Kingdom Auth. Int'l Ministries v. City of Rockford

Full title: KINGDOM AUTHORITY INTERNATIONAL MINISTRIES, SHEILA BROWN, MARISSA BROWN…

Court: APPELLATE COURT OF ILLINOIS SECOND DISTRICT

Date published: Sep 29, 2017

2017 Ill. App. 2d 170084 (Ill. App. Ct. 2017)

Opinion

No. 2-17-0084 No. 2-17-0093 cons.

09-29-2017

KINGDOM AUTHORITY INTERNATIONAL MINISTRIES, SHEILA BROWN, MARISSA BROWN, and MELVIN BROWN, Plaintiffs-Appellants, v. CITY OF ROCKFORD, Defendant-Appellee. KINGDOM AUTHORITY INTERNATIONAL MINISTRIES, SHEILA BROWN, MARISSA BROWN, and MELVIN BROWN, Plaintiffs-Appellees, v. CITY OF ROCKFORD, Defendant-Appellant.

JUSTICE SPENCE delivered the judgment of the court.

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Winnebago County. No. 13-L-288 Honorable John H. Young, Judge, Presiding. JUSTICE SPENCE delivered the judgment of the court.
Presiding Justice Hudson and Justice Hutchinson concurred in the judgment. ¶ 1 Held: The circuit court did not err in granting the City of Rockford's motion for summary judgment on counts IV and V, and denying its motion for summary judgment on count I. The circuit court also did not err in denying plaintiffs leave to amend the complaint on the first day of trial, in allowing two defense witnesses to testify at trial, and in limiting the scope of cross-examination. In addition, the circuit court properly allowed the jury to consider the plaintiffs' contributory negligence in offsetting damages for reckless infliction of emotional distress, and the evidence was sufficient to support the verdict on reckless infliction of emotional distress. Therefore, we affirmed.

¶ 2 I. BACKGROUND

¶ 3 This consolidated appeal arises from the fatal shooting of Mark Anthony Barmore by two Rockford police officers in the basement daycare facility of Kingdom Authority International Ministries Church (the Church or Kingdom Authority). The shooting occurred on August 24, 2009, and this action was brought by the Church, its employees, and minor daycare attendees against the City of Rockford (the City) and the two officers who shot Barmore, Stanton North and Oda Poole.¹ The plaintiffs on appeal are the Church, Sheila Brown, Marissa Brown, and Melvin Brown (collectively plaintiffs).²

1 Prior to summary judgment, Officers North and Poole were voluntarily dismissed by plaintiffs, and the City is the only defendant on appeal.

2 Nine plaintiffs agreed to a post-trial settlement with the City of Rockford following the jury verdict, and those plaintiffs are no longer a part of this case.

¶ 4 A. Pretrial

¶ 5 Plaintiffs filed their five-count complaint on September 26, 2013. The complaint alleged, in relevant part, as follows. On August 24, 2009, Officers North and Poole were on duty and responsible for picking up subjects for arrest. One of those subjects was Barmore, a 23-year old black male, and the officers located him standing outside of Kingdom Authority. Upon seeing the officers' vehicle, Barmore fled into Kingdom Authority. Poole was able to get inside when Sheila Brown opened the Church door for him to enter. Poole drew his gun and pursued Barmore toward the basement, where the Church had a daycare center with children present. North met Poole at the top of the basement stairs, and they proceeded to the basement together. ¶ 6 The officers saw about a dozen children and two adults in the basement. Barmore had entered a "closet" behind a steel door. The officers did not evacuate the persons in the basement but instead continued to pursue Barmore. They observed him inside the closed room through a window on the steel door; they did not observe anyone else in the room with Barmore or any other exit from the room. They forced the door open, pointed their guns at the entrance, and ordered Barmore to come out. Barmore complied with his hands up and his head down, and the officers did not observe him with a weapon. Both officers reached for him while holding their guns pointed in his direction. Poole then discharged his weapon, striking Barmore on the left side of his neck with the first of four gunshots. Marissa Brown observed that he was shot while he had his hands in the air, and she did not observe Barmore reach for the officers' guns. When Barmore attempted to stand up after the first shot, North shot him multiple times in the back. ¶ 7 Count I alleged reckless infliction of emotional distress (RIED). Plaintiffs alleged that they were within the zone of physical danger when the officers shot Barmore; that they feared for their safety; that they suffered "physical and/or mental injury or illness as a proximate cause" of their emotional distress; and that the officers' conduct demonstrated a reckless disregard for their safety and caused their emotional distress. ¶ 8 Count II alleged intentional infliction of emotional distress (IIED). Specifically, plaintiffs alleged that the officers' conduct was extreme and outrageous, was intended to inflict severe emotional distress, and caused them severe emotional distress. Count III alleged false imprisonment in that the officers unlawfully restrained the plaintiffs' personal liberty and freedom. ¶ 9 Count IV alleged negligent retention, in that the City knew or should have known of problems arising during the officers' employment that indicated unfitness, including excessive force complaints, but it failed to investigate, discharge, or reassign the officers. And lastly, Count V alleged tortious interference with prospective economic advantage in that, as a result of the officers' reckless behavior, Kingdom Authority lost existing business relationships and incurred economic harm. In particular, immediately following the shooting, "membership in the church dropped from 140-150 people down to 12," and parents told Melvin Brown that they were leaving the daycare because of the shooting. ¶ 10 On June 25, 2014, plaintiffs voluntarily dismissed with prejudice all counts against Officers Poole and North. Poole and North also voluntarily dismissed their counterclaim against plaintiffs with prejudice. Plaintiffs' claims against the City for the officers' conduct remained. ¶ 11 On October 10, 2014, the City moved for summary judgment. Attached were numerous exhibits including the depositions of Officers Poole and North, as well as those of Marissa, Sheila, and Melvin Brown. The City's motion asserted, in relevant part, the following facts based on the depositions of Officers Poole and Brown. On August 24, 2009, Officers Poole and North pursued Barmore into the basement of Kingdom Authority. Barmore had hid himself within a boiler room. They saw about a dozen children and two adults in the basement, and they directed them to move away from the room Barmore was in. They did not know whether Barmore was alone, had a hostage, or was armed with any weapon, including a knife. Once at the boiler room door, the officers believed Barmore was armed and operated under that assumption. Barmore attempted to keep the door shut as the officers tried to open it. ¶ 12 The officers first opened the door approximately three or four inches, and at this time the officers saw Barmore reach across the door frame and grab a white metal object. This action put the officers on alert for violence. They then fully opened the door, knocking Barmore backward, and he dropped the white pole-like object. North became frightened and stepped backward. Both officers shouted at Barmore to come out of the room and get down on the ground, but he did not comply. Both officers were pointing their handguns toward Barmore. ¶ 13 It was at this point that Barmore "lunged" at Poole, grabbing the barrel of his handgun and pushing the gun toward Poole's face. The two struggled, and once Poole regained enough control of his handgun, he fired at Barmore, striking him on the left side of the neck. Poole believed he was in danger of death or great bodily harm. Barmore continued to struggle after the shot was fired, and Poole was unable to remove Barmore's grip from his gun. North watched, and when he believed that Poole was out of his line of fire, he shot four rounds at Barmore's torso. He believed Poole's life was in danger. Barmore fell forward, sinking to the ground after the fatal shots. ¶ 14 The City argued that counts I and II (RIED and IIED, respectively) should be dismissed as follows. The Illinois Supreme Court outlined the requirements for intentional and reckless infliction of emotional distress by following the Restatement (Second) of Torts (the Restatement) (1965). Plaintiffs were not the direct victims of the officers' actions—Barmore was. Therefore, under section 46 of the Restatement, plaintiffs had to allege that their emotional stress resulted in bodily harm, and they failed to do so. ¶ 15 For count IV (negligent retention), the City argued that the decisions to hire and retain a police officer were discretionary acts under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1-101 et seq. (West 2008)), and that the City was immune from liability for discretionary acts. Moreover, the chief of police was responsible for planning and conducting police operations in the City, which required balancing the interests of safety and efficiency. Hiring and retaining officers at the police department was part of this responsibility and balance of interests. Finally, for count V (tortious interference with prospective economic advantage), the City argued that plaintiffs were required to plead the existence of a contract, which they had not done. Further, the officers exercised their discretion to diffuse what they believed was a dangerous situation in the Church, and therefore could not be liable pursuant to section 2-201 of the Tort Immunity Act (745 ILCS 10/2-201 (West 2008)). ¶ 16 Plaintiffs responded on January 21, 2015. In relevant part, plaintiffs asserted the following facts from August 24, 2009, relying on the deposition witness testimonies of Marissa Brown, Alex Hunter, and Christopher Hale. Neither North nor Poole directed the adults or children to evacuate the basement. Barmore had his hands up and head down when the officers opened the metal door to the boiler room in the Church basement, and they could see that Barmore was unarmed. Barmore exited the boiler room with his hands up; he did not grab Poole's gun, and there was no struggle. After the first shot was fired, Barmore fell back against the sink but still had his hands up. He stood back up, but at this point, more shots were fired, and he was no longer standing. ¶ 17 On counts I and II, plaintiffs argued that the officers' actions were extreme and outrageous, and Marissa visited the hospital for injuries resulting from witnessing Barmore's shooting. She also underwent counseling and had anxiety and "different sicknesses" related to the stress of the incident, including anxiety attacks, difficulty breathing, and flashbacks to the shooting. She was prescribed Xanax for her injuries. She testified in her deposition to experiencing severe emotional distress. ¶ 18 Sheila Brown saw her physician shortly after the shooting, and the doctor provided her documentation that she was unable to work. She was unable to return to work at the daycare until February or March 2010, because she was struggling, including bouts of crying. Following the shooting, she also received counseling and was prescribed Paxil, Trazodone, and Xanax. She had problems with memory since the shooting, although she did not know whether that was from the shooting or from the medications taken because of the shooting. ¶ 19 Responding to the City on count IV, plaintiffs argued that the City was aware of the officers' problematic histories but failed to act. In particular, North had six excessive force complaints against him over 20-plus years working for the City, and Poole was involved in two police shootings while previously working at the Washington, D.C., police department. In addition, Poole had fired his weapon on four occasions while working for the City between 2005 and 2009, and he had shot and killed one man before Barmore. Responding to Count V, plaintiffs argued that while there was no written contract between the Church and the parishioners and daycare users, a valid business relationship still existed. ¶ 20 On April 10, 2015, the trial court orally announced its findings and rulings on the City's motion for summary judgment. Addressing counts I and II, the court noted that every minor plaintiff and Sheila Brown were in the basement at the time of Barmore's shooting. Marissa Brown was also "clearly within the vicinity." Whether the distress caused by this incident was sufficient was a question of fact. Likewise, whether plaintiffs suffered bodily harm was a question of fact, and the court believed that the definition of bodily harm extended beyond "a laceration or a broken bone." Bodily harm "could include mental or psychological damage." Accordingly, the court denied the City's motion for summary judgment on counts I and II with respect to Marissa and Sheila. However, Melvin was outside of the building at the time of the shooting. While he did hear the gunshots, he did not witness the shooting nor was he in the immediate vicinity. Therefore, the court granted summary judgment on counts I and II for the City and against Melvin. ¶ 21 Turning to count IV (negligent retention), the court believed that the hiring and retention of an officer was a discretionary act, relying on Johnson v. Mers, 279 Ill. App. 3d 372 (1996). Section 2-201 of the Tort Immunity Act precluded liability for the discretionary acts of a public employee, and therefore the court granted summary judgment in favor of the City on count IV. On count V (tortious interference with prospective economic advantage), the plaintiffs admitted that there was no written contract. Further, the court explained that Poole and North were not prior employees of the Church and were not in the business of daycare or preaching. The court concluded that they lacked the requisite intent—purposeful interference—to satisfy that necessary element of the tort. Accordingly, it granted summary judgment for the city on count V. The trial court entered its written order on April 16, 2015, memorializing its oral rulings.³ ¶ 22 Following summary judgment, the court set the case for trial and implemented a discovery schedule, including disclosure dates for the parties' Illinois Supreme Court Rule (Rule) 213(f) (eff. Jan. 1, 2007) witnesses. The City sent Rule 213(f) interrogatories to plaintiffs on June 30, 2015, and plaintiffs responded on September 8, 2015. On September 29, 2015, the City disclosed its Rule 213(f) witnesses, although not in response to a written interrogatory. The City identified two Rule 213(f)(3) witnesses: Ronald Martinelli and Lance Martini.

