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Maffett v. Bliss
State: Illinois
Court: 4th District Appellate
Docket No: 4-01-0569 Rel
Case Date: 04/23/2002

NO. 4-01-0569

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

KATHLEEN MAFFETT and MATTHEWMAFFETT,
                        Plaintiffs-Appellants,
                        v.
THURMAN J. BLISS and JAMES BLISS,
                       Defendants-Appellees.
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Appeal from
Circuit Court of
McLean
County
No. 98L131

Honorable
Elizabeth A. Robb
,
Judge Presiding.


JUSTICE STEIGMANN delivered the opinion of the court:

In August 1998, plaintiffs, Kathleen and Matthew Maffett, sueddefendants, Thurman and James Bliss, for injuries Kathleen sustained when herminivan collided with a bean head attached to James' combine, which was beingdriven by Thurman. (A bean head is a 21 1/2-foot-wide raised steel platform usedto harvest crops.) Following a January 2001 jury trial, the jury returned averdict in favor of the Blisses and against the Maffetts.

The Maffetts appeal, arguing that (1) the trial court erred by (a)excluding the testimony of certain witnesses regarding the fog and visibility nearthe time of the accident, (b) refusing to allow rebuttal evidence regardingvisibility and fog, (c) allowing evidence regarding Kathleen's prior visionproblems, (d) permitting the Blisses to cross-examine one of the Maffetts' expertwitnesses using various journal articles without having timely disclosed thosearticles during discovery, (e) permitting the Blisses to impeach one of theMaffetts' expert witnesses with a note the witness had written to himselfregarding Kathleen's symptoms of post-traumatic stress disorder, (f) allowing theBlisses to cross-examine one of the Maffetts' expert witnesses regardingKathleen's postaccident alcohol consumption, (g) allowing the Blisses to cross-examine the Maffetts regarding Kathleen's postaccident legal gambling activities,and (h) denying the Maffetts' motions for a new trial and for judgment notwithstanding the verdict (judgment n.o.v.); (2) the Blisses' counsel violated thecourt's order barring evidence that police had not ticketed Thurman for a trafficviolation as a result of the accident; and (3) James violated the court's orderbarring evidence regarding the Blisses' financial status. We reverse and remandfor a new trial.

I. BACKGROUND

On the morning of October 14, 1996, Kathleen was driving her minivanwest on 1600 North Road in McLean County. At the same time, Thurman was drivingJames' combine east on 1600 North Road. At around 7:35 a.m., Kathleen's minivancollided with the combine's bean head, which was raised between two or four feetoff the roadway and hanging over into Kathleen's lane of traffic. The collisionoccurred over a culvert with cement side abutments and yellow-and-black-stripedobstacle signs marking the sides of the culvert. As a result of the collision,Kathleen sustained very serious injuries.

In August 1998, the Maffetts filed a four-count complaint against theBlisses, alleging (1) negligence on the part of both Thurman and James (counts Iand II) and (2) loss of consortium (counts III and IV), which they later amended.

The evidence at the January 2001 jury trial showed the following. OnOctober 14, 1996, Kathleen woke up at 6:30 a.m. She typically left her house at7:15 a.m. However, on that morning, she left her house earlier than usual afternoticing that it was foggy. Kathleen secured her son in her car, turned on herheadlights, and began driving to her baby-sitter's house. On the way there, thefog got "thicker." After dropping off her son, Kathleen put her seat belt backon, backed out of the baby-sitter's driveway, and drove west on 1600 North Roadtoward the site of the accident. Due to head trauma sustained in the accident,Kathleen did not recall anything that happened after backing out of the baby-sitter's driveway.

As a result of the accident, Kathleen sustained fractures of herforehead, nose, jaw, left hand, wrist, and forearm, severe facial lacerations, aconcussion, and damage to her femoral nerve. She has permanent facial scarring,was unable to bend her left wrist, and lost her senses of taste and smell. Kathleen also stated that since the accident, she had experienced episodes ofconfusion and panic, and she had been diagnosed with post-traumatic stressdisorder. She further stated that because of her injuries, she was unable toenjoy certain hobbies and ordinary activities.

On cross-examination, Kathleen acknowledged that she had encounteredcombines over culverts on previous occasions. In those situations, either she orthe farmer stopped before the culvert and allowed the other person to pass. Shealso acknowledged that a reasonable person would reduce her speed where visibilitywas "somewhat reduced" on a country road during harvest season. Kathleen furtherstated that she had prior vision problems.

Louis Saunier, a volunteer firefighter, testified that at around 7:45a.m. on October 14, 1996, he was working at his body shop in Cooksville when hereceived an emergency call regarding the accident. He drove about four minutesto the accident scene and tried to stabilize Kathleen until other emergencyworkers arrived.

