Inman v. Howe Freightways, Inc. , 2019 IL App (1st) 172459 ( 2019 )

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Appellate Court Date: 2019.08.26
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Inman v. Howe Freightways, Inc., 2019 IL App (1st) 172459Appellate Court LISA INMAN, Individually and as Administrator of the Estate of
Caption Jesse Inman, Deceased, Plaintiff-Appellee, v. HOWE
FREIGHTWAYS, INC., an Illinois Corporation; HINER
TRANSPORT, LLC, a/k/a Hiner Transport, Inc.; and HINER
EQUIPMENT, LLC, Defendants (Howe Freightways, Inc.,
Defendant-Appellant; Hiner Transport, LLC, a/k/a Hiner Transport,
Inc., Defendant-Appellee).
District & No. First District, Fourth Division
Docket No. 1-17-2459
Filed May 30, 2019
Decision Under Appeal from the Circuit Court of Cook County, No. 12-L-4183; the
Review Hon. James N. O’Hara and the Hon. Thomas J. Lipscomb, Judges,
presiding.
Judgment Affirmed in part and reversed in part; cause remanded with directions.
Counsel on Michael Resis and Andrew Seiber, of SmithAmundsen LLC, and
Appeal Glenn F. Fencl and David M. Macksey, of Johnson & Bell Ltd., both
of Chicago, for appellant.
J. Timothy Eaton and Jonathan B. Amarilio, of Taft Stettinius &
Hollister LLP, and Todd A. Smith and Sean M. Houlihan, of Power
Rogers & Smith LLP, both of Chicago, for appellee Lisa Inman.
Panel JUSTICE BURKE delivered the judgment of the court, with opinion.
Justices Gordon and Pierce * concurred in the judgment and opinion.
OPINION
¶1 As the sun was setting one night in September 2011, James Langholf, a truck driver and
employee of Howe Freightways, Inc. (Howe), was driving his semi-tractor trailer west on
Interstate 80 in Iowa when he began to have engine trouble. He pulled over to the shoulder of
the highway and turned off his vehicle. When Langholf could not restart it, he called Howe,
who told him to call the manufacturer of his engine. Eventually, Langholf called a towing
company, which dispatched Jesse Inman (Inman) and Daniel Walsh in separate tow trucks to
tow Langholf’s tractor and his trailer, the latter being the storage compartment for the freight.
When Inman and Walsh arrived at the scene, Inman parked in front of Langholf and Walsh
parked behind Langholf. Shortly thereafter, a semi-tractor trailer driven by Herbert Terrell, an
employee and agent of Hiner Transport, LLC, a/k/a Hiner Transport, Inc., and Hiner
Equipment, LLC (collectively, Hiner), sideswiped Walsh’s tow truck and collided with the
back of Langholf’s truck. The force of the collision pushed Langholf’s truck into Inman’s tow
truck, pinning Inman between them. As a result of the collision, all four men died.
¶2 Plaintiff Lisa Inman, Inman’s widow, initiated this lawsuit on her behalf and his estate
against several defendants, including Howe and Hiner, and alleged their negligence caused his
death. Ultimately, the case proceeded to trial where a jury found that both Howe and Hiner
were liable, apportioning their liability at 57% and 43%, respectively, and awarded plaintiff a
multimillion dollar verdict.
¶3 On appeal, Howe contends that the trial court erred (1) by denying its motion for a
judgment notwithstanding the verdict where plaintiff failed to present evidence that showed it
proximately caused the injuries to Inman; (2) by denying its motion for a judgment
notwithstanding the verdict where the jury’s verdict and apportionment of liability was against
the manifest weight of the evidence; (3) by granting pretrial discovery sanctions that deemed
admitted certain acts by it were negligent; and (4) in its rulings on multiple pretrial motions
in limine, including one that barred a witness from testifying that, mere seconds before the
accident occurred, Terrell was shirtless but, after the accident, he was wearing a shirt.
¶4 Because we find the trial court erred by barring that witness from testifying about his
observation of Terrell just seconds before the accident occurred and that evidence, if presented
at trial, very likely would have changed the jury’s apportionment of liability between Howe
and Hiner, we must reverse the jury’s verdict and remand this matter for a new trial.
¶5 I. BACKGROUND
¶6 A. The Complaint
¶7 At one point, this lawsuit had several defendants and included multiple counterclaims, but
pertinent to this appeal is plaintiff’s fourth amended complaint, where she brought wrongful
*
Justice Pierce was substituted for Presiding Justice McBride after oral argument and has read all
of the briefs and has listened to the audio recording of the oral argument.
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death and survival actions against Howe and Hiner, by and through their former employees,
Langholf and Terrell, respectively.
¶8 Plaintiff premised her claims against Howe on several alleged negligent acts or omissions,
including Howe’s failure to properly repair and maintain Langholf’s tractor, Howe’s failure to
ensure that Langholf completed a safety training course after he had been involved in another
accident, Langholf’s decision to stop his tractor-trailer on the shoulder of the highway rather
than continue driving to the next highway exit, Langholf’s failure to use reflective warning
triangles behind his tractor-trailer, and Howe’s failure to promptly contact a towing company
to tow Langholf’s tractor-trailer from the highway. Plaintiff premised her claims against Hiner
on multiple alleged negligent acts or omissions, including Terrell’s failure to keep a proper
lookout on the highway, failure to reduce his speed as he approached the vehicles on the
shoulder of the highway, and his collision with the vehicles. Plaintiff claimed that, as a
proximate cause of one or more of these negligent acts or omissions, Inman suffered serious
injuries that resulted in his death. Both Howe and Hiner denied that either they or their
employees had acted negligently.
¶9 B. Pretrial
¶ 10 Three and a half months before trial, plaintiff filed a motion seeking sanctions against
Howe for its failure to produce certain training and maintenance records of Langholf and his
tractor before the depositions of Howe’s former director of safety and maintenance and its
successor director of safety and maintenance. Ultimately, the trial court granted sanctions and
deemed admitted three allegations of negligence in plaintiff’s then-operative third amended
complaint, which were that (1) following a preventable accident, Langholf failed to complete
a required safety training course, (2) Howe failed to ensure that Langholf complied with its
internal policy of completing the safety training course following a preventable accident but
before receiving another dispatch, and (3) Howe and Langholf failed to properly maintain his
tractor when they improperly replaced the turbo two weeks before the accident, which caused
the tractor to become unsafe for highway operation.
¶ 11 Thereafter, plaintiff filed another motion for sanctions against Howe for its failure to
preserve Langholf’s tractor engine and turbo. Ultimately, the trial court granted new sanctions
and deemed admitted the allegation in plaintiff’s now-fourth amended complaint that Howe
and Langholf failed to properly maintain the tractor engine, including the turbo, which caused
it to become unsafe for highway operation in violation of section 396.7(a) of the Federal Motor
Carrier Safety Regulations (FMCSR) (49 C.F.R. § 396.7(a) (2011)). The court also affirmed
the deemed admitted allegations from the first sanctions order concerning the safety training.
¶ 12 In the week before trial, now with the trial judge presiding over the case (Judge Thomas J.
Lipscomb), Howe filed a motion to reconsider the imposition of discovery sanctions by the
motion judge (Judge James N. O’Hara). The trial judge denied the motion.
¶ 13 The parties also filed several motions in limine, but relevant to this appeal were plaintiff’s
motion in limine No. 32 and Howe’s motions in limine Nos. 35 and 37.
¶ 14 Plaintiff’s motion in limine No. 32 sought to bar eyewitness Franklin Green from testifying
at trial that Terrell passed him on the highway before the accident and was not wearing a shirt,
but after the accident, when Green went to render aid at the scene, he observed that Terrell was
pinned in his seat but wearing a shirt. The trial judge granted the motion and barred this
testimony.
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¶ 15 Howe’s motion in limine No. 35 sought, in part, to bar plaintiff’s expert witness from
offering an opinion that, despite the engine issues, Langholf’s truck could have reached the
next highway exit. The trial judge denied the motion as it related to this opinion.
¶ 16 Howe’s motion in limine No. 37 sought to bar, in part, any assertion that a violation of its
purported internal policy requiring a driver to complete a safety training course after a
preventable accident but before receiving another dispatch established a standard of care that,
if breached, constituted negligence. The trial judge denied the motion as it related to
establishing a standard of care, relying on the motion judge’s earlier sanctions order that
deemed admitted the allegation regarding Howe’s failure to ensure that Langholf complied
with its internal policy of completing the safety training course.
¶ 17 Before trial, the trial judge determined that a high-low settlement between plaintiff and
Hiner was made in good faith and dismissed contribution counterclaims between Howe and
Hiner. Additionally, before trial, plaintiff voluntarily dismissed Hiner Equipment, LLC.
¶ 18 C. Trial
¶ 19 1. Commercial Trucking and Regulations
¶ 20 At trial, the evidence revealed that Howe and Hiner, as commercial motor vehicle
companies, and Langholf and Terrell, as operators of semi-tractor trailers, were required to
follow the FMCSR. Langholf owned his tractor but leased it to Howe pursuant to an agreement,
under which Howe became fully responsible for the operation of the tractor. As well, under
the FMCSR, Langholf was considered an employee of Howe. Multiple FMCSR regulations
were presented at trial.
¶ 21 One regulation prohibited the operation of a motor vehicle in a condition likely to cause an
accident or breakdown of the vehicle. However, if that vehicle was discovered to be in an
unsafe condition while being operated on the highway, the regulation allowed drivers to
continue operating the vehicles until reaching the nearest place where repairs could safely be
performed, but only if continuing to operate the vehicle was safer than remaining on the
highway. There was unanimous agreement among the trial witnesses concerning this
regulation. For one, they agreed the regulation allowed drivers to “limp” their vehicle forward,
meaning if they had an issue with their engine, but still had power, they could continue driving
but at a reduced speed until reaching a point of safety. The witnesses also agreed that being
parked on the shoulder of the highway was dangerous and the danger increased the longer the
vehicle remained on the shoulder. But the witnesses further noted that being parked on the
shoulder was safer than being parked in a lane of traffic.
¶ 22 Another regulation required drivers to keep specific warning devices in their vehicles: three
reflective warning triangles or either six fusees or three flares. According to an expert at trial,
fusees and flares were much rarer than the triangles because the fusees and flares could only
be used for a finite period of time. Another regulation detailed how the warning devices were
to be used. The regulation required drivers who had stopped their vehicles on the shoulder of
the highway to immediately activate their hazard warning signal flashers. Within 10 minutes
of stopping, drivers were required to place their warning devices in specific locations around
their vehicles, the arrangement depending on the type of roadway on which they were located.
According to the regulation, hazard warning signal flashers could be used, but not in lieu of
the reflective warning triangles, fusees, or flares.
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¶ 23 2. Before the Accident
¶ 24 On September 7, 2011, Langholf was involved in an accident that Howe later deemed to
be preventable. Following the accident, Langholf did not complete a safety training course. At
trial, David Grimm, who became Howe’s director of safety and maintenance in October 2011,
testified that, in September 2011, there was no requirement by Howe for its drivers to complete
a safety training course following a preventable accident but before receiving another dispatch.
However, Grimm agreed that, during a deposition, he testified there was such a policy and, had
Howe adhered to it, Langholf would not have received another dispatch until completing the
safety training course.
¶ 25 On September 13, 2011, Langholf was driving westbound on Interstate 80 near mile marker
188—close to Grinnell, Iowa—hauling steel coils on a flatbed semi-tractor trailer. That stretch
of Interstate 80 was a divided highway, with two lanes of traffic eastbound and two lanes
westbound. The highway had slight hills but was fairly straight with no curves. From mile
marker 188, the next highway exit westbound was between five and six miles away.
¶ 26 At approximately 5 p.m., Langholf called Howe, where Margaret O’Brien, Howe’s director
of safety and maintenance at the time, answered. O’Brien told Grimm, Howe’s shop foreman
at the time who was training to take O’Brien’s position, to take the call. Because Howe used a
two-way cell phone, O’Brien could hear the ensuing conversation between Langholf and
Grimm. According to both O’Brien and Grimm, Langholf reported that he had engine trouble,
pulled onto the shoulder of the highway, and turned off the engine. According to Grimm,
Langholf said that he heard a pop accompanied by a shake of his engine, and according to
O’Brien, Langholf said that he had black smoke emanating from his tractor. At trial, Grimm
agreed that Langholf still had engine power by virtue of him being able to manually drive onto
the shoulder. After pulling over, Langholf was unable to restart his engine. Grimm
subsequently gave Langholf the number of Cummins, the manufacturing company of his
tractor’s engine, who had a repair shop in nearby Des Moines, Iowa. Although Grimm’s shift
was ending at the time he took the call from Langholf, Grimm explained at trial that he gave
Langholf the number of Cummins because its employees would have the expertise to
troubleshoot his engine issue. The phone call between Grimm and Langholf lasted two
minutes, and neither Grimm nor O’Brien called a tow truck for Langholf. At trial, Grimm
acknowledged that he should have immediately called the nearest towing company.
¶ 27 At approximately 5:45 p.m., Justin Schwarz, a dispatcher for Hanifen towing company in
Des Moines, received a call from Langholf, who needed to be towed to Cummins because his
“turbo had gone out.” Cummins had apparently given Langholf the number for Hanifen, which
was located approximately 53 miles away from Langholf. There were at least two other towing
companies closer to Langholf than Hanifen: Doc’s in Brooklyn, Iowa, and Barney’s in Newton,
Iowa. Doc’s was roughly 10 miles away from Langholf while Barney’s was roughly 24 miles
away. But because semi-tractor trailers were extremely large, only heavy duty tow trucks had
the capability to tow them. Doc’s had the capability, but there was some evidence at trial that
Barney did not.
¶ 28 Schwarz informed Langholf that he would dispatch two tow trucks as soon as possible.
