Powell v. Dean Foods Co.

Illinois Official Reports
Appellate Court
Powell v. Dean Foods Co., 2013 IL App (1st) 082513-B
Appellate Court TRACEY POWELL, Individually and as Special Administrator of the
Caption Estate of Adam McDonald, Deceased; GEORGE KAKIDAS,
Individually and as Special Administrator of the Estate of Diana
Kakidas, Deceased; and ALEXANDER CHAKONAS, as Special
Administrator of the Estate of Christina Chakonas, Deceased,
Plaintiffs-Appellees, v. DEAN FOODS COMPANY, ALCO OF
WISCONSIN, INC., and JAIME L. REEVES, Defendants-
Appellants.
District & No. First District, Fifth Division
Docket Nos. 1-08-2513, 1-08-2554 cons.
Opinion filed June 28, 2013
Modified upon
denial of rehearing March 14, 2014
Held The judgment for plaintiffs in a fatal collision that occurred when
(Note: This syllabus plaintiffs’ car collided with defendants’ tractor-trailer while turning
constitutes no part of the onto a preferential highway was reversed and the cause was remanded
opinion of the court but for a new trial, where the trial court improperly admitted evidence of
has been prepared by the the truck driver’s prior bad acts, including speeding, log violations and
Reporter of Decisions a prior fine, abused its discretion in giving the careful habits
for the convenience of instruction as to the driver of plaintiffs’ car and in failing to give an
the reader.) instruction of the burden of proof in connection with the agency
relationship between the trucking company and the dairy whose
products the company was delivering.
Decision Under Appeal from the Circuit Court of Cook County, Nos. 03-L-15077,
Review 03-L-16261; the Hon. Patricia Banks, Judge, presiding.
Judgment Reversed and remanded.
Counsel on James K. Horstman and Ronald L. Wisniewski, both of Cray Huber
Appeal Horstman Heil & VanAusdal LLC, of Chicago, for appellants Alco of
Wisconsin, Inc., Alder Group, Inc., and Jaime L. Reeves.
Hugh C. Griffin and Stevie A. Starnes, both of Hall Prangle &
Schoonveld, LLC, of Chicago, for appellant Dean Foods Company.
William J. Harte, Ltd. (William J. Harte and Joan M. Mannix, of
counsel), and Healy Law Firm (Martin J. Healy, Jr., David P. Huber,
and Dennis M. Lynch, of counsel), both of Chicago, for appellees
Tracey Powell and George Kakidas.
Muldoon & Muldoon LLC (Michael K. Muldoon and John J.
Muldoon III, of counsel), and Michael W. Rathsack, both of Chicago,
for appellee Alexander Chakonas.
Panel JUSTICE McBRIDE delivered the judgment of the court, with
opinion.
Justice Palmer specially concurred, with opinion.
Justice Gordon dissented, with opinion.
OPINION
¶1 In July 2002, Adam McDonald, Diana Kakidas and Christina Chakonas were tragically
killed when a tractor-trailer driven by defendant Jaime L. Reeves struck their vehicle at an
intersection in Wanatah, Indiana. Plaintiffs, Tracey Powell, individually and as special
administrator of the estate of Adam McDonald, deceased; George Kakidas, individually and as
special administrator of the estate of Diana Kakidas, deceased; and Alexander Chakonas, as
special administrator of the estate of Christina Chakonas, deceased, filed wrongful death
actions against defendants Reeves; Dean Foods Company (Dean Foods), the owner of the
trailer; Alco of Wisconsin, Inc. (Alco), Reeves’ employer; and Alder Group, Inc. (Alder),
owner of the tractor. Following a trial, the jury returned a verdict in favor of plaintiffs, finding
defendants jointly and severally liable, and awarded $8 million to the McDonald estate, $8
million to the Kakidas estate, and $7 million to the Chakonas estate. In a special interrogatory,
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the jury also found that Christina Chakonas was 40% contributorily negligent in causing the
collision and reduced the award to the Chakonas estate accordingly to $4.2 million.
¶2 Defendants raise several issues on appeal: (1) the trial court erred in denying Alder’s
motion for a substitution of judge; (2) the trial court erred in denying their motions for
judgment notwithstanding the verdict and a new trial because the sole proximate cause of the
accident was Christina Chakonas driving into the right-of-way of Reeves’ tractor-trailer; (3)
the jury’s allocation of only 40% of the causative fault to Christina Chakonas was against the
manifest weight of the evidence; (4) the trial court abused its discretion by allowing evidence
of defendants Reeves’, Alco’s and Alder’s prior bad acts; (5) the trial court abused its
discretion in giving the “careful habits” jury instruction (Illinois Pattern Jury Instructions,
Civil, No. 10.08 (2006)) (hereinafter, IPI Civil (2006) No. 10.08) with respect to the conduct of
Christina Chakonas; and (6) the amount of the monetary awards by the jury does not bear a
reasonable relationship to the recoverable pecuniary damages proved at trial.
