2014 IL App (3d) 130137
Opinion filed February 5, 2014 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2014
MARK LORENZ, GARY LORENZ and ) Appeal from the Circuit Court LESLIE LORENZ, ) of the 9th Judicial Circuit, ) McDonough County, Illinois Plaintiffs, ) ) BRIAN DAYTON, Individually and as the Special ) Administrator of the Estate of Jill D. Dayton, ) Deceased, and AMANDA DAYTON NEHRING, ) ) Appeal No. 3-13-0137 Plaintiffs-Appellants, ) Circuit No. 06-L-9 ) v. ) ) THOMAS PLEDGE and the McDONOUGH ) COUNTY SHERIFF’S DEPARTMENT, ) Honorable ) Richard H. Gambrell, Defendants-Appellees. ) Judge, Presiding ______________________________________________________________________________
JUSTICE O’BRIEN delivered the judgment of the court, with opinion. Justice Carter concurred in the judgment and opinion. Justice Schmidt dissented, with opinion. ______________________________________________________________________________
OPINION
¶1 Plaintiffs Brian Dayton, individually and as special administrator of the estate of Jill
Dayton, deceased, Amanda Dayton Nehring, and others not involved in this appeal, filed
personal injury and wrongful death actions against defendants Thomas Pledge and the McDonough County sheriff’s department, for damages they sustained following a car accident
between the Daytons’ minivan and a sheriff’s squad car. Following a trial, the jury entered a
verdict in favor of Pledge. The Daytons appealed. We reverse and remand for a new trial.
¶2 FACTS
¶3 On September 3, 2004, at approximately 11:30 p.m., defendant McDonough County
sheriff’s department received a call regarding an erratically driven sport utility vehicle (SUV).
Defendant Deputy Thomas Pledge, who responded to the call, located and observed the SUV.
His squad video activated, and after seeing the SUV swerve several times, Pledge effectuated a
traffic stop. As Pledge approached the stopped SUV, it sped away, and he pursued the vehicle.
The SUV and Pledge proceeded southbound on Route 67, heading into Macomb. Pledge’s
vehicle reached speeds as high as 110 miles per hour and was traveling at 100 miles per hour
approximately four seconds before he entered the intersection of Route 67 and University Drive.
The SUV turned off its headlights as it neared the intersection.
¶4 At the same time the SUV and Pledge were speeding toward the intersection, a minivan
traveling northbound on Route 67 and occupied by 16-year-old Amanda Dayton, the driver; her
mother, Jill Dayton, in the passenger seat; and their friend, Mark Lorenz, in the backseat, entered
the intersection’s center turn lane to proceed left onto University Drive. The SUV passed
through the intersection, and as Amanda began the left turn, the squad entered the intersection
and struck the minivan on the passenger side. Pledge, Amanda and Lorenz were injured, and Jill
was killed in the accident.
¶5 Plaintiffs Mark Lorenz, Gary Lorenz, Leslie Lorenz (collectively Lorenzes), Brian
Dayton, individually and as special administrator of the estate of Jill Dayton, and Amanda
2 Dayton Nehring (collectively Daytons) sought to recover damages for their injuries from Pledge,
individually and as a McDonough County deputy sheriff, and the McDonough County sheriff’s
department. The Lorenzes are not part of this appeal. The fourth amended complaint asserted
wrongful death and bodily injury against Pledge, the sheriff’s department and McDonough
County. McDonough County was later dismissed from the case. The complaint alleged that
Pledge acted both negligently, and willfully and wantonly, and violated provisions of several
statutes and the sheriff’s department pursuit policy.
¶6 Both parties filed motions in limine. The Daytons sought to preclude a videotape
prepared by a defense expert witness, Michael O’Hern. The video portrays a visibility or line-of-
sight study undertaken by O’Hern and designed to give an indication of the line of sight down
Route 67 that Amanda would have had from the left-turn lane. The Daytons argued that the
video was an enactment of the crash and its probative value was outweighed by its prejudicial
effect. Following a hearing, the trial court denied the motion in limine.