Schwarz needed two because, according to Iowa law, one tow truck could not tow both a tractor
and its trailer, so he called Walsh and Inman. Walsh, who lived in Des Moines, was home
when he received the call, but he needed to drive to Hanifen in order to pick up his tow truck.
Inman took the call while finishing another tow job in Altoona, Iowa, near mile marker 142. It
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is unclear exactly when Walsh and Inman arrived at the scene, but it appears both arrived at
some point between 6:30 p.m. and 7 p.m. When Walsh arrived, he parked his tow truck on the
shoulder of the highway some 100 to 150 feet behind Langholf’s truck. When Inman arrived,
he parked his tow truck on the shoulder of the highway in front of Langholf’s truck.
¶ 29 3. The Accident
¶ 30 At around 7 p.m., Elaine Schellhorn was driving her semi-tractor with a side dump trailer
westbound on Interstate 80 near mile marker 188. The traffic was “very heavy” and it was
“very sunny.” The sun was positioned below the visor of her truck, which made it “very hard”
for her to see and “probably” affected her vision. Schellhorn was in the right lane adjacent to
the shoulder and driving behind Terrell’s truck with about three truck lengths between them,
which prevented her from seeing ahead of his truck. Schellhorn had been following Terrell for
some time but was not exactly sure how long. She was driving roughly 65 miles per hour and
estimated Terrell to be driving the same. She had not noticed any erratic driving by Terrell.
¶ 31 Suddenly, Schellhorn observed Terrell’s truck fishtail and drive into a ditch on the right
side of the road. Based on Terrell’s location, her straight-ahead view was obstructed and she
could not see the vehicles on the shoulder, and she never witnessed his truck contact any of the
trucks on the shoulder. She also did not recall seeing his truck use a turn signal, use its brakes,
slow down, or attempt to move into the left lane immediately before the crash. After the crash,
Schellhorn slowed down, stopped on the shoulder and reported the accident. She remained at
the scene for three hours after the accident but did not give a statement to the police on the
scene.
¶ 32 At around 7 p.m., Green was also driving a semi-tractor trailer westbound on Interstate 80
in the right lane. The setting sun did not affect his vision or view of the road. As Green was
driving up a slight elevation on the highway between 60 and 62 miles per hour, he noticed
Terrell’s truck passing him in the left lane. Green estimated that Terrell was driving between
63 and 70 miles per hour. According to Green, the posted speed limit was 70 miles per hour
and the minimum speed was 40 miles per hour. In front of Green on the road was a dump trailer
and in front of that truck was a 13-foot van trailer. Because the dump trailer sat lower to the
ground, it did not obstruct Green’s vision, but the van trailer did at times. At the top of the
slight elevation, as Terrell passed Green, Green observed vehicles on the right shoulder
between a half mile to a little over a mile away with their lights flashing. From his vantage
point, he could see that no parts of the vehicles were protruding over the fog line—the line
separating the shoulder of the highway from the lanes of traffic—though he acknowledged at
trial that the vehicles could have been right on the fog line. Green did not observe any reflective
warning triangles behind the vehicles.
¶ 33 Eventually, Terrell passed the two trucks ahead of Green, after which Terrell moved his
truck into the right lane. At this point, Green estimated that his own truck was roughly one-
eighth of a mile away from the vehicles on the shoulder. Within seconds of Terrell moving
into the right lane and some 8 to 20 seconds after Terrell had passed him, Green observed a
plume of steam and debris. Although Green could not see the back of Terrell’s truck after it
moved into the right lane and did not know if Terrell had attempted to brake, Green could tell
that Terrell did not activate his turn signal, as there was a mid-light on the truck that would
have lit up. Prior to the accident, nothing about Terrell’s driving caused Green to be concerned,
and as far as he could tell, Terrell had moved into the right lane properly. According to Green,
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had there been glare from the sun, there would have been no trucks to shield Terrell from the
glare. Once Green passed the accident, he moved onto the shoulder, parked, and called 911.
Afterward, he exited his vehicle and proceeded to the scene of the accident.
¶ 34 4. After the Accident
¶ 35 At approximately 7:05 p.m., Poweshiek County Deputy Sheriff Jonathan Cheney and Tisha
Miller, an emergency medical technician, received calls about a traffic accident. Cheney
immediately drove to the scene, and as he was driving westbound on Interstate 80, he observed
that the sun was “very bright” and, at times, “overpowering.” Often at that time in the evening,
the sun’s brightness was so overpowering that, even when Cheney wore sunglasses, he would
also have to use his hand to shield the sun. During such conditions, Cheney would often park
on the shoulder and perform speed traps because the sun would help conceal his presence.
¶ 36 When Cheney arrived at the scene some 10 minutes after receiving the call, he noticed the
lights on the back of Walsh’s tow truck were flashing and then immediately began looking for
victims. Cheney observed Inman, who was completely covered in a white sheet and laying on
his stomach, indicating to Cheney that he had already passed away. However, Cheney observed
that Inman’s body was moving, so he rushed over to Inman, removed the cover, and saw that
Inman was still alive. Cheney comforted Inman until medical professionals arrived.
¶ 37 Emergency medical technician Miller arrived at the scene around 7:16 p.m. and three
minutes later encountered Inman lying between his tow truck and Langholf’s truck. Although
Inman was pale, his eyes were open, he was conscious, and he was able to communicate with
Miller, though not conversationally. Miller observed that Inman’s body was mangled with
various serious injuries. Inman was placed on a backboard and transported onto an ambulance.
Shortly afterward, Inman began to have breathing problems and passed away at 7:52 p.m. Dr.
Michele Catellier performed an autopsy on Inman and determined his cause of death was blunt
force trauma injuries to the abdomen, pelvis, and extremities. Dr. Catellier noted, however,
that his brain and head were intact.
¶ 38 5. The Investigation
¶ 39 Iowa State Patrol Sergeant Christopher Starrett, who led the investigation into the cause of
the accident, arrived at the scene at 8:11 p.m. He observed that both Inman and Walsh’s tow
trucks had their hazard lights activated. On Walsh’s tow truck, Starrett observed that the left
mirror had broken off and there was extensive damage to the left tires. As part of the
investigation, Starrett took several photographs of the scene of the accident that night and the
following morning as well as several measurements of the vehicles and the road. Many of the
photographs he took he later characterized as horrible. The day after the crash when Starrett
returned to the scene, he spent three or four minutes there and observed for the first time gouge
and scrub marks on the ground where Walsh’s tow truck had been that were located very close
to the fog line. He did not take a photograph of the marks that morning and did not measure
them because it was too unsafe with the traffic conditions.
¶ 40 Despite the lack of physical measurements, Starrett visually estimated the distance from
the gouge and scrub marks to the roadway and determined that Walsh’s tow truck was about 6
to 12 inches off the road, though he did not attempt to determine how far Walsh’s left mirror
would have been from the roadway. Starrett likewise visually estimated where Langholf’s
vehicle was in relation to the roadway and determined it was about two feet away. The shoulder
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itself was 10 feet wide. At trial, Starrett testified that, although he did not observe the gouge
and scrub marks on the ground the night of the accident, one photograph he took that night
revealed marks on the ground. Starrett further testified that, in the photograph, there was a
mark on the fog line, but he never determined what it was.
¶ 41 As part of Starrett’s investigation, he interviewed three witnesses: Schellhorn, Green, and
Dawn Rietman, who other evidence at trial indicated was behind Terrell’s truck in the left lane
shortly before the accident. Schellhorn reported that the sun was in her eyes and terrible, but
that she could nonetheless see about 300 feet ahead of her. Green reported that the sun was not
an issue for him and that he could see the lights of Walsh’s tow truck from about a half-mile
to mile away. Rietman, whom Starrett interviewed twice, also reported that the sun was not an
issue, but at trial, Starrett agreed that, because she was behind Terrell’s truck, there was a
strong possibility that his truck shielded her from the sun. In Rietman’s first interview, which
occurred two weeks after the accident, she stated that Terrell’s vehicle had sideswiped Walsh’s
tow truck, but in her second interview, which occurred three days later, she told Starrett that
she did not see Terrell’s vehicle sideswipe Walsh’s tow truck.
¶ 42 At the conclusion of Starrett’s investigation, he determined that Terrell’s truck had moved
from the right lane of traffic onto the shoulder and sideswiped Walsh’s tow truck with the
initial point of contact being Terrell’s right steering tire against Walsh’s left steering tire. When
this occurred, the right steering tire of Terrell’s truck was cut, causing it to lose air pressure
immediately and blow. This caused Terrell’s truck to run into the trailer of Langholf’s truck,
which forced Langholf’s truck into Inman’s tow truck. Terrell’s truck ultimately fell into a
ditch. During the collision, Walsh, Inman, and Langholf were all standing in various places on
the shoulder. Though the mirror of Walsh’s tow truck broke off, Starrett could not determine
when in the chronology of the collision that happened. Starrett did not believe that the reason
why Langholf’s truck was on the shoulder played a role in the cause of the accident.
¶ 43 At trial, Starrett was unsure if reflective warning triangles had been placed behind
Langholf’s truck, but he saw no evidence of them and never found any. However, Starrett
explained that, in his experience, when a tow truck arrives at the scene behind a semi-tractor
trailer, the semi-tractor driver will pick up the warning triangles so that the vehicles can be
moved off the highway quickly. Starrett further noted that, while a tow truck’s hazard lights
could not act as a substitute for warning triangles, such lights nevertheless provided an
effective warning for oncoming traffic. Starrett did agree that, had the warning triangles been
placed in the appropriate locations, one triangle would have been behind where Walsh
ultimately parked his tow truck.
¶ 44 6. The Trial Experts
¶ 45 Whitney Morgan, plaintiff’s expert, worked for the United States Department of
Transportation in its Bureau of Motor Carrier Safety, now called the Federal Motor Carrier
Safety Administration, as a special agent for several years before starting his own motor carrier
safety consulting business. Morgan had been involved in the transportation safety business for
over 40 years. Morgan testified that, because it had been deemed admitted that Langholf’s
engine had been improperly maintained, its compromised function violated the FMCSR.
Morgan acknowledged that a compromised vehicle could limp forward to the nearest place of
safety if limping forward was safer than remaining on the highway, but he did not see any
evidence to suggest that Langholf attempted to limp forward. Morgan, however, conceded that
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he did not know what exactly went wrong with Langholf’s vehicle or what the capabilities of
his engine were and there was no specific evidence to indicate that Langholf could have
actually limped along to the next exit. Morgan agreed that, had Langholf’s engine been on fire,
pulling over would have been proper, but noted though that a blown turbocharger could have
caused smoke but would not have caused a fire. Morgan testified that, based on the materials
from the case he reviewed, there was no evidence that reflective warning triangles had been
placed behind Langholf’s truck.
¶ 46 Overall, Morgan determined that Langholf’s failure to place the triangles behind his truck,
his failure to attempt to exit the highway once his engine began to have issues, Howe’s
substandard maintenance, and Howe allowing Langholf to be dispatched after a preventable
accident without taking a safety training course all contributed to, or caused, the crash and
resulting injuries and death to Inman. Regarding Terrell’s driving, Morgan identified multiple
deviations from the best practices of commercial driving, including Terrell’s failure to keep a
proper lookout of the road ahead, his failure to practice proper hazard perception, and his
failure to slow down as he approached the vehicles on the shoulder. Although Morgan believed
that Terrell did not keep a proper lookout, Morgan believed that the setting sun would have
impeded Terrell’s vision of the trucks’ flashing lights. Morgan also believed it was possible
that Terrell drove too close to the fog line, which caused his vehicle to sideswipe Walsh’s tow
truck. Morgan opined that Terrell’s deviations from the best practices of commercial driving
were also contributing causes to the accident. Morgan agreed that, had Terrell stayed in his
lane or moved over to the left lane, the accident would not have happened, at least with Terrell
initiating it.
¶ 47 James Whelan, Howe’s expert, was a mechanical engineer and accident reconstructionist,
who had investigated or reconstructed hundreds of accidents over his career, including many
involving trucks. Based on his review of the materials in the case, Whelan determined that,
before the accident, Walsh’s tow truck was parked on the shoulder eight or nine inches away
from the fog line and not parked crookedly. Whelan acknowledged that, when Walsh would
have opened the door of his tow truck, the door would have been in a lane of traffic and that it
was possible Walsh’s left mirror was over a lane of traffic. But Whelan noted that, according
to a postaccident statement from Franklin Green, there was enough room for someone to walk
between Walsh’s tow truck and the fog line. Whelan determined that Langholf’s vehicle was
parked on the shoulder nearly two feet away from the fog line.
¶ 48 As for the accident itself, Whelan concluded that the accident was initiated when Terrell’s
truck crossed over the fog line, causing it to sideswipe Walsh’s tow truck. Although Whelan
could not conclusively determine where the initial point of impact was due to the extensive
damage on Terrell’s truck, Whelan believed it was either the front right bumper or front right
steering wheel of Terrell’s truck making contact with the back of Walsh’s tow truck. After
Terrell sideswiped Walsh’s tow truck, Terrell lost control of his truck and rear-ended
Langholf’s truck, which forced that vehicle into Inman’s tow truck. Whelan did not believe
that the initial impact was between Terrell’s front right steering wheel and Walsh’s front left
steering wheel because of certain paint transfer evidence. Whelan also rejected the notion that
the initial impact was with Walsh’s left side mirror, explaining that, if true, Terrell would have
maintained a straight direction of travel and the chain-reaction collision would not have
occurred.
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¶ 49 Whelan concluded that Terrell, and only Terrell, caused the accident when he failed to keep
a proper lookout of the road ahead of him. According to Whelan, Terrell should have stayed
in the left lane when passing by the vehicles on the shoulder or, at the very least while in the
right lane, slowed down and stayed in his lane. Because of this, Whelan determined that the
reason Langholf ended up on the shoulder played no role in the cause of the accident. Although
Whelan agreed that there was no evidence that the reflective warning triangles had been used,
he believed the flashing lights of the tow trucks provided an effective warning to oncoming
traffic and based on the circumstances, the vehicles on the shoulder were plainly visible.
