The driver involved in a crash at an Oswego Portillo’s location that killed a 2-year-old boy in July will not face criminal charges, the Oswego Police Department said on Wednesday.
Following a nearly three-month investigation, the department says the crash “was caused by driver error” and that criminal charges weren’t warranted. The department’s investigation found that the driver had mistakenly pressed the accelerator instead of the brake, which caused the vehicle to crash into the restaurant.
On July 30, a vehicle crashed through the front entrance of a Portillo’s location at 2810 Route 34 in Oswego, according to past reporting. A 2-year-old boy died, and 12 people were injured.
The department said in a Facebook post Wednesday that their investigation included interviews with the driver, injured patrons and witnesses; a forensic review of the driver’s phone data; a review of medical records and toxicology testing and a full reconstruction of the crash, including analysis of the car’s crash data retrieval system.
The crash data retrieval system showed five seconds of pre-crash information, during which the brake pedal was not used, the department said in the Facebook post on Wednesday.
The vehicle was moving at approximately 5 to 6 miles per hour entering the parking space, according to the department, and then, seconds from the point of impact, the accelerator was increasingly applied and reached 100% at impact, leading the vehicle’s speed to reach 14.9 miles per hour in the final seconds.
The police department also found that driver impairment was not a factor. Officers said they observed no signs of impairment in the driver, 50, who lives in Michigan, and toxicology results did not show the presence of alcohol. It did show a THC level of 1.4 ng/ml, but the department said that is below the state threshold of 5 ng/ml for driving under the influence.
And, the police department noted, data confirmed that the driver was only using her phone for navigation while driving to the restaurant, meaning it’s not believed she was distracted by her phone.
The department’s investigators ultimately determined that reckless homicide or involuntary manslaughter charges weren’t merited because there was “no evidence of a willful or wanton disregard for the safety of others, which is a required element for charges,” the Facebook post from the department said. There were also no citations issued, the department added, because state law limits what charges can be filed for crashes that occur on private property.
“We determined this was a tragic accident in which the driver was at fault, but her actions were not criminal,” Oswego Police Chief Jason Bastin said in the Facebook post. “We extend our deepest sympathies to the family, friends, and community members affected by this heartbreaking loss.”
The police department said on Wednesday that their findings were submitted to the Kendall County State’s Attorney’s Office, which agreed that criminal charges weren’t warranted against the driver.
Since the crash, the family of the 2-year-old boy who was killed have filed a lawsuit against the restaurant chain. The lawsuit criticizes the lack of physical barriers into the restaurant’s front entrance, and alleges that the set-up creates a risk of a vehicle driving into the storefront.
The law firm representing the family did not immediately return The Beacon-News’ request for comment on Thursday. Portillo’s also did not immediately respond to a request for comment.
Two counts are included in the lawsuit, one under the Illinois Wrongful Death Act and the other under the Illinois Survival Act. The lawsuit is seeking damages from Portillo’s in excess of $100,000. The next court date for the lawsuit is set for Dec. 8, according to the Clerk of the Circuit Court of Cook County’s website.
And the Oswego Village Board has begun discussing changes to building codes in front of new commercial buildings, according to past reporting, in the wake of the fatal crash.
mmorrow@chicagotribune.com
