Hiland v. Scholz , 2023 IL App (4th) 220820-U ( 2023 )

NOTICE 2023 IL App (4th) 220820-U FILED
This Order was filed under July 6, 2023
Supreme Court Rule 23 and is NO. 4-22-0820 Carla Bender
not precedent except in the 4th District Appellate
limited circumstances allowed IN THE APPELLATE COURT Court, IL
under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
JOYCE HILAND, Administrator of the Estate of Dean ) Appeal from the
Meyersick, Deceased, ) Circuit Court of
Plaintiff-Appellant, ) Adams County
v. ) No. 17L40
CHRISTOPHER G. SCHOLZ, Special Representative )
of the Estate of Dale S. Monroe, Deceased, ) Honorable
Defendant-Appellee. ) Scott Douglas Larson,
) Judge Presiding.
JUSTICE CAVANAGH delivered the judgment of the court.
Presiding Justice DeArmond and Justice Zenoff concurred in the judgment.
ORDER
¶1 In Missouri, Dean Meyersick was involved in a three-vehicle traffic accident. His
car hit Dale S. Monroe’s pickup truck, which was disabled on the highway, and then ran into
Jackson D. Dolbeare’s oncoming car. In a hospital in Quincy, Illinois, Meyersick died of his
injuries. Plaintiff, Joyce Hiland, is the administrator of Meyersick’s estate. Hiland sued Monroe in
the Adams County circuit court, pleading counts under the Wrongful Death Act (740 ILCS
180/0.01 et seq. (West 2014)) and the Survival Act (755 ILCS 5/27-6 (West 2014)). During the
pendency of the proceedings below, Monroe died of causes unrelated to the traffic accident.
Defendant, Christopher G. Scholz, was substituted for Monroe as the special representative of
Monroe’s estate. The jury returned a verdict in defendant’s favor.
¶2 Plaintiff appeals. She argues that, in addition to committing several other errors, the
circuit court erred on a conflict-of-law question. By granting some of defendant’s motions
in limine, the court declined to recognize Monroe’s duty, under Missouri law, to warn approaching
drivers that his truck was stalled in the travel lane of the highway. This in limine ruling was
prejudicial, plaintiff argues, because, in accordance with that ruling, the court gave jury
instructions that left it up to the jury whether Monroe’s alleged failure to warn was negligent.
Plaintiff maintains that, under Missouri law, by contrast, such a failure to warn was in itself a
breach of duty and, hence, was negligence per se. Because we find merit in this conflict-of-law
argument, we do not reach plaintiff’s other claims of error. We reverse the judgment and remand
this case for a new trial.
¶3 I. BACKGROUND
¶4 A. The Three-Vehicle Accident
¶5 On November 10, 2015, Monroe was driving a pickup truck north on Missouri State
Highway B (Highway B), a two-lane country road that runs northeast and southwest. About a mile
south of LaGrange, Missouri, Monroe hit a deer. His truck went over the center line and came to
rest in the southbound lane, with the left tires on the shoulder and the right side of the truck
protruding into the southbound lane. Thus, the truck ended up pointing north in the southbound
lane of Highway B. Because the bumper was bent onto the front driver’s-side tire, which remained
fully inflated, the steering wheel would not turn, making it impossible to maneuver the truck the
rest of the way onto the shoulder—and the truck was on a curve of the highway. To get by
Monroe’s truck, a southbound vehicle, coming around the curve, would have to go into the
northbound lane.
¶6 After Monroe’s truck became immobilized in the southbound lane by the collision
with the deer, Dolbeare approached in the northbound lane. Simultaneously, Meyersick
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approached in the southbound lane. Meyersick’s car hit Monroe’s truck, careened into the
northbound lane, and hit Dolbeare’s oncoming car.
¶7 B. Defendant’s Tenth and Eleventh Motions in Limine
¶8 In his tenth and eleventh motions in limine, defendant requested the circuit court
bar plaintiff from mentioning, in the jury’s presence, that Monroe “had any duty to warn the
[p]laintiff [sic]” such as by waving his hands or his cell phone. The court granted these motions.
The reason for this ruling, the court explained, was that “the plaintiff ha[d] not presented sufficient
statutory citation or case law authority for the court to find that[,] in addition to the exercise of
ordinary care, the defendant had an affirmative duty to warn plaintiff and any oncoming
motorists.”