3 We note that the court also denied summary judgment on count III (false imprisonment).

¶ 23 B. Leave to Amend

¶ 24 On March 8, 2016, the first day of trial, plaintiffs moved for leave to amend their complaint. The motion sought to add a sixth count for willful and wanton misconduct. The proposed count alleged that the officers' conduct showed a reckless and conscious disregard of others, including plaintiffs, and caused plaintiffs to suffer damages. The court continued the motion, and the City responded on March 15, arguing that the new count was prejudicial and untimely. ¶ 25 On March 16, the trial court denied leave to amend. The court considered that trial started on March 8, 2016; the case had been set for trial since July 5, 2015; discovery closed by December 31, 2015; and a final pretrial conference took place on February 19, 2016. The court also found that granting the motion would entail additional motion practice and take time away from the ongoing jury trial. Therefore, the court found that the motion was untimely and that there were previous opportunities to amend.

¶ 26 C. Trial

¶ 27 Trial began on March 8, 2015, and continued for about three weeks. We summarize the relevant testimony below. ¶ 28 Officer North testified first as follows. He was a police officer working for the prisoner transport unit for the Rockford police department on August 24, 2009. He was working with Officer Poole, and shortly after noon, the dispatcher broadcasted Barmore's name, alerting the officers that he had been spotted and had a warrant out for his arrest. The dispatcher later specified that Barmore was wanted for questioning related to an aggravated assault with a knife that occurred within the last 24 hours. ¶ 29 Officer Poole first spotted Barmore in front of the Church. North was driving the van at the time, and he turned around at the end of the block. By the time he returned to where Poole had seen Barmore, Barmore had entered the Church. Poole exited the van to pursue Barmore, and North drove the van southwest to the parking lot in back, in case Barmore attempted to exit that direction. He then left the van and approached the Church building, where a young man was holding the door open for him. He proceeded inside the building where he met up with Poole. The same young man from the door told him that the guy they were chasing had run down the stairs. ¶ 30 The officers descended the Church stairs into the basement. North was unaware that there was a daycare in the basement, although he was generally aware that the Church had a daycare facility. Once downstairs, the officers encountered about a dozen children. They did not clear the children from the room, "given the time and emergency of the circumstances," and North did not notice the door with an exit sign over it. The children told them that Barmore had entered a "closet." The boiler room⁴ was behind the kitchenette area, with a metal door. North drew his handgun, and he approached it with his gun drawn. His gun had a mounted flashlight, which he used to look through a small glass window on the metal door. He was able to see Barmore through the small window. He could not tell whether Barmore had a weapon or a hostage, although he did not observe either. The metal door was unlocked. ¶ 31 North turned the doorknob and tried to push the door open, and Barmore pushed back. The door opened slightly, and North saw him reach for and grab a "white object" on the wall. Poole helped push the door, and they were able to swing it wide open, knocking Barmore backwards. North took a few steps back, and Barmore exited the closet "very slow." His hands were not up but were at his sides, and North did not observe anything in his hands. Poole extended his left arm to reach at Barmore's chest, still holding his gun with his right hand, and both officers were giving him constant verbal commands to get on the ground. Barmore did not obey. ¶ 32 While Poole was extending his arm toward Barmore, Barmore reached with his left hand and grabbed the barrel of his gun. He then grabbed it with his right hand as well. Poole and Barmore struggled, and the gun's muzzle was in Poole's face. North thought Poole was going to be killed; everything happened quickly. Poole was able to redirect the gun toward Barmore, but they both still had their hands on the gun. Once Poole redirected the gun, he fired toward Barmore's neck. At this point, North "knew if [he] didn't do something this was gonna [sic] be bad," that is, they were in a life or death situation. When he had a clear shot, he fired several rounds at Barmore's backside. Barmore fell and landed on his back. ¶ 33 Officer Poole testified next as follows. He saw Barmore on August 24, 2009, standing outside the Church, talking to a group of men. Poole told North he had spotted Barmore, and they turned their van around at the next intersection. He did not see Barmore with a weapon, and he never saw a weapon in Barmore's hands until he grabbed his gun inside the Church. By the time he and North drove back to the front of the Church, Barmore was inside the building. Poole could see him on the other side of the doors, because the building had a glass facade, but the doors were locked. Barmore began to walk through the hallway inside the building. Poole banged on the window, and Sheila Brown came over and opened the door to let him in the building. Upon entering the building, he drew his weapon. He asked her where Barmore had gone, but she did not answer. He heard a small child say that he had gone downstairs, and he also heard several women talking about children being downstairs. ¶ 34 Poole met with North at the top of the stairs to the basement level. He was aware that children and some adults were in the basement, and his awareness of the children's presence created a "sense of urgency." They did not clear the basement of the children and adults because Poole's priority was looking for an individual that he believed had a knife, not looking for an exit for occupants of the basement. The two officers pursued Barmore, finding him behind a steel door. North first opened the door a few inches, and Poole observed Barmore "reach over and grab the white object and pull" and the door closed again. Poole went to help North open the door, and they were able to swing the door open. The officers were commanding Barmore to show his hands. ¶ 35 At this point, Barmore "lunged forward and grabbed the barrel of [Poole's] gun" and pointed the gun at Poole. His hands were wrapped around the barrel of the gun. They were in a "toe to toe" struggle but remained stationary. When Poole positioned the gun "in a spot where I'd hit him if I pulled the trigger," he fired. Barmore still had a grip on his gun, and he did not release his grip until North also fired at him. ¶ 36 Sheila Brown testified next as follows. She was the daycare director at Kingdom Authority in 2009. She was married to Melvin Brown, and Marissa Brown was her daughter. The daycare served infants, toddlers, and school-age children, who were typically 6 to 12 years old. It served around 130 children per week, and had approximately 60 children present on any given day, including on August 24, 2009. On that day, when officers Poole and North entered the Church, the toddlers were napping. ¶ 37 Around midday, Sheila entered the Kingdom Authority building after having lunch in order to wash her hands. When she was heading back out of the building through the same locked door, Barmore pushed past her and ran down the hall. She tried to talk to him because he was not supposed to be inside, but he kept running down the hall. The Church had two parts: the church facility and the daycare facility, and Barmore had entered the daycare part. ¶ 38 She then heard Poole beating on the window. He appeared angry and agitated, and he pointed his finger at her to open the door. She was afraid, but she went and unlocked the door for him. Poole asked her where Barmore had gone, but he did not otherwise identify himself or ask other questions. She followed him because she was concerned for the children, and she observed him draw his weapon in the toddler room upstairs while the lights were out and the children were sleeping. She was "flabbergasted." She tried to tell him that "babies" were in there, but he did not respond. Poole then left the toddler room and a young girl told him that Barmore had gone towards the basement. ¶ 39 Sheila followed Poole down the stairs into the basement, where he was joined by Officer North. Poole told her to take all the children against the wall or in the corner, and she took them to a corner of the room. At that time, there were 12 children and two adults, herself and Beatrice Smith, in the basement. She never saw Barmore with a weapon in his hand, and she did not believe he was a threat to the children. ¶ 40 Sheila was present in the basement for Barmore's shooting. There was nothing between her and the officers that would have blocked her view of the shooting. The shooting made her scared, both for her own life and for those of the children. She later witnessed Barmore's body being dragged across the floor. When asked what physical conditions she developed after the shooting, she answered that she felt "very anxious" and "really, just really down" following the shooting. She had crying bouts that were uncontrollable. She would have to pull over and stop driving to cry. She also had memory issues where she would lose her train of thought; problems with headaches; and violent shakings when she reentered the daycare. She lacked the motivation to do daily tasks, she felt weak, and she experienced chest pains and palpitations. The headaches, sadness, and anxious feelings lasted for years. For the first couple of years, she shook upon entering the Church and had headaches most days. Before the shooting, she was in "great health." ¶ 41 Melvin Brown testified that he was a pastor at Kingdom Authority and married to Sheila. He observed Sheila enter the Church to wash her hands after lunch on August 24, 2009. Barmore was outside the Church with Pat Coleman, a boxer, to discuss putting a boxing ring in the basement of the Church, in order to draw young people and keep them off the street. At some point, Barmore came up to him and Coleman and started talking to them. Barmore told him he was having "a little problem." Melvin did not ask what that problem was; instead, at that point, he saw a Rockford police transport vehicle whip around the street and turn back toward the Church. When it turned, Barmore ran toward inside building. He was not able to see how Barmore got inside. He saw an officer exit the police vehicle and head toward the building and then bang on the glass. ¶ 42 Melvin was outside of the building for the shooting. He heard from a young man running around the side of the building that "they killed him, they killed him." ¶ 43 Following the shooting, he observed that Sheila was "[l]ooking within herself. Crying a lot. Hurt a lot." Sheila had gotten better since that time, but not much. He also described Marissa Brown, his daughter, following the shooting. She was very angry, hurt, stressed, and lonely. She lost a desire to go to school, and she spent less time with her friends. Before the shooting, Marissa was happy, and they had a good relationship. The effects of the shooting hurt his relationship with both Marissa and Sheila. ¶ 44 Marissa Brown testified as follows. She was 17 years old on the day of the shooting, and she had been assisting her mother, Sheila, at the daycare in the Church. She was currently 23 years old and worked as a teacher through the YWCA with preschool children. On August 24, 2009, she had had lunch with Sheila. Sheila had gone into the Church building, and she could see Barmore speaking with her father, Melvin, and a boxing instructor outside of the Church. Marissa eventually went into the building, and she saw Sheila inside. Marissa went to check on the infants, and when Sheila went to lock the door, Barmore entered the building. Sheila asked what he was doing and told him to leave and that he could not be there. He looked scared. ¶ 45 A police vehicle pulled up quickly, and Poole got out of the car, ran up to the Church, and started banging on the window. Barmore was now running the opposite direction of him. Poole entered the building but did not identify himself, and Sheila followed him. She kept trying to warn him that there were kids in the building. Poole was "in a zone" and did not respond—he "just proceeded to do what he was going to do." He first checked the toddler room, and afterward, he holstered his weapon. She did not see him draw the weapon, but she did see him put it away. ¶ 46 A young girl told Poole that Barmore went downstairs. Poole moved in that direction, picking up his pace. The girl and Sheila followed him to the stairwell, and they followed him into the basement. Downstairs, she saw Poole flashing a light through a window in the boiler room door. Officer North then came down the stairs, and she stepped back to let him by. Poole kicked the door