Gillespie v. Chrysler Motors Corp.

532 N.E.2d 875, 178 Ill. App. 3d 5, 127 Ill. Dec. 46, 1988 Ill. App. LEXIS 1682
CourtAppellate Court of Illinois
DecidedDecember 2, 1988
DocketNo. 5-87-0647
StatusPublished
Cited by3 cases

This text of 532 N.E.2d 875 (Gillespie v. Chrysler Motors Corp.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gillespie v. Chrysler Motors Corp., 532 N.E.2d 875, 178 Ill. App. 3d 5, 127 Ill. Dec. 46, 1988 Ill. App. LEXIS 1682 (Ill. Ct. App. 1988).

Opinions

JUSTICE CALVO

delivered the opinion of the court:

While servicing a United Parcel Service (UPS) van, Phillip J. Gillespie, a mechanic for UPS, injured his back when the hood of the van dropped on his back. Gillespie sued Chrysler Motors Corporation alleging that Chrysler supplied UPS with a defective hood hinge which broke and caused the hood to fall on Gillespie, resulting in his back injuries. The parties tried the case for three weeks before a jury. At the close of all of the evidence, the court directed a verdict in Gillespie’s favor, finding that the hinge was unreasonably dangerous. The case was submitted to the jury on the issue of proximate cause. The jury returned a verdict in Chrysler’s favor. The trial court, however, granted Gillespie’s post-trial motion for a new trial on the ground that Chrysler committed prejudicial error by improperly impeaching Gillespie with a prior statement he made to a nurse, and by repeating the prior statement during its opening statement and closing argument. Chrysler appeals the trial court’s order for a new trial. We affirm.

A trial court’s decision on a motion for a new trial will not be overturned unless the court abused its discretion. (Ramseyer v. Illinois Central R.R. Co. (1969), 110 Ill. App. 2d 95, 96, 249 N.E.2d 120, 120.) The sole issue on appeal is whether the trial court had a sufficient basis for ordering a new trial. Although both parties discuss other alleged errors committed during the trial, we are only concerned with the one error on which the trial court based its decision.

The trial court found that Chrysler improperly attempted to impeach Gillespie with a prior statement he made to a nurse. The nurse wrote the statement in Gillespie’s medical records. The record reveals that Gillespie suffered a severe low' back strain a few weeks prior to the accident. Gillespie was hospitalized and absent from work as a result of the strain. On March 7, 1981, just two days prior to the accident, Gillespie went to the office of Dr. John Jemsek, his treating physician, for a follow-up examination. On that day Jemsek’s nurse, Karen O’Dell, wrote the following note in Gillespie’s medical records: “When [Gillespie] gets up in truck he has to get on knees and pull himself up.” During Gillespie’s evidence deposition, Chrysler asked him:

“Q. Okay. And do you remember telling anybody on March 7th that when you get up in the truck that you have to get up on your knees and pull yourself up?
A. Not that I recall.
* * *
Q. Okay. You are not denying that you said it?
A. I don’t remember having that condition at that time. I will put it like that.”

The court found that Chrysler improperly tried to impeach Gillespie because Chrysler failed to call O’Dell to testify to authenticate the statement in her note.

The trial court not only held that Chrysler improperly attempted to impeach Gillespie because Chrysler never submitted proof of the impeaching statement, but further held that this error was prejudicial to Gillespie. The court pointed out that Gillespie was the only witness who testified that the accident occurred. Thus, his credibility was a crucial issue in the trial, and the attempted impeachment necessarily affected his credibility. The court also noted that Chrysler compounded the prejudicial effect by referring to the statement in its opening statement and closing argument. We agree with the trial court that Chrysler improperly attempted to impeach Gillespie with the nurse’s note, and that that action, together with Chrysler’s other references to the note during the trial, had a prejudicial effect on Gillespie.

Chrysler initially argues that Gillespie failed to object at trial to its references to the note and therefore he waived his right to challenge the issue on appeal. Chrysler also points out that “when offering counsel fails to supply the connection needed to make evidence admissible, the burden is on objecting counsel to renew his objection by requesting that all the evidence dependent upon the connecting proof be stricken, or the point is waived.” (Kloster v. Markiewicz (1981), 94 Ill. App. 3d 392, 393, 418 N.E.2d 986, 987.) Chrysler additionally cites Bullard v. Barnes (1983), 112 Ill. App. 3d 384, 392, 445 N.E.2d 485, 492, aff’d (1984), 102 Ill. 2d 505, 468 N.E.2d 1228, for the proposition that a party cannot assign error to the admission of evidence if that same evidence is admitted without objection at some other time during the trial.

The record reveals that Gillespie did not object when Chrysler referred to the note in its opening statement. Gillespie did not object during the deposition of Dr. Gaylin Lack, Gillespie’s other treating physician, to Chrysler’s question regarding the note; the question and Lack’s response were read to the jury. Gillespie also failed to object to the questions about the note during his own evidence deposition. Gillespie did object to similar questions asked of Jemsek during Jemsek’s evidence deposition; the court sustained the objections and the questions and answers were not read to the jury. Gillespie, however, later withdrew one of the objections he made during Jemsek’s deposition, so one question and answer concerning the note were read to the jury. Gillespie also objected to Chrysler’s reference to the note during Chrysler’s closing argument, and the court sustained the objection.

Although a party must object to an error during trial in order to preserve it for review, a court may, “where necessary to ensure a fair trial and protect the judicial process from deterioration, consider]] errors where no objection was made in the trial court.” (Underwood v. Pennsylvania R.R. Co. (1966), 34 Ill. 2d 367, 371, 215 N.E.2d 236, 239.) Consequently, in order to ensure a fair trial, we find it necessary to review the alleged error. As we will discuss later, the references to the note severely prejudiced Gillespie’s case. We acknowledge that Gillespie failed to object to every question Chrysler asked concerning the note. Gillespie, however, did not completely overlook the error. During the pretrial conference on Jemsek’s deposition, Gillespie objected to Chrysler’s questions regarding the note on hearsay grounds. Chrysler informed the court that it intended to call the nurse to testify to prove up the statement and asked the court to admit the testimony on the condition that Chrysler call the nurse to testify. The court refused Chrysler’s request and sustained the objection on hearsay grounds. Chrysler never called the nurse to testify. Thus, although Gillespie failed to renew his objection each time Chrysler raised the issue of the note, Chrysler was not unaware that it had to submit the nurse’s testimony in order to properly admit any evidence concerning the note.

Chrysler draws our attention to Sprague v. Commonwealth Edison Co. (1978), 59 Ill. App. 3d 342, 375 N.E.2d 493.

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Bluebook (online)
532 N.E.2d 875, 178 Ill. App. 3d 5, 127 Ill. Dec. 46, 1988 Ill. App. LEXIS 1682, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gillespie-v-chrysler-motors-corp-illappct-1988.