$13.8 Million Award From Erin Zilka's Fatal Crash On I-55: Zilka Only 1 Percent Responsible, Judges Agree

JOLIET, IL — An Illinois appeals court has upheld a $13.8 million civil judgment in connection with former Joliet police officer Erin Zilka's off-duty Interstate 55 crash near Plainfield that killed her passenger, off-duty Berwyn police Charles "Chuck" Schauer in 2020. The appeals court agreed that Zilka should only be 1 percent financially liable for the death of her passenger. The other 99 percent of the fault was attributed to MK Deliveries and its driver, Felix Ocampo Jr.

At the time of the tragedy, Zilka was a six-year member of the Joliet Police Department and former Shorewood police officer. In wake of facing a felony DUI charge, Zilka later resigned from the Joliet police to pursue other career endeavors.

According to last week's 37-page Illinois appeals court decision, suburban delivery service MK Deliveries, Inc.; its employee-driver, Felix Ocampo Jr.; and motorist Zilka, were sued by Charles A. Schauer's estate for wrongful death.

The court's ruling noted that a series of collisions occurred in the dark around 6 a.m. on January 19, 2020, on an unlit section of southbound Interstate 55. MK Deliveries' 2008 Hino box truck was first struck by a 2006 Nissan Titan pickup truck. The collision disabled both trucks, and they abruptly stopped in the outermost travel lane, with the box truck resting about 100 feet behind the pickup truck. The box truck's battery was disconnected by the impact of the collision, and the vehicle's hazard lights could not be activated.

The right side of Zilka's 2019 Dodge Durango SUV collided with the left rear of the box truck. Schauer was Zilka's front passenger and died at the scene. The Berwyn officer was almost 34 years old at the time.

A jury awarded $13.8 million to Schauer's estate, his then-12-year-old son and 9-year-old daughter, for his wrongful death and attributed 99 percent of the fault to MK Deliveries and Ocampo and 1 percent of the fault to Zilka. MK Deliveries and Ocampo appealed.

According to the appeals court, in earlier versions of the pleading, Schauer's estate also sued Rodrigo Marin, Maria Kadushkina and Tipsy's Tap. Rodrigo Marin drove the pickup truck that first struck and disabled the box truck. Marin pled guilty to driving under the influence and tendered the limits of his $25,000 coverage. Maria Kadushkina was the president and owner of MK Deliveries and settled for $100,000.

The other settling defendant, Tipsy's Tap, was the Berwyn bar where Zilka had reportedly been drinking with Schauer and was allegedly overserved. She was charged with driving under the influence.

"It is unclear from the record how much Tipsy's Tap tendered to the estate. After Zilka was found not guilty of drunk driving, Schauer's estate amended its complaint to remove the allegation that Zilka drove under the influence," last week's 38-page ruling showed.

In upholding the $13.89 million with 99 percent of the fault directed at MK Deliveries, the Illinois appeals court noted that Ocampo testified he had a commercial driver's license, although he did not need one to drive a vehicle as small as the Hino box truck.

MK Deliveries had about a dozen trucks and delivered pallets for Amazon. As for Ocampo, he arrived at the truck yard in Plainfield around 2 a.m., made his usual deliveries to Glenwood and Woodridge, and got on Interstate 55 to return the truck. It was cold and very dark at about 6 a.m., with favorable, dry weather conditions on the highway.

There were three southbound lanes, and then a fourth lane would appear and become the exit lane that he would take toward Route 30, the judges noted. During the last half-mile, however, another vehicle collided with the left side of the Hino. The box truck stopped almost immediately in a "really bad spot," and it no longer had working lights.

About 95 percent of the Hino blocked the outer travel lane, and the remainder was on the highway's shoulder. Ocampo recognized the situation was "dangerous" for himself and others because oncoming drivers would be unable to see the box truck in the dark until "right up on top of it." He climbed out on the passenger's side with a flashlight and his mobile phone and brought along his reflective jacket because it was a cold night. Court files show he left behind the reflective triangles that were stored under the passenger's seat. He called his manager, Xavier Patino, thinking that Patino was close enough to quickly assist with some operable lights. Ocampo's phone records showed their first conversation was at 5:57 a.m. Ocampo's next call was to 911.

Then Ocampo walked behind the truck and began waving the flashlight and his phone's flashlight in order to warn others about the danger. Ocampo stood only a couple feet away from the box truck and positioned himself close enough to the guardrail to give himself a 50 percent chance of hopping over if a driver did not see him.

