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Lococo v. XL Disposal Corporation

October 22, 1999


Appeal from the Circuit Court for the 12th Judicial Circuit Will County, Illinois No. 94-L-1270 Honorable Lawrence C. Gray Judge Presiding

The opinion of the court was delivered by: Justice Koehler

A.D., 1999

The plaintiff in this wrongful death and personal injury action, Ralph LoCoco, appeals the jury verdict and the Will County circuit court's denial of his motion for a new trial. The defendants in this action are XL Disposal Corporation (XL), Eric Reil (an employee of XL), Wheatland Township, and Wheatland Township Road District (collectively referred to as Wheatland). The plaintiff ascribes error to a series of evidentiary rulings, contending that the circuit court erred when it: (1) barred the admission of an emergency medical technician's report; (2) allowed Wheatland's expert, a traffic engineer, to offer opinion testimony as to the most reasonable route to the scene of the accident; (3) barred opinion testimony as to defendant Reil's speed at the time of the accident; as well as causation testimony to the accident in general; (4) barred admission of Jason LoCoco's diagram of the accident scene and his written statement as a discovery sanction; (5) barred testimony regarding the subsequent remedial measures taken at the scene of the accident; and (6) barred evidence indicating that the stop bar lines on Route 59 created confusion for drivers.

Wheatland cross-appeals, arguing that it was entitled to judgment notwithstanding the verdict because: (1) the plaintiff's theory of liability was not predicated upon a proximate cause of the accident; and (2) it was immune from liability under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1--101 et seq (West 1992)). For the reasons that follow, we affirm in part and reverse in part.I. FACTS The City of Naperville, Will County, Wheatland Township Road District, and a developer, named High Meadow Joint Venture, entered into an intergovernmental agreement in which they agreed to jointly design, construct, and install improvements at the intersection of Route 59 and 111th street. The parties agreed, inter alia, that Wheatland Township Road District's responsibility was to be the lead agency for the design and construction of the project. As such, the agreement detailed six subparts that the Wheatland Township Road District "shall" do.

In so doing, on July 13, 1993, the intersection stood paved and painted with stop bar lines on Route 59 and 111th street but lacked the corresponding traffic signs and roadside shoulders. On that day, Debra LoCoco stopped at the stop sign on eastbound 111th street and then proceeded across the intersection where she was struck by a XL Mack disposal truck driven by Eric Reil, who was proceeding south through the intersection of Route 59. Route 59 did not have a stop sign at that intersection, but as noted supra, stop bar lines were painted on the ground. Gary Daniels, the driver of another XL truck, was following behind Reil when the accident occurred. Debra LoCoco and her passenger, Virginia Vriesema were killed. Debra's son, Jason LoCoco, suffered personal injuries, but survived.

Ralph LoCoco, on behalf of himself, Debra LoCoco's estate, and minor Jason LoCoco, brought wrongful death and personal injury actions against the defendants. At trial, the jury returned a verdict apportioning responsibility for the accident: 15% to Wheatland; 7% to the Illinois Department of Transportation; and 78% to Debra LoCoco. Conversely, the jury found no fault against XL, Eric Reil, or K-Five Construction Corporation. Because of the jury's apportionment of over 50% fault to Debra LoCoco, the circuit court entered a verdict and judgment in favor of Wheatland in the wrongful death action. In the personal injury action brought by Ralph LoCoco on behalf of Jason LoCoco, the jury returned a verdict in favor of Jason and against Wheatland and awarded Jason $85,000.


In his direct appeal, the plaintiff ascribes error to a series of evidentiary rulings by the circuit court. Generally, we give deference to the rulings of the circuit court on the admissibility of evidence and reverse only if we conclude that the court abused its discretion. Grewe v. West Washington County Unit District #10, 303 Ill. App. 3d 299, 306, 707 N.E.2d 739, 744 (1999). In this case, we conclude that two evidentiary rulings were indeed erroneous, but that the errors were individually and cumulatively harmless. The balance of the circuit court's rulings were not beyond the bounds of its discretion.

