Peterson v. Ress Enterprises, Inc.

FIRST DIVISION
SEPTEMBER 29, 1997

No. 1-95-3471

MARK A. PETERSON, ) APPEAL FROM THE
) CIRCUIT COURT
Plaintiff-Appellee, ) OF COOK COUNTY.
)
v. )
)
RESS ENTERPRISES, INC., d/b/a )
ARMY TRAIL TIRE & SERVICE CENTER, )
an Illinois Corporation, ) HONORABLE
) IRWIN J. SOLGANICK,
Defendant-Appellant. ) JUDGE PRESIDING.

PRESIDING JUSTICE CAMPBELL delivered the opinion of the
court:
This appeal arises out of an action brought by plaintiff,
Mark Peterson, against defendant, Ress Enterprises, Inc., d/b/a
Army Trail Tire & Service Center (Ress), and others, for injuries
he sustained in an automobile accident as a result of improper
tire repair. Following a jury trial in the circuit court of Cook
County, the jury returned a verdict in favor of plaintiff and
against Ress and other defendants in the amount of $12,650,000,
and apportioned 30% of the fault for the accident to Ress. On
appeal, Ress contends that: (1) the trial court erred in failing
to enter judgment notwithstanding the verdict (j.n.o.v) because
plaintiff failed to prove proximate cause; (2) the verdict is
against the manifest weight of the evidence; (3) the trial court
erred in failing to instruct the jury regarding adverse
influences because plaintiff lost the spare tire; (4) the trial
court erred in barring evidence showing the bias and prejudice of
plaintiff's witnesses; and (5) the trial court erred in failing
to impose a reasonable sanction for plaintiff's loss of the spare
tire. For the following reasons, we affirm the judgment of the
trial court.
The following facts are relevant to this appeal. On
March 19, 1989, Theodore Christ was driving a Ford Bronco
(Bronco) automobile owned by James J. Koran, eastbound on Inter-
state 30 near Prescott, Arkansas. Plaintiff, Sean Jerding and
others were passengers in the Bronco. The left rear tire of the
Bronco failed, Christ lost control of the vehicle, and the Bronco
rolled over and off of the roadway. Plaintiff sustained injuries
as a result of the accident which rendered him a quadriplegic.
Jerding also suffered serious injuries.
Plaintiff and Jerding filed a complaint against Ress and
others on September 28, 1990, alleging negligence for improper
repair performed to a tire, and strict liability in tort damages.
Plaintiff and Jerding alleged that Ress acted as an agent of
Goodyear Tire & Rubber Co.
Plaintiff and Jerding also brought suit against B.F. Good-
rich and Suburban Tire Co., alleging negligence and strict lia-
bility in connection with the manufacture, sale and distribution
of the WildTrac tires. Plaintiff and Jerding brought suit
against Ford Motor Company (Ford), alleging negligence and strict
liability in connection with the fiberglass roof, and the propen-
sity of the Bronco to roll over.
Plaintiff and Jerding amended their complaint joining Camel
Tire Care Products, a division of Bridge Products, Inc. (Bridge),
alleging negligence in connection with the manufacture and
distribution of string plugs. Plaintiff and Jerding joined
Theodore Christ on allegations of negligent operation of the
Bronco, and James Koran on allegations of negligent maintenance
of the Bronco.
On April 4, 1995, prior to trial, the trial court entered an
order granting Jerding's motion for voluntary dismissal of his
action against all defendants without prejudice. In addition,
plaintiff entered into pre-trial monetary settlements with Ford,
Bridge, James Koran, and Theodore Christ.
TRIAL
At trial, Theodore Christ testified on plaintiff's behalf
that on March 19, 1989, he was driving the Koran's Bronco home to
Normal, Illinois, following a trip to South Padre Island, Texas.
Christ described the highway conditions as clear and dry. Christ
heard a "thump" noise, then suddenly lost control of the Bronco.
The Bronco began to "fishtail," then rolled over onto the driv-
er's side causing Christ to hit his head on the roof.
