IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, LAW DIVISION
MIDLAND TRUST COMPANY, as Independent )
Administrator of the Estate of ABNERD )
JOSEPH, deceased, )
) Case No. 2024-L-005346
Plaintiff, )
) Calendar D
v. )
) Jury Trial Demanded
SUDLER AND COMPANY d/b/a SUDLER )
PROPERTY MANAGEMENT, LEGACY AT )
MILLENNIUM PARK CONDOMINIUM )
ASSOCIATION, DEBORAH ROMERO, )
DOMINIC TEDALDI, GARRETT MARK SMITH, )
YOUNAN “JONAH” NENA, ANDREW )
CLEMENT, ROBERT JOHN BISHOPP, JR., )
and NATALIE BISHOPP, )
)
Defendants. )
__________________________________________)
SMITH’S RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO
ADD PRAYER FOR PUNITIVE DAMAGES
John J. Scharkey
Robert D. Sweeney
Michael H. King
Erin I. Wenger
SWEENEY SCHARKEY LLC
230 West Monroe Street, Suite 1500
Chicago, Illinois 60606
Tel. (312) 384-0500
--and—
William H. Hooks
Hooks Law, P.C.
The Barclay Building
3525 South King Drive
Chicago, Illinois 60653
Tel. (224) 553-5252
Counsel for Garrett M. Smith
TABLE OF CONTENTS
I. INTRODUCTION ................................................................................................................ - 1 -
II. LEGAL STANDARD ........................................................................................................... - 2 -
III. PLAINTIFF’S “FACTUAL BACKGROUND” IS INSUFFICIENT TO SUPPORT A CLAIM
FOR PUNITIVE DAMAGES AGAINST SMITH............................................................... - 4 -
A. The Knowledge of Other Defendants is Not Attributable to Smith................................ - 5 -
B. Plaintiff Fails to Show Reasonable Likelihood of Finding that Smith Engaged in
Outrageous Behavior or Showed Reckless Disregard for Others. .................................. - 7 -
1. Smith Called 911 on Two Occasions. ....................................................................... - 7 -
2. Smith Exercised Caution When Leaving His Unit and Was Under No Duty to Stay in
Place. ......................................................................................................................... - 9 -
3. Smith Carried a Handgun Responsibly and in Compliance with Illinois Law. ...... - 10 -
4. Smith’s Actions on the 48th Floor Were Reasonable and the Dangerous Situation
Was Created by Joseph. .......................................................................................... - 13 -
IV. PLAINTIFF’S MOTION SHOULD ALSO BE DENIED FOR LACK OF STATUTORY
AUTHORITY. .................................................................................................................... - 16 -
Defendant Garrett Smith (“Smith”), by and through his undersigned counsel, submits the
following opposition to Plaintiff’s Motion for Leave to Add Prayer for Punitive Damages, and
states the following in support:
I. INTRODUCTION
Plaintiff has taken the sprawling accusations in its shotgun style complaint and fashioned
them into one single, thirty-seven-page group motion seeking to add punitive damages claims
against three of the nine defendants in this matter – Sudler and Company d/b/a Sudler Property
Management (“Sudler”), the Legacy at Millennium Park Condominium Association (“Legacy”),
and Smith. Much like its strategy with the complaint, using this approach in a motion seeking to
add punitive damages claims results in stringing together multiple baseless factual allegations
against each party with an inadequate connection between the specific defendants and alleged
wrongdoing, if any at all. Plaintiff muddies the issues before the Court through a vague narrative
based primarily on speculation, and attempts to have the actions of one party be imputed to all
other actors. Despite the smoke and mirrors, Plaintiff fails to meet the threshold of what is required
to plead willful and wanton conduct against Smith. More importantly, the “facts” Plaintiff invokes
in support of its position are inaccurate and often just dressed up in descriptive, conclusory
language—something that the Illinois courts have repeatedly held is inadequate to establish willful
and wanton conduct. (See Smith’s Combined Partial Mot. for Dismissal at 5-7, 10-13.)
Moreover, Plaintiff’s request is untimely. The statute addressing punitive damages
mandates that a motion for leave to add such a claim be filed within thirty days of the close of
discovery. 735 ILCS 5/2-604.1. Plaintiff did not file its motion seeking leave to add a punitive
damages claim until July 13, 2026. Fact discovery closed on April 30, 2026. The logic behind this
thirty-day limit is clear as parties approach trial – the reopening of discovery for punitive damages
and forcing the defendants to restructure trial strategy at a late stage is unduly prejudicial.
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Furthermore, there is no reason for the delay by Plaintiff, nor has Plaintiff offered one. Plaintiff
surely knew the parties from whom it would seek punitive damages when it filed the Third
Amended Complaint in September 2025, as it had already requested relief in the form of punitive
damages without the Court’s permission in that pleading, and again in the fourth amended
complaint, despite those requests being prohibited in pleadings alleging negligence in Illinois. (See
Third Am. Compl. at 25-33; Fourth Am. Compl. at 29-33.) 735 ILCS 5/2-604.1; Loitz v. Remington
Arms Co., Inc., 138 Ill. 2d 404, 417 (1990). Additionally, all (but one) of the depositions and
documents cited in the allegations against Smith were taken in 2025. 1 Plaintiff’s treatment of the
rules and law as optional should not be countenanced, and its motion should be denied.