¶3 Dean Foods presents the following additional issues on appeal: (1) Dean Foods was
entitled to judgment notwithstanding the verdict on plaintiffs’ claims for agency and joint
venture; (2) the claims against Dean Foods by plaintiffs Powell and Kakidas were barred by the
statute of limitations; (3) the jury’s finding that Reeves was acting as an agent and/or joint
venturer of Dean Foods at the time of the accident is contrary to the manifest weight of the
evidence; and (4) the trial court erred in failing to instruct the jury on the burden of proof
applicable to plaintiffs’ agency and joint venture claims.
¶4 We are reviewing this case for a second time following a remand by the Illinois Supreme
Court. In a prior opinion, we considered defendants’ argument that the trial court erred in
denying Alder’s motion for substitution of judge as a matter of right, and we agreed with
defendants and vacated all orders subsequent to the improper denial and remanded for a new
trial before a new trial judge. See Powell v. Dean Foods Co., 405 Ill. App. 3d 354 (2010). The
Illinois Supreme Court granted the petition for leave to appeal. Before the supreme court,
plaintiffs filed a joint motion to dismiss Alder with prejudice. The supreme court granted the
motion to dismiss and concluded that the remaining defendants, Reeves, Alco and Dean Foods,
lacked standing to appeal the denial of Alder’s motion for substitution of judge as a matter of
right. The supreme court vacated our prior decision and remanded the case to this court to
consider the remaining issues raised on appeal. Powell v. Dean Foods Co., 2012 IL 111714.
Alder is no longer a party to this appeal. 1
¶5 Before addressing the issues presented on appeal, we set out the relevant facts.
¶6 On July 6, 2002, Adam McDonald and Diana Kakidas were passengers in a 2002 Pontiac
Grand Am automobile driven by Christina Chakonas. All three occupants of the Chakonas
vehicle were killed when a tractor-trailer driven by defendant Jaime L. Reeves, hauling 80,000
pounds of Dean Foods milk product, collided with the Chakonas vehicle. The tractor-trailer
collided with the Chakonas vehicle as the Chakonas vehicle crossed the eastbound lanes of
traffic on Route 30, in the process of turning left into the westbound lanes of Route 30, at the
intersection of Route 30 and Lincoln Street in Wanatah, Indiana.
1
Although Alder is no longer a party, the discussion of the issues and evidence reference them as
necessary for our analysis.
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¶7 Two actions were filed in the circuit court of Cook County as a result of the fatal collision.
In December 2003, plaintiff Chakonas filed his original complaint which was assigned case
No. 03 L 15077, and named Reeves; Alco, Inc.; Alco of Wisconsin, Inc., d/b/a/ Robert Alder &
Sons; and Dean Foods as defendants. 2 In July 2004, plaintiff Chakonas filed an amended
complaint, naming Reeves; Alco, Inc.; Alco of Wisconsin, Inc.; Dean Foods; and Dean Illinois
Dairies, LLC, as defendants.
¶8 Also in December 2003, plaintiffs Powell and Kakidas filed their original complaint,
assigned case No. 03 L 16261, naming only Reeves and Dean Foods as defendants. In July
2004, plaintiffs Powell and Kakidas filed an amended complaint, naming Reeves; Alco of
Wisconsin, Inc.; Alder Group; and Dean Illinois Dairies, LLC, as defendants. In August 2004,
plaintiff Chakonas filed a motion to consolidate the Chakonas and Powell/Kakidas actions,
which the trial court granted in September 2004. In October 2007, immediately prior to the
start of the trial, plaintiffs Powell and Kakidas moved for leave to file a second amended
complaint, naming Dean Illinois Dairies, LLC, Dean Foods, Alco, Alder and Reeves. The trial
court granted the motion.
¶9 Jaime Reeves was called as an adverse party witness by plaintiffs Powell and Kakidas.
