Modified Upon Denial of Rehearing June 24, 2014.
Appeal from the Circuit Court of the 9th Judicial Circuit, McDonough County, Illinois. Circuit No. 06-L-9. Honorable Richard H. Gambrell, Judge, Presiding.
In a wrongful death and personal injury action arising from a collision that occurred when a vehicle driven by one of the plaintiffs made a left turn in front of a sheriff's squad car engaged in a chase, the verdict for the sheriff's department and the deputy was reversed and the cause was remanded for a new trial on the ground that the trial court erred in admitting the line-of-sight video submitted by defendants, since the conditions existing at the time of the video were not the same as those when the accident occurred and there existed significant differences in the details of the video and the facts at trial, and although the defense informed the jury that the video was not a re-creation of the crash, the requirements for the admission of demonstrative evidence were not met and plaintiffs were prejudiced; furthermore, the limiting instruction given about the video was confusing and improper and did not track the applicable pattern instruction.
John M. Spesia (argued), Kent Slater, and Jacob Gancarczyk, all of Spesia, Ayers & Ardaugh, of Joliet, for appellants.
Craig L. Unrath (argued), of Heyl, Royster, Voelker & Allen, of Peoria, and Matthew R. Booker and Douglass R. Bitner, of Heyl, Royster, Voelker & Allen, of Springfield, for appellees.
JUSTICE O'BRIEN delivered the judgment of the court, with opinion. Justice Carter concurred in the judgment and opinion. Justice Schmidt dissented, with opinion. Justice Schmidt also concurred in part and dissented in part upon denialof rehearing, with opinion.
[¶1] Plaintiffs Brian Dayton, individually and as special administrator of the estate of Jill Dayton, deceased, Amanda Dayton Nehring, and others not involved in this appeal, filed personal injury and wrongful death actions against defendants Thomas Pledge and the McDonough County sheriff's department, for damages they sustained following a car accident between the Daytons' minivan and a sheriff's squad car. Following a trial, the jury entered a verdict in favor of Pledge and the sheriff's
department. The Daytons appealed. We reverse and remand for a new trial.
[¶3] On September 3, 2004, at approximately 11:30 p.m., defendant McDonough County sheriff's department received a call regarding an erratically driven sport utility vehicle (SUV). Defendant Deputy Thomas Pledge, who responded to the call, located and observed the SUV. His squad video activated, and after seeing the SUV swerve several times, Pledge effectuated a traffic stop. As Pledge approached the stopped SUV, it sped away, and he pursued the vehicle. The SUV and Pledge proceeded southbound on Route 67, heading into Macomb. Pledge's vehicle reached speeds as high as 110 miles per hour and was traveling at 100 miles per hour approximately four seconds before he entered the intersection of Route 67 and University Drive. The SUV turned off its headlights as it neared the intersection.
[¶4] At the same time the SUV and Pledge were speeding toward the intersection, a minivan traveling northbound on Route 67 and occupied by 16-year-old Amanda Dayton, the driver; her mother, Jill Dayton, in the passenger seat; and their friend, Mark Lorenz, in the backseat, entered the intersection's center turn lane to proceed left onto University Drive. The SUV passed through the intersection, and as Amanda began the left turn, the squad entered the intersection and struck the minivan on the passenger side. Pledge, Amanda and Lorenz were injured, and Jill was killed in the accident.
[¶5] Plaintiffs Mark Lorenz, Gary Lorenz, Leslie Lorenz (collectively, the Lorenzes), Brian Dayton, individually and as special administrator of the estate of Jill Dayton, and Amanda Dayton Nehring (collectively, the Daytons) sought to recover damages for their injuries from Pledge, individually and as a McDonough County deputy sheriff, and the McDonough County sheriff's department (collectively, Pledge). The Lorenzes are not part of this appeal. The fourth amended complaint asserted wrongful death and bodily injury against Pledge and the sheriff's department. The complaint alleged that Pledge acted both negligently, and willfully and wantonly, and violated provisions of several statutes and the sheriff's department pursuit policy.
