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Vera Payne, As Independent Administrator of the Michael C. Payne, Deceased v. Donald Hall

March 22, 2013

VERA PAYNE, AS INDEPENDENT ADMINISTRATOR OF THE MICHAEL C. PAYNE, DECEASED,
PLAINTIFF-APPELLEE,
v.
DONALD HALL, DEFENDANT-APPELLANT (CHICAGO TRANSIT AUTHORITY, A MUNICIPAL CORPORATION, ) DEFENDANT).



Appeal from the Estate of Circuit Court of Cook County. No. 09 L 13138 Honorable Moira S. Johnson, Judge Presiding.

The opinion of the court was delivered by: Justice Howse

JUSTICE HOWSE delivered the judgment of the court, with opinion. Presiding Justice McBride and Justice Palmer concurred in the judgment and opinion.

OPINION

¶ 1 Defendant, Donald Hall, a Chicago Transit Authority bus operator, appeals from the trial court's order finding him in "friendly" civil contempt pursuant to Supreme Court Rule 304(b)(5), after the trial court denied his motion for a protective order. Ill. S. Ct. R. 304(b)(5) (eff. Feb. 26, 2010). Hall sought a protective order to limit the use of videotapes and photos taken during and after the accident in the underlying wrongful death action filed by Vera Payne, as independent administrator of the estate of Michael Payne, deceased. Defendant Chicago Transit Authority is not a party to this appeal. For the following reasons, we affirm.

¶ 2 BACKGROUND

¶ 3 On September 17, 2009, the decedent, Michael Payne, fell underneath the rear wheels of a Chicago Transit Authority (CTA) bus being driven by Hall and sustained fatal injuries. The accident was recorded by video cameras on the CTA bus driven by Hall and on the CTA bus immediately behind the bus driven by Hall. Hall has never viewed the accident videos.

¶ 4 Hall filed a motion for a protective order and to exclude the accident videos and still photos from being used during his discovery deposition and during his trial testimony. Hall alleged he suffered post-traumatic stress disorder (PTSD) as a result of the accident. In support of his motion, Hall attached the affidavits of his treating physician and licensed social worker both of whom averred, among other things, that Hall suffered from PTSD and that watching the videos would be detrimental to his physical and emotional well-being and his recovery and would compromise any gains he had experienced through treatment. Hall's motion further asserted that the videos would speak for themselves and that plaintiff was able to use them with any other witnesses, including eyewitnesses, and was able to show the videos to the jury at the time of trial.

¶ 5 On August 9, 2011, the trial court denied defendant's motion for a protective order. Hall refused to watch the video, and on September 6, 2011, he filed a request to be held in "friendly" contempt for purposes of having this issue reviewed by this court.

¶ 6 On November 9, 2011, the trial court granted Hall's motion, held him in "friendly" contempt, and ordered him to pay a fine of $1 for his failure to view the videos or still photos from the accident. This timely appeal followed.

¶ 7 ANALYSIS

¶ 8 On appeal, Hall contends that the trial court's discovery ruling which requires him to view videotapes and photographs from the accident was an abuse of discretion and reversal is required.

¶ 9 This is an interlocutory appeal, filed pursuant to Supreme Court Rule 304(b)(5) (Ill. S. Ct. R. 304(b)(5) (eff. Feb. 26, 2010)), after Hall refused to comply with the trial court's discovery orders, was held in contempt, and was sanctioned. Rule 304(b)(5) requires that there be "[a]n order finding a person or entity in contempt which imposes a monetary or other penalty." Ill. S. Ct. R. 304(b)(5).

¶ 10 It is well settled through our case law that the correctness of a discovery order may be tested through contempt proceedings. Illinois Emcasco Insurance Co. v. Nationwide Mutual Insurance Co., 393 Ill. App. 3d 782, 785 (2009). In such cases our review of the contempt finding encompasses a review of the propriety of the underlying order upon which the contempt finding is based. Illinois Emcasco Insurance, 393 Ill. App. 3d at 785. The standard of review for contempt orders is abuse of discretion. In re Marriage of Baumgartner, 384 Ill. App. 3d 39, 62 (2008). A circuit court abuses its discretion when its ruling is " 'arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted by the trial court.' " Taylor v. County of Cook, 2011 IL App (1st) 093085, ¶ 23, (quoting People v. Caffey, 205 Ill. 2d 52, 89 (2001)).

ΒΆ 11 At issue is a ruling rendered by the trial court in its consideration of Hall's motion for protective order concerning plaintiff's use of videotapes and photographs from the accident. "[T]rial courts enjoy a great deal of latitude in determining whether a protective order is necessary." Willeford v. Toys "R" Us-Delaware, Inc., 385 Ill. App. 3d 265, 272 (2008). "Thus, on appeal, we ordinarily ...


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