Larkin v. George

2016 IL App (1st) 152209, 408 Ill. Dec. 526

• Court: Appellate Court of Illinois
• Decided: October 31, 2016
• Docket: 1-15-2209
• Status: Unpublished

Opinion

2016 IL App (1st) 152209 No. 15-2209 Filed: October 31, 2016

FIRST DIVISION

JOHN LARKIN, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellant, ) ) v. ) No. 12 L 002306 ) KEVIN BOYD GEORGE, ) ) Honorable Ronald F. Bartkowicz ) Judge Presiding Defendant-Appellee. )

JUSTICE SIMON delivered the judgment of the court, with opinion. Justice Pierce and Justice Neville concurred in the judgment and opinion.

OPINION

¶1 Plaintiff John Larkin filed an action for negligence against defendant Kevin Boyd George

as a result of a multi-car accident. Defendant admitted that he drove negligently, and the

remaining issues at trial were the nature and the extent of plaintiff’s injuries and whether those

injuries were proximately caused by defendant’s negligent driving. Following a jury trial, the

jury returned a unanimous verdict in favor of defendant. Plaintiff appeals that verdict arguing

that (1) the trial court erred in ruling that defendant did not violate the court’s previous order

regarding plaintiff’s motion in limine, (2) the jury’s verdict was against the manifest weight of

the evidence, and (3) the trial court failed to properly instruct the jury to not engage in their own

independent investigation.

¶2 BACKGROUND No. 15-2209

¶3 On January 27, 2011, plaintiff was driving his motor vehicle southbound on Interstate

294 near mile post 39 when he was involved in a multi-car accident. Defendant’s vehicle

contacted the rear of the vehicle driven by a nonparty. The nonparty then contacted the rear of

the vehicle operated by plaintiff. Plaintiff’s vehicle then contacted the rear of a vehicle driven by

another nonparty.

¶4 On March 1, 2012, plaintiff filed his complaint against defendant alleging that he

suffered numerous injuries as a result of defendant’s negligent driving. Prior to trial, plaintiff

filed a motion in limine asking the court to bar defendant from presenting testimony and

photographs depicting damages sustained by the vehicles involved in the underlying motor

vehicle accident. The trial court limited the use of the photographs to show the “point of impact”

and not the extent of damages.

¶5 At trial, investigating trooper John Oreskovich testified that he was on the scene for at

least 45 minutes investigating the accident. He stated that his report reflected that plaintiff made

no complaints of pain or discomfort at the accident scene. He prepared a no injury code police

report indicating that both from his personal observations and from plaintiff’s reporting there

were no complaints of pain or discomfort at the scene. Defendant testified that, on the day of the

accident, plaintiff was in no observable pain or discomfort and that plaintiff made no complaints

to him of his left foot or ankle discomfort at the accident scene.

¶6 Plaintiff testified that he went to an urgent care center the next day after the accident due

to a discomfort in his left ankle. Approximately a month later he saw an orthopedic surgeon who

performed an ankle surgical procedure. Subsequently, plaintiff underwent a second surgical

procedure performed by another surgeon. Plaintiff reported continuing pain and discomfort in his

left foot up until the time of trial and testified about his inability to participate in family

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activities, such as golfing, and playing basketball as a result of the traffic incident. Plaintiff stated

that prior to the traffic accident he regularly played basketball on a team.

¶7 At the close of the evidence, the jury returned a verdict in favor of defendant. Plaintiff

filed his motion for a new trial arguing that (1) defendant’s counsel repeatedly violated plaintiff’s

motion in limine when counsel intentionally brought up the pictures in the presence of the jury

multiple times, (2) the verdict was against the manifest weight of the evidence, and (3) the jury

clearly engaged in premature deliberation and was biased by extrinsic influences, or, in the

alternative, the court should grant plaintiff an evidentiary hearing regarding juror misconduct.

The court denied plaintiff’s posttrial motion, and this appeal followed.