[¶6] Both parties filed motions in limine . The Daytons sought to preclude a videotape prepared by a defense expert witness, Michael O'Hern. The video portrays a visibility or line-ofline-sight study undertaken by O'Hern and designed to give an indication of the line of sight down Route 67 that Amanda would have had from the left-turn lane. The Daytons argued that the video was an enactment of the crash and its probative value was outweighed by its prejudicial effect. Following a hearing, the trial court denied the motion in limine . Pledge filed a motion for summary judgment, arguing that additional negligence counts the Daytons added in their fourth amended complaint were barred by tort immunity. The new counts alleged that Pledge was not executing or enforcing the law when he pursued the SUV, which the Daytons argued precluded Pledge from the protection of tort immunity. The motion was heard and denied, and Pledge filed a motion seeking certification for an interlocutory appeal. The trial court denied the motion for certification.
[¶7] A jury trial ensued. Testifying for the Daytons were Pledge, expert witness Robert Johnson, Amanda Dayton Nehring, and Brian Dayton. Evidence depositions of an occurrence witness and a medical doctor were read into evidence. The occurrence witness testified that she saw the
accident occur and that the Dayton minivan was starting to turn left when the squad car collided with it. The squad car did not swerve or brake and its brake lights did not come on. Michael O'Hern testified as an expert witness for the defense. He created the line-of-sight video in response to an early claim by the Daytons that there were trees blocking Amanda's visibility. He undertook the experiment to determine whether there were any structures impeding Amanda's view; whether she could see Pledge's squad car; and whether it was necessary for her to yield to oncoming traffic. O'Hern reiterated a number of times that the video was not a reconstruction of the accident and explained the various differences between the conditions of the actual crash and the line-of-sight experiment, including speed, lane position, static position from the left lane, normal driving conditions, and an illuminated SUV. The conclusion O'Hern reached from the experiment was that Amanda had a " clear line of sight of both southbound lanes of traffic" for one-half mile as observed from the left-turn lane. In addition to the video, O'Hern also based his opinion on his experience and training.
[¶8] The Daytons timely objected to use of the video, arguing it was cumulative, inaccurate, and confusing, and that its probative value was outweighed by its prejudicial effect. The trial court overruled the objection and gave a limiting instruction to the jury as follows:
" The witness has explained why the video was produced and you should consider it only for purposes of the consideration that the witness took of the information that's contained therein. You can consider the material for that purpose in deciding what weight, if any, you give the opinions that have been testified to by the witness."
[¶9] Based on O'Hern's review of the squad car video, he concluded that Amanda's line of sight was blocked for one second by the passing SUV but the squad's emergency lights were still visible, and that Amanda could see the approaching squad for 13 to 15 seconds before the impact. He further opined that Pledge was traveling at 86 miles per hour entering the intersection, slowed to 73.9 miles per hour prior to impact, and to 70 miles per hour at impact. O'Hern stated that Amanda " would have a duty to yield and stop and not engage in that left turn maneuver in front of the vehicle." He opined that Amanda had a duty to yield to oncoming traffic in general, and to emergency vehicles in particular, when turning left. In O'Hern's professional opinion, Amanda's failure to yield was the cause of the accident and Pledge operated with due regard for the public's safety.
[¶10] Pledge testified, in part, that he was aware of the license plate number of the SUV before he began to pursue the vehicle. He also heard on the police monitor that the Macomb police were placing spike strips to stop the SUV and were prepared to apprehend the driver. He anticipated that the SUV would ultimately crash and that it created a " huge safety concern" by traveling without its headlights. Pledge knew his speed reached 110 miles per hour during the pursuit. He saw the Dayton minivan in the left-turn lane but opted to proceed through the intersection in order to keep the SUV in sight. Pledge grew up in the Macomb area and was familiar with the intersection where the accident occurred and was aware that other accidents occurred there, often involving left-turning vehicles. As an officer, Pledge had responded to some of the accident scenes at the intersection. Pledge was also aware that Western Illinois University (WIU) was in session, increasing the population in the area of the intersection, which was an entrance to campus. It was a holiday
weekend, which also increased pedestrian and vehicular traffic.