Walter Phillips testified that he was driving in a vehicle
behind the Bronco at the time of the accident, when he observed
sparks emitting from the rear end of the Bronco. Phillips saw
the Bronco spin clockwise, so that the front end of the Bronco
was facing him. Then the Bronco rolled over, the top of the
vehicle hit the ground, and the roof detached from the vehicle.
All of the occupants were ejected from the Bronco in the course
of the crash. Phillips stopped his vehicle to render assistance
and summoned help.
Plaintiff presented the accident reconstruction testimony of
Dr. Michael Kaplan to show that failure of the left rear tire
caused loss of driver control. Dr. Kaplan testified that loss of
steering control occurred as a result of the left rear tire de-
flating and the tire rim contacting the pavement. Dr. Kaplan
testified that the Bronco rolled over 2 1/4 turns, and travelled
124 feet after it began to roll over.
Dr. Kaplan stated that the fiberglass roof of the Bronco was
crushed and torn off when it rolled over, and that plaintiff was
ejected from the Bronco in the crash. Dr. Kaplan stated that the
fiberglass roof of the Bronco is defective in design and unrea-
sonably dangerous due to its propensity to tear off in roll-over
type accidents. Dr. Kaplan testified that occupants ejected from
a vehicle in a roll-over are more likely to sustain serious per-
sonal injuries. Dr. Kaplan admitted that he never saw the tire
that failed, and did not render an opinion as to the cause of the
tire failure.
Harold Herzlich, a former employee of both Goodyear and
Armstrong Perilli Tire Co., testified as an expert witness on
plaintiff's behalf. Herzlich testified that the tire that failed
had been previously repaired using a string plug inserted from
the outside. Herzlich testified that string plug repairs from
the outside are improper for two reasons: (1) the repairman
cannot inspect the inside of the tire for damage; and (2) a
string plug may cause air to seep into the tire casing. Herzlich
testified that if air gets into the tire casing it can cause
chemical changes in the rubber of the tire, and these changes can
cause loss of the following: flexibility, stretchability, resil-
iency and strength. For these reasons, Herzlich stated that
tires should be repaired from the inside using a patch and plug.
Herzlich testified that failure to inspect the inside of the
tire for damage at the time it was repaired is not a proximate
cause of this accident because there was not damage on the inside
of the tire at the time of repair to be observed. Herzlich
stated that road hazard impact caused the tire to fail in this
case. Herzlich could not identify the road hazard that caused
the tire to fail. He testified that the tire could have with-
stood the road hazard but for the weakened condition of the tire
caused by the string plug.
Herzlich was unable to determine whether the plug itself
failed, because the tire was too disrupted as a result of the
accident. Herzlich admitted that there are over one million
tires on the road running satisfactorily with string plug repairs
inserted from the outside. Herzlich could not identify any
authoritative source, test, or study in support of his opinion
that string plug repairs performed from the outside cause tires
to fail. Herzlich could not determine whether the tire that
failed was ever repaired by Ress.
James Koran and Karen Koran testified that they owned the
1983 Bronco involved in the accident.[fn1] In July 1986, the
Korans purchased four B.F. Goodrich WildTrac tires for the Bronco
to replace the four original equipment General tires. One of the
original tires then became a spare. Following a trip to Wyoming
in 1987, the right rear WildTrac tire was removed from the Bronco
and became the spare; the spare General tire was then placed in
the right rear position.
On October 14, 1988, Karen noticed that the left rear tire
of the Bronco was flat. The next morning, October 15, 1988,
James jacked up the Bronco in the driveway, removed the left rear
tire and took it to Ress, a Goodyear certified auto service
center. James picked up the repaired tire later that day,
brought it home and reinstalled it in the left rear position on
the Bronco.
The Korans did not have the tires rotated on the Bronco at
any time between the summer of 1987, and the date of the acci-
dent. At the time of the accident, WildTrac tires were located
on the left rear, left front and right front of the Bronco, a
General tire was on the right rear and a B.F. Goodrich WildTrac
was serving as the spare.