¶9 Plaintiff moved for reconsideration, arguing that this in limine ruling was
inconsistent with Hacker v. Quick Concrete Co., 857 S.W.2d 402, 408 (Mo. Ct. App. 1993), in
which the Missouri Court of Appeals stated, “As a general rule, a person who obstructs a roadway
with his or her vehicle has a duty to remove it and warn other drivers of the possible hazard.”
(Internal quotation marks omitted.) Nevertheless, the circuit court adhered to its in limine ruling.
The court found no conflict between Illinois statutory law (625 ILCS 5/11-402(a) (West 2014))
and Missouri statutory law (Mo. Rev. Stat. § 304.151 (2016)), both of which required “ ‘every
reasonable effort to move the vehicle or have it moved so as not to block’ ” traffic. The court
declined to “use Missouri case law to impose a corollary duty to warn approaching motorists of a
hazard the driver created on the traveled portion of a highway.” The court held that, instead, “the
Illinois Vehicle Code and the Illinois Civil Pattern Jury Instructions set forth the applicable duties
of drivers or operators of motor vehicles upon public highways.”
¶ 10 C. The Jury Instructions
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¶ 11 Plaintiff tendered jury instructions that, as plaintiff’s attorney told us in oral
arguments, reflected the applicable Missouri law.
¶ 12 Plaintiff’s jury instruction J defined Monroe’s duty. This proposed instruction read,
“It is the duty of every driver of a vehicle using a public highway to exercise ordinary care at all
times to avoid placing others in danger and to exercise ordinary care at all times to avoid a
collision.”
¶ 13 Plaintiff’s jury instruction L and plaintiff’s instruction No. 12 were issues
instructions for counts I and II of the complaint, the wrongful-death action and the survival action.
They stated:
“The issues to be decided by you *** are as follows:
The plaintiff *** claims that she was injured and sustained damage and that
the conduct of Dale Monroe was negligent in one or more of the following respects:
***
v. Failed to warn motorists of the obstruction of Highway B and the
dangerous condition caused by his vehicle ***.”
¶ 14 Plaintiff’s jury instruction Nos. 14 and 15 explained that plaintiff “ha[d] the burden
of proving” several propositions in counts I and II, including the following proposition: “that Dale
Monroe acted or failed to act in one of the ways claimed by the plaintiff, as stated to you in these
instructions and that in so acting, or failing to act, Dale Monroe was negligent.”
¶ 15 Plaintiff’s jury instruction G in turn defined “negligence” as follows:
“When I use the word ‘negligence’ in these instructions, I mean the failure
to do something which a reasonably careful person would do, or the doing of
something which a reasonably careful person would not, under the circumstances
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similar to those shown by the evidence. The law does not say how a reasonably
careful person would act under those circumstances. That is for you to decide.”
¶ 16 The circuit court gave plaintiff’s jury instructions G and J but refused plaintiff’s
jury instruction L and plaintiff’s jury instruction Nos. 12, 14, and 15.
¶ 17 In lieu of plaintiff’s jury instruction L and plaintiff’s jury instruction No. 12, the
circuit court instructed the jury:
“The plaintiff’s complaint consists of multiple counts.
The issues to be decided by you *** are as follows:
The plaintiff *** claims that she was injured and sustained damage and that
the conduct of Dale Monroe was negligent in one or more of the following respects:
***
v. Failed to act as a reasonable person by failing to warn motorists
of the obstruction of Highway B and the dangerous condition caused by his
vehicle ***.” (Emphasis added.)
In addition to using the phrase “[f]ailed to act as a reasonable person,” the court’s instruction
departed from the plaintiff’s jury instruction L and plaintiff’s jury instruction No. 12 by including
the issue of whether Meyersick “[f]ailed to reduce the speed of his vehicle as was necessary to
avoid a collision” and whether he thereby “was contributorily negligent.” Plaintiff disagreed that
any evidence had been adduced to support an instruction on contributory negligence.
¶ 18 As in plaintiff’s jury instruction Nos. 14 and 15, the circuit court instructed the jury
that plaintiff “ha[d] the burden of proving” that Monroe had “acted or failed to act in one of the
ways claimed by the plaintiff as stated to [the jury] in these instructions and that in so acting, or
failing to act, Dale Monroe was negligent.” But the court included some paragraphs on
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contributory negligence, explaining what defendant had to prove to sustain that defense. Only by
the addition of this language on contributory negligence did the court’s instruction depart from
plaintiff’s jury instruction Nos. 14 and 15.
