Morrison v. Reckamp

Fourth Division
February 19, 1998

Nos. 1-97-0042, 1-97-0043, Cons.

RICHARD MORRISON, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellant, ) COOK COUNTY.
)
and )
)
BILLY JOE PAYNE, )
)
Plaintiff, )
)
v. )
)
MICHAEL D. RECKAMP, )
)
Defendant-Appellee, )
)
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SAFETY-KLEEN CORPORATION, )
)
Plaintiff-Appellant, )
)
)
v. )
)
MICHAEL D. RECKAMP, ) HONORABLE
) WALTER J. KOWALSKI,
Defendant-Appellee. ) JUDGE PRESIDING.

JUSTICE WOLFSON delivered the opinion of the court:
The morning of January 9, 1990, was gray, overcast, and
rainy as Richard Morrison drove a tractor-trailer owned by the
Safety-Kleen Corporation west along Route 20 in Elgin.
Morrison's partner, Billy Joe Payne, was riding in the passenger
seat of the tractor cab. As the tractor-trailer neared the
intersection at Shales Parkway, it left the roadway, traveled
along the shoulder, then flipped on its side, snapping a
telephone pole in two, breaking some electrical wires, and coming
to rest against a telephone pole.
Morrison was unconscious at the scene of the accident and
was taken to the hospital. When he regained consciousness in the
hospital he had no recollection of the accident. He could not
say how the accident occurred or what had caused the tractor-
trailer to leave the roadway.
Billy Joe Payne was unable to provide the missing pieces to
the puzzle of what went wrong. Payne said he had been looking
out the passenger window when he felt the right front tire travel
onto the shoulder. He looked over at Morrison and saw that he
was awake. However, the tractor-trailer, Payne said, continued
along the shoulder for about 150 to 200 feet, then hit "sort of a
ditch." The trailer rolled onto its side, hit a telephone pole,
and broke the pole in two. The tractor-trailer then came to rest
against a second telephone pole.
Though Payne thought the tractor-trailer left the pavement
"suddenly," he could not say what caused Morrison to veer off the
road. Morrison did not sound his horn or say anything before the
accident. Payne did not see a car pull into their lane in front
of them.
Marilyn Binda also was driving along Route 20 on the morning
of January 9, 1990. She was familiar with Route 20, which has
two lanes going east and two lanes going west, because she
traveled it every day on the way to work. Binda was in the left
lane going west. She saw a Safety-Kleen tractor-trailer, also
going west, in the right-hand lane about 30 feet ahead of her.
There were three cars in the left lane ahead of her.
Binda said she saw a white Nissan, which was traveling two
cars ahead of her in the left lane, move sharply into the right
lane in front of the tractor-trailer, without signaling. Soon
after, the tractor-trailer began to "ease over" to the right and
its right tires moved onto the shoulder. After continuing along
the shoulder for a distance, the tractor-trailer seemed to "lunge
forward." It then fish-tailed, left the road, and flew into the
air. It finally came to rest with a deafening thud.
Binda believed that the white Nissan had caused a chain
reaction which resulted in the accident. She followed the Nissan
and wrote down its license plate number. Later, she called the
Elgin police department and reported what she had seen, including
the license number of the white Nissan.
Binda wasn't the only witness to the accident, however.
Donna K. Britton was traveling eastbound on Route 20 when she saw
a tractor-trailer traveling in the westbound lane leave the road.
Britton said it was raining heavily at the time of the accident.
She didn't see any cars in front of the tractor-trailer, nor did
she see a car move into the right lane in front of the tractor-
trailer. The tractor-trailer seemed to just "roll off" the
roadway onto the shoulder "in slow motion." For no apparent
reason, she said, the tractor-trailer began to veer off the road,
then "bounced," and flipped over.
Scott Boyd Norris also was traveling eastbound on Route 20
at the time the accident occurred. He first noticed the tractor-
trailer when he was 3,000 to 4,000 yards away. Though traffic
was fairly heavy in both directions, he never saw a car cut in
front of the tractor-trailer. However, he did see a car that was
traveling eastbound in front of him make a quick left-hand turn
from Route 20 into the Consolidated Freightways yard. This car
would have crossed in front of the tractor-trailer. Shortly
after, the tractor-trailer left the road "really quickly" and
went into a ditch. He believed the car that made the left-hand
turn in front of the tractor caused a chain reaction which
resulted in the tractor-trailer leaving the road.
