Appeal from the Circuit Court of Winnebago County. No. 98-L-289 Honorable Ronald L. Pirrello, Judge, Presiding.
The opinion of the court was delivered by: Justice Grometer
Plaintiff, Barbara Kersey, as special administrator of the estate of her deceased daughter, Shawnna M. Kersey, filed a negligence action alleging claims under the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 1996)) and the Survival Act (755 ILCS 5/27--6 (West 1996)) against defendants, Rush Trucking, Inc. (Rush), Red Arrow Corporation (Red Arrow), Richard E. Smith, and Edward D. Lyle, in connection with a vehicular accident. Following a trial in the circuit court of Winnebago County, the jury returned a verdict in defendants' favor. On appeal, plaintiff argues that the trial court erred in refusing to give the jury two of her proposed instructions. For the reasons that follow, we reverse the judgment of the circuit court and remand the cause for a new trial.
The collision that resulted in Shawnna's death occurred at the intersection of Alpine and Spring Creek Roads in Rockford, Illinois. Alpine Road is a four-lane highway that runs north and south. Spring Creek Road is a four-lane thoroughfare that runs east and west. The intersection of Alpine Road and Spring Creek Road is controlled by a traffic signal. Left turn lanes exist for all directions at the intersection. At the time of the collision, the speed limit for vehicles traveling south on Alpine Road at the intersection was 45 miles per hour. On December 12, 1996, at about 6 p.m., Shawnna was driving her station wagon north on Alpine Road. At about the same time, Edward D. Lyle was driving a truck south on Alpine Road in the curb lane. As Shawnna approached the Spring Creek Road intersection, she entered the left turn lane. While Shawnna was turning west onto Spring Creek Road, her vehicle and Lyle's truck collided. Shawnna eventually died of the injuries she sustained in the accident.
At trial, Richard E. Smith testified that at the time of the collision Lyle was an employee of "Smitty's Express," a trucking business Smith started in 1985. Smith explained that prior to September 1998, Smitty's Express was an in-house agent for Red Arrow and Rush. Under this arrangement, Smitty's Express supplied commercial vehicles and hired drivers but operated under the authority of federal and state operating licenses procured by Red Arrow and Rush. Smith testified that an advisor from Rush provided him with information regarding a reconstruction of the accident performed by Red Arrow and Rush.
Lyle testified that he was familiar with the intersection at which the accident occurred. Lyle recalled that shortly before the accident he was driving south on Alpine Road, descending a hill that precedes the intersection. Lyle testified that when he was about 100 yards from the intersection, he noticed that the traffic signal was red for through traffic, but the green arrow signal was illuminated for traffic wishing to turn left. Lyle slowed down to an estimated speed of 25 to 30 miles per hour as he approached the intersection. Once the green circular signal illuminated, Lyle proceeded into the intersection. Lyle noticed a station wagon starting to make a left turn and come towards his lane of traffic. At that point, he applied his brakes and swerved to the right. However, he was unable to avoid the collision. Lyle stated that at the time of the accident the weather was clear and it was not raining. In addition, Lyle admitted that approaching this particular intersection at a speed of 35 miles per hour would have been dangerous.
Karen Rhoads testified that at about 6 p.m. on December 12, 1996, she was traveling north on Alpine Road when she came to a stop at the Spring Creek Road intersection. Rhoads heard the impact from the collision and observed a truck pushing a station wagon.
Joseph Douglas Holloway testified that at the time of the collision he was driving south on Alpine Road. Holloway was traveling in the inside lane. Holloway slowed down as he approached the Spring Creek Road intersection because the traffic signal was red. Holloway first observed Shawnna's vehicle as the traffic signal changed to green. As Holloway accelerated, he noticed a station wagon traveling north enter the left turn lane to go west on Spring Creek Road. According to Holloway, the station wagon "made kind of a little bit of a hesitation stop like it was going to stop, and then it proceeded." Holloway slammed on his brakes and swerved to avoid the station wagon. Holloway was unaware of Lyle's presence until he heard the impact. Holloway estimated that Lyle was traveling at the speed limit.
Jennifer Cliningsmith testified that at the time of the collision she was also traveling south on Alpine Road in the inside lane. Cliningsmith was driving a pickup truck with a five-speed manual transmission. There was a car directly in front of Cliningsmith and a truck to her right. Cliningsmith recalled that there was a little bit of snow and rain the day of the accident. Cliningsmith testified that as she approached the Spring Creek Road intersection, she began to downshift her vehicle from third to second gear because the traffic signal was red. When the traffic signal turned to green, Cliningsmith upshifted her vehicle from second to third gear. She estimated that she would have been going 25 to 30 miles per hour at the time and that the truck to her right was going about the same speed. As she was shifting from second to third gear, Cliningsmith noticed a station wagon traveling north on Alpine Road enter the left turn lane to head west on Spring Creek Road. According to Cliningsmith, the station wagon was "coming quick." Cliningsmith applied her brakes and took evasive action to avoid a collision with the car in front of her. According to Cliningsmith, the car in front of her "barely missed" the station wagon. Cliningsmith testified that the roads were wet and that her vehicle slid a bit as she braked to avoid the collision.
