Authorities in Illinois have concluded that the tragic death of a 2-year-old boy in July, caused by a car crashing into a Portillo’s restaurant, was due to “driver error.” However, police state that no charges will be filed in this case.

Following an investigation lasting nearly three months, officials discovered that the incident occurred when the driver accidentally pressed the accelerator instead of the brake, leading the vehicle to collide with the restaurant, as detailed in a press release from the Oswego Police.

The police department’s findings were forwarded to the Kendall County State’s Attorney’s Office. After a thorough review, they concluded that the investigation was comprehensive and agreed that the 50-year-old driver should not face criminal charges.

Finnegan McKee, the young son of Christina and Schyler McKee, lost his life when the vehicle, driven by a Michigan woman, crashed into the Portillo’s in the Chicago area. The grieving family is pursuing a lawsuit against the restaurant, seeking over $100,000, alleging that the establishment’s design and parking layout are “unreasonably dangerous” and prone to such vehicle accidents.

Oswego Police confirmed that impairment was not a contributing factor in the crash on July 30, noting no signs of intoxication in the driver. Toxicology tests indicated a THC level of 1.4 ng/ml, which is below Illinois’ legal driving limit of 5 ng/ml, according to police findings.

“Given the toxicology results and observations made by officers, there was no indication of impairment,” the police department stated. “Furthermore, there was no evidence of distraction from her phone. Data showed the phone was used solely for navigation en route to the restaurant.”

Authorities say they weighed charges such as reckless homicide or involuntary manslaughter, but the woman’s actions “did not meet the legal requirements for those offenses” as there was no evidence of a willful or wanton disregard for the safety of others, which is a required element for charges. “Additionally, no citations were issued because Illinois law limits what charges can be filed for crashes on private property, and none of those apply to this case,” Oswego police said.

“This was a careful and comprehensive investigation,” said Oswego Police Chief Jason Bastin in a statement Wednesday. “Our detectives reviewed all available evidence, including forensic data, witness statements, medical records, and vehicle analysis. We determined this was a tragic accident in which the driver was at fault, but her actions were not criminal.”

The chief added, “We extend our deepest sympathies to the family, friends, and community members affected by this heartbreaking loss.”

The McKees’ attorney, Louis A. Cairo, told Law&Crime in August that they were filing a lawsuit in Cook County Circuit Court to try to get justice.

“This is an absolutely devastating and heart-wrenching case,” Cairo said.

“They’re sitting at one of the tables closest to the entrance, they’re having a great time at 2 o’clock in the afternoon,” Cairo recalled about the day Finnegan McKee was killed. “He’s got his mom and dad, his grandma and grandpa, his aunt and uncle, he’s got his little brother, and next thing they know it’s absolute mayhem,” Cairo said. “The unthinkable happens as a car comes flying through the front door.”

The driver, who has not been publicly identified, allegedly hopped a curb and crashed through the Portillo’s after mistaking the gas for the brake, police say. She was in town from Canton, Michigan, at the time.

“The crash data retrieval system revealed five seconds of pre-crash information,” Oswego cops say. “During this period, the brake pedal was never engaged. The vehicle was traveling approximately 5-6 mph as it entered the parking space. From -2.0 seconds to the point of impact, the accelerator pedal was increasingly applied, reaching 100% at impact. The vehicle speed increased from 5.6 mph to 14.9 mph in those final seconds. The vehicle’s anti-lock braking system (ABS) showed no activity during the entire five seconds, confirming the brakes were never applied.”

The McKees don’t mention the woman specifically in their wrongful death lawsuit against Portillo’s, only that the crash resulted from the restaurant not having a “barrier to prevent a vehicle incursion” and other safety design measures, according to their  legal complaint.

“Portillo’s configured the parking lot so that parking spaces were positioned immediately in front of, and perpendicular to, the restaurant entrance, requiring vehicles to park head-in or back-in rather than parallel to the building frontage,” the complaint alleges. “The parking spots immediately in front of the restaurant had no physical barriers, such as parking stops, parking bumpers, fencing, bollards or walls, any one of which would prevent or, at a minimum slow a vehicle from driving from the asphalt parking lot up onto the sidewalk and into the storefront.”

Speaking at a press conference on Aug. 22, Finnegan’s parents talked about their son and how it felt to lose him in such a tragic way.

“You don’t go out somewhere expecting to not come home with your 2-year-old,” Christina McKee said, calling Finnegan “perfect” and the “smartest little 2-year-old.”

“Nobody should have to go through that,” she concluded.

Cairo and his law firm announced on Oct. 13 that construction was underway at the Portillo’s to install safety barriers. “The project marks an important step toward preventing another tragedy,” they said.

The family’s lawsuit remains pending in Cook County Circuit Court. Portillo’s has not responded to Law&Crime’s requests for comment.