James stated that the Bronco was driven approximately 28,000
miles after he purchased the WildTrac tires, and that there were
many flat tires and many repairs made to the WildTrac Tires prior
to the date of the accident. James could not recall where he had
all these tire repairs done, he could only recall the Ress
repair.
Karen stated that sometime prior to the date of the acci-
dent, she gave the Bronco to her brother, Sean Jerding, to take a
trip to South Padre Island, Texas. Jerding had the Bronco for
two weeks prior to the time he and plaintiff left for South Padre
Island, and during that time Jerding drove the Bronco around
Normal, Illinois. Jerding did not testify at trial.
Arkansas State Trooper Ocie Rateliff testified that he at-
tended the scene of the accident, and afterward notified Jerry
Hildebrand's Autobody shop (Autobody), in Prescott, Arkansas to
remove the Bronco to the custody of the shop. Autobody is a
State Police accredited impound facility, and as such, was
surrounded by an 8-foot chain link fence, a locked gate and
supervision as required by the Arkansas State Police Department.
Officer Rateliff identified photographs taken either
March 28, or March 29, 1989, showing the Bronco at Autobody. The
photographs show the spare tire in the cargo area of the Bronco.
Officer Rateliff testified that the spare tire was not secured,
that it was "just sitting in there loose." The officer stated
that the fiberglass roof of the Bronco had been thrown over the
top of the spare tire.
Officer Rateliff stated that on March 28, 1989, plaintiff's
attorney directed that the left rear tire of the Bronco be re-
moved, crated and shipped someplace. The officer stated that at
that time, plaintiff's attorney exercised control over the truck
and the tires.
In April 1989, at the request of plaintiff's attorney, Offi-
cer Rateliff sought to have the Bronco removed from Autobody to a
barn owned by Dr. Johnny Jones, located at the edge of Hope,
Arkansas. However, before he could move the Bronco from the
shop, the officer noticed that the spare tire was missing.
Officer Rateliff inquired about the missing spare to Barry, an
Autobody employee. Barry replied that a representative of an
insurance company had visited Autobody, but Barry did not know
what happened to the spare tire. Officer Rateliff did not know
whether the spare tire was ever located or whether it was stolen.
Plaintiff, Mark Peterson, testified that at the time of the
accident, he was a student at Illinois State University. During
spring break 1989, plaintiff and four college friends, Christ,
Jerding, Jim Hoderitza and Glen Davis, travelled to South Padre
Island, Texas in the Korans' Bronco. At the time of the acci-
dent, Christ was driving the Bronco eastbound on a straight
stretch of Interstate 30 near Hope, Arkansas. Plaintiff heard a
slap or thump sound. Immediately thereafter, the left rear tire
blew out and the Bronco rolled over.
As a result of the accident, plaintiff sustained a fractured
neck and permanent, complete quadriplegia. Plaintiff presented
evidence that he requires 24-hour a day attendant care, as well
as significant future medical treatment, and that it is not
likely that he will ever work.
Stanley Runyon, an auto mechanic, testified that after the
accident, he inspected the Bronco tires for plaintiff. Runyon
removed the tires from their rims. Runyon stated that the right
front tire was a WildTrac tire, that it had been damaged by a
puncture and repaired with a rubber plug. Runyon testified that
a rubber plug is visibly different from a string plug. Runyon
observed no damage to either the left front WildTrac tire or the
right rear General tire.
Runyon did not inspect the spare tire from the Bronco, as it
had been lost before it could be inspected for evidence of damage
or repair. However, Runyon testified that photographs of the
spare tire show it could have been repaired many times, and with
a string plug from the outside. From the photographs, Runyon
stated that the spare tire was repaired by removing the tire from
its rim. Runyon stated that string plugs are improper because
they are inserted without removing the tire from its rim.
