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Powell v. Dean Foods Co.

Court of Appeals of Illinois, First District, Fifth Division

June 28, 2013

TRACEY POWELL, Individually and as Special Administrator of the Estate of Adam McDonald, Deceased; GEORGE KAKIDAS, Individually and as Special Administrator of the Estate of Diana Kakidas, Deceased; and ALEXANDER CHAKONAS, as Special Administrator of the Estate of Christina Chakonas, Deceased, Plaintiffs-Appellees,
v.
DEAN FOODS COMPANY, ALCO OF WISCONSIN, INC., and JAIME L. REEVES, Defendants-Appellants

As Corrected April 25, 2014.

Modified upon denial of rehearing March 14, 2014.

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[Copyrighted Material Omitted]

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Appeal from the Circuit Court of Cook County. 03 L 15077, 03 L 16261. Honorable Patricia Banks, Judge Presiding.

Reversed and remanded.

SYLLABUS

The judgment for plaintiffs in a fatal collision that occurred when plaintiffs' car collided with defendants' tractor-trailer while turning onto a preferential highway was reversed and the cause was remanded for a new trial, where the trial court improperly admitted evidence of the truck driver's prior bad acts, including speeding, log violations and a prior fine, abused its discretion in giving the careful habits instruction as to the driver of plaintiffs' car and in failing to give an instruction of the burden of proof in connection with the agency relationship between the trucking company and the dairy whose products the company was delivering.

James K. Horstman and Ronald L. Wisniewski, both of Cray Huber Horstman Heil & VanAusdal LLC, of Chicago, for appellants Alco of Wisconsin, Inc., Alder Group, Inc., and Jaime L. Reeves.

Hugh C. Griffin and Stevie A. Starnes, both of Hall Prangle & Schoonveld, LLC, of Chicago, for appellant Dean Foods Company.

William J. Harte, Ltd. (William J. Harte and Joan M. Mannix, of counsel), and Healy Law Firm (Martin J. Healy, Jr., David P. Huber, and Dennis M. Lynch, of counsel), both of Chicago, for appellees Tracey Powell and George Kakidas.

Muldoon & Muldoon LLC (Michael K. Muldoon and John J. Muldoon III, of counsel), and Michael W. Rathsack, both of Chicago, for appellee Alexander Chakonas.

JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justice Palmer specially concurred, with opinion. Justice Gordon dissented, with opinion.

OPINION

McBRIDE, JUSTICE

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[¶1] In July 2002, Adam McDonald, Diana Kakidas and Christina Chakonas were tragically killed when a tractor-trailer driven by defendant Jaime L. Reeves struck their vehicle at an intersection in Wanatah, Indiana. Plaintiffs, Tracey Powell, individually and as special administrator of the estate of Adam McDonald, deceased; George Kakidas, individually and as special administrator of the estate of Diana Kakidas, deceased; and Alexander Chakonas, as special administrator of the estate of Christina Chakonas, deceased, filed wrongful death actions against defendants Reeves; Dean Foods Company (Dean Foods), the owner of the trailer; Alco of Wisconsin, Inc. (Alco), Reeves' employer; and Alder Group, Inc. (Alder), owner of the tractor. Following a trial, the jury returned a verdict in favor of plaintiffs, finding defendants jointly and severally liable, and awarded $8 million to the McDonald estate, $8 million to the Kakidas estate, and $7 million to the Chakonas estate. In a special interrogatory, the jury also found that Christina Chakonas was 40% contributorily negligent in causing the collision and reduced the award to the Chakonas estate accordingly to $4.2 million.

[¶2] Defendants raise several issues on appeal: (1) the trial court erred in denying Alder's motion for a substitution of judge; (2) the trial court erred in denying their

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motions for judgment notwithstanding the verdict and a new trial because the sole proximate cause of the accident was Christina Chakonas driving into the right-of-way of Reeves' tractor-trailer; (3) the jury's allocation of only 40% of the causative fault to Christina Chakonas was against the manifest weight of the evidence; (4) the trial court abused its discretion by allowing evidence of defendants Reeves, Alco and Alder's prior bad acts; (5) the trial court abused its discretion in giving the " careful habits" jury instruction (Illinois Pattern Jury Instructions, Civil, No. 10.08 (2006) (hereinafter, IPI Civil (2006) No. 10.08) with respect to the conduct of Christina Chakonas; and (6) the amount of the monetary awards by the jury does not bear a reasonable relationship to the recoverable pecuniary damages proved at trial.

[¶3] Dean Foods presents the following additional issues on appeal: (1) Dean Foods was entitled to judgment notwithstanding the verdict on plaintiffs' claims for agency and joint venture; (2) the claims against Dean Foods by plaintiffs Powell and Kakidas were barred by the statute of limitations; (3) the jury's finding that Reeves was acting as an agent and/or joint venturer of Dean Foods at the time of the accident is contrary to the manifest weight of the evidence; and (4) the trial court erred in failing to instruct the jury on the burden of proof applicable to plaintiffs' agency and joint venture claims.

[¶4] We are reviewing this case for a second time following a remand by the Illinois Supreme Court. In a prior opinion, we considered defendants' argument that the trial court erred in denying Alder's motion for substitution of judge as a matter of right, and we agreed with defendants and vacated all orders subsequent to the improper denial and remanded for a new trial before a new trial judge. See Powell v. Dean Foods Co., 405 Ill.App.3d 354, 938 N.E.2d 170, 344 Ill.Dec. 901 (2010). The Illinois Supreme Court granted the petition for leave to appeal. Before the supreme court, plaintiffs filed a joint motion to dismiss Alder with prejudice. The supreme court granted the motion to dismiss and concluded that the remaining defendants, Reeves, Alco and Dean Foods, lacked standing to appeal the denial of Alder's motion for substitution of judge as a matter of right. The supreme court vacated our prior decision and remanded the case to this court to consider the remaining issues raised on appeal. Powell v. Dean Foods Co., 2012 IL 111714, 965 N.E.2d 404, 358 Ill.Dec. 333. Alder is no longer a party to this appeal.[1]

[¶5] Before addressing the issues presented on appeal, we set out the relevant facts.