A. Emergency Medical Technician's Report

Shortly after the accident, Troy Hambly, a paramedic and a member of a three-member paramedic team, approached defendant Reil to determine if he required medical attention. Reil informed Hambly that he was not injured and did not require medical assistance. Emergency medical technician Brian Baudek, another member of the paramedic team, checked on Reil again because crash victims sometimes do not immediately realize that they have been injured. Baudek also generated a service report following the accident, which included the notation: "crash speed = 55-60 mph." Baudek testified that he included this notation for the purpose of medical treatment and diagnosing Reil's injuries. However, he did not have an independent recollection of Reil giving him that information. The form did not contain any indication that Reil was the source of the speed estimate, and when asked where he got the estimate, Baudek stated: "It was probably from [Reil]. I don't know."

The circuit court granted defendant Reil's motion in limine to bar admission of the emergency medical services report form, concluding that it was protected by the physician-patient privilege. On appeal, the plaintiff argues that this was error because the privilege does not apply to paramedics and, alternatively, that Reil failed to establish a relationship with Baudek sufficient to give rise to the privilege.*fn1

We disagree that the privilege at issue applies only to medical doctors. In fact, the privilege has been applied to nurses in a number of cases. See Netto v. Goldenberg, 266 Ill. App. 3d 174, 640 N.E.2d 948 (1994), overruled on other grounds by Holton v. Memorial Hospital, 176 Ill. 2d 95, 679 N.E.2d 1202 (1997).; Village of Arlington Heights v. Bartelt, 211 Ill. App. 3d 747, 570 N.E.2d 668 (1991); House v. Swedish-American Hosp., 206 Ill. App. 3d 437, 564 N.E.2d 922 (1990); Roberson v. Liu, 198 Ill. App. 3d 332, 555 N.E.2d 999 (1990). Paramedics have also been found to fall within the privilege. See People v. Wilber, 279 Ill. App. 3d 462, 664 N.E.2d 711 (1996); People v. Maltbia, 273 Ill. App. 3d 622, 653 N.E.2d 402 (1995); People v. Krause, 273 Ill. App. 3d 59, 651 N.E.2d 744 (1995). In this case, the privilege was available to Baudek and Reil.

Availability of the privilege, however, does not mean that the privilege inherently attaches. The physician-patient privilege is one of trust and confidence "in which the patient knowingly seeks the physician's assistance and the physician knowingly accepts the person as a patient." Reynolds v. Decatur Memorial Hospital, 277 Ill. App. 3d 80, 85, 660 N.E.2d 235, 239 (1996). The purpose of the privilege is to encourage free disclosure by the patient of information he might otherwise be embarrassed to reveal, and it exists for the protection of the patient. People v. Herbert, 108 Ill. App. 3d 143, 149, 438 N.E.2d 1255, 1259 (1982). This issue involves a question of law and is, therefore, reviewed de novo. Joel R. by Salazar v. Board of Education of Mannheim School District 83, 292 Ill. App. 3d 607, 613, 686 N.E.2d 650, 655 (1997).

In the case at bar, defendant Reil declined assistance from Baudek. Accordingly, it cannot be said that the equivalent of a physician-patient relationship was ever established between the two men. It follows that, without that relationship, no physician-patient privilege can be claimed. The circuit court made no other ruling with regard to admissibility, and our review of the record reveals that a sufficient foundation was laid to bring the records in under the business records exception to the hearsay rule. Accordingly, the report should have been admitted. In granting the motion in limine to bar its admission, the circuit court erred.

B. Defendant's Opinion Witness Testimony Prior to trial, the plaintiff moved in limine to bar the testimony of the defendants' expert opinion witness Paul Box. Box, a traffic engineer, was disclosed by the defendants to counter the testimony of Jason LoCoco as to the route taken by his mother on the day of the incident. Box was ready to testify that, in his opinion, another route was more reasonable and that, to a reasonable degree of certainty, he believed Debra LoCoco did indeed take this "more reasonable" route. The purpose of this testimony was to establish that Debra LoCoco had driven through the intersection along the route taken by defendant Reil and, therefore, should have known there was no stop sign controlling traffic in that direction.

The circuit court granted the motion in part, barring Box from articulating his opinion as to the route actually taken by Debra LoCoco. Box could, however, opine as to the route which would have been most reasonable to take. At trial, as expected, Jason LoCoco testified as an eyewitness to the route which his mother took on the day of the accident. Later at trial, Box testified on direct examination as follows:

"Q. All right. Now, having seen this layout subsequent to your review of Jason's deposition, does the physical layout as set forth in this exhibit in any way change your opinions regarding Jason's observations and whether they were consistent with the physical surroundings? A. No, it just ...

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