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Allan K. Reed, Independent Administrator of the Estate of v. Susan E. Ault

May 3, 2012

ALLAN K. REED, INDEPENDENT ADMINISTRATOR OF THE ESTATE OF
BRENDA S. REED, DECEASED, PLAINTIFF-APPELLANT,
v.
SUSAN E. AULT,
DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Stephenson County. No. 07-L-039 Honorable David L. Jeffrey, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Jorgensen

PRESIDING JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices McLaren and Hudson concurred in the judgment and opinion.

OPINION

¶ 1 In 2007, defendant, Susan E. Ault, lost control of her vehicle on an icy road and ended up in a ditch. Brenda S. Reed stopped her vehicle and, as she approached defendant, was struck and killed by another vehicle that lost control on the ice. Plaintiff, Allan K. Reed, as independent administrator of Brenda's estate, sued defendant for negligence. Specifically, plaintiff alleged, pursuant to the "rescue doctrine," that defendant placed herself in a position of peril and, when Brenda attempted to rescue her, proximately caused Brenda's death. On April 13, 2011, a jury rejected plaintiff's negligence claim and found in defendant's favor. Plaintiff appeals, arguing that: (1) defense counsel committed plain error in closing argument; (2) the court erred in sustaining a defense objection during plaintiff's rebuttal closing argument; (3) the court erred in refusing two of plaintiff's proposed jury instructions and allowing, instead, defendant's proposed instructions regarding the rescue doctrine and burden of proof thereon; and (4) the jury's verdict is contrary to the manifest weight of the evidence. For the following reasons, we affirm.

¶ 2 I. BACKGROUND

¶ 3 A. Overview

¶ 4 The witnesses at trial were comprised of the drivers and/or passengers of five vehicles that either were involved in the accident or stopped after the accident. To provide an overall picture of the scene, we briefly note that the accident happened on Route 26 near Freeport. Defendant was driving south on Route 26 but lost control of her vehicle; it landed in the ditch adjacent to the northbound lane (vehicle 1). After seeing defendant land in the ditch, three vehicles stopped: (1) Brenda was driving north on Route 26 and, after viewing defendant go off the road, came to a stop south of defendant's car, on the shoulder of the northbound lane (vehicle 2); (2) Robert Martin, who was driving north, pulled his car into a driveway north of defendant's vehicle (vehicle 3); and (3) Brandon Kemp, who was also driving his truck north, stopped on the shoulder of the northbound lane, behind Brenda's vehicle and, therefore, south of defendant's vehicle (vehicle 4). The vehicle that struck and killed Brenda, hereinafter the Morrison vehicle, was driving south on Route 26 when it lost control and came to rest in the ditch adjacent to the northbound lane and south of defendant's vehicle (vehicle 5).

¶ 5 B. Evidence at Trial

¶ 6 Defendant testified at trial that, on March 3, 2007, at around 12:45 p.m., she was driving south on Route 26 on her way to Freeport. The speed limit on Route 26 is 55 miles per hour and defendant was driving between 50 and 55 miles per hour. It was a sunny day and it was not snowing or raining; however, it was cold and windy and, as it had snowed the night before, there was snow on the ground and there were occasional patches of snow, ice, and slush on the road. Defendant testified that, despite the occasional snow patch, the roads were clear and she was not experiencing any sliding. Defendant testified that she does not use her cell phone while driving and that she was not using her cell phone, smoking, or eating when the accident occurred; rather, her phone was in her purse and her hands were on the wheel at the 9 o'clock and 3 o'clock positions because she did not know what the next area of road would be like. As defendant approached a curve in the road near Freeport, she saw another patch of snow and ice. As she had done with prior ice patches, defendant slowed her car to 40 or 45 miles per hour and kept both hands on the wheel. Defendant's car slid on the ice; she panicked and reacted by applying the brakes, losing control of the vehicle. At trial, she was asked "and you knew you shouldn't hit the brakes," and defendant replied "yes." Defendant's car made a complete revolution and slid across the road, off the shoulder, and down into the bottom of a ditch.

¶ 7 Defendant took a deep breath and tried to move the car, but the wheels spun and the car was stuck. When defendant tried to open her driver's side door, she realized she could not open it far enough to exit because it was resting against a snow drift. Defendant then exited from the passenger-side door. When asked to estimate the time it took for her to exit the car after landing in the ditch, defendant testified that it took a "couple [of] seconds, just stopped, took a breath, realized I couldn't get out of my car on that side, opened the passenger side, got out." As defendant exited her car, planning to use her cell phone to call a tow truck, she saw Brenda and her son, Benjamin, who had been traveling north on Route 26 before stopping, walking toward her on the shoulder.*fn1 Defendant assumed they had stopped to see if she was all right. Defendant was not injured and she walked at a normal pace up to the shoulder and toward Brenda and Ben. Defendant intended to tell Brenda that she was fine and thank her for stopping, but Brenda was approximately one block away and defendant did not holler.