Concerning Langholf’s engine, Whelan noted that Langholf’s semi-tractor trailer weighed a
combined 72,000 pounds. Using this weight, Whelan performed a horsepower loss calculation
and concluded that, with a loss of turbo power, it was “not likely” Langholf’s vehicle could
have limped along to the next highway exit while maintaining the minimum speed limit. And
even if Langholf had attempted to limp along on the shoulder of the highway, it would have
still presented a dangerous situation.
¶ 50 7. Jury Instructions
¶ 51 After testimony and closing arguments, the trial judge gave the jury several instructions,
including that Langholf and Terrell were agents of Howe and Hiner, respectively, and therefore
any act or omission on their part was imputed to Howe and Hiner. Concerning the allegations
of negligence, the instructions informed the jury that plaintiff alleged Howe was negligent
when (1) it failed to ensure that Langholf completed a safety training course following his
preventable accident but before receiving another dispatch, (2) it failed to properly repair or
maintain the engine of Langholf’s tractor, (3) Langholf failed to use reflective warning
triangles, (4) Langholf performed diagnostics on the shoulder of the highway, (5) it failed to
contact a towing company in close proximity to Langholf, and (6) Langholf chose to stop on
the shoulder of the highway while his truck was capable of continuing to operate. Another
instruction told the jury that plaintiff’s first and second allegations of negligence against Howe
had been deemed admitted, but Howe denied the remaining allegations and that any of its
alleged acts or omissions, including the two deemed admitted, were a proximate cause of
Inman’s injuries.
¶ 52 Regarding Hiner, the instructions informed the jury that plaintiff alleged Hiner was
negligent when Terrell (1) operated his truck without keeping a proper lookout, (2) operated
his truck without reducing his speed to a reasonable rate upon approaching the vehicles on the
shoulder of the highway, and (3) hit Walsh’s tow truck. The instructions also defined
proximate cause and informed the jury of the relevant regulations of the FMCSR. The trial
judge further provided the jury with a special interrogatory that asked if any act or omission of
Howe proximately caused the injuries and death of Inman.
¶ 53 8. Verdict
¶ 54 Following deliberations, the jury returned a verdict finding both Howe and Hiner liable
and apportioning that liability at 57% and 43%, respectively. The jury awarded plaintiff
$19,010,273 in total damages. Regarding the special interrogatory, the jury answered in the
affirmative that an act or omission of Howe proximately caused the injuries and death to Inman.
The trial judge subsequently entered judgment in accordance with the jury’s verdict.
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¶ 55 D. Posttrial
¶ 56 Thereafter, Howe filed a posttrial motion primarily arguing that it was entitled to a
judgment notwithstanding the verdict because plaintiff failed to establish that the acts and
omissions alleged against it proximately caused Inman’s injuries and death. In the alternative,
Howe argued that it was entitled to a new trial on several grounds, including that (1) the jury’s
verdict and answer to the special interrogatory were against the manifest weight of the
evidence, (2) the motion judge erred in entering the discovery sanctions and the trial judge
erred in refusing to reconsider those sanctions, and (3) the trial judge erred with respect to its
rulings on plaintiff’s motion in limine No. 32 and Howe’s motions in limine Nos. 35 and 37.
Further, in the alternative, Howe sought a setoff of the damages award to account for plaintiff’s
pretrial settlement with Hiner as well as her pretrial settlement with additional parties. The trial
judge ultimately denied Howe’s posttrial motion in most respects but did grant Howe a setoff
in the amount of $1,275,000 against the total damages award.
¶ 57 Howe timely appealed. Although both plaintiff and Hiner are appellees in this appeal, only
plaintiff has filed a brief.
¶ 58 II. ANALYSIS
¶ 59 A. Judgment Notwithstanding the Verdict
¶ 60 Howe first contends that the trial judge erred in denying its motion for a judgment
notwithstanding the verdict because plaintiff failed to show that the acts and omissions alleged
against it proximately caused the injuries and death to Inman. Howe argues that, despite all of
the allegations of negligence, nothing it did or did not do caused Terrell’s truck to leave his
lane of traffic, cross onto the shoulder, and initiate the chain-reaction collision.
¶ 61 A motion for a judgment notwithstanding the verdict will be granted only where all of the
evidence, when viewed in the light most favorable to the nonmoving party, so overwhelmingly
favors the movant that no contrary verdict could ever stand. Lawlor v. North American Corp.
of Illinois, 2012 IL 112530, ¶ 37. Stated another way, the motion should be granted only
“ ‘when all of the evidence is considered, together with all reasonable inferences from it in its
aspect most favorable to the plaintiff[ ], there is a total failure or lack of evidence to prove any
necessary element of the [plaintiff’s] case.’ ” York v. Rush-Presbyterian-St. Luke’s Medical
Center, 222 Ill. 2d 147, 178 (2006) (quoting Merlo v. Public Service Co. of Northern Illinois,
381 Ill. 300, 311 (1942)). As long as there is some evidence that supports the jury’s verdict, a
judgment notwithstanding the verdict is improper. Vanderhoof v. Berk, 2015 IL App (1st)
132927, ¶ 62. We review the trial court’s denial of a motion for a judgment notwithstanding
the verdict de novo. Lawlor, 2012 IL 112530, ¶ 37.
¶ 62 As both plaintiff’s survival and wrongful death actions were based on negligence, she was
required to prove that (1) Langholf and Howe owed a duty of care, (2) Langholf and Howe
breached that duty of care, and (3) the breach was the proximate cause of Inman’s injuries or
death. First Springfield Bank & Trust v. Galman, 188 Ill. 2d 252, 256 (1999). Howe has not
contested the first two elements, but instead focuses on the proximate cause element, which
generally “is defined as a cause that, in the ordinary course of events produced the plaintiff’s
injury.” Atchley v. University of Chicago Medical Center, 2016 IL App (1st) 152481, ¶ 45.
Ordinarily, the determination of proximate cause is a question of fact to be determined by the
trier of fact, though when the facts proven at trial do not legally entitle the plaintiff to a
recovery, the court may rule on proximate cause as a matter of law. Abrams v. City of Chicago,
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211 Ill. 2d 251, 257-58 (2004). Proximate cause has two components: cause in fact and legal
cause. Turcios v. The DeBruler Co., 2015 IL 117962, ¶ 23.
¶ 63 Cause in fact examines the reasonable certainty that the defendant’s conduct caused the
injury. Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 455 (1992). There may be more than
one proximate cause of an injury (Rivera v. Garcia, 401 Ill. App. 3d 602, 611 (2010)), and that
cause “need not be the only, last or nearest cause; it is sufficient if it occurs with some other
cause acting at the same time, which in combination with it, causes injury.” Leone v. City of
Chicago, 235 Ill. App. 3d 595, 603 (1992). When an injury does not result directly from the
conduct of the defendant but rather a subsequent, independent act of a third party, we utilize
the substantial factor test to determine if cause in fact exists. Kramer v. Szczepaniak, 2018 IL
App (1st) 171411, ¶ 27. Under this test, the defendant’s conduct will be considered a cause if
it “was a material element and a substantial factor in bringing about the injury.” Young v. Bryco
Arms, 213 Ill. 2d 433, 446 (2004). A defendant’s conduct is a material element and substantial
factor in causing an injury “if, absent that conduct, the injury would not have occurred.”
Abrams, 211 Ill. 2d at 258.
¶ 64 When dealing with the possible concurrent negligence of multiple parties, our supreme
court has warned that we must distinguish between the cause of an injury and a condition that
merely made the injury possible. Galman, 188 Ill. 2d at 257. Under the cause-condition
dichotomy, if the alleged negligent acts only “furnish a condition by which the injury is made
possible, and that condition causes an injury by the subsequent, independent act of a third
person, the creation of the condition is not the proximate cause of the injury.” Id.Distinguishing between the two, however, is essentially the same analysis we employ in
determining if cause in fact exists. Kramer, 2018 IL App (1st) 171411, ¶ 31.
¶ 65 In discussing cause in fact, Galman is instructive. There, a truck driver illegally parked his
tanker truck on the street 41 feet from the intersection with another street. Galman, 188 Ill. 2d
at 254. A student was leaving a nearby high school and instead of crossing the street at the
crosswalk, she attempted to cross in the middle of the block in front of the tanker truck. Id.While crossing, she was struck by another vehicle whose view was obstructed by the presence
of the tanker truck. Id. at 255. The student died, and the plaintiff, on behalf of the decedent’s
estate, sued the truck company and its driver, arguing that their negligence from illegally
parking the truck was a proximate cause of the decedent’s death. Id. 255-56. The defendants
argued that the parked truck did not proximately cause the decedent’s injuries because it merely
furnished a condition by which the injury was made possible and instead, the decedent’s
negligent jaywalking and the driver’s negligent driving were intervening and superseding
causes of her injuries. Id. at 257.
¶ 66 Our supreme court reviewed the issue of proximate cause and initially noted that the cause-
condition dichotomy was merely another way of presenting the cause-in-fact analysis. See id.
at 259. The court then discussed whether cause in fact existed and concluded that, had the truck
driver not parked his truck illegally on the street, the decedent’s “injuries almost certainly
would not have occurred.” Id. at 260. Although she may have still crossed the street in the
middle of the block, without the obstruction of the truck, the decedent would have had a clear
view of the roadway and “presumably would have timed her crossing to avoid a collision.” Id.¶ 67 In this case, had Langholf and Howe’s conduct that resulted in Langholf’s truck being on
the shoulder of the highway or had their conduct that kept Langholf’s truck on the shoulder of
the highway for some two hours not occurred, Inman certainly would not have been injured
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and died. Had Howe adhered to its purported policy of requiring drivers to complete a safety
training course following a preventable accident but before receiving another dispatch,
Langholf would not have been on road that day. Had Howe properly maintained or repaired
Langholf’s tractor, including the engine and turbo, Langholf would not have been forced to
pull over onto the shoulder of the highway. Had Howe contacted a local towing company
immediately after Langholf pulled onto the shoulder of the highway, such as Doc’s, which was
only 10 miles away and had the capability to tow a semi-tractor trailer, Inman would not have
been dispatched to tow Langholf’s truck and Langholf’s truck would have very likely been off
the highway around 7 p.m. when the accident occurred. Had Langholf limped forward on the
highway, which there was some evidence he could have done based on still having engine
power, rather than pulling onto the shoulder, Langholf clearly would not have been on the
shoulder of the highway. Lastly, there was some evidence presented that, had Langholf used
reflective warning triangles, the accident could have been avoided given the extreme glare of
the sun that day, which might have masked the tow trucks’ hazard lights. In sum, although we
do not know which of the alleged negligent conduct of Langholf and Howe the jury determined
to have proximately caused Inman’s injuries, it is clear that Howe and Langholf’s conduct was
a material and substantial factor in causing them. Consequently, cause in fact exists in this
case.
¶ 68 Now we turn to the second component of proximate cause, legal cause, which requires an
analysis of foreseeability and “whether the injury is the type of injury that a reasonable person
would see as a ‘likely result’ of his or her conduct, or whether the injury is so ‘highly
extraordinary’ that imposing liability is not justified.” Turcios, 2015 IL 117962, ¶ 24 (quoting
Lee, 152 Ill. 2d at 456). Stated another way, “legal cause[ ] is established only if the defendant’s
conduct is so closely tied to the plaintiff’s injury that he should be held legally responsible for
it.” (Internal quotation marks omitted.) City of Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d
351, 395 (2004). When one party’s negligence is premised upon the subsequent negligent act
of a third party, as is the case here, the critical question is whether the intervening cause was
of a type that a reasonable person could conclude as a likely result of his conduct. Galman,
188 Ill. 2d at 259.
¶ 69 Howe acknowledges that the accident may not have happened without the presence of
Langholf’s truck on the shoulder of the highway. Regardless, however, Howe argues that the
circumstances did not establish it was the legal cause of the accident because it was not
reasonably foreseeable that, a result of it and Langholf’s conduct, Terrell would veer from a
lane of traffic onto the shoulder of the highway, collide with a clearly visible tow truck, and
cause the injuries and death to Inman. Citing to Galman, Howe posits that that Terrell’s actions
were entirely of his own making.
¶ 70 In Galman, although our supreme court found cause in fact existed, it still had to determine
whether the illegal parking of the truck was the legal cause of the decedent’s injuries. Id. at
260. The court posed the specific question of whether it was reasonably foreseeable that
illegally parking in the middle of the road “would likely result in a pedestrian’s ignoring a
marked crosswalk at the corner, walking to mid-block, and attempting to cross a designated
truck route blindly and in clear violation of the law.” Id. at 261. Answering that question, the
court concluded that the decedent’s decision to jaywalk “was entirely of her own making” and
the defendants could not have reasonably foreseen her decision as a result of parking illegally.
Id.- 13 -
¶ 71 However, what is reasonably foreseeable is a context-dependent inquiry. See Kramer, 2018
IL App (1st) 171411, ¶ 47. The context in this case was an extremely dangerous scenario: large
vehicles on the shoulder of the highway in the direction of travel of a setting sun. At trial, not
one witness, including Howe’s own, disputed the notion that being parked on the shoulder of
the highway, particular for a large semi-tractor trailer, was extremely dangerous. Howe and
Langholf’s conduct left his truck in a position of danger for not only himself but to Inman and
Walsh and oncoming drivers, such as Terrell. Langholf’s stopping in a place of danger was
exacerbated by the circumstances. Schellhorn considered the traffic on Interstate 80 that
evening to be heavy, and the sun was setting directly in the eyes of westbound drivers. Though
Green and Rietman, westbound drivers at the time of the accident, did not believe the sun
affected their vision, Schellhorn and Cheney remarked that the sun was terrible. Given the
combination of the location of Langholf’s vehicle and the conditions during the evening of the
accident, the circumstances were ripe for an accident to occur.
