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07/10/97 JANET SEITZ v. JOSEPH VOGLER

July 10, 1997

JANET SEITZ, INDIV. AND AS MOTHER AND NEXT FRIEND OF ASHLEY SEITZ AND RACHEL SEITZ, MINORS, PLAINTIFF-APPELLANT,
v.
JOSEPH VOGLER, AS ADM'R OF THE ESTATE OF EUGENE SEITZ, DECEASED, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Lake County. No. 95--L--621. Honorable Christopher C. Starck, Judge, Presiding.

Released for Publication August 8, 1997.

The Honorable Justice Doyle delivered the opinion of the court. McLAREN and Bowman, JJ., concur.

The opinion of the court was delivered by: Doyle

The Honorable Justice DOYLE delivered the opinion of the court:

This negligence action arose from a fatal boating accident involving the collision of two boats on Fox Lake at around 11:10 p.m. on June 15, 1991. Defendant's decedent, Eugene Seitz (hereinafter defendant), was operating one of the boats (defendant's boat) and was killed in the accident. Defendant's spouse, plaintiff, Janet Seitz, and the couple's two minor daughters, Ashley Seitz (Ashley) and Rachel Seitz (Rachel), were passengers in defendant's boat at the time of the collision.

Plaintiff, individually, and as mother and next friend of Ashley and Rachel (collectively plaintiffs) brought this action against defendant's estate. Plaintiff's complaint alleged that, as a result of defendant's negligence, each of the plaintiffs was placed in a zone of danger at the time of the accident and suffered physical injuries as well as psychological and emotional injuries from the collision.

Following a trial in the circuit court of Lake County, a jury returned verdicts in favor of defendant and against each of the plaintiffs. Plaintiff appeals from a subsequent trial court order which denied her post trial motion seeking judgment notwithstanding the verdict or a new trial. The issues presented on appeal are (1) whether plaintiff's complaint failed to state a cause of action; (2) whether the jury's verdict was against the manifest weight of the evidence; (3) whether the jury was improperly instructed or an improper ex parte communication related to a special interrogatory occurred; and (4) whether the trial court erred in granting a motion in limine in favor of defendant.

At trial, plaintiff's first witness was John Southern. Southern testified that he and five friends were in the boat that collided with defendant's boat. One of Southern's friends, Randy Burnett, was operating the boat (the Burnett boat) at the time of the accident. The group had been using the Burnett boat since about 3:30 p.m. on the day of the accident for various boating activities such as water skiing and tubing. Southern testified that, during the course of the day, three members of the group, Southern, Burnett, and Brian Koerner, operated the Burnett boat at various times.

Southern further testified that at around 9 p.m., after going into town and getting something to eat, the group got back into the Burnett boat and decided to go for one last ride. After about an hour and one-half, the group decided to return the Burnett boat to its marina. Burnett was operating the boat as it headed south and then began heading west to return to the marina. Southern was sitting in the front passenger seat next to Burnett. Two other members of the group were in a rear seat and two others were in the cuddy cabin of the 23-foot boat.

Southern testified that Burnett was operating the boat at a "moderate speed" of about five miles per hour. He stated that the Burnett boat was not creating a wake. Both Southern and Burnett were looking forward. The boat's lights were on as they proceeded. Southern saw no other boats in front of them.

Southern recalled the impact of the collision with defendant's boat, but stated that he did not see the collision because he was looking at his watch at the moment of impact. He stated that he first saw defendant's boat only after the Burnett boat turned around following the collision. He also stated that, in the second or two when he was looking at his watch, the front of Burnett's boat suddenly came up and veered over to the left.

Southern further testified that he never saw any lights on in defendant's boat. When the Burnett boat had turned around and gone back to defendant's boat, plaintiff was screaming hysterically. Defendant was sprawled out on the floor of his boat in "very bad" condition. The two children in defendant's boat were crying. Plaintiff continued to scream during the short period of time it took to transfer her and the children to Burnett's boat and take them to shore.