[¶6] On July 6, 2002, Adam McDonald and Diana Kakidas were passengers in a 2002 Pontiac Grand Am automobile driven by Christina Chakonas. All three occupants of the Chakonas vehicle were killed when a tractor-trailer driven by defendant Jaime L. Reeves, hauling 80,000 pounds of Dean Foods milk product, collided with the Chakonas vehicle. The tractor-trailer collided with the Chakonas vehicle as the Chakonas vehicle crossed the eastbound lanes of traffic on Route 30, in the process of turning left into the westbound lanes of Route 30, at the intersection of Route 30 and Lincoln Street in Wanatah, Indiana.

[¶7] Two actions were filed in the circuit court of Cook County as a result of the fatal collision. In December 2003, plaintiff

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Chakonas filed his original complaint which was assigned case No. 03 L 15077, and named Reeves; Alco, Inc.; Alco of Wisconsin, Inc., d/b/a/ Robert Alder & Sons; and Dean Foods as defendants.[2] In July 2004, plaintiff Chakonas filed an amended complaint, naming Reeves; Alco, Inc.; Alco of Wisconsin, Inc.; Dean Foods; and Dean Illinois Dairies, LLC, as defendants.

[¶8] Also in December 2003, plaintiffs Powell and Kakidas filed their original complaint, assigned case No. 03 L 16261, naming only Reeves and Dean Foods as defendants. In July 2004, plaintiffs Powell and Kakidas filed an amended complaint, naming Reeves; Alco of Wisconsin, Inc.; Alder Group; and Dean Illinois Dairies, LLC, as defendants. In August 2004, plaintiff Chakonas filed a motion to consolidate the Chakonas and Powell/Kakidas actions, which the trial court granted in September 2004. In October 2007, immediately prior to the start of the trial, plaintiffs Powell and Kakidas moved for leave to file a second amended complaint, naming Dean Illinois Dairies, LLC, Dean Foods, Alco, Alder and Reeves. The trial court granted the motion.

[¶9] Jaime Reeves was called as an adverse party witness by plaintiffs Powell and Kakidas. Reeves testified that he was a full-time truck driver employed by Alco. Reeves stated that July 6, 2002, was a Saturday. His log showed that he finished work the previous day at 1 a.m. on July 6 and he had driven 347 miles. At 9 a.m. on July 6, Reeves drove from his house to a facility in Chemung, Illinois, which was approximately 45 miles away. Reeves then drove to Richland Center, Wisconsin, approximately 135 miles away. At the Richland Center facility, he " dropped the trailer and hooked to another one," which took 15 minutes. He then drove back to Chemung. His next load was not known at that time and he was off duty from 3 p.m. to 7:45 p.m. He did not drive the truck during that period of time. His next destination was Rochester, Indiana to which he was en route at the time of the accident.

[¶10] Route 30 is a four-lane, divided highway. Reeves stated that the speed limit was 55 miles per hour until Wanatah, Indiana. He had driven this route many times in the past. Reeves stated that he did not recall his speed and could not remember if he used the cruise control. Reeves said he remembered seeing the signs prior to Wanatah, reducing the speed limit to 40 miles per hour. Reeves said he was not tired or fatigued at the time of the accident.

[¶11] Reeves testified that the accident occurred between 10 and 10:30 p.m. His truck headlights and running lights were turned on. He stated that he slowed down as he approached Wanatah by taking his foot off of the accelerator and using the engine brake. He said he had to slow down gradually and not " slam" on the brakes because he was carrying a full load of milk in gallon jugs and that could make the truck " hard to control." Reeves said he was driving east and the weather was dry and clear with slightly heavier traffic than normal. When asked to describe his speed as he approached the intersection where the accident occurred, Reeves stated that he was " slowing down with the flow of the traffic." He was not watching his speedometer, but he estimated that he was traveling " between 40 and 45 [miles per hour]." He said that he told people at the scene of the accident the same speed estimate.

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[¶12] Reeves described the circumstances of the accident as follows:

" As I was approaching Lincoln Street there was a pickup turning right onto Lincoln Street to head south. And there was a vehicle that pulled out right -- right in front of me that was going to go west onto Route 30. And then - and then another vehicle just followed right out of nowhere like a deer. It came out of nowhere. It was there."

[¶13] Reeves testified that he " collided with the second vehicle." He said he " was on the brakes and we eventually stopped aways [ sic ] down the road" after his truck made contact. According to Reeves, his brakes were applied before he struck the vehicle.

[¶14] When asked if he also worked for Alder, Reeves stated that Alco was part of Alder. Alco scheduled his trips, including the determination of how long the trip would be, how many stops Reeves would make, and had the responsibility of being aware of the " 70-hour rule." Plaintiffs' counsel summarized the " 70-hour rule" as driving " 70 hours during the course of an eight-day period." Reeves confirmed the description, stating that the rule comes from the federal government.

[¶15] Reeves was asked questions about the Alder driver's manual. Specifically, counsel inquired about paragraphs referring to Dean Foods, noting that the manual provides that " through your actions and from your general appearance these people will form their opinions of Dean's Foods Company," " your job and the future of Alder's and Dean's Food Company depends largely upon good public relations," and " keep smiling and driving with continuing pride in the job you perform as you roll along as part of the blue-and-white Dean fleet." Reeves agreed that the manual contained those statements. Reeves was asked if he was a representative of Dean Foods when driving the truck and Reeves answered that " it would appear so, yes." Reeves also testified that his truck had multiple Dean Foods emblems and lettering for Alco.