II. LEGAL STANDARD
Punitive damages are not available absent specific statutory authority, and they have
historically been unavailable to plaintiffs who assert claims under the Wrongful Death Act or
Survival Act in Illinois. See Marston v. Walgreen Co., 389 Ill. App. 3d 337, 344-45 (1st Dist.
2009). Notably absent from Plaintiff’s motion is any specific statutory authority permitting
punitive damages for the claims asserted in this case, and Plaintiff’s motion should be denied on
that basis. However, Plaintiff will likely argue that this flaw can be remediated in its reply brief,
so it is presumed that Plaintiff will cite to the 2023 amendments to the Wrongful Death Act and
Survival Act. See 740 ILCS 180/1; 755 ILCS 5/27-6. These amendments to permit punitive
damages, however, are unconstitutional because they violate the “three-readings rule” of the
1
The one exception is Smith’s second deposition, which was to be limited to the issues in Case
No. 2024L010547 involving a defamation compliant filed by Smith. Despite this limitation, for
the majority of the second deposition, defense counsel in that matter and Plaintiff’s counsel in the
instant matter revisited and repeated topics from Smith’s first deposition, resulting in Smith being
subjected to nearly eleven hours of deposition questioning despite the three-hour rule in Illinois.
The two references to testimony from Smith’s second deposition are not quotes and are topics also
covered in his first deposition.
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Illinois Constitution, which requires that “[a] bill shall be read by title on three different days in
each house.” Ill. Const. Art. IV, § 8(d). The legislative record is unequivocal: the 2023
amendments to the Wrongful Death Act and Survival Act were not “read by title on three different
days in each house.” This fatal defect renders the 2023 amendments unconstitutional and thus
without force. Absent constitutionally sound legislative or statutory authority for Plaintiff’s
punitive damages request, the requested relief request must be denied.
Even where there is statutory authority permitting a plaintiff to seek punitive damages,
punitive damages are disfavored in Illinois and there is no presumed entitlement to punitive
damages. “Punitive damages are not awarded for mere inadvertence, mistake, errors of judgment
and the like, which constitute ordinary negligence.” Restat. 2d of Torts § 908, comment b, at 465;
Parsons v. Winter, 142 Ill. App. 3d 354, 361 (1st Dist. 1986); Cress v. Recreation Services, Inc.,
341 Ill. App. 3d 149, 182 (2nd Dist. 2003). Plaintiff must satisfy the procedural and substantive
requirements before filing such a claim, and must establish facts that will show by “clear and
convincing” evidence that the individual defendant’s acts were committed with fraud, actual
malice, deliberate violence or oppression, willfulness, or wanton disregard of the rights of others.
Parsons at 360; 735 ILCS 5/2-1115.05(b). Clear and convincing evidence “requires a greater
degree of persuasion than is necessary to meet the preponderance of the evidence standard.” 735
ILCS 5/2-1115.05(b). This is by no means a low bar—clear and convincing requires evidence that
leaves no reasonable doubt that the assertion is true. Bazydlo v. Volant, 164 Ill. 2d 207, 213 (1995).
Therefore, Plaintiff’s evidence must leave no reasonable doubt that the alleged conduct is
“outrageous, either because the defendant’s acts are done with an evil motive or because they are
done with reckless indifference to the rights of others.” Restat. 2d of Torts § 908, comment b, at
464-65 (emphasis added); 735 ILCS 5/2-1115.05(b); see also, Adkins v. Sarah Bush Lincoln
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Health Center, 129 Ill. 2d 497, 518 (1989) (“To sufficiently plead willful and wanton misconduct,
a plaintiff must allege either deliberate intention to harm or an utter indifference to or conscious
disregard for the welfare of the plaintiff.”) But Plaintiff has not met this threshold. Plaintiff’s use
of descriptive language such as “recklessly” or “maliciously” to recharacterize allegations of
negligence does not meet this evidentiary bar and is “pure meaningless conclusion” by the plaintiff.
Adkins at 519-20. (See Fourth Am. Compl. at 29-33.) There is no record of a deliberate intention
to harm or an utter indifference to or conscious disregard of Plaintiff’s decedent. The Court may
therefore appropriately deny the motion for leave on this basis as the evidence does not substantiate
the level of “evil motive” or “reckless indifference” required to justify punitive damages. See e.g.,
Bachman v. General Motors Corp., 332 Ill. App. 3d 760, 804-05 (4th Dist. 2002).
III. PLAINTIFF’S “FACTUAL BACKGROUND” IS INSUFFICIENT TO SUPPORT
A CLAIM FOR PUNITIVE DAMAGES AGAINST SMITH.