¶ 72 Though drivers, especially truck drivers as the evidence in this case established, are
required to maintain control of their vehicles and keep a proper lookout for obstacles in the
road ahead, common experience shows that drivers do not always do so. See Martinelli v. City
of Chicago, 2013 IL App (1st) 113040, ¶ 30 (observing that “it is well known that people do
various things that lead to distracted driving,” including “spilling a drink; dropping a cigarette;
reaching for an item of food or drink; applying makeup; looking at a map; looking for loose
change on the seat; or looking away from the roadway for any number of other reasons”).
Obviously, in this case, Terrell did not survive the crash, and no one will know why he veered
from his lane of traffic onto the shoulder and collided with Walsh’s truck. But highway drivers
veer away from their lanes of traffic for a multitude of reasons. See Vosbein v. E.T. Simonds
Construction Co., 295 Ill. App. 3d 427, 430 (1998) (finding it was reasonably foreseeable that
a vehicle would leave the interstate highway and enter the grassy median between the divided
highway). Not all of these driving mishaps result in traffic accidents but surely many do. It is
reasonably foreseeable that a large truck driving upwards of 70 miles per hour could veer from
its lane of traffic momentarily.
¶ 73 This risk is amplified during certain circumstances, as exemplified by this court’s decision
in Smith v. Armor Plus Co., 248 Ill. App. 3d 831, 832 (1993), which involved a collision
between a truck and another vehicle on the highway. The defendant had parked his truck on
the shoulder of the highway after it became disabled and abandoned it but failed to place any
warning devices on the road. Id. at 833, 835. The truck was completely off the roadway with
its rear wheels actually in the grassy area of the highway. Id. at 834. That day, it had been
snowing, heavily at times, and there was evidence that the roadway was icy. Id. at 834-35.
However, closer to the time of the accident, there was evidence that the highway was clear of
snow and no longer icy. Id. at 836-37. At around 12:40 a.m., another vehicle collided with the
truck in which the passenger was killed. Id. at 833. The plaintiff, on behalf of the decedent,
sued the truck driver and his employer, alleging that the decedent’s injuries were the result of
the truck driver’s failure to remove the truck from the shoulder within a reasonable time, failure
to place warning devices behind the truck as required by law, and parking of the vehicle on the
shoulder rather than the nearest tollway oasis. Id. The trial court granted summary judgment
for the defendants, finding that as a matter of law their actions did not proximately cause the
decedent’s injuries. Id. at 839.
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¶ 74 The appellate court reversed, finding the evidence adduced at that stage in the litigation
created a triable issue of material fact as to whether the truck driver’s decision to abandon his
vehicle “on the shoulder during serious weather conditions without the use of statutorily
required warning devices constituted a proximate cause of the collision.” Id. at 840, 844. The
court asserted that “[t]he mere fact that the truck was entirely off the roadway at the time of
the collision [was] not dispositive” of the issue of proximate causation given “the very
existence of the statutes requiring the use of warning devices when trucks are disabled on a
shoulder.” Id. at 841. As such, the truck’s location did “not by itself demonstrate that the danger
caused by its presence was not reasonably foreseeable.” Id. The court further found that “[i]t
might be reasonably anticipated that during weather conditions impairing visibility a vehicle
might for some reason temporarily stray across the line of the shoulder and strike an unlighted
truck parked in proximity to the lane of traffic.” Id. Although it was unknown why the driver
crossed onto the shoulder, the court concluded “it is not clear that the accident was the result
of any unforeseeable or extraordinarily careless behavior on his part” given the conditions. Id.
at 843.
¶ 75 Though in Smith, the appellate court reversed in part based on the truck being unlit, the
critical analysis from that decision is the finding that the facts and circumstances are critical in
making a decision on proximate cause. See also Kramer, 2018 IL App (1st) 171411, ¶ 47
(finding that, in a legal cause analysis, “[t]he context matters” and “[t]he facts matter”). In this
case, while all of the trucks on the shoulder of the highway had various lights activated, there
was evidence presented at trial showing that those lights could have been obscured by the glare
of the sun. Notably, federal law required truck drivers to be equipped with reflective warning
triangles, flares, or fusees and to use those warning devices, which the evidence established
was most often the triangles, when their trucks have stopped on the shoulder of the highway
for more than 10 minutes, regardless of whether their hazard warning signal flashers had been
activated. 49 C.F.R. §§ 392.22, 393.95 (2011). These regulations are a recognition that, by
themselves, hazard lights, do not obviate the risk associated with highway accidents involving
stopped trucks. See Smith, 248 Ill. App. 3d at 841 (finding that, given “the very existence of
the statutes requiring the use of warning devices when trucks are disabled on a shoulder, the
fact that the truck was entirely off the roadway does not by itself demonstrate that the danger
caused by its presence was not reasonably foreseeable”). This is not a case where a truck was
parked on the side of some rarely traveled country road, this case involved the heavily
trafficked Interstate 80. With the abundance of drivers moving at high rates of speed and the
prevalence of distracted driving, “some ‘negligent driving’ could be reasonably foreseeable.”
Kramer, 2018 IL App (1st) 171411, ¶ 59. When Terrell unfortunately provided that negligent
driving, it interacted with the concurrent negligence of Langholf and Hiner to proximately
cause Inman’s injuries and death.
¶ 76 Although Howe maintains that it and Langholf’s conduct did nothing more than furnish a
passive condition by which Inman’s injuries were made possible rather than furnish a cause of
his injuries, this distinction only carries weight “where the forces set in operation by the
defendant have come to rest in a position of apparent safety, and some new force intervenes.”
Shank v. Fields, 373 Ill. App. 3d 290, 294 (2007). Langholf and Howe’s conduct never resulted
in his tractor trailer coming to a position of apparent safety. Rather the exact opposite is true:
their conduct resulted in his tractor trailer being placed in a position of danger. See Duncan v.
Rzonca, 133 Ill. App. 3d 184, 204 (1985) (observing that the “ ‘forces set in operation,’ ” or
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the first negligent act, only come to rest in a position of apparent safety “when the risk of harm
to the plaintiff created by the defendants’ alleged negligence had passed”).
¶ 77 Howe also has highlighted multiple cases, in particular Salinas v. Werton, 161 Ill. App. 3d
510 (1987), Long v. Soderquist, 126 Ill. App. 3d 1059 (1984), and Sheehan v. Janesville Auto
Transport, 102 Ill. App. 3d 507 (1981), where, according to it, this court purportedly found
that a vehicle stopped on the road off a lane of traffic was not the proximate cause of a traffic
accident as a matter of law. But we find those decisions distinguishable.
¶ 78 Sheehan, 102 Ill. App. 3d at 509, involved a semi-tractor trailer parked in a curb lane of a
city street at close to midnight, which presents far different circumstances than what occurred
here of a semi-tractor trailer parking on the shoulder of a highly trafficked highway during the
early evening hours. Long, 126 Ill. App. 3d at 1061, likewise is factually distinguishable, where
two vehicles had pulled over partially onto the shoulder of an icy highway and later were hit
by the driver of another vehicle who had slipped on the ice and lost control of the vehicle. The
appellate court concluded that the actions of the drivers on the shoulder could not be a
proximate cause of the other driver and his passenger’s injuries because their vehicle had
slipped on ice and the driver could not have avoided a collision and injuries, even if the driver
knew of the presence of the vehicles on the shoulder. Id. at 1064. Conversely, in this case, there
was ample evidence presented that, had Langholf and Howe acted differently, no crash would
have occurred.
¶ 79 Lastly, in Salinas, 161 Ill. App. 3d at 512-13, the defendant drove his tow truck, in which
the plaintiff’s decedent was a passenger, onto the shoulder of the highway to tow out a vehicle
in a ditch. While the defendant activated his emergency lights, he did not utilize any flares. Id.
The decedent was standing behind the tow truck on the shoulder when a van drove off the road,
hitting and killing him. Id. The plaintiff sued, alleging that the defendant had a duty to place
warning flares behind his truck and his failure to do so was a proximate cause of the decedent’s
injuries. Id. at 514. The trial court entered summary judgment in favor of the defendant, finding
that he could not be considered a proximate cause of the injuries as a matter of law. Id.
¶ 80 On appeal, the appellate court agreed, initially observing that the plaintiff had attempted to
establish that the defendant’s failure to use flares prevented the driver of the van from slowing
down and thereby caused him to veer off the road and into the decedent. Id. at 515. However,
the court found the plaintiff’s causal inference was unsupported by the record because her
expert admitted in his deposition that, in forming his opinion about the failure to use flares, he
did not consider any information regarding the speed of the van. Id. Thus, any inference that
using flares would have caused the van to slow down was pure speculation. Id. Additionally,
the appellate court noted that the record was devoid of any evidence as to why the van left the
road and thus, the plaintiff had failed to establish a causal connection between the defendant’s
failure to use flares and the decedent’s injuries. Id. at 515-16.
¶ 81 In contrast to Salinas, here, the lack of reflective warning triangles was only one possible
cause of the accident. In addition, the lack of triangles being a cause of the accident was not
completely speculative, as plaintiff presented some evidence through its expert Whitney
Morgan that, had the triangles been used, the collision could have been avoided. What weight
the jury ascribed to such an opinion is another question, but there was some evidence presented
on the matter.
¶ 82 In sum, the evidence in this case supported the jury’s conclusion that Howe’s conduct
together with the act of Terrell hitting the tow truck proximately caused Inman’s injuries and
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death. Accordingly, the trial judge properly denied Howe’s motion for a judgment
notwithstanding the verdict.
¶ 83 B. Jury’s Verdict and Special Interrogatory
¶ 84 Howe next contends that the trial judge erred in denying its motion for a new trial where
the jury’s general verdict, including its apportionment of liability, and its answer to the special
interrogatory on proximate causation were against the manifest weight of the evidence.
¶ 85 When presented with a motion for a new trial, the trial court must weigh the evidence and
determine if the jury’s verdict is contrary to the manifest weight of the evidence. Lawlor, 2012
IL 112530, ¶ 38. A verdict will be considered against the manifest weight of the evidence only
when “the opposite result is clearly evident or where the jury’s findings are unreasonable,
arbitrary and not based upon any of the evidence.” Id. And we will not reverse the court’s
ruling on such a motion “unless it is affirmatively shown that the trial court abused its
discretion.” Id.¶ 86 In this case, the jury found both Howe and Hiner to be liable for Inman’s injuries and death,
and apportioned the liability between them at 57% and 43%, respectively. Given the facts of
this case, which clearly demonstrated that Howe and Langholf failed to meet their standard of
care through multiple actions and omissions, and the jury’s proper finding that any one of the
acts or omissions proximately caused Inman’s injuries, there was no basis for the trial judge to
conclude that the opposite result was clearly evident or the jury’s findings were not based on
the evidence. Although the judge may have apportioned the liability between Howe and Hiner
differently than the jury in this case, there was ample evidence at trial to support the jury’s
verdict and its answer to the special interrogatory. Consequently, the trial judge properly
denied Howe’s motion for a new trial on this basis.
¶ 87 C. Discovery Sanctions
¶ 88 Howe next contends that the motion judge abused his discretion in ordering the discovery
sanctions and the trial judge erred when it refused to reconsider those sanctions. Before
addressing the specific arguments made by Howe related to the sanctions, we must provide a
background of the discovery in this case.
¶ 89 1. Discovery Background
¶ 90 The fatal collision occurred in September 2011, and plaintiff initiated her lawsuit in April
2012. Three months later, in July 2012, plaintiff propounded written discovery on Howe and
sought all records, including maintenance documents related to Langholf’s tractor and all
training and educational materials provided to Langholf. In response, Howe produced hundreds
of documents. Of those documents, 10 pages related to maintenance of the tractor, including a
1-page maintenance report dated August 30, 2011, detailing that someone had tested
Langholf’s turbo, “found shaft loose,” and replaced the turbo in addition to other work. The
report did not mention who had performed the work. Also included was another one-page
maintenance report dated September 6, 2011, detailing that the lift pump of Langholf’s tractor
had a bad wire and was repaired. That report also did not mention who had performed the
work. Only one document pertained to Langholf’s safety training: a February 2011 e-mail from
O’Brien, Howe’s former director of safety and maintenance, to its third-party training
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contractor requesting an account be set up for Langholf so that he could complete safety
training courses.
¶ 91 Years later, oral discovery commenced. In October 2016, Schwarz, Hanifen towing
company’s dispatcher on the night of the accident, was deposed and testified that Langholf had
called seeking a tow because he thought his turbo had blown. The following month, O’Brien
was deposed, wherein she testified that Howe required its tractors to be inspected every 60
days and 60-day inspection reports should have been produced if requested. During the
deposition, plaintiff’s counsel gave O’Brien the maintenance reports that Howe had produced,
and O’Brien agreed that no inspection reports were included. O’Brien also testified that Howe
worked with a third party who provided training that its drivers were required to complete
monthly.
¶ 92 After O’Brien’s deposition, Grimm, her successor, was deposed. He testified that Howe
maintained 60-day inspection reports, where it would document various issues with its tractors
and general maintenance. According to Grimm, Langholf had purchased his tractor in the
spring of 2011, and it underwent an annual inspection in May 2011, meaning that a 60-day
inspection report was required in July and September 2011. Grimm also testified that, based
on regulations from the United States Department of Transportation, he only had to keep
certain logs for six months and certain maintenance records for one year. Based on these
regulations, Grimm acknowledged that he “probably” purged records specific to Langholf’s
tractor at some point after the accident, including any 60-day inspection reports, resulting in
only 10 pages of maintenance records being produced to plaintiff. Although Howe enacted a
policy to keep such records after a fatal accident beginning around 2014, Grimm was unsure
if a similar policy existed in 2011-13. Grimm additionally discussed various safety protocols
of Howe, including that Langholf was required to complete monthly training courses and
reports were generated showing the completion of the training. Lastly, in September 2011,
according to Grimm, Howe had a policy following preventable accidents that required its
drivers to complete additional training before being dispatched again.