open, but the door swung back part way, leaving a small opening. At this point, the officers started yelling for Barmore to come out. She observed that the officers were standing next to each other, with Poole slightly closer to the door. After two or three commands, Barmore did come out slowly. He had his hands up and head down, and he looked sad. Then, a shot fired. Barmore fell against a sink in the room, and he used his elbow to push himself back up to a standing position. His hands were still up, but they were not as high anymore. Then, there were two more shots; Barmore was not standing anymore. She turned to leave, and as she went to climb the stairs, she heard two more shots that made her jump. ¶ 47 Witnessing the shooting caused her a lot of stress and "tons of nightmares." The shooting was constantly in the news, and it affected her schooling and relationships with others. She experienced chest pains. Once, at school, a teacher slammed a book down, and it took her back to Barmore's shooting; it "hyped" her up and made her chest tighten. Some people were supportive in their interactions with her, but others were angry about what happened, because they had their own opinions about what happened. She lost friends. She could not stay in school anymore, and she switched to an online GED program. The shooting made her feel anxious; it was always on her mind, and she "shut down." She was tense and on edge. These feelings put stress on her relationship with her mom and dad, and it took years to feel better—not until after she married and had children. ¶ 48 Beatrice Smith was a daycare worker at the Church's daycare facility since 2002, and she testified as follows. She was working at Kingdom Authority the day Barmore was shot. Prior to the officers arriving, she was sitting at a table in the daycare basement while the children she was watching were playing. A child came up to her and told her a man was in the closet, and she was confused. She then got up to investigate, but by that time, an officer was standing in the doorway. The officer had his gun drawn. He asked her "where did he go" and she responded that she did not know. The child responded that the man went into the closet. ¶ 49 The officer went back to the boiler room and yelled for someone to come out. By that time, a second officer had joined him. The second officer also had a gun, but it was not drawn. They started banging on the steel door to the boiler room, telling someone inside to come out. She started gathering the children together and directing them to the back of the room. While gathering the children, she noticed that Sheila Brown, who was the administrator of the daycare and her boss, was also present in the room. Sheila was helping her gather the children. The officers continued yelling, and then she heard gunshots. She turned around after the first shot and she saw a gun "pointing and fire coming of the gun." That was when she huddled over the children. ¶ 50 The City called several witnesses to testify to the forensic evidence. Mark Peters was a forensic pathologist, and he testified as follows. He performed autopsies, including one on Barmore on August 25, 2009. His autopsy report concluded that Barmore died from three gunshot wounds to the back. He had a total of four gunshot wounds: the three in the back and one in the neck. When the body arrived, Barmore's wrists were handcuffed in front of his body. He noticed "stippling" near the neck wound, which indicated a close range shooting. He described stippling as abrasions that occur when a firearm is discharged close enough to a target to leave more than just a bullet hole. ¶ 51 Thomas Merchie was a veteran crime scene investigator for the Illinois State Police, and he testified as follows. He investigated the scene at the Church following Barmore's shooting. Based on his reconstruction and the stippling evidence, he believed Poole discharged his firearm within a few inches of Barmore's neck. Barmore's DNA was recovered near the ejection port of Poole's weapon, and this indicated to him that Barmore had his hands on Poole's weapon at some point. ¶ 52 Lance Martini, a private firearm examiner from San Diego, California, testified as follows. He had authored a report regarding Barmore's shooting. In writing his report, he reviewed witness depositions and statements, police reports, photographs, and Merchie's reconstruction report, and he investigated the scene of the shooting. ¶ 53 Martini specifically tested Poole's firearm on April 29, 2014, at a Rockford police department facility, over a period of one and a half to two hours. Ron Martinelli was also present for the testing. The first test he performed was a "distance determination" test. The distance determination was performed by using Poole's firearm with the same magazine and same ammunition type he used the day of the shooting. Martini then fired the weapon in increments of 6 inches, up to a maximum of 72 inches. After each shot, he reviewed the density and size of the gunshot residue pattern on the test material. 72 inches was the distance where the "unburned or partially burned gun power particles as well as the gaseous vapor" could not extend any further. ¶ 54 The purpose of the distance testing was to scientifically evaluate the distance from which Poole shot Barmore. Here, he observed stippling on Barmore through the autopsy photographs. Stippling was mechanical damage to the surface of the skin and could not be washed off. The distance tests were conducted to try to find a match for the stippling pattern. It was his opinion that Poole fired his weapon between three and nine inches from Barmore's neck. ¶ 55 Martini also performed an "induced malfunction" test. An examination of Poole's weapon following the shooting showed that an expended cartridge was found within the chamber of his firearm, which constituted a malfunction. The induced malfunction test was conducted by putting his hands on the firearm, behind the muzzle and behind the end of the barrel, and firing the weapon. After firing the weapon, he observed that the expended cartridge case was fully contained within the chamber of the firearm. This was consistent with Poole's firearm on the day of the shooting. It was his opinion that Barmore had his hands on Poole's firearm when he discharged it. ¶ 56 Martini also testified to a reconstruction of the gunshot wounds to Barmore's back. It was his opinion that, based on the wound path and the position of North, those gunshot wounds did not occur while Barmore was laying face down on the ground by the sink. ¶ 57 The City also called Ron Martinelli, a privately employed forensic consultant, and he testified as follows. He was familiar with the Barmore shooting on August 24, 2009. He authored a report on the shooting, for which he reviewed police reports, audio tapes, crime scene photographs and diagrams, the autopsy report, and witness depositions. He investigated the shooting scene on April 28 and 29, 2014, accompanied by Martini. He performed tests at the site, including pressure tests on the metal door to the boiler room. He also assisted Martini with experiments on Poole's firearm, including an induced malfunction test, in which they successfully induced a malfunction. He documented all tests performed in his report, prepared May 14, 2014. ¶ 58 Martinelli offered five opinions derived from his May 2014 report. He first opined that Officers Poole and North had reasonable suspicion, probable cause, and a right to contact, detain, investigate, and arrest Barmore. His second opinion was that the officers issued timely and appropriate commands to Barmore to submit to custody. His third opinion was that an exigent circumstance existed at the time the officers pursued Barmore. He based his third opinion on the police report that Barmore had been involved in a felony assault and may have been armed a knife. The officers also saw Barmore flee into the Church's daycare center. His fourth opinion was that Barmore was not considered a barricaded subject within the boiler room. And lastly, his fifth opinion was that the officers acted reasonably prior to the shooting incident and acted consistent with standards of care and training that police officers receive. ¶ 59 Martinelli also reviewed the Illinois State Police investigation report, which included DNA reports, fingerprint reports, officer and witness statements, and other reports. The State Police report indicated to him that Barmore had his hands on Poole's firearm based, in part, on Barmore's DNA being found in the injection port of Poole's firearm. Further, based on the induced malfunction test, he concluded that the Poole's firearm would only have malfunctioned the way it did if someone had their hand on the slide of the gun. ¶ 60 On cross-examination, Martinelli testified that his May 2014 report was initially prepared for a prior federal case between Barmore's estate and the City. He did not prepare an independent report for this case. ¶ 61 In questioning Martinelli about the foundation for his opinions derived from the May 2014 report, plaintiffs' counsel asked whether he had reviewed a report from March 2010 by Independent Assessment and Monitoring, LLP (IAM report).⁵ He answered yes. Counsel asked whether the IAM report made certain recommendations and directed Martinelli to that portion of the report. The court stopped that line of questioning, because that part of the report was about subsequent remedial measures, as already addressed in a motion in limine.⁶ Plaintiffs' counsel agreed that some of the IAM report contained subsequent remedial measures but argued that most of it did not. Rather, much of the report went into a "specific second-by-second review of this incident." The court rejected the argument and explained that Martinelli did not express any opinions on direct examination that were based on the IAM report, and that the report was a subsequent remedial measure. ¶ 62 Plaintiffs' counsel also asked whether he reviewed six opinions prepared by Andrew Scott⁷ (the Scott report) on behalf of the plaintiffs in the federal matter between Barmore's estate and the City. He answered yes; he had reviewed Scott's opinions, and he disagreed with them. The City made several objections as outside the scope, and the trial court overruled. Counsel then read several of the opinions from the Graham report, over objection. Martinelli found the opinions speculative and insufficiently forensic. After more objections, the court and parties held a sidebar. The court ultimately found that Martinelli identified that he had reviewed the Scott report, and that his opinions were based, in part, upon that review. Therefore, it would allow cross-examination about his disagreements with the report. ¶ 63 The court allowed Martinelli to respond to three out of six of Scott's opinions. Martinelli disagreed with Scott's first opinion that Barmore was a barricaded subject. He also disagreed with his second opinion that Poole should not have grabbed Barmore with his gun drawn and pointed at Barmore, and that this conduct was reckless and inconsistent with police practices and procedure. The court sustained an objection to Scott's third opinion, because it related to the City's supervision of the officers and was irrelevant. The court sustained an objection to Scott's fourth opinion, about whether the officers' use of deadly force was unreasonable, because it was outside the scope of his opinions on direct examination. Counsel did not advance his fifth opinion, stating that it was irrelevant to the case. Martinelli disagreed with Scott's sixth opinion, that North and Poole should not have entered the Church in pursuit of Barmore. ¶ 64 Martinelli affirmed that it was his opinion that Barmore grabbed Poole's gun. He agreed that Barmore's fingerprints were not found on Poole's weapon. He also agreed that he was not offering any opinion as to intentional or reckless infliction of emotional distress. ¶ 65 Plaintiffs' counsel also questioned Martinelli about an article he authored, which was referenced on his CV, entitled "Foot Pursuits: To Chase or Not to Chase?" (the Foot Pursuit article). Martinelli agreed that in the Foot Pursuit article, he opined that police foot pursuits can be emotionally charged and dangerous events. In such pursuits, police officers had to balance their obligation to enforce the law with their personal safety. He believed that officers sometimes became emotionally captivated by a chase and reacted instinctively. He also agreed that as an officer closes in on a suspect, he is reducing the "reactionary gap," that is, the ability to react defensively to a threat. The City's counsel made several objections as outside the scope. The court overruled the objection because thus far, the questions related to how Martinelli formed his opinions in this case. The court eventually sustained an objection as to whether Martinelli provided instructions in his article for what officers should do in a foot pursuit. It found the question cumulative with the opinions he already gave regarding foot pursuits.

