Rinesmith v. Sterling

NO. 4-97-0129

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

DAVID RINESMITH, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Champaign County
GLENN L. STERLING and GEORGE L. ) No. 94L256
ZIBERT, d/b/a Z-LINE TRUCKING )
COMPANY, ) Honorable
Defendants-Appellees. ) George S. Miller,
) Judge Presiding.

JUSTICE GREEN delivered the opinion of the court:
In March 1994, plaintiff, David Rinesmith, brought suit
in the circuit court of Champaign County against defendant Glenn
L. Sterling (Sterling), and his employer, defendant George L.
Zibert (Zibert), d/b/a Z-Line Trucking Company (Z-Line). Plain-
tiff sought damages for injuries he received in a collision
between the automobile plaintiff was driving and a truck being
driven by Sterling while in his employment with Zibert. After a
trial by jury, the circuit court entered judgment on a verdict
for both defendants. Plaintiff has appealed, contending the
circuit court erred in refusing to permit plaintiff to present
opinion testimony by an expert witness.
We conclude that some of the questioned testimony by
the expert could have been properly admitted by the circuit
court, but, under the circumstances, the circuit court did not
abuse its discretion in refusing admission of the testimony.
Accordingly, we affirm.
The following facts are not disputed. On the evening
of November 9, 1992, Sterling was driving a tractor and semi-
trailer southward on Interstate Highway 57, hauling steel coils
for Z-Line. Sterling swerved to avoid hitting a deer, causing
his truck to leave the pavement and enter the grassy median. His
truck hit a guardrail, causing both the truck and semitrailer to
turn on their sides. When they came to rest, they blocked the
left lane and part of the right lane of southbound traffic.
Sterling estimated his speed at between 55 and 60 miles per hour
and that the deer were 200 to 300 feet in front of him when he
first saw them.
A truck driven by Lyle McCollam and a bus driven by
Mahlon Meneley then came upon the scene and stopped along the
side of the road. McCollam, Mahlon, and Mahlon's brother Gary
saw plaintiff's car pass their parked vehicles and collide with
Sterling's overturned truck. Gary Meneley testified that, in his
opinion, plaintiff was traveling at a speed of at least 70 to 75
miles per hour and his brake lights never went on nor did he ever
swerve. We discuss McCollam's testimony later.
The expert witness whose testimony was excluded was
Dwayne Owens. Prior to trial, the defense made a motion to
exclude that testimony and the trial judge withheld ruling on
that motion until he had heard all of plaintiff's other testi-
mony. He then allowed the motion, excluding all testimony. In
closing argument, plaintiff's counsel stated that the discovery
deposition of Owens and a report of his that were before the
court constituted his offer of proof. No individual offers of
proof were made as to particular questions and answers or as to
any particular line of questions and answers.
Owens' proposed testimony included opinions that (1)
judging from the surrounding circumstances, Sterling's truck was
traveling at approximately 55 miles per hour at the time it left
the road; (2) at the time plaintiff's vehicle approached the
truck, it was traveling at approximately 57 miles per hour; (3)
Sterling should have been able to stop before hitting the deer
and used dangerous and unreasonable tactics in swerving to avoid
the deer; (4) Sterling's driving was the direct and proximate
cause of the collision between plaintiff's vehicle and the truck;
(5) the truck and its trailer were not visible to plaintiff as he
approached; and (6) the presence of the other vehicles with their
lights on was a distraction to plaintiff rather than a warning of
impending danger requiring him to slow down.
Accordingly, Owens would have testified to the follow-
ing material questions: (1) the speed at which Sterling was
driving, (2) the skill with which Sterling was driving, (3) the
speed at which plaintiff was driving, and (4) the effect the
totality of the scene that plaintiff confronted would have upon
plaintiff's ability to avoid the wrecked vehicle in front of him.
Some of this testimony included a reconstruction of what likely
happened and some of it concerned opinions as to the care
exercised by the two drivers.