[¶16] He described his job as delivering " dairy products from point A to point B." He said he " would routinely pull out of Chemung, Illinois, go to Rochester, Indiana, [and] go to Richland Center, Wisconsin." According to Reeves, no one from Dean Foods told him how to do his job. On July 6, 2002, Alco told Reeves to start the trip; he had no contact with Dean Foods.

[¶17] Reeves was questioned about his logbooks for his time on the road. He stated that he completed weekly trip tickets, but he did not know what happened to the trip ticket for the week ending July 6, 2002, the night of the accident. The purpose of his trip tickets was to keep track of his stops, the miles driven in each state, and the fuel put into the truck. He maintained the logbook with his trip tickets in his truck.

[¶18] When Reeves was asked if his logbooks had been audited by the federal motor carrier compliance inspector in June 2002, defense counsel made a continuing objection, which the trial court overruled. Reeves testified that he did not know when the audit took place, but the company had been audited. When asked if " it was determined by the federal government that [he] had falsified [his] logs," Reeves answered that he " had made some mistakes on them." He was not sure if the finding used the word " falsified." Reeves testified that Alco was fined, but " they didn't get the fine *** just because of me." Additionally, Reeves stated that he was not disciplined, but was shown what he was doing wrong in his logbooks so he " wouldn't do it again." Reeves denied that he intentionally wrote incorrect information

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in the logbooks. He testified that he " was writing stuff down wrong." He learned how to do it correctly after the audit.

[¶19] Robert Youngreen testified that on July 6, 2002, he was driving his Dodge pickup truck east on Route 30 with Reeves' truck behind him, approaching Wanatah. When asked if he was driving " a little over 55 miles per hour," Youngreen answered, " probably right in there, yeah." He could clearly see the truck in his rearview mirror. As he entered the Wanatah city limits, Youngreen agreed that he was driving about 40 or 45 miles per hour. Youngreen stated that the truck never passed him on Route 30. Youngreen did not see the truck change lanes.

[¶20] According to Youngreen, as he approached Lincoln Street, he slowed down to make a right turn. He stated that the right turn lane was " not very long." As he slowed to make the turn, he saw one car cross Route 30 to make a left turn as he was " just coming to the turn lane." Youngreen stated that the first vehicle pulled into the intersection when he was about 100 feet away. He also saw a white car stopped at the stop sign on Lincoln, but he did not see the car move into the intersection. Youngreen made the right turn and then heard what he described as a tire exploding and then " a bunch of debris hit our pickup." Youngreen stated that he was going slow, because it was a sharp corner. He looked back and saw sparks. He turned around and went back to the intersection, where he saw that sparks were coming from the front of the truck.

[¶21] Christian Reid and Stephanie Solma testified that they were friends of McDonald, Chakonas and Kakidas. On July 6, 2002, the group of Reid, Solma, McDonald, Chakonas and Kakidas decided to go to a local dance club. They went in two cars with Reid driving one car with Solma as a passenger and Chakonas driving the second car with passengers, Kakidas and McDonald. Reid stated that Chakonas knew where the dance club was and there was no plan that she had to follow him.

[¶22] Reid was driving on Lincoln and stopped at the intersection with Route 30. He made a left turn onto westbound Route 30 and as he was making the turn he stopped in the median to check the traffic headed west. When Reid was turning onto Route 30, Solma looked back to see if Chakonas' car was behind them and she saw that it was stopped at the stop sign. While he was driving, Reid was looking in his rearview mirror and he saw the accident between Chakonas' car and a semitruck. Solma turned around and saw the truck pushing Chakonas' car. Reid estimated that he traveled 300 to 500 yards before the accident occurred. Reid testified that about ten seconds passed from when he was at the stop sign and he saw the accident in his rearview mirror.

[¶23] Troy Layton testified that in July 2002 he was employed as a patrol officer with the LaPorte County police department. He was dispatched to the accident at Route 30 and Lincoln and arrived shortly after the accident occurred. On cross-examination, Layton stated that his police report did not indicate that Reeves was fatigued. Layton agreed that there were no signs of anyone being asleep or tired.

[¶24] Dean Ayen testified that he was employed as a manager for Alder and Alco. He was Reeves immediate supervisor and would set Reeves' schedule and routes. Ayen stated that the tractor involved in the accident was owned by Alder and the trailer was owned by Dean Foods. According to Ayen, Alder exclusively " pulls" Dean Foods products.

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[¶25] Ayen testified that Reeves would turn in his trip tickets on Saturday or Sunday, at the end of a week. The trip tickets would be used to calculate Reeves' pay. Ayen stated that the company has 30 other drivers who would use the tractor when it was in Chemung. On the day of the accident, Reeves volunteered to make the run between Chemung and Rochester, Indiana, because Reeves had the hours available to drive. Ayen looked at the log to verify, but did not check anything else to see if Reeves still had hours he could drive.

[¶26] Ayen testified that he was aware of the audit of Reeves' logbooks and the finding that the logs had been falsified and that Alder had been fined. Ayen explained that the audit was random and the majority of the fine was for local delivery drivers. The audit found four or five " over-the-road problems," including Reeves. Ayen stated that the problem was the " the wrong miles on a log. It could have been an hourly add or subtraction was what they found on that."

[¶27] Daniel White testified that he was the assistant safety manager for Alder. He performed the compliance reviews on the logs. White stated that he did not find any problems with Reeves' logbooks, but the audit did find that there were falsifications. This finding was prior to July 2002. White testified that a log of " anything past 575 to 600 miles in a 24-hour period" would have caught his attention.