¶ 93 Following Grimm’s deposition, plaintiff propounded an additional request for production
on Howe. On January 12, 2017, the parties entered into an expert witness disclosure schedule,
which required plaintiff’s disclosures within a month. In court that day, Howe produced
hundreds of additional documents concerning, in part, maintenance to Langholf’s tractor and
his safety training. With regard to the latter, Howe provided documents related to the monthly
training required to be completed by its drivers, including logs specific to Langholf.
¶ 94 With regard to the maintenance of Langholf’s tractor, Howe provided several records, such
as a 60-day inspection report from July 2011 that detailed repairs performed and data related
to his tires and brakes. Additionally, there was a day planner with numerous references to
Langholf’s tractor and maintenance on it from May 2011 to September 2011. There were also
the one-page maintenance reports dated August 30 and September 6, 2011, that had previously
been provided as well as work orders and tractor assessment and repair forms from those dates.
¶ 95 Concerning the August 30, 2011, work performed on the tractor, the descriptions of the
work performed differed between the previously provided maintenance report and the newly
provided work order. In the maintenance report, the work was described as, “Driver stated
coolant lose. Found oil cooler. Replaced part. Test turbo found shaft loose. replaced turbo.
Found exhaust soot in front 3 cylinders. Pulled injectors. found one bad and replaced. Redid
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all injector o-rings. Ran rack.” In the work order, it listed the “Condition or Problem” as
“Coolant leak on engine” and described the work as
“Driver stated coolant lose [sic]. Checked oil cooler and found oil in housing, pulled
aprat [sic] and cleanned [sic] and order new parts. Pulled turbo to get to cooler. Found
turbo had play in shaft, replaced turbo. Pulled valve cover to check injectors, front
exhaust was wet. Found number one injector leaking and replaced. Changed all o-rings
on injectors since cams wherre [sic] pulled. Ran over head. Filled with coolant. Pb#5-
212410009, wkww707241, w707442, w707220, w707233.”
The work order also provided the name of the mechanic (Grimm) who serviced Langholf’s
tractor, whereas the maintenance report did not. Moreover, there were two tractor assessment
and repair forms from that time period, one dated August 29 and 30, 2011, and one dated just
August 30, 2011. The former form noted the name of the mechanic (Jaron) who serviced
Langholf’s tractor and contained notes stating: “installed lower coolant hose,” “filled coolant,”
and “installed flex pipe to turbo.” The latter form noted the name of the mechanic (Mark) who
serviced Langholf’s tractor and contained notes stating, “1 box,” and a word that is illegible. 1
¶ 96 Concerning the September 6, 2011, work, the descriptions of the work performed varied
slightly between the previously provided maintenance report and the newly provided work
order. In the maintenance report, the work was described as, “Truck came in on check engiune
[sic] light. Found bad wire for lift pump. Repaired, advise driver what was done.” In the work
order, it listed the “Condition or Problem” as “Check engine light” and described the work as
“Hooked up computer for codes. Found lift pump code. Repaired harness wire. Gave driver a
light.” Additionally, the work order provided the name of the mechanic (Mark Smith) who
serviced Langholf’s tractor, whereas the maintenance report did not. Moreover, the tractor
assessment and repair form for September 6, 2011, noted the name of the mechanic (Mark)
who serviced Langholf’s tractor and contained notes stating “comp hook up,” “repaired lift
pump harness,” “order repair harness,” and “driver took light with him.”
¶ 97 2. First Motion for Sanctions
¶ 98 On January 26, 2017, based on the additional discovery provided by Howe and with the
scheduled trial date just over three months away, plaintiff filed an emergency motion seeking
Illinois Supreme Court Rule 219 (eff. July 1, 2002) sanctions against Howe for its alleged
willful failure to produce the additional training and maintenance records before the
depositions of O’Brien and Grimm. Plaintiff asserted that Howe’s failure to produce these
documents before the depositions had prejudiced her and, because it had not provided a
plausible explanation for the untimely production, sanctions were warranted. Plaintiff
requested that the motion judge strike Howe’s answer to her then-third amended complaint.
Hiner also joined in the motion.
¶ 99 Howe responded, acknowledging that the documents were responsive to plaintiff’s initial
discovery requests but argued that its failure to produce the records was due to the mistaken
belief of Grimm, who believed that the records had been purged. Because of this, Howe
asserted that its failure to produce the records initially was not deliberate. But, in any event,
Howe argued that plaintiff was not prejudiced by the late production because the records were
duplicative, did not bear on any issue related to proximate cause, it voluntarily offered to
1
The last names of the mechanics were not included on many of the documents.
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reproduce both O’Brien and Grimm, and it offered to extend the deadline for expert
disclosures.
¶ 100 On February 23, 2017, the motion judge entered a written order, initially observing that
neither Howe nor its counsel provided a “specific” or “verified explanation” beyond Grimm’s
apparent mistaken belief as to why the documents were not tendered when initially requested
in 2012, or at any other point prior to the depositions of O’Brien and Grimm, and how they
were suddenly discovered. The judge then found that Howe’s failure to timely produce the
records resulted in surprise and prejudice to not only plaintiff, but also Hiner, because the
documents were relevant to whether Langholf participated in mandatory training prior to the
accident and pertained to the installation of a turbo in his tractor prior to the accident. Further,
the judge determined the timing of the disclosure was harmful to plaintiff and Hiner because
multiple witnesses would have to be deposed or redeposed to fully explore the additional issues
presented by the documents despite an expert disclosure schedule in place and a trial scheduled
to begin in early May 2017. Given this, the judge concluded that plaintiff and Hiner had “been
limited in their ability to present a fully informed and thoroughly investigated case,” which
warranted the imposition of sanctions.
¶ 101 As a result, the motion judge deemed admitted three allegations in plaintiff’s then-operative
third amended complaint, which were that (1) Langholf failed to complete a required safety
course following his preventable accident, (2) Howe failed to ensure that Langholf complied
with its internal policy of completing the safety course following his preventable accident and
prior to receiving another dispatch, and (3) Howe and Langholf failed to properly install or
maintain his tractor.
¶ 102 Also on February 23, 2017, the parties agreed to waive the 60-day deadline set forth in
Illinois Supreme Court Rule 218(c) (eff. July 1, 2014) pertaining to the disclosure of witnesses
and completion of discovery no later than 60 days before a scheduled trial. Additionally, the
motion judge extended the deadline for plaintiff to answer Illinois Supreme Court Rule 213(f)
(eff. Jan. 1, 2007) interrogatories until early March and later, on the parties’ agreement, the
expert disclosure deadline was extended to mid-March. In late March 2017, Howe filed a
motion to reconsider the sanctions as it related to the maintenance records.
¶ 103 3. Second Motion for Sanctions
¶ 104 On April 4, 2017, plaintiff also filed a new motion for Rule 219 sanctions against Howe
for failing to preserve the tractor, including its engine and turbo. Plaintiff highlighted that she
had alleged against Howe a negligent maintenance and repair claim related to the tractor since
the initiation of the lawsuit. She asserted that she did not know that Langholf’s tractor had been
stored at a facility following the crash, investigated by an insurance expert, and a report had
been created detailing the salvage amount to be paid to Howe and its insurance provider, Acuity
Insurance (Acuity), until March 28, 2017, when Hiner’s counsel provided documents about the
salvage of the tractor to her counsel. Based on these documents, plaintiff alleged that Howe,
through Acuity, had the tractor towed to a facility in Des Moines for an inspection and
eventually to conduct salvage bids. According to plaintiff, additional documentation showed
that Acuity had discussions with counsel for Hiner’s insurance company about liability and
subrogation issues two months prior to plaintiff commencing litigation.
¶ 105 Also, as highlighted by plaintiff, in October 2011, Acuity had issued a check in the amount
of $23,350.66 to be paid to “Howe Freightways Inc. Estate of James Langholf & German
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American State Bank” with the check mailed to “Howe Freightways Inc.” in the care of Mark
Couper, Howe’s chief financial officer. The payment was for the “Total loss of 2001 Kenworth,
James Langholf, less $2500 deductible.” Based on other documentation included within
plaintiff’s motion, it appears that Hawkeye Claims Corporation (Hawkeye), a claims adjusting
company, worked on behalf of Acuity on several insurance and salvage valuation matters with
respect to Langholf’s tractor. In November 2011, Hawkeye arranged to have the salvage buyer
of Langholf’s tractor pick it up from storage, and by February 2012, the tractor had been
salvaged. Overall, the majority of the salvage documentation provided to plaintiff by Hiner’s
counsel reflected communications among Acuity, Hawkeye, and other parties, but not Howe
directly, about insurance and salvage issues relating to the tractor. There was one
communication in which Howe was directly involved: a May 2016 e-mail from Howe’s
counsel to Hiner’s counsel about the subrogation issue with respect to Langholf’s tractor.
Based on Howe’s failure to preserve the tractor, which prevented plaintiff from testing the
engine and turbo, she requested the alleged negligent acts concerning the turbo and engine be
deemed admitted.
¶ 106 Howe responded, arguing that it could not be sanctioned based on the destruction of a
tractor that it did not own or have control over. According to Howe, after the accident, the lease
agreement between it and Langholf became void due to the doctrine of legal impossibility and
ownership of the remnants of the mangled tractor reverted to Langholf’s estate. Howe
acknowledged that its name appeared on the check issued by Acuity but asserted this was only
because of insurance practices where it had been a policyholder and Langholf identified as a
Howe driver. Howe contended that plaintiff failed to produce a single document showing it
had directed the sale or destruction of the tractor. Instead, Howe asserted that it was Acuity
that handled the tractor’s salvage on behalf of Langholf’s estate.
¶ 107 Howe attached to its response an affidavit from Ken Howe, its president, wherein he
averred that Langholf owned the tractor at issue and at no time after the accident did Howe
have any ownership, control, or possession of it. Ken Howe further averred that neither plaintiff
nor her counsel requested Howe to preserve the tractor or its component parts. Lastly, he
asserted that Howe never directed or made any determinations regarding the storage or salvage
of the tractor or its component parts, and Howe did not receive any money from the salvage.
¶ 108 On April 28, 2017, while both parties’ motions were pending, Grimm was redeposed and
Couper was deposed. In Couper’s deposition, he testified that, in December 2016, the
additional documents regarding Langholf and his tractor were discovered. Couper asserted that
most of them were found in a file folder in a file drawer that was “clearly marked” with
Langholf’s name and a reference to his accident. Couper presumed the documents had been
there since 2011 and speculated that O’Brien and Grimm had both seen the folder at some
point before he found it.
¶ 109 In Grimm’s second deposition, he agreed that he knew of the existence of the file folder
pertaining to Langholf but claimed he made an honest mistake in not turning over the
documents in the folder and produced what he thought was asked of him. Grimm also thought
the additional maintenance records contained the same narratives as the ones originally
produced. He also acknowledged the recently produced logs of monthly training courses
completed by Langholf, but asserted that he did not produce those initially because he only
gave what was in a file folder, apparently a folder separate from the one pertaining to Langholf
and his accident. Grimm also corrected an assertion he made during his first deposition and
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stated that Howe did not have a policy that required additional safety training after a
preventable accident but before another dispatch. Grimm believed that the policy was only
implemented after he took over as the director of safety and maintenance in October 2011. 2
¶ 110 Eventually, on May 5, 2017, a week before the trial actually began, the motion judge
entered a written order on plaintiff’s second sanctions motion and Howe’s motion to reconsider
the initial sanctions. The judge found that, regardless of who technically owned the tractor,
Howe could have “taken reasonable measures to preserve [it]” due to “the nature of the
relationship between Langholf, Howe and [Acuity].” According to the judge, Howe was “in a
position to prevent the salvage of the tractor” and knew or should have known that litigation
was foreseeable given the reported issues with the tractor that led to it breaking down on the
highway. In fashioning the proper sanction, the judge utilized the six-factor test enunciated in
Shimanovsky v. General Motors Corp., 181 Ill. 2d 112 (1998). The judge determined that three
of the factors—the surprise to plaintiff, her diligence in seeking discovery, and the timeliness
of her objection to the evidence—did not favor either party based on the record. The judge next
discussed the nature of the evidence and the prejudice to plaintiff, finding that, in light of her
allegations, the tractor itself was “central” to her claims against Howe. But now, the judge
remarked, her ability to inspect the tractor to support her claim that the tractor had been
negligently maintained or repaired was “foreclosed” by its destruction resulting in “severe
prejudice” to her. The judge concluded that plaintiff had been placed at “a unique disadvantage
in being unable to prove” one of her claims and found sanctions were warranted.
¶ 111 As a result, the motion judge deemed admitted the allegation in plaintiff’s now-fourth
amended complaint that Howe and Langholf failed to properly repair or maintain the tractor
engine, including its turbo. The judge also deemed admitted the corresponding allegations from
the third amended complaint now in the fourth amended complaint that were part of the
February 23, 2017, sanctions order regarding the safety training. Lastly, because of the new
sanctions order, which deemed admitted that Howe negligently maintained or repaired the
tractor, the judge found Howe’s motion to reconsider moot, as that motion had requested
reconsideration of the allegations that were deemed admitted as part of the new sanctions.
¶ 112 4. Motion to Reconsider Both Sanctions Orders
¶ 113 Three days later, with the trial judge now presiding over the case, Howe filed a motion to
reconsider the motion judge’s imposition of sanctions. At a pretrial hearing, the trial judge
asserted:
“First of all, it’s not this Court’s—I don’t believe it’s proper for this Court to reconsider
another judge’s ruling prior to this case. However, I reviewed it for purposes of seeing
if there’s anything in there that might strike the Court’s attention and might give the
Court pause to deviate from not reconsidering it. So I don’t know if that sounds like I
reconsidered the motion. I have not. I have reviewed it to take a look at it, and that’s as
far as I’ve done with it. So both motions to reconsider are denied.”
The other motion to reconsider sought reconsideration of the motion judge’s denial of summary
judgment for Howe.