On cross-examination, Southern denied that the first time that Burnett operated the boat on the day of the accident was about two minutes before the accident. Southern reiterated that Burnett had also operated the boat earlier that day, in the afternoon. Southern admitted that he did not tell the investigating police officer on the night of the accident that Burnett had operated the boat earlier in the day. Southern also admitted that he "might have" told the investigating officer on the night of the accident that the Burnett boat was going 25 to 30 miles per hour at the time of the collision. Southern also admitted that he told the investigating officer that he saw defendant's boat before the impact.

On redirect examination, Southern stated that the investigating officer did not ask him whether Burnett had operated the boat earlier in the day. As to seeing defendant's boat before the impact, Southern stated that he only caught a glimpse of defendant's boat just before the collision.

Plaintiff's next witness was David Sallmann, an expert in forensic engineering and accident reconstruction, including boating accidents. Sallmann also has experience in boating safety. Based on a review of the police reports concerning the accident, photographs, and two inspections of defendant's boat, Sallmann formulated opinions regarding the accident.

Sallmann determined that defendant's boat was making a full left turn at the time of impact and that the Burnett boat was traveling in a straight line. Based on the physical evidence of damage to defendant's boat, Sallmann determined that "impact was approximately coming in at 3:00 position" or a crossing position relative to defendant's boat. Sallmann opined that Burnett's boat was therefore the privileged boat under the rules of navigation and that defendant's boat was obliged to give way to Burnett's boat, i.e., defendant had the responsibility to take early and substantial evasive action to avoid the collision. Sallmann opined that the recommended evasive course of action for defendant's boat in such a situation would have been to alter its course to the right.

Sallmann also analyzed the electrical system on defendant's boat. He found no evidence of any defect or malfunction in the electrical system. He noted a police report which indicated that the light switch on defendant's boat was in the "off" position when the boat was inspected approximately one hour after the collision. Based on the report, Sallmann opined that the lights on defendant's boat were not on at the time of the collision.

Sallmann also analyzed the likely speed of the boats at the time of impact. Based on only the physical evidence, he could not determine the absolute speed of the boats, but he could determine the relative speed of the boats. Sallmann opined that defendant's boat was traveling at least two-thirds of the speed of the Burnett boat.

On cross-examination, Sallmann acknowledged that he was aware of plaintiff's statements to police officers, first immediately after the accident and, second, while accompanied by her attorney 11 days after the accident. Sallmann also acknowledged that in these statements plaintiff told the police that the lights on defendant's boat, including the red and green navigation lights and a white pole light, were on at the time of the collision. Sallmann also acknowledged that, in her statements to Officer Barrett 11 days after the accident, plaintiff said that, in addition to the boat lights, defendant had been using a flood light to help locate navigational buoys as he was proceeding on the night of the accident.

Sallmann considered plaintiff's statements when he formed his opinions regarding the lights on defendant's boat. Nonetheless, he concluded that, based on the physical evidence, some things plaintiff said she saw were "just physically not possible" and that plaintiff was therefore mistaken. Sallmann admitted that he did not have any first-hand knowledge as to whether the lights on defendant's boat were on at the time of the collision.

Sallmann also acknowledged that plaintiff, in her statements to the police, said that she did not see any lights from the Burnett boat. He also was aware that Burnett testified in a deposition that the boat he was operating was traveling approximately 30 miles per hour at the time of the collision.

Sallmann opined that the physical evidence showed that Southern was mistaken when he testified that the Burnett boat was traveling only five miles per hour. Sallmann agreed that a speed of 25 miles per hour, or more, for the Burnett boat, was consistent with the physical damage to defendant's boat.

Sallmann was aware that plaintiff said that defendant's boat was traveling very slowly and that defendant was operating the boat very cautiously at the time of the collision. Nonetheless, Sallmann opined that, based on the physical evidence, defendant's boat "had to be going considerably faster than that" right at impact.

Sallmann acknowledged that he did not physically examine the toggle light switch on defendant's boat. Rather, because the police had removed the switch, he only examined photographs of the switch. Based on a picture of defendant's boat which showed how the boat looked after the collision, Sallmann agreed that the entire dashboard of the boat, which presumably included the light switch, could be described as "torn out." Sallmann further acknowledged that Officer Barrett, who reconstructed the accident for the police department, went to the scene and physically reviewed the damage to the boats and looked at the toggle light switch. Sallmann was aware that Officer Barrett concluded that the impact of the collision may have caused the switch to go into the "off" position.

