Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, Circuit No. 08-L-1010 Honorable James E. Garrison, Judge, Presiding.
The opinion of the court was delivered by: Justice O'brien
JUSTICE O'BRIEN delivered the judgment of the court, with opinion.
Justice Lytton concurred in the judgment and opinion.
Justice Carter dissented, with opinion.
¶ 1 Plaintiff Yvonne Johnson brought this negligence action against defendant Charles Bailey to recover for personal injuries she alleged to have sustained as a result of an automobile accident in which she and Bailey were involved. The jury returned a verdict in favor of Bailey. Johnson appealed. We reverse and remand.
¶ 3 Plaintiff Yvonne Johnson and defendant Charles Bailey were involved in an automobile accident in the parking lot of a Casey's General Store and gas station in Channahon. Johnson filed a negligence action against Bailey to recover for injuries she claims to have suffered in the accident. Bailey denied liability and asserted as an affirmative defense that Johnson caused the accident. Both parties were deposed. At Bailey's deposition, he used postoccurrence photographs of the parking lot that he had taken using his and his fiancee's vehicles as props. Johnson disclosed in her discovery deposition that she had injured her neck, head, shoulders and back in a 2005 slip and fall. She continued to see a chiropractor after she completed her treatment for routine adjustments. The same chiropractor treated her injuries from the instant accident.
¶ 4 Johnson served Bailey with a request to admit, asking Bailey to admit that her medical bills were charges for treatment "for conditions occurring as a result of the occurrence which is the subject of the Plaintiff's lawsuit" and that the medical charges for the treatment were fair and reasonable. Bailey admitted the statements concerning the reasonable cost of medical service and denied the statements admitting that Johnson's injuries resulted from their accident. His response was unsworn and signed only by defense counsel.
¶ 5 Prior to trial, Johnson filed a motion in limine, seeking to preclude Bailey's use of the postoccurrence photographs of the Casey's parking lot. At a hearing on her motion, Johnson argued that Bailey did not offer a proper foundation for the photographs during his deposition and that they should not be used at trial without a proper foundation. The trial court found that Bailey could use the photographs subject to the establishment of a proper foundation. Johnson also moved to preclude evidence of any pre-existing injuries she had and any opinion not disclosed per Illinois Supreme Court Rule 213. Ill. S. Ct. R. 213 (eff. Jan. 1, 2007). The motions were denied.
¶ 6 At trial, Johnson testified that she entered the Casey's gas station to buy gas. Because all the spots at the pumps were full, she decided to exit the lot. Bailey was stopped at a pump. She stated he moved forward from his pump and struck the driver's side of her vehicle as she drove past. She did not see Bailey's vehicle until it hit her car. During her testimony, Johnson relied on defense exhibit No. 5, one of the postoccurrence photographs taken by Bailey. Johnson said it was an accurate representation of the parking lot's layout, that the vehicles in the picture depicted the direction of the traffic flow, but that her vehicle was farther away from Bailey's truck than shown in the photograph. Johnson marked the exhibit to show where she recalled her vehicle was located prior to the accident and how she turned at the pumps to exit the lot prior to the collision. Johnson stated that she suffered a neck injury in the collision with Bailey. Johnson's treating chiropractor, Joann Maruszak, D.C., diagnosed her with a cervical strain, treated her for her injury and prescribed physical therapy. In Maruszak's opinion, Johnson suffered the neck injury in the collision with Bailey. She testified that there was no connection between Johnson's pre-existing injuries and those sustained in the collision with Bailey.
¶ 7 Channahon police officer Kevin McRaven, who took a desk report concerning the accident, testified as Johnson's witness. McRaven's police report was used to help the officer recollect the incident. McRaven stated that Bailey told him that when he finished filling his vehicle with gas, he pulled forward and struck Johnson's vehicle in the driver's side door, damaging it. McRaven's report included an admission by Johnson that her back hurt after the accident from a pre-existing injury. Prior to cross-examining McRaven, defense counsel argued in a sidebar that Johnson opened the door to the admission. The trial court allowed the officer to testify regarding Johnson's admission in Bailey's presentation of evidence, determining that it was admissible as an admission that Johnson was not injured in the collision and was not evidence of a pre-existing injury.
¶ 8 Bailey testified. He said that he was moving forward from the pumps at the same time Johnson was driving through the lot. Both vehicles were proceeding westward when the accident took place. Bailey offered his opinions concerning the point of impact and damages to the vehicles based on his recollection of the accident. Bailey used as demonstrative evidence, defense exhibits Nos. 4 and 5, the staged photographs he had taken of the accident site. He offered the photographs to depict the layout of the Casey's lot and the flow of traffic through the lot. Bailey testified that the photographs accurately reflected the layout at Casey's when the accident occurred. The photograph depicted his car as it was located just prior to the collision. The other vehicle in the photograph showed the way both vehicles were prior to the accident "as close as" Bailey could remember it. Johnson objected to the use of the photographs, arguing they were misleading and lacked foundation. The trial court found defense exhibit No. 4 misleading and denied its admission but admitted exhibit No. 5. Johnson moved for a mistrial, contending that defense exhibit No. 4 lacked a proper foundation but had been shown to the jury. The trial court denied Johnson's motion.
¶ 9 Johnson also moved to deem facts admitted. She pointed to the unsigned and unsworn answers to her request to admit signed only by Bailey's attorney, which omission the trial court had brought to the parties' attention the previous day. Bailey moved to add a signature page to his response. His attorney argued that the signature page was not signed or submitted due to her inadvertence. Over Johnson's objection, the trial court allowed Bailey a time extension to submit a sworn signature ...