2
Offers of proof at trial by O’Brien and Ken Howe corroborated Grimm’s correction.
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¶ 114 5. General Verdict Rule
¶ 115 With that background in mind, we now address Howe’s contentions. First, it argues that
the motion judge erred in ordering the first discovery sanctions because they were unduly harsh
given there was no evidence that it deliberately refused to comply with plaintiff’s discovery
requests or a court order, and the materials untimely produced were cumulative to what had
been timely produced. Additionally, Howe argues that the motion judge erred in ordering the
second discovery sanctions where it had no duty to preserve Langholf’s tractor and no reason
to foresee that the condition of the tractor would be relevant to potential litigation. Finally,
Howe argues that the trial judge erred when it refused to reconsider the sanctions ordered by
the motion judge. Plaintiff, however, posits that not only were the sanctions proper based on
the circumstances but that our review of Howe’s contentions is barred by the general verdict
rule.
¶ 116 Under the general verdict rule, “[w]hen there is a general verdict and more than one theory
is presented, the verdict will be upheld if there was sufficient evidence to sustain either theory,
and the defendant, having failed to request special interrogatories, cannot complain.” Witherell
v. Weimer, 118 Ill. 2d 321, 329 (1987). The rule is also provided in section 2-1201(d) of the
Code of Civil Procedure (735 ILCS 5/2-1201(d) (West 2016)), which states,
“[i]f several grounds of recovery are pleaded in support of the same claim, whether in
the same or different counts, an entire verdict rendered for that claim shall not be set
aside or reversed for the reason that any ground is defective, if one or more of the
grounds is sufficient to sustain the verdict.”
To this end, plaintiff argues that, assuming arguendo that the sanctions were improper, because
Howe did not submit special interrogatories to the jury to ascertain which of the six theories
of negligence against it formed the basis of the jury’s verdict, we cannot determine whether
the sanctions affected the verdict. Though Howe acknowledges the general verdict rule, it
posits that the rule is inapplicable, in part, because it could not have propounded a special
interrogatory in proper form that would have tested the basis for the jury’s verdict.
¶ 117 A special interrogatory is a question posed to the jury for its consideration during
deliberations that supplements its consideration of the case (see Simmons v. Garces, 198 Ill.
2d 541, 555-56 (2002)), such as the one used that asked if any act or omission of Howe
proximately caused the injuries and death of Inman. The purpose of a special interrogatory is
to test a general verdict against the jury’s conclusion on one or more specific issues of ultimate
fact. Id. at 555. When a party requests a special interrogatory, the trial court must provide the
jury the interrogatory so long as the interrogatory is in proper form. 735 ILCS 5/2-1108 (West
2016); Northern Trust Co. v. University of Chicago Hospitals & Clinics, 355 Ill. App. 3d 230,
251 (2004). “A special interrogatory is in proper form if (1) it relates to an ultimate issue of
fact upon which the rights of the parties depend, and (2) an answer responsive thereto is
inconsistent with some general verdict that might be returned.” Simmons, 198 Ill. 2d at 555.
The requisite inconsistency manifests itself when the special interrogatory is “ ‘clearly and
absolutely irreconcilable with the general verdict.’ ” Id. at 555-56 (quoting Powell v. State
Farm Fire & Casualty Co., 243 Ill. App. 3d 577, 581 (1993)). A proper special interrogatory
should be presented in easily understood terms (id. at 563), and must consist “of a single, direct
question that, standing on its own, is dispositive of an issue in the case such that it would,
independently, control the verdict with respect thereto.” Northern Trust Co., 355 Ill. App. 3d
at 251. In other words, a party cannot “piggy-back[ ]” multiple special interrogatories together
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to ensure that a responsive answer is inconsistent with a general verdict that might be returned.
Id. at 253.
¶ 118 Although plaintiff argues that the general verdict rule precludes our review of the sanctions
and highlights that Howe did not submit a special interrogatory to test the basis of the jury’s
verdict regarding the different theories of negligence, she does not provide an example of a
proper special interrogatory that Howe could have submitted. Howe could not have submitted
a special interrogatory in proper form with a single, direct question that would have tested
whether the jury found that any of Howe’s four not-deemed admitted allegations of negligence
were (1) breaches of the applicable standard of care and (2) proximately caused Inman’s
injuries and death, as opposed to the two deemed admitted allegations of negligence. See
Jacobs v. Yellow Cab Affiliation, Inc., 2017 IL App (1st) 151107, ¶ 126 (special interrogatory
properly rejected by the trial court where it consisted of two clauses, one regarding a deviation
from the standard of care and one regarding proximate causation, which was not answerable
with a single “yes” or “no”).
¶ 119 On the other hand, had Howe requested separate special interrogatories each testing
whether the jury found that Howe had (1) breached its standard of care regarding the four not-
deemed admitted allegations of negligence and (2) those breaches proximately caused Inman’s
injuries and death, each special interrogatory would not have been inconsistent with some
general verdict that might be returned and therefore would have been denied by the trial court.
See Northern Trust Co., 355 Ill. App. 3d at 252 (finding that, where there were multiple
theories of negligence asserted against the defendant, and the special interrogatory at issue
addressed only one, the special interrogatory was not in proper form as a responsive answer
would not necessarily be inconsistent with the general verdict). For example, had Howe
attempted to determine if Langholf’s failure to use the reflective warning triangles was a breach
of the applicable standard of care, a “no” response would not necessarily be inconsistent with
a general verdict finding Howe liable because the jury could have found any of the other three
not-deemed admitted allegations of negligence breaches of the applicable standard of care in
addition to the two deemed admitted. In order to be absolutely inconsistent with a general
verdict finding, Howe would have had to “piggy back[ ]” multiple special interrogatories
together, which is improper. See id. at 253. Consequently, because Howe could not have
submitted a special interrogatory in proper form to test the basis of the jury’s verdict with
respect to plaintiff’s multiple theories of negligence, the general verdict rule does not preclude
our review of the sanctions.
¶ 120 6. The Law Regarding Sanctions
¶ 121 We now consider whether the motion judge properly imposed the sanctions against Howe.
Illinois Supreme Court Rule 219(c) (eff. July 1, 2002) authorizes the trial court to impose
sanctions on any party who unreasonably fails to comply with the discovery rules.
Shimanovsky, 181 Ill. 2d at 120. Rule 219(c) provides a nonexhaustive list of possible
sanctions, including barring the offending party from maintaining a particular claim or defense.
Ill. S. Ct. R. 219(c) (eff. July 1, 2002). When imposing sanctions, the trial court should balance
multiple factors, including the surprise and prejudice to the nonoffending party with the good
faith of the offending party in not complying with the discovery rules. Shimanovsky, 181 Ill.
2d at 124. But “the sanction imposed should bear some reasonable relationship to the
information withheld in defiance of the discovery request.” Smith v. P.A.C.E., 323 Ill. App. 3d
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1067, 1076 (2001). Although sanctions serve a dual purpose “to combat abuses of the
discovery process and maintain the integrity of the court system,” they should be imposed to
“promote discovery, not punish a dilatory party.” Locasto v. City of Chicago, 2014 IL App
(1st) 113576, ¶ 27. The “party disputing a sanction order for failure to comply with discovery
must establish that noncompliance was reasonable or justified under the circumstances.” In re
Estate of Andernovics, 197 Ill. 2d 500, 510 (2001). The trial court’s decision to impose
particular sanctions may only be reversed where there has been a clear abuse of discretion
(Shimanovsky, 181 Ill. 2d at 120), which occurs when its decision is unreasonable or arbitrary,
or where no reasonable person would adopt the same view (Blum v. Koster, 235 Ill. 2d 21, 36
(2009)).
¶ 122 7. The Propriety of the First Sanctions Order
¶ 123 We now discuss the first sanctions, where the motion judge deemed admitted plaintiff’s
allegations in her third amended complaint that (1) Langholf failed to complete a safety course
following his preventable accident, (2) Howe failed to ensure that Langholf complied with its
internal policy of completing the safety course following his preventable accident and prior to
receiving another dispatch, and (3) Howe and Langholf failed to properly maintain his tractor.
¶ 124 Regarding the maintenance allegation, the motion judge explicitly balanced the surprise
and prejudice to plaintiff of the untimely disclosure of discovery documents against the good
faith of Howe through Grimm, who initially believed he had purged the additional records.
The judge noted the relevancy of the documents to plaintiff’s negligent maintenance claim and
to Hiner’s own defense and how the timing impacted both plaintiff and Hiner’s ability to
thoroughly investigate their cases. Further, the judge highlighted Grimm’s apparent mistaken
belief that he had purged the additional maintenance documents but emphasized there was no
verified explanation as to why these documents once thought to be purged suddenly appeared.
In this manner, the judge implicitly determined that Howe failed to show that its
noncompliance with the discovery rules was reasonable or justified under the circumstances.
See In re Estate of Andernovics, 197 Ill. 2d at 510 (stating that the “party disputing a sanction
order for failure to comply with discovery must establish that noncompliance was reasonable
or justified under the circumstances”). Grimm’s depositions support this finding, where he
could not provide a consistent explanation about the documents. In his first deposition, he
testified that he likely purged the additional documents. In his second deposition, he seemed
to suggest that he knew of their existence all along but withheld them because he honestly did
not think he needed to turn them over. Overall, the record reflects a careful balancing of the
relevant considerations by the motion judge and a sanction, albeit harsh, that bears a reasonable
relationship to the information withheld. We therefore cannot say that, under the
circumstances, the sanction was so unreasonable that no reasonable person would adopt the
same view.
¶ 125 Howe, however, argues that plaintiff’s investigation was not prejudiced by the untimely
production because she already knew from its initial production of maintenance records that
Langholf’s turbo had been replaced and his lift pump repaired days before the accident.
Although the one-page maintenance reports from August 30 and September 6, 2011, which
had been timely produced, were similar in describing the work performed on Langholf’s tractor
to the subsequently produced work orders and tractor assessment and repairs forms that bore
the same dates, there were some differences in the descriptions. Notably, the August 30, 2011,
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work order was more detailed than its corresponding maintenance report, and in the work
order, the name of the mechanic was listed. In the two tractor assessment and repair forms
from that time period, two additional mechanics were listed. Similarly, although the September
6, 2011, work order only varied slightly from its corresponding maintenance report in
describing the work performed, the work order provided the name of the mechanic who
serviced Langholf’s truck and so did the tractor assessment and repair form from that date.
Based on these differences, it was reasonable to find that plaintiff suffered some prejudice and
surprise.
¶ 126 Howe also highlights that the motion judge found prejudice in part due to plaintiff being
required to disclose her experts soon after the supplemental production yet asserts the judge
ignored that, on the same day he entered the sanctions, he extended the deadline for plaintiff
to answer Rule 213(f) interrogatories. Even if we were to agree with Howe that the prejudicial
effect of its supplemental production was less than that ascribed to it by the judge based on the
extension, the fact that the newly produced documents differed in parts from the initially
produced documents, coupled with the lack of a consistent explanation for the sudden
discovery of the documents, provided the judge clear grounds to deem admitted the allegation
related to Howe’s maintenance of the tractor. Consequently, the motion judge did not clearly
abuse his discretion in imposing this sanction.
¶ 127 However, we do not find the same with regard to the motion judge’s sanctions against
Howe to deem admitted that Langholf failed to complete a required safety course following
his preventable accident and Howe failed to ensure that Langholf complied with its internal
policy of completing the safety course following the preventable accident and prior to him
receiving another dispatch. As previously discussed, a particular sanction must bear some
reasonable relationship to the information that was not originally provided. Smith, 323 Ill. App.
3d at 1076. The safety records that were untimely produced did not relate to any internal policy
of Howe training its drivers after preventable accidents, which was one of plaintiff’s theories
of negligence. Rather, the documents related to ongoing monthly training that its drivers were
required to complete, which was not a theory of negligence alleged by plaintiff. In this manner,
the supplemental production of safety training documents had no reasonable connection to
plaintiff’s allegation regarding Howe’s internal policy. While there was an overlap in general
subject matter, i.e., safety training, the connection must be more than tangentially related.
Consequently, the motion judge clearly abused his discretion by imposing such harsh
sanctions. However, plaintiff is not precluded from renewing her motion for sanctions, albeit
a less harsh one, if it can be shown that the less severe sanction bore some reasonable
relationship to the information that was not originally provided.
¶ 128 8. The Propriety of the Second Sanctions Order
¶ 129 We now discuss the motion judge’s second sanctions order, where it continued the
sanctions regarding the safety training issues, which we have just found were unwarranted, but
also deemed admitted the allegation in plaintiff’s fourth amended complaint that Howe and
Langholf failed to properly repair or maintain the tractor engine, including the turbo, based on
the prelitigation destruction of the tractor.
¶ 130 Generally, “a potential litigant owes a duty to take reasonable measures to preserve the
integrity of relevant and material evidence.” Shimanovsky, 181 Ill. 2d at 121. Otherwise, the
potential litigant “could circumvent discovery rules or escape liability simply by destroying
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the proof prior to the filing of a complaint.” Id. The preservation of evidence is often most
critical in product liability cases where the allegedly defective product is crucial to both the
prosecution and defense of the case. Kambylis v. Ford Motor Co., 338 Ill. App. 3d 788, 793
(2003). Because a duty exists for the prelitigation preservation of certain evidence, the trial
court has the authority to sanction a party when it destroys relevant and material evidence
under Rule 219(c). Shimanovsky, 181 Ill. 2d at 122-23. The relevant factors the court should
consider in determining whether a sanction is warranted and, if so, the appropriate sanction are
the (1) surprise to the adverse party, (2) diligence of the adverse party in seeking discovery,
(3) timeliness of the adverse party’s objection to the evidence, (4) nature of the destroyed
evidence, (5) prejudice of the destruction of the evidence, and (6) good faith of the party
offering the evidence. Id. at 124.