¶ 8 Before defendant had an opportunity to speak with Brenda, she heard Ellen Morrison's vehicle approaching and, when she looked at it, she could tell it was going to lose control on the ice patch. Defendant turned to run back toward her car, trying to get to a safe spot; Brenda and Ben ran in different directions. She heard the impact of Morrison's vehicle striking Brenda. When Morrison's vehicle came to a stop, it landed in the ditch about one block away from defendant's vehicle. After calling 911, defendant noticed for the first time that another car had stopped and was sitting in a nearby driveway. A man was standing outside the vehicle, and a woman was sitting inside. Defendant approached the car and told the woman that she was okay and that she had called 911. Defendant told the woman and the 911 operator that Brenda had stopped to help defendant.

¶ 9 Prior to the accident involving Morrison's vehicle, defendant had not tried to flag anyone down or direct traffic and did not notice anyone else doing so; she believed her car was located in a spot far enough off the road that it would not cause a problem. Defendant did not think she was in any danger and did not think "in a million years" that someone else would slide off the road the same way, same time, that day. A tow truck pulled defendant's car to the road, but there was no damage to it and she drove it home. After the accident, defendant saw a plow come to clear the curve where she and Morrison had slid. Further, she heard a State Trooper talk about the fact that the roadway was "banked" a little bit as it curved to the left.

¶ 10 Ben Reed testified that he was age 15 at the time of these events and that Brenda was driving him to a band competition. They were driving north on Route 26 and saw defendant's car spin out of control in front of them and end up in the ditch. It appeared to Ben that, as the car slipped off the road, the car's driver was turning the wheel to try to control the car. Because Brenda was a nurse, Ben asked her to stop to check on the person who had spun into the ditch. Brenda stopped the car and went to talk to other drivers who had pulled over, including three men and a woman. As Ben and Brenda approached the vehicle in the ditch, Ben noticed "a lady climbing out of the window" of the driver's side of the car. The car was pretty far off the road and, although it appeared stuck, it was not on fire and there was no smoke or steam coming from it. Ben saw the driver get out of the car and walk toward him, but then his attention was drawn to the Morrison vehicle, which was coming pretty fast. He ran toward the car in the ditch to get out of the way. The Morrison vehicle slid past him, hit the Reed car, and hit Brenda.

¶ 11 Robert Martin testified that, on March 3, 2007, he and his wife, Tina, were driving north on Route 26. It was a sunny day, but windy, approximately 40 degrees, and some snow had drifted the night before. The roads were "fairly clear," with snow drifting across on occasion. Areas with slush build-up were "few and far between." Martin was driving between 50 and 55 miles per hour. As he approached a curve in the road, Martin noticed snow blowing across it and a "lot of slush on it." He slowed down because he had driven the road numerous times and knew that "that curve is a menace when it comes to snow blowing" and that it is a particularly slick curve because of the way it banks from left to right. Martin saw defendant's vehicle approach the curve; he testified that he saw her hit the brakes and start to slide, rotating around and landing in the ditch approximately 15 feet away from the road. As defendant's vehicle crossed his lane of traffic and in front of him, Martin "believe[d]" that defendant had a cell phone in one hand and a cigarette in the other.*fn2 After defendant's vehicle stopped, Martin could see that it was not damaged, smoking, or steaming, and it simply looked stuck.

¶ 12 Martin drove north and parked in a driveway; for her safety, he told Tina to stay in the car and he exited, intending to see if defendant was okay. He observed that defendant was moving around in her vehicle; she did not appear injured, so, when he went to check on her, it was to make sure she had someone coming who could pull her out of the ditch, to give her a ride, or to let her sit in his car to keep warm while waiting for help. Martin saw that another car (the Reed vehicle) and a truck (with three people who stayed inside the truck) had also pulled over onto the shoulder. Martin began walking at a normal pace because he did not feel any need to hurry. Similarly, he saw Brenda and Ben exit their vehicle and walk, at a normal pace, toward defendant's car; defendant was still in her vehicle. Martin felt that defendant's car was far enough off of the road that it was well out of harm's way, and he was not concerned about himself or anyone else being in danger. A couple of minutes later, he heard traffic noise, saw Morrison's Jeep approaching the slushy area, and was concerned because the young driver was driving 50 to 55 miles per hour and was on her cell phone. Until this point, Martin had not thought that another car might have trouble at the same spot of slush and did not think it was likely to happen twice in the same spot. As the Jeep started to slide, Martin yelled at Brenda and Ben, and Ben looked up and jumped out of the way. The Jeep turned and hit Brenda, landing about 30 feet from defendant's car. In his deposition, Martin testified that, when the Jeep began sliding toward Brenda, he believed defendant was standing outside of her car and was talking on her cell phone.

¶ 13 After Brenda was hit, Martin asked his wife to go farther north to try to slow down cars that might be coming. He was concerned about the curve and that drivers might not expect the curve to be as slippery as it was, and he thought drivers would have a hard time seeing if there were something on the road, or they might not appreciate how slick or deep the ice and slush were. Martin later mentioned to a police officer that a plow should clear the curve, and, at some point, that occurred.