Deputy Anthony Moore of the Winnebago County sheriff's police investigated the December 12, 1996, accident. Moore is a certified accident reconstructionist. Moore testified in his capacity as an employee of the Winnebago County sheriff's police and as an expert retained by plaintiff. Moore testified that the accident was reported at 6:03 p.m. and that he arrived at the scene at 6:26 p.m. Moore stated that at the time of his arrival, the roads were dry. Moore explained that if the pavement had been wet, there would not have been a skid mark. However, Moore determined that the truck that Lyle was driving left a 102-foot-long skid mark on the roadway. According to Moore, the truck skidded for 25 feet before striking the passenger side of Shawnna's station wagon. Moore determined the point of impact by locating the gouge marks in the pavement. Following impact, the truck pushed the station wagon in a southwesterly direction for 77 feet before coming to rest.
Moore's investigation consisted of three different analyses: the slide-to-stop test, the "barrier equivalent velocity" test, and the momentum test. The slide-to-stop test measures the speed of a vehicle at the first visible skid. Moore testified that, with respect to the slide-to-stop test, the length of the skid mark and the type of roadway surface are significant. In order to conduct this analysis, Moore had to determine the coefficient of friction. To measure the coefficient of friction, Moore dragged a "sled" across the roadway surface. The "sled" consisted of half of a motor vehicle tire attached to a scale. The tire, which was filled with cement and steel fragments, weighed 75 pounds. Moore stated that the coefficient of friction is usually around 0.67 to 0.70. Moore performed the dragging exercise six times.
Averaging the results of the six drags, Moore determined the coefficient of friction to be 1.08. Moore acknowledged that the coefficient of friction he obtained was higher than average for this type of pavement. However, he attributed the higher number to the fact that the skid mark ran "across the grain of the pavement" so that "it was almost like a new pavement" and that the truck was moving on an untraveled portion of the pavement. Using 1.08 as the value of the coefficient of friction, Moore determined that the speed of the truck was 57 miles per hour at the beginning of the first visible skid.
The "barrier equivalent velocity" or "crush" test measures speed at impact. This test involves measuring crush damage. Accordingly, several days after the crash, Moore measured the crush damage to the station wagon. Based on these measurements, Moore determined that Lyle's truck was traveling 52 miles per hour at impact. The momentum test also determines speed at impact. The momentum test involves evaluating the directions in which the vehicles travel prior to impact and the directions in which they travel after impact. Using the momentum test, Moore calculated the speed of the truck at 58 miles per hour. Based on all three of his analyses, Moore concluded that the truck driven by Lyle was traveling 57 miles per hour at the beginning of the first visible skid and 52 miles per hour at the time of impact.
Using the momentum test, Moore also determined that Shawnna's vehicle was traveling 26 miles per hour at the time of impact. Moore opined that given the speed of Shawnna's vehicle, if the truck had been going between 25 and 35 miles per hour, the collision would not have occurred. Moore also opined that if the truck had been going 40 miles per hour, the two vehicles may have "touched bumpers," but he even doubted that.
On cross-examination, Moore admitted that the coefficient of friction is generally reduced by 25% when determining the speed of trucks and that he did not reduce the coefficient of friction in this case. Moore cautioned, however, that a 25% reduction in the coefficient of friction does not yield a corresponding 25% reduction in the speed of the vehicle since the 25% is taken off of the coefficient of friction at the beginning of the formula. Moore also stated that his investigation revealed that at the time of the collision, traffic traveling south on Alpine Road had the green circular signal. Moore conceded that if southbound traffic had the green circular signal, it was not possible for Shawnna to have had a green or yellow arrow signal. Moore testified, however, that Shawnna would have had the green circular signal and that Shawnna could have turned left on a green circular signal provided she yielded to oncoming traffic. On redirect examination, Moore testified that the 25% reduction in the coefficient of friction that is generally applicable to trucks did not apply in this case because the vehicles were moving sideways.
The parties also presented the videotaped deposition of Daniel Broughton, the safety supervisor for Rush and Red Arrow at the time of the accident. Broughton testified that part of his job as safety supervisor was to investigate collisions and that he investigated the accident that occurred on December 12, 1996. Broughton acknowledged that someone for Rush and Red Arrow did some reconstruction of the December 1996 accident. However, Broughton stated that he never spoke to that individual.
Prior to the close of evidence, defendants announced that they would not be calling Gerald E. Cohn, Ph. D., an expert to whom they referred in their opening statement. Defendants stated that they were not calling Cohn because they covered his expected testimony during their cross-examination of Moore.
At the jury instruction conference, plaintiff tendered two instructions based on Illinois Pattern Jury Instruction, Civil, No. 5.01 (Supp. 2003) (hereinafter IPI Civil (Supp. 2003) No. 5.01), also known as the "missing-witness instruction" or the "missing-evidence instruction." IPI Civil (Supp. 2003) No. 5.01 provides:
"5.01 Failure to Produce Evidence or a Witness
If a party to this case has failed [to offer evidence] [to produce a witness] within his power to produce, you may infer that the [evidence] [testimony of the witness] would be adverse to that party if you believe each of the following elements:
1. The [evidence] [witness] was under the control of the party and could have been produced by the ...