Ress employee Gerard Kroll testified that he repaired the
Bronco tire without removing it from the wheel rim with a string
plug from the outside. Ress produced records showing that the
repair cost $6.
James Gardner, a tire engineer employed by Firestone Tire
Co., since 1965, testified on behalf of Goodyear. Gardner testi-
fied that the tire failure in this case was caused by road hazard
impact, and that the string plug did not cause the tire to fail.
Gardner stated that a repair is improper if an outside plug does
not seal the inner liner. Therefore, the tire should be repaired
from the inside using a patch and a plug. Gardner stated that in
this case, the plug did not cause the tire to fail, explaining
that because the impact was strong enough to break the steel
wires without tearing them loose from the rubber, air in the tire
casing did not cause the tire to fail. Gardner stated that the
accident would have occurred in the same manner even had the plug
never been placed in the tire.
Wendell Kegg, an independent tire failure analyst, also
testified as an expert on behalf of Goodyear. Kegg examined the
tire and testified that the tire failure was caused by road
impact hazard. Kegg stated that the string plug repair was not a
cause of the tire failure in the Bronco accident.
Ress' Service manager, Bob Walton, testified on behalf of
Goodyear, that Goodyear sent Ress product service bulletins de-
tailing how to properly repair punctured tires, and that he had
knowledge of proper tire repair procedures as well as Goodyear's
recommendations. Walton stated that he had informed Ed Stahl,
the owner of Ress, about Goodyear's recommendation that tires not
be repaired with string plugs.
Ress employees Richard Major and Anthony Hanson also admit-
ted they knew that punctured tires should be patched from the
inside. Despite this knowledge, they testified that punctured
tires were routinely repaired with string plugs and without
patches at Ress.
Daniel Delacruz, a former Ress auto mechanic testified on
Ress' behalf that he inspected the Bronco in February 1993. At
that time, there were three tires on the Bronco, located front
right, front left and rear right. The left rear tire and the
spare tire were missing at the time of Delacruz' inspection, and
Delacruz was not able to remove the tires from their rims to
inspect for damage or repairs.
Later, Runyon brought the Bronco to Ress. At that time,
Delacruz confirmed by serial numbers that the same three tires he
previously inspected were in the same location on the Bronco. In
Runyon's presence, Delacruz removed the tires from the Bronco and
removed the rims from the tires. Delacruz inspected the tires
for evidence of damage and repair.
Delacruz stated that a WildTrac tire was located at the
right front position of the Bronco, and he observed no evidence
of damage or repair to this tire. Delacruz further stated that a
WildTrac tire was located at the left front position, and that a
puncture hole in the tire the size of a nail hole extended
halfway through the tread, severing the steel belts of the tire.
Delacruz found no plug in the left front tire.
Delacruz stated that a General tire was located at the right
rear, that it had been damaged and repaired with a string plug,
but not necessarily the same type of string plugs Ress used in
1988.
At the conclusion of the trial the jury returned a verdict
in favor of plaintiff and against Ress in the amount of
$12,650,000, and apportioned 30% of the fault for the accident to
Ress. The jury found Goodyear not guilty. The jury apportioned
20% of fault to Bridge; 28% of fault to Ford; 20% of fault to
Suburban Tire Co. and 2% to Christ. Plaintiff entered into a
post-trial settlement with Goodyear in the amount of $62,500.
Ress filed a timely post-trial motion requesting j.n.o.v.,
directed verdict and a new trial. On August 30, 1995, the trial
court entered an order denying all of the relief requested in
Ress' motion. Ress filed its timely notice of appeal on Septem-
ber 29, 1995.
OPINION
Initially, Ress contends that the trial court erred in
refusing to either: (1) enter j.n.o.v.; or (2) order a new trial.
Ress contends that the verdict was against the manifest weight of
the evidence, because plaintiff failed to show that a defective
tire repair proximately caused his injuries.
The standard for granting a directed verdict or j.n.o.v. is
whether the evidence, viewed in its aspect most favorable to the
opponent, so overwhelmingly favors the movant that no contrary
verdict based on the evidence could ever stand. Pedrick v.