Reeves testified that he was a full-time truck driver employed by Alco. Reeves stated that July
6, 2002, was a Saturday. His log showed that he finished work the previous day at 1 a.m. on
July 6 and he had driven 347 miles. At 9 a.m. on July 6, Reeves drove from his house to a
facility in Chemung, Illinois, which was approximately 45 miles away. Reeves then drove to
Richland Center, Wisconsin, approximately 135 miles away. At the Richland Center facility,
he “dropped the trailer and hooked to another one,” which took 15 minutes. He then drove back
to Chemung. His next load was not known at that time and he was off duty from 3 p.m. to 7:45
p.m. He did not drive the truck during that period of time. His next destination was Rochester,
Indiana, to which he was en route at the time of the accident.
¶ 10 Route 30 is a four-lane, divided highway. Reeves stated that the speed limit was 55 miles
per hour until Wanatah, Indiana. He had driven this route many times in the past. Reeves stated
that he did not recall his speed and could not remember if he used the cruise control. Reeves
said he remembered seeing the signs prior to Wanatah, reducing the speed limit to 40 miles per
hour. Reeves said he was not tired or fatigued at the time of the accident.
¶ 11 Reeves testified that the accident occurred between 10 and 10:30 p.m. His truck headlights
and running lights were turned on. He stated that he slowed down as he approached Wanatah
by taking his foot off of the accelerator and using the engine brake. He said he had to slow
down gradually and not “slam” on the brakes because he was carrying a full load of milk in
gallon jugs and that could make the truck “hard to control.” Reeves said he was driving east
and the weather was dry and clear with slightly heavier traffic than normal. When asked to
describe his speed as he approached the intersection where the accident occurred, Reeves
stated that he was “slowing down with the flow of the traffic.” He was not watching his
speedometer, but he estimated that he was traveling “between 40 and 45 [miles per hour].” He
said that he told people at the scene of the accident the same speed estimate.
¶ 12 Reeves described the circumstances of the accident as follows:
2
Before the trial court, the parties agreed that Alco, Inc., is a former name of Alco of Wisconsin,
Inc., which we shall refer to as “Alco” for this decision.
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“As I was approaching Lincoln Street there was a pickup turning right onto Lincoln
Street to head south. And there was a vehicle that pulled out right–right in front of me
that was going to go west onto Route 30. And then–and then another vehicle just
followed right out of nowhere like a deer. It came out of nowhere. It was there.”
¶ 13 Reeves testified that he “collided with the second vehicle.” He said he “was on the brakes
and we eventually stopped aways [sic] down the road” after his truck made contact. According
to Reeves, his brakes were applied before he struck the vehicle.
¶ 14 When asked if he also worked for Alder, Reeves stated that Alco was part of Alder. Alco
scheduled his trips, including the determination of how long the trip would be and how many
stops Reeves would make, and had the responsibility of being aware of the “70-hour rule.”
Plaintiffs’ counsel summarized the “70-hour rule” as driving “70 hours during the course of an
eight-day period.” Reeves confirmed the description, stating that the rule comes from the
federal government.
¶ 15 Reeves was asked questions about the Alder driver’s manual. Specifically, counsel
inquired about paragraphs referring to Dean Foods, noting that the manual provides that
“through your actions and from your general appearance these people will form their opinions
of Dean’s Foods Company,” “your job and the future of Alder’s and Dean’s Food Company
depends largely upon good public relations,” and “keep smiling and driving with continuing
pride in the job you perform as you roll along as part of the blue-and-white Dean fleet.” Reeves
agreed that the manual contained those statements. Reeves was asked if he was a representative
of Dean Foods when driving the truck and Reeves answered that “it would appear so, yes.”
Reeves also testified that his truck had multiple Dean Foods emblems and lettering for Alco.
¶ 16 He described his job as delivering “dairy products from point A to point B.” He said he
“would routinely pull out of Chemung, Illinois, go to Rochester, Indiana, [and] go to Richland
Center, Wisconsin.” According to Reeves, no one from Dean Foods told him how to do his job.
On July 6, 2002, Alco told Reeves to start the trip; he had no contact with Dean Foods.
¶ 17 Reeves was questioned about his logbooks for his time on the road. He stated that he
completed weekly trip tickets, but he did not know what happened to the trip ticket for the
week ending July 6, 2002, the night of the accident. The purpose of his trip tickets was to keep
track of his stops, the miles driven in each state, and the fuel put into the truck. He maintained
the logbook with his trip tickets in his truck.