"He knew that a federal regulation required him to utilize safety devices, but he did not believe that he was supposed to put his own life in jeopardy. Cars were coming at Ocampo at 65 or more miles per hour, and he 'didn't want to play chicken' with them by setting out the triangles," the Illinois appeals judges noted in their decision. "There was nothing, however, that prevented him from walking along the guardrail to put the warnings into position. Only the curve in the road impaired his ability to see the oncoming headlights."

The ruling indicates that no more than four minutes passed before Zilka's SUV collided with the mid-sized box truck in lane four in the "pitch black." During those minutes, multiple cars in lanes one, two and three had safely driven by. Perhaps 20 cars made it through, and 5 of those 20 had "near misses." Zilka, however, was transitioning from lane three to lane four.

The judges pointed out that Zilka had already crashed when Ocampo stopped waving the phone in order to answer a call from Patino at 6:12 a.m. The police arrived 10 to 12 minutes later and shut down the roadway.

Toward the end of last week's Illinois appeals court ruling, the judges noted that, "Finally, MK Deliveries argues that it was error to exclude evidence that Schauer and his wife were contemplating a divorce. It contends that excluding a draft marital settlement agreement warrants a new trial on damages, given that the Schauers' 'impending divorce' and his likely obligation for child maintenance and health insurance lessened his children's economic losses. The figures that Schauer and his wife were discussing were less than the figures that were calculated by the estate's economic expert witness, Kristin Kucsma. MK Deliveries also contends that split custody would have reduced the 'chores' that Schauer 'performed for the kids.'"

The Illinois court of appeals indicated in its ruling that "There was an offer of proof, during which Schauer's wife testified that she and Schauer were discussing terms but had not finalized them, had not signed a marital settlement agreement, and had never filed an action for dissolution of their marriage. Schauer's wife was not a claimant in this negligence action and did not have a claim for loss of society or loss of services.

"In our opinion, the draft contract was properly excluded from the trial because (1) it was merely a draft and, therefore, not relevant and (2) even if it was relevant, its probative value was substantially outweighed by the danger of causing unfair prejudice or confusing the issues ... The Schauers could have changed their minds about any and all of the settlement terms and whether they would actually end their marriage. Furthermore, Schauer's estate did not seek damages for his wife and limited its compensation claim to his two children. Thus, the draft had no relevance in these proceedings ... The estate made this a case about two young children losing their father, and it did not concern his relationship with his wife. Given the low evidentiary value of the status of the couples' relationship and the absence of a claim on the wife's behalf, all evidence of potential divorce was correctly barred as unduly prejudicial."

Zilka Found Not Guilty Of DUI During 2023 Trial

In July 2023, Will County Judge Dave Carlson spent several minutes outlining the reasons why the evidence presented at trial by Illinois special prosecutor Bill Elward failed to prove that off-duty Joliet police officer Erin Zilka committed the felony offense of aggravated DUI causing death.

Carlson informed a packed courtroom that Zilka was not guilty of aggravated DUI, and she was not guilty of failure to reduce speed to avoid a crash.

In arriving at his verdict, Judge Carlson explained that Zilka was traveling in her proper lane of traffic when she crashed into the disabled Hino box truck. His truck became disabled minutes earlier when a four-time drunken driver, Rodrigo Marin, of Plainfield, collided with the box truck before trying to walk away from the I-55 wreck.

The crash happened along a curve in the road, and it was dark outside. There was no evidence presented indicating Zilka was driving recklessly before the crash.

Judge Carlson explained that Zilka was traveling in her proper lane at the time of the crash and "driving within a reasonable" speed, perhaps even 1 mph below the posted speed limit of 65. Even though 20 other cars may have swerved around the box truck to avoid hitting it, Carlson said, there was no evidence that any of those motorists tried to get off at the Route 30 exit as Zilka tried to do.

On the felony DUI charge, Carlson said that Illinois law requires prosecutors to prove that Zilka's blood alcohol level was at least 0.08 and that she was so impaired as to cause her act without thought or ordinary care.

"Ms. Zilka was drinking ... the simple consumption of alcohol ... is not evidence of impairment," Carlson declared. "There has to be evidence of impairment."

During her trial, at least five Illinois State Police officers, firefighter-paramedics and a nurse at St. Joe's hospital all testified that Zilka did not appear impaired or intoxicated in the aftermath of the fatal wreck killing Schauer.

Except for one Illinois State Police trooper who claimed he smelled alcohol on Zilka's breath at the hospital, "there is no other testimony of any additional signs of impairment, swaying or staggering. There simply wasn't any evidence of that."

A blood draw taken of Zilka at the hospital registered 0.07, which is slightly below the legal limit in Illinois to be considered intoxicated.

"I can't say how sad she is. She is completely and totally devastated," "is completely devastated," her criminal defense lawyer Jeff Tomczak once told Joliet Patch. "It's beyond my ability to express it."