¶7 A jury trial ensued. Testifying for the Daytons were Pledge, expert witness Robert
Johnson, Amanda Dayton Nehring, and Brian Dayton. Evidence depositions of an occurrence
witness and a medical doctor were read into evidence. Michael O’Hern testified as an expert
witness for the defense. He created the line-of-sight video in response to an early claim by the
Daytons that there were trees blocking Amanda’s visibility. He undertook the experiment to
determine whether there were any structures impeding Amanda’s view; whether she could see
Pledge’s squad car; and whether it was necessary for her to yield to oncoming traffic. O’Hern
reiterated a number of times that the video was not a reconstruction of the accident and explained
the various differences between the conditions of the actual crash and the line-of-sight
3 experiment, including speed, lane position, static position from the left lane, normal driving
conditions, and an illuminated SUV. The conclusion O’Hern reached from the experiment was
that Amanda had a “clear line of sight of both southbound lanes of traffic” for one-half mile as
observed from the left-turn lane. In addition to the video, O’Hern also based his opinion on his
experience and training.
¶8 The Daytons timely objected to use of the video, arguing it was cumulative, inaccurate,
and confusing, and that its probative value was outweighed by its prejudicial effect. The trial
court overruled the objection and gave a limiting instruction to the jury as follows:
“The witness has explained why the video was produced and you
should consider it only for purposes of the consideration that the
witness took of the information that’s contained therein. You can
consider the material for that purpose in deciding what weight, if
any, you give the opinions that have been testified to by the
witness.”
¶9 Based on O’Hern’s review of the squad car video, he concluded that Amanda’s line of
sight was blocked for one second by the passing SUV but the squad’s emergency lights were still
visible, and that Amanda could see the approaching squad for 13 to 15 seconds before the
impact. He further opined that Pledge was traveling at 86 miles per hour entering the
intersection, slowed to 73.9 miles per hour prior to impact, and to 70 miles per hour at impact.
O’Hern stated that Amanda “would have a duty to yield and stop and not engage in that left turn
maneuver in front of the vehicle.” He opined that Amanda had a duty to yield to oncoming traffic
in general, and to emergency vehicles in particular, when turning left. In O’Hern’s professional
4 opinion, Amanda’s failure to yield was the cause of the accident and Pledge operated with due
regard for the public’s safety.
¶ 10 Closing arguments took place. Counsel for the Daytons argued that Amanda’s vehicle
was only visible for five seconds before the collision as indicated in the squad video. The
defense objected, to which the trial court responded, as follows.
“The objection is that you have misstated the fact. That is, I
believe that there was testimony or some sort of evidence that there
was a period of five seconds within which the squad car would have
been viewed, and my recollection of the evidence is that there was
no such testimony from any of the occupants of the [mini]van.
There was no testimony from the evidence deposition of the
occurrence witness, and there was no testimony of five seconds.
The only testimony that I heard was the opinion witness of the
defense.”
¶ 11 During deliberations the jury asked to see the squad car video, along with other evidence.
The video was replayed for the jury. The jury returned a verdict for Pledge and against the
Daytons. The Daytons filed a posttrial motion, maintaining that the O’Hern video was
improperly admitted; O’Hern improperly gave an opinion on Amanda’s duty; they were
prejudiced by the defense’s closing argument; and the trial court failed to properly instruct the
jury. The Daytons’ motion was heard and denied. They appealed.
¶ 12 ANALYSIS
5 ¶ 13 The Daytons raise four issues on appeal. They challenge the trial court’s rulings on the
admission of the defense’s line-of-sight video; the limiting instruction concerning the video; the
limitations on their closing argument; and the defense expert’s testimony regarding Amanda’s
duty.
¶ 14 The first issue is whether the trial court erred in admitting the defense video. The
Daytons argue that the line-of-sight video submitted by the defense was improperly admitted.
They maintain the conditions shown in the video were not substantially similar to the conditions
of the accident, and the video was inaccurate, misleading, and confusing, unfairly biased to the
defense theory, and an informal accident reconstruction.
¶ 15 The general guidelines for the admission of experiments are found in the Illinois Rules of
Evidence 401 and 402 (Ill. R. Evid. 401, 402 (eff. Jan. 1, 2011)) regarding relevant and irrelevant
evidence. Relevant evidence is any evidence that has a tendency to make the existence of a fact
of consequence in the case more probable or less probable than it would be without the evidence.
