Kathy testified that her mother sent her over to the However, in her deposition she denied that

house to get Willis.

her mother had sent her over to White's house that evening. Kathy testified she told White, who was at the door when she arrived, that she was just going in to get her sister. not pay to get inside the house. Kathy did

Kathy said as she proceeded to

- 14 -

go into the house, she saw her sister. went upstairs to use the bathroom. a gun.

Kathy testified she then

Kathy saw Davis upstairs with Kathy said

She did not know Davis before that night.

Davis told her to be quiet. to go home. were running. gunshots.

She then headed back down the stairs

Kathy testified she saw "flashing lights" and people Kathy said when she saw the flashing, she heard

She said she ran toward the back door, which had been She said that people were in the streets screaming, Kathy said she went back to the front

kicked open.

but she did not know why.

door, but as she was trying to go in, someone tried, but failed, to stop her from going inside. sister lying on the floor. Kathy then saw that it was her

Kathy testified that she saw her

sister in the kitchen area and that she got on her knees and started kissing her. Kathy said her sister did not respond other

than taking a really deep breath. James Young testified that he had been a police officer in the City of Springfield for 19 years at the time of trial. said in 1999 his position in the Springfield police department was a crime scene technician. His job entailed locating and He

identifying physical evidence at a crime scene, photographing the scene, shooting video, recording measurements, creating diagrams, creating sketches, and generally preserving evidence. Young was called to the scene at approximately midnight on January 15, 1999. Young testified that when he arrived, - 15 -

police on the scene had already photographed the scene and videotaped it. He was instructed to draw a diagram of the floor Young's diagram was entered as exhibit

plan of White's house. No. 2.

Young said he included two bullet holes in the diagram Young could not recall finding any He did not diagram where Willis's

that were found in the home. shell casings in the home. body was found.

However, Young did recall recovering a gun on a The gun was represented on the

small landing inside the house. diagram by the numeric 1. millimeter.

The gun found was a Smith & Wesson 9

Young testified that he did not know where the gun Young did not know Young said

came from, nor did he know whose gun it was.

what kind of gun Davis used the night of the party.

he did not fingerprint the gun, nor did he know whether it was ever examined for fingerprints. Young also did not know whether

the bullet casings found in the home that night matched the Smith & Wesson 9 millimeter gun. He said that information would have The parties

been handled by the Illinois State Police.

stipulated at the close of evidence that Davis shot Angela Willis with a .357 Magnum pistol the night of the party. Kamiera Robinson testified that she attended the party at White's house on January 15, 1999. at the time. Robinson was 15 years old

Robinson said she had known McCool, Hughes, and Robinson testified that prior to She said she had seen

Lathan since she was little.

the party she had seen the girls' flyer. - 16 -

the flyer at a city basketball tournament at the Prairie Capitol Convention Center. Robinson said White was at the door when she

arrived at the party and that White took her money but did not check her for weapons. However, Robinson recalled that someone Robinson could not remember who it

else checked her for weapons. was that checked her.

However, in Robinson's deposition she

testified that no one checked her for weapons that night. Robinson said she saw Willis at the party and that she was talking to Willis when she was shot. Robinson said that Willis

initially fell onto her after being shot. After the conclusion of plaintiff's evidence, defense counsel moved for a directed verdict. Defense counsel argued

that plaintiff had failed to establish negligence on the part of defendants and had not established proximate causation as a result of defendants' conduct. motion. The trial court denied the

Plaintiff argued that the testimony from Hughes that she

did not check for weapons at all and McCool's testimony, that she only checked for weapons the first 30 minutes and for a short while later that evening, was sufficient evidence defendants breached their duty. Plaintiff argued to the court, "It was a

gun, actually two guns, but one in particular, was carried into that party, and the decedent was shot, and we have--we believe there's enough evidence to go to the jury on this." court denied defendants' motion. The trial