[¶28] Donald Hess testified as an expert witness for plaintiffs with his expertise based on his years working as a truck driver and teaching truck driving courses. His opinions were " based around the fact that Mr. Reeves and the employers violated a number of federal safety statutes that are related to truck driving," and he specifically referred to regulations relating to fatigue and speed. During Hess's testimony, Hess stated that " the company [was] dispatching the driver too many miles per day" and " the driver then [was] speeding, in order to get these runs accomplished." Defense counsel objected that Hess's opinion regarding speed were improper because his opinion on the subject had not been previously disclosed. Following a sidebar, the trial court overruled the objection.

[¶29] Hess opined that these circumstances led to fatigue and referred to the federal regulation that a driver was limited to 70 hours of work time over an 8-day period. The hours of service requirements were in place to help drivers avoid being fatigued. Hess concluded that Reeves had been in excess of the service hour requirements " so he was fatigued." Hess admitted that he did not have any " specific information" that Reeves was fatigued at the time of the accident. Hess also testified that if Reeves had not been speeding, then he would not have reached the location when the car pulled out.

[¶30] Hess testified about inconsistencies in Reeves' log compared to the truck's Detroit Diesel Electronic Controls (DDEC), considered to be the truck's " black box." He stated that the DDEC report was frequently at odds with Reeves' daily log for his hours. Specifically, Reeves' log from the week leading up to the crash indicated that the truck was not being driven, but the DDEC showed the truck in use for some of that time. Hess said in reviewing the DDEC report, he made the assumption that at any time the truck is idling, then Reeves was on duty, but not driving. Hess admitted that drivers might be off duty and sleeping with the air conditioning running, which would have the truck in idle mode on the DDEC. Hess also acknowledged that the DDEC does not indicate who is driving the truck and another driver could be operating the truck. Hess detailed the entire week prior

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to the accident and compared the DDEC report to Reeves' logs to determine his driving and duty hours. Hess relied exclusively on the DDEC report to form his opinion that Reeves had exceeded the 70-hour rule prior to July 6, 2002. In contrast, Reeves' logs for that week indicated that he had driven less than 70 hours.

[¶31] Hess also testified that the data retrieved from the semi-truck's engine control module (ECM) showed that on July 1, Reeves had reached a speed of 79.5 miles per hour and that Reeves' average speed was 65.9 miles per hour. Hess concluded that in his opinion, the violations of the federal regulations were the cause of death of the plaintiffs' decedents.

[¶32] Michael Rogers investigated the accident as an expert for plaintiffs. Rogers measured the distance between the point of impact and the point of rest as approximately 358 feet. The distance between the stop sign and the point of impact was approximately 58 feet. Rogers testified about the report from the sensing diagnostic module (SDM) from Chakonas' vehicle, which is the car's " black box" that " monitors the acceleration or movement of the vehicle and also gathers information from other vehicle components." It can sense when a collision is occurring to determine " whether this collision is going to be sufficient in magnitude to warrant a deployment of the air bag." The SDM stores this information, including vehicle speed, for up to five seconds before the air bag is deployed. Rogers stated that five seconds before the accident, the car was traveling 4 miles per hour and the brake was on. At the time of the accident, he testified that Chakonas' vehicle was traveling 12 miles per hour.

[¶33] Based on his analysis of the scene and the vehicle reports, Rogers opined that the truck speed at the time of impact was 49.5 miles per hour. Rogers stated that a hard brake event would be recorded by the ECM if the truck speed slows more than 7 miles per hour in one second. Rogers testified that a minute before the hard brake event, the truck was on cruise control and set at 65 miles per hour. Rogers said that in the last five seconds, the truck's speed was " dropping off much quicker" than it had been before that time. In his opinion, the reason for that decrease was the impact. Rogers testified that the truck's brake was applied four seconds after the impact and " that's what resulted in an even greater rate of slowing that cause[d] the hard brake event to occur." Rogers opined that " this collision would not have occurred if the truck was going 40 by the time it got to the second 40 mile per hour sign." Rogers also stated that the car would have had sufficient time to clear the lane if the truck had been going 55 miles per hour instead of 65 miles per hour.

[¶34] R. Matthew Brach also testified as an expert for plaintiffs about his investigation of the accident. Brach stated that the first sign reducing the speed limit to 40 miles per hour from 55 miles per hour is about three-tenths of a mile from the accident intersection. Based on his reconstruction and using the DDEC, Brach testified that the truck was going 49.5 miles per hour at the point of impact. He further stated that the brakes were applied when the truck was going 37 miles per hour, which was three seconds after the impact. Brach also opined that if the truck had been going 40 miles per hour, then it would have been 130 feet west of the point of impact. Brach testified that Chakonas' vehicle would have moved past the point of impact.

[¶35] Steven Rickard testified as an expert for defendants. In his opinion, Rickard concluded that Reeves was traveling 37 miles per hour when the collision occurred.

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He stated that according to the hard brake report, the cruise control was turned off 20 seconds before the hard brake. The foot was off the accelerator and the speed showed " a normal gradual continuation of slowing, and then, something happens." Rickard opined that just before the hard brake, Reeves moved his foot to the brake pedal. Rickard also noted that the engine load increased 16% at the hard brake, which was not present a second earlier. Rickard testified that the increase in engine load was caused by the car being pushed.

[¶36] Rickard also reviewed the reports from Chakonas' vehicle's SDM. Based on that data, Rickard stated that vehicle did not brake within five seconds of the airbag deployment. Rickard testified that in his opinion, it was not safe for Chakonas' vehicle to pull in front of the truck. Rickard admitted on cross-examination that he never visited the scene of the accident in reviewing the case. The parties rested after Rickard's testimony.

