Marshall v. Osborn

571 N.E.2d 492, 213 Ill. App. 3d 134, 156 Ill. Dec. 708, 1991 Ill. App. LEXIS 672
CourtAppellate Court of Illinois
DecidedApril 25, 1991
Docket3-90-0024
StatusPublished
Cited by38 cases

This text of 571 N.E.2d 492 (Marshall v. Osborn) 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
Marshall v. Osborn, 571 N.E.2d 492, 213 Ill. App. 3d 134, 156 Ill. Dec. 708, 1991 Ill. App. LEXIS 672 (Ill. Ct. App. 1991).

Opinion

JUSTICE SLATER

delivered the opinion of the court:

On April 17, 1987, plaintiffs’ decedent Barry S. Marshall was killed when he was struck by an automobile driven by defendant Eldan A. Osborn. Plaintiffs filed suit pursuant to the Wrongful Death Act (Ill. Rev. Stat. 1987, ch. 70, pars. 1, 2) alleging various acts of negligence. Following a number of pretrial motions, which will be explained in more detail below, trial began on September 20, 1989. The evidence presented at trial was limited by application of the Dead Man’s Act ( Ill. Rev. Stat. 1987, ch. 110, par. 8—201), which prevented presentation of any event which took place in the decedent’s presence.

The evidence presented at trial showed that the defendant was driving east along Lorenzo Road at approximately 2 a.m. The weather was foggy and the accident occurred in a rural area in which there were no streetlights, sidewalks, crosswalks, businesses, or intersections. The posted speed limit was 55 miles per hour.

Police officers who investigated the accident testified to the damage sustained by the defendant’s car. The hood of the car on the driver’s side was dented and the fender on that side was heavily damaged and had been pushed back to the edge of the driver’s door. On the passenger side, the amber turn signal light was broken and there was a large dent where the roof of the car meets the windshield. The windshield on the passenger side was shattered inward, creating a large hole. Hairs were found in the windshield, on the chrome trim at the top of the windshield, and on the louvered rear windows.

The body of the decedent was found in the eastbound traffic lane of Lorenzo Road. All blood and body tissue were also found in the eastbound lane. Two pieces of fiberglass debris from defendant’s vehicle were found in the eastbound lane close to the center line. Amber glass shards were also found in the roadway east of the fiberglass debris. The decedent’s body was east of both areas of debris. No blood, body tissue, or debris was found in the westbound lane or on either the north or south shoulders of the road.

A car was found in a ditch on the south shoulder of the road facing west with its headlights on. The car was undamaged except for a cracked windshield which was not related to this incident. The car belonged to the decedent’s father and was driven by the decedent that night.

Pursuant to a request to admit facts, the defendant admitted that her car struck the decedent and caused his death. Defendant also admitted that at or about the time of the collision between her and the decedent, defendant’s car left the roadway approximately two feet.

Doctor Austin Gibbons, a pathologist, testified as an expert witness for defendant. Gibbons testified that the blood-alcohol level of the decedent was .320, which the witness characterized as “severely intoxicated.” According to Gibbons, a person at this level of intoxication would be extremely uncoordinated, staggering, and barely able to walk. In addition, such a person’s ability to perceive would be extremely impaired and his judgment would be greatly affected.

The jury returned a verdict in favor of the defendant. Plaintiffs’ post-trial motion was denied, and they raise the following issues on appeal: (1) whether the trial court erred in reversing a prior ruling on a motion in limine, thereby allowing defendant to present evidence of decedent’s intoxication; (2) whether the court, should have barred the testimony of defendant’s expert witness; (3) whether the trial court properly excluded evidence of defendant’s consumption of alcohol; and (4) whether the trial court erred in refusing to allow plaintiffs’ expert to testify to the speed of defendant’s vehicle. We affirm.

Plaintiffs first contend that the trial court improperly changed a ruling which had excluded any evidence of the decedent’s intoxication. Plaintiffs filed a motion in limine on April 18, 1988, prior to the completion of discovery and before a trial date had been set, which sought to exclude any evidence of decedent’s intoxication on the grounds that its prejudicial effect outweighed its probative value and that such evidence was irrelevant because there was nothing to indicate that intoxication contributed to the decedent’s death. In arguing the motion, plaintiffs’ counsel relied on the fact that no one, including defendant, had seen the decedent prior to the accident and thus there was “no evidence whatsoever of his position; meaning where he was standing, if he was standing, whether he was walking, moving, [or] what he was doing at the time of the collision.”

The court granted plaintiffs’ motion on June 22, 1988, prohibiting the defendant from making any reference to the decedent’s intoxication or consumption of alcohol. The judge who granted the motion was not the same judge who presided at the trial of this cause. The defendant’s motion to reconsider was denied on November 10, 1988.

Prior to selection of the jury on September 20, 1989, defendant made a motion to reconsider the ruling on the motion in limine. The trial judge refused to reconsider the ruling at that time, but he cautioned plaintiffs’ attorney that he would not be bound by the ruling of the previous judge if the evidence presented at trial warranted admission of decedent’s intoxication. After jury selection and prior to opening statements, plaintiffs’ attorney indicated that it would be unfair to. reconsider the ruling on the motion in limine at such a late date. The trial judge then asked plaintiffs’ attorney if he would like him to rule on the motion to reconsider at that time, and plaintiffs’ attorney said he did not. The judge then again warned plaintiffs’ counsel that if the evidence presented at trial indicated that the decedent’s intoxication was relevant he would admit it, and the judge again asked plaintiffs’ counsel if he would rather have a ruling at that time. Plaintiffs’ attorney responded that he did not want a ruling at that time.

After plaintiffs presented their case the defendant again asked the court to reconsider the motion in limine. The court reversed the earlier ruling, finding that evidence of decedent’s intoxication was material and relevant because all the evidence indicated that the decedent was in the eastbound traffic lane when he was struck by the defendant’s car. The judge told plaintiffs’ attorney that he would allow him to reopen his case to submit further evidence and that he would give plaintiffs’ counsel the weekend to consider it. Plaintiffs chose not to reopen their case.

Plaintiffs first contend that the trial court abused its discretion in reversing the ruling on the motion in limine after trial had begun because plaintiffs had relied on the earlier ruling in pretrial discovery and in preparing their case for trial. We disagree.

A ruling on a motion in limine is interlocutory in nature and is subject to reconsideration throughout trial as the evidence is fully developed (Ely v. National Super Markets, Inc. (1986), 149 Ill. App. 3d 752, 500 N.E.2d 120; Beasley v. Huffman Manufacturing Co. (1981), 97 Ill. App. 3d 1, 422 N.E.2d 241; see Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 382 N.E.2d 1217

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Bluebook (online)
571 N.E.2d 492, 213 Ill. App. 3d 134, 156 Ill. Dec. 708, 1991 Ill. App. LEXIS 672, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marshall-v-osborn-illappct-1991.