Leake v. Johnson

GRAEFF, J. This appeal involves litigation arising from the death of Dondi Johnson, Sr., after he was arrested for public urination. Appellees, and cross-appellants, Mr. Johnson’s estate and his two sons, 1 filed a wrongful death and survivorship action in the Circuit Court for Baltimore City against appellants, Officers Sendy Ferdinand, Michael Riser, and Nicole Leake. A jury found in favor of appellees, and the circuit court entered judgment in the amount of $416,500. Both parties appeal from the order of the Circuit Court for Baltimore City.

Appellants present two questions for our review, 2 and appellees present six questions. 3 We have consolidated and reworded the questions presented as follows: ³⁹⁰ 1. Did the circuit court properly deny the officers’ motions for judgment notwithstanding the verdict? 2. Did the circuit court err in ruling, pursuant to the limitation of liability in the Local Government Tort Claims Act, that the case involved three individual claims and one occurrence? For the reasons set forth below, we shall answer both questions in the affirmative, and therefore, we will affirm in part, and reverse in part, the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND On October 27, 2008, appellees filed a Complaint in the Circuit Court for Baltimore City, naming Officers Sendy Ferdinand, Nicole Leake, and Michael Riser as defendants. In their Complaint, appellees raised multiple claims, including battery, negligence, gross negligence, and two counts of wrongful death. They asserted that Mr. Johnson was arrested for public urination, handcuffed, and placed into a police van, where appellants “maliciously failed to belt [Mr. Johnson] into the paddy wagon/police van’s seat so that he was subject to being violently thrown around the back of the vehicle as the Defendant Leake drove in an aggressive fashion, taking turns ³⁹¹ so as to injure [Mr. Johnson] who was helplessly cuffed.” The Complaint further stated: After having inflicted permanent, serious and life threatening injuries to [Mr. Johnson], these Defendants made no attempts whatsoever to administer first aid or medical care. Specifically, notwithstanding [Mr. Johnson’s] complaints of numbness and an inability to move, these Defendants failed to immobilize [Mr. Johnson’s] neck, failed to obtain emergency medical assistance, and simply transported [Mr. Johnson] from the back of the paddy wagon/police van to another police vehicle, unsecured and without adequate stabilization, after he had sustained significant injury.

Thereafter, they drove him, unsecured and unstabilized, to the hospital. On December 8, 2008, Officer Leake filed an answer to the complaint. In her answer, she generally denied liability and asserted a number of affirmative defenses. She claimed that her “allegedly wrongful acts were justified and privileged”; she was “immune from liability”; and she “acted reasonably and with good faith belief that [her] actions were lawful and proper.” She further asserted that “[t]he injuries or damages complained of resulted from acts or omissions of others for which [she] cannot be held legally responsible” and that “[a]ny damages that may be recovered are limited by law.” On January 9, 2009, Officers Riser and Ferdinand filed answers to the complaint.

They asserted, among other things, that as members of the Baltimore City Police Department (the “Department”), they were “entitled to public official immunity.” The officers stated that “[t]he touching of the Plaintiff by the Defendant as alleged in the complaint did not occur.” Each officer stated that he “acted reasonably under the circumstances and in good faith.” Each officer also asserted that “Plaintiff has failed to comply with the required notice provisions of the Local Government Tort Claims Act,” and that “Plaintiffs’ claim exceeds the cap on damages under the LGTCA.” ³⁹² Trial commenced on March 25, 2010. Charles J. Key, a former member of the Department, testified as an expert in police policies and procedures. When he worked at the Department, Mr. Key trained officers regarding the use of legal force, and he wrote the General Order regarding the use of force. Mr. Key testified that “[a] General Order is a mandate from the agency that a police officer will act in certain circumstances or situations in a specific way.

It mandates their conduct.” The parties stipulated that General Order K14, which deals with persons in police custody, was related to the case. General Order K-14 states: Whenever a person is taken into custody, ensure the safety of the arrestee and ensure medical treatment for a prisoner is obtained when necessary at the nearest emergency medical facility. [W]henever an arrestee is transported in a police vehicle ensure ... [t]he arrestee is secured with seat restraint belts provided. This procedure should be evaluated on an individual basis so not to place oneself in any danger. Mr. Key testified that officers transporting a prisoner “have the responsibility of ensuring the safety and well-being of the individual, providing medical care or an access to medical care if necessary.