Contrary to Plaintiff’s assertions, the allegations against Smith do not constitute
“overwhelming evidence” that Smith engaged in willful and wanton conduct or justify punitive
damages. Plaintiff contends that Smith: chose to leave his unit carrying a concealed handgun that
he was licensed—and permitted by Illinois law—to carry (and routinely carried in daily activities);
left his condominium unit to go to the building lobby after waiting until he could no longer hear
Joseph on his own floor, after he had called 911 and the building’s front desk; told Nena that he
had a concealed carry license; escorted an elderly couple back to the floor of their home where
Joseph attacked Smith, Nena, and Clement; shot Joseph in self-defense and in defense of others;
and allegedly failed to render aid to his attacker. (Pl.’s Mot. at 2.) Nothing in Plaintiff’s narrative
rises to the level of egregiousness required to establish a deliberate intention to harm or reckless
disregard for the rights of others on the part of Smith when the facts and evidence are considered.
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A. The Knowledge of Other Defendants is Not Attributable to Smith.
Plaintiff undergirds its motion with a “factual background” section that is a mishmash of
testimony from various individuals and distorted, speculative commentary about their actions,
pieced together in an apparent attempt to attribute actions and knowledge of others to Smith. This
is improper to substantiate a claim for punitive damages against Smith. Plaintiff must establish
that Smith knew or that Smith should have known under the circumstances “that his conduct posed
a high probability of serious physical harm to others” or the Smith had a deliberate intention to
harm someone else. Pomrehn v. Crete-Monee H.S. Dist., 101 Ill. App. 3d 331, 334-35 (3rd Dist.
1981), citing Booker v. Chicago Bd. of Educ., 75 Ill. App. 3d 381 (1st Dist. 1979). But Plaintiff
has failed to make that threshold showing. It is Smith’s state of mind at the time of the alleged
breach of duty that is relevant for evaluating whether punitive damages claims against Smith are
warranted and proper. Pendowski v. Patent Scaffolding Co., 89 Ill. App. 3d 484, 492 (1st Dist.
1980).
Plaintiff references, for example, that Robert Bishopp testified he was aware that Chicago
Police Department “decoy cops were stationed around the city” and, at that time, Mr. Bishopp
understood there would regularly be one at a nearby intersection of Madison and Wabash. (Exhibit
A, R. Bishopp Tr. at 39:1-16.) Plaintiff characterizes this testimony, without evidence, as a factual
statement that police were “permanently nearby on Michigan and Wabash” 2 to suggest that
residents, including Smith, and employees of the Legacy building should all know this. (Pl.’s Mot.
at 4.) Rubbish. Not only is this statement unsupported by testimony, but it is also not the knowledge
of Smith. Moreover, even if it were a fact—which it is not—had Smith known this information—
which he did not—getting assistance from any officers outside the building on another street would
2
Michigan Avenue and Wabash are parallel streets.
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have required Smith to leave his unit and go to the lobby, two of the very things that Plaintiff
complains about.
Plaintiff argues that Nena received multiple calls from residents about Joseph running
around hallways, acting “crazy” to somehow impute—and create a broad impression of—this so-
called knowledge among all defendants, including Smith. (Pl.’s Mot. at 3-4.) This argument fails
for multiple reasons. Plaintiff cannot establish that Smith knew the volume, content, or even nature
of the calls that Nena received that night. Other than Smith’s own attempt at calling Nena, Nena’s
knowledge is Nena’s knowledge alone. Plaintiff has not—and cannot—establish that Smith knew
there were calls to the front desk reportedly coming from multiple floors and other residents in the
building. At the time he arrived in the lobby, Smith’s only knowledge of Joseph’s behavior was
what he witnessed himself on the 29th floor—an unknown man, yelling and pounding on Smith’s
door with such force that Smith feared Joseph might break his door down, and Smith believed that
man was likely under the influence of drugs. (Exhibit B, Smith Tr. I at 98: 8-16, 128:14-129:23;
Ex. A, R. Bishopp Tr. at 15:1-16, 16:23-17:9; Exhibit C, July 23, 2025 Case Suppl. Report at 19;
Exhibit D, Toxicology Report.)
Smith’s actions, based on what he knew of his own call to the front desk and Joseph’s
behavior, were not unreasonable and were certainly not egregious or malicious. Smith waited to
exit his unit until Joseph—who was unknown to Smith that the time—could no longer be heard on
his floor, and Smith verified that Joseph was no longer in the hallway when he cautiously opened
his door. (Ex. B, Smith Tr. I at 86:4-6, 88:5-8, 103:7-15.) Smith also spoke with two other people
in the hallway before proceeding to the lobby—Hamilton Steele, an employee, and James Delelio,
another resident. (Ex. B, Smith Tr. I at 143:3-17; Exhibit E, Interview Room 3 Video at 21:58-
22:03.) Knowing what Smith knew, Smith’s conduct is simply not representative of reckless or
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malicious behavior and does not show a high probability of harm or intention to harm others.
B. Plaintiff Fails to Show Reasonable Likelihood of Finding that Smith Engaged
in Outrageous Behavior or Showed Reckless Disregard for Others.