4 North also refers to the closet as a boiler room later in his testimony, and the terms were used interchangeably.

5 Independent Assessment and Monitoring, LLP, was retained by the Rockford Police Department to investigate Barmore's shooting. The IAM report made various findings, assessments, and opinions related to the officers' conduct related to the shooting, which we detailed in a prior Rule 23 order. See City of Rockford v. Policemen's Benevolent & Protective Ass'n, Unit 6, 2016 IL App (2d) 150402-U, ¶¶ 29-40.

6 Counsel specifically directed Martinelli to the last five pages of the report, entitled "Summary of Recommendations." The report included 27 separate recommendations, including, for example, that the Rockford police department video record all statements in officer-involved shootings, require that officers wear protective vests, and evaluate its trainers on use of force.

7 Counsel began cross-examination referring to the opinions as those of Michael Graham. After asking about the sixth opinion, plaintiffs' counsel acknowledged he had been reading the report of the wrong expert, and that the opinions were not those of Graham but of another expert from the federal matter, Andrew Scott. The City moved for a mistrial, and the court held a sidebar. The court allowed plaintiffs' counsel to ask Martinelli questions about Andrew Scott, his CV, and his report. Martinelli agreed that he had reviewed Scott's report in the prior federal litigation. The court denied the motion for a mistrial, finding that counsel's mistake was not purposeful, but it made clear that Scott's report would not be admitted as substantive evidence. Cross-examination continued, and plaintiffs' counsel henceforth referred to the report as Scott's. For purposes of this disposition, we replace incorrect attributions to Graham with Scott.

