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Sylvester Scales v. Joseph Benne

September 30, 2011

SYLVESTER SCALES,
PLAINTIFF-APPELLANT,
v.
JOSEPH BENNE,
DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 09 L 001207 The Honorable Donald J. O'Brien, Judge Presiding.

The opinion of the court was delivered by: Justice Garcia

JUSTICE GARCIA delivered the judgment of the court, with opinion.

Presiding Justice R. E. Gordon and Justice Cahill concurred in the judgment and opinion.

OPINION

¶ 1 A jury returned a no-liability verdict regarding an accident in which the plaintiff, a pedestrian, claimed he was struck by the defendant's car while crossing the intersection of Clybourn and North Avenue in Chicago. The plaintiff argues the circuit court erred in barring use of photographs of the intersection and of the defendant's vehicle model grounded on the plaintiff's failure to disclose the photographs prior to trial pursuant to a discovery request. The plaintiff claimed disclosure was not compelled under the discovery rules because he intended to use the photographs only during the plaintiff's examination of the defendant as an adverse witness. The circuit court emphatically rejected the plaintiff's contention. We affirm.

¶ 2 The circuit court did not abuse its discretion in barring the plaintiff's use of photographs not disclosed as required by the discovery rules. Even if a legitimate excuse existed for the plaintiff's failure to tender the photographs prior to trial, the plaintiff did not meet his burden of demonstrating prejudice arising from the exclusion of the photographs to merit a new trial.

¶ 3 BACKGROUND

¶ 4 The central factual disputes before the jury in this vehicle-pedestrian collision were the location of the collision and whether the defendant hit the plaintiff or the plaintiff walked into the side of the defendant's car. The plaintiff claimed he was in the crosswalk when he was struck by the defendant's car; the defendant claimed the plaintiff was some distance from the crosswalk when he walked into the side of the defendant's car. A single witness testified in addition to the plaintiff and the defendant. Witness Bradley Allen testified consistent with the defendant's version of the accident.

¶ 5 Long before trial, the defendant filed a notice to produce "[a]ll photographs, slides, or motion pictures taken subsequent to the alleged occurrence of the Plaintiff, the vehicles or other physical objects involved or the scene of the alleged occurrence," pursuant to Illinois Supreme Court Rule 214 (Ill. S. Ct. R. 214 (eff. Jan. 1, 1996)). The plaintiff's response did not include the photographs at issue, nor did the plaintiff supplement his Rule 214 response. The plaintiff claimed he obtained the photographs on the eve of trial.

¶ 6 The plaintiff tendered the photographs at the conference immediately prior to calling the defendant as an adverse witness in his case in chief. Three photographs were tendered: Exhibit A, a photograph of the make and model of the defendant's vehicle from Autotrader.com; Exhibit B, an aerial photograph of the intersection of Clybourn and North Avenue from Google.com; and Exhibit C, an aerial photograph of the intersection from Mapquest.com. Defense counsel objected: "There are a bunch of things being produced now *** that we never saw before."

¶ 7 The trial court reviewed the defendant's Rule 214 request to produce:

"[T]here was a request, under 214, which was -- it was sent out June of '09, addressing what you have raised with me, subsection three [of Rule 214] requires [production] if it is photos, motion pictures of the following items, the plaintiff's vehicle or other physical objects or scene of occurrence. What's the response?"

Plaintiff's counsel responded that he showed defense counsel the three photographs before the start of trial, pursuant to Illinois Supreme Court Rule 237 (Ill. S. Ct. R. 237 (eff. July 1, 2005)). Plaintiff's counsel admitted he did not disclose the existence of the photographs pursuant to Rule 214. The trial court barred the use of the photographs.

"While I pointed out that 237 has been amended, the reason for the amendment was as follows, to stop 237 from becoming a discovery device. Therefore, if it were not asked for under 214, you couldn't get it under 237; but the reverse is not [true]. If it was ...


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