Voykin v. Estate of DeBoer, 192 Ill. 2d 49, 57 (2000); People v. Monroe, 66 Ill. 2d 317, 321-22
(1977). In addition, a court may exercise its discretion and exclude evidence, even if it is
relevant, if the danger of unfair prejudice substantially outweighs its probative value. Ill. R.
Evid. 403 (eff. Jan. 1, 2011); People v. Hanson, 238 Ill. 2d 74, 102 (2010). Distinguishing
between an experiment (substantive evidence) and the use of demonstrative evidence
(explanatory evidence) is sometimes difficult and confusing. See People v. Hayes, 353 Ill. App.
3d 355, 360 (2004); Foster v. Devilbiss Co., 174 Ill. App. 3d 359, 365 (1988); Michael H.
Graham, Graham’s Handbook of Illinois Evidence § 401.11, at 190 (10th ed. 2010).
6 ¶ 16 The foundational requirements for the admission of experiments or tests is “whether the
‘essential conditions’ or ‘essential elements’ of the experiment are substantially similar” to the
conditions at the time of the accident. Brennan v. Wisconsin Central Ltd., 227 Ill. App. 3d 1070,
1087 (1992). If an experiment is presented as a reenactment, the proponent must establish the
test was performed under conditions closely duplicating the accident. Brennan, 227 Ill. App. 3d
at 1087. When an experiment is designed to test only one aspect or principle related to the cause
or result of the accident at issue, the exact conditions of the accident do not need to be replicated
but that particular aspect or principle must be substantially similar. Galindo v. Riddell, Inc., 107
Ill. App. 3d 139, 144 (1982). This court reviews evidentiary errors for an abuse of discretion.
Bosco v. Janowitz, 388 Ill. App. 3d 450, 463 (2009). The admission of demonstrative evidence
that may confuse or mislead the jury, or prejudice a party, constitutes an abuse of the trial court’s
discretion. Hernandez v. Schittek, 305 Ill. App. 3d 925, 932 (1999). Where a trial court abuses
its discretion in admitting evidence, a reviewing court should grant a new trial only where “the
error was substantially prejudicial and affected the outcome of the case.” Taluzek v. Illinois
Central Gulf R.R. Co., 255 Ill. App. 3d 72, 83 (1993).
¶ 17 It is proper to exclude experiments to determine the extent of visibility prior to the
accident in question if the conditions are not substantially similar. See Kent v. Knox Motor
Service, Inc., 95 Ill. App. 3d 223, 226 (1981) (where type of vehicle, light condition, and
conditions of highway in line-of-sight test were not the same, nor substantially the same, as
during the accident, the trial court’s refusal to admit experiment to determine extent of driver’s
visibility was not an abuse of discretion); Amstar Corp. v. Aurora Fast Freight, 141 Ill. App. 3d
705, 709 (1986) (proper to exclude videotape where the difference in vantage point from position
7 of video camera and position of driver was significant and misleading); French v. City of
Springfield, 65 Ill. 2d 74, 81-82 (1976) (city was prejudiced by improper admission of motion
picture, which depicted area where accident occurred and preconditioned the minds of the jurors
to accept the plaintiff’s theory of the case). This court recently addressed the same issue
presented here in Johnson v. Bailey, 2012 IL App (3d) 110016, and rejected arguments similar to
those presented by Pledge. In Johnson, the trial court improperly admitted photographs that the
defense argued portrayed the layout of the gas station parking where the plaintiff was injured in a
collision with the defendant. Johnson, 2012 IL App (3d) 110016, ¶ 15. One vehicle shown in
the photo accurately represented the position of the defendant’s vehicle but the second vehicle in
the photo was not in a location substantially similar to the location of the plaintiff’s vehicle when
the accident occurred. Johnson, 2012 IL App (3d) 110016, ¶ 15. In addition to depicting the
lot’s layout and traffic flow, the photos also showed an inaccurate location of the plaintiff’s
vehicle, which we considered could mislead the jury. Johnson, 2012 IL App (3d) 110016, ¶ 15.
Because the photographs did not accurately portray the location of plaintiff’s vehicle, we found
that the foundation was incomplete and the plaintiff was prejudiced by their improper admission.
Johnson, 2012 IL App (3d) 110016, ¶ 16.