¶ 19 II. ANALYSIS
¶ 20 To reiterate, Meyersick sustained injuries in a traffic accident in Missouri, and he
died of his injuries in Quincy, Illinois. Plaintiff, the administrator of his estate, then filed suit in
Quincy, in the Adams County circuit court. In its ruling on defendant’s pretrial motions in limine,
the court barred plaintiff from arguing to the jury that Monroe had a duty to warn Meyersick, such
as by waving his hands or his cell phone. The court declined to “use Missouri case law to impose
a corollary duty to warn approaching motorists of a hazard the driver created on the traveled
portion of a highway.” Instead, in the court’s view, Monroe’s duty was to exercise reasonable care
under the circumstances.
¶ 21 On appeal, plaintiff maintains that this in-limine ruling was erroneous because
(1) Missouri law differed significantly from Illinois law and (2) under conflict-of-law principles,
Missouri law should have governed. Quoting Hacker, 857 S.W.2d at 409, plaintiff argues that,
“[u]nder well-settled Missouri law, a driver on a Missouri highway has an affirmative ‘duty to
warn approaching motorists of a hazard [that the driver] has created on the traveled portion of a
highway.’ ” Plaintiff observes that, under Illinois law, by contrast, “no such affirmative duty to
warn exists.” Instead, under Illinois law, “[i]t was the duty of the defendant, before and at the time
of the occurrence, to use ordinary care for the safety of [the plaintiff] [and] [the plaintiff’s
property]”—meaning “it was the duty of the defendant to be free from negligence.” Illinois Pattern
Jury Instructions, Civil, No. 10.04 (2011) (hereinafter IPI Civil (2011) No. 10.04). “Ordinary care”
“mean[s] the care a reasonably careful person would use under circumstances similar to those
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shown by the evidence.” IPI Civil (2011) No. 10.02. “[Illinois] law does not say how a reasonably
careful person would act under those circumstances. That is for [the trier of fact] to decide.” Id.Plaintiff argues,
“The trial court’s failure to recognize and find that Monroe had a duty to warn under
well-established Missouri law substantially affected the outcome of the case
because[,] instead of the duty to warn being established as a matter of law, the trial
court left it up to the jury to decide whether Monroe had an obligation to warn.”
In other words, the in limine ruling affected the jury instructions, which in turn affected the verdict.
¶ 22 Defendant responds that “[t]he law, as far as the jury is concerned, is contained in
the jury instructions” and that “[p]laintiff’s ‘failure to warn’ theory was put before the jury.”
Defendant quotes, for instance, the instruction that the court gave on count II: “Failed to act as a
reasonable person by failing to warn motorists of the obstruction of Highway B and the dangerous
condition caused by his vehicle.”
¶ 23 Defendant is correct that, with respect to the failure to warn, the circuit court gave
essentially the jury instructions that plaintiff had tendered. Plaintiff never tendered an instruction
that Monroe had a duty to warn approaching drivers. Instead, she tendered—and the court gave—
plaintiff’s jury instruction J, which read, “It is the duty of every driver of a vehicle using a public
highway to exercise ordinary care at all times to avoid placing others in danger and to exercise
ordinary care at all times to avoid a collision.” True, the court added the phrase “[f]ailed to act as
a reasonable person” to plaintiff’s proposed instructions, but that phrase was an insignificant
addition considering that the reasonable-person standard already was in plaintiff’s jury instructions
G and J. Plaintiff complains, on appeal, that “the trial court left it up to the jury to decide whether
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Monroe had an obligation to warn.” But plaintiff’s jury instruction Nos. 14 and 15, which the court
gave (with the addition of language on contributory negligence), left this question up to the jury.
¶ 24 Even so, we hold it is irrelevant whether the jury instructions that plaintiff tendered
to the circuit court conformed to the interpretation of Missouri law that she now asserts on appeal.
The circuit court issued an order in limine holding that, instead of having an affirmative duty to
warn, Monroe had a duty to exercise ordinary care. That pretrial order settled the question of duty
once and for all in the proceedings below. Plaintiff was entitled to rely on that in limine ruling and
to draft her jury instructions accordingly.