[¶11] Pledge further testified regarding the sheriff's department policy regarding high speed pursuits. The policy stated that " 'fresh pursuit' at high speeds is justified only when the officer knows or has reasonable grounds to believe the violator has committed or attempted to commit as serious felony." (Emphasis is original.) The policy also provides that it is not inconsistent with the pursuit policy " that it is sometimes better to discontinue pursuit, than to continue pursuit and risk the consequences." The policy provides other regulations and procedures regarding " fresh pursuit," including advising that the officer must consider, " most importantly, the safety of citizens, whose protection is his major objective." The policy allows officers in pursuit to exceed the speed limit and violate other traffic regulations, but only with the squad's lights and siren employed and " [i]f the utmost safety is insured for self and others." Finally, the policy provides that an officer engaged in pursuit is not " relieved of his duty to drive with 'due regard' for the safety of all persons, nor protected from the consequences of any reckless disregard for their safety."
[¶12] Closing arguments took place. Counsel for the Daytons argued that Amanda's vehicle was only visible for five seconds before the collision as indicated in the squad video. The defense objected, to which the trial court responded, as follows:
" The objection is that you have misstated the fact. That is, I believe that there was testimony or some sort of evidence that there was a period of five seconds within which the squad car would have been viewed, and my recollection of the evidence is that there was no such testimony from any of the occupants of the [mini]van. There was no testimony from the evidence deposition of the occurrence witness, and there was no testimony of five seconds. The only testimony that I heard was the opinion witness of the defense."
[¶13] During deliberations the jury asked to see the squad car video, along with other evidence. The video was replayed for the jury. The jury returned a verdict for Pledge and against the Daytons. The Daytons filed a posttrial motion, maintaining that the O'Hern video was improperly admitted; O'Hern improperly gave an opinion on Amanda's duty; they were prejudiced by the defense's closing argument; and the trial court failed to properly instruct the jury. The Daytons' motion was heard and denied. They appealed.
[¶15] The Daytons raise four issues on appeal. They challenge the trial court's rulings on the admission of the defense's line-of-sight video; the limiting instruction concerning the video; the limitations on their closing argument; and the defense expert's testimony regarding Amanda's duty.
[¶16] The first issue is whether the trial court erred in admitting the defense video. The Daytons argue that the line-of-sight video submitted by the defense was improperly admitted. They maintain the conditions shown in the video were not substantially similar to the conditions of the accident, and the video was inaccurate, misleading, and confusing, unfairly biased to the defense theory, and an informal accident reconstruction.
[¶17] The general guidelines for the admission of experiments are found in Illinois Rules of Evidence 401 and 402 (Ill. R. Evid. 401, 402 (eff. Jan. 1, 2011)) regarding relevant and irrelevant evidence. Relevant evidence is any evidence that has a tendency to make the existence of a fact of consequence in the case more probable or
less probable than it would be without the evidence. Voykin v. Estate of DeBoer, 192 Ill.2d 49, 57, 733 N.E.2d 1275, 248 Ill.Dec. 277 (2000); People v. Monroe, 66 Ill.2d 317, 321-22, 362 N.E.2d 295, 5 Ill.Dec. 824 (1977). In addition, a court may exercise its discretion and exclude evidence, even if it is relevant, if the danger of unfair prejudice substantially outweighs its probative value. Ill. R. Evid. 403 (eff. Jan. 1, 2011); People v. Hanson, 238 Ill.2d 74, 102, 939 N.E.2d 238, 345 Ill.Dec. 395 (2010). Distinguishing between an experiment (substantive evidence) and the use of demonstrative evidence (explanatory evidence) is sometimes difficult and confusing. See People v. Hayes, 353 Ill.App.3d 355, 360, 818 N.E.2d 916, 288 Ill.Dec. 981 (2004); Foster v. Devilbiss Co., 174 Ill.App.3d 359, 365, 529 N.E.2d 581, 124 Ill.Dec. 600 (1988); Michael H. Graham, Graham's Handbook of Illinois Evidence § 401.11, at 190 (10th ed. 2010).