The question of the propriety of expert testimony of
the nature here has undergone great scrutiny in recent years, and
the trend has been to grant admissibility to more of this type of
testimony. The Supreme Court of Illinois has spoken most recent-
ly in Watkins v. Schmitt, 172 Ill. 2d 193, 665 N.E.2d 1379
(1996), and Zavala v. Powermatic, Inc., 167 Ill. 2d 542, 658 N.E.2d 371 (1995). Watkins involved a wrongful death suit
arising from a collision between an automobile and a cement
mixer. The supreme court held that the trial court properly
refused to permit expert reconstruction testimony as to the speed
of the cement mixer when an eyewitness had already testified to
that matter and where determination of the speed of an automobile
does not involve "'"knowledge and application of principles of
science beyond the ken of the average juror."'" Watkins, 172 Ill. 2d at 205, 665 N.E.2d at 1385-86, quoting Zavala, 167 Ill. 2d at 546, 658 N.E.2d at 374, quoting Plank v. Holman, 46 Ill. 2d 465, 471, 264 N.E.2d 12, 15 (1970).
Here, eyewitnesses testified as to the speed of the two
vehicles, and this determination was also within the ken of the
average juror. A trial judge has some discretion in regard to
the admission of expert testimony. Augenstein v. Pulley, 191
Ill. App. 3d 664, 681, 547 N.E.2d 1345, 1356 (1989). Clearly,
the trial judge here acted within his discretion in deeming the
expert testimony in regard to speed inadmissible. See Watkins,
172 Ill. 2d at 206, 665 N.E.2d at 1386.
Similarly, the expert testimony that the position of
the vehicles that were stopped because the truck was blocking the
road was likely to have distracted plaintiff, rather than have
warned him of danger, did not involve phenomena that was beyond
the knowledge of the average juror and the court acted within its
discretion in also excluding that testimony. The exclusion of
the proposed testimony in regard to the skill, or lack thereof,
with which Sterling was driving when his vehicle went off the
highway presents a different problem.
Prior to Watkins, in Zavala (167 Ill. 2d at 546, 658
N.E.2d at 374) the supreme court held expert reconstruction
testimony admissible when it involved scientific principles
beyond the ken of the average juror even though eyewitnesses were
available to testify to the occurrence involved. There, the
operator of a drill press sought relief against the manufacturer
of the drill press for the loss of two of his fingers incurred
when the operator's fingers came into contact with the mechanism.
The supreme court concluded that the engineering principles
involved were well beyond the ken of the average juror and upheld
the allowance of testimony from an expert engineer who testified
to a reconstruction of what he thought happened.
Zavala (167 Ill. 2d at 546, 658 N.E.2d at 374) cites
with approval the decision of the Fifth District Appellate Court
in Augenstein (191 Ill. App. 3d at 681, 547 N.E.2d at 1356),
holding that the existence of eyewitnesses is just one factor in
deciding whether expert testimony is admissible. Despite the
presence of eyewitnesses in Zavala, expert testimony was appro-
priate because of the complicated nature of the issue. In
Watkins, expert testimony was not appropriate in regard to the
speed of an automobile because the concept there was familiar to
the average juror. Watkins, 172 Ill. 2d at 206, 665 N.E.2d at
1386.
In Augenstein, an automobile collision case, the issue
concerned the propriety of expert testimony as to point of impact
when eyewitnesses were available. The Augenstein opinion gave a
thorough summary of the various cases concerning expert recon-
struction testimony and related expert testimony and indicated a
gradual greater emphasis on the question of whether the expert
testimony would be of aid to the trier of fact rather than
whether it was necessary. Augenstein, 191 Ill. App. 3d at 680-
81, 547 N.E.2d at 1355-56. In Palmer v. Craig, 246 Ill. App. 3d
323, 327-28, 615 N.E.2d 1294, 1297 (1993), also an automobile
collision case where point of impact was an issue, this court
stated a general agreement with Augenstein.