¶8 ANALYSIS

¶9 On a motion for a new trial, the trial court will weigh the evidence and order a new trial if

the verdict is contrary to the manifest weight of the evidence. Lawlor v. North American Corp. of

Illinois, 2012 IL 112530, ¶ 38. A verdict is against the manifest weight of the evidence only

where the opposite result is clearly evident or where the jury’s findings are unreasonable,

arbitrary, and not based upon any of the evidence. Id. We will not reverse the trial court’s ruling

on a motion for a new trial unless it is affirmatively shown that the trial court abused its

discretion. Id.

¶ 10 Plaintiff argues that the defendant “blatantly ignored” the court’s order regarding the use

of photographs at trial and that he was denied his right to a fair trial by defendant’s repeated

attempts to use this inadmissible evidence at trial. Although the jury did not see the photographs,

plaintiff claims that he was prejudiced when the jury was left to speculate and was never able to

view or appreciate why the photographs were not disclosed.

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¶ 11 Once a motion in limine is granted, the movant must be vigilant and object when

evidence is presented which may violate the order. Compton v. Ubilluz, 353 Ill. App. 3d 863, 871

(2004). The purpose of an order in limine is to exclude inadmissible evidence. Id. A new trial

may be granted for a violation of an in limine order only if the order’s prohibitions are specific,

the violation is clear, and the violation deprived the moving party a fair trial. Id.

¶ 12 Here, plaintiff failed to establish that defense counsel violated the trial court’s order.

Plaintiff argues that the trial court prohibited the use of photographs entirely at trial. This is

simply incorrect. The trial court’s order did not completely prohibit the use of photographs but

limited their use to show the “point of impact” and not the extent of the damage of the vehicles

involved in the accident. When determining the scope of the motion in limine at issue, the trial

court explained that certain photographs could be used to reference the point of impact and that if

these photographs were to be used for this purpose, the court would rule on their admissibility at

that time. This is exactly what happened at trial. Defense counsel attempted to show the

photographs to defendant to discuss the point of impact. Plaintiff objected. Defendant showed

the court the photographs and argued that they should be admitted into evidence, as the force of

contact was disputed and described by plaintiff through his own testimony, his physician’s

testimony, and in the opening statement as “violent.” Defense counsel indicated that he wanted

to use the photographs to remind the jury that defendant’s vehicle never contacted plaintiff’s

vehicle but, rather, a vehicle in between the two cars.

¶ 13 The trial court evaluated the photographs and the arguments presented and did not allow

any photographs to be viewed by the jury. The jury did not see the photographs as they were

never entered into evidence. Based on the record and the scope of the motion in limine, we

cannot say that defendant’s counsel’s actions violated the trial court’s order. To the contrary, just

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as the trial court noted in denying plaintiff’s motion for a new trial, defense counsel’s actions

followed the procedure the court had previously established when granting plaintiff’s motion in

limine.

¶ 14 Plaintiff contends that even if the jury did not see the photographs, he was prejudiced

because the jury heard plaintiff’s objection to the photographs, observed a sidebar about the

photographs, and was left to speculate why they were not disclosed. Plaintiff’s allegations lack

any type of support. There is no evidence that the jury saw the photographs or that the jury heard

or understood the nature of the conversations between the trial court and the attorneys regarding

this topic. Moreover, plaintiff failed to present any evidence that the jury’s awareness of the

existence of the photographs prejudiced him. Bare speculation and unsupported presumptions are

insufficient to establish that plaintiff was prejudiced. See Anderson v. Smith, 91 Ill. App. 3d 938,

941 (1980).

¶ 15 Plaintiff also claims that he was prejudiced by defendant’s conscious violation of the

order in limine when defendant mentioned the photographs during plaintiff’s testimony at trial.

Specifically, plaintiff points out that during his direct examination, defendant’s counsel

improperly remarked, “[j]udge if he wants to describe the damage, I’m fine. I have these

pictures.” The relevant context to the remark was as follows:

“ Q. Okay. And prior to getting in your car to where—before the

state trooper arrived while you were at the car behind you, were you able

to observe the damage to the white Range Rover?

