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McGrew v. Pearlman

March 31, 1999

SEAN MCGREW, PLAINTIFF-APPELLANT,
v.
DAVID PEARLMAN, DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Presiding Justice South

Appeal from the Circuit Court of Cook County. Honorable Deborah Mary Dooling, Judge Presiding.

Plaintiff, Sean McGrew, instituted this action against defendant, David Pearlman, as the result of a single-vehicle accident, which occurred outside of Las Vegas, Nevada. Plaintiff's second amended complaint alleged, inter alia, one count of negligence. Prior to trial, the court rejected plaintiff's claim that the substantive law of Nevada, rather than that of Illinois, should govern the cause. At the close of trial, the court entered judgment in favor of defendant and against plaintiff. Plaintiff now brings this timely appeal.

The issues on appeal are: (1) whether the trial court erred in applying the "most significant relationship" test in concluding that the substantive law of Illinois governed this case; (2) whether the trial court erred when it found that defendant was not driving while intoxicated at the time of the accident; (3) whether the trial court erred in denying plaintiff's motion to bar the testimony of defendant's reconstruction expert, based upon defendant's failure to comply with Supreme Court Rules 213(g) and 213(i) (166 Ill. 2d Rs. 213(g), (i)); and (4) whether the trial court erred in finding that the evidence failed to sufficiently demonstrate that defendant acted negligently under the circumstances of this case.

In the early morning hours of October 21, 1995, defendant lost control of his Jeep Grand Cherokee (Jeep) on a two-lane highway 71 miles west of Las Vegas. The Jeep left the highway, rolled over several times and ultimately came to rest on its roof approximately 170 to 175 feet from the highway. Plaintiff, the only passenger, was ejected from the Jeep and suffered severe and permanent injuries.

Plaintiff and defendant knew each other in Chicago prior to rooming together at Arizona State University (ASU) in Tempe, Arizona. Both of their families were from Chicago and, for a period of three months, they both attended Francis Parker High School together. Plaintiff and defendant shared a circle of friends and occasionally ran into each other socially subsequent to plaintiff leaving Francis Parker. Both plaintiff and defendant returned to their respective homes in Chicago after the accident and were full-time Chicago residents at the time of trial.

In October 1995, plaintiff, defendant and Nick Kozul, all residents of Illinois, were roommates attending ASU. The three decided to take a road trip to Las Vegas, Nevada, for the weekend and set out from Tempe in defendant's 1993 Jeep. Defendant and Kozul took turns driving. They arrived in Las Vegas, where everybody showered, shaved, ate pizza, called a cab, and headed out to a club. All three young men drank alcoholic beverages. At some point, they left the club and headed to another establishment which provided entertainment but no alcohol. The patrons could, however, provide their own alcohol. A six-pack of beer was purchased for the occasion. Defendant admitted he had one to two beers at this establishment. Plaintiff, defendant and Kozul then returned to the first club, where defendant became bored and convinced plaintiff to accompany him to a house of prostitution. They got defendant's Jeep and headed out to the brothel. Defendant drove and plaintiff, "definitely feeling the effects of alcohol," fell asleep in the passenger seat within 5 to 10 minutes of embarking upon their trip. Plaintiff was not wearing a seat belt. Defendant was the only one awake at the time of the accident and provided the only testimony.

Defendant was driving at about 60 to 65 miles per hour, because he was comfortable at those speeds. The posted speed limit was 55 miles per hour. Posted on the roadway were yellow signs warning of animal crossings.

Defendant maintained that he had to take an evasive action, or an emergency avoidance maneuver, because he saw "eyes" in the roadway, which he believed to be level with the hood of his Jeep. He caused the Jeep to leave the northbound lane of the roadway, cross the median, go into a yaw, hit the curbing and roll over a number of times until it came to rest upside down, 100 or so feet to the northwest of where it left the road. There was no physical evidence that defendant ever struck an animal.