And then the transporting officer has the additional responsibility of seatbelting the individual in.” The only exception to the requirement of belting an arrestee with a seatbelt is officer safety. Mr. Key explained that this exception applies in circumstances where the officer reasonably believes he or she could be placed in danger. Mr. Key also testified about the term “rough ride.” It is a police term for “an unsanctioned technique” where the driver of a prisoner transport vehicle “would drive in such a manner that caused injury or pain to the individual in the back of the wagon.” ³⁹³ Baltimore City police officers are trained as “first responders.” Mr. Key explained that a “[f]irst responder is an individual that’s trained to a level in first aid that will allow them to give first aid to people that are injured,” and that, upon arriving on the scene of an injury, they have a duty “to assess the injury of the individual and provide appropriate first aid for that specific injury until the arrival of medical personnel.” General Order K-14 states that, “upon arresting a person who is ill or seriously injured,” an officer should “administer first aid.” If the first aid that is required is beyond the skill or ability of a first responder, then the officer should “[stabilize [the arrestee] to the point that their training would allow them and then call for an ambulance.” Order K-14 also mandates that the officer write a report regarding the injury. Officer Leake testified that, on November 23, 2005, she received a call to transport an arrestee from the intersection of Pimlico Road and Loyola Southway in Baltimore City.

She picked up Mr. Johnson between 4:00 p.m. and 6:00 p.m. His hands were cuffed behind his back. The van she drove had a door in the back and hard plastic benches on both sides, facing each other. Mr. Johnson stepped into the van himself and did not threaten any of the officers.

Neither she, nor the other two officers, put a seatbelt on Mr. Johnson. While transporting Mr. Johnson, Officer Leake heard several bangs from the back of the van. At some point during the trip, Mr. Johnson moved toward the plexiglass divider at the front of the van and was “screaming at [Officer Leake] to get him to the bathroom.” She decided to take Mr. Johnson to the Northwest District to use the restroom, and she told the arresting officers, Ferdinand and Riser, to follow her to the District. When she arrived at the District and opened the back door of the van, Mr. Johnson was lying on the floor of the van and could not move.

Officer Leake told the other officers to take Mr. Johnson out of the van. She did not call for medical assistance because Mr. Johnson did not ask for it, and she thought he was lying because “he was banging the whole route in the wagon and ³⁹⁴ yelling at the same time to get him to the bathroom.” After Officers Ferdinand and Riser removed Mr. Johnson from the back of the van, Officer Leake got back into the van and drove to pick up another arrestee. She never wrote an incident report as required by Order K14. ’ During cross-examination, Officer Leake testified that she did not put a seatbelt on Mr. Johnson because he had been arrested for public urination, and Mr. Johnson repeatedly stated that he needed to go to the bathroom. She testified: “I did not seatbelt him in because I acting in good faith felt if I seatbelted him in and his bladder being below his waist would cause more harm to him since he had to go to the bathroom and expressed that to me on more than one occasion.” She denied giving Mr. Johnson a “rough ride.” Officer Leake told the Internal Investigations Division that it took her approximately three minutes to drive from the arrest scene to the police station.

After driving the route multiple times, however, Officer Leake acknowledged that the route takes eight to ten minutes, and to drive it in three to five minutes would require driving in excess of the speed limit. Dr. Morris Marc Soriano, an expert in neurosurgery with special emphasis on the cervical spine, testified that he had reviewed Mr. Johnson’s medical records. When Mr. Johnson arrived at Sinai Hospital, a tube was placed in Mr. Johnson’s bladder, and there was no evidence of urine in his bladder. Mr. Johnson was diagnosed as a quadriplegic upon arrival “due to fractures of the bones [at] C-4 and 5” and “almost complete subluxation or dislocation of one bone forward on another bone.” Dr. Soriano opined that this injury was caused by a “high amount of force, applied to his head and neck, directly down on his head.