Peoria Eastern Railroad Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504
(1967). A motion for a judgment notwithstanding the verdict
presents a question of law and will be granted only if there is a
total failure or lack of evidence to prove an essential element
of the plaintiff's case. Merlo v. Public Service Co., 381 Ill. 300, 45 N.E.2d 665 (1942). In making a determination to enter
j.n.o.v., the trial court may not substitute its judgment for
that of the jury as to the credibility of the witnesses, nor may
the trial court determine the preponderance of the evidence. In
re Bridgeview, 139 Ill. App. 3d 744, 753, 487 N.E.2d 1109 (1985).
In the present case, Ress contends that plaintiff neither
proved that Ress repaired the tire that failed nor that string
plug repairs cause tires to fail. Ress points to alleged im-
peaching inconsistencies between the trial and deposition testi-
mony of James and Karen Koran. Ress argues that James testified
at trial that there were many flats and many repairs to the
Bronco tires, and that although he had the tires rotated, he
could not say when or how often. James stated in his discovery
deposition that there was no way for him to know whether the tire
repaired by Ress was the tire that failed.
Ress further argues that Karen testified at trial that the
tire that failed is the same tire James removed from the left
rear in October 1988, replaced to the left rear after repairs
were made, and was never removed from that position again prior
to the accident. At her deposition, Karen testified that she did
not know whether the tires on the Bronco were rotated after the
left rear tire was repaired in October 1988, and that she did not
know if any tires were repaired on the Bronco after October 1988.
However, at trial, Karen stated that the tires on the Bronco were
not rotated after the left rear tire was repaired and replaced in
October 1988, and that no tires were repaired on the Bronco after
October 1988. Ress argues that these inconsistencies between
Karen's deposition and trial testimony render the evidence of
proximate cause dubious and equivocal.
In addition, Ress argues that Karen's trial testimony is
incompetent because Karen's brother, Sean Jerding, took the
Bronco to Normal, Illinois two weeks prior to driving the Bronco
to Padre Island, and that the jury never heard any evidence from
which it could "rationally determine" whether the spare tire was
moved to the left rear of the Bronco during the two weeks Jerding
drove the vehicle in Normal.
Ress further argues that the tire identification issue is
speculative because the plug used to repair the right front tire
was lost prior to trial, and that the left front and right front
tires were switched after the accident.
Finally, Ress argues that experts for both parties, Herz-
lich, Kegg and Gardner, all testified at trial that road impact
hazard caused the tire to fail.
The record reveals that Ress' arguments are pure specula-
tion; there was no evidence presented at trial that the tires
were rotated. The record does not reveal any inconsistency
between Karen's deposition and trial testimony. At her deposi-
tion, Karen testified that she did not recall any tire rotation
between the time of the tire repair and the accident. At trial,
Karen testified that the tires were not rotated in the same
period.
Ress is further mistaken in asserting that Karen's testimony
is incompetent because Sean Jerding could have rotated the tires
and Jerding did not testify. The burden was not on plaintiff to
establish that no rotation occurred during the two weeks Jerding
had the Bronco in Normal. The record shows that plaintiff pre-
sented evidence at trial that the left rear tire was defectively
repaired at Ress and replaced on the left rear of the Bronco.
There was no testimony presented at trial that the left front and
right front tires were switched, as Ress asserts. Plaintiff
presented evidence that the tires were not rotated after October
15, 1988, and therefore established a prima facie case that the
faulty repair of the left rear tire proximately caused the acci-
dent.
Ress' citation of Pedrick for factual similarity is misplac-
ed. In Pedrick, the plaintiffs' testimony was equivocal as to
whether railroad crossing lights were operating at the time a
train struck plaintiffs' car. Our supreme court determined that
j.n.o.v. was appropriate there, because when viewing the evidence
most favorably to plaintiffs, the evidence so overwhelmingly
favored defendant that no contrary verdict based on such evidence
could ever stand. Pedrick, 37 Ill. 2d at 511.