Two Elgin police officers, Deputy Chief James J. Burns and
Officer Thomas Shergold, went to the scene of the accident to
investigate. Officer Shergold was primarily responsible for
traffic control. However, his partner, Deputy Chief Burns, the
senior officer in charge of the investigation, was a certified
accident reconstruction specialist. It was Burns' responsibility
to determine the cause of the accident.
Burns took photographs, made measurements, and collected
other physical evidence. Based on his observations at the scene,
he concluded that the tractor-trailer had been traveling in a
straight line when, for unknown reasons, it left the roadway in a
gradual or smooth motion, traveled along the shoulder for
approximately 100 feet, then went into a ditch. Because the tire
imprints indicated that the tires were "rolling" when they were
on the shoulder and there was no evidence of skidding or "yaws"
(sideways sliding), it was his opinion the tractor-trailer had
not been braking when it left the road, nor did it appear that
the tractor was involved in an evasive maneuver when it left the
roadway.
Based on the license plate information received from Marilyn
Binda, Officer Shergold identified Michael Reckamp as the owner
of the white Nissan. Shergold and Deputy Chief Burns interviewed
Reckamp at his place of employment the day of the accident.
Reckamp, Shergold said, was completely unaware that an accident
occurred on Route 20 involving a Safety-Kleen tractor-trailer.
Reckamp admitted he had been driving along Route 20 that morning,
but he didn't remember seeing the tractor-trailer. Reckamp said
after he passed the Consolidated Freightways yard and was
proceeding over the second of two bridges that were located west
of the freight yard on Route 20, he heard a "boom" and saw a
flash of light. Reckamp attributed this to the weather and
proceeded on his way. Reckamp denied pulling into the right-hand
lane in front of the tractor-trailer.
The police filed no charges against Reckamp.
On December 31, 1991, Morrison and Payne filed a personal
injury suit against Reckamp, claiming Reckamp's negligence caused
their tractor-trailer to leave the roadway and resulted in their
bodily injury. Two-and-a-half years later, the Safety-Kleen
Corporation filed a complaint against Reckamp, seeking to recover
for property damage to the tractor-trailer. The two actions were
consolidated.
A jury trial on the consolidated complaints began on
September 18, 1996. On September 24, 1996, the jury returned a
verdict in Reckamp's favor and the court entered judgment on the
verdict. The plaintiffs filed post-trial motions, which were
denied.
Morrison and Safety-Kleen filed separate notices of appeal.
These appeals have been consolidated for our review. Morrison
and Safety-Kleen, in a joint brief, raise as issues: (1) whether
the trial court erred by permitting Deputy Chief Burns to testify
as an accident reconstruction expert; (2) whether the trial court
erred when it refused to instruct the jury to consider
defendant's alleged violation of section 11-703(a) of the Vehicle
Code (Overtaking a vehicle on the left) when determining
negligence; and (3) whether the trial court erred when it barred
Morrison's hospital discharge summary from being entered into
evidence. We affirm.
DECISION
1. Expert Reconstruction Testimony
Plaintiffs contend the trial court erred when it admitted
Deputy Chief Burns' expert reconstruction testimony. Plaintiffs
claim expert testimony was unnecessary because eyewitnesses
testified regarding the manner in which the tractor-trailer left
the road and because the observation of tire markings does not
require the application of scientific principles unknown to the
common lay person. Deputy Chief Burns, say plaintiffs, merely
gave his interpretation of tire imprints to conclude that the
tractor was rolling straight ahead and did not skid, which "any
lay person ... even school children" would have been capable of
discerning from the photographs that were submitted.
Reckamp contends this issue is waived because no
contemporaneous objection was made by Safety-Kleen's counsel and,
though objections were made by Morrison's counsel, the basis for
objection given at trial differs from the basis proffered on
appeal. We do not agree that waiver applies.
As stated in Gausselin v. Commonwealth Edison Co., 260 Ill.
App. 3d 1068, 1079, 631 N.E.2d 1246 (1994), "The law is well-
settled, that to preserve an issue for appellate review, a party
must make the appropriate objections in the trial court or the
issue will be deemed waived." In this case the trial court ruled
on Morrison's motion in limine to bar Burns' opinion testimony,
stating:
"Look, my ruling is I'm permitting him to testify to an
opinion being gradually going off the road predicated
on tire marks and so forth."