¶ 18 The same circumstances are present in the instant case. The video does not meet the test
for admissibility of experimental evidence. For the video to satisfy the foundational
requirements, the defense needed to establish that the essential conditions of the line-of-sight
experiment were substantially similar to those that existed when the accident occurred. It is
undisputed that the essential conditions regarding line of sight were not substantially similar
when the video was created. The pursuit involved speeds in excess of 100 miles per hour, while
8 the SUV and squad car in the video were driving at 40 miles per hour. The vehicles in the
experiment were in a different lane than the SUV and Pledge’s vehicle, and standing traffic is
visible in the video that was not present when the accident occurred. The SUV’s lights were on
in the video, contrary to the pursued SUV, which had turned off its lights during the pursuit. The
video was taken from a static position in the left-turn lane, while the evidence at trial suggests
Amanda’s minivan was consistently moving through the intersection.
¶ 19 Pledge expressly admits the differences exist, but argues that they go to the weight the
jury should give the evidence, not to its admissibility. Pledge asserts the jury was informed
repeatedly throughout the trial that the line-of-sight experiment was not a re-creation of the
accident. We agree with the defense that it repeatedly informed the jury that the video was not a
re-creation. Nevertheless, that does not relieve Pledge of the obligation to demonstrate that the
essential conditions of the line-of-sight evidence offered by his expert were substantially similar
to the conditions as they appeared in Amanda's line of sight at the time of the accident. The
various differences, as discussed above, preclude any substantial similarities regarding line-of-
sight conditions. Like the defendant in Johnson, Pledge cannot establish that the essential
conditions regarding Amanda’s line of sight were substantially similar to the conditions existing
when the video experiment was performed. Because Pledge cannot satisfy the requirements for
the admission of demonstrative evidence, we find the video was admitted in error.
¶ 20 We further find that the improper admission prejudiced the Daytons. A critical issue in
the case was Amanda’s negligence. The effect of the video was to precondition the jury to
accept the defense’s theory of the accident. Because its essential conditions were not
substantially similar to conditions when the accident took place, the video had the potential to
9 confuse and mislead the jury. The video depicted a different scene than Amanda would have
seen when the accident occurred and offered a portrayal of the accident’s circumstances
favorable to the defense. The prejudicial impact of the video outweighed its probative value and
precluded its admission.
¶ 21 We find that the trial court abused its discretion in allowing the video to be admitted into
evidence and that the Daytons are entitled to a new trial. Although the resolution of the first issue
is dispositive, we briefly address the other issues the Daytons raise on appeal to the extent they
are likely to arise in the new trial.
¶ 22 The Daytons challenge the limiting instruction provided by the trial court regarding the
defense video, asserting it was confusing, prejudicial and improper. We agree. The Illinois
Pattern Jury Instructions provide the following instruction on evidence admitted for a limited
purpose:
“The following evidence concerning [(describe evidence)]
is to be considered by you solely as it relates to [(limited subject
matter)]. It should not be considered for any other purpose.”
Illinois Pattern Jury Instructions, Civil, No. 2.02 (2000)
(hereinafter, IPI Civil (2000) No. 2.02).
The trial court instructed the jury as follows:
“The witness has explained why the video was produced and you
should consider it only for purposes of the consideration that the
witness took of the information that’s contained therein. You can
consider the material for that purpose in deciding what weight, if
10 any, you give the opinions that have been testified to by the
¶ 23 The trial court’s limiting instruction did not track the language of the applicable pattern
jury instruction. See IPI Civil (2000) No. 2.02. The trial court must give instructions that fairly
and accurately state the law and are clear enough so the jury is not misled. Eskew v. Burlington
Northern & Santa Fe Ry. Co., 2011 IL App (1st) 093450, ¶ 31. The limiting instruction given by
the trial court did not clearly or comprehensively inform the jury that the video’s limited purpose
related only to line of sight as the basis for the defense expert’s opinion.