The testimony and evidence in this case do not support that finding of a deliberate intention
to harm or conscious disregard for the welfare of others; rather, the deposition testimony
establishes the opposite. Based on the circumstances that confronted Smith and his reaction to
those particular circumstances, Smith’s actions cannot be said to be willful and wanton conduct,
or, in other words, the sort that “shocks the conscience.” Pryor v. Chicago Transit Authority, 2022
IL App (1st) 200895, ¶ 42. Smith acted cautiously, reasonably, and out of concern for his safety
and the safety of others. Smith did not set out with a deliberate intention to harm Plaintiff, nor did
he demonstrate a conscious disregard for the rights or safety of others. Plaintiff has no contrary
evidence. The uncontroverted testimony establishes that Smith was confronted by an extremely
aggressive individual (Joseph) who had already savagely attacked two other residents (Nena and
Clement), including hitting one (Clement) with such force as to render him unconscious, and who
turned to attack him (Smith) and possibly others (the Bishopps), and that Smith feared that he and
others were in imminent danger of death or serious bodily harm. (Ex. B, Smith Tr. I at 238:14-19,
239:13-15, 250:3-6, 283:16-284:18; Exhibit F, Clement Tr. 133:15-134:23, 137:7-14, 142:20-
143:2, 143:23-144:5; Exhibit G, Nena Tr. I at 73:16-76:12; 77:22-81:24.) Simply put, there are no
facts to support a willful and wanton count against Smith.
1. Smith Called 911 on Two Occasions.
Plaintiff alleges that Smith understood that police were dispatched when he called 911 and
he should have just stayed in his unit to wait for the police to arrive. This is false and Plaintiff
offers no facts to support the allegation. Smith called 911 from his condominium to report that
someone was trying to break into his home, which was coded as a disturbance or criminal trespass
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by the Chicago Office of Emergency Management and Communications—not something
characterized by violence or urgency. (Exhibit H, Gilliland Tr. at 21:2-8; 29:19-24; Exhibit I,
OEMC Report at 9-10.) While Smith testified that the 911 operator stated police would be sent,
the operator did not indicate how long that would take, nor did the operator say that the police
were “on their way.”
Smith’s testimony reflects that he had the reasonable belief that police were not, in fact,
“on their way” given his conversations with police officers who told him that unless there is
violence in progress, police would not respond to a single 911 call in Chicago. (Ex. B, Smith Tr. I
at 91:14-17, 92:10-16. 113:13-15, 115:17-24.) Nena similarly expressed his opinion that police
were not coming, as did Mr. Bishopp. (Ex. G, Nena Tr. I at 167:10-16; Ex. A, R. Bishopp Tr. at
20:16-24, 21:15-23; Ex. B, Smith Tr. I at 175:1-6.) This belief is supported by activities on the
following day, September 15, 2023, when police were called because two of Joseph’s brothers
were in the lobby and threatened to “shoot up” the building. (Exhibit J, De La Cruz Tr. at 88:14-
89:10.) On that day, the building’s panic alarm was triggered just after 6:00 p.m. and was coded
as a “1A” priority, the same priority given to the shooting on September 14, 2023, but police did
not arrive until 8:55 p.m. on September 15—nearly three hours after the panic alarm was triggered.
(Ex. I, OEMC Report at 21-25, 37-38; Exhibit K, Sept. 15, 2026 Incident Report.)
Officers who were in the area of the building on September 14, 2023, and who were
assigned to units that respond to higher priority 911 calls for “in progress” crimes like robbery,
drugs, guns, and the like, testified that they had not been dispatched after Smith’s initial 911 call,
but several were driving in the area or engaged in a traffic stop until call of “shots fired” was heard.
(Ex. H, Gilliland Tr. at 19:21-21:19; Exhibit L, Islas Tr. at 14:19-15:10, 16:23-18:5, 20:9-22:7;
Exhibit M, Salmeron Tr. at 18:2-10.) Even the police testified that no one had been dispatched
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prior to the 911 call that shots had been fired. (Ex. H, Gilliland Tr. at 21:18-19.) Moreover, Plaintiff
has not and cannot establish that there is a legal duty on the part of a condominium unit owner to
stay in his unit just because he has called 911 to report a trespasser. Absent a duty and breach of
that duty, there can be no recovery of damages, let alone the extraordinary remedy of punitive
damages.
2. Smith Exercised Caution When Leaving His Unit and Was Under No
Duty to Stay in Place.
Plaintiff claims that Smith “left a place of safety” when he left his condominium to go to
the first-floor lobby. Even if there were a legal duty to essentially shelter in place when an
individual is yelling in a hallway and pounding on your door—which there is not and Plaintiff has
failed to identify one—Plaintiff glosses over the fact that Smith waited until he could no longer
hear Joseph in the hallway and carefully opened his door. (Ex. B, Smith Tr. I at 85:20-86:6, 103:7-
15.) Seeing no one, Smith exited his unit and thereafter interacted with a neighbor, James Delelio,
who had also exited his own unit, and a maintenance worker, Hamilton Steele, who rode the
elevators upstairs from the lobby to the 29th floor to check on the noise disturbance calls that had
come into the front desk. (Ex. B, Smith Tr. I at 110:17-112:24; Exhibit N, Delelio Tr. at 40:14-
17.) Smith did not exit his unit to “pursue his neighbor,” nor is there any evidence—deposition
testimony or otherwise—of this meritless speculation by Plaintiff. (Pl.’s Mot. at 35.) Two other
individuals were in the hallway with Smith, and Joseph was nowhere to be seen.