¶ 14 Martin was deposed on July 6, 2010. At that time, Martin referred to notes he had prepared that were dated the day of the accident. He testified that he had not shared those notes with anyone.*fn3

¶ 15 Brandon Kemp testified that he was driving his pickup truck north on Route 26 with two passengers, Michael Dierksen and Mikaeyla Rickman, when he saw defendant go into the ditch. According to Kemp, defendant's car was approximately 30 to 40 feet off of the roadway. Kemp pulled over his truck onto the shoulder, behind Brenda's vehicle, and he got out of the truck to see if defendant needed him to call anyone or to tow her car out of the ditch. Prior to this incident, road conditions had not caused Kemp to slow his vehicle below 55 miles per hour. Defendant's car looked stuck, not damaged, and he could see defendant moving around in her car and then quickly exit her vehicle. Kemp was not concerned that defendant was at all injured, based upon the manner in which defendant moved and because she quickly exited her car. Indeed, although Kemp and his passengers had cell phones, no one discussed calling 911; defendant's car just appeared stuck. Kemp and Brenda exchanged pleasantries, they walked in a normal pace toward defendant, and there was no conversation of calling for emergency services or concern that defendant was in danger. As Kemp walked toward defendant, he saw Morrison's Jeep coming; he was surprised because it was not something that had occurred to him as likely to happen, and he had not been concerned that cars might slide into him and strike him while he walked on the shoulder. There was no time to yell before the Jeep hit Brenda. Dierkson testified consistently with Kemp.

¶ 16 Ellen Morrison testified that she was driving under the speed limit, 50 to 55 miles per hour, when she came to the curve. Prior to her sliding on the curve, she had not encountered any slipping or sliding on the road that day, the roads were otherwise "fine," and she did not notice the snow, slush, or ice on the curve. Morrison testified that she was not on her cell phone when she slid. When Morrison started to spin, she was concerned that she would hit Brenda's vehicle parked on the shoulder, not the car in the ditch. Morrison testified that she received a ticket from the police officer who responded at the scene. Her car was damaged from hitting Brenda and hitting Brenda's car, and it was towed from the scene.

¶ 17 State Trooper Erin Lanthrip testified that she responded to the scene. Lanthrip testified that she was the last state car to arrive and, upon her arrival, she: (1) spoke with her co-workers, who had obtained some witness information; and (2) "just took account of the scene basically." Lanthrip testified that her duties include preparing reports and diagrams at crash scenes and that she used the information she had obtained from her co-workers, as well as the information she gathered, to prepare an accident report. Using her report to refresh her recollection, Lanthrip recalled that the curve on Route 26 is graded or banked on a slope and that, the day of the accident, the curve had snow and slush on it. She ticketed Morrison as having caused the crash, and she prepared for her report a diagram of the locations of the persons and vehicles involved in the accident. On that diagram, Unit 1 was used to depict Morrison's vehicle as the vehicle that caused the crash. Unit 2 represented where Brenda's body was located on the ground. Unit 3 represented Brenda's car. Lanthrip testified that defendant's vehicle was depicted on the diagram only as an outline of another car with the words "not related" next to it because it was involved in an incident separate from the accident. In the narrative section of her report, Lanthrip noted that defendant's vehicle lost control and landed in the ditch and that Brenda stopped to check on defendant; however, Lanthrip testified that defendant's loss of control was separate and apart from the crash, and, so, she did not make note of the license plate number or vehicle identification number on defendant's car. Lanthrip testified that defendant's vehicle was out of harm's way and, further, that it just appeared stuck, but not damaged. Lanthrip's report lists Martin as a witness, but attributes no statements to him. Defense counsel asked Lanthrip whether she wrote the ticket that Morrison testified she received. Plaintiff objected, and the court sustained the objection. Defense counsel asked Lanthrip, "you did not write a ticket for [defendant?]" Plaintiff objected, and the court sustained the objection.

¶ 18 On cross-examination, Lanthrip agreed that successive collisions are a concern where roads are icy. If there is sufficient manpower, controlling traffic so that no one else goes off the road at the same point helps to ensure that no one is injured. Lanthrip testified that other officers performed traffic control, both to preserve the scene and to prevent other accidents. She agreed that, at a crash scene, one puts himself or herself at risk by exiting a vehicle.

¶ 19 C. Closing Arguments

¶ 20 In plaintiff's closing argument, counsel commented that Martin had testified that, when defendant lost control of her car, she was on a cell phone and smoking a cigarette. He noted that Martin "had no pony in this race" and no reason to testify falsely. "If she wasn't talking on the cell phone and that were an issue, there would be a bill to show you that there wasn't any cell usage at that time; and you don't have that."

ΒΆ 21 In response, defense counsel noted in her closing argument that, regarding the cell phone and cigarette testimony, "the first time Mr. Robert Martin was ever asked about the details was three to three-and-a-half years after this incident ***. *** Mr. Martin, trying to be helpful, but three-and-a-half years later, sometimes with time you add facts. You fill in facts, kind of going back and trying to think how things are." Further, counsel noted that, if there were a cell phone bill reflecting that defendant was on her ...


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