In the present case, the record does not show similar
equivocal testimony. No evidence of rotation was presented. The
record shows that the General tire which was located on the right
rear of the Bronco when Ress repaired the left rear WildTrac tire
was still in the right rear position when the accident occurred.
Ress misrepresents the experts' testimony. Plaintiff's
expert, Herzlich, testified that the tire failed upon road hazard
impact because it was improperly repaired for a puncture with a
string plug, causing air to seep into the tire's casing. Good-
year's expert, Gardner, testified that the failed tire was weak-
ened prior to the accident by air seepage and migration resulting
from Ress' string plug repair. Goodyear's other tire expert,
Kegg, testified that tire failures result from string plug
repairs and that a string plug without a patch does not effec-
tively seal a tire's inner liner and air can seep into a tire's
carcass. Kegg further testified that tread separation affects
belt strength and renders a tire less capable of traversing road
hazards.
Ress' further reliance on Mullen v. General Motors Corp., 32
Ill. App. 3d 122, 129, 336 N.E.2d 338 (1975), is inapposite.
There, this court disregarded the opinion of an expert who testi-
fied both at trial and at his deposition that he did not know how
a defective tire was manufactured, but nevertheless opined at
trial that the tire was defectively manufactured. The court
found the expert's testimony "inharmonious with the facts and
physical evidence capable of verification by the court." Mullen,
32 Ill. App. 3d at 131.
By contrast, in the present case, plaintiff's expert, Herz-
lich, testified to his opinions based on his 30-plus years of
experience and thorough evaluation of the failed tire.
Finally, Ress' argument that there was no "verifiable evi-
dence submitted from which reasonable people could conclude that
string plugs cause tires to fail," is belied by the evidence.
Evidence was presented that Goodyear, the Rubber Manufacturer's
Association, and Goodyear's Radial Service Tire all recommended
that string plug repairs not be performed. Each expert, Herz-
lich, Gardner and Kegg, testified that string plug repairs were
dangerous and should not be performed.
Because the evidence at trial supported the jury's determi-
nation that the string plug repair was the proximate cause of the
tire failure, we conclude that the rule set forth in Pedrick was
not offended by the jury's verdict, and that the trial court
properly denied Ress' motion for j.n.o.v.
Ress advances the same arguments regarding the evidence in
support of its contention that the trial court improperly refused
to grant a mistrial. In addition, Ress argues that the trial
court improperly prohibited it from establishing bias on the part
of Karen Koran because, inter alia, Sean Jerding is her brother.
Whether to grant a mistrial is within the sound discretion
of the trial court and will not be disturbed absent an abuse of
discretion. Abuse of discretion is found only where no reason-
able person could take the view adopted by the trial court.
Balzekas v. Looking Elk, 254 Ill. App. 3d 529, 627 N.E.2d 84
(1993).
The record shows that prior to trial, Jerding voluntarily
dismissed his claims against defendants without prejudice. There-
fore, at the time of trial, Jerding was neither a party nor did
he have any direct financial interest in the trial's outcome. At
trial, Ress sought to establish through Karen's testimony that
Jerding had previously been a plaintiff in this action, and the
trial court found that fact irrelevant for the purposes of estab-
lishing Karen's potential bias. However, the trial court allowed
Ress to bring out any potential bias during cross-examination of
the Korans regarding: (1) the relationship between the Korans and
Jerding; (2) Jerding's friendship with plaintiff, Peterson; (3)
Jerding and plaintiff's presence in the Bronco at the time of the
accident; and (4) the fact that plaintiff's attorney Pat Boyle
was also Jerding's attorney. In addition, Ress declined to
exercise its right to call Jerding to testify.
In the present case, Ress has failed to show that the trial
court refused it the opportunity to show bias on the part of the
Korans. Absent any abuse of discretion, the trial court properly
denied Ress' motion for mistrial.