There is nothing inherently willful or wanton about a resident of the building leaving his
private residence and entering the common areas of his own property to determine what was
occurring. Leaving his unit was not an act of negligence, Smith was not trespassing, he was not
committing a crime, and he was not acting with reckless disregard for the rights of another. Smith
was lawfully present in the common areas of his home after contacting law enforcement. Similarly,
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going to the lobby, another common area of his building, is not an action sounding in negligence
or one that demonstrates deliberate intention to harm or an utter indifference to or conscious
disregard for the welfare of the plaintiff. These are simply not egregious behaviors. Moreover, the
lobby video shows there were other residents and visitors in the building who were freely coming
and going. (Exhibit O, Lobby Video; Exhibit P, N. Bishopp Tr. at 118:2-119:22.) It was therefore
not unreasonable—let alone reckless—for Smith to wait until Joseph left the 29th floor and then
proceed to the lobby with Mr. Steele where there were many other individuals taking the elevators
and transversing the lobby area. Plaintiff has offered no authority to suggest a duty under any of
these circumstances. There is none.
3. Smith Carried a Handgun Responsibly and in Compliance with Illinois
Law.
The fact that Smith chooses to carry a handgun outside his home in a manner that complies
with his concealed carry license (“CCL”) is consistent with the law as interpreted by the Illinois
Supreme Court and the Supreme Court of the United States. “The Supreme Court has decided that
the [second] amendment confers a right to bear arms for self-defense, which is as important outside
the home as inside.” People v. Aguilar, 2013 IL 112116, ¶ 19 (2013), citing Moore v. Madigan,
702 F.3d 933, 942 (7th Cir. 2012). The Second Amendment does not only protect the right to carry
a handgun in one’s home. Aguilar, 2013 IL 112116 at ¶ 20. In Aguilar, it was held that:
“[B]oth [Heller and McDonald] contain language strongly suggesting if not
outright confirming that the second amendment right to keep and bear arms extends
beyond the home. Moreover, if Heller means what it says, and ‘individual self-
defense’ is indeed ‘the central component’ of the second amendment right to keep
and bear arms, then it would make little sense to restrict that right to the home, as
‘[c]onfrontations are not limited to the home.’ Indeed, Heller itself recognizes as
much when it states that ‘the right to have arms was by the time of the founding
understood to be an individual right protecting against both public and private
violence.’” Aguilar 2013 IL 112116 at ¶ 20 (emphasis in original), citing D.C. v.
Heller, 554 U.S. 570, 593-94, 99 (2008); Moore, 702 F.3d at 935-36.
Lawfully carrying a handgun is not evidence of taking the law into one’s own hands, as
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Plaintiff contends. Rather, Smith is legally—indeed constitutionally—permitted to carry a
handgun outside his home and routinely does so. Exercising this right is not an act of negligence,
nor is it a reckless act. Smith did not leave his home lawfully carrying a small handgun with
deliberate intention to harm another or in conscious disregard for the rights or safety of others, nor
has Plaintiff substantiated such a claim. Indeed, the point of a CCL is self-defense, and self-defense
is not evidence of negligence. It is certainly not an act of willful or deliberate indifference.
Smith was not wielding his handgun in an unsafe manner in the presence of others; he was
not charged with reckless or aggravated discharge of a firearm. Rather, as the evidence and
testimony shows: Smith lawfully carried a handgun and when he and his neighbors were physically
assaulted by Joseph, he warned Joseph to stop, told Joseph he had a gun, and after being attacked
himself, he shot Joseph in self-defense. (Ex. C, July 23, 2025 Case Suppl. Report at 15; Ex. F,
Clement Tr. at 163:12-167:16; Ex. G, Nena Tr. I at 96:7-17; Ex. H, Gilliland Tr. at 42:24-43:4,
62:19-24, 86:4-14; Ex. L, Islas Tr. at 38:1-24; Exhibit Q, Dowling Tr. at 32:23-33:8; Exhibit R,
Smith Tr. II at 70:5-8.) The Cook County State’s Attorney reached the same conclusion based on
its extensive review of the facts and forensic evidence when it elected not to criminally prosecute
Smith.
Disclosing to Nena that Smith had a CCL is likewise not something that rises to the level
of willful and wanton conduct. In fact, Smith testified that he is cautious and deliberate about the
language he uses when disclosing that he has a concealed carry license:
“I specifically said, I have a CCL. I like that wording because if people know what
it means, they know what I’m saying is that I am capable of carrying a concealed
firearm. . . I’m not saying that I’m armed, which would sound aggressive and kind
of threatening. I’m simply saying, I have a permit to carry a concealed firearm. At
no point when we were on the ground floor did I disclose to people that I was
carrying a gun. I did, and I said the exact words, I have a CCL.” (Ex. B, Smith Tr.
I at 154:4-16.)