[¶37] During closing arguments, counsel for Kakidas and McDonald argued that Reeves should be found 65% to 75% responsible for the accident and Chakonas " should be in the area of 35 percent to 25%." Similarly, Chakonas' attorney argued that defendants were 75% at fault for the accident. He conceded Chakonas " made a mistake" that was a proximate cause of the accident and she was 25% at fault. The jury found in favor of plaintiffs, but determined that Chakonas was 40% contributorily negligent in causing the accident.

[¶38] We first address Dean Foods' argument that the Powell/Kakidas claims against it are barred by the statute of limitations. Dean Foods argues that filing of the Powell/Kakidas amended complaint which omitted Dean Foods as a defendant constituted a voluntary dismissal of Dean Foods and that the Powell/Kakidas second amended complaint was time barred because it was not filed within one year of the filing of the Powell/Kakidas amended complaint. On appeal, Dean Foods asserts that the Powell/Kakidas second amended complaint did not relate back to the Powell/Kakidas original complaint.

[¶39] As noted, on October 12, 2007, Powell and Kakidas sought leave to file their second amended complaint instanter, seeking to add " Dean Foods Company" as a defendant. The trial court granted Powell and Kakidas leave to file their second amended complaint instanter and also granted Dean Foods leave to answer or otherwise plead to the Powell/Kakidas second amended complaint. On October 18, 2007, Dean Foods filed a motion to dismiss the Powell/Kakidas complaint because it was not named as a defendant in the Powell/Kakidas amended complaint and that the inclusion of " Dean Foods Company" in the October 12, 2007, Powell/Kakidas second amended complaint, over objection, was barred by the statute of limitations. Dean Foods argued that the filing of the Powell/Kakidas amended complaint constituted a voluntary dismissal of Dean Foods that was time barred if not refiled within one year and that the Powell/Kakidas second amended complaint pled new theories that did not relate back to the Powell/Kakidas original complaint. Powell and Kakidas filed a response to Dean Foods' motion to dismiss, arguing:

" Dean Foods [Company] was never voluntarily dismissed by [Powell and Kakidas]. It was inadvertently left off the amended complaint when [defense counsel] advised [Powell and Kakidas' counsel] that Dean Illinois Dairies, LLC, was the owner of the trailer, not Dean Foods [Company].
* * *

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The evidence adduced in discovery, and at trial, indicates that Dean Foods Company is a proper defendant. Furthermore, Dean Foods [Company] will suffer no prejudice by being included in [the Powell/Kakidas second amended complaint], because it has always been a defendant in the consolidated case of Chakonas v. Dean Foods Company, No. 03 L 15077. Finally, [the Powell/Kakidas second amended complaint] relates back to their timely filed [original complaint and amended complaint]."

Powell and Kakidas further asserted that their second amended complaint corrected the " clerical omission of Dean Foods [Company] from the amended complaint."

[¶40] On October 29, 2007, the trial court denied Dean Foods' motion to dismiss the Powell/Kakidas second amended complaint.

[¶41] Section 2-616(b) of the Code of Civil Procedure governs the relation-back doctrine and provides as follows:

" The cause of action, cross claim or defense set up in any amended pleading shall not be barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed, and if it shall appear from the original and amended pleadings that the cause of action asserted, or the defense or cross claim interposed in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery or defense asserted, if the condition precedent has in fact been performed, and for the purpose of preserving the cause of action, cross claim or defense set up in the amended pleading, and for that purpose only, an amendment to any pleading shall be held to relate back to the date of the original pleading so amended." 735 ILCS 5/2-616(b) (West 2006).

[¶42] The purpose of the relation-back doctrine is to preserve meritorious causes of action against a dismissal by reasons of a technical default. Porter v. Decatur Memorial Hospital, 227 Ill.2d 343, 355, 882 N.E.2d 583, 317 Ill.Dec. 703 (2008); Stevanovic v. City of Chicago, 385 Ill.App.3d 630, 633, 896 N.E.2d 355, 324 Ill.Dec. 569 (2008). Trial courts are to liberally construe the requirements of section 2-616(b) (735 ILCS 5/2-616(b) (West 2006)) to allow resolution of litigation on the merits and to avoid elevating questions of form over substance. Porter, 227 Ill.2d at 355 (citing Bryson v. News American Publications, Inc., 174 Ill.2d 77, 106, 672 N.E.2d 1207, 220 Ill.Dec. 195 (1996), and Boatmen's National Bank of Belleville v. Direct Lines, Inc., 167 Ill.2d 88, 102, 656 N.E.2d 1101, 212 Ill.Dec. 267 (1995)). Both the statute of limitations and section 2-616(b) are designed to afford a defendant a fair opportunity to investigate the circumstances upon which liability is based while the facts are accessible. Porter, 227 Ill.2d at 355 (citing Boatmen's National Bank, 167 Ill.2d at 102). The rationale behind the " same transaction or occurrence" rule is that a defendant is not prejudiced if" 'his attention was directed, within the time prescribed or limited, to the facts that form the basis of the claim asserted against him.' " Boatmen's National Bank, 167 Ill.2d at 102 (quoting Simmons v. Hendricks, 32 Ill.2d 489, 495, 207 N.E.2d 440 (1965)). " A court should consider

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the entire record, including depositions and exhibits, to determine whether the defendant had such notice." Porter, 227 Ill.2d at 355 (citing Wolf v. Meister-Neiberg, Inc., 143 Ill.2d 44, 46, 570 N.E.2d 327, 155 Ill.Dec. 814 (1991)).

[¶43] In this case, the suit was commenced within the limitations period, Dean Foods received notice of the proceedings, actually participated in them, and cannot claim prejudice as the causes of action alleged in the Powell/Kakidas second amended complaint grew out of the same transactions or occurrence set up in the Powell/Kakidas original complaint. Therefore, we find that the allegations of the second amended complaint are not barred by the statute of limitations as a result of the doctrine of relation back.