¶ 66 D. Posttrial

¶ 67 At the end of the three-week trial, the jury returned its verdicts, and the trial court entered the verdicts on April 11, 2016. In relevant part, the jury found against Sheila and Marissa on count II for IIED. It also found against Marissa on count I for RIED. It found in favor of Sheila on count I, awarding her $25,000 but reduced the reward to $15,000 based on negligence attributable to her. On May 5, 2016, the court entered a post-trial settlement order between the City and nine minor and disabled plaintiffs, in the amount of $27,000 per plaintiff. Sheila, Melvin, and Marissa were not parties to the settlement. ¶ 68 Both parties filed post-trial motions. The City filed its initial post-trial motion on April 25, 2016, requesting, in relevant part, judgment notwithstanding the verdict (JNOV) and a new trial. Plaintiffs filed their motion on July 15, 2016, arguing, in relevant part, that the trial court erred in granting summary judgment for the City on various counts; in denying leave to amend their complaint; in permitting Martinelli and Martini to testify, because the City failed to comply with Rule 213; in denying them an opportunity to fully cross-examine Martinelli; and in allowing the City to argue that Marissa and Sheila Brown were contributorily negligent. ¶ 69 The trial court entered an order denying plaintiffs' motion on January 5, 2017. The court stated as follows. It had reviewed the motion, the response, and the reply, and it incorporated its findings and observations from its April 10, 2015, summary judgment order. Leave to amend was properly denied, because the motion was filed on the eve of trial, and the case had been ongoing since the original complaint was filed in federal district court in October 2009. Martinelli and Martini's testimony did not violate Rule 213, because plaintiffs never sent written interrogatories to the City. Cross-examination of Martinelli was allowed, its scope was within the discretion of the court, and no error occurred. The reports referenced during cross-examination were either subsequent remedial measures or beyond the scope of direct examination and thereby properly excluded. Finally, its ruling that the City's reckless conduct could be compared with plaintiffs' negligence was correct, and contributory negligence was not allowed on the intentional count. ¶ 70 The City filed its amended post-trial motion on July 22, 2016. It argued, in relevant part, that the court erred in denying summary judgment on count I, because mental or psychological injury could not constitute bodily harm. It also argued that the court should grant JNOV on count I against Sheila Brown. ¶ 71 The trial court denied the City's motion on July 5, 2017. The court stated that whether bodily harm occurred was a question of fact, and therefore denying summary judgment on count I was not error. The court continued that JNOV was a "very high" standard and, after a three-week jury trial with more than 50 witnesses, 80 exhibits, and over 2 days of deliberations, the court could not say that a contrary verdict in favor of Sheila Brown on count I could not stand. Accordingly, JNOV was denied. ¶ 72 Plaintiffs and the City both timely appealed. We consolidated the appeals.

¶ 73 II. ANALYSIS

¶ 74 In this consolidated appeal, both the City and plaintiffs argue that the trial court erred in its summary judgment order. Plaintiffs argue that the court erred in granting the City summary judgment on counts IV and V, and the City argues that it erred in denying it summary judgment on count I. ¶ 75 Plaintiffs raise several other arguments that the trial court erred, specifically that the court erred in denying its motion to amend the complaint; in permitting Martinelli and Martini to testify; in limiting cross-examination of Martinelli and Martini; and in allowing the City to argue Marissa's and Sheila's contributory negligence. The City's other argument is that the evidence was insufficient to support the jury verdict. We address each argument in turn.

¶ 76 A. Summary Judgment

¶ 77 Summary judgment is appropriate where the pleadings, depositions, admissions, and affidavits on file show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2016). We review the grant or denial of summary judgment de novo, and we view the facts in the light most favorable to the nonmoving party. Buffa v. Haideri, 362 Ill. App. 3d 532, 537 (2005). We may affirm summary judgment on any basis found in the record, regardless of whether the trial court relied on that basis or its reasoning was correct. Mitchell v. Village of Barrington, 2016 IL App (1st) 153094, ¶ 25.

¶ 78 1. Count IV - Negligent Retention

¶ 79 We first address plaintiffs' argument that the trial court erred in granting summary judgment for the City on count IV for negligent retention. In particular, plaintiffs argue that section 2-201 of the Tort Immunity Act (745 ILCS 10/2-201 (West 2016)) did not apply to the City, and therefore the trial court improperly concluded that the City was immune from liability for the negligent retention of Officers Poole and North. Plaintiffs stress that under section 2-201, immunity only applies if the act or omission was (1) discretionary and (2) involved a policy choice. See Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 341 (1998). ¶ 80 Plaintiffs concede that the decisions to hire and retain Officers Poole and North constituted discretionary acts, but they contest that the decisions were policy determinations. In support, they cite Valentino v. Village of South Chicago Heights, 575 F.3d 664, 679 (7th Cir. 2009), where the mayor's "one-time decision to fire one employee" did not amount to a judgment call between competing interests. Accordingly, Valentino held that the Tort Immunity Act did not immunize the Village. Id. Plaintiffs argue that the City did not present any evidence of competing interests that required a judgment call in hiring and retaining Officers North and Poole. ¶ 81 Further, plaintiffs argue that this case is analogous to Greene v. City of Chicago, 73 Ill. 2d 100, 108 (1978), where our supreme court explained that while a decision to implement a repair program was a determination of policy, carrying out the program was merely a ministerial act. They argue that here, the decision to grow the police force to implement a new policing strategy was a determination of policy, but carrying out the program was ministerial in nature. ¶ 82 The City responds that Mers, 279 Ill. App. 3d at 380, controls. It argues that in Mers, this court held that the decision to hire and retain a police officer was inherently discretionary and entitled to immunity under state law. ¶ 83 We reject plaintiffs' argument and hold that summary judgment was appropriate on count IV, because section 2-201 of the Tort Immunity Act applied. Construction of the Tort Immunity Act is a question of law, and the primary goal in construing a statute is to ascertain and give effect to the intent of the legislature. Murray v. Chicago Youth Center, 224 Ill. 2d 213, 228 (2007). Section 2-201 of the Tort Immunity Act provides that:

"Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused." 745 ILCS 10/2-201 (West 2016).

In addition, the City is not liable for an injury resulting from an act or omission of its employee where the employee is not liable, such as when section 2-201 is applicable. See 745 ILCS 10/2-109 (West 2016). ¶ 84 Plaintiffs are correct that section 2-201 requires that an employee must serve in either a position involving the determination of policy or the exercise of discretion, but that the act or omission must involve both the determination of policy and the exercise of discretion. Harinek, 181 Ill. 2d at 341. They are also correct that Mers only addressed whether the acts before it were discretionary, not whether they constituted policy determinations. Mers, 279 Ill. App. 3d at 380 (distinguishing between discretionary and ministerial acts, and holding that the hiring of police officers was a discretionary act). Nevertheless, the decision to hire and retain the officers in this case was both a determination of policy and an exercise of discretion. ¶ 85 Policy determinations are " 'those that require the governmental entity or employee to balance competing interests and to make a judgment call as to what solutions will best serve each of those interests.' " Ponto v. Levan, 2012 IL App (2d) 110355, ¶ 68 (quoting Harrison v. Hardin County Community Unit School District No. 1, 197 Ill. 2d 466, 472 (2001)). Illinois courts have found policy determinations in a wide range of situations. In Kevin's Towing, Inc. v. Thomas, Ill. App. 3d 540, 548 (2004), we detailed the following examples:

"A fire marshal's instruction to an individual to stand near a door during a fire drill was a policy decision because the marshal had to balance the various interests competing for the fire department's time and resources, including the interests of efficiency and safety, in planning and conducting the drill. [Citation omitted]. Similarly, a shop teacher's decision to remove a table saw's safety shield was a policy determination because the teacher was charged with balancing various interests that competed for the class's time and resources, including the interests of efficiency and safety, and he made a judgment call as to how best to perform his teaching duties. [Citation omitted.] Workers filling potholes were engaged in policy decisions because they allocated their time and resources among the various potholes to be repaired [citation omitted], and a principal's denial of a student's request to leave school early due to bad weather was a policy decision because it involved balancing the student's interest with the school's interest in an orderly dismissal." Id.

¶ 86 Here, the record demonstrates that the City had to consider Officers North's and Poole's use of force in their hiring and retention, including complaints of excessive force and prior uses of deadly force. In both hiring and retaining the officers, the City had to balance the competing interests of public safety—including the efficient apprehension of those who violate the law—against the safety of individual arrestees. It then exercised its discretion and made a judgment call in retaining these officers. Even if that decision were an abuse of discretion, section 2-201 immunizes that decision. See 745 ILCS 10/2-201 (West 2016) ("[A] public employee *** is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused." (Emphasis added.)). ¶ 87 This case is distinguishable from Greene, because here, the City was not simply carrying out a plan; it was actively balancing competing interests. Cf. Greene, 73 Ill. 2d at 108 (carrying out a public improvement plan was ministerial). This case is also distinguishable from Valentino. In Valentino, the mayor made a "one-time decision" to fire an employee, and the court could not identify any competing interests. Valentino, 575 F.3d at 679. Here, we have identified competing interests. Like a fire marshal balancing interests of efficiency and safety (Harinek, 181 Ill. 2d at 342), or a principal balancing the interests of one student with that of the student body (Harrison, 197 Ill. 2d at 474), the City made a judgment call when it balanced public safety against individuals' rights. Accordingly, section 2-201 applied, and summary judgment was appropriate on count IV.