At some time during the rollover, plaintiff was ejected from the car. Defendant, who was wearing his lap and chest belts, remained inside the car until he unhooked himself and crawled out of the Jeep and located plaintiff. Next, defendant attempted to flag down a motorist who would not stop. The second motorist seen by defendant did stop and went for help. The police were called at 6:54 a.m. and arrived at 7:43 a.m.; the Flight for Life paramedics were called at 6:51 a.m. and arrived at 7:38 a.m. Both plaintiff and defendant were airlifted to Las Vegas' University Medical Center Hospital, where defendant was treated and released. Plaintiff was admitted to the emergency room, where they first repaired his spleen. He received three major surgeries to repair his liver and kidneys, broken back, broken pelvis and dislocated hip. On November 2, 1995, plaintiff was airlifted to the Chicago Rehabilitation Center, where he remained in rehabilitation for several weeks. Plaintiff will be required to undergo a fourth major surgery in the future to reconstruct and further repair the degenerative damage to his back.

Initially, we must determine whether Nevada law or Illinois law applies to plaintiff's claim.

To determine which law applies, one must look to the conflicts-of- law rules of Illinois. Before the court can apply a choice of law analysis to determine which state's law applies to the dispute, it must determine whether there is a conflict in the laws of the two states. Malatesta v. Mitsubishi Aircraft International, Inc., 275 Ill. App. 3d 370, 374, 655 N.E.2d 1093, 1096 (1995). There is a conflict if the difference in laws will result in a difference in outcome. Malatesta, 275 Ill. App. 3d at 374, 655 N.E.2d at 1096. In determining whether the law of Illinois or the law of another state applies to a dispute, Illinois courts have adopted the most significant relationship test for deciding among conflicting laws. Ingersoll v. Klein, 46 Ill. 2d 42, 262 N.E.2d 593 (1970). Under this test, the law of the place of injury controls unless Illinois has a more significant relationship with the occurrence and with the parties. Nichols v. G.D. Searle & Co., 282 Ill. App. 3d 781, 784, 668 N.E.2d 1101, 1103 (1996). When applying the most significant relationship test, a court should consider (1) where the injury occurred; (2) where the injury-causing conduct occurred; (3) the domicile of the parties; and (4) where the relationship of the parties is centered. Esser v. McIntyre, 169 Ill. 2d 292, 298, 661 N.E.2d 1138, 1141 (1996).

Plaintiff addresses three issues on which he claims that Illinois and Nevada law conflict. The first is that a speeding violation would be "negligence per se" in Nevada, but only prima facie evidence of negligence in Illinois. Second, Illinois and Nevada law conflict concerning defendant's affirmative defense of sudden peril. The third conflict that plaintiff identifies is the evidentiary requirements for the introduction of evidence of intoxication.

Since the court found that plaintiff failed to prove that defendant was speeding, the Nevada law dealing with a statutory violation could not have affected the outcome of this case. Indeed, the lower court found that the speed of defendant's Jeep was not a proximate cause of the rollover. In addition, the court found that defendant had carried his burden of proof on the affirmative defense of sudden peril. Under Nevada law, a defendant can overcome the presumption of negligence resulting from a statutory violation by affirmatively showing an excuse or justification for his negligence. Barnes v. Delta Lines, Inc., 99 Nev. 688, 690-91, 669 P.2d 709, 711 (1983). Thus, there is no conflict on this issue between Illinois and Nevada.

The second issue on which plaintiff claims a conflict between Illinois and Nevada law is with defendant's affirmative defense of sudden peril. However, under Nevada law, the theory underlying the "sudden peril" doctrine is that a person confronted with a sudden emergency is not obligated to exercise the same degree of judgment and care as someone who is acting under normal conditions. Jones v. Viking Freight System, Inc., 101 Nev. 275, 276 n.1, 701 P.2d 745, 746 n.1 (1985); Drummond v. Mid-West Growers Cooperative Corp., 91 Nev. 698, 706-07, 542 P.2d 198, 204 (1975). The Illinois standard measures defendant's conduct by what a reasonable person would do under the same or similar circumstances. McGraw v. Cegielski, 287 Ill. App. 3d 871, 876, 680 N.E.2d 394, 398 (1996); Lukasik v. Hajdas, 104 Ill. App. 2d 1, 5, 244 N.E.2d 404, 406 (1968). There is no difference in either standard. However, ...


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