Egan v. McCullough – Trial court did not err in refusing an instruction that at least one of the drivers was negligent in death of passengers

Egan v. McCullough, 2013 IL App (1st) 122475 (Hyman)

Facts:  The executors of the estates of three women killed when they were passengers in a car that collided with a truck on an icy road filed wrongful death claims against both the driver of the vehicle and the driver of the truck (and his employer and affiliates) alleging that both drivers were traveling too fast for conditions and that the truck driver should have not have veered to the right prior to the collision.  Prior to trial, the plaintiff presented a motion in limine that sought to bar any argument or reference that anything other than the alleged negligence of the defendants caused or contributed to cause plaintiffs’ injuries, which was not objected to by the defendants and granted.  At trial, the evidence revealed that the roads were “icy, slushy, slippery, treacherous” and both of the drivers were traveling below the posted speed limit.  The driver of the car lost control of her vehicle on the ice and began to fishtail and cross over the center line and into the truck’s path of travel.  In response to this, the truck driver began to slow his vehicle in a controlled braking and also veered to the right into a field.  The car continued to cross into the oncoming lanes and also veered into the field where the car and truck ultimately collided.  The three passengers in the vehicle were killed as a result of injuries sustained in the collision.  The plaintiff presented an expert witness that was critical of the truck driver for traveling too fast for conditions and opined that had he been traveling 30 mph, which was 25 mph below the posted speed limit, he would have been able to stop his truck without colliding with the plaintiff.  The plaintiff also presented 3 animations showing various fact patterns, including a theory that if the truck driver had stayed in his lane and not veered to the right, the truck would have just missed colliding with the vehicle as it crossed over the oncoming lanes.  The plaintiff’s expert conceded on cross examination that the vehicle code does not require trucks to travel 25 mph below the speed limit, that he would not advise a driver to stay in its lane if a vehicle is crossing into its path of travel and that once the car crossed the center line the truck driver had 1.5 seconds to perceive the situation, decide on an action plan and react.  After the close of evidence, the plaintiff submitted a modified IPI 3.06 jury instruction that advised the jury that the court had determined that the collision is not one that occurred in the absence of negligence and that one or more of the defendants is liable.  The trial court ruled that it would be improper for the jury to be instructed that it had determined that the collision was a result of negligence because no motion for directed verdict had been presented or granted by the court and neither of the defendants had conceded negligence.  The trial court refused the instruction and the jury found in favor of both defendants.

Holding:  Trial court did not abuse its discretion in refusing to give an instruction that at least one of the drivers was negligent since there was substantial disputed evidence as to whether either driver was negligent and the jury was free to find that both drivers acted reasonably under the circumstances.

Filed in Trial Book:  Standard of Review – Jury Instructions, Absence of Negligence, Snow and Ice, Directed Verdict, New Trial

Commentary:  This is the kind of result that keeps plaintiff’s lawyers up late into the night.  Typically, representing a passenger in a motor vehicle collision is a great case for the attorney because you file suit against both defendants and let the jury sort out the degrees of fault between the drivers.  But this case was far from typical and demonstrates that the mere existence of a collision does not always mean that you can establish negligence against the defendant drivers.  The plaintiff argued on appeal the finding from Millette v. Radosta, 84 Ill.App. 3d 5 (1980), which held that “an automobile properly operated does not, under normal conditions, collide with another automobile or strike a building. Where two automobiles collide under normal conditions, it will be presumed that the collision occurred from the negligent operation of one or both colliding automobiles.”   But the appellate court distinguished this case and found that the accident did not occur under “normal conditions” and because of the icy road conditions the collision could have occurred in the absence of negligent driving.  This conclusion is a bit troubling because snow and ice is not unusual on Illinois roads in the winter (or fall and spring) and drivers need to be accountable for how they operate their vehicles in these conditions.  In my opinion, ice is a normal condition that drivers find in the winter, and if you lose control of the vehicle while driving on an icy road, it seems to follow that this loss of control occurred because you were traveling too fast for the conditions present on the road.  Adding typical and predictable snow and ice conditions on a roadway to the “act of god” defense seems to have the potential for unjust outcomes.