A. Yes.

Q. Can you describe the damage?

THE COURT: We went through this before.

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MR. SALVATO [plaintiff’s attorney]: Okay. Could I—

MR. BEATEN [defense attorney]: Judge if he wants to describe

the damage, I’m fine. I have these pictures.

MR. SALVATO: I’ll withdraw the question. The court has already

instructed us on just the point of impact.”

¶ 16 Initially, we note that plaintiff did not object when defendant’s counsel mentioned the

photographs, failing to properly preserve the error for review. In addition, the record indicates

that defendant’s counsel mentioned the photographs only after plaintiff’s counsel asked plaintiff

to describe the damage at the scene, knowing that the trial court specifically prohibited any

evidence that would depict the damages incurred by the vehicles. It is well established that

counsel cannot complain about an error he himself invited. Clemons v. Alton & Southern R.R.

Co., 56 Ill. App. 3d 328, 335 (1977). Since the comment was elicited because of plaintiff’s own

improper argument, it is clear that plaintiff invited the remark. Defendant’s counsel mentioned

the photographs to rebut plaintiff’s testimony and ultimately plaintiff’s counsel withdrew his

question. Accordingly, since plaintiff invited defendant’s remark about the photographs, the trial

court did not abuse its discretion when it rejected plaintiff’s motion for a new trial on this basis.

¶ 17 Plaintiff claims next that the trial court erred in denying his motion for a new trial arguing

that the jury’s verdict was against the manifest weight of the evidence. Plaintiff contends that he

presented the testimony of multiple board-certified expert witnesses that established the extent of

his injuries and that defendant’s negligent driving was the proximate cause of his injuries.

Meanwhile, plaintiff argues defendant presented no experts and no evidence to rebut the

evidence presented at trial, and as such, the verdict was against the manifest weight of the

evidence. “A verdict is against the manifest weight of the evidence where the opposite result is

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clearly evident or where the findings of the jury are unreasonable, arbitrary, and not based on the

evidence.” Jackson v. Seib, 372 Ill. App. 3d 1061, 1069 (2007).

¶ 18 After carefully reviewing the evidence adduced at the trial, we cannot find that the

findings of the jury were unreasonable, arbitrary, and not based on the evidence. The jury in this

case heard conflicting testimony regarding what injuries, if any, plaintiff sustained as a result of

the accident in question and whether defendant’s negligent driving was the proximate cause of

those injuries. Plaintiff testified that that he suffered extensive injuries as a result of the accident,

while defendant and the investigator at the scene both stated that plaintiff was in no observable

pain or discomfort and that he made no complaints to them of his left foot or ankle discomfort at

the accident scene. On cross-examination, plaintiff admitted that he did not strike any part of his

ankle on any portions of the interior of the car during the accident. He also admitted that prior to

the accident he regularly played basketball as part of a team.

¶ 19 The question of whom to believe and what weight to give to all the evidence is a decision

for the trier of fact, whose determinations should not be upset on review unless manifestly

erroneous. See Jackson, 372 Ill. App. 3d at 1069. It is the province of the jury to resolve conflicts

in the evidence, to pass upon the credibility of the witnesses, and to decide the weight to be given

to the witnesses’ testimony. Id. Since the witnesses’ testimony and the evidence in the case

conflicted, we cannot say that the verdict was manifestly erroneous.

¶ 20 Moreover, although plaintiff contends that the testimony of his medical experts proved

that plaintiff’s injuries were proximately caused by defendant’s driving, he failed to include on

appeal any evidentiary trial testimony of his treating physicians. The appellant has the burden to

present a sufficiently complete record to support a claim of error on appeal. Webster v. Hartman,

195 Ill. 2d 426, 432 (2001) (citing Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984)). Indeed,

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“[f]rom the very nature of an appeal it is evident that the court of review must have before it the

record to review in order to determine whether there was the error claimed by the appellant.”

