Appeal from Circuit Court of McLean County No. 98L131 Honorable Elizabeth A. Robb, Judge Presiding.
The opinion of the court was delivered by: Justice Steigmann
In August 1998, plaintiffs, Kathleen and Matthew Maffett, sued defendants, Thurman and James Bliss, for injuries Kathleen sustained when her minivan collided with a bean head attached to James' combine, which was being driven by Thurman. (A bean head is a 21 1/2-foot-wide raised steel platform used to harvest crops.) Following a January 2001 jury trial, the jury returned a verdict in favor of the Blisses and against the Maffetts.
The Maffetts appeal, arguing that (1) the trial court erred by (a) excluding the testimony of certain witnesses regarding the fog and visibility near the time of the accident, (b) refusing to allow rebuttal evidence regarding visibility and fog, (c) allowing evidence regarding Kathleen's prior vision problems, (d) permitting the Blisses to cross-examine one of the Maffetts' expert witnesses using various journal articles without having timely disclosed those articles during discovery, (e) permitting the Blisses to impeach one of the Maffetts' expert witnesses with a note the witness had written to himself regarding Kathleen's symptoms of post-traumatic stress disorder, (f) allowing the Blisses to cross-examine one of the Maffetts' expert witnesses regarding Kathleen's postaccident alcohol consumption, (g) allowing the Blisses to cross-examine the Maffetts regarding Kathleen's postaccident legal gambling activities, and (h) denying the Maffetts' motions for a new trial and for judgment notwithstanding the verdict (judgment n.o.v.); (2) the Blisses' counsel violated the court's order barring evidence that police had not ticketed Thurman for a traffic violation as a result of the accident; and (3) James violated the court's order barring evidence regarding the Blisses' financial status. We reverse and remand for a new trial.
On the morning of October 14, 1996, Kathleen was driving her minivan west on 1600 North Road in McLean County. At the same time, Thurman was driving James' combine east on 1600 North Road. At around 7:35 a.m., Kathleen's minivan collided with the combine's bean head, which was raised between two or four feet off the roadway and hanging over into Kathleen's lane of traffic. The collision occurred over a culvert with cement side abutments and yellow-and-black-striped obstacle signs marking the sides of the culvert. As a result of the collision, Kathleen sustained very serious injuries.
In August 1998, the Maffetts filed a four-count complaint against the Blisses, alleging (1) negligence on the part of both Thurman and James (counts I and II) and (2) loss of consortium (counts III and IV), which they later amended.
The evidence at the January 2001 jury trial showed the following. On October 14, 1996, Kathleen woke up at 6:30 a.m. She typically left her house at 7:15 a.m. However, on that morning, she left her house earlier than usual after noticing that it was foggy. Kathleen secured her son in her car, turned on her headlights, and began driving to her baby-sitter's house. On the way there, the fog got "thicker." After dropping off her son, Kathleen put her seat belt back on, backed out of the baby-sitter's driveway, and drove west on 1600 North Road toward the site of the accident. Due to head trauma sustained in the accident, Kathleen did not recall anything that happened after backing out of the baby-sitter's driveway.
As a result of the accident, Kathleen sustained fractures of her forehead, nose, jaw, left hand, wrist, and forearm, severe facial lacerations, a concussion, and damage to her femoral nerve. She has permanent facial scarring, was unable to bend her left wrist, and lost her senses of taste and smell. Kathleen also stated that since the accident, she had experienced episodes of confusion and panic, and she had been diagnosed with post-traumatic stress disorder. She further stated that because of her injuries, she was unable to enjoy certain hobbies and ordinary activities.
On cross-examination, Kathleen acknowledged that she had encountered combines over culverts on previous occasions. In those situations, either she or the farmer stopped before the culvert and allowed the other person to pass. She also acknowledged that a reasonable person would reduce her speed where visibility was "somewhat reduced" on a country road during harvest season. Kathleen further stated that she had prior vision problems.
Louis Saunier, a volunteer firefighter, testified that at around 7:45 a.m. on October 14, 1996, he was working at his body shop in Cooksville when he received an emergency call regarding the accident. He drove about four minutes to the accident scene and tried to stabilize Kathleen until other emergency workers arrived.
Royce Kraft, a volunteer firefighter and farmer, received a page at 7:58 a.m. that morning regarding the accident. He arrived at the scene around 8:11 a.m. and observed that the combine's bean head was resting on the minivan and Kathleen was pinned in the van.
Paula Hammond, a volunteer emergency medical technician, was at her home in Anchor sometime before 8 a.m. when she received an emergency call regarding the accident. She drove to the fire station in Colfax and then rode in an ambulance to the accident scene. Hammond stated that it took her a little longer than usual to get to the fire station that morning because of the fog, and when she arrived at the accident scene, it was "very foggy." Upon arriving on the scene, Hammond helped stabilize Kathleen until emergency workers extricated her from the minivan. Kathleen was then transported by helicopter to the hospital.
Robert Brown, a sergeant with the McLean County sheriff's department, received a call sometime between 8:30 a.m. and 9 a.m. on October 14, 1996, to go to the accident scene and reconstruct the accident. When he arrived at the scene about 30 minutes later, he noted that it was "very foggy." After discussing the accident investigation with other police officers, Brown formulated the opinion that based on the fog and the location of the accident, "the head on the combine was protruding into the van's lane." He also stated as follows: "I knew it was very foggy on my way [to the accident scene] and just in my mind, I kind of thought fog might have something to do with this accident."