¶ 18 When Reeves was asked if his logbooks had been audited by the federal motor carrier
compliance inspector in June 2002, defense counsel made a continuing objection, which the
trial court overruled. Reeves testified that he did not know when the audit took place, but the
company had been audited. When asked if “it was determined by the federal government that
[he] had falsified [his] logs,” Reeves answered that he “had made some mistakes on them.” He
was not sure if the finding used the word “falsified.” Reeves testified that Alco was fined, but
“they didn’t get the fine *** just because of me.” Additionally, Reeves stated that he was not
disciplined, but was shown what he was doing wrong in his logbooks so he “wouldn’t do it
again.” Reeves denied that he intentionally wrote incorrect information in the logbooks. He
testified that he “was writing stuff down wrong.” He learned how to do it correctly after the
audit.
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¶ 19 Robert Youngreen testified that on July 6, 2002, he was driving his Dodge pickup truck
east on Route 30 with Reeves’ truck behind him, approaching Wanatah. When asked if he was
driving “a little over 55 miles per hour,” Youngreen answered, “probably right in there, yeah.”
He could clearly see the truck in his rearview mirror. As he entered the Wanatah city limits,
Youngreen agreed that he was driving about 40 or 45 miles per hour. Youngreen stated that the
truck never passed him on Route 30. Youngreen did not see the truck change lanes.
¶ 20 According to Youngreen, as he approached Lincoln Street, he slowed down to make a right
turn. He stated that the right turn lane was “not very long.” As he slowed to make the turn, he
saw one car cross Route 30 to make a left turn as he was “just coming to the turn lane.”
Youngreen stated that the first vehicle pulled into the intersection when he was about 100 feet
away. He also saw a white car stopped at the stop sign on Lincoln, but he did not see the car
move into the intersection. Youngreen made the right turn and then heard what he described as
a tire exploding and then “a bunch of debris hit our pickup.” Youngreen stated that he was
going slow, because it was a sharp corner. He looked back and saw sparks. He turned around
and went back to the intersection, where he saw that sparks were coming from the front of the
truck.
¶ 21 Christian Reid and Stephanie Solma testified that they were friends of McDonald,
Chakonas and Kakidas. On July 6, 2002, the group of Reid, Solma, McDonald, Chakonas and
Kakidas decided to go to a local dance club. They went in two cars with Reid driving one car
with Solma as a passenger and Chakonas driving the second car with passengers, Kakidas and
McDonald. Reid stated that Chakonas knew where the dance club was and there was no plan
that she had to follow him.
¶ 22 Reid was driving on Lincoln and stopped at the intersection with Route 30. He made a left
turn onto westbound Route 30 and as he was making the turn he stopped in the median to check
the traffic headed west. When Reid was turning onto Route 30, Solma looked back to see if
Chakonas’ car was behind them and she saw that it was stopped at the stop sign. While he was
driving, Reid was looking in his rearview mirror and he saw the accident between Chakonas’
car and a semitruck. Solma turned around and saw the truck pushing Chakonas’ car. Reid
estimated that he traveled 300 to 500 yards before the accident occurred. Reid testified that
about 10 seconds passed from when he was at the stop sign and he saw the accident in his
rearview mirror.
¶ 23 Troy Layton testified that in July 2002 he was employed as a patrol officer with the
LaPorte County police department. He was dispatched to the accident at Route 30 and Lincoln
and arrived shortly after the accident occurred. On cross-examination, Layton stated that his
police report did not indicate that Reeves was fatigued. Layton agreed that there were no signs
of anyone being asleep or tired.
¶ 24 Dean Ayen testified that he was employed as a manager for Alder and Alco. He was
Reeves’ immediate supervisor and would set Reeves’ schedule and routes. Ayen stated that the
tractor involved in the accident was owned by Alder and the trailer was owned by Dean Foods.
According to Ayen, Alder exclusively “pulls” Dean Foods products.
¶ 25 Ayen testified that Reeves would turn in his trip tickets on Saturday or Sunday, at the end
of a week. The trip tickets would be used to calculate Reeves’ pay. Ayen stated that the
company has 30 other drivers who would use the tractor when it was in Chemung. On the day
of the accident, Reeves volunteered to make the run between Chemung and Rochester,
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Indiana, because Reeves had the hours available to drive. Ayen looked at the log to verify, but
did not check anything else to see if Reeves still had hours he could drive.
¶ 26 Ayen testified that he was aware of the audit of Reeves’ logbooks and the finding that the
logs had been falsified and that Alder had been fined. Ayen explained that the audit was
random and the majority of the fine was for local delivery drivers. The audit found four or five
“over-the-road problems,” including Reeves. Ayen stated that the problem was “the wrong
miles on a log. It could have been an hourly add or subtraction was what they found on that.”