¶ 131 In determining the sanctions based on the destruction of the tractor, the motion judge
carefully balanced the relevant factors of the Shimanovsky test, noting the timeline of events
that led up to plaintiff’s second motion for sanctions, and we find the judge’s determination
that three of the factors—the surprise to plaintiff, her diligence in seeking discovery, and the
timeliness of her objection—favored neither party to be reasonable. Furthermore, as the judge
correctly concluded, it is unquestionable that, given plaintiff’s claim concerning the alleged
negligent maintenance of Langholf’s tractor, including its turbo and engine, the tractor was
central to her cause of action against Howe. Because of this, axiomatically, plaintiff was
prejudiced because she was unable to test and inspect the tractor to support her negligent
maintenance claim.
¶ 132 The real question concerns the final factor, the good faith of Howe, which centered on its
ability to prevent the destruction of the tractor. Howe argues that it had no reason to foresee
the condition of Langholf’s tractor being relevant to potential litigation given that his vehicle
was stationary on the shoulder of the highway when the accident occurred. And further, Howe
posits that it never had any ownership of the tractor, and it would have been required to take
extraordinary measures to retain and preserve the tractor. However, as plaintiff notes, the lease
agreement between Langholf and Howe provided Howe with “exclusive possession, use and
control” of the tractor and imposed “full responsibility” for the tractor’s operation upon Howe.
Furthermore, as borne out by an offer of proof at trial from O’Brien, mere weeks after the
accident, she had an e-mail correspondence with a representative of Acuity wherein the
representative asked her if Howe or the relatives of Langholf were interested in meeting the
highest salvage bid for the tractor of $8269. O’Brien testified that, after receiving the e-mail,
she talked to Ken Howe and Langholf’s family, but no one wanted to meet the bid. O’Brien
wrote Acuity back saying neither the Langholf’s family nor Howe was interested. Additionally
in O’Brien’s offer of proof, she acknowledged that she was tasked by Howe to be a conduit
between Acuity and the facility storing the tractor. Given the lease agreement between Howe
and Langholf, as well as Howe’s ability to purchase the tractor for just over $8000, the motion
judge’s conclusion that Howe could have taken reasonable measures to preserve the tractor
was not unreasonable. See In re Marriage of Gary, 384 Ill. App. 3d 979, 987 (2008) (the
reviewing court can affirm the trial court on any basis supported by the record).
¶ 133 Howe, however, asserts that no one asked it or Acuity to preserve the tractor prior to
litigation. That is irrelevant because Howe, with notice of a fatal accident involving its driver
and its equipment, was a potential litigant and had a prelitigation duty to take reasonable
measures to preserve the integrity of relevant and material evidence, which the tractor
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assuredly was. See Shimanovsky, 181 Ill. 2d at 121. And it strains credulity for Howe to argue
that, as the employer of a truck driver involved in a multivehicle collision that resulted in four
deaths in which his vehicle had reported engine trouble, it could not foresee itself as a potential
litigant. Additionally, Howe asserts that, because Langholf’s tractor was totaled and he passed
away, their lease ended due to the doctrine of legal impossibility. See Innovative Modular
Solutions v. Hazel Crest School District 152.5, 2012 IL 112052, ¶ 37 (stating the doctrine of
legal impossibility “excuses performance of a contract only when performance is rendered
objectively impossible either because the subject matter is destroyed or by operation of law”).
Even if Howe’s performance had been excused under the lease agreement, it does not follow
that Howe had no duty to take reasonable measures to preserve the tractor.
¶ 134 Because the tractor’s destruction prevented plaintiff from being able to inspect the tractor’s
component parts, including its engine and turbo, two parts critically at issue in the litigation,
she was put at an extreme disadvantage in being able to support her claim regarding the
negligent maintenance of the tractor. She could only obtain a fair trial on the merits concerning
this allegation with the sanction imposed by the motion judge. See Shimanovsky, 181 Ill. 2d at
123. The judge’s sanction was appropriate given the circumstances, and therefore, he did not
clearly abuse his discretion in imposing the sanction.
¶ 135 9. Trial Judge’s Failure to Reconsider
¶ 136 Howe also contends that the trial judge erred by refusing to reconsider the sanctions entered
by the motion judge. When the trial judge denied Howe’s motion to reconsider, he stated
essentially that it was not proper as a matter of law to reconsider the rulings of the motion
judge.
¶ 137 “[A] judge acts within the bounds of his or her authority when reconsidering a prior ruling
in the same case by a different judge, so long as the record lacks evidence of bad faith or ‘judge
shopping’ by the movant seeking reconsideration.” Swain v. City of Chicago, 2014 IL App
(1st) 122769, ¶ 10. Here, there is no evidence, and the trial judge never found such on the
record, that Howe’s motion to reconsider was made in bad faith or merely an attempt at
shopping judges. Rather, from what can be gleaned from this record, Howe genuinely believed
the sanctions were unwarranted, a belief partially validated by our conclusion regarding part
of the first sanctions order. Consequently, the trial judge had the authority to reconsider the
motion judge’s sanctions, and he erred by refusing to do so as a matter of law. If, on remand,
Howe renews a motion to reconsider the sanctions, the trial judge may properly entertain the
motion insofar as it does not conflict with the rulings herein.
¶ 138 D. The Motions in Limine
¶ 139 Howe next contends that the trial judge erred in various rulings on the parties’ motions
in limine, specifically the grant of plaintiff’s motion in limine No. 32 and the denials of its
motions in limine Nos. 35 and 37.
¶ 140 A motion in limine allows a party to obtain a pretrial order barring certain evidence from
being presented during trial. Kutchins v. Berg, 264 Ill. App. 3d 926, 930 (1994). “In this way,
the moving party safeguards against the prejudicial impact possibly resulting from asking
questions and making objections regarding the inadmissible evidence before the jury.” Id. In
ruling on a motion in limine that bars the introduction of evidence at trial, the trial court must
exercise caution because barring evidence “may unduly restrict the opposing party’s
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presentation of its case.” Rush v. Hamdy, 255 Ill. App. 3d 352, 365 (1993). The trial court has
considerable deference in ruling on a motion in limine, and its decision will not be reversed
absent a clear abuse of that discretion. Swick v. Liautaud, 169 Ill. 2d 504, 521 (1996).
¶ 141 1. Plaintiff’s Motion in Limine No. 32
¶ 142 Plaintiff’s motion in limine No. 32 sought to bar testimony of witness Green about his
observation of Terrell before the accident, namely that he was not wearing a shirt.
¶ 143 During Green’s evidence deposition, he testified about the moments before the accident.
As Green was driving his truck in the right lane of the highway up a slight elevation, or hill,
he noticed Terrell passing him in the left lane. At the time, Green was driving between 60 and
62 miles per hour, and he estimated that Terrell was driving between 63 and 70 miles per hour.
Due to Terrell driving faster, Green acknowledged only having a couple of seconds to observe
Terrell as he passed. But in that short period of time, Green observed Terrell sitting “catty-
corner” on his seat, looking to his right and shirtless. Upon further questioning about his
observation, Green denied it was possible that Terrell merely had his shirt open rather than off.
¶ 144 The distance from where Terrell passed Green to the location of the eventual accident was
not precisely clear from Green’s deposition. But what we can discern is the following: While
Green was driving up the small elevation, Terrell was in the process of passing him in the left
lane. Green answered “yes” when plaintiff’s counsel asked him if he was “about one mile, mile
and a half from the crash site” when Terrell passed him. In front of Green were two additional
trucks, which Terrell had to pass before moving into the right lane. According to Green, Terrell
passed these trucks “towards the top” of the hill, which was “anywhere from a half mile to a
little over a mile” away from the vehicles on the shoulder. After passing the trucks in front of
Green, Terrell moved into the right lane. At this point, according to Green, his own location
was roughly an eighth of a mile away from the vehicles on the shoulder, meaning Terrell was
even closer. Seconds after Terrell moved into the right lane, the crash occurred, although Green
agreed that, earlier in the deposition, he incorrectly testified that Terrell was in the right lane
for a minute before the accident.
¶ 145 Later during the deposition, plaintiff’s counsel and Green had the following exchange:
“Q. Okay. And if you’re about a mile, mile and a half back from the site of the
crash, would I be correct in stating you had about 8 to 12 seconds, at most, from the
time that the Hiner vehicle was passing you to the time the crash occurred, based on
your speed and the distance between yourself and the crash site?
A. Yeah, 8 to 20 seconds, I believe.”
After the accident, Green pulled over and went to the scene to see if anyone needed assistance.
On his first pass around the vehicles, he did not look into Terrell’s vehicle, but on a second
pass, Green did and observed Terrell “pinned in his seat in the sleeper compartment area” with
a shirt on. Though Green made these observations, he also testified that he did not observe any
erratic or unusual driving by Terrell prior to the accident.
¶ 146 In support of plaintiff’s motion in limine, she argued that Green’s testimony was too remote
to support an inference that he caused the collision by putting on a shirt. Ultimately, the trial
judge granted the motion, finding that:
“[A] mile to a mile and a half before the incident, in this court’s view, it would seem
that somebody could put their shirt on at any time during that period, and I think it’s
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too remote in time to allow that to be put into evidence. And I understand it’s
circumstantial and the testimony here is to the fact of the driver having his shirt off and
then having his shirt on; however, it’s too—there’s too much time and space in between
the first sighting of the driver without his shirt and the distance in time, as the court
perceives it, the time for that truck to go a mile where this driver could have put his
shirt on at any one of those—at any time during that period.
Having said that, the court is also concerned that—the question of whether this is
circum—valid circumstantial evidence of any negligence here, because if this is
admitted, you know, the jury’s going to come to a conclusion that, well, he very well
could have or may have or probably was putting his shirt on at the time when there’s
no evidence that that was related to the accident.”
¶ 147 Howe argues that the trial judge abused his discretion in granting plaintiff’s motion
in limine where Green’s testimony was strong circumstantial evidence that Terrell was putting
on his shirt prior to the accident and not too remote to be presented to the jury. Plaintiff,
however, initially argues that Howe’s contention is barred by the general verdict rule because
it failed to submit special interrogatories to clarify the basis for the jury’s verdict and only one
of the three negligence allegations against Hiner concerned Terrell’s failure to keep a proper
lookout. The allegedly erroneous exclusion of Green’s testimony about Terrell related not only
to plaintiff’s allegation that he failed to keep a proper lookout but also clearly concerned her
allegations that Terrell failed to reduce speed and he came into contact with Walsh’s tow truck.
All three allegations are generally based on Terrell’s negligent driving. The general verdict
rule does not preclude our review of the trial judge’s grant of plaintiff’s motion in limine No.
32. Nevertheless, according to plaintiff, she argues that the judge’s ruling was proper.
¶ 148 In the trial judge’s ruling, it focused primarily on the remoteness of the evidence.
Remoteness is just a component of the traditional relevancy test for evidence. See People v.
Cloutier, 156 Ill. 2d 483, 501 (1993) (“A trial court may reject evidence on the grounds of
relevancy if it is remote, uncertain, or speculative.”). The general rule of evidence in Illinois is
that relevant evidence is admissible at trial. Ill. R. Evid. 402 (eff. Jan. 1, 2011). Evidence is
relevant if it has “any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” Ill. R. Evid. 401 (eff. Jan. 1, 2011). However, relevant evidence will be inadmissible
if the probative value of the evidence is substantially outweighed by the risk of unfair prejudice,
confusing the issues or misleading the jury. Ill. R. Evid. 403 (eff. Jan. 1, 2011).
¶ 149 Evidence of a driver’s conduct prior to an accident may be admitted at trial. Spencer v.
Wandolowski, 264 Ill. App. 3d 611, 618 (1994). The admissibility of the evidence depends on
the degree to which it tends to show what most likely occurred at the time of the accident and
is determined by two factors. Id. First, the proffered evidence must identify the vehicle as being
the same one involved in the accident or the jury must be able to reasonably infer that it was
the same vehicle. Id. Second, “the facts and circumstances support a reasonable inference that
the conduct testified to continued from the point of observation to the place of the [accident].”
(Internal quotation marks omitted.) Id. This factor is akin to the remoteness of the evidence.
See id. at 620. Moreover, “circumstantial evidence may ‘take[ ] on more importance where
there are no available eyewitnesses, or where it may be the only method by which it may be
shown who was at fault.’ ” Id. at 618 (quoting Klavine v. Hair, 29 Ill. App. 3d 483, 487-88
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(1975)). Each question concerning the admissibility of this type of evidence is unique and must
be judged according to its own facts. Id.¶ 150 In this case, there is no dispute that Green’s testimony identified Terrell as being the driver
of the same vehicle later involved in the crash. The critical question was whether Terrell being
shirtless shortly before the accident and wearing a shirt after the accident led to a reasonable
inference that putting on a shirt distracted him and may have caused the accident. In ruling on
the motion in limine, the trial judge focused only on the proximity in distance from Green’s
observation of Terrell shirtless to the eventual site of the accident, which was somewhere
between 1 mile and 1½ miles away. Had there only been this distance revealed in Green’s
deposition, we would be unlikely to find the judge abused his discretion in excluding Green’s
observation from trial. See Flesberg v. Prince Warehouse Co., 37 Ill. App. 2d 22, 27-28 (1962)
(driver’s negligent driving one-half mile away from the scene of an eventual collision too
remote to be admissible). But there was more than just a distance. Green also testified to a
temporal proximity of only 8 to 20 seconds from the time he observed Terrell shirtless to the
crash occurring. The judge overlooked this critical component of the observation.
¶ 151 Had the trial judge also focused on the temporal proximity of Green’s observation to the
eventual crash, we do not believe he could have rationally found such a short period of time
too remote. It is certainly possible that Terrell could have put a shirt on in 8 to 20 seconds or
even in up to a minute despite driving a truck on the highway upwards of 70 miles per hour
while passing other vehicles and changing lanes, all while looking into a glaring sun, without
it affecting his driving. But it is equally as possible that putting a shirt on during such
circumstances affected Terrell’s driving to some degree. Given either prospect being well
within the realm of possibility, Green’s observation was not too remote.