¶ 25 Therefore, the only remaining questions for us are whether Missouri law differed
from Illinois law and, if so, whether conflict-of-law principles required the circuit court to apply
Missouri law over Illinois law. These are questions of law, which we decide de novo. See
Townsend v. Sears, Roebuck & Co., 227 Ill. 2d 147, 154 (2007). We will begin by examining the
two Missouri cases that plaintiff cites.
¶ 26 In Hacker, Cleo Chadwrick and Joseph Ellebracht were employees of Quinn
Concrete Co., Inc. (Quinn). Hacker, 857 S.W.2d at 404. They used the travel lane of a highway to
switch truck tractors on a semitrailer, thereby causing a chain of traffic accidents. Id. at 405. An
injured driver, Gary Dean Hacker, sued Chadwrick, Ellebracht, and Quinn for negligently blocking
the travel lane of the highway. Id. The jury found in Hacker’s favor (though apportioning to him
10% of the fault). Id. Chadwrick, Ellebracht, and Quinn appealed. Id. at 406. One of their
arguments on appeal was that the trial court had erred by giving jury instruction No. 8. Id. at 407.
That instruction read as follows:
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“ ‘In your verdict you must assess a percentage of fault to defendants Quinn
***, *** Chadwrick and *** Ellebracht, whether or not plaintiff is partly at fault,
if you believe:
First, either:
Defendant Chadwrick failed to park his truck with the right side as near the
right hand side of Route WW as practicable, or
Defendants Chadwrick and Ellebracht failed to warn oncoming traffic on
Highway 65 that entrance onto Route WW was blocked, and
Second, defendants Chadwrick and Ellebracht were thereby negligent, and
Third, such negligence directly caused or directly contributed to cause
damage to plaintiff.
In assessing such percentage of fault against Quinn ***, Ellebracht and
Chadwrick, you must consider them all as one party and assess only the fault of
Ellebracht and Chadwrick as the fault of all.’ ” Id. at 408.
The appellants contended that the failure-to-warn language of this instruction misstated the law
and was unsupported by the evidence. Id. The Missouri Court of Appeals disagreed. Id. at 409. It
noted that, in a previous decision, it held, “ ‘As a general rule, a person who obstructs a roadway
with his or her vehicle has a duty to remove it and warn other drivers of the possible hazard.’ ” Id.
at 408 (quoting Pruneau v. Smiljanich, 585 S.W.2d 252, 254 (Mo. Ct. App. 1979)). Case law
“ ‘recognized [a] caveat’ ”: “ ‘there are situations in which both these duties cannot be performed
simultaneously.’ ” Id. at 409 (quoting Pruneau, 585 S.W.2d at 254). The Hacker court found,
“[A]ppellants’ situation was not such that it prevented one or both of them from warning
approaching traffic that their truck was blocking [the highway].” Id. Therefore, “[i]t [was] apparent
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[that the] appellants did have a duty to warn oncoming traffic” and that jury instruction No. 8
“[did] not misstate the law.” Id.¶ 27 In the other Missouri case that plaintiff cites, Pruneau, Betty P. Pruneau was
driving on a snow-covered highway when the right front passenger wheel of her car slid into a
ditch, leaving the rest of her car protruding into the travel lane of the highway. Pruneau, 585
S.W.2d at 254. Four of her children were riding with her. Id. Pruneau, her eldest daughter, and a
young man tried to extricate the car from the ditch, but they were unsuccessful. Id. Emil Smiljanich
approached in his car. Id. Upon reaching the crest of a knoll, he saw Pruneau’s car ahead and
slammed on his brakes. Id. His car skidded into Pruneau’s car, allegedly causing bodily injuries to
Pruneau. Id. Pruneau sued Smiljanich for negligence. Id. at 253. The jury found in favor of
Smiljanich, but the trial court granted Pruneau’s motion for a new trial. Id. Because the court gave
no rationale for granting a new trial, the order was, under Missouri law, presumptively erroneous.