[¶18] The foundational requirements for the admission of experiments or tests is " whether the 'essential conditions' or 'essential elements' of the experiment are substantially similar" to the conditions at the time of the accident. Brennan v. Wisconsin Central Ltd., 227 Ill.App.3d 1070, 1087, 591 N.E.2d 494, 169 Ill.Dec. 321 (1992). If an experiment is presented as a reenactment, the proponent must establish the test was performed under conditions closely duplicating the accident. Brennan, 227 Ill.App.3d at 1087. When an experiment is designed to test only one aspect or principle related to the cause or result of the accident at issue, the exact conditions of the accident do not need to be replicated but that particular aspect or principle must be substantially similar. Galindo v. Riddell, Inc., 107 Ill.App.3d 139, 144, 437 N.E.2d 376, 62 Ill.Dec. 849 (1982). This court reviews evidentiary errors for an abuse of discretion. Bosco v. Janowitz, 388 Ill.App.3d 450, 463, 903 N.E.2d 756, 328 Ill.Dec. 96 (2009). The admission of demonstrative evidence that may confuse or mislead the jury, or prejudice a party, constitutes an abuse of the trial court's discretion. Hernandez v. Schittek, 305 Ill.App.3d 925, 932, 713 N.E.2d 203, 238 Ill.Dec. 957 (1999). Where a trial court abuses its discretion in admitting evidence, a reviewing court should grant a new trial only where " the error was substantially prejudicial and affected the outcome of the case." Taluzek v. Illinois Central Gulf R.R. Co., 255 Ill.App.3d 72, 83, 626 N.E.2d 1367, 193 Ill.Dec. 816 (1993).
[¶19] It is proper to exclude experiments to determine the extent of visibility prior to the accident in question if the conditions are not substantially similar. See Kent v. Knox Motor Service, Inc., 95 Ill.App.3d 223, 226, 419 N.E.2d 1253, 50 Ill.Dec. 804 (1981) (where type of vehicle, light condition, and conditions of highway in line-of-sight test were not the same, nor substantially the same, as during the accident, the trial court's refusal to admit experiment to determine extent of driver's visibility was not an abuse of discretion); Amstar Corp. v. Aurora Fast Freight, 141 Ill.App.3d 705, 709, 490 N.E.2d 1067, 96 Ill.Dec. 31 (1986) (proper to exclude videotape where the difference in vantage point from position of video camera and position of driver was significant and misleading); French v. City of Springfield, 65 Ill.2d 74, 81-82, 357 N.E.2d 438, 2 Ill.Dec. 271 (1976) (city was prejudiced by improper admission of motion picture, which depicted area where accident occurred and preconditioned the minds of the jurors to accept the plaintiff's theory of the case). This court recently addressed the same issue presented here in Johnson v. Bailey, 2012 IL App (3d) 110016, 967 N.E.2d 961, 359 Ill.Dec. 931, and rejected arguments similar to those presented by Pledge.
In Johnson, the trial court improperly admitted photographs that the defense argued portrayed the layout of the gas station parking where the plaintiff was injured in a collision with the defendant. Johnson, 2012 IL App (3d) 110016, ¶ 15. One vehicle shown in the photo accurately represented the position of the defendant's vehicle but the second vehicle in the photo was not in a location substantially similar to the location of the plaintiff's vehicle when the accident occurred. Johnson, 2012 IL App (3d) 110016, ¶ 15. In addition to depicting the lot's layout and traffic flow, the photos also showed an inaccurate location of the plaintiff's vehicle, which we considered could mislead the jury. Johnson, 2012 IL App (3d) 110016, ¶ 15. Because the photographs did not accurately portray the location of plaintiff's vehicle, we found that the foundation was incomplete and the plaintiff was prejudiced by their improper admission. Johnson, 2012 IL App (3d) 110016, ¶ 16.
[¶20] The same circumstances are present in the instant case. The video does not meet the test for admissibility of experimental evidence. For the video to satisfy the foundational requirements, the defense needed to establish that the essential conditions of the line-of-sight experiment were substantially similar to those that existed when the accident occurred. It is undisputed that the essential conditions regarding line of sight were not substantially similar when the video was created. The pursuit involved speeds in excess of 100 miles per hour, while the SUV and squad car in the video were driving at 40 miles per hour. The vehicles in the experiment were in a different lane than the SUV and Pledge's vehicle, and standing traffic is visible in the video that was not present when the accident occurred. The SUV's lights were on in the video, contrary to the pursued SUV, which ...