And a force such that it caused him to snap his head forward, bringing his chin down towards his chest, and to rotate ... his head to the right.” He stated: “Mr. Johnson sustained a [hyperflexion], tipping his head severely forward with a high degree of force and acceleration, in combination with pressure applied to the top of his head going down through the spine.” Dr. Soriano opined ³⁹⁵ that the immediate effect of the accident in the van “was at least partial paralysis.” He noted that there was testimony from one of the officers that Mr. Johnson’s body moved at some point during the transfer from the van to the police car, which Dr. Soriano stated “sort of tells you that there may have still been, or there likely was, still some function in the spinal cord at the immediate time of the fracture.” He concluded: “I think he had a very severe spinal cord injury, but still possibly or probably had some function as of the time that they were pulling him out of the van.” He opined that Officers Ferdinand and Riser likely exacerbated Mr. Johnson’s injury when they carried him to their patrol car. Although Mr. Johnson was suffering from paralysis, he was “capable of experiencing conscious pain.” At the hospital, he complained of “10 out of 10 pain” and reported only partial relief when given morphine. Mr. Johnson’s record indicated that he told his doctor “ ‘that he was handcuffed and the wagon made a sharp turn, [he] fell, hitting face first and [heard] a pop and blacked out.’ ” Dr. Soriano testified regarding the care Mr. Johnson received at the hospital. He underwent surgery to try to reduce the fracture in his neck.

Due to Mr. Johnson’s paralysis, he was unable to bring fluids out of his lungs by coughing, and therefore, nurses had to suction the fluids out of his lungs with “a modified percutaneous tracheotomy” to try to prevent Mr. Johnson from developing pneumonia. Mr. Johnson also required an “inferior vena cava filter placement” to prevent blood clots that may have formed in his legs from reaching his heart or lungs. A feeding tube was placed in his stomach. Mr. Johnson died in the hospital on December 7, 2005, two weeks after his arrest.

His lungs filled up with fluid, and he died of pneumonia. Dr. Soriano opined that Mr. Johnson would have had a normal life expectancy in the absence of his injury after his arrest. Officer Michael Riser testified that, on November 23, 2005, he arrested Mr. Johnson for public urination. When Officer Leake arrived to pick up Mr. Johnson, Officer Riser put flex ³⁹⁶ cuffs on Mr. Johnson.

Mr. Johnson got into the back of the van without assistance. He obeyed the officers’ commands, and he did not threaten any of the officers or act violently. After Officer Riser and Officer Ferdinand left the scene of the arrest, they received a call from Officer Leake that she was taking Mr. Johnson to the Northwest District. When Officer Riser arrived at the Northwest District, Officer Leake told him: “Get him out of my wagon.” Mr. Johnson stated: “[T]he bitch was driving like an asshole, I fell and I can’t move.” Mr. Johnson was lying on the floor of the back of the van.

Officer Riser asked Mr. Johnson to get up, but he replied that he could not move. Officer Riser was trained as a first responder, and he had training in dealing with neck injuries. As a result of that training, as well as his experience responding to car accidents, he knew that “if someone has a suspected neck injury, the first thing you do is stabilize that patient,” “you don’t move that patient.” Officer Riser went into the van and used his flashlight to check Mr. Johnson for injuries. Mr. Johnson had not urinated on himself.

Officer Riser got on the back step, reached under Mr. Johnson’s arms, and picked him up. Officer Riser did not stabilize Mr. Johnson’s neck prior to moving him. Mr. Johnson felt like dead weight and did not move his legs. Officer Ferdinand, who also had gone into the van, grabbed Mr. Johnson’s legs, and they carried Mr. Johnson out of the van and put him in the back of the police car.

Officer Riser put a seatbelt on Mr. Johnson, for Mr. Johnson’s safety and because Order K 14 required him to do so. Officers Riser and Ferdinand then took Mr. Johnson to Sinai Hospital. Officer Riser agreed that, “by not calling an ambulance” and not immobilizing Mr. Johnson’s neck, he violated Order K14. He also did not write an injury report for Mr. Johnson.

Officer Leake did not indicate that she believed Mr. Johnson was injured, and Officer Riser did not believe Mr. Johnson’s statement that he was injured. Officer Riser asked Mr. Johnson if he wanted “a medic,” or if he wanted the officers to ³⁹⁷ take him to the hospital. Mr. Johnson replied: “Just take me to the hospital.” Officer Riser testified that a prisoner faking an injury usually asks to be taken to the hospital. He stated that he did not intend to injure Mr. Johnson when he took him out of the transport van and drove him to the hospital.