Id. On appeal, Pruneau had the burden of rebutting the presumption of error by “proving that the
grant of a new trial was predicated on grounds presented in the motion for new trial.” Id.¶ 28 Pruneau defended the granting of a new trial by arguing that the trial court had erred
by giving jury instruction No. 11. Id. That instruction read as follows:
“ ‘Your verdict must be for defendant on the claim of Betty P. Pruneau if
you believe:
First, plaintiff Betty P. Pruneau’s automobile was stopped partially blocking
the road and plaintiff Betty P. Pruneau failed to warn eastbound traffic of her car
obstructing the road; and
Second, plaintiff Betty P. Pruneau was thereby negligent; and
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Third, such negligence of plaintiff Betty P. Pruneau directly caused or
directly contributed to cause any damage plaintiff Betty P. Pruneau may have
sustained.’ ” Id. at 253-54.
Pruneau contended that this jury instruction “was erroneous because it hypothesized that [she] had
an affirmative duty to warn eastbound travelers that her vehicle was obstructing a part of the
highway.” Id. at 254. The Pruneau court responded:
“As a general rule, a person who obstructs a roadway with his or her vehicle
has a duty to remove it and warn other drivers of the possible hazard. Cases in
which this rule has been addressed however, have also recognized the caveat that
there are situations in which both these duties cannot be performed simultaneously.
Eastman v. Brackman, 347 S.W.2d 126, 129 (Mo. 1961). We think this is such a
case. Mrs. Pruneau was travelling with four children: a daughter, age 16; a daughter,
age 14; a son, age 5; and a son, age 3. The Pruneau auto was in the ditch 5 to 10
minutes prior to the collision. During this time Mrs. Pruneau and her eldest daughter
were actively attempting to extricate the auto from the ditch. We cannot say that
Mrs. Pruneau’s action in staying with the car, and not sending a child up the road
on an overcast day to warn oncoming traffic, amounted to a breach of duty. Under
the facts here we believe the evidence failed to establish a submissible case of
contributory negligence as to a duty to warn by plaintiff. Accordingly, we hold it
was error to give such an instruction.” Pruneau, 585 S.W.2d at 254.
¶ 29 Thus, on the one hand, in Hacker, the Missouri Court of Appeals approved a jury
instruction to which the jury instructions the circuit court gave in the present case are comparable.
Under the jury instruction that Hacker endorsed, a failure to warn approaching drivers could
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subject the driver to liability only if the jury additionally found that the driver was “ ‘thereby
negligent’ ” (and that the negligence proximately caused the plaintiff’s injuries). Hacker, 857
S.W.2d at 408; see Missouri Approved Jury Instructions (Civil) No. 17.01 (8th ed.). Therefore,
under the jury instruction in Hacker—which, the Missouri Court of Appeals held, “[did] not
misstate the law” (Hacker, 857 S.W.2d at 409)—there was no duty to warn approaching drivers,
but, rather, the duty was not to be negligent. On the other hand, however, the Hacker court
reaffirmed the holding in Pruneau that, “ ‘[a]s a general rule, a person who obstructs a roadway
with his or her vehicle has a duty to remove it and warn other drivers of the possible hazard’ ”
unless “ ‘both these duties cannot be performed simultaneously.’ ” Hacker, 857 S.W.2d at 408-09(quoting Pruneau, 585 S.W.2d at 254).
¶ 30 Hacker and Pruneau both unambiguously held that, under Missouri law, a driver
whose vehicle is stalled on the roadway generally has a duty to remove the vehicle and to warn
approaching drivers unless both duties could not be performed at the same time. Id.; Pruneau, 585
S.W.2d at 254. We take these statements of duty at face value; it is not our role to problematize
them. We assume that, in Hacker and Pruneau, the Missouri Court of Appeals meant what it
clearly said. No Illinois case holds that a driver whose vehicle is stalled on the roadway generally
has an affirmative duty to warn approaching drivers. Instead, under Illinois law, the duty is to use
ordinary care, or not to be negligent. See IPI Civil (2011) No. 10.04.
¶ 31 “[A] choice-of-law analysis begins by isolating the issue and defining the conflict.
A choice-of-law determination is required only when a difference in law will make a difference in
outcome.” Townsend, 227 Ill. 2d at 155. The appellate court has interpreted the phrase “make a
difference in the outcome” as meaning to yield a different result “regarding the issue in question.”