Sallmann reiterated that he concluded that defendant's boat tried to avoid the collision by making an evasive maneuver to the left and that the Burnett boat did not make any evasive maneuver. Sallmann was aware of Burnett's statement in his deposition that he never saw defendant's boat before the impact. Sallmann agreed that, if the lights were on in defendant's boat, as plaintiff stated, Burnett and Southern should have been able to see the lights for a distance of over one mile.

On redirect examination, plaintiff's attorney showed Sallmann an excerpt from plaintiff's statement to a police officer regarding the lights on the Burnett boat. The statement indicated that plaintiff saw the Burnett boat only briefly before the collision and did not know if it had any lights on. Sallmann also agreed that the police report showed that none of the witnesses on Burnett's boat indicated that there were lights on in defendant's boat.

On re-cross-examination, Sallmann acknowledged that two of the passengers in Burnett's boat were in the cabin at the time of the collision and therefore had no opportunity to observe defendant's boat before the collision. He also acknowledged that Southern testified that he was looking at his watch at the moment of impact and that the police reports showed that two other passengers were kissing on the rear bench seat of the Burnett boat just before the collision.

Plaintiff's next witness was plaintiff's brother, Donald Jordan. Jordan testified that prior to the accident plaintiff was upbeat, energetic, outgoing, active, reliable, and happy. Before the accident, plaintiff also had no problems with concentration, regularly held a job as a bookkeeper, and was a conscientious housekeeper. Jordan testified that after the accident plaintiff no longer exhibited these attributes. Since the accident, she has become a poor housekeeper and withdrawn, and she is unable to concentrate or hold a job. If Jordan tries to converse with plaintiff, she either drifts away or starts to cry. Plaintiff has had her phone removed. She is unreliable and routinely does not appear at events even though she says she will be there. Jordan characterized plaintiff as "depressed."

On cross-examination, Jordan acknowledged that plaintiff has engaged in certain activities since the accident. These activities included providing primary care for Ashley and Rachel; being a leader of a brownie troop; selling two automobiles; and taking at least one trip to Florida.

Plaintiff's next witness was Mary Anderson. Anderson lives about mile from plaintiff and has known plaintiff for about three years. They are coleaders of a brownie troop. Although they are coleaders, Anderson does most of the organizational work because plaintiff does not follow through on organizational tasks.

Anderson sees plaintiff three or four times per week. Anderson is unable to hold conversations with plaintiff for any length of time. Anderson testified that plaintiff frequently cries because of "everything going around in her head." Plaintiff does not elaborate or go into detail on these things.

On cross-examination, Anderson stated that she has two daughters who are close in age to Ashley and Rachel. Plaintiff watches Anderson's daughters for a few hours three days a week while Anderson works. Anderson acknowledged that plaintiff has stated that her father died in 1990, her husband died in 1991, her mother died in 1992, and a brother is currently ill.

Plaintiff testified on her own behalf as follows. She was essentially steadily employed at various jobs from 1979 through 1988 when she gave birth to her youngest child, Rachel. She also worked in 1990 and 1991 prior to the accident. Since the accident, she has attempted to return to work twice but stopped working each time after a brief period. She believes she is unable to work because she "can't concentrate" and her mind wanders. She did not have these problems before the accident.

When asked if she remembered the accident, plaintiff replied, "A little." She stated that she remembered seeing the white bottom of the other boat and seeing her husband and her children. She also stated that she did not remember much with respect to talking to the police officers about the accident.

On cross-examination, defendant's attorney requested permission to go outside the scope of the direct examination in order to avoid having to call plaintiff back to testify again. Plaintiff's attorney stated that he had no objection to this.

Plaintiff then testified as follows. She recalled speaking to police officer Tom Gardner after the accident. She recalled telling Gardner that the lights on defendant's boat were lit on the night of the ...


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