Defendants renewed their motion

- 17 -

at the close of all evidence, and the court again denied their motion. Next, plaintiffs moved the trial court to rule that defendants were subject to in-concert liability as a matter of law. The court denied the motion and stated it was a question of

fact that would be submitted to the jury. Although the recitation of the jury instructions was not transcribed by the court reporter, the common-law record and jury instruction conference reflect that the following instructions were given to the jury as submitted by defendants: "When I use the word 'negligence' in these instructions, I mean the failure to do something which a reasonably careful person would do, *** under circumstances similar to those shown by the evidence. The law does

not say how a reasonably careful person would act under those circumstances. you to decide." That is for

Illinois Pattern Jury

Instructions, Civil, No. 10.01 (1995) (hereinafter IPI Civil (1995)). "When I use the words 'ordinary care,' I mean the care a reasonably careful person would use under circumstances similar to those shown by the evidence. - 18 The law does

not say how a reasonably careful person would act under those circumstances. you to decide." That is for

IPI Civil (1995) No. 10.02.

"When I use the expression 'proximate cause,' I mean that cause which, in natural or probable sequence, produced the injury complained of. It need not be the only It is

cause, nor the last or nearest cause.

sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury." IPI Civil (1995) No. 15.01. "The plaintiff claims that she was injured and sustained damage and that the defendants were negligent in one or more of the following respects: Marenda Lathan negligently failed to exercise reasonable and ordinary care for the safety of the persons attending the party when she allowed Meyuntoe Davis to enter the party with a loaded weapon. Tanika McCool negligently failed to exercise reasonable and ordinary care for the safety of the persons attending the party - 19 -

when she allowed Meyuntoe Davis to enter the party with a loaded weapon. Shady White negligently failed to exercise reasonable and ordinary care for the safety of the persons attending the party when she allowed Meyuntoe Davis to enter the party with a loaded weapon. Michelette Hughes negligently failed to exercise reasonable and ordinary care for the safety of the persons attending the party when she allowed Meyuntoe Davis to enter the party with a loaded weapon. The plaintiff further claims that one or more of the foregoing was a proximate cause of her injuries. Marenda Lathan denies that she did any of the things claimed by the plaintiff, denies that she was negligent in doing any of the things claimed by the plaintiff and denies that any claimed act or omission on the part of the defendant was a proximate cause of the plaintiff's claimed injuries. Tanika McCool denies that she did any of the things claimed by the plaintiff, denies - 20 -

that she was negligent in doing any of the things claimed by the plaintiff and denies that any claimed act or omission on the part of the defendant was a proximate cause of the plaintiff's claimed injuries. Shady White denies that she did any of the things claimed by the plaintiff, denies that she was negligent in doing any of the things claimed by the plaintiff and denies that any claimed act or omission on the part of the defendant was a proximate cause of the plaintiff's claimed injuries. Michelette Hughes denies that she did any of the things claimed by the plaintiff, denies that she was negligent in doing any of the things claimed by the plaintiff and denies that any claimed act or omission on the part of the defendant was a proximate cause of the plaintiff's claimed injuries. The defendants further deny that the plaintiff sustained damages to the extent claimed." See IPI Civil (1995) No. 20.01. "The plaintiff has the burden of proving - 21 -

each of the following propositions [as to each defendant]: First, that the defendant acted or failed to act in one of the ways claimed by the plaintiff as stated to you in these instructions and that in so acting, or failing to act, the defendant was negligent; Second, that the plaintiff was injured; Third, that the negligence of the defendant was a proximate cause of the injury to the plaintiff. You are to consider these propositions as to each defendant separately." IPI Civil (1995) No. B21.02.01. Plaintiff tendered the following instructions: "It was the duty of defendants, before and at the time of the occurrence to use ordinary care for the safety of Angela Willis. This means that it was the duty of

defendants to be free from negligence." See IPI Civil (1995) No. 10.04. "One who voluntarily undertakes to render services to another is subject to liability for bodily harm caused to the other - 22 -

by one's failure to exercise due care in the performance of the undertaking." The jury awarded $700,000 to the victim's estate and found defendants White, McCool, Lathan, and Hughes acted in concert in bringing about Willis's death. The jury attributed

fault to defendants in the following proportions: Shady White Maranda Lathan Tanika McCool Michelette Hughes Meyuntoe Davis (third party) 19% 2% 2% 2% 75% On May 19, 2006,