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“I never said, I have a gun.” (Ex. R, Smith Tr. II at 70:1.)
Plaintiff misstates the facts in this case: Smith did not announce to anyone in the lobby that
he had a gun, nor did he indicate he would act as an “armed escort” or “armed security guard” to
take individuals to the 48th floor. (Ex. A, R. Bishopp Tr. at 25:18-26:14, 35:21-23; Ex. B, Smith
Tr. I at 79:1-3; Ex. F, Clement Tr. at 107:24-109:23; Ex. N, Delelio Tr. at 42:7-20; Ex. P, N.
Bishopp Tr. at 56:21-57:12; 108:9-15; Ex. R, Smith Tr. II at 69:5-9.) In fact, Natalie Bishopp
testified that she did not know Smith had a gun, and even after hearing the sounds of gunshots, she
did not know what it was and asked her husband if it was a taser. (Ex. P, N. Bishopp Tr. at 84:23-
85:5, 99:2-12, 107:2-11.) To the contrary, Smith testified that there was no plan to “confront
Joseph,” and Mr. Bishopp testified he would have gone back up to the 48th floor regardless of
whether Smith had a handgun. (Ex. B, Smith Tr. I at 54:20-21: “I did not leave my unit to confront
Abnerd Joseph”; Id. at 152:16-17: “I’m not aware of it being anybody’s idea to encounter Joseph.”;
Ex. A, R. Bishopp Tr. at 69:2-23.) Plaintiff has not offered any evidence to counter this testimony.
Plaintiff also misrepresents what Smith knew about Joseph. Smith did not know Joseph
was his neighbor at the time. (Ex. B, Smith Tr. I at 104:5-10.) Smith did not know where Joseph
went once Joseph was no longer on the 29th floor. (Pl.’s Mot. at 36.) Smith did not know what
caused Joseph’s behavior but suspected it could have been drug induced, as did others. (Ex. A, R.
Bishopp Tr. at 16:23-17:2; Ex. C, July 23, 2025 Case Suppl. Report at 19; Ex. I, OEMC Report at
9-10.) Additionally, Smith testified that when he got off the elevator on the 48th floor, he exited
after Nena and Clement, but not after the Bishopps. (Ex. B, Smith Tr. I at 159:6-160:20, 161:13-
162:13.) Mr. Bishopp, however, went in the same direction as Nena, Clement, and Smith. Smith
did not know which direction to take to get to the Bishopps’ unit, and did not see which direction
Mrs. Bishopp travelled as she was behind Smith and the others, so it was reasonable for Smith to
Page 12
believe he was heading towards the Bishopps’ home upon exiting the elevator. Id.
4. Smith’s Actions on the 48th Floor Were Reasonable and the Dangerous
Situation Was Created by Joseph.
Plaintiff’s narrative of what transpired on the 48th floor is inaccurate and conveniently
omits that Joseph viciously attacked Nena—a shorter, older male, about 60 years old and not in
good physical condition—and Clement—an active, physically fit, 6-foot-4-inch-tall man who
Joseph knocked unconscious—before rushing at Smith and attacking him. (Ex. Q, Dowling Tr. at
35:13-36:4, 37:12-38:8.) Smith testified: “Joseph had already attacked multiple people before I
pulled my firearm.” (Ex. B, Smith Tr. I at 59:11-12). This is confirmed in multiple witnesses’
testimony that Nena was struck several times by Joseph, and Joseph knocked Clement unconscious
before Joseph went after Smith. (Ex. A, R. Bishopp Tr. at 43:5-23; Ex. F, Clement Tr. at 133:15-
134:11, 137:7-139:23; Ex. G, Nena Tr. I at 74:12-19-81:1; Ex. P, N. Bishopp Tr. at 105:11-17; Ex.
R, Smith Tr. II at 105:4-7.)
Plaintiff’s narrative also omits other critical facts. Smith initially backed away from Joseph,
warned Joseph to stop hitting people, and warned that he had a gun prior to shooting, but Joseph
was undeterred. (Ex. C, July 23, 2025 Case Supp. Report at 15-16; Ex. G, Nena Tr. I at 81:4-83:16;
Ex. R, Smith Tr. II at 62:17-63:2; Exhibit S, Riccio Tr. at 29:19-24, 54:22-55:7.) Smith testified
that he thought Joseph had a weapon of some sort given that he knocked Clement unconscious
with one strike. (Ex. B, Smith Tr. I at 238:14-19; Ex. E, Interview Room E Video at 22:03-22:07;
Ex. R, Smith Tr. II at 75:20-23, 84:21-22, 109:7-16.) Moreover, it would be simple to hide a
weapon in a robe pocket or the waistband of boxer shorts. 3 Joseph’s clothing choices are irrelevant
to the danger posed. Joseph’s close friend who spoke with Joseph on the evening of September 14,
3
See, e.g., https://www.wtvr.com/2018/07/04/anna-mae-blessing-allegedly-killed-son-wanted-to-put-her-in-nursing-home;
https://www.koin.com/local/washington-county/man-found-guilty-hiding-fully-loaded-gun-underwear-jail/. (last visited August 27, 2026.)