¶ 27 Daniel White testified that he was the assistant safety manager for Alder. He performed the
compliance reviews on the logs. White stated that he did not find any problems with Reeves’
logbooks, but the audit did find that there were falsifications. This finding was prior to July
2002. White testified that a log of “anything past 575 to 600 miles in a 24-hour period” would
have caught his attention.
¶ 28 Donald Hess testified as an expert witness for plaintiffs with his expertise based on his
years working as a truck driver and teaching truck driving courses. His opinions were “based
around the fact that Mr. Reeves and the employers violated a number of federal safety statutes
that are related to truck driving,” and he specifically referred to regulations relating to fatigue
and speed. During Hess’s testimony, Hess stated that “the company [was] dispatching the
driver too many miles per day” and “the driver then [was] speeding, in order to get these runs
accomplished.” Defense counsel objected that Hess’s opinion regarding speed was improper
because his opinion on the subject had not been previously disclosed. Following a sidebar, the
trial court overruled the objection.
¶ 29 Hess opined that these circumstances led to fatigue and referred to the federal regulation
that a driver was limited to 70 hours of work time over an 8-day period. The hours-of-service
requirements were in place to help drivers avoid being fatigued. Hess concluded that Reeves
had been in excess of the service hour requirements “so he was fatigued.” Hess admitted that
he did not have any “specific information” that Reeves was fatigued at the time of the accident.
Hess also testified that if Reeves had not been speeding, then he would not have reached the
location when the car pulled out.
¶ 30 Hess testified about inconsistencies in Reeves’ log compared to the truck’s “Detroit Diesel
Electronic Controls” (DDEC), considered to be the truck’s “black box.” He stated that the
DDEC report was frequently at odds with Reeves’ daily log for his hours. Specifically,
Reeves’ log from the week leading up to the crash indicated that the truck was not being
driven, but the DDEC showed the truck in use for some of that time. Hess said in reviewing the
DDEC report, he made the assumption that at any time the truck is idling, then Reeves was on
duty, but not driving. Hess admitted that drivers might be off duty and sleeping with the air
conditioning running, which would have the truck in idle mode on the DDEC. Hess also
acknowledged that the DDEC does not indicate who is driving the truck and another driver
could be operating the truck. Hess detailed the entire week prior to the accident and compared
the DDEC report to Reeves’ logs to determine his driving and duty hours. Hess relied
exclusively on the DDEC report to form his opinion that Reeves had exceeded the 70-hour rule
prior to July 6, 2002. In contrast, Reeves’ logs for that week indicated that he had driven less
than 70 hours.
¶ 31 Hess also testified that the data retrieved from the semitruck’s engine control module
(ECM) showed that on July 1, Reeves had reached a speed of 79.5 miles per hour and that
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Reeves’ average speed was 65.9 miles per hour. Hess concluded that in his opinion, the
violations of the federal regulations were the cause of death of the plaintiffs’ decedents.
¶ 32 Michael Rogers investigated the accident as an expert for plaintiffs. Rogers measured the
distance between the point of impact and the point of rest as approximately 358 feet. The
distance between the stop sign and the point of impact was approximately 58 feet. Rogers
testified about the report from the sensing diagnostic module (SDM) from Chakonas’ vehicle,
which is the car’s “black box” that “monitors the acceleration or movement of the vehicle and
also gathers information from other vehicle components.” It can sense when a collision is
occurring to determine “whether this collision is going to be sufficient in magnitude to warrant
a deployment of the air bag.” The SDM stores this information, including vehicle speed, for up
to five seconds before the air bag is deployed. Rogers stated that five seconds before the
accident, the car was traveling four miles per hour and the brake was on. At the time of the
accident, he testified that Chakonas’ vehicle was traveling 12 miles per hour.
¶ 33 Based on his analysis of the scene and the vehicle reports, Rogers opined that the truck
speed at the time of impact was 49.5 miles per hour. Rogers stated that a hard brake event
would be recorded by the ECM if the truck speed slows more than seven miles per hour in one
second. Rogers testified that a minute before the hard brake event, the truck was on cruise
control and set at 65 miles per hour. Rogers said that in the last five seconds, the truck’s speed
was “dropping off much quicker” than it had been before that time. In his opinion, the reason
for that decrease was the impact. Rogers testified that the truck’s brake was applied four
seconds after the impact and “that’s what resulted in an even greater rate of slowing that
cause[d] the hard brake event to occur.” Rogers opined that “this collision would not have
occurred if the truck was going 40 by the time it got to the second 40 mile per hour sign.”