When they arrived at the hospital, the hospital staff brought a gurney to the police car, and the hospital staff put Mr. Johnson on the gurney and wheeled him into the hospital. Officer Ferdinand testified that, on the night at issue, he arrested Mr. Johnson for public urination. 4 He left the scene of arrest before Officer Leake took Mr. Johnson, and he did not “see Officer Leake’s wagon the entire trip from the point of the arrest to the northwest station.” During his police career, Officer Ferdinand had received training with regard to moving people who had been in auto accidents. Dr. Michael Woodhouse, an expert in biomechanical engineering with a specialty in the forces necessary to create neck and spine injury in vehicular accidents, testified that Mr. Johnson suffered “a fracture dislocation of C4 and C5 with fracture of the pedicel, bilateral fracture of the lamina.” This type of injury was “the most unstable type of cervical spine injury that a human could sustain.” In his opinion, based upon a reasonable degree of scientific probability, Mr. Johnson’s injury was the result of vehicular forces that were “[ejxcessive, aggressive, significant.” He characterized the amount of force necessary to cause this type of damage as that equal to “a small bomb [going] off in this man’s neck.” Dr. Woodhouse opined that, if Mr. Johnson had been wearing a seatbelt, or if the vehicle had been operated under normal driving conditions, Mr. Johnson would not have been injured. In Dr. Woodhouse’s opinion, “given the nature and the extent of Mr. Johnson’s injuries and the forces required to create them,” “the van had to have been driven in an aggressive manner.” ³⁹⁸ Detective Arthur Brummer, a member of the Baltimore City Police Department, investigated the circumstances surrounding the arrest of Mr. Johnson, including reviewing a surveillance video that depicted Mr. Johnson’s arrival at the emergency room.

He reviewed a video of Mr. Johnson’s arrival at the Sinai Hospital emergency room on November 23, 2005. The surveillance video showed: The marked vehicle approaches, individuals exit the marked vehicle. Individual runs into the emergency room area, comes out with a wheelchair. The other individuals that exited the vehicle help take an individual out of the vehicle, placed the person inside of the wheelchair and bring the person in the wheelchair into the hospital for medical attention.

Andrea Scott, the mother of Dondi Johnson, Jr. and De’An-dre Johnson, Mr. Johnson’s children, testified regarding the children’s relationship with their father. Mr. Johnson was a plumber, and he supported his sons and helped raise them. He spent time with his sons and had a close relationship with them. 5 The children grieved the loss of their father, and De’Andre’s grades suffered after his father died. After appellees rested their case, the officers argued that judgment should be entered in their favor.

Officer Leake argued that she was entitled to judgment on the battery count and the gross negligence count because there was no showing of malice and “not putting a seatbelt on does not rise to the level of gross negligence.” Officers Ferdinand and Riser similarly argued that the officers’ actions did not rise to the level of battery or gross negligence. As to the count of wrongful death, counsel argued that the plaintiffs had not “put forth the necessary evidence to show that any actions taken by Officers Riser or Ferdinand caused Mr. Johnson’s” death. The court granted the motion for judgment in favor of Officers Riser and Ferdinand on the battery count, finding that there was no evidence “that would support a battery as it relates to Officer ³⁹⁹ Riser and Officer Ferdinand.” The court denied all other motions. Counsel for Officers Ferdinand and Riser then called Dr. Gary Dennis, an expert in neurosurgery.

After review of Mr. Johnson’s medical records, Dr. Dennis opined that Mr. Johnson’s injury was not one that could “be caused by carrying a patient,” but rather, it was caused by a significant force. In Dr. Dennis’s opinion, Officers Ferdinand and Riser did not exacerbate Mr. Johnson’s injury when they carried him out of the van, stating that “carrying him didn’t change the alignment of the spine because those bones were stuck in position and couldn’t even be pried apart with weights.” After Officers Ferdinand and Riser rested their case, Officer Leake took the stand on her own behalf. She testified that she previously had transported prisoners who “had not been seatbelted,” that none of them had been injured, and that she did not intend to injure Mr. Johnson. At the close of all of the evidence, counsel for appellants renewed their motions for judgment.

Significant to this appeal, they did not argue that they were entitled to judgment on the ground of public official immunity. The court denied the motions and submitted the case to the jury. The jury returned verdicts against all three defendants. It found that Officers Ferdinand and Riser were negligent, but not grossly negligent, and their actions were a cause of injury to Mr. Johnson, but not a cause of death.

It found that Officer Leake’s actions were negligent and grossly negligent, but not committed with malice, and her actions were both a cause of injury to Mr. Johnson and a cause of death. The jury awarded damages to the estate of Mr. Johnson in the amount of: (1) $87,000 for compensatory, economic damages; and (2) $5,000,050 for compensatory, non-economic damages, including pain and suffering. The jury awarded damages to both Dondi Johnson, Jr. and De’Andre Johnson, individually, in the amount of: (1) $84,000 for loss of financial support; and (2) $1,100,000 for non-economic damages. ⁴⁰⁰ Appellants subsequently filed motions for judgment notwithstanding the verdict, or in the alternative, motions to revise and reduce the judgment. They argued, inter alia, that they were protected from liability by common law public official immunity.