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2023, testified that it was not unusual for Joseph to be in a bathrobe and he would frequently dress
in a robe when at home. (Exhibit T, Beener Tr. at 35:10-13; 87:3-22.)
Plaintiff’s description of the lack of stippling on Joseph’s body is a red herring. Plaintiff
characterizes this as evidence that Joseph was not in “close range” to Smith, but Plaintiff fails to
define what “close range” is or what significance that holds. Plaintiff’s own expert opines that
stippling would be present at a distance of 30 inches or less—two and a half feet—roughly the
length of a fully extended arm of a six-foot-tall person. (Exhibit U, Branyon Report at 2.) This
does not establish that Smith was a “far” distance from Joseph, and it cannot exclude that Joseph’s
fist or possibly a weapon was easily within striking distance of Smith. Moreover, a distance of
over 30 inches, even assuming arguendo that Plaintiff’s expert’s opinion is to be credited, is not a
factor indicative of willful and wanton conduct as a matter of Illinois law. See e.g., Powell-Watts
v. City of Calumet City, 2016 IL App (1st) 151973-U, ¶¶ 38-39 (2016) (finding no utter
indifference or conscious disregard for safety and no jury could find willful and wanton conduct
where officer reasonably believed deadly force was necessary to prevent imminent death or great
bodily harm, shot decedent at distance of eight feet as he was rapidly closing distance between
shooter and another officer.)
Additionally, after being attacked by Joseph, Smith, still in shock from the unprovoked
attack, moved away from—not toward—Joseph, who at that time was still moving and continued
to pose a potential threat. (Ex. R, Smith Tr. II at 104:11-14; 107:1-108:7, 116:2-3.) Smith then
immediately took the elevator to the lobby and called 911 to report the shooting as soon as he
regained cell phone service. (Id. at 121:21-122:16.)
“After I discharged my weapon, I was very concerned for Joseph . . . after I
discharged my weapon and after he tackled me, he retreated. At that point, I
retreated with the other four people to the main elevator lobby, and called 911.”
(Ex. B, Smith Tr. I at 250:13-23.)
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“I called to get a paramedic at the first opportunity I had.” (Ex. R, Smith Tr. II at
117:10-11.)
The “dangerous situation” (Pl.’s Mot. at 37) and the unprovoked attack on the other
residents and employee on the 48th floor was, regrettably, created by Joseph himself—a drug user
(Ex. T, Beener Tr. at 28:12-13, 29:14-23; 31:20-32:10, 91:13-15, 94:12-95:16; Exhibit V, Shah
Tr. at 64:11-65:10), who chose to ingest several illicit substances that evening, yelled, pounded on
doors, attempted to enter others’ homes, shouted vulgarities and racial slurs at other residents,
threatened and committed violent acts against other residents, and created a dangerous situation
for himself and others. (Ex. A, R. Bishopp Tr. at 10:9-12, 66:10-17; Ex. B, Smith Tr. I at 80:20-
81:23; Ex. D, Toxicology Report; Ex. G, Nena Tr. I at 66:20-67:7, 73:16-78:3, 80:8-81:24; Ex. N,
Delelio Tr. at 14:15-16:1, 17:7-18:24, 34:21-35:24; Ex. P, N. Bishopp Tr. at 122:8-22; Exhibit W,
Schott Tr. at 42:17-21.)
None of these facts are evidence of an evil intent required to bring a claim for punitive
damages from Smith. Willful and wanton conduct requires a showing of “actual or deliberate intent
to harm, without legal justification.” Price v. City of Chicago, 2018 IL App (1st) 161599, ¶ 29 (1st
Dist. 2018). Smith reasonably feared death or great bodily harm to himself and others when he
was on the 48th floor and witnessed violence against Nena, violence against Clement (who was
knocked unconscious), and violence directed at Smith after Smith yelled warnings to stop and that
he was armed, all the while knowing that he was potentially the last line of defense for the Bishopps
who were nearby.
Smith’s actions on September 14, 2023, were reasonable, taken in self-defense, and are
insufficient to support a punitive damages claim. Punitive damages serve a purpose not unlike
criminal sanctions and are penal in nature (Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 188 (1978)),
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but notably, the Cook County State’s Attorney’s Office assessed the totality of the facts and
evidence and elected not to criminally prosecute Smith.
Smith’s conduct was neither outrageous nor reckless. Reckless conduct “must not only be
unreasonable, but it must involve a risk of harm to others substantially in excess of that necessary
to make the conduct negligent” and the probability that death or substantial physical harm will
result from the conduct “must be substantially greater than is required for ordinary negligence.”
Restat. 2d of Torts § 500. Even if Plaintiff could prove negligence—which it cannot—the threshold
required to add a request for punitive damages is plainly not met by the facts in this case. Plaintiff’s
motion must be denied.
IV. PLAINTIFF’S MOTION SHOULD ALSO BE DENIED FOR LACK OF
STATUTORY AUTHORITY.