Rogers also stated that the car would have had sufficient time to clear the lane if the truck had
been going 55 miles per hour instead of 65 miles per hour.
¶ 34 R. Matthew Brach also testified as an expert for plaintiffs about his investigation of the
accident. Brach stated that the first sign reducing the speed limit to 40 miles per hour from 55
miles per hour is about three-tenths of a mile from the accident intersection. Based on his
reconstruction and using the DDEC, Brach testified that the truck was going 49.5 miles per
hour at the point of impact. He further stated that the brakes were applied when the truck was
going 37 miles per hour, which was three seconds after the impact. Brach also opined that if the
truck had been going 40 miles per hour, then it would have been 130 feet west of the point of
impact. Brach testified that Chakonas’ vehicle would have moved past the point of impact.
¶ 35 Steven Rickard testified as an expert for defendants. In his opinion, Rickard concluded that
Reeves was traveling 37 miles per hour when the collision occurred. He stated that according
to the hard brake report, the cruise control was turned off 20 seconds before the hard brake.
The foot was off the accelerator and the speed showed “a normal gradual continuation of
slowing, and then, something happens.” Rickard opined that just before the hard brake, Reeves
moved his foot to the brake pedal. Rickard also noted that the engine load increased 16% at the
hard brake, which was not present a second earlier. Rickard testified that the increase in engine
load was caused by the car being pushed.
¶ 36 Rickard also reviewed the reports from Chakonas’ vehicle’s SDM. Based on that data,
Rickard stated that vehicle did not brake within five seconds of the airbag deployment. Rickard
testified that in his opinion, it was not safe for Chakonas’ vehicle to pull in front of the truck.
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Rickard admitted on cross-examination that he never visited the scene of the accident in
reviewing the case. The parties rested after Rickard’s testimony.
¶ 37 During closing arguments, counsel for Kakidas and McDonald argued that Reeves should
be found 65% to 75% responsible for the accident and Chakonas “should be in the area of 35
percent to 25%.” Similarly, Chakonas’ attorney argued that defendants were 75% at fault for
the accident. He conceded Chakonas “made a mistake” that was a proximate cause of the
accident and she was 25% at fault. The jury found in favor of plaintiffs, but determined that
Chakonas was 40% contributorily negligent in causing the accident.
¶ 38 We first address Dean Foods’ argument that the Powell/Kakidas claims against it are
barred by the statute of limitations. Dean Foods argues that filing of the Powell/Kakidas
amended complaint which omitted Dean Foods as a defendant constituted a voluntary
dismissal of Dean Foods and that the Powell/Kakidas second amended complaint was time
barred because it was not filed within one year of the filing of the Powell/Kakidas amended
complaint. On appeal, Dean Foods asserts that the Powell/Kakidas second amended complaint
did not relate back to the Powell/Kakidas original complaint.
¶ 39 As noted, on October 12, 2007, Powell and Kakidas sought leave to file their second
amended complaint instanter, seeking to add “Dean Foods Company” as a defendant. The trial
court granted Powell and Kakidas leave to file their second amended complaint instanter and
also granted Dean Foods leave to answer or otherwise plead to the Powell/Kakidas second
amended complaint. On October 18, 2007, Dean Foods filed a motion to dismiss the
Powell/Kakidas complaint because it was not named as a defendant in the Powell/Kakidas
amended complaint and that the inclusion of “Dean Foods Company” in the October 12, 2007,
Powell/Kakidas second amended complaint, over objection, was barred by the statute of
limitations. Dean Foods argued that the filing of the Powell/Kakidas amended complaint
constituted a voluntary dismissal of Dean Foods that was time barred if not refiled within one
year and that the Powell/Kakidas second amended complaint pled new theories that did not
relate back to the Powell/Kakidas original complaint. Powell and Kakidas filed a response to
Dean Foods’ motion to dismiss, arguing:
“Dean Foods [Company] was never voluntarily dismissed by [Powell and
Kakidas]. It was inadvertently left off the amended complaint when [defense counsel]
advised [Powell and Kakidas’ counsel] that Dean Illinois Dairies, LLC, was the owner
of the trailer, not Dean Foods [Company].