Royce Kraft, a volunteer firefighter and farmer, received a page at7:58 a.m. that morning regarding the accident. He arrived at the scene around8:11 a.m. and observed that the combine's bean head was resting on the minivan andKathleen was pinned in the van.

Paula Hammond, a volunteer emergency medical technician, was at herhome in Anchor sometime before 8 a.m. when she received an emergency callregarding the accident. She drove to the fire station in Colfax and then rode inan ambulance to the accident scene. Hammond stated that it took her a littlelonger than usual to get to the fire station that morning because of the fog, andwhen she arrived at the accident scene, it was "very foggy." Upon arriving on thescene, Hammond helped stabilize Kathleen until emergency workers extricated herfrom the minivan. Kathleen was then transported by helicopter to the hospital.

Robert Brown, a sergeant with the McLean County sheriff's department,received a call sometime between 8:30 a.m. and 9 a.m. on October 14, 1996, to goto the accident scene and reconstruct the accident. When he arrived at the sceneabout 30 minutes later, he noted that it was "very foggy." After discussing theaccident investigation with other police officers, Brown formulated the opinionthat based on the fog and the location of the accident, "the head on the combinewas protruding into the van's lane." He also stated as follows: "I knew it wasvery foggy on my way [to the accident scene] and just in my mind, I kind ofthought fog might have something to do with this accident."

Brown acknowledged that he did not know what the visibility conditionswere like when the collision occurred. He also stated that if a witness testifiedthat visibility at the time of the accident was one-quarter mile (1,320 feet), hewould have no reason to dispute the witness. Brown did not have an opinionregarding what the weather conditions were at Thurman's house when Thurman lefton the morning of the accident.

Carl Boyd, a sergeant with the McLean County sheriff's department, wascalled to the accident scene from Bloomington. Although he did not recall whattime he arrived, he remembered that he was delayed because it was very foggy. When he arrived at the scene, it was "very thick with fog." Boyd noticed that theminivan was facing west and was far over to the right side of its lane. Thecombine was facing east and the bean head was across the entire width of theroadway. According to Boyd, Thurman told him that the fog was patchy and appearedto get worse when Thurman turned onto 1600 North Road on the morning of theaccident.

Boyd acknowledged that he was not near the scene of the accident whenit occurred, and he did not know what the weather conditions were at that time. He also stated that if Thurman testified that visibility at the time of theaccident was one-quarter mile, Boyd would have no reason to dispute thattestimony.

William Kinsella testified that on the day of the accident, he livedapproximately 870 feet from the accident site. He stated that 1600 North Road wasa blacktop, rural road that was busy from around 6:30 a.m. until 8:30 a.m. Soonafter the accident, Thurman knocked on Kinsella's door and told him about theaccident. Kinsella telephoned 9-1-1, and then he and Thurman drove to theaccident scene, which was about two or three minutes away. Kinsella stated thatit was foggy as they drove to the scene. After they arrived at the scene,emergency workers began arriving within about two minutes. Thurman told Kinsellathat weather conditions were clear when Thurman left his house that morning.

Peggy Bliss, who was married to Thurman in October 1996 (they hadsince divorced), testified that between 5:30 a.m. and 6 a.m. on October 14, 1996,James called Thurman and asked him to drive the combine from Peggy and Thurman'shouse in rural Towanda to one of James' fields. Peggy was concerned about the"patchy fog" and asked Thurman to wait until the fog lifted. James called about45 or 50 minutes later and asked Thurman why he had not left. When Thurman leftshortly thereafter, Peggy noticed that it was still "foggy, patchy."

Peggy acknowledged that on the morning of the accident, she could"kind of see" her neighbor's house, which was about one-quarter mile away from herhouse. She also acknowledged that she was six miles from the accident scene atthe time the accident occurred, and she did not know what the weather conditionswere like when the collision occurred.

Dr. Robert Aherin, a farm safety expert at the University of Illinois,testified as the Maffetts' expert that an operator of a combine has the right totransport his equipment on public roadways. Combine operators also have aresponsibility to assure that (1) the combine is readily recognized as a piece offarm equipment through lighting, markings, and visibility; and (2) other vehicleoperators are allowed to use their traffic lane free from obstruction. Aherinstated that it is not reasonable to expect farmers to move equipment during theharvest season when it is foggy. He opined that if a careful and prudent combineoperator encounters fog where visibility is not good (that is, less than 1,000feet), he should move off the roadway if the combine is protruding into theoncoming traffic lane. Aherin also stated that even though no state law orregulation requires lighting on the bean head itself, safety experts have longrecommended that when someone is moving equipment that is wider than the maintransporting unit, lights should be placed on the extremities of the unit,particularly on the far left. The lighting should be adequate enough to allowapproaching drivers to determine the width of the equipment.