¶ 88 2. Count V - Tortious Interference with Prospective Economic Advantage

¶ 89 Plaintiffs next argue that the court erred in granting summary judgment in favor of the City on count V. They argue that the evidence demonstrated that the officers entered the Church's private business space; the officers knew it was a daycare and place of business; they saw the children in the daycare; and they knew that they were likely to induce termination of the daycare relationship by their actions against Barmore. Plaintiffs also argue that they suffered real injury, as Church attendance dropped following the shooting, with parents telling Melvin that they were removing their children from the daycare because of the shooting. ¶ 90 The City responds that plaintiffs failed to produce evidence of a valid business relationship, that is, a contract between the Church and its members. They further argue that there was no evidence of the officers' requisite intent to interfere with prospective business. ¶ 91 We reject plaintiffs' argument and hold that summary judgment was appropriate. The elements of tortious interference with prospective business or economic advantage are: (1) the plaintiff's reasonable expectation of entering into a valid business agreement; (2) the defendant's knowledge of the plaintiff's business expectancy; (3) the defendant's purposeful interference with the plaintiff's business expectancy; and (4) damages resulting from the defendant's interference. See Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 484 (2003). Contrary to the City's argument, the tort does not require that plaintiffs had a valid contract. See Chicago's Pizza, Inc. v. Chicago's Pizza Franchise Ltd. USA, 384 Ill. App. 3d 849, 862 (2008). Rather, the interference with the business relationship itself creates the actionable tort. Id. ¶ 92 Here, the record supports that plaintiffs had a reasonable expectation of continued, future economic advantage in their daycare and Church services. The record also shows that as a result of the shooting, they lost business at the Church and daycare. Nevertheless, there is no evidence to support that the officers purposefully interfered with their business expectancies. There is no dispute that the officers were looking for Barmore on August 24, 2009, and that they pursued him into the Church because they were attempting to apprehend him for questioning in connection with an aggravated assault. The parties reasonably dispute the propriety of the officers' actions, but plaintiffs cannot seriously contend, and in fact do not argue, that the officers pursued and shot Barmore to purposefully induce daycare attendees to withdraw from daycare or Church members to leave the Church. There was simply no evidence of the officers' requisite intent, and therefore, the trial court correctly granted summary judgment for the City.

¶ 93 3. Count I - Reckless Infliction of Emotional Distress

¶ 94 The City also contends that the trial court erred in denying summary judgment on count I for RIED. The City argues that the court erred when it ruled that mental or psychological injury could satisfy the requirement that Marissa and Sheila suffered bodily harm. The City emphasizes that our supreme court, in Public Finance Corp. v. Davis, 66 Ill. 2d 85, 88-89 (1976), relied on section 46 of the second Restatement of Torts (the Restatement) (Restatement (Second) of Torts §46 (1965)), and adopted its comments and illustrations to determine the scope of intentional and reckless infliction of emotional distress. It argues that under section 46(2)(b) of the Restatement, plaintiffs were third-party bystanders, and thus they had to demonstrate bodily harm as a result of the officers' extreme and outrageous actions. Moreover, the City cautions that allowing a claim for emotional distress by a third person without a familial relationship to the victim is "virtually unprecedented." ¶ 95 Plaintiffs respond, in relevant part, that they were not bystanders. They stress that in Illinois, courts have only required three elements for RIED: the defendant's extreme and outrageous conduct; the defendant's knowledge of a high probability that such conduct will cause severe emotional distress; and the defendant actually caused the plaintiff severe emotional distress. See, e.g., McGrath v. Fahey, 126 Ill. 2d 78, 86 (1988). Nevertheless, they contend that if they were bystanders under section 46(2)(b) of the Restatement, they sufficiently pled that they sustained physical impairment resulting from their emotional distress. ¶ 96 We hold that summary judgment was properly denied on count I. Illinois recognizes the tort of reckless infliction of emotional distress. Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 20 (1992). The tort typically has three elements: (1) the defendant's conduct was extreme and outrageous; (2) the defendant knew that there was a high probability that his conduct would cause severe emotional distress; and (3) the conduct caused severe emotional distress. Id. The City is correct that our supreme court has relied upon the Restatement in understanding the scope of the tort. See Public Finance Corp., 66 Ill. 2d at 88-89. In Public Finance Corp., the supreme court approved of the Restatement's inclusion of recklessness in addition to intentional infliction of emotional distress. Id. at 89. The court then proceeded to review the comments in the Restatement to explain the elements of the tort. For example, the court reviewed section 46, comment D, when explaining that conduct must be extreme and outrageous; and section 46, comment J, when explaining what constituted severe emotional distress. Id. 89-90. Other Illinois courts have consistently turned to the Restatement for guidance on intentional and reckless infliction of emotional distress. See, e.g., Feltmeier v. Feltmeier, 207 Ill. 2d 263, 276-77 (2003); Pavlik v. Kornhaber, 326 Ill. App. 3d 731, 746 (2001) (citing the Restatement to support that a pattern and accumulation of acts can make conduct extreme and actionable). ¶ 97 Section 46 of the Restatement provides:

"(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress

(a) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, or

(b) to any other person who is present at the time, if such distress results in bodily harm." (Emphasis added.) Restatement (Second) of Torts, § 46(2)(b) (1965).

Cases in Illinois address the situation presented in section 46(1) of the Restatement, and the three elements of the tort are taken directly from that subsection. Section 46(2), if applied, would limit the tort when the outrageous and extreme conduct is not directed at the plaintiff. In such a "bystander" situation, a nonfamily member present at the time has to allege the additional element that emotional distress resulted in bodily harm. However, we have not found any IIED or RIED case that required bodily harm in addition to severe emotional distress as a necessary element for recovery. ¶ 98 Nevertheless, we need not decide whether bodily harm is essential in this case, because regardless, the record supports that plaintiffs experienced sufficient bodily harm to create a genuine issue of fact for the jury. We note that our supreme court has discussed physical or bodily harm in relation to NIED in Corgan v. Muehling, 143 Ill. 2d 296 (1991), and we find its discussion of physical harm instructive here. In Corgan, the court explained why past courts had required proof of physical symptoms to support an NIED claim. Id. at 309. The court identified three primary concerns: (1) that emotional distress was inherently difficult to prove, and physical harm provided helpful, objective evidence; (2) emotional distress, absent physical harm, was too easily feigned or imagined; and (3) when the defendant's conduct was merely negligent, without intent to harm, his fault is not so great to require compensation for purely mental disturbance. Id. at 309. However, Corgan explained that scientific research has provided a more detailed understanding of the human mind, including that traumatic stimuli often result in both primary and secondary responses. Id. at 310 (citing Leong v. Takasaki, 55 Haw. 398 (1974)). Primary responses to traumatic stimuli were "immediate, reactive and instinctive." Id. They were exemplified by emotional responses such as fear, anger, grief, and shock, and they were generally short in duration and subjective in nature. Id. ¶ 99 The court continued that secondary responses were longer lasting and were caused by an inability to cope with a traumatic event. Id. Secondary responses came in three forms: the anxiety reaction, including nervousness, weight loss, headaches, backaches, stomach pains, irritability, and indecision; the conversion reaction, which converts consciously disowned impulses into paralysis, loss of sight or hearing, muscle spasms, and other psychological symptoms; and a hypochondrias reaction, where the person becomes overly concerned with health and fear of illness. Id. at 311. In the court's view, these secondary responses were physical manifestations of injury resulting from the traumatic stimuli. Id. ¶ 100 The court specifically linked its discussion of secondary responses to traumatic stimuli with IIED, explaining that where these secondary responses are found, damages could be established with a sense of objectivity. Id. Nevertheless, a lack of these physical symptoms did not bar recovery under IIED, because expert witnesses such as psychiatrists, psychologists, and social workers were "fully capable of providing the jury with an analysis of a plaintiff's emotional injuries." Id. The emotional distress of the primary responses to traumatic stimuli—such as fear, anger, grief, and shock—were no less real than the physical manifestations of the secondary response. Id. ¶ 101 Corgan ultimately held that the direct victim of NIED did not need to allege these secondary responses, i.e., physical injuries, to support damages for emotional distress. Id. at 312. While Corgan did not address bystanders directly, we find its discussion of what constitutes physical symptoms instructive for our case. ¶ 102 Illinois courts continue to recognize that physical harm resulting from emotional distress includes illness, both physical and psychological. See Borcia v. Hatyina, 2015 IL App (2d) 140559, ¶ 45 (medical and psychological treatment and counseling constituted injuries to support NIED claim); see also Schweihs, 2015 IL App 140683, ¶ 21 (citing Rickey v. Chicago Transit Authority, 98 Ill. 2d 546, 555 (1983)); Rekosh v. Parks, 316 Ill. App. 3d 58, 63 (2000) (bystander must show physical injury or illness resulting from emotional distress). On this matter, Illinois' law is consistent with the Restatement's position. In the context of negligently caused emotional disturbance, section 436A⁸ of the Restatement explains the difference between bodily harm and emotional disturbance. In particular, section 436A, comment c, provides:

"The rule stated in this Section applies to all forms of emotional disturbance, including temporary fright, nervous shock, nausea, grief, rage, and humiliation. The fact that these are accompanied by transitory, non-recurring physical phenomena *** such as dizziness [and] vomiting *** does not make the actor liable where such phenomena are in themselves inconsequential and do not amount to any substantial bodily harm. On the other hand, long continued nausea or headaches may amount to physical illness, which is bodily harm; and even long continued mental disturbance, as for example in the case of repeated hysterical attacks, or mental aberration, may be classified by the courts as

illness, notwithstanding their mental character." (Emphasis added.) Restatement (Second) of Torts § 436A, cmt. c. (1965).