At trial, Morrison's counsel interjected five objections to
Burns' testimony. Though four of the objections did not preserve
the issue (one objection was for "leading," two objections were
made because counsel believed the question had been "asked and
answered," and one "hearsay" objection was sustained), the
following colloquy shows that counsel sufficiently preserved the
issue when he renewed his motion in limine:
"Q. (Defense counsel:) Is it your opinion, based
upon those photographs and what you observed at the
scene of the accident, that the tires were rolling
ahead?
A. Yes sir. Straight ahead, sufficiently to cause
them to leave a clean pattern. There could be some
deviation, but very minor.
Q. Let's get into another opinion, Deputy Chief.
I believe there are two possible scenarios that could
have happened in this particular accident?
MR. HAYNES: Objection, your Honor, speculation. I
would also renew my prior motion.
THE COURT: You may answer. Be notified on the
prior motion I overruled it, Counsel. Go ahead."
By renewing his motion, counsel sufficiently preserved the
issue of whether reconstruction testimony should have been
admitted.
Though the issue is not waived, we reject it on its merits.
The trial court did not abuse its discretion in admitting Burns'
testimony.
Whether or not eyewitness testimony is available, expert
reconstruction testimony may be admitted if it provides
"knowledge and application of principles of science beyond the
ken of the average juror." Zavala v. Powermatic, Inc., 167 Ill. 2d 542, 546, 658 N.E.2d 371 (1995), quoting Plank v. Homan, 46 Ill. 2d 465, 471, 264 N.E.2d 12 (1970). As with any type of
expert testimony, reconstruction testimony will be admissible if
the expert is qualified to render an opinion and the testimony
will aid the fact-finder in the resolution of the dispute. See
Zavala, 167 Ill. 2d at 546; Rios v. Navistar International
Transportation Corp., 200 Ill. App. 3d 526, 558 N.E.2d 252
(1990).
In this case, Deputy Chief Burns testified that he completed
coursework at the Northwestern Traffic Institute and passed a
test to become certified as a reconstruction specialist. Burns
said his specialized training allowed him to interpret tire
imprints and markings to determine whether a vehicle was skidding
or sliding at the time the imprint was made.
Plaintiffs do not question Burns' qualifications, but claim
his testimony was "unnecessary" because eyewitnesses testified
about their observations of the tractor-trailer as it left the
road. A review of the record, however, shows the witnesses gave
conflicting testimony. Morrison, who was driving the tractor-
trailer, had no memory of the accident. He couldn't say if he
tried to take evasive action or applied the brakes. Billy Joe
Payne, the passenger in the tractor-trailer, said he felt the
right tire move onto the shoulder and continue for 150 to 200
feet before going into a ditch. Donna Britton said the tractor-
trailer didn't skid but "just kind of rolled right on off in slow
motion."
Marilyn Binda, however, said she saw the tractor-trailer
"fishtail" as it left the roadway. Scott Norris said the
tractor-trailer left the road "really quickly."
Under the circumstances, we cannot say the trial court
abused its discretion by allowing Burns' reconstruction
testimony. Burns' interpretation of the tire imprints and
markings he observed at the scene was helpful in aiding the
triers of fact to resolve questions regarding the manner in which
the tractor-trailer left the road.
We disagree with plaintiffs' claim that an ordinary juror
would have the ability to interpret tire markings as proficiently
as a trained expert.
In Watkins v. Schmitt, 172 Ill. 2d 193, 206, 665 N.E.2d 1379
(1996), relied on by plaintiffs, the court disallowed expert
testimony about speed because "any lay person with a reasonable
opportunity to observe and ordinary experience with moving
vehicles can estimate the speed of a car."
The trial court must center its attention on the need for
the testimony. The Supreme Court said in Watkins "the existence
of eyewitness testimony is not the conclusive factor in
determining whether accident reconstruction testimony is
admissible." Watkins v. Schmitt, 172 Ill. 2d at 206. Instead,
the test is whether, in addition to eyewitness testimony, "expert
reconstruction testimony would be needed to explain scientific
principles to a jury and enable it to make factual
determinations." Watkins v. Schmitt, 172 Ill. 2d at 206.
We have seen the photographs of the accident scene depicting
the tire marks left by the tractor-trailer along the roadside.
The markings are difficult to discern. Simply looking at the
photographs would not have provided jurors with the degree of
guidance offered by Burns. Did the truck roll off the road? Or
did it veer sharply? Did it brake? These are questions lay
jurors could not answer sensibly simply by looking at the photos.