Alternatively, they argued that, pursuant to the Local Government Tort Claims Act (the “LGTCA”), judgment should be entered against the Department, and the compensatory damages should be revised to the $200,000 limit on damages mandated by the LGTCA. On May 28, 2010, appellees filed a Consolidated Response in Opposition to Defendants’ Motions for Judgment Notwithstanding the Verdict or, Alternatively, Motion to Revise Judgment. They argued that the officers were “not entitled to public official immunity” because they were performing “ministerial acts.” They further argued that “due to the special relationship between the prisoner and his officer custodian, public official immunity is inapplicable in this case as to all officers.” With respect to the argument regarding the limit of liability pursuant to the LGTCA, they argued that there were three claims for each of two occurrences, permitting a cap of $1,000,000, not $200,000. On June 24, 2010, the circuit court held a hearing on the motions.

The parties reiterated their arguments. On December 22, 2010, the court issued an order denying the motions for judgment notwithstanding the verdict and granting the motions to revise the judgment. With respect to the issue of public official immunity, the court noted that such immunity from liability is available only if the public official was performing a discretionary task at the time the negligent act occurred. The court found that the officers here were not entitled to public official immunity because the negligent conduct occurred while the officers were performing ministerial tasks, as a matter of law.

With respect to Officers Ferdinand and Riser, the court noted that “the protocol for handling an injured arrestee directed Officers Ferdinand and Riser to ‘not aggravate the injury.’ ” The court stated that, instead of following this mandate: ⁴⁰¹ Officers Ferdinand and Riser lifted a person with back, neck, or other spinal injuries out of the paddy wagon and placed him in the rear of their patrol car seated. Once[ ] Mr. Johnson explained to the Officers that he was unable to move[,] emergency medical care should have been notified. Instead, the Officers lifted Mr. Johnson out of the patrol car a second time when they arrived to Sinai Hospital. This second decision violated the General Order when medical attention was never called to the scene.

Therefore, Officer Ferdinand and Officer Riser were performing ministerial tasks and ignored the requirements resulting in negligence that caused the injury, thus they are denied public official immunity. With respect to Officer Leake, the court noted that the operation of a motor vehicle constitutes a ministerial act, and it found “that Officer Leake’s negligence and gross negligence occurred while conducting ministerial acts, as a matter of law.” It found that Officer Leake drove the vehicle in a manner that injured Mr. Johnson, and the “manner in which she operated her vehicle and the routes she decided to take did not rise to the level of discretion required to elevate her acts into discretionary acts.” The court also found that General Order K-14 “requires police officers to seatbelt the arrestee unless he or she poses a danger to the Officer,” that there was no evidence that Mr. Johnson posed a danger, and that Officer Leake “offered no explanation or justification for violating” the Order. The court then addressed the liability limits of the government pursuant to the LGTCA: “$200,000 per an individual claim” and “$500,000 per total claims arising from the same occurrence.” The court found three individual claims involved here, stating: [T]he facts surrounding Mr. Johnson’s untimely death sets forth a claim for the Estate of Dondi Johnson Sr., a wrongful death claim for Mr. Johnson’s eldest son Dondi Johnson Jr., and another wrongful death claim for Mr. Johnson’s youngest son, De’Andre Johnson. The jury awarded each plaintiff a separate amount of damages for ⁴⁰² separate causes of action, and each one of these claims can be separately enforced.

The court explained, however, that, although each individual claim was “capped at Two Hundred Thousand ($200,000), the maximum amount the local government must pay is a total of Five Hundred Thousand ($500,000) per occurrence.” The court found one “occurrence” involved here, noting that “[a]ll of the events and acts were related to the moving or transportation of’ Mr. Johnson and involved “one seamless and continuous series of negligent events.” The court revised the judgment as follows: The Court revises the judgment from Seven Million Four Hundred and Five Thousand Dollars ($7,405,000) to a total of Six Hundred Fifty Thousand Dollars ($416,500).[ 6 ] Specifically, the award for the Estate of Dondi Johnson Sr. is capped at Two Hundred thousand dollars ($200,000); the award for Dondi Johnson Jr. is One Hundred Eight Thousand Two Hundred and Fifty Dollars ($108,250); and the award for De’Andre Johnson is One Hundred Eight Thousand Two Hundred and Fifty Dollars ($108,250). Each of the parties noted a timely appeal. DISCUSSION I. Appellants contend that the lower court erred in failing to grant their motion for JNOV on the ground that they were immune from liability. They argue that their actions, which ⁴⁰³ occurred in furtherance of their official duties, were discretionary, and therefore, they were entitled to public official immunity.