[¶44] We next address defendants' claims that the trial court should have granted their motions for judgment notwithstanding the verdicts. Defendants contend that the evidence presented at trial failed as a matter of law to establish that Reeves was the legal cause of the accident because Reeves was the driver on the preferential highway and it was not reasonably foreseeable that Chakonas' vehicle, with a stop sign and a duty to yield the right of way, would proceed into the intersection in front of Reeves' semitruck. Plaintiffs respond that the evidence proved that Reeves was negligent because, if Reeves had not been speeding, as their experts testified, then Chakonas would have been able to cross the lanes of traffic safely. Plaintiffs maintain that the evidence of Reeves' excessive speed and his violation of federal regulations, by driving over 70 hours in an 8-day period, established that Reeves was the legal cause of the collision.

[¶45] A motion for judgment notwithstanding the verdict should be granted only when all the evidence, viewed in the light most favorable to the nonmovant, so overwhelmingly favors the moving party that no other verdict based on the evidence could stand. Barth v. State Farm Fire & Casualty Co., 228 Ill.2d 163, 177, 886 N.E.2d 976, 319 Ill.Dec. 852 (2008) (citing Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504 (1967)). " 'This is clearly a very difficult standard to meet, limiting the power of the [trial] court to reverse a jury verdict to extreme situations only.'" Velarde v. Illinois Central R.R. Co., 354 Ill.App.3d 523, 537, 820 N.E.2d 37, 289 Ill.Dec. 529 (2004) (quoting People ex rel. Department of Transportation v. Smith, 258 Ill.App.3d 710, 714, 631 N.E.2d 266, 197 Ill.Dec. 263 (1994)). " '[I]t is the province of the jury to resolve conflicts in the evidence, to pass upon the credibility of the witnesses, and to decide what weight should be given to the witnesses' testimony.' " Velarde, 354 Ill.App.3d at 537 (quoting Maple v. Gustafson, 151 Ill.2d 445, 452, 603 N.E.2d 508, 177 Ill.Dec. 438 (1992)). " 'A trial court cannot reweigh the evidence and set aside a verdict merely because the jury could have drawn different inferences or conclusions, or because the court feels that other results are more reasonable.' " Velarde, 354 Ill.App.3d at 537 (quoting Maple, 151 Ill.2d at 452). " 'The [trial] court has no right to enter a [judgment notwithstanding the verdict] if there is any evidence, together with reasonable inferences to be drawn therefrom, demonstrating a substantial factual dispute, or where the assessment of credibility of the witnesses or the determination regarding conflicting evidence is decisive to the outcome.' " Velarde, 354 Ill.App.3d at 537 (quoting Maple, 151 Ill.2d at 454).

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This court reviews a trial court's decision to grant or deny a motion for judgment notwithstanding the verdict de novo ; however, like the trial court, we must be careful not to usurp the function of the jury and substitute our own assessment. Velarde, 354 Ill.App.3d at 537 (citing Jones v. Chicago Osteopathic Hospital, 316 Ill.App.3d 1121, 1125, 738 N.E.2d 542, 250 Ill.Dec. 326 (2000)).

[¶46] The term " proximate cause" involves two components: cause in fact and legal cause. First Springfield Bank & Trust v. Galman, 188 Ill.2d 252, 257-58, 720 N.E.2d 1068, 242 Ill.Dec. 113 (1999) (citing Lee v. Chicago Transit Authority, 152 Ill.2d 432, 455, 605 N.E.2d 493, 178 Ill.Dec. 699 (1992)); see also Abrams v. City of Chicago, 211 Ill.2d 251, 258, 811 N.E.2d 670, 285 Ill.Dec. 183 (2004). Cause in fact exists where there is a reasonable certainty that a defendant's acts caused the injury or damage, but a defendant's conduct is a cause in fact of the plaintiff's injury only if that conduct is a material element and a substantial factor in bringing about the injury. Galman, 188 Ill.2d at 258. " A defendant's conduct is a material element and a substantial factor in bringing about an injury if, absent that conduct, the injury would not have occurred." Galman, 188 Ill.2d at 258. Whereas, " legal cause" is a question of foreseeability and " [t]he relevant inquiry here is whether the injury is of a type that a reasonable person would see as a likely result of his or her conduct." Galman, 188 Ill.2d at 258.

[¶47] Defendants cite to a series of cases recognizing the " unavoidable collision" principle, as it has been termed, in arguing that Reeves' excessive speed was not the legal cause of the collision. See Hale v. Cravens, 129 Ill.App.2d 466, 472, 263 N.E.2d 593 (1970); Salo v. Singhurse, 181 Ill.App.3d 641, 643, 537 N.E.2d 339, 130 Ill.Dec. 272 (1989); Johnson v. May, 223 Ill.App.3d 477, 585 N.E.2d 224, 165 Ill.Dec. 828 (1992); Coole v. Central Area Recycling, 384 Ill.App.3d 390, 400, 893 N.E.2d 303, 323 Ill.Dec. 289 (2008). Plaintiffs assert that this line of cases is distinguishable from the present case because this case included the testimony of multiple expert witnesses to explain the circumstances of the collision and those cases lacked expert testimony.

" In cases where the reviewing court has concluded an accident was unavoidable, the courts have found the following:
'[T]he motorist on the preferential road had the right to expect that the vehicle approaching on the secondary road controlled by a stop sign would obey the stop sign and yield the right-of-way. When the motorist drove into the path of the preferential driver, the circumstances afforded no opportunity to avoid the collision.' " Coole, 384 Ill.App.3d at 398 (quoting Guy v. Steurer, 239 Ill.App.3d 304, 309, 606 N.E.2d 852, 179 Ill.Dec. 1020 (1992)).