They needed help and they received it. Burns did not testify to
speed. Watkins does not reject Burns' testimony.
We conclude, aside from any waiver, the trial court's
admission of the Burns' reconstruction opinion testimony was not
an abuse of discretion.
2. Jury Instruction
Plaintiffs contend it was error for the trial court to
refuse to give their Instruction No. 19. Plaintiffs' Instruction
No. 19 would have told the jury that, when considering whether
Reckamp was negligent, the jury should consider whether Reckamp
violated section 11-703(a) of the Vehicle Code, which describes
the proper method of overtaking and passing a vehicle from the
left.
The trial court disallowed the instruction because it found
this section of the Code inapplicable, pertaining only to the
proper method of passing on a two-lane highway. Plaintiffs
argue, however, that when the court refused this instruction,
they were denied the ability to have the jury properly instructed
on their theory of the case. Again, we disagree.
Though a trial judge must instruct the jury on all issues
reasonably presented by the evidence, and each party is entitled
to have the jury clearly and fairly instructed upon each theory
supported by evidence, a reviewing court should not disturb the
trial court's determination of instructions unless the trial
court clearly abused its discretion. Seitz v. Vogler, 289 Ill.
App. 3d 1029, 1044, 682 N.E.2d 766 (1997). The test used in
determining the propriety of tendered instructions is whether the
jury was fairly, fully, and comprehensively informed about
relevant principles, considering the instructions in their
entirety. Leonardi v. Loyola University, 168 Ill. 2d 83, 100,
658 N.E.2d 450 (1995).
Considering the instructions given in this case in their
entirety, we find the plaintiffs were not denied the ability to
present their theory of the case by the trial court's refusal to
give plaintiffs' Instruction No. 19. The trial court accepted
and gave plaintiffs' Instruction No. 20, which adequately
instructed the jury on plaintiffs' theory. Instruction No. 20
told the jury to consider whether Reckamp violated section 11-804
of the Vehicle Code when deciding whether Reckamp was negligent.
Section 11-804 of the Vehicle Code says, "No person may turn a
vehicle from a direct course or move right or left upon a roadway
unless and until such movement can be made with reasonable
safety. No person may so turn any vehicle without giving an
appropriate signal."
Plaintiffs' Instruction No. 20 adequately instructed the
jury on plaintiffs' theory -- that Reckamp caused the tractor-
trailer to move onto the shoulder of the road when, without
signaling, Reckamp cut in front of the tractor-trailer without
giving it sufficient space. Instruction No. 19, if given, would
have been redundant. For this reason, we do not believe the
trial court abused its discretion when it chose to use
plaintiffs' Instruction No. 20 and not Instruction No. 19.
3. Admission of Evidence
Finally, plaintiffs contend the trial court erred when it
excluded from evidence plaintiffs' exhibit No. 11, a discharge
summary prepared by the hospital on Morrison's release. This
document stated Morrison was admitted to the hospital after a
truck accident and that Morrison "had amnesia for the event."
According to the document, Morrison's physical condition
improved, but his memory did not and Morrison still had amnesia
at the time of discharge.
Plaintiffs say the exclusion of this document prevented them
from presenting "objective, independent evidence to support
Morrison's claim of amnesia." However, whether Morrison had
amnesia and could not at the time of the trial remember the
events leading up to the accident was never seriously contested.
The defense never challenged Morrison's claim of current amnesia
during his cross-examination or in final argument. Morrison's
amnesia was not a material issue or relevant to the resolution of
the case.
Admission of evidence is a decision left to the discretion
of the trial court, and will not be overturned absent a clear
showing of an abuse of that discretion. Jackson v. Pellerano,
276 Ill. App. 3d 454, 658 N.E.2d 1184 (1991). The party seeking
reversal due to the exclusion of evidence has the burden of
showing prejudice stemming from the court's decision. Israel v.
National Canada Corp., 276 Ill. App. 3d 454, 658 N.E.2d 1184
(1995).
In the present case, even if the trial court erred by
refusing to admit the medical record, plaintiffs have not
established how they were prejudiced by this error. The
exclusion of the exhibit, therefore, whether or not error, does
not warrant a new trial.
CONCLUSION
For all the reasons stated above, we affirm the verdict in
favor of Reckamp and the judgment entered by the circuit court.
AFFIRMED.
McNAMARA and SOUTH, JJ., concur.