The doctrine of common law public official immunity provides that a person “roll be relieved of liability for his non-malicious acts where: (1) he ‘is a public official rather than a mere government employee or agent; and (2) his tortious conduct occurred while he was performing discretionary, as opposed to ministerial, acts in furtherance of his official duties.’ ” Williams v. Mayor & City Council of Baltimore, 359 Md. 101, 137 , 753 A.2d 41 (2000) (quoting Ashburn v. Anne Arundel County, 306 Md. 617, 622 , 510 A.2d 1078 (1986)). Here, there is no dispute that the officers were “public officials” and that the acts complained of were part of their official duties. The sole issue is the nature of the acts they were performing. With respect to the determination of whether actions are discretionary as opposed to ministerial, the Court of Appeals explained the term discretionary as follows: “The term ‘discretion’ denotes freedom to act according to one’s judgment in the absence of a hard and fast rule.

When applied to public officials, ‘discretion’ is the power conferred upon them by law to act officially under certain circumstances according to the dictates of their own judgment and conscience, and uncontrolled by the judgment or conscience of others.” James v. Prince George’s County, 288 Md. 315, 326 , 418 A.2d 1173 (1980) (quoting Schneider v. Hawkins, 179 Md. 21, 25 , 16 A.2d 861 (1940). Accord Houghton v. Forrest, 412 Md. 578, 585 , 989 A.2d 223 (2010). Ministerial acts, on the other hand, are “ ‘duties in respect to which nothing is left to discretion as distinguished from those where the official has the freedom and authority to make decisions and choices.’ ” James, 288 Md. at 326 , 418 A.2d 1173 (quoting State, use of Clark v. Ferling, 220 Md. 109, 113 , 151 A.2d 137 (1959)). Appellees contend that “the circuit court correctly held that the officers were not entitled to public official immunity ⁴⁰⁴ because they were carrying out ministerial, non-discretionary tasks relating to the transport and care of an arrestee.” They argue as a threshold matter, however, that appellants were not entitled to JNOV on the ground that “they waived the right to assert such a defense by failing to argue the immunity [issue] at the close of all the evidence or at any time prior to the verdict.” We begin with appellees’ procedural argument.

Maryland Rule 2-532(a), which governs motions for judgment notwithstanding the verdict, provides: (a) When permitted. In a jury trial, a party may move for judgment notwithstanding the verdict only if that party made a motion for judgment at the close of all the evidence and only on the grounds advanced in support of the earlier motion. (Emphasis added). In General Motors Corp. v. Seay, 388 Md. 341, 361 , 879 A.2d 1049 (2005), the Court of Appeals made clear that the failure to make an argument in a motion for judgment at the close of the evidence results in the loss of the right to file a motion for JNOV.

In that case, the defendants made a motion for judgment at the end of the plaintiffs case and at the end of their case. Id. at 348 , 879 A.2d 1049 . The trial court then allowed the plaintiff to present rebuttal testimony, and GM failed to renew the motion for judgment following that testimony. Id. at 350 , 879 A.2d 1049 .

After the jury returned a verdict in favor of the plaintiff, GM filed a motion for judgment notwithstanding the verdict. Id. The Court of Appeals reversed the trial court’s order granting the motion for JNOV, stating that a “motion for judgment must be made at the close of all the evidence before a motion for JNOV can be properly made and ruled on by the court.” Id. at 352 , 879 A.2d 1049 . The Court explained the rationale for the rule: The requirement that a party must renew the motion for judgment at the close of all the evidence serves two fundamental purposes.

First, renewal of the motion “enables the trial court to examine the sufficiency of all the evidence ⁴⁰⁵ before submitting the question to the jury.” Petit v. City of Chicago, 239 F.Supp.2d 761 (N.D.Ill.2002). And second, it “alerts the opposing party to any defect in its case, thereby affording it an opportunity to cure any such defect.” Id. In Szmaj v. American Tel. & Tel. Co., 291 F.3d 955, 958 (7th Cir.2002), the court pointed out that, if a motion for judgment as a matter of law is made at the close of