Several posttrial motions were filed.

the trial court heard these motions, including a motion under section 2-1202(b) of the Code of Civil Procedure (735 ILCS 5/21202(b) (West 2004)) requesting the court set aside the jury verdict. The court, without comment, denied all defendants' This appeal followed.

posttrial motions.

II. ANALYSIS On appeal, defendants raise three issues: (1) whether the evidence at trial supports the jury's findings, (2) whether the trial court erred in allowing defendants to amend their complaint to add an allegation of in-concert liability, and (3) whether defendants are jointly and severally liable for the - 23 -

damages.

Because we find defendants prevail on the first issue

regarding sufficiency of the evidence, we decline to address the remaining issues. A. Effect of This Court's Prior Rule 23 in This Case This case was before this court on appeal in 2002. According to the law-of-the-case doctrine, a determination of a question of law will generally be held to be binding throughout the subsequent stages of the case when the issue decided has been made on a prior appeal to a court of last resort. People v.

Lyles, 208 Ill. App. 3d 370, 376, 567 N.E.2d 396, 400 (1990) ("'[A]n appellate court's determination on a legal issue is binding on both the trial court on remand and appellate court on a subsequent appeal given the same case and substantially the same facts.' [Citation.]"). "Generally, the law[-]of[-]the[-]case doctrine bars relitigation of an issue previously decided in the same case." Krautsack v. Anderson, 223 Ill. 2d 541, 552, 861 N.E.2d 633, 642, (2006), citing People v. Tenner, 206 Ill. 2d 381, 395, 794 N.E.238, 247 (2002). "'[T]he determination of a question of law

by the [a]ppellate [c]ourt on the first appeal may, as a general rule, be binding upon it on the second appeal.'" Krautsack, 223

Ill. 2d at 552, 861 N.E.2d at 642, quoting Zerulla v. Supreme Lodge Order of Mutual Protection, 223 Ill. 518, 520, 79 N.E. 160, 161 (1906). - 24 -

Illinois recognizes two exceptions to this doctrine: (1) when the supreme court, following the first appeal, makes a contrary ruling on the precise issue of law on which the appellate court based its former opinion; or (2) when the appellate court finds that its prior decision is palpably erroneous, but only when the court remanded the case for a new trial on all of the issues." Lyles, 208 Ill. App. 3d at 376, 567

N.E.2d at 400, citing Stallman v. Youngquist, 152 Ill. App. 3d 683, 689, 504 N.E.2d 920, 923-24 (1987), rev'd on other grounds, 125 Ill. 2d 267, 531 N.E.2d 355 (1988). applies in this case. Neither exception

Therefore, our order remains binding on

the parties in this case. B. The Trial Court Erred in Failing To Grant Defendants' Motion for a Directed Verdict at the Close of Plaintiff's Evidence At the close of plaintiff's evidence, defendants moved for a directed verdict, arguing that plaintiff had not established negligence on the part of White, McCool, or Hughes. Defendants continue to argue on appeal that plaintiff failed to introduce evidence that satisfied the burden of proving by a preponderance of the evidence that any of the defendants acted negligently. Redmond v. Socha, 216 Ill. 2d 622, 646, 837 N.E.2d

883, 897 (2005) (plaintiff bears the burden of proving every necessary element of her negligence case by a preponderance of the evidence). In support of their motion for a directed verdict, - 25 -

defendants argued that plaintiff's evidence had also failed to establish that defendants' conduct was the proximate cause of decedent's injury. In response, plaintiff argued to the court,