Awarding punitive damages “must be expressly authorized by the statute on which the
cause of action is predicated” or the right to claim those damages ceases upon an injured person’s
death. Vincent v. Alden-Park Strathmoor, Inc., 241 Ill. 2d 495, 505 (2011). Plaintiffs have only
been authorized to seek leave to add claims for punitive damages for wrongful death and survival
actions pursuant to statutory amendments as of August 11, 2023. However, those amendments to
the Wrongful Death Act and Survival Act contained in HB 219 did not comply with the three-
readings requirement in the Illinois Constitution before being signed into law by Governor
Pritzker. Therefore, awarding punitive damages under these provisions is unconstitutional.
The Illinois Constitution states:
“(d) A bill shall be read by title on three different days in each house. A bill and
each amendment thereto shall be reproduced and placed on the desk of each
member before final passage.
Bills, except bills for appropriations and for the codification, revision or
rearrangement of laws, shall be confined to one subject. Appropriation bills shall
be limited to the subject of appropriations.
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A bill expressly amending a law shall set forth completely the sections amended.
The Speaker of the House of Representatives and the President of the Senate shall
sign each bill that passes both houses to certify that the procedural requirements for
passage have been met.” Ill. Const. 1970, Art. IV, § 8(d).
The bill, HB 219, had two readings in the House, once on January 12, 2023, and once on
March 16, 2023. As presented at those readings, the bill was intended to amend the Uniform
Interstate Depositions and Discovery Act (“UIDDA”), not the Wrongful Death Act or Survival
Act. (See 2023 Bill Text IL H.B. 219 introduced Jan. 11, 2023.) That version of the bill was then
replaced when House Floor Amendment No. 1 to HB 219 was filed on May 16, 2023. The
replacement struck the UIDDA provisions and added a bill to amend the Wrongful Death Act and
Survival Act to permit punitive damages where they had previously been excluded in the statute;
therefore, the first two readings of the bill addressed a proposed amendment to a completely
different statute. The amendment was adopted on the same day, as was a subsequent amendment,
and the bill moved to the Senate—all on May 16, 2023. The Senate had three readings, the bill
passed, and was signed into law on August 11, 2023. 4
Illinois does follow the enrolled-bill doctrine, which provides that once a bill is certified as
having met the procedural requirements by the Speaker of the House of Representatives and
President of the Senate, it is presumed that the constitutional requirements have been met. Friends
of Parks v. Chicago Park Dist., 203 Ill. 2d 312, 328-29 (2003). However, the enrolled bill doctrine
does not apply here because it assumes compliance where there has been none. As recognized in
4
See e.g., Murphey-Petros, Challenges to the Constitutionality of the Punitive Damages
Amendments to the Illinois Wrongful Death Act and Probate Act, Aug. 24, 2023, available at
https://www.wilsonelser.com/publications/challenges-to-the-constitutionality-of-the-punitive-damages-amendments-to-the-illinois-wrongful-death-act-and-probate-act;
Johnson & Bell, Illinois Amends Wrongful Death and Survival Acts to Allow for Punitive Damages, Aug. 14, 2023,
available at
https://johnsonandbell.com/illinois-allows-punitive-damages-wrongful-death-survival-actions/ (last visited Aug. 27, 2026.)
Page 17
Friends of Parks, “the legislature ha[s] shown remarkably poor self-discipline in policing itself in
regard to the three-readings requirement. Id. Justices of the Illinois Supreme Court have recognized
that the legislature has had repeated failures to comply with constitutional requirements, as here,
such that “continued adherence to the enrolled-bill doctrine should no longer be countenanced.”
Caulkins v. Pritzker, 2023 IL 129453, ¶ 99 (Holder White Dissent). Accordingly, the amendments
to the Wrongful Death Act and Survival Act that permit punitive damages to be awarded if
available are unconstitutional. Therefore, Plaintiff’s request to add a prayer for relief of punitive
damages lacks statutory authority and the motion should be denied.
WHEREFORE, for the foregoing reasons, Defendant Garrett Smith respectfully requests
that this Court enter an order denying Plaintiff’s motion for leave to add a prayer for punitive
damages against him and granting any other relief the Court deems just and equitable under the
circumstances.
Dated: August 28, 2026 Respectfully submitted,
By: s/ Erin I. Wenger
John J. Scharkey
Robert D. Sweeney
Michael H. King
Erin I. Wenger
SWEENEY SCHARKEY LLC
230 West Monroe Street, Suite 1500
Chicago, Illinois 60606
Tel. (312) 384-0500
jscharkey@ssbpartners.com
rsweeney@ssbpartners.com
mking@ssbpartners.com
ewenger@ssbpartners.com
Firm: 62488
--and—
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William H. Hooks
Hooks Law, P.C.
The Barclay Building
3525 South King Drive
Chicago, Illinois 60653
Tel. (224) 553-5252
Attorney No. 04737
Counsel for Garrett M. Smith
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CERTIFICATE OF SERVICE
I certify that on August 28, 2026, a copy of the foregoing was filed with the Clerk for the
Circuit Court of Cook County, Illinois, through the Odyssey eFileIL system, which will serve all
counsel of record.
Date: August 28, 2026 By: s/ Erin I. Wenger
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