***
The evidence adduced in discovery, and at trial, indicates that Dean Foods
Company is a proper defendant. Furthermore, Dean Foods [Company] will suffer no
prejudice by being included in [the Powell/Kakidas second amended complaint],
because it has always been a defendant in the consolidated case of Chakonas v. Dean
Foods Company, No. 03 L 15077. Finally, [the Powell/Kakidas second amended
complaint] relates back to their timely filed [original complaint and amended
complaint].”
Powell and Kakidas further asserted that their second amended complaint corrected the
“clerical omission of Dean Foods [Company] from the amended complaint.”
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¶ 40 On October 29, 2007, the trial court denied Dean Foods’ motion to dismiss the
Powell/Kakidas second amended complaint.
¶ 41 Section 2-616(b) of the Code of Civil Procedure governs the relation-back doctrine and
provides as follows:
“The cause of action, cross claim or defense set up in any amended pleading shall not
be barred by lapse of time under any statute or contract prescribing or limiting the time
within which an action may be brought or right asserted, if the time prescribed or
limited had not expired when the original pleading was filed, and if it shall appear from
the original and amended pleadings that the cause of action asserted, or the defense or
cross claim interposed in the amended pleading grew out of the same transaction or
occurrence set up in the original pleading, even though the original pleading was
defective in that it failed to allege the performance of some act or the existence of some
fact or some other matter which is a necessary condition precedent to the right of
recovery or defense asserted, if the condition precedent has in fact been performed, and
for the purpose of preserving the cause of action, cross claim or defense set up in the
amended pleading, and for that purpose only, an amendment to any pleading shall be
held to relate back to the date of the original pleading so amended.” 735 ILCS
5/2-616(b) (West 2006).
¶ 42 The purpose of the relation-back doctrine is to preserve meritorious causes of action
against a dismissal by reasons of a technical default. Porter v. Decatur Memorial Hospital, 227
Ill. 2d 343, 355 (2008); Stevanovic v. City of Chicago, 385 Ill. App. 3d 630, 633 (2008). Trial
courts are to liberally construe the requirements of section 2-616(b) (735 ILCS 5/2-616(b)
(West 2006)) to allow resolution of litigation on the merits and to avoid elevating questions of
form over substance. Porter, 227 Ill. 2d at 355 (citing Bryson v. News America Publications,
Inc., 174 Ill. 2d 77, 106 (1996), and Boatmen’s National Bank of Belleville v. Direct Lines,
Inc., 167 Ill. 2d 88, 102 (1995)). Both the statute of limitations and section 2-616(b) are
designed to afford a defendant a fair opportunity to investigate the circumstances upon which
liability is based while the facts are accessible. Porter, 227 Ill. 2d at 355 (citing Boatmen’s
National Bank, 167 Ill. 2d at 102). The rationale behind the “same transaction or occurrence”
rule is that a defendant is not prejudiced if “ ‘his attention was directed, within the time
prescribed or limited, to the facts that form the basis of the claim asserted against him.’ ”
Boatmen’s National Bank, 167 Ill. 2d at 102 (quoting Simmons v. Hendricks, 32 Ill. 2d 489,
495 (1965)). “A court should consider the entire record, including depositions and exhibits, to
determine whether the defendant had such notice.” Porter, 227 Ill. 2d at 355 (citing Wolf v.
Meister-Neiberg, Inc., 143 Ill. 2d 44, 46 (1991)).
¶ 43 In this case, the suit was commenced within the limitations period, Dean Foods received
notice of the proceedings, actually participated in them, and cannot claim prejudice as the
causes of action alleged in the Powell/Kakidas second amended complaint grew out of the
same transactions or occurrence set up in the Powell/Kakidas original complaint. Therefore,
we find that the allegations of the second amended complaint are not barred by the statute of
limitations as a result of the doctrine of relation back.
¶ 44 We next address defendants’ claims that the trial court should have granted their motions
for judgment notwithstanding the verdicts. Defendants contend that the evidence presented at
trial failed as a matter of law to establish that Reeves was the legal cause of the accident
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because Reeves was the driver on the preferential highway and it was not reasonably
foreseeable that Chakonas’ vehicle, with a stop sign and a duty to yield the right of way, would
proceed into the intersection in front of Reeves’ semitruck. Plaintiffs respond that the evidence
proved that Reeves was negligent because, if Reeves had not been speeding, as their experts
testified, then Chakonas would have been able to cross the lanes of traffic safely. Plaintiffs
maintain that the evidence of Reeves’ excessive speed and his violation of federal regulations,
by driving over 70 hours in an 8-day period, established that Reeves was the legal cause of the
collision.