¶ 152 Spencer is illustrative. There, a plaintiff, who was injured during a rush hour traffic
accident, sued a truck driver and the co-owner of the truck based on the truck driver’s alleged
improper lane change on the highway’s feeder ramp. Spencer, 264 Ill. App. 3d at 612. Less
than 10 minutes before the accident, a state trooper observed the plaintiff riding his motorcycle
on the shoulder of the highway going at least 40 miles per hour. Id. at 616, 620. The trial court
barred the trooper from testifying about this observation, finding it too remote. Id. at 619. On
appeal, the appellate court rejected the trial court’s finding of remoteness and concluded that
less than 10 minutes was a “sufficiently short” period of time to support a reasonable inference
that the plaintiff continued riding on the shoulder up until the time of the accident. Id. at 620.
The appellate court next observed that the defendants’ theory was that the plaintiff caused the
accident by being in a rush to work and determined the excluded “testimony was central” to
that theory. Id. at 620-21. Because the excluded testimony “could have affected the verdict or
the apportionment of fault,” the court concluded “its weight and value should have been
determined by the jury” and the prohibition was improper. Id.
¶ 153 Here, because no one truly knew what caused Terrell to initiate the chain-reaction collision,
any evidence that tended to show that “what” was crucial in determining who was at fault and,
if multiple parties were, their respective faults. Notably, Howe’s theory of the case throughout
was that Terrell, and Hiner through him, were the only negligent parties because he controlled
the only moving vehicle involved in the crash. As in Spencer, the excluded testimony of Green,
which tended to show that Terrell was distracted while driving, was central to Howe’s defense
and because the excluded observation was only 8 to 20 seconds before the accident, it was a
sufficiently short period of time to support a reasonable inference that Terrell was putting on a
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shirt while driving and that it could have affected his driving. And even if Green’s testimony
would not show that Hiner through Terrell was solely at fault, it could have certainly showed
that Hiner was more at fault. The excluded testimony of Green was a highly probative piece of
evidence that the jury should have been able to consider in its truth-seeking process of
determining who was liable for Inman’s injuries and death and the apportionment of that fault.
¶ 154 Plaintiff primarily relies on Eleopoulos v. Dzakovich, 94 Ill. App. 3d 595 (1981), to support
her argument that the trial judge did not err in granting her motion in limine. There, a passenger
of a vehicle that ultimately hit a child on a bicycle would have testified that the driver looked
inside the glove compartment at some unspecified period, though not too long, before the
collision. Id. at 597, 599-600. The trial court barred this testimony, finding it too remote to
have probative value. Id. at 600. The appellate court agreed, finding that the passenger could
not recall exactly when the driver looked into the glove compartment and therefore, “the
plaintiff could not connect this testimony to the relevant time frame.” Id. Unlike Eleopoulos,
here, Green’s observation of Terrell occurred only 8 to 20 seconds before the accident, well
within the relevant time frame. Eleopoulos is therefore inapposite.
¶ 155 Additionally, although the trial judge was primarily concerned about the remoteness of the
potential evidence, the judge also stated that Green’s observation could lead the jury to the
conclusion that Terrell had been putting on a shirt at the time of the accident “when there’s no
evidence that that was related to the accident.” In other words, the judge intimated that Green’s
observation could mislead the jury. See Ill. R. Evid. 403 (eff. Jan. 1, 2011) (relevant evidence
may be deemed inadmissible if its probative value is substantially outweighed by the risk of
misleading the jury). We do not believe that the jury would have been misled by testimony on
Green’s observation. Importantly, merely because the jury would have been presented with
this evidence does not mean that the jury had to come to the conclusion that Terrell was putting
on his shirt while driving on the highway or that, if he did, it affected his driving. In fact, Green
testified that he did not observe any erratic or unusual driving by Terrell prior to the accident.
¶ 156 Had Green been allowed to testify to his observation, he could have been cross-examined
about all aspects of it, including if he had previously mentioned to anyone about Terrell being
shirtless and whether his testimony of observing Terrell shirtless 8 to 20 seconds before the
accident was consistent with his testimony that he was perhaps over a mile away from the
eventual scene of the crash. Green’s testimony about his observation accompanied by related
cross-examination would not have misled the jury but rather given the jury a more
comprehensive picture of the events leading up to the collision in a case—a case where no one
truly knew why Terrell hit Walsh’s tow truck. Consequently, the trial judge clearly abused his
discretion by precluding Green from testifying about his observation of Terrell.
¶ 157 While litigants are not “assured a perfect trial,” they are assured a fair one. Department of
Transportation v. Dalzell, 2018 IL App (2d) 160911, ¶ 127. And thus, an evidentiary error
does not automatically mandate reversal, as the error may nevertheless be harmless. Nolan v.
Weil-McLain, 233 Ill. 2d 416, 429 (2009). Harmless error occurs when, despite the presence
of an error, it appears “ ‘no harm has been done.’ ” Jefferson v. Mercy Hospital & Medical
Center, 2018 IL App (1st) 162219, ¶ 39 (quoting Jackson v. Pellerano, 210 Ill. App. 3d 464,
471 (1991)). Conversely, reversible error occurs when an error “appears to have affected the
outcome of the trial.” McHale v. Kiswani Trucking, Inc., 2015 IL App (1st) 132625, ¶ 28.
¶ 158 The trial judge’s grant of plaintiff’s motion in limine No. 32 was, by itself, reversible error.
The preclusion of Green’s testimony about Terrell’s appearance before the accident had a
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potentially dramatic affect on the jury’s verdict, specifically its apportionment of fault. This
case centered around two potentially negligent litigants, Hiner and Howe, from an accident
where much of what Howe did or did not do, individually and through Langholf, was known.
But what was unknown were the actions of Terrell. While ultimately his truck initiated the
chain-reaction collision, the unanswerable question was why it happened. Obviously, Terrell
passed away as a result of the collision and so did Langholf, Inman, and Walsh, leaving the
jury to determine what caused the collision based predominantly on the opinions of experts.
Some of that speculation could have been mitigated had the jury been allowed to consider
Green’s observation that, shortly before the accident, Terrell was shirtless and then, shortly
after the accident, he was wearing a shirt. While the jury would not have been required to
believe Green’s testimony about Terrell, or even if it did believe the testimony, come to
conclusion that Terrell putting on a shirt caused the accident, the jury was deprived of a
potentially critical piece of evidence in determining the respective faults of Howe and Hiner.
The jury’s inability to consider this significant piece of evidence undoubtedly appears to have
affected the outcome of the trial, specifically the comparative fault of Howe and Hiner. See id.Accordingly, on this error alone, we must remand for a new trial.
¶ 159 Despite this finding, we still will address Howe’s additional two contentions regarding its
motions in limine Nos. 35 and 37, as they may be relevant upon remand.
¶ 160 2. Howe’s Motion in Limine No. 35
¶ 161 Howe’s motion in limine No. 35 sought, in part, to bar plaintiff’s expert witness, Morgan,
from offering his opinion that Langholf’s truck could have reached the next highway exit
where Morgan was not a mechanic and, during his deposition, he admitted he did not have any
specific evidence to support this proposition. The trial judge denied the motion as it related to
Morgan’s opinion, finding that the jury should be able to consider the testimony and give it
whatever weight deemed appropriate.
¶ 162 Howe argues that Morgan was unqualified to offer such an opinion and the opinion itself
was overly speculative. Plaintiff, however, posits again that the general verdict rule precludes
our review of this contention of error. But as we have already discussed, we cannot find the
general verdict rule precludes our review in this case. Nevertheless, plaintiff argues that
Morgan did not even make such an opinion at trial but rather merely testified that Langholf
should have attempted to limp along to the nearest exit. Regardless of the parties’ dispute in
this manner, our initial inquiry is the propriety of the trial judge’s pretrial ruling to allow the
opinion of Morgan that Langholf could have reached the nearest exit.
¶ 163 Generally, expert opinion testimony will be admissible if the expert is qualified by
experience, skill, knowledge, training, or education in a field with a degree of reliability, and
the testimony would aid the jury’s understanding of the evidence. Petraski v. Thedos, 382 Ill.
App. 3d 22, 28 (2008). But the opinion of an expert is only as valid as the reasons or basis
underlying the opinion. Id. As such, a party must lay a sufficient foundation to establish the
reliability of the reasons for the expert’s opinion. Id. Without such a basis, the opinion amounts
to sheer speculation. Wiedenbeck v. Searle, 385 Ill. App. 3d 289, 293 (2008). If an expert’s
opinion is based on so many “uncertain factors that he is required to guess or surmise to reach
an opinion, the expert’s opinion is too speculative to be reliable” and thus would not be
admissible. (Internal quotation marks omitted.) Maggi v. RAS Development, Inc., 2011 IL App
(1st) 091955, ¶ 63.
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¶ 164 Morgan was aware that Langholf had reported a turbo issue and knew of the associated
symptoms reported by Langholf that were present at the time the truck pulled to the side of the
road. Although Morgan was not a mechanic, he had more than 40 years’ experience in the
transportation safety business, which undoubtedly gave him a strong foundation from his
experience into the inner workings of commercial vehicles. Given Morgan’s extensive
expertise coupled with the facts he knew about Langholf’s truck and what had occurred, it was
not unreasonable for the trial judge to conclude that Morgan had a sufficient basis to offer his
opinion. Consequently, the trial judge did not abuse his discretion in allowing the opinion
testimony of Morgan.
¶ 165 3. Howe’s Motion in Limine No. 37
¶ 166 Lastly, Howe’s motion in limine No. 37 sought to bar, in part, any claim that a violation of
its purported internal policy requiring a driver to take a safety training course after a
preventable accident but before receiving another dispatch established a standard of care that,
if breached, constituted negligence. The trial judge denied the motion, finding that, because
the motion judge had already deemed admitted the negligence allegation related to the online
safety course, the issue had already been decided.
¶ 167 We have already concluded that the motion judge improperly sanctioned Howe by deeming
this allegation of negligence admitted. Because the trial judge’s rationale for denying this
motion in limine was a sanction now deemed improper and we have found reversible error in
connection with the trial judge’s grant of plaintiff’s motion in limine No. 32, Howe’s motion
in limine No. 37 will still be relevant on remand.
¶ 168 Whether a legal duty exists is ascertained by determining whether “parties stood in such a
relationship to each other that the law imposes an obligation on one to act for the protection of
the other.” (Emphasis omitted.) Rhodes v. Illinois Central Gulf R.R., 172 Ill. 2d 213, 238
(1996). If the law does not establish a duty, “one will not generally be created by a defendant’s
rules or internal guidelines.” Id.; see also Blankenship v. Peoria Park District, 269 Ill. App. 3d
416, 422 (1994) (holding a park district’s internal policies requiring a lifeguard to be on duty
at all times did not create a legal duty to have one on duty at all times); Fillpot v. Midway
Airlines, Inc., 261 Ill. App. 3d 237, 244 (1994) (holding an airline’s policy manual that required
the clearing of walkways did not create a legal duty to do so). Consequently, Howe’s purported
internal policy by itself of requiring a driver who had been involved in a preventable accident
to complete a safety course prior to receiving another dispatch did not establish a standard of
care that, if breached, constituted negligence.
¶ 169 However, regardless of any purported internal policy, employers do have legal duties to
the public with respect to their employees that, if breached, constitute negligence, including
the duty to only hire or retain competent employees and entrust vehicles to only competent
drivers. See, e.g., Gomien v. Wear-Ever Aluminum, Inc., 50 Ill. 2d 19, 20, 24 (1971) (finding
a plaintiff stated a cause of action where she alleged that an employer had a duty to users of
the highway to exercise reasonable care in its selection of drivers, which was allegedly
breached by hiring a habitually negligent driver); Malorney v. B&L Motor Freight, Inc., 146
Ill. App. 3d 265, 268 (1986) (finding that an employer has a duty to hire and entrust vehicles
to employees who are competent for the particular job and a “[l]ack of forethought may exist
where one remains in voluntary ignorance of facts concerning the danger in a particular act or
instrumentality, where a reasonably prudent person would become advised, on the theory that
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such ignorance is the equivalent of negligence”). What these cases stand for generally is that,
where an employer has knowledge, or reasonably should know, that its employee may pose a
danger to the public, such notice may establish a legal duty that, if breached, constitutes
negligence.
¶ 170 In other words, Howe’s purported internal policy alone did not establish a legal duty (see
Rhodes, 172 Ill. 2d at 238), but Langholf’s record as a driver could have depending on his
previous driving record. See Gomien 50 Ill. 2d at 20-24; Malorney, 146 Ill. App. 3d at 268.
While one preventable accident by itself may not require an employer to have its employee
undergo additional training before another dispatch, certainly a pattern of careless driving
could. While from our review of the record, we are only aware of Langholf’s preventable
accident the week before the fatal collision at issue in this appeal, there may be other incidents
of careless driving, which is something that can be explored on remand and whether Howe had
a legal duty with respect to Langholf as a result. As such, the trial judge should consider all of
these factors when deciding Howe’s motion in limine No. 37 on the merits on remand.
¶ 171 In sum, a new trial is warranted based upon the trial judge’s grant of plaintiff’s motion
in limine No. 32, which barred Green from testifying about Terrell being shirtless shortly
before the accident and wearing a shirt shortly after the accident. This new trial should occur
consistent with our additional finding that the motion judge improperly sanctioned Howe for a
discovery violation by deeming Howe’s negligence admitted for failing to require Langholf to
complete a required safety course following his preventable accident but prior to him receiving
another dispatch. And lastly, upon remand, the trial judge should consider Howe’s motion
in limine No. 37 on the merits.
¶ 172 III. CONCLUSION
¶ 173 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed in
part, reversed in part, and remanded for a new trial consistent with this opinion.
¶ 174 Affirmed in part and reversed in part; cause remanded with directions.
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