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Peterson v. Henning





Appeal from the Circuit Court of McLean County; the Hon. Luther H. Dearborn, Judge, presiding.


Hit and run.

Question: Is evidence of the "run" admissible?

Answer: Yes.

We affirm.

Brock Henning appeals from a judgment on a verdict in favor of David Peterson for personal injuries sustained by Peterson when he was struck by an automobile driven by Henning. Peterson was in a bar in Bloomington, Illinois, on August 3, 1976, when he met Henning's girlfriend, Mary Mooney. Mooney and Henning had had a dispute earlier in the evening at another bar and Mooney had walked out on Henning. Shortly afterwards, Henning arrived and a shoving match ensued between Peterson and Henning over who would drive Mooney home. The three — Peterson, Henning, and Mooney — were asked to leave the bar. Peterson and Mooney left first in Peterson's truck with Henning following close behind in his car.

Eventually, Peterson pulled his truck over onto the shoulder of the road and stopped. Henning stopped about a car's length behind Peterson's truck but stayed on the road. Peterson exited his truck, with tire iron in hand, and walked back towards Henning's car. Mooney also exited the truck on the driver's side and followed Peterson. Henning testified he could see Peterson in his headlights about 20 feet in front of his car. Henning turned his wheels to the left, accelerated the car, and ducked as he saw Peterson throw the tire iron at the windshield. Henning stopped his car alongside of Peterson's truck and called for Mooney to get in his car. Mooney attempted to start Peterson's truck and, failing to do so, joined Henning in the car. They drove about a mile down the road, pulled over, and spent the night in Henning's car. They noticed that his windshield was smashed but, according to their testimony, they did not discuss whether Peterson had been struck by Henning's car. Both Henning and Mooney testified that they neither saw nor were aware that Peterson had been struck by Henning's car. The next morning Henning and Mooney drove to an auto repair shop and had the smashed windshield replaced. Henning and Mooney eventually learned from Mooney's roommate and the roommate's boyfriend that Peterson had been injured.

Peterson was found lying in a ditch off the road at 5:30 the next morning by a passing motorist. He testified that all he could remember was leaving the bar and then waking up in a ditch when he was discovered by the motorist. Peterson underwent extensive treatment for severe injuries to his hip, abdomen, and right leg.

His two-count complaint alleged that Henning was negligent and wilful and wanton in the operation of his automobile. The jury returned a verdict in favor of Peterson finding his total damages to be $267,000, but also finding him 35% negligent. Accordingly, the jury found Peterson's recoverable damages to be $173,550. The trial court entered judgment on the verdict.


• 1 Defendant Henning alleges several errors on appeal, the most significant of which is the trial court's denial of defendant's motion in limine to exclude evidence that defendant left the scene of the accident. Defendant argues that his failure to stop bore no causal relationship to plaintiff Peterson's injuries and cites several cases from other jurisdictions in support of this argument. See Clark v. Mask (1957), 232 Miss. 65, 98 So.2d 467; Schlosberg v. Doup (1933), 187 Ark. 931, 63 S.W.2d 337; Springer v. Adams (1927), 37 Ga. App. 344, 140 S.E. 390.

Plaintiff counters with cases which have held that evidence of a defendant's failure to stop is admissible in personal injury suits. (See Brooks v. E.J. Willig Truck Transportation Co. (1953), 40 Cal.2d 669, 255 P.2d 802; Grzys v. Connecticut Co. (1938), 123 Conn. 605, 198 A. 259; Petroleum Carrier Corp. v. Snyder (5th Cir. 1947), 161 F.2d 323; Shaddy v. Daley (1938), 58 Idaho 536, 76 P.2d 279; Langenstein v. Reynaud (1930), 13 La. App. 272, 127 So. 764.) However, even in jurisdictions which allow the admission of evidence of a defendant's failure to stop, it is acknowledged that the evidence is not relevant to establish the proximate cause of the plaintiff's injuries. See Grzys; Hallman v. Cushman (1941), 196 S.C. 402, 13 S.E.2d 498; Battle v. Kilcrease (1936), 54 Ga. App. 808, 189 S.E. 573.

In Illinois, a motorist has a statutory duty to remain at the scene of an accident in which he is involved. (See Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11-401(a).) The violation of such a duty may result in personal liability for the aggravation of injuries sustained in the accident or additional injuries incurred after the accident. (See, e.g., Karl v. C.A. Reed Lumber Co. (1969), 275 Cal.App.2d 358, 79 Cal.Rptr. 852.) In the present case, plaintiff neither alleged nor proved that he suffered either aggravated or additional injuries as a result of defendant's failure to remain at the scene of the accident. Consequently, defendant's conduct after the accident was not a proximate cause of plaintiff's injuries. However, this does not necessarily render evidence of defendant's failure to stop inadmissible.

First, it has been held that leaving the scene of an accident is evidence of a wilful, wanton or reckless state of mind. (See Richards v. Office Products Co. (1977), 55 Ohio App.2d 143, 380 N.E.2d 725; Hallman.) In Busbee v. Quarrier (Fla. App. 1965), 172 So.2d 17, 22, the court stated: "The evidence was also sufficient to support a finding of negligence on the part of the operator who apparently did not stop or otherwise show any normal reaction after striking the deceased, for these acts suggest lack of control of faculties or a degree of callousness of which no sober person would be guilty." In a hit and run accident, the defendant's wilful and wanton state of mind immediately following the accident is some evidence of a wilful and wanton state of mind at the time the accident occurred where the conduct of driving a vehicle from the scene of the accident is a ...

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