[¶48] In Hale, the plaintiffs were driving on U.S. Route 54 in Illinois. Route 54 is a two-lane highway, with a speed limit of 65 miles per hour. It was the preferential highway with no stop signs. The defendant was traveling on Buffalo Hart Road, which had a stop sign at the intersection with Route 54. A jury verdict was returned in favor of defendant and plaintiffs appealed.

[¶49] The Hale court noted that the defendant had a statutory duty to stop and yield the right-of-way to the plaintiffs and the only bar to the plaintiffs' recovery was their contributory negligence, which in this case could have been the plaintiffs' speed

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and failure to keep a proper lookout. Hale, 129 Ill.App.2d at 471-72. The Hale court reasoned that " [a] traveler on a preferential highway has a right to expect a car approaching along a secondary road controlled by a stop sign to obey the stop sign and yield the right-of-way as required by law." Hale, 129 Ill.App.2d at 472.

" 'Stop signs are erected for the obvious purpose of requiring motorists to yield to vehicles on through highways. If the motorist on the through highway had to travel at such a speed that he could stop his car in time to avoid collisions with vehicles which ignore stop signs on intersecting roads, the purpose of having a through highway in the first place would be entirely thwarted. The driver who has the stop sign cannot assume the car on the through highway will stop. It is the other way around.' " Hale, 129 Ill.App.2d at 472-73 (quoting Hession v. Liberty Asphalt Products, Inc., 93 Ill.App.2d 65, 74, 235 N.E.2d 17 (1968)).

[¶50] Further, the Hale court concluded that even in the light most favorable to defendant, the plaintiffs' speed was not the proximate cause of the accident. " Whether the speed of plaintiffs' automobile was 60 miles per hour or 70 miles per hour, the sole cause of the collision was the fact that defendant drove her automobile directly into the path of plaintiffs' vehicle under circumstances that afforded plaintiffs no opportunity to avoid the collision." Hale, 129 Ill.App.2d at 473.

" 'Violation of a law at the time of an accident by one connected with it is usually evidence of negligence, but there remains a question of fact whether the illegal act is the proximate cause of the injury. The mere fact, if it be a fact, that defendant in error was violating the law at the time he was injured will not bar his right to recover unless the unlawful act in some way proximately contributed to the accident in which he was injured. If the illegal act is a mere condition which made it possible for the accident to occur but is not itself a part of the accident it will not bar recovery.' " Hale, 129 Ill.App.2d at 474 (quoting Jeneary v. Chicago & Interurban Traction Co., 306 Ill. 392, 395, 138 N.E. 203 (1923)).

[¶51] The Hale court noted that it was " mindful" of the weight given to jury verdicts, but found that the evidence did not support the verdicts.

" Whether they were swayed by sympathy for defendant because her minor son was killed in the collision, which plaintiffs claim resulted from the defendant's improper emphasis at the trial, or by other factors, is immaterial. We think that the evidence in this case, when viewed in its aspects most favorable to the defendant, so overwhelmingly favor the plaintiffs that no verdict against the plaintiffs based on that evidence could ever stand, and the court should have granted plaintiffs' motions for judgment notwithstanding the verdict." Hale, 129 Ill.App.2d at 475.

[¶52] The court then reversed the jury's verdict in favor of the defendant and remanded for a new trial on damages only. Hale, 129 Ill.App.2d at 476.

[¶53] In Salo, the plaintiff argued that he, as the driver on the preferential highway, had a right to expect the driver on the secondary road to yield the right of way to him and that he did not proximately cause the accident. Salo, 181 Ill.App.3d at 642-43. The reviewing court agreed with the plaintiff and reversed the judgment apportioning 60% of the fault to the plaintiff because " [f]or the jury to attribute 60% of the fault

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to Salo under such circumstances [was] not only contrary to the manifest weight of the evidence, but also beyond comprehension and reason." Salo, 181 Ill.App.3d at 644.

" Whether or not the jury believed Salo should have exercised more caution under the circumstances of a flashing yellow light by possibly slowing down more or watching Singhurse's car longer in order to sound his horn or swerve, any negligence on his part was not the proximate cause of the collision. Singhurse had a duty to stop and yield the right-of-way to approaching cars. Instead, she rolled into the intersection and hit Salo's car after he was already in the intersection at a time when there was nothing he could do to avoid the collision. Salo could not reasonably be expected to anticipate Singhurse entering the intersection in disregard of her duty to yield. But for Singhurse running the stop sign or not looking, the collision would not have occurred. *** If we were to follow the jury's apportionment in this case, every time a driver on a preferential highway saw an approaching car on an intersecting road or drive, he essentially would be required to stop to make sure the other car obeyed the stop sign and stayed there or else be found negligent" Salo, 181 Ill.App.3d at 643-44.

[¶54] In Johnson, the reviewing court reversed a jury's verdict that the plaintiff was 50% contributorily negligent and found the defendant to be 100% negligent. There, the plaintiff was driving a tractor-trailer on the preferential highway when he was struck by the defendant's truck crossing the intersection from a street with a stop sign. The court reasoned that under the defendant's version of the facts, he stopped at the stop sign and then the plaintiff would have no reason to believe that the defendant would proceed into the intersection and not yield the right-of-way. There was nothing the plaintiff could reasonably have done to avoid the collision. Johnson, 223 Ill.App.3d at 484.

[¶55] Similarly, in Coole, the court affirmed the trial court's grant of summary judgment in favor of the defendants because the plaintiff's decedent failed to yield the right-of-way to a garbage truck owned by the defendants. The court concluded that the plaintiff failed to provide any evidence " supporting an inference [the garbage truck driver] could have avoided the accident if he would have been driving slower, had been keeping a better lookout, or had applied the brakes." Coole, 384 Ill.App.3d at 400. The court found that a reasonable jury could not find that the garbage truck driver's breach of duty was a substantial cause of the accident and summary judgment was proper. Coole, 384 Ill.App.3d at 400-01.