Next, Ress contends that the trial court erred in failing to
instruct the jury that an adverse inference arises from plain-
tiff's failure to produce at trial the spare tire which was on
the Bronco at the time of the accident. Ress argues that the
trial court should have given the jury I.P.I. 5.01, which pro-
vides that a presumption arises that the evidence a party fails
to produce at trial would be unfavorable to that party.
The purpose of jury instructions is to advise the jury of
the correct principles of law to be applied to the evidence
admitted at trial. While the trial court has considerable
discretion in determining the form of jury instructions to be
given, the instructions given must be supported by some evidence
in the record, they must correctly state the law, and they must
not overemphasize any particular matter. On review, this court
will not reverse a trial court for erroneously refusing an
instruction unless prejudice has resulted. O'Brien v. Hertl, 238
Ill. App. 3d 217, 222, 606 N.E.2d 225, 229 (1992).
I.P.I. 501 would have required Ress to prove that:
1. The stolen spare tire was under the con-
trol of plaintiff and could have been pro-
duced by the exercise of reasonable dili-
gence;
2. The stolen spare tire was not equally
available to Ress;
3. A reasonable prudent person under the
same or similar circumstances would have
offered the evidence if he believed it to be
favorable to him.
4. No reasonable excuse for the failure has
been shown.
The trial court determined that there was a reasonable excuse for
the nonproduction of the spare tire and refused to give I.P.I.
5.01.
The record does not show that Ress introduced any facts or
testimony to support its claims that there was no reasonable
excuse for failure to produce the stolen spare tire or that it
could have been produced with the exercise of reasonable dili-
gence. The record shows that the accident occurred near Pres-
cott, Arkansas, and that after the accident, Arkansas State
Police Officer Ocie Rateliff arranged to have the Bronco towed to
Autobody, a state police accredited impound facility. Officer
Rateliff testified that Autobody was secured by an eight-foot
chain link fence, a locked gate and was supervised as required by
the Arkansas State Police. Between March 27, and March 28, 1989,
plaintiff arranged to have the Bronco and all of its tires photo-
graphed. Subsequently, in April 1989, plaintiff's attorney re-
turned to inspect the Bronco and noticed that the spare tire was
missing. Officer Rateliff concluded that the tire had been sto-
len. At trial, Ress failed to make any offer of proof that the
State Police impound yard was not a reasonable storage location.
Plaintiff notes that the loss of the tire is a "reasonable
excuse," pursuant to Chiricosta v. Winthrop-Breon, 263 Ill. App.
3d 132, 635 N.E.2d 1019 (1994), and Brown v. Moawad, 211 Ill.
App. 3d 516, 570 N.E.2d 490 (1991), and therefore the trial court
properly refused to give I.P.I. 5.01. In Chiricosta, the trial
court determined that the loss of a medical log was a reasonable
excuse for failure to produce medical records, despite a standing
order of the hospital to preserve any and all records and docu-
ments relevant to a pending lawsuit. In Brown, this court found
that the loss of the first page of a medical report was a reason-
able excuse where the page was deemed to have been an impermanent
document not yet transferred into a permanent record. In the
present case, there is a reasonable excuse for the inability to
produce the spare tire; it was lost or stolen while at the
impound lot not due to any deliberate fault of plaintiff. Under
these circumstances, Ress has failed to show that I.P.I. 5.01
applied to these facts.
Finally, Ress contends that the trial court erred in failing
to impose sanctions upon plaintiff for loss of the spare tire, by
barring photographic and testimonial descriptions of the spare
tire. Prior to trial, the trial court denied Ress' motion to
dismiss plaintiff's complaint pursuant to Supreme Court Rule
219(c), or in the alternative, to bar plaintiff from presenting
evidence of repairs to the spare tire, and to the tire that
failed.