Aherin also testified that the portion of 1600 North Road near theaccident site was a fairly level roadway with a wide shoulder on most portions ofthe road. He stated that there were adequate places to pull over a combine alongthe roadway. Aherin acknowledged that if visibility were at least 1,000 feet, itis within regulation and appropriate for a farmer to move his combine from onefield to another on a country roadway without removing the bean head. He alsoacknowledged that if visibility were at least 1,000 feet, an approaching driverwould have sufficient time to see and react to a combine.

Dr. Ronald Ruhl, a professional engineer and an accident reconstruction expert, testified as the Maffetts' expert that 1600 North Road is a secondaryroad that is 16 feet wide. (A normal two-lane road is 24 feet wide.) He statedthat there are two creeks near the portion of the road at the accident site, whichmakes the area conducive to fog formation. Ruhl also stated that the combine hadlights on the cab but no lights or reflectors on the bean head. He estimated thatprior to the accident, Kathleen was traveling between 40 and 50 miles per hour. He further estimated that at the time of the collision, her speed was less than10 miles per hour, if not zero, and her minivan was near the other side of theculvert. Upon impact, the combine was just starting to cross the culvert, and theforce of the impact pushed Kathleen's minivan back five or six feet.

Ruhl opined that the cause of the accident was the "ambushing" ofKathleen's minivan by the combine, which had moved into the center of the roadwaywithin about four seconds and blocked the entire roadway with the bean head. Ruhlexplained that the term "ambush" means that the combine had an unlit bean head andheadlights on the cab that were spaced laterally at approximately the samedistance as a truck's headlights. This configuration resulted in confusion toapproaching drivers, who would perceive a normal width vehicle in the oncominglane. Ruhl opined that Kathleen did not do anything that caused the accident.

Ruhl acknowledged that it would have been acceptable for Thurman tooperate the combine on the roadway if visibility was 1,000 feet. He alsoacknowledged that if visibility was 1,000 feet at the time of the accident,Kathleen could have seen the combine's headlights.

Several physicians, including Dr. Stephen Sabol, an oral andmaxillofacial surgeon, Dr. Herman Dick, a neurologist, and Dr. Chris Dangles, anorthopedist, testified about Kathleen's various injuries and their treatment ofher following the accident.

Dr. Douglas Bey, Kathleen's treating psychiatrist, testified that onJune 22, 2000, he sent Kathleen a letter setting out what she had told him duringtheir first session. That letter stated, in part, that Kathleen had told Bey thatshe lost her peripheral vision and had a blind spot in her left eye. Bey furtherstated that his review of Dick's reports and deposition indicated that "there wasno restriction on [Kathleen's] driving."

Thurman testified that he left his home sometime before 7 a.m. onOctober 14, 1996. He intended to drive the combine to James' field nearCooksville. Thurman turned on the combine's lights, including two flashing amberlights. When he left his house, visibility was about one mile. When he was abouttwo miles away from the accident site, it became foggy. When he turned onto 1600North Road, it was still foggy, with visibility more than one-quarter of a mile. Thurman stated that he met two cars on the roadway and pulled off to let them goby without any problems.

When Thurman first saw Kathleen's minivan, he was two or threeseconds, or about 50 feet, away from the culvert. He kept his eyes on Kathleen'sheadlights, slowed down, and got in the middle of the road to cross the culvert. As he approached the culvert, he slowed down to four or five miles per hour andcalculated that he could get across the culvert and out of the way beforeKathleen's vehicle reached the culvert. When he realized the oncoming vehicle wasnot going to stop in time, he stopped the combine and was trying to shift it intoreverse when the collision occurred. Thurman expected the oncoming vehicle toslow down because that was what usually happened when a vehicle approached hiscombine. He assumed that if he saw approaching vehicles, the drivers of thosevehicles also saw the combine. Thurman did not notice the oncoming vehicleslowing down and did not realize until after the accident that Kathleen left skidmarks measuring 137 feet.

Thurman acknowledged that the bean head stuck out into the oncomingtraffic lane and did not have any lights on it. He also acknowledged that whenhe encountered fog on the morning of the accident, he decided to continue becausehe "could see fine." Just prior to the accident, he saw headlights coming overa hill that was one-quarter mile away from the culvert. Although he did not knowhow fast Kathleen was traveling, he believed that she was "going at a high rateof speed." Thurman further acknowledged that he was not sure whether the combinewas stopped, barely moving forward, or barely moving backward at the moment ofimpact. He denied having pulled off the roadway earlier that morning because ofthe foggy conditions.