While most people, including the average juror, are
familiar with the driving of an ordinary automobile, the driving
of a tractor pulling a semitrailer hauling heavy steel coils is
clearly not a matter within the "ken of the average juror." The
jury here would have been aided by testimony as to whether a
normally skilled driver would have attempted to stop rather than
swerve around the deer. The fact that such testimony would
constitute an opinion as to the ultimate issue of Sterling's
exercise of care is no longer a ground for excluding such
testimony. See Zavala, 167 Ill. 2d at 545, 658 N.E.2d at 373;
see also Merchants National Bank v. Elgin, Joliet, & Eastern Ry.
Co., 49 Ill. 2d 118, 122, 273 N.E.2d 809, 811 (1971).
The opinion testimony concerning the manner in which
Sterling drove would have aided the jurors' determination on a
matter upon which most of them were likely to have little
knowledge or experience. As Owens' expertise was not disputed,
the requirement for admissibility of this aspect of the offer was
met. See Augenstein, 191 Ill. App. 3d at 681, 547 N.E.2d at
1355. However, two factors combined to justify the circuit
court's exclusion of Owens' testimony.
Decisions of this state in regard to evidence have set
forth a rule that when a single offer of proof is made and part
of the evidence offered is inadmissible, the court does not err
if it excludes all of the testimony offered. Hairgrove v. City
of Jacksonville, 366 Ill. 163, 182, 8 N.E.2d 187, 196 (1937);
Donnan v. Donnan, 256 Ill. 244, 252, 99 N.E. 931, 934 (1912);
People v. Duarte, 79 Ill. App. 3d 110, 126, 398 N.E.2d 332, 344
(1979); People v. Robinson, 56 Ill. App. 3d 832, 837-38, 371 N.E.2d 1170, 1174 (1977); see also M. Graham, Cleary & Graham's
Handbook of Illinois Evidence 103.8, at 26 (6th ed. 1994). In
Hairgrove, litigation arose over the validity of an ordinance by
which the City of Jacksonville would create a system whereby the
city was to build and operate an electrical power plant. An
offer of proof was made in regard to expert testimony concerning
plans and specifications for the proposed power plant. The
supreme court held that, as some of the expert testimony offered
was inadmissible and some was admissible, the trial court did not
err in denying the entire offer of proof. Hairgrove, 366 Ill. at
182, 8 N.E.2d at 196.
Here, in rejecting plaintiff's offer of proof, the
trial judge indicated he found all of Owens' opinions concerned
matters within the ken of the average juror. The foregoing
precedent indicates the trial court was not required to go
through each portion of the offer and make a separate ruling as
to each portion. Rather, to preserve any error in regard to
refusal of specific portions of the offer, the duty was on the
plaintiff to obtain a separate ruling as to each such portion the
plaintiff deemed salvageable. This was not done here. As
indicated in the foregoing cases, this rule applies to all
witnesses and not merely to those with expertise.
The court wisely waited until plaintiff had presented
all of his other evidence before ruling upon the admissibility of
the testimony of Owens. Part of that evidence was the testimony
of Lyle McCollam, who for 12 years had been driving semis four to
five days a week. The substance of his testimony was that
Sterling should not have swerved and should have taken the chance
that the truck would hit the deer, because the truck weighed
80,000 pounds and the deer would have weighed approximately 400
pounds and likely would not have hurt the truck or the driver.
Defendant Zibert also testified that he agreed Sterling should
not have swerved to avoid the deer. Thus, the likely admissible
testimony of Owens in regard to the proper decision that Sterling
should have made in driving the semi was, at best, merely cumula-
tive.
The circuit court has granted substantial discretion in
ruling on in limine motions in civil cases. Congregation of the
Passion, Holy Cross Province v. Touche Ross & Co., 224 Ill. App.
3d 559, 578, 586 N.E.2d 600, 613 (1991); see M. Graham, Cleary &
Graham's Handbook of Illinois Evidence 103.9, at 29 (6th ed.
1994). Under the circumstances here, the circuit court did not
commit error in failing to ferret out the small portion of Owens'
report that, of itself, was admissible and permitting this
testimony to go to the jury. On that basis, we affirm the
judgment on appeal.
Affirmed.
KNECHT and STEIGMANN, JJ., concur.