I don’t know what the policy limits were on the car, but I suspect that the likelihood of collecting  on a substantial verdict was much greater if the truck’s responsibility for the collision was at least 25%, and as a result the plaintiff tried to steer as much evidence of negligence onto the truck drier as they reasonably could.  From the facts presented in the opinion, it appears that the majority of any potential liability was on the driver of the vehicle who set the collision in motion when she lost control of her vehicle on ice and veered over the center line and into the path of the truck.  At that time, the truck driver was driving below the speed limit and, importantly, there was no evidence that he lost control of the truck on the ice.  Instead, he deliberately veered to the right to avoid the collision.  I think that the plaintiffs theory that the collision could have been avoided had the driver not veered to the right and stayed straight on his original path is a really tough argument to sell to a jury.  It’s hard to criticize a driver for instinctively veering away when suddenly presented with a vehicle crossing over the center line into its path of travel, and the plaintiffs’ retained expert conceded on cross-examination that he would not advise drivers to continue driving straight when a car crosses the center line into their lane of travel. Clearly, if the plaintiffs had received the jury instruction that they tendered regarding fault, the jury would have had to find one of the drivers responsible.  But based upon the evidence presented to the jury, the trial court refused the instruction because there was disputed evidence on whether any of the acts of the drivers were unreasonable under the circumstances.

Again, this is a heartbreaking result.  The plaintiffs were represented by a very good attorney with a track record for very successful results at trial, and with the expert testimony and three animations presented to the jury in support of the plaintiffs theory, it’s clear that no expense was spared in preparing the case for trial.  Yet, at the end of the day it seems as if the jury identified with the plight of the drivers on the snowy and slick road.

Useful Rules/Language from the Opinion:

Standard of Review – Jury Instructions:  A trial court has discretion to determine which instructions to give the jury and that determination will not be disturbed absent an abuse of that discretion. Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260, 273-74 (2002).  A circuit court does not abuse its discretion regarding jury instructions if the instructions in their entirety “fairly, fully, and comprehensively apprise[ ] the jury of the relevant legal principles.” Id. A reviewing court ordinarily will not reverse a trial court for giving faulty instructions unless they plainly misled the jury and resulted in prejudice to the appellant. Id. at 274.

Absence of Negligence:  ‘[W]e believe a presumption of negligence does arise when the occurrence is shown to proceed from a performance of acts of such character, that when due care is taken, no injury ordinarily results from it. An automobile properly operated does not, under normal conditions, collide with another automobile or strike a building. Where two automobiles collide under normal conditions, it will be presumed that the collision occurred from the negligent operation of one or both colliding automobiles.’ Millette v. Radosta, 84 Ill. App. 3d 5, 27 (quoting Krump v. Highlander Ice Cream Co., 30 Ill. App. 2d 103, 105-07 (1961))….That the accident did not occur under “normal conditions” constitutes another characteristic distinguishing this case from Millette.  As plaintiffs tried to establish throughout the trial, snow covered Peace Road when the accident occurred, and witnesses offered differing opinions about the condition of the road and the effect it may have had on driving conditions. Therefore, unlike in Millette, it cannot be said that under the conditions present on Peace Road on December 1, 2008, an accident could not have happened unless one or both of the parties were negligent.

Directed Verdict:  Where a substantial factual dispute is disclosed by the evidence, the question of plaintiff’s due care or defendant’s negligence should be given to the jury for determination. Korpalski v. Lyman, 114 Ill. App. 3d 563, 566 (1983)

New Trial:  A court of review will not reverse a circuit court’s decision with respect to a motion for a new trial unless it finds the circuit court abused its discretion, and the reviewing court must be “mindful that credibility determinations and the resolution of inconsistencies and conflicts in testimony are for the jury.” York, 222 Ill. 2d at 179. An abuse of discretion occurs only if “no reasonable person would take the view adopted by the trial court.” Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 177 (2003).

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Filed under Automobile, Negligence, Trial

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