¶ 24 The Daytons also challenge the trial court’s limitation on their closing argument, arguing
that the trial court prevented them from offering an inference arising from the squad car video. In
closing argument, counsel for the Daytons inferred that the squad video depicts a five-second
period when Amanda could see the approaching squad based on when her minivan comes into
view on the video. We consider the Daytons’ argument to be supported by the evidence
presented. The squad video, admitted as substantive evidence without objection, was viewed by
the jury, which was capable of determining the amount of time it thought Amanda had to see the
squad car. The opinion of the defense expert that the squad was visible to Amanda for 13
seconds was based on his viewing of the squad video. The jury was free to reject his conclusion
in favor of its own determination based on what the jurors saw in the squad video, which was
equipped with audio and an onscreen timer. Watching the video and counting the seconds are
not beyond the ken of the ordinary juror and not subjects limited to expert testimony. Kimble v.
Earle M. Jorgenson Co., 358 Ill. App. 3d 400, 412-13 (2005). At retrial, the trial court should not
limit the Daytons’ presentation of this argument, if appropriate.
11 ¶ 25 Lastly, the Daytons argue that the trial court improperly allowed the defense expert to
testify regarding Amanda’s duty and that the testimony misstated Illinois duty law and
prejudiced them. We find there was no error in O’Hern’s testimony regarding Amanda’s duty.
It is well settled that an expert may opine on an ultimate fact or issue as long as the other
requirements for the expert testimony are met. Jackson v. Seib, 372 Ill. App. 3d 1061, 1071
(2007). O’Hern testified that Amanda had a duty to yield to Pledge’s emergency vehicle before
executing the left turn and that, based on his training, education and experience, the cause of the
accident was Amanda’s failure to yield. O’Hern’s opinion does not impermissibly intrude on the
jury’s role because the jury was free to reject O’Hern’s opinion. Zavala v. Powermatic, Inc., 167
Ill. 2d 542, 545 (1995). In addition, the jury was to determine whether Pledge acted willfully
and wantonly, a finding it could make even if Amanda failed to yield.
¶ 26 The dissent claims that we have ignored the arguments of the defendants that the
evidentiary rulings of the trial court were either proper or, if made in error, harmless error.
Nothing is further from the truth. We carefully considered the defendants' arguments concerning
the propriety of the evidentiary rulings before us on appeal and rejected the notion that this trial
was fair despite the prejudice to the plaintiff that resulted from the improper admission or barring
of certain evidence as outlined above.
¶ 27 For the foregoing reasons, the judgment of the circuit court of McDonough County is
reversed and the cause remanded.
¶ 28 Reversed and remanded.
¶ 29 JUSTICE SCHMIDT, dissenting.
12 ¶ 30 It is clear that this case never should have gone to trial and, therefore, any errors in
evidentiary rulings are, at best, harmless and not a proper basis for reversal. Wade v. City of
Chicago, 364 Ill. App. 3d 773, 784-85 (2006). Defendants' motion for summary judgment
should have been granted. While those with nothing more important to do can sit and ponder
whether Deputy Pledge's decision to follow the fleeing vehicle was negligent, no reasonable
person could conclude that his actions constituted willful and wanton conduct. As a matter of
law, the deputy's conduct did not constitute willful and wanton misconduct.
¶ 31 Willful and wanton conduct is "a course of action which shows an actual or deliberate
intention to cause harm or which, if not intentional, shows an utter indifference to or conscious
disregard for the safety of others or their property." 745 ILCS 10/1-210 (West 2010). Our
supreme court has held that "[w]illful and wanton conduct is found where an act was done with
actual intention or with a conscious disregard or indifference for the consequences when the
known safety of other persons was involved." (Internal quotation marks omitted.) Burke v. 12
Rothschild's Liquor Mart, Inc., 148 Ill. 2d 429, 451 (1992).
¶ 32 The defendants argue that any errors in evidentiary rulings were harmless because the
plaintiffs, as a matter of law, failed to prove that Deputy Pledge was guilty of willful and wanton
conduct. How does the majority deal with that argument? It ignores it, other than a single
sentence: "In addition, the jury was to determine whether Pledge acted willfully and wantonly, a
finding it could make even if Amanda failed to yield." Supra ¶ 25. The majority ignores all the
case law cited by defendants, including cases from this court affirming summary judgment
granted in police pursuit cases.
