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06/17/94 JOHANNA KING v. JOHNNY R. CLEMONS

June 17, 1994

JOHANNA KING, SPECIAL ADMINISTRATOR OF THE ESTATE OF ROBERT KING, DECEASED, PLAINTIFF-APPELLEE,
v.
JOHNNY R. CLEMONS, JR., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison County. No. 89-L-565. Honorable P. J. O'Neill, Judge Presiding.

Petition for Leave to Appeal Denied December 6, 1994.

Goldenhersh, Welch, Rarick

The opinion of the court was delivered by: Goldenhersh

JUSTICE GOLDENHERSH delivered the opinion of the court:

Defendant, Johnny R. demons, Jr., appeals from a judgment in favor of plaintiff, Johanna King, special administrator of the estate of Robert King, deceased (plaintiff Charles King died before trial and is not a party to this appeal), in a wrongful death action plaintiff filed after her son, Robert King (decedent), was killed while he was riding in defendant's car. The jury found defendant to be negligent and returned a verdict for plaintiff in the amount of $334,856.97. The circuit court of Madison County entered judgment on the verdict and denied defendant's posttrial motion. In this appeal, defendant presents the following issues for review: (1) whether the trial court erred in allowing plaintiff's motion to bar defendant's evidence of a defective steering column; (2) whether the trial court erred in not sustaining defendant's objection to comments made by plaintiff's counsel in closing argument; (3) whether the trial court erred in instructing the jury on damages and submitting plaintiff's verdict form; and (4) whether there was any evidence to support plaintiff's claim that the decedent contributed income to plaintiff prior to his death. We affirm.

On March 16, 1989, defendant came home from high school and found decedent waiting for him. Defendant and decedent were friends, and decedent had spent the previous night at defendant's house. Defendant had planned to take his recently purchased 1973 Pontiac Trans Am to an exhaust shop in Staunton for some repairs that afternoon. Since decedent was still at the house, he decided to ride to Staunton with defendant. Defendant had driven the car on one prior occasion and experienced no problems.

Defendant testified that to get to Staunton from Livingston, where defendant lived, he had to drive on Livingston Avenue. On Livingston Avenue, he drove through one curve, drove straight for one-eighth to one-quarter mile, and then had to drive through asecond curve. On the straightaway, defendant was driving approximately 50 miles per hour. As he approached the second curve, he took his foot off the accelerator, but the pedal stuck. Defendant testified that he tried to pry the gas pedal from its position with his feet but was unable to do so. Defendant then pumped the brakes and was able to slow the car down to approximately 40 miles per hour. Defendant also turned the ignition off, hoping that would slow the car down, to no avail. At the curve, the car went off the road, across a grassy area, and crashed into a tree, at which time decedent was fatally injured.

Although defendant wanted to present evidence that the steering wheel locked pursuant to a defective condition in the steering column, the trial court barred him from doing so. Prior to trial, plaintiff filed and served on defendant a document entitled "Notice To Preserve Material Evidence." That document stated that plaintiff intended to use and examine the 1973 Pontiac defendant was driving at the time of the accident, and plaintiff "required defendant to preserve said evidence and not otherwise dispose of or * * * alter said evidence." Upon receipt of that document, defendant's attorney placed it in the client file. Sometime thereafter, defendant changed attorneys. In the course of preparing the defense, defendant's second attorney hired an engineer to remove the steering column from the car for an examination.

On the first day of trial, plaintiff filed a motion to bar defendant from introducing any evidence concerning the condition of the steering column. Plaintiff argued that defendant's removal of the steering column violated the "Notice To Preserve Material Evidence." At that time, defense counsel stated that he was unaware of the document but acknowledged that he had the responsibility of thoroughly reviewing the file after he took over the case. The trial court granted plaintiff's motion to bar evidence and entered an order preventing defendant from introducing any evidence or raising any defense regarding the condition of the steering column. This order was entered as a sanction pursuant to Supreme Court Rule 219(c) (134 Ill. 2d R. 291(c)).

Defendant first argues on appeal that the trial court erred in granting plaintiff's motion to bar all evidence concerning the steering column. Supreme Court Rule 219(c) provides that courts may, upon motion, enter sanctions against a party for unreasonably refusing to comply with discovery requests. (134 Ill. 2d R. 219(c).) Two such sanctions are: (1) that the party be debarred from maintaining any particular claim, counterclaim, third-party complaint, or defense relating to that issue, and (2) that a witness be barred from testifyingconcerning that issue. (134 Ill. 2d R. 219(c)(iii), (iv).) The imposition of these sanctions rests largely in the discretion of the trial court and will not be disturbed on review unless that discretion was abused. Graves v. Daley (1988), 172 Ill. App. 3d 35, 37, 526 N.E.2d 679, 680, 122 Ill. Dec. 420; Ralston v. Casanova (1984), 129 Ill. App. 3d 1050, 1056, 473 N.E.2d 444, 449, 85 Ill. Dec. 76.

Plaintiff notified defendant of her interest in keeping the automobile intact by sending defendant the "Notice To Preserve Material Evidence," but defendant's action of removing the steering column denied plaintiff the opportunity to examine or use the automobile as it was after the crash. Although defendant argues that the trial court's ruling was unjust, we disagree. The trial court was in the best position to assess the appropriate sanction for defendant's disregard of plaintiff's notice to preserve. After a thorough examination of the record, we find no abuse of discretion by the trial court and thus will not disturb its ruling on this issue.

Defendant next contends that the trial court erred in not sustaining his objection to comments made by plaintiff's counsel during closing argument. When the trial court granted plaintiff's motion to bar any evidence relating to the steering column, it was agreed that plaintiff could not capitalize on the order by referring to or challenging defendant on the inadmissible evidence. Defendant argues that plaintiff violated that agreement by making certain statements during closing argument. Defense counsel objected at trial to the following comment regarding defendant's actions when he approached the curve in the road:

"[Defendant] was at a point in the road where * * * the speed limit changed from 55 miles an hour to 40 miles an hour for the curve so he had gotten his speed down to an acceptable speed for negotiating the turn. Why not merely go through the turn at 35 miles an hour?"

After the parties approached the bench on defendant's objection, plaintiff's counsel continued his closing argument, ...


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