"It was a gun, actually two guns, but one in particular, was carried into that party, and the decedent was shot, and we have-we believe there's enough evidence to go to the jury on this." The trial court denied defendants' motion. Defendants renewed

their motion at the close of all evidence and the court again denied their motion. "[V]erdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors [the] movant that no contrary verdict based on that evidence could ever stand." Pedrick v. Peoria & Eastern

R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14 (1967); see also City of Evanston v. Ridgeview House, Inc., 64 Ill. 2d 40, 57, 349 N.E.2d 399, 407-08 (1976) (noting that the standard in Pedrick only applies in jury-tried cases). The standard of

review when the trial court denies a directed verdict is de novo. City of Mattoon v. Mentzer, 282 Ill. App. 3d 628, 633, 668 N.E.2d 601, 604 (1996). The plaintiff bore the burden of presenting evidence at trial to support every element of her claim of negligence. Old

Second National Bank of Aurora v. Aurora Township, 156 Ill. App. - 26 -

3d 62, 65, 509 N.E.2d 692, 695 (1987) (essential elements of recovery under the Wrongful Death Act includes a duty, a breach of that duty, and damages that resulted from defendants' breach). Even when examining the evidence in a light most favorable to plaintiff, we find the trial court erred when it denied defendants' motion for a directed verdict. 1. Defendants Voluntarily Undertook a Duty To Check for Weapons The supreme court has recognized: "'It is axiomatic that every person owes to all others a duty to exercise ordinary care to guard against injury which naturally flows as a reasonably probable and foreseeable consequence of his act, and that such duty does not depend upon contract, privity of interest[,] or the proximity of relationship, but extends to remote and unknown persons.'" Frye v. Medicare-Glaser Corp., 153 Ill. 2d 26, 32, 605 N.E.2d 557, 560 (1992), quoting Nelson v. Union Wire Rope Corp., 31 Ill. 2d 69, 86, 199 N.E.2d 769, 779 (1964). However, there is no general duty to protect against the criminal acts of third persons. Jackson v. Shell Oil Co., An

272 Ill. App. 3d 542, 547, 650 N.E.2d 652, 655 (1995).

exception to this rule will only be made if there exists (1) a - 27 -

special relationship between the parties, and (2) the criminal act was reasonably foreseeable. 542, 650 N.E.2d at 655. On appeal in 2002, we held that no special relationship existed between the parties to this case and affirmed the trial court's grant of the summary judgment motion in favor of defendants on that point. Rice, slip order at 9-14. However, Jackson, 272 Ill. App. 3d at

citing Wakulich v. Mraz, 203 Ill. 2d 223, 245-46, 785 N.E.2d 843, 856 (2003), and interpreting all of the evidence in plaintiff's favor, as required in reviewing a ruling on defendants' motion for summary judgment, this court went on to find that defendants had voluntarily undertaken "a duty to prevent the entrance of weapons into their party." Rice, slip order at 14. In Wakulich,

the supreme court held that the defendants had voluntarily undertaken a duty to care for decedent although the defendants and decedent shared no special relationship. In Wakulich, the

defendants had taken charge of a young girl who had become intoxicated at their home. More than merely allowing her to

"sleep it off," the defendants in that case moved decedent to another room, removed her vomit-stained blouse, and propped a pillow under her head to prevent aspiration. The defendants in

Wakulich also prevented other persons from intervening in the care of decedent. The defendants in Wakulich eventually removed

decedent from their home while she was still unconscious, and she - 28 -

later died.

The supreme court held that the defendants'

affirmative acts of caring for decedent after she became unconscious imposed a duty to use reasonable care. Ill. 2d at 245-46, 785 N.E.2d at 856. Wakulich, 203

The court in Wakulich said

that the defendants' liability was not contingent on their relationship with decedent for purposes of the voluntaryundertaking count of the plaintiff's claim. 2d at 242, 785 N.E.2d at 854. Wakulich, 203 Ill.