Brown acknowledged that he did not know what the visibility conditions were like when the collision occurred. He also stated that if a witness testified that visibility at the time of the accident was one-quarter mile (1,320 feet), he would have no reason to dispute the witness. Brown did not have an opinion regarding what the weather conditions were at Thurman's house when Thurman left on the morning of the accident.
Carl Boyd, a sergeant with the McLean County sheriff's department, was called to the accident scene from Bloomington. Although he did not recall what time he arrived, he remembered that he was delayed because it was very foggy. When he arrived at the scene, it was "very thick with fog." Boyd noticed that the minivan was facing west and was far over to the right side of its lane. The combine was facing east and the bean head was across the entire width of the roadway. According to Boyd, Thurman told him that the fog was patchy and appeared to get worse when Thurman turned onto 1600 North Road on the morning of the accident.
Boyd acknowledged that he was not near the scene of the accident when it occurred, and he did not know what the weather conditions were at that time. He also stated that if Thurman testified that visibility at the time of the accident was one-quarter mile, Boyd would have no reason to dispute that testimony.
William Kinsella testified that on the day of the accident, he lived approximately 870 feet from the accident site. He stated that 1600 North Road was a blacktop, rural road that was busy from around 6:30 a.m. until 8:30 a.m. Soon after the accident, Thurman knocked on Kinsella's door and told him about the accident. Kinsella telephoned 9-1-1, and then he and Thurman drove to the accident scene, which was about two or three minutes away. Kinsella stated that it was foggy as they drove to the scene. After they arrived at the scene, emergency workers began arriving within about two minutes. Thurman told Kinsella that weather conditions were clear when Thurman left his house that morning.
Peggy Bliss, who was married to Thurman in October 1996 (they had since divorced), testified that between 5:30 a.m. and 6 a.m. on October 14, 1996, James called Thurman and asked him to drive the combine from Peggy and Thurman's house in rural Towanda to one of James' fields. Peggy was concerned about the "patchy fog" and asked Thurman to wait until the fog lifted. James called about 45 or 50 minutes later and asked Thurman why he had not left. When Thurman left shortly thereafter, Peggy noticed that it was still "foggy, patchy."
Peggy acknowledged that on the morning of the accident, she could "kind of see" her neighbor's house, which was about one-quarter mile away from her house. She also acknowledged that she was six miles from the accident scene at the time the accident occurred, and she did not know what the weather conditions were like when the collision occurred.
Dr. Robert Aherin, a farm safety expert at the University of Illinois, testified as the Maffetts' expert that an operator of a combine has the right to transport his equipment on public roadways. Combine operators also have a responsibility to assure that (1) the combine is readily recognized as a piece of farm equipment through lighting, markings, and visibility; and (2) other vehicle operators are allowed to use their traffic lane free from obstruction. Aherin stated that it is not reasonable to expect farmers to move equipment during the harvest season when it is foggy. He opined that if a careful and prudent combine operator encounters fog where visibility is not good (that is, less than 1,000 feet), he should move off the roadway if the combine is protruding into the oncoming traffic lane. Aherin also stated that even though no state law or regulation requires lighting on the bean head itself, safety experts have long recommended that when someone is moving equipment that is wider than the main transporting unit, lights should be placed on the extremities of the unit, particularly on the far left. The lighting should be adequate enough to allow approaching drivers to determine the width of the equipment.
Aherin also testified that the portion of 1600 North Road near the accident site was a fairly level roadway with a wide shoulder on most portions of the road. He stated that there were adequate places to pull over a combine along the roadway. Aherin acknowledged that if visibility were at least 1,000 feet, it is within regulation and appropriate for a farmer to move his combine from one field to another on a country roadway without removing the bean head. He also acknowledged that if visibility were at least 1,000 feet, an approaching driver would have sufficient time to see and react to a combine.
Dr. Ronald Ruhl, a professional engineer and an accident reconstruction expert, testified as the Maffetts' expert that 1600 North Road is a secondary road that is 16 feet wide. (A normal two-lane road is 24 feet wide.) He stated that there are two creeks near the portion of the road at the accident site, which makes the area conducive to fog formation. Ruhl also stated that the combine had lights on the cab but no lights or reflectors on the bean head. He estimated that prior to the accident, Kathleen was traveling between 40 and 50 miles per hour. He further estimated that at the time of the collision, her speed was less than 10 miles per hour, if not zero, and her minivan was near the other side of the culvert. Upon impact, the combine was just starting to cross the culvert, and the force of the impact pushed Kathleen's minivan back five or six feet.
Ruhl opined that the cause of the accident was the "ambushing" of Kathleen's minivan by the combine, which had moved into the center of the roadway within about four seconds and blocked the entire roadway with the bean head. Ruhl explained that the term "ambush" means that the combine had an unlit bean head and headlights on the cab that were spaced laterally at approximately the same distance as a truck's headlights. This configuration resulted in confusion to approaching drivers, who would perceive a normal width vehicle in the oncoming lane. Ruhl opined that Kathleen did not do anything that caused the accident.
Ruhl acknowledged that it would have been acceptable for Thurman to operate the combine on the roadway if visibility was 1,000 feet. He also acknowledged that if visibility was 1,000 feet at the time of the ...