13 ¶ 33 The operative facts in this case are as follows: (1) The driver of the van fled a traffic stop
and drove at a high rate of speed at night with no lights. (2) Deputy Pledge made the snap
decision that it was best to follow this vehicle rather than let the vehicle continue to drive at a
high speed with no lights. (3) The pursuit in this case was not the basis for the erratic driving by
the suspect vehicle. It was in response to a citizen complaint to 911, reporting the suspect
vehicle driving in an "erratic and menacing" manner. (4) Deputy Pledge had his lights and siren
activated. (5) The pursuit occurred on a four-lane highway. (5) The location of the pursuit was
not a densely populated urban area. (6) The weather was clear. (7) The road was dry. (8) The
visibility was good. (9) The duration of the pursuit from the time the suspect vehicle fled the
traffic stop to the collision was only 75 seconds. (10) Deputy Pledge entered the intersection on
a green light. (11) The police officer's speed at the time of impact was between 70 to 75 miles
per hour. (12) Sixteen-year-old Amanda Dayton Nehring made a left turn into the path of the
oncoming police car, turning between the suspect vehicle and the police car.
¶ 34 To summarize, Deputy Pledge had his first encounter with the suspect vehicle after a
citizen complaint about the nature of the vehicle's driving. This obviates any argument that it
was the presence of the police officer that caused the dangerous driving of the suspect vehicle.
After the stop, the suspect vehicle fled toward Macomb at a high rate of speed with no lights.
Deputy Pledge made a determination that it was better to try to stop that vehicle than it was to let
it go. I should not need to list the obvious dangers to the public by a vehicle driving at a high
rate of speed at night with no lights. The fact that the collision took place between the plaintiffs'
vehicle and the squad car as opposed to the plaintiffs' vehicle and the suspect vehicle is simply a
14 cruel twist of fate. Had the squad car not slowed, or had gone faster, it likely would have been
through the intersection before Amanda made the turn.
¶ 35 No reasonable person could conclude that this deputy's decision to try to stop a vehicle
that was driving at night at high speeds with no lights constituted willful and wanton behavior.
As a matter of law, any error was harmless. Imagine, if you will, a police officer parked by the
side of the road when a speeding car passes by at night with no lights. Would any thinking
person suggest that the officer should do nothing because adding a police car with lights and
siren to the mix would increase the danger?
¶ 36 We had a police officer faced with a driver who was an apparent danger to public safety
and the officer decided to intervene. See Hall v. Village of Bartonville Police Department, 298
Ill. App. 3d 569, 572 (1998). In fact in Hall, this court explained that in addition to the truck
driver's perceived intoxication, it could not ignore a number of important facts, including (1) the
officer activated his lights and siren; (2) the chase occurred on a four-lane highway; (3) the
location of the chase was not a densely populated urban area; (4) the weather was clear; (5) the
road was dry; and (6) the duration of the chase was relatively brief. Based on those facts, this
court concluded, like the trial court, that as a matter of law, "the officer did not act in disregard
for the safety of others." Id. at 573.
¶ 37 In this case, we have a driver who is driving in an erratic and dangerous manner
prompting at least one citizen to call the police. Deputy Pledge got behind him, observed more
such conduct and made the stop. After stopping, the vehicle then fled, turning off its lights and
driving at a high speed. Deputy Pledge determined that the best thing to do was try to stop that
vehicle. Tragically, this accident happened when a 16-year-old driver made a left turn into the
15 path of a police car, which was coming into an intersection at a high speed with its lights and
siren activated. To suggest that the officer's conduct in deciding to try to stop the suspect vehicle
constituted willful and wanton misconduct or that a jury could find willful and wanton
misconduct on these facts flies in the face of common sense and every reported decision. See,
for example, Urban v. Village of Lincolnshire, 272 Ill. App. 3d 1087 (1995); County of
Sacramento v. Lewis, 523 U.S. 833, 854 (1998); Wade v. City of Chicago, 364 Ill. App. 3d 773
(2006).
¶ 38 Plaintiffs argue that the deputy violated department guidelines. Maybe so, but most
probably not. Regardless, this deputy did what any reasonably qualified and conscientious
police officer would have done faced with the same situation. More importantly, a violation of
self-imposed rules or internal guidelines does not constitute evidence of wilful and wanton
misconduct. Wade, 364 Ill. App. 3d at 781.
¶ 39 Therefore, there is no need to discuss the evidentiary rulings in this case. Since I would
affirm based on the plaintiffs' failure to establish a prima facie case of willful and wanton
misconduct, I respectfully dissent.