The court found that this holding

did not circumvent the rule requiring a special relationship between the parties before imposing a duty because the defendants' liability arose by virtue of "their voluntary assumption of a duty to care for [decedent] after she became unconscious, irrespective of the circumstances leading up to that point." Wakulich, 203 Ill. 2d at 242, 785 N.E.2d at 854. Even though defendants' duty herein was defined by this court in the Rule 23 order issued on appeal of this case in 2002, the duty instructions given at trial were not an accurate reflection of that duty. The jury was instructed as follows:

"It was the duty of defendants, before and at the time of the occurrence to use ordinary care for the safety of Angela Willis. This

means that it was the duty of defendants to be free from negligence." See IPI Civil (1995) No. 10.04. - 29 -

This instruction, proffered by plaintiff, embodies a general negligence claim. Defendants' voluntarily assumed duty

in this case was to check the entrants to the party for weapons. This instruction, however, significantly broadens defendants' duty to one of ordinary care appropriate only in a general negligence claim, not a negligence claim based on the voluntary assumption of a duty. After this court found that defendants owed a duty to decedent under Wakulich, this court reversed the trial court's grant of summary judgment in favor of defendants because we found a material issue of fact remained regarding whether defendants negligently carried out their voluntarily assumed duty to check for weapons and whether defendants' negligence was the proximate cause of decedent's injury. Rice, slip order at 17.

2. No Evidence Showed Defendants Breached Their Duty to Check for Weapons To establish a prima facie case for negligence, plaintiff must put forth evidence that defendants breached their duty owed to the plaintiff. Old Second National Bank of Aurora, A defendant breaches

156 Ill. App. 3d at 65, 509 N.E.2d at 695.

her duty when she deviates from the applicable standard of care. Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247, 270, 864 N.E.2d 249, 263 (2007) (common-law negligence requires plaintiff to establish the existence of a duty of care owned by the defendant, a breach of that duty, an injury proximately caused by the - 30 -

defendant's breach, and damages).

Failure to exercise due care

in the performance of a voluntarily assumed duty generally results in the imposition of tort liability on the party that has assumed such a duty. Cross v. Wells Fargo Alarm Services, 82 However, a voluntary duty is Wakulich, 203 Ill. 2d

Ill. 2d 313, 412 N.E.2d 472 (1980).

limited to the extent of the undertaking.

at 241, 785 N.E.2d at 854; Torres v. City of Chicago, 352 Ill. App. 3d 533, 535, 816 N.E.2d 816, 818 (2004) (noting that the court in Wakulich adopted section 323 of the Restatement (Second) of Torts). Illinois relies on section 323 of the Restatement (Second) of Torts to assess when a breach of a voluntary undertaking has occurred. LM ex rel. KM v. United States, 344

F.3d 695, 701 (7th Cir. 2003) (noting Illinois has adopted sections 323 and 324 of the Restatement (Second) of Torts); Torres, 352 Ill. App. 3d at 535, 816 N.E.2d at 818 (noting the supreme court adopted section 323 of the Restatement in Wakulich). Section 323, titled "Negligent Performance of

Undertaking to Render Services," establishes liability for failure to exercise reasonable care to perform an undertaking if (1) a party undertakes to do something and then fails to exercise reasonable care in a way that increases a third party's risk of harm; or (2) the harm is suffered because of the other's reliance upon the undertaking. Comment b to section 323 of the - 31 -

Restatement provides: "One who *** renders gratuitous services to [another], is not subject to liability to [her] for failure to have the competence or to exercise the skill normally required of persons doing such acts, if the other who accepts the services is aware, through information given by the actor or otherwise, of [her] incompetence." Restatement (Second)

of Torts

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