Gleim v. Roberts, 395 Ill. App. 3d 638, 641 (2009). Applying Missouri law instead of Illinois law
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would have yielded a different result as to the issue of duty, and the difference would have been
expressed in the jury instructions. Under the jury instructions that the circuit court gave, the duty
was ordinary care, and it was for the jury to decide whether Monroe had failed to warn Meyersick
and Dolbeare and, if so, whether Monroe thereby had been negligent. By contrast, if the jury
instructions had been drafted in accordance with Missouri law, warning approaching motorists
would have been the duty, and a breach of that duty would have been negligence per se. By
instructing the jury under Missouri law, the court would have told the jury that if Monroe failed to
warn Meyersick and Dolbeare and if Monroe was not otherwise occupied in attempting to move
his truck, the jury had to find that Monroe was negligent.
¶ 32 Having isolated a difference between Missouri law and Illinois law that would
make a difference as to the issue of duty, we follow the analysis in Townsend. We begin with the
“strong presumption *** that the law of the place of injury,” Missouri, “governs the substantive
issues herein.” (Emphasis in original.) Townsend, 227 Ill. 2d at 166. “We now test this presumptive
choice against the principles in section 6 [of the Restatement (Second) of Conflict of Laws (1971)]
in light of the contacts identified in section 145(2) [(id. § 145(2))].” Id. at 166-67. Our purpose is
to determine whether “Illinois has a more significant relationship to the occurrence and the parties”
than Missouri has. Id. at 166.
¶ 33 In its own methodology, the supreme court has “first identified the four contacts
listed in section 145(2) and then applied the general principles of section 6 to those contacts.” Id.
at 167. Section 145(2) provides as follows:
“(2) Contacts to be taken into account in applying the principles of § 6 to
determine the law applicable to an issue include:
(a) the place where the injury occurred,
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(b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, nationality, place of incorporation and
place of business of the parties, and
(d) the place where the relationship, if any, between the parties is
centered.
These contacts are to be evaluated according to their relative importance with
respect to the particular issue.” Restatement (Second) of Conflict of Laws § 145(2)
(1971).
¶ 34 First, the injury occurred in Missouri. That fact “raises a presumption in favor of”
Missouri law. Townsend, 227 Ill. 2d at 168 (citing Restatement (Second) of Conflict of Laws § 146
(1971)). Second, “the place where the conduct causing the injury occurred” likewise is Missouri.
Restatement (Second) of Conflict of Laws § 145(2) (1971). Third, the parties reside in Illinois.
Fourth, the parties have no relationship with one another. They are merely estate representatives
on opposing sides in an Illinois lawsuit. We hold that the Illinois residency of the parties is
insufficient to overcome the “strong presumption *** that the law of the place of injury,” Missouri,
“governs the substantive issues herein.” (Emphasis omitted.) Townsend, 227 Ill. 2d at 166.
¶ 35 Next, we turn to section 6. According to Townsend, 227 Ill. 2d at 170, the factors
in section 6 that are relevant to a personal-injury lawsuit are as follows:
“(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests
of those states in the determination of the particular issue, [and]
***
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(e) the basic policies underlying the particular field of law.” Restatement
(Second) of Conflict of Laws § 6(2)(b), (c), (e) (1971).
All three of those factors tend to reinforce the strong presumption that Missouri law should govern
this personal-injury action. Illinois has no “relevant policies” on how drivers should conduct
themselves on Missouri highways. Id. § 6(2)(b). Missouri, on the other hand, has a compelling
interest in keeping its highways safe. See id. § 6(2)(c). It can be inferred that a policy behind the
negligence per se rule in Missouri is to deter drivers from allowing their broken-down vehicles to
endanger other drivers on Missouri highways. See id. § 6(2)(e). Failing to apply Missouri law
would tend to weaken that deterrence.
¶ 36 In sum, then, when we test the “presumptive choice” of Missouri law “against the
principles embodied in section 6 in light of the relevant contacts identified by the general tort
principle in section 145,” we find the presumption to be unrebutted. Townsend, 227 Ill. 2d at 175.
In its in limine ruling and in its instructions to the jury, the circuit court should have applied the
Missouri law that, “[a]s a general rule, a person who obstructs a roadway with his or her vehicle
has a duty to remove it and warn other drivers of the possible hazard” unless “both these duties
cannot be performed simultaneously.” (Internal quotation marks omitted.) Hacker, 857 S.W.2d at
408-09.
¶ 37 III. CONCLUSION
¶ 38 For the foregoing reasons, we reverse the circuit court’s judgment and remand this
case for a new trial.
¶ 39 Reversed and remanded.
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