Dr. Daniel Metz, a professional engineer in vehicle dynamics andaccident reconstruction, testified for the Blisses that (1) there was not enoughphysical evidence to conduct "any kind of a serious [accident] reconstruction;"and (2) based on his review of the physical evidence, no one was at fault in thisaccident. Metz opined that no one could "actually reconstruct the events of thatmorning [of the accident] in terms of fog density to perfection." He also opinedthat it was appropriate for Thurman to have the combine on the roadway at the timeof the accident. Metz based that opinion on Thurman's testimony that visibilitywas one-quarter mile at the time of the accident. Metz also stated that theflashing amber lights on the cab of the combine made the combine more conspicuous. Metz stated that he did not agree or disagree with Ruhl's opinion that the combineambushed Kathleen's minivan.

Metz acknowledged that the configuration of lights on the front of acombine could fool oncoming drivers regarding the width of the vehicle they wereapproaching.

On this evidence, the jury returned a verdict in favor of the Blissesand against the Maffetts. This appeal followed.

II. ANALYSIS

A. The Maffetts' Claim That the Trial Court Erred by
Refusing To Allow the Testimony of Saunier, Kraft, and Hammond Regarding TheirObservations of the Fog and Visibility


The Maffetts first argue that the trial court erred by refusing toallow the testimony of Saunier, Kraft, and Hammond regarding their observationsof the fog and visibility near the time of the accident, both as they approachedthe accident scene and at the scene. In response, the Blisses argue that theproffered testimony was cumulative and not relevant. We agree with the Maffetts.

1. The Proffered Testimony

The Blisses filed a motion in limine seeking to exclude "any and alltestimony regarding visibility immediately before and at the time of the accident,except testimony from the parties *** [and] any testimony regarding the visibilitythat existed at any time subsequent to the accident." The trial court reservedits ruling on the motion until the Maffetts proffered their witnesses.

At trial, the trial court refused to admit the testimony of Saunier,Hammond, and Kraft regarding their observations of the fog and visibility near thetime of the accident, as they approached the accident scene, and at the scene. The court determined that this testimony was not relevant because the profferedwitnesses (1) were not present at the scene at the exact time of the accident toobserve the fog and visibility, and (2) did not observe the fog and visibilityalong the specific route Thurman traveled on the morning of the accident. (DuringBrown's testimony, the trial court stated that it had reconsidered its ruling andallowed Brown to testify regarding visibility and fog at the accident scene uponBrown's arrival. The court later allowed Boyd and Kinsella to testify as to theirobservations of the fog and visibility at the accident site.)

Saunier testified in an offer of proof that he was the first emergencyworker to arrive on the scene several minutes after the collision. He was inCooksville, which was four minutes north of the accident site, when he receivedthe emergency call. He testified that visibility en route to the scene wasbetween 100 and 120 feet because the roads south of Cooksville were "shrouded withfog." When he turned onto 1600 North Road, he found that it also was "fogged in." His top speed driving to the scene was 45 miles per hour. The poor visibility didnot improve and was consistent as he drove to the accident site.

Hammond, an emergency medical technician, testified in an offer ofproof that as she approached the accident site from the west, the fog "closed in"on her. She arrived on the scene a couple of minutes before she first tookKathleen's vital signs at 8:10 a.m. Hammond stated that a helicopter out ofPeoria would not fly to the accident scene because of the fog and lack ofvisibility. A helicopter flown in from Champaign had trouble locating theaccident site and had to be guided in by voice because of the limited visibility. Hammond could not recall when that helicopter arrived.

Kraft testified in an offer of proof that just before 8 a.m. on themorning of the accident, he left his house in Normal and traveled to the accidentsite. As he got closer to the scene, the fog became "thicker." As he got nearerto the accident site, there were spots where visibility was 100 feet or less. When he arrived at the scene at 8:11 a.m., visibility was one-eighth of a mile. He also stated that a helicopter had a difficult time landing because of the fog. Kraft, who is a farmer, would not have taken his combine out on the road"probably" because of the poor visibility.

2. Analysis

Generally, each party is entitled to present evidence that is relevantto its theory of the case. Koonce v. Pacilio, 307 Ill. App. 3d 449, 463, 718N.E.2d 628, 639 (1999). "Evidence is relevant if it tends to either prove a factin controversy or render a matter in issue more or less probable ***." Galowichv. Beech Aircraft Corp., 209 Ill. App. 3d 128, 135, 568 N.E.2d 46, 50 (1991). Further, negligence may be established by using either direct or circumstantialevidence. Circumstantial evidence is the proof of facts and circumstances fromwhich a jury may infer other connected facts that usually and reasonably follow,according to their common experience. Barker v. Eagle Food Centers, Inc., 261Ill. App. 3d 1068, 1072, 634 N.E.2d 1276, 1279 (1994). The admission of evidencelies within the trial court's discretion, and a reviewing court will not disturbthe trial court's ruling absent an abuse of discretion. Koonce, 307 Ill. App. 3dat 463, 718 N.E.2d at 639.

Weather reports and observations are generally held to be admissiblein most jurisdictions. See generally D. Feld, Weather Reports and Records asEvidence, 57 A.L.R.3d 713,

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