[¶56] The circumstances of the instant case are similar to those presented in Hale, Salo, Johnson, and Coole since they all involve collisions and the first three decisions involve accidents between a driver on a preferential highway and another driver on a nonpreferential road. They do in some measure support defendants' argument on the issue of legal cause.

[¶57] Plaintiffs cite the decision in Guy v. Steurer, 239 Ill.App.3d 304, 606 N.E.2d 852, 179 Ill.Dec. 1020 (1992), as support for their position that the duty of the intersecting driver to yield only arises when the oncoming driver constitutes an immediate hazard. There, the jury returned a verdict in favor of the defendant. Guy, 239 Ill.App.3d at 306-07. On appeal, the plaintiff argued

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that his motion for judgment notwithstanding the verdict or motion for a new trial should have been granted by the trial court. The Guy court cited the Illinois Vehicle Code provision that requires: " a driver at a stop sign on a road intersecting with a preferential highway must yield the right-of-way to any vehicle approaching so closely on the highway that it constitutes an immediate hazard to his vehicle's travel across the intersection." Id., at 306 (quoting Ill. Rev. Stat. 1989, ch. 95 1/2, & 11-904 (b)). It then pointed out that " [t]his provision has not been construed to impose absolute liability upon a party approaching a stop sign on a nonpreferential road such that he must stop long enough to permit any car he observes on the highway to pass, regardless of its distance from the intersection." (Emphasis added.) Guy, 239 Ill.App.3d at 307-08 (citing Ill. Rev. Stat. 1989, ch. 95 1/2, & 11-904(b)). " Rather, the statute requires the motorist confronted by the stop sign to exercise reasonable care and proceed across the intersection after he has stopped and yielded the right-of-way to vehicles on the highway that constitute an 'immediate hazard.' " Guy, 239 Ill.App.3d at 308 (quoting Pennington v. McLean, 16 Ill.2d 577, 583, 158 N.E.2d 624 (1959)). Similarly, the driver on the preferential roadway does not have an absolute right to proceed through the intersection, but has a duty to exercise due care, keep a proper lookout, and drive as a prudent person would to avoid a collision. Guy, 239 Ill.App.3d at 308.

[¶58] The Guy court observed that there was " no precise formula" for determining whether a particular vehicle followed the duty imposed on it. Guy, 239 Ill.App.3d at 308. " The issue involves considerations as to the relative speeds and distances of the vehicles from the intersection and must be determined by the trier of fact." Guy, 239 Ill.App.3d at 308. The Guy court reasoned that the case did not involve an unavoidable collision because the plaintiff admitted that he observed the defendant cross four lanes of traffic, but failed to slow down or otherwise try to avoid the accident because he thought the defendant would stop. " [P]laintiff had an opportunity to avoid the collision by decreasing his speed, sounding his horn, or changing lanes. This is significant in that it bears on whether plaintiff observed his own duty to exercise due care in approaching and crossing the intersection and to drive as a prudent person would to avoid a collision when danger is discovered, or should have been discovered by the exercise of reasonable care." Guy, 239 Ill.App.3d at 310. The Guy court concluded that the evidence was sufficient for the jury to have found the plaintiff more than 50% negligent and bar any recovery. Guy, 239 Ill.App.3d at 310.

[¶59] Under all of the authority outlined above, Reeves and Chakonas each had duties to follow while approaching the intersection. A driver of a vehicle approaching an intersection with a stop sign has a duty to stop and after having stopped, to yield the right-of-way to any vehicle which has entered the intersection or is approaching so closely as to constitute an immediate hazard during the time the driver was in the intersection. Johnson, 223 Ill.App.3d at 483 (citing Ill. Rev. Stat. 1987, ch. 95 1/2, & 11-904(b))[3]. Although the driver on

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a preferential highway has the right to expect that the vehicle approaching on the secondary roadway controlled by a stop sign will obey the stop sign and yield the right-of-way, the driver does not have an absolute right to proceed into the intersection. Rather, the preferential driver " has a duty to keep a proper lookout, observe due care in approaching and crossing intersections, and drive as a prudent person would to avoid a collision when danger is discovered or, by the exercise of reasonable care, should have been discovered." Johnson, 223 Ill.App.3d at 484 (citing Salo, 181 Ill.App.3d at 643).

[¶60] Differing testimony was presented regarding Reeves' speed at the time of the accident. Plaintiffs' experts opined that Reeves was traveling 49.5 miles per hour at the time of the collision while the defense expert concluded that Reeves was traveling 37 miles per hour. Reeves testified that he thought he was going between 40 to 45 miles per hour. The evidence regarding whether Reeves was fatigued and in violation of the 70-hour rule was also contested. Hess opined that Reeves had exceeded his 70 hours at the time of the accident according to the DDEC information and based on Hess's own experience, Reeves would have been fatigued. Reeves testified that he was not over his hours and was not fatigued. Ayen, Reeves' supervisor, also stated that he checked Reeves' log prior to Reeves leaving on this delivery and he was not over 70 hours. Finally, plaintiffs asserted that Reeves could have taken evasive action to avoid the collision and that Reeves should have noticed Chakonas' vehicle prior to impact. Reeves testified that he observed the Reid vehicle, but he did not see Chakonas' vehicle until the impact.

[¶61] Based on the evidence presented at trial, the jury could have concluded that Reeves' speeding was a legal cause of the collision because it was reasonably foreseeable that a driver seeking to merge onto Route 30 from Lincoln Street might misjudge how long it would take the semitruck to reach the intersection. Further, the jury could have determined that, based upon the evidence, Reeves could have avoided the collision with the Chakonas vehicle. As noted, Reeves testified that he applied his brakes when he observed the Reid vehicle crossing the intersection; however, Rogers opined that Reeves only applied the semitruck's ...


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