Foutch, 99 Ill. 2d at 391. Where the issue on appeal relates to the conduct of a hearing or

proceeding, this issue is not subject to review absent a report or record of the proceeding.

Webster, 195 Ill. 2d at 432. Without such a record, it is presumed that the order entered by the

trial court is in conformity with the law and has a sufficient factual basis. Foutch, 99 Ill. 2d at

392. “Any doubts which may arise from the incompleteness of the record will be resolved

against the appellant.” Foutch, 99 Ill. 2d at 392.

¶ 21 Here, plaintiff failed to include in the record before us all of the relevant evidence that

was actually presented to the jury. Without a transcript of the experts’ trial testimony, there is no

adequate basis for concluding the trial court abused its discretion in denying plaintiff’s motion

for a new trial. See Foutch, 99 Ill. 2d at 392. We presume the order entered by the trial court was

in conformity with the law and had a sufficient factual basis. Any doubts arising from the

incompleteness of the record are resolved against plaintiff, the appellant in this case. Therefore,

plaintiff’s claim that the verdict was against the manifest weight of the evidence fails on this

basis as well. We emphasize that even if plaintiff presented the testimony of his treating

physicians on appeal, we would still find, as discussed above, that the verdict was not against the

manifest weight of the evidence. Plaintiff’s evidence at trial was vigorously contradicted by

defendant and questions of whom to believe and what weight to be given to all the evidence are

to be resolved by the trier of fact. Here, the jury returned a verdict in favor of defendant. Its

determination was not manifestly erroneous.

¶ 22 Finally, plaintiff contends that the trial court erred when denying his posttrial motion

when the court failed to properly instruct the jury not to engage in its own independent

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investigation until immediately before jury deliberations. During trial, plaintiff was facing

pending criminal charges in Indiana, and since his case was newsworthy in multiple media

outlets in Illinois and Indiana, plaintiff maintains the jurors were influenced by this information.

Plaintiff claims that the jurors reached a unanimous verdict for defendant due to this extrinsic

information, as reflected by the fact that they reached their verdict in less than 40 minutes, and

no juror was willing to talk after trial.

¶ 23 Plaintiff relies on People v. Holmes, 69 Ill. 2d 507 (1978) in support of his claim that he

was prejudiced by the jury’s misconduct. In Holmes, the evidence established that several jurors

went to a shoe store to investigate shoe heels after hearing police testimony regarding the heel

print at the crime scene by defendant. Id. at 509-10. Our supreme court reversed the defendant’s

conviction and held that a prejudicial error occurred as the extraneous information was essential

to the issue of the defendant’s identification. Id. at 509.

¶ 24 However, plaintiff’s reliance on Holmes is misplaced. Unlike Holmes, where the

evidence indicated that the jury actually engaged in improper investigation, here, there is no

evidence whatsoever of the jury’s independent investigation. Plaintiff’s argument is nothing else

but pure speculation that the jurors were aware of his pending criminal charges in a different

state or that the alleged extraneous investigation by the jurors influenced their verdict in the

instant case. Furthermore, contrary to plaintiff’s argument, the record reflects that the trial court

properly instructed the jury at the start of deliberation not to discuss the case with anyone until

the verdict was reached and not to use the internet in any way to research any of the matters.

Also, during the jury selection process, the trial court questioned every potential juror about any

prior knowledge and association with the parties in the case. All the jurors indicated that they

had no knowledge or association with the parties. Based on this record we cannot say that the

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trial court abused its discretion in denying plaintiff’s motion for a new trial. Having found no

basis for plaintiff’s claim that the jury engaged in misconduct we similarly deny plaintiff’s

request to remand the case to the circuit court for an examination under oath of the jurors.

¶ 25 CONCLUSION

¶ 26 Based on the foregoing, we affirm the circuit court’s judgment.

¶ 27 Affirmed.