Following a subsequent trial upon an amended complaint, the jury returned a verdict in favor of defendant and plaintiff appealed. The appellate court affirmed ( 74 Ill. App.3d 436), and we subsequently granted leave to appeal. We affirm.
Here, in light of the fact that decedent was only momentarily stopped at 9:05 and 9:15 p.m. and allowed to continue on his way, his freedom of action could only have been curtailed for minutes and, absent any indication that he was subjected to restraints associated with a formal arrest, he cannot be deemed to have been "in custody" under the Berkemer rule. Similarly, plaintiff's reliance on Dezort v. Village of Hinsdale (1976), 35 Ill. App.3d 703, 342 N.E.2d 468, and Brown v. Decatur Memorial Hospital (1979), 74 Ill. App.3d 436, 393 N.E.2d 84, is misplaced. Plaintiff relies on these cases for the proposition that where a complaining plaintiff is intoxicated and suffers injury while in an entity's care or custody, the entity is liable to the plaintiff. Not only are both cases factually distinguishable from the present case, but plaintiff has misinterpreted the rule in Dezort and misstated as law that which is dicta in Brown.
But, on the other hand, if the jury finds that the decedent was incapable of the exercise of care for his own safety due to his state of intoxication or mental instability, or both, then they must be directed to disregard instructions Nos. 3, 4 and 5 since contributory negligence can no longer be in issue. (See Brown v. Decatur Memorial Hospital (1979), 74 Ill. App.3d 436, 442-44, 393 N.E.2d 84, 88-89 (Trapp, J., specially concurring).) In sum, therefore, the jury must first decide whether the defendant was negligent, second, it must determine whether the decedent was capable of exercising ordinary care. If he could, then the normal contributory negligence instructions apply. If he could not, then the acts or condition of the decedent are not a defense for the defendant and judgment could be entered accordingly.