Just as our supreme court recognized in Corgan, the Restatement recognizes that secondary responses to traumatic stimuli, such as prolonged nervousness, headaches, and stomach pains, may constitute physical symptoms of emotional distress, i.e., bodily harm. Accordingly, we believe mental illness and prolonged symptoms resulting from emotional distress, such as nausea and headaches, may satisfy the physical or bodily harm requirement in Illinois. ¶ 103 Here, the record supports that both Sheila and Marissa received counseling following the shooting. Marissa was prescribed Xanax and experienced anxiety and "different sicknesses." In particular, she testified to anxiety attacks, difficulty breathing, and flashbacks. Sheila saw her physician following the shooting, who provided her documentation that she was unable to work. Sheila did not return to work for approximately six months. She was prescribed Paxil, Trazodone, and Xanax, and she testified to bouts of crying and memory issues. Plaintiffs thus created a genuine issue of fact for the jury as to whether they experienced physical or bodily harm as a result of the officers' actions. Accordingly, the trial court properly denied summary judgment on count I.

8 Section 436A provides that when an "actor's conduct is negligent as creating a risk of causing either bodily harm or emotional disturbance to another," but only emotional disturbance results without bodily harm, there is no liability for the emotional disturbance. Restatement (Second) of Torts § 436A (1965).

¶ 104 B. Leave to Amend

¶ 105 Plaintiffs argue that the trial court erred in denying leave to amend their complaint. The amended complaint sought to add a sixth count for "generalized" willful and wanton misconduct. They argue that this amendment would not have prejudiced the City, as no additional discovery was necessary to support the claim. On the other hand, plaintiffs argue they were prejudiced, because a straight willful and wanton count, unrelated to infliction of emotional distress, would have allowed them to argue intentional conduct and thus avoid the City's arguments regarding contributory negligence. ¶ 106 Whether to allow a party to amend the complaint is a decision within the discretion of the trial court, and we will not reverse absent an abuse of that discretion. In re Estate of Yanni, 2015 IL App (2d) 150108, ¶ 30 n.1. Generally, leave to amend a complaint is liberally granted. Goldberg v. Brooks, 409 Ill. App. 3d 106, 113 (2011). Nevertheless, the right to amend pleadings is not absolute and unlimited (id.), and the timeliness of the amendment may be considered by the trial court (Trans World Airlines, Inc. v. Martin Automatic, Inc., 215 Ill. App. 3d 622, 627 (1991)). In exercising its discretion, the trial court should consider whether the proposed amendment would cure a defective pleading; whether the other parties would be prejudiced or surprised by the amendment; whether the plaintiff had previous opportunities to amend the complaint; and whether the amendment was timely. Addison v. Distinctive Homes, Ltd., 359 Ill. App. 3d 997, 1003-04 (2005). ¶ 107 Here, plaintiffs moved to amend the complaint on March 8, 2016, the first day of trial. Generally, a trial court does not abuse its discretion when it denies leave to amend the complaint on the eve of trial when the party seeking leave had prior knowledge of the matters set forth. Trident Industrial Product Corp. v. American National Bank & Trust Co., N.A., 149 Ill. App. 3d 857, 866 (1986). The trial court rightly explained that plaintiffs had prior opportunities to amend the complaint, as trial had been set since July 5, 2015, and discovery had been closed since December 31, 2015. It found the amendment untimely. The trial court was also concerned that the new count would entail more motion practice and take away valuable time from the jury trial. ¶ 108 Furthermore, we do not believe that plaintiffs were prejudiced by the trial court's denial. While we recognize that contributory negligence is relevant to reckless conduct but not intentional conduct (see, infra, part D), the jury rendered a verdict on both intentional and reckless infliction of emotional distress, with the former not subject to an offset by contributory negligence. As the trial court noted, plaintiffs had ample opportunity to bring a willful and wanton misconduct count before trial started. Moreover, plaintiffs knew of the matters alleged in the amended complaint prior to trial, as they stated in their motion for leave to amend that "[a]ll of the issues and allegations contained have been addressed in the course of discovery including *** the alleged willful and wanton conduct of the City and the damages resulting therefrom." Accordingly, the trial court did not abuse it discretion when denying plaintiffs leave to amend their complaint.

¶ 109 C. Martinelli's and Martini's Testimonies

¶ 110 Plaintiffs advance two arguments that the trial court erred in relation to the City's witnesses at trial: (1) the City violated Rule 213(f); and (2) the trial court improperly limited the scope of cross-examination. Plaintiffs first argue that the trial court erred in not barring Martinelli's and Martini's testimonies at trial, because the City did not comply with its Rule 213(f)(3) disclosure obligations. Specifically, they argue that the City did not disclose the subject matter on which they would testify, their conclusions and bases for the conclusions, their qualifications, or any reports they prepared. They continue that the trial court essentially "found that it was the obligation of the plaintiffs to find out what the defendant intended to disclose as the experts' testimony." ¶ 111 We reject this argument. Admission of evidence pursuant to Rule 213 is within the sound discretion of the trial court, and we will not reverse absent an abuse of that discretion. Sullivan v. Edward Hospital, 209 Ill. 2d 100, 109 (2004). Importantly, we agree with the City that to invoke Rule 213(f) obligations, plaintiffs had to issue written interrogatories. Rule 213(f) specifically provides that "[u]pon written interrogatory, a party *** must provide the following information." (Emphasis added.) Ill. S. Ct. R. 213(f) (eff. Jan. 1, 2007). Here, plaintiffs did not issue written interrogatories. Nevertheless, the City disclosed Martinelli and Martini in their list of trial witnesses as Rule 213(f)(3) witnesses in September 2015 and generally summarized their expected testimonies. Under these facts, the trial court did not abuse its discretion in allowing these witnesses to testify at trial. ¶ 112 We turn next to plaintiffs' argument that the trial court impermissibly limited the scope of Martinelli's cross-examination. We first note that in plaintiffs' briefs, they have not cited to the record for any portion of Martinelli's actual cross-examination. Rather, they simply conclude that the trial court improperly limited the scope of his cross-examination on the Scott report,⁹ the IAM report, and Martinelli's Foot Pursuit article. Argument without sufficient citation to the record is forfeited. See Ill. S. Ct. R. 347(h)(7) (eff. Jan. 1, 2016). The appellate court is not a repository into which an appellant may offload the burden of argument and research. Velocity Investments, LLC v. Alston, 397 Ill. App. 3d 296, 297 (2010). ¶ 113 Nevertheless, our review of the record demonstrates that the trial court did not abuse its discretion in limiting the scope of cross-examination. The scope of cross-examination is a matter within the sound discretion of the trial court. Stapleton ex rel. Clark v. Moore, 403 Ill. App. 3d 147, 165 (2010). Generally, cross-examination is limited to the subject matter of direct examination and matters affecting the witness's credibility. Bauer ex rel. Bauer v. Memorial Hospital, 377 Ill. App. 3d 895, 915 (2007). We will not disturb the trial court's discretion on the scope of cross-examination absent "a clear abuse of that discretion resulting in manifest prejudice to the party claiming error." McDonnell v. McPartlin, 192 Ill. 2d 505, 533 (2000). ¶ 114 Here, the trial court permitted extensive cross-examination on the Scott report and the Foot Pursuit article. In cross-examining Martinelli about how he formed his opinions in his May 2014 report, plaintiffs' counsel read five out of six opinions from the Scott report to Martinelli, to ask whether he agreed with them. The court allowed Martinelli to respond to three of those opinions. It sustained objections to Martinelli's opinion on the City's supervision of Officers Poole and North as irrelevant, and to his opinion on whether the officers' use of deadly force was unreasonable as outside the scope of direct examination. The court did not abuse its discretion on the Scott report, because the City's supervision of the officers was not at issue, and Martinelli never gave an opinion on direct examination about the officers' use of force against Barmore. ¶ 115 Plaintiffs' counsel also asked Martinelli several questions about the Foot Pursuit article he authored. The court allowed him to answer questions about whether police foot pursuits were often emotionally charged and dangerous; whether officers could react instinctively in such pursuits; and whether a pursuit closed the "reactionary gap," limiting an officer's ability to respond to a threat. Only when counsel attempted to ask whether Martinelli's article provided instructions to officers in a foot pursuit did the court sustain an objection, finding the question cumulative with the opinions already expressed. ¶ 116 We find no abuse of discretion in limiting cross-examination of the Foot Pursuit article as the trial court did. The relevant subject matter of direct examination was Martinelli's opinions of what happened in this case, based on his May 2014 report. The Foot Pursuit article was merely a publication on his CV, and Martinelli never testified that he relied on it in drafting his May 2014 report or reaching his opinions in this case. His opinions were based primarily on the specific materials—police reports, the autopsy report, and witness depositions—related to Barmore's shooting. Counsel cross-examined Martinelli extensively, including on his opinions based on his May 2014 report. Nevertheless, the court allowed several questions about the Foot Pursuit article and only limited cross-examination upon counsel asking about instructions for officers in a foot pursuit. This was within the court's discretion. ¶ 117 Finally, the court did not abuse its discretion in limiting cross-examination of the IAM report. Plaintiffs' counsel sought to ask Martinelli about the IAM report's recommendations that it made to the Rockford police department, following Barmore's shooting. The trial court found that that part of the IAM report was a subsequent remedial measure, and plaintiffs' counsel agreed, although he argued that the rest of the report was not. The court further clarified that Martinelli did not express any opinions on direct examination that were based on the IAM report. This ruling was within the discretion of the court, and nothing in the record demonstrates that Martinelli relied on the IAM report to form his conclusions on direct examination. Moreover, to the extent that the IAM report detailed the facts of Barmore's shooting, plaintiffs extensively cross-examined all of the City's witnesses regarding their testimony of what happened on August 24, 2009, including Officers North and Poole.

