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12/08/97 DAVID RINESMITH v. GLENN L. STERLING AND

December 8, 1997

DAVID RINESMITH, PLAINTIFF-APPELLANT,
v.
GLENN L. STERLING AND GEORGE L. ZIBERT, D/B/A Z-LINE TRUCKING COMPANY, DEFENDANTS-APPELLEES.



Appeal from Circuit Court of Champaign County. No. 94L256. Honorable George S. Miller, Judge Presiding.

Released for Publication January 6, 1998.

Honorable Frederick S. Green, J., Honorable James A. Knecht, J. - Concur, Honorable Robert J. Steigmann, J. - Concur. Justice Green delivered the opinion of the court.

The opinion of the court was delivered by: Green

The Honorable Justice GREEN delivered the opinion of the court:

In March 1994, plaintiff, David Rinesmith, brought suit in the circuit court of Champaign County against defendant Glenn L. Sterling (Sterling), and his employer, defendant George L. Zibert (Zibert), d/b/a Z-Line Trucking Company (Z-Line). Plaintiff sought damages for injuries he received in a collision between the automobile plaintiff was driving and a truck being driven by Sterling while in his employment with Zibert. After a trial by jury, the circuit court entered judgment on a verdict for both defendants. Plaintiff has appealed, contending the circuit court erred in refusing to permit plaintiff to present opinion testimony by an expert witness.

We conclude that some of the questioned testimony by the expert could have been properly admitted by the circuit court, but, under the circumstances, the circuit court did not abuse its discretion in refusing admission of the testimony. Accordingly, we affirm.

The following facts are not disputed. On the evening of November 9, 1992, Sterling was driving a tractor and semi-trailer southward on Interstate Highway 57, hauling steel coils for Z-Line. Sterling swerved to avoid hitting a deer, causing his truck to leave the pavement and enter the grassy median. His truck hit a guardrail, causing both the truck and semitrailer to turn on their sides. When they came to rest, they blocked the left lane and part of the right lane of southbound traffic. Sterling estimated his speed at between 55 and 60 miles per hour and that the deer were 200 to 300 feet in front of him when he first saw them.

A truck driven by Lyle McCollam and a bus driven by Mahlon Meneley then came upon the scene and stopped along the side of the road. McCollam, Mahlon, and Mahlon's brother Gary saw plaintiff's car pass their parked vehicles and collide with Sterling's overturned truck. Gary Meneley testified that, in his opinion, plaintiff was traveling at a speed of at least 70 to 75 miles per hour and his brake lights never went on nor did he ever swerve. We discuss McCollam's testimony later.

The expert witness whose testimony was excluded was Dwayne Owens. Prior to trial, the defense made a motion to exclude that testimony and the trial judge withheld ruling on that motion until he had heard all of plaintiff's other testimony. He then allowed the motion, excluding all testimony. In closing argument, plaintiff's counsel stated that the discovery deposition of Owens and a report of his that were before the court constituted his offer of proof. No individual offers of proof were made as to particular questions and answers or as to any particular line of questions and answers.

Owens' proposed testimony included opinions that (1) judging from the surrounding circumstances, Sterling's truck was traveling at approximately 55 miles per hour at the time it left the road; (2) at the time plaintiff's vehicle approached the truck, it was traveling at approximately 57 miles per hour; (3) Sterling should have been able to stop before hitting the deer and used dangerous and unreasonable tactics in swerving to avoid the deer; (4) Sterling's driving was the direct and proximate cause of the collision between plaintiff's vehicle and the truck; (5) the truck and its trailer were not visible to plaintiff as he approached; and (6) the presence of the other vehicles with their lights on was a distraction to plaintiff rather than a warning of impending danger requiring him to slow down.

Accordingly, Owens would have testified to the following material questions: (1) the speed at which Sterling was driving, (2) the skill with which Sterling was driving, (3) the speed at which plaintiff was driving, and (4) the effect the totality of the scene that plaintiff confronted would have upon plaintiff's ability to avoid the wrecked vehicle in front of him. Some of this testimony included a reconstruction of what likely happened and some of it concerned opinions as to the care exercised by the two drivers.

The question of the propriety of expert testimony of the nature here has undergone great scrutiny in recent years, and the trend has been to grant admissibility to more of this type of testimony. The Supreme Court of Illinois has spoken most recently in Watkins v. Schmitt, 172 Ill. 2d 193, 665 N.E.2d 1379, 216 Ill. Dec. 822 (1996), and Zavala v. Powermatic, Inc., 167 Ill. 2d 542, 658 N.E.2d 371, 212 Ill. Dec. 889 (1995). Watkins involved a wrongful death suit arising from a collision between an automobile and a cement mixer. The supreme court held that the trial court properly refused to permit expert reconstruction testimony as to the speed of the cement mixer when an eyewitness had already testified to that matter and where determination of the speed of an automobile does not involve "'"knowledge and application of principles of science beyond the ken of the average juror."'" Watkins, 172 Ill. 2d at 205, 665 N.E.2d at 1385-86, quoting Zavala, 167 Ill. 2d at 546, 658 N.E.2d at 374, quoting Plank v. Holman, 46 Ill. 2d 465, 471, 264 N.E.2d 12, 15 (1970).

Here, eyewitnesses testified as to the speed of the two vehicles, and this determination was also within the ken of the average juror. A trial judge has some discretion in regard to the admission of expert testimony. Augenstein v. Pulley, 191 Ill. App. 3d 664, 681, 547 N.E.2d 1345, 1356, 138 Ill. Dec. 724 (1989). Clearly, the trial judge here acted within his discretion in deeming the expert testimony in regard to speed inadmissible. See Watkins, 172 Ill. 2d at 206, 665 N.E.2d at 1386.

Similarly, the expert testimony that the position of the vehicles that were stopped because the truck was blocking the road was likely to have distracted plaintiff, rather than have warned him of danger, did not involve phenomena that was beyond the knowledge of the average juror and the court acted within its discretion in also excluding that testimony. The exclusion of the proposed testimony in regard to the skill, or lack ...


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