Supreme Court Rule 219(c) (134 Ill.2d R. 219(c)), in rele-
vant part, provides as follows:
"If a party * * * unreasonably refuses
to comply with any provision of [the rules of
pretrial procedure or discovery], or fails to
comply with any order entered under these
rules, the court, on motion, may enter * * *
such orders as are just, including, among
others, the following:
* * * * * *
(iii) that he be debarred from maintaining
any particular claim * * * or defense relat-
ing to that issue;
(iv) that a witness be barred from testifying
concerning that issue; [or]
(v) that, as to claims or defenses asserted
in any pleading to which that issue is mate-
rial, a judgment by default be entered
against the offending party or that his ac-
tion be dismissed with or without prejudice."
134 Ill.2d R. 219(c).
Thus, under Rule 219(c), a trial court is authorized to bar
testimony or other evidence if a party unreasonably refuses to
comply with the relevant discovery rules, so long as the sanction
imposed is just. American Family Insurance Co. v. Village
Pontiac-GMC, Inc., 223 Ill. App. 3d 624, 585 N.E.2d 1115 (1992).
Unreasonable noncompliance with a discovery rule has been defined
by the courts as a deliberate and pronounced disregard for a
discovery rule, (Lavaja v. Carter, 153 Ill. App. 3d 317, 505 N.E.2d 694 (1987)), and is determined, at least in part, by the
importance of the information or product that has not been
produced. American Family Insurance Co., 223 Ill. App. 3d 627.
The decision to impose sanctions pursuant to Rule 219(c),
and, if so, the type of sanction, is largely within the sound
discretion of the trial court, and that decision will not be
disturbed absent a clear abuse of discretion. Graves v. Daley,
172 Ill. App. 3d 35, 526 N.E.2d 679 (1988). Illinois courts have
upheld sanctions for destruction of evidence in violation of a
protective order and for failure to comply with discovery orders
after evidence was inadvertently lost. Stegmiller v. H. P. E.,
Inc., 81 Ill. App. 3d 1144, 401 N.E.2d 1156 (1980); see also
Marrocco v. General Motors Corp., 966 F.2d 220 (7th Cir. 1992);
State Farm Fire & Casualty Co. v. Frigidaire, Division of General
Motors Corp., 146 F.R.D. 160 (N.D.Ill.1992); Jones v. Goodyear
Tire & Rubber Co., 137 F.R.D. 657 (C.D.Ill.1991), aff'd, 966 F.2d 220 (7th Cir. Ill. 1992).
Ress relies on Shelbyville Mutual Insurance Co. v. Sunbeam
Leisure Prods. Co., 262 Ill. App. 3d 636, 634 N.E.2d 1319 (1994),
in support of its contention that the trial court erred in fail-
ing to impose sanctions. There, part of an allegedly defective
gas grill was inadvertently lost prior to the commencement of a
lawsuit by an injured party. The trial court found that the loss
of the portion of the grill foreclosed a possible defense, and
therefore imposed sanctions by barring evidence about the alleged
defect of the grill. Shelbyville, 262 Ill. App. 3d at 543.
The present case is distinguishable from Shelbyville. Here,
the record does not show any deliberate or unreasonable effort on
the part of plaintiff to violate discovery rules. The record
shows that plaintiff diligently intended to preserve the Bronco
and tires in the Arkansas impound yard, but despite plaintiff's
efforts, the spare tire somehow went missing. Although the
insurance company released custody of the Bronco to plaintiff's
attorney, the Bronco was not hand delivered as such, as it
remained physically at Autobody. The record does not indicate
that plaintiff attempted to deliberately or negligently destroy
evidence. In addition, the record does not show that the spare
tire was the "most crucial piece of evidence," as Ress argues.
Because there is no evidence of unreasonable conduct on the party
of the plaintiff here, Ress has failed to establish that sanc-
tions were appropriate.
For all of the reasons stated herein, we therefore affirm
the judgment of the trial court.
Affirmed.
O'BRIEN, J., and GALLAGHER, J., concurring.
[fn1]Karen Koran testified in plaintiff's case-in-chief at
trial and James Koran testified in Ress' case-in-chief, as well
as in a discovery deposition prior to trial.