9 In their brief, plaintiffs reference the Graham report. However, as we explained in the background, supra, plaintiffs did not cross-examine Martinelli on Graham's report; they cross-examined him on Scott's.

¶ 118 D. Contributory Negligence

¶ 119 Plaintiffs next argue that the trial court erred by allowing the City to argue that Sheila's and Marissa's contributory negligence caused or contributed to their injuries. They argue that the standard of care applicable in this case was willful and wanton misconduct, and therefore the court should not have permitted the City to raise a defense based on a lower standard of care, that is, negligence.¹⁰ In support, plaintiffs cite to Burke v. 12 Rothschild's Liquor Mart, Inc., 148 Ill. 2d 429 (1992), and to the dissent in Poole v. City of Rolling Meadows, 167 Ill. 2d 41 (1995), both of which discussed the qualitative difference between willful and wanton misconduct and ordinary negligence. ¶ 120 The City responds that the majority in Poole held that damages resulting from willful and wanton misconduct, when such misconduct is reckless but not intentional, may be offset by the party's contributory negligence. ¶ 121 We reject plaintiffs' argument, because the City is correct that the Poole majority controls. In Poole, our supreme court discussed Burke, noting that Burke held that there was a qualitative difference between simple negligence and willful and wanton misconduct. Poole, 167 Ill. 2d at 47 (citing Burke, 148 Ill. 2d at 451-52)). However, the Poole court did not believe Burke dictated the outcome where the willful and wanton misconduct was simply reckless and not intentional. Id. at 47-48. Poole approvingly cited the plurality opinion in Ziarko v. Soo Line R.R., 161 Ill. 2d 267, 276 (1994), which stated that Burke had not considered the "dual characteristics" of willful and wanton misconduct. Poole ultimately held that a plaintiff's contributory negligence could be compared with a defendant's willful and wanton misconduct, where the defendant's conduct was reckless but not where the defendant's conduct was intentional. Poole, 167 Ill. 2d at 48. While Justice Nickels disagreed and argued in his dissent that all willful and wanton misconduct is qualitatively different than ordinary negligence (id. at 50-52 (Nickels, J., dissenting)), we are bound to follow the Illinois Supreme Court's majority opinions, not its dissents. In re Marriage of Kuhn, 221 Ill. App. 3d 1, 3 (1991) ("[O]nly the supreme court can overrule or modify its opinions, and we are bound to follow the supreme court's decisions."). ¶ 122 Here, the jury offset Sheila's damages on count I for reckless infliction of emotional distress by 40 percent, due to her contributory negligence. Per Poole, Sheila's damages for the officers' reckless conduct could be offset by her contributory negligence. No other verdicts mentioned contributory negligence; the jury simply found in favor of the City and against Melvin, Sheila, and Marissa on all other counts. Moreover, a review of the jury instructions shows that the City raised the defense of contributory negligence on count I for RIED but not on count II for IIED. Accordingly, we find no error.

10 Here, the jury offset Sheila's damages on count II for reckless infliction of emotional distress by 40 percent, due to her contributory negligence. The verdicts for all other counts related to Sheila, Marissa, and Melvin, did not specify any contributory negligence; the jury simply found in favor of the City. --------

¶ 123 E. Judgment Notwithstanding the Verdict

¶ 124 The City argues that the trial court erred in denying JNOV on count I, because the evidence was insufficient to support reckless infliction of emotional distress. The City argues that the testimony at trial established that Officers North and Poole were legally justified in shooting Barmore. They cite Peters' testimony that he observed stippling on Barmore's neck, which indicated a close quarters gunshot, and they cite Merchie and Martini's testimony that the forensic evidence matched the officers' account of events. The officers directed Sheila to move the children away, which was consistent with a regard for her safety. Further, the jury found against Marissa, which indicated that they did not believe her account of the shooting. ¶ 125 The City continues that the jury was instructed that if they found that the officers acted in self-defense, they should find in favor of the City on counts I and II. The City contends that because the jury found against all plaintiffs on count II and against Marissa on count I, they must have found that the officers acted in self-defense. Finally, the City argues that firing a weapon in self-defense cannot constitute extreme and outrageous conduct. It contends that the evidence, even when viewed in the light most favorable to plaintiffs, does not support a reckless disregard for plaintiffs' safety. ¶ 126 We reject the City's argument and hold that the evidence was sufficient to support the jury's verdict. We review a denial of JNOV de novo. Bruntjen v. Bethalto Pizza, LLC, 2014 IL App (5th) 120245, ¶ 32. JNOV should be granted only where all the evidence and inferences drawn therefrom, viewed in the light most favorable to the nonmoving party, "so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand." Thornton v. Garcini, 382 Ill. App. 3d 813, 817 (2008). JNOV is not appropriate where reasonable minds might draw different inferences or conclusions from the facts. McClure v. Owens Fiberglas Corp., 188 Ill. 2 102, 132 (1999). On a motion for JNOV, we may not reweigh the evidence, make credibility determinations, or substitute our opinion for that of the jury's. See Thornton, 382 Ill. App. 3d at 817. ¶ 127 The City's argument rests on the legal justification of the officers' actions, in particular that they acted in self-defense and thus could not have recklessly disregarded Sheila's safety. The City is correct that the testimony of its witnesses tended to support its account that the officers acted in self-defense. Many offered opinions that the officers' account of the shooting was correct. Nevertheless, the jury also heard different opinions and accounts of the shooting, and it was for the jury to weigh the evidence, resolve conflicts in the evidence, and assess credibility. ¶ 128 The City also stresses that the jury denied recovery on count I to Marissa, who, unlike Sheila, testified to seeing Barmore exit the boiler room with his hands up and denying that he lunged at Poole or grabbed his gun. It extrapolates from Marissa's verdict that the jury must have accepted the theory that the officers acted in self-defense. ¶ 129 This argument is flawed. First, RIED has several elements that plaintiffs had to prove, such as severe emotional distress. Specifically, the jury was instructed that if plaintiffs failed to show (1) reckless conduct, (2) injury, and (3) proximate cause, they should find for the City. In addition, the City raised several defenses, any of which, if proven, could preclude recovery. Not only did the City raise the affirmative defense that the officers' use of force was legally justified, but they also raised the defense of contributory negligence. The jury was instructed that if they found Sheila or Marissa's contributory negligence was greater than 50 percent, they should find for the City. Here, the jury found that Sheila was 40 percent at fault, and reduced her damages accordingly. We do not know whether the jury found Marissa contributorily negligent, although it was possible that they found she was greater than 50 percent responsible for her injuries. The jury may also have found that Marissa did not meet one of the essential elements of RIED, such as experiencing severe emotional distress. Absent a special interrogatory to that effect, we simply do not know. ¶ 130 On the other hand, the jury must not have found that the officers were legally justified in shooting Barmore, because they did find for Sheila on count I. As the trial court aptly observed, this trial spanned three weeks with more than 50 witnesses and 80 exhibits. The jury heard that Barmore lunged at Poole and grabbed his gun; they also heard that he complied with the officers' commands and exited the boiler room with his hands in the air. While Poole testified that Barmore lunged and grabbed his gun after the officers swung the door open to the boiler room, North testified that Barmore exited slowly, that Poole first reached to grab him, and that he did not see a weapon in Barmore's hands. Moreover, the evidence is undisputed that this was a fatal shooting in the presence of children and workers in an enclosed daycare facility. Given the extensive testimony in this case, reasonable minds can disagree on whether the officers acted to safeguard themselves and others in their pursuit of Barmore or whether they consciously disregarded the safety of others when they fired their weapons inside the daycare. Because reasonable minds can disagree, we will not disturb the verdict, and the trial court properly denied JNOV.

¶ 131 III. CONCLUSION

¶ 132 For the foregoing reasons, the judgment of the Winnebago County circuit court is affirmed. ¶ 133 Affirmed.