¶ 45 A motion for judgment notwithstanding the verdict should be granted only when all the
evidence, viewed in the light most favorable to the nonmovant, so overwhelmingly favors the
moving party that no other verdict based on the evidence could stand. Barth v. State Farm Fire
& Casualty Co., 228 Ill. 2d 163, 177 (2008) (citing Pedrick v. Peoria & Eastern R.R. Co., 37
Ill. 2d 494, 510 (1967)). “ ‘This is clearly a very difficult standard to meet, limiting the power
of the [trial] court to reverse a jury verdict to extreme situations only.’ ” Velarde v. Illinois
Central R.R. Co., 354 Ill. App. 3d 523, 537 (2004) (quoting People ex rel. Department of
Transportation v. Smith, 258 Ill. App. 3d 710, 714 (1994)). “ ‘[I]t is the province of the jury to
resolve conflicts in the evidence, to pass upon the credibility of the witnesses, and to decide
what weight should be given to the witnesses’ testimony.’ ” Velarde, 354 Ill. App. 3d at 537
(quoting Maple v. Gustafson, 151 Ill. 2d 445, 452 (1992)). “ ‘A trial court cannot reweigh the
evidence and set aside a verdict merely because the jury could have drawn different inferences
or conclusions, or because the court feels that other results are more reasonable.’ ” Velarde,
354 Ill. App. 3d at 537 (quoting Maple, 151 Ill. 2d at 452). “ ‘The [trial] court has no right to
enter a [judgment notwithstanding the verdict] if there is any evidence, together with
reasonable inferences to be drawn therefrom, demonstrating a substantial factual dispute, or
where the assessment of credibility of the witnesses or the determination regarding conflicting
evidence is decisive to the outcome.’ ” Velarde, 354 Ill. App. 3d at 537 (quoting Maple, 151
Ill. 2d at 454). This court reviews a trial court’s decision to grant or deny a motion for judgment
notwithstanding the verdict de novo; however, like the trial court, we must be careful not to
usurp the function of the jury and substitute our own assessment. Velarde, 354 Ill. App. 3d at
537 (citing Jones v. Chicago Osteopathic Hospital, 316 Ill. App. 3d 1121, 1125 (2000)).
¶ 46 The term “proximate cause” involves two components: cause in fact and legal cause. First
Springfield Bank & Trust v. Galman, 188 Ill. 2d 252, 257-58 (1999) (citing Lee v. Chicago
Transit Authority, 152 Ill. 2d 432, 455 (1992)); see also Abrams v. City of Chicago, 211 Ill. 2d
251, 258 (2004). Cause in fact exists where there is a reasonable certainty that a defendant’s
acts caused the injury or damage, but a defendant’s conduct is a cause in fact of the plaintiff’s
injury only if that conduct is a material element and a substantial factor in bringing about the
injury. Galman, 188 Ill. 2d at 258. “A defendant’s conduct is a material element and a
substantial factor in bringing about an injury if, absent that conduct, the injury would not have
occurred.” Galman, 188 Ill. 2d at 258. Whereas, “legal cause” is a question of foreseeability
and “[t]he relevant inquiry here is whether the injury is of a type that a reasonable person
would see as a likely result of his or her conduct.” Galman, 188 Ill. 2d at 258.
¶ 47 Defendants cite to a series of cases recognizing the “unavoidable collision” principle, as it
has been termed, in arguing that Reeves’ excessive speed was not the legal cause of the
collision. See Hale v. Cravens, 129 Ill. App. 2d 466, 472 (1970); Salo v. Singhurse, 181 Ill.
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App. 3d 641, 643 (1989); Johnson v. May, 223 Ill. App. 3d 477 (1992); Coole v. Central Area
Recycling, 384 Ill. App. 3d 390, 400 (2008). Plaintiffs assert that this line of cases is
distinguishable from the present case because this case included the testimony of multiple
expert witnesses to explain the circumstances of the collision and those cases lacked expert
testimony.
“In cases where the reviewing court has concluded an accident was unavoidable, the
courts have found the following:
‘[T]he motorist on the preferential road had the right to expect that the vehicle
approaching on the secondary road controlled by a stop sign would obey the stop
sign and yield the right-of-way. When the motorist drove into the path of the
preferential driver, the circumstances afforded no opportunity to avoid the
collision.’ ” Coole, 384 Ill. App. 3d at 398 (quoting Guy v. Steurer, 239 Ill. App. 3d
304, 309 (1992)).
¶ 48 In Hale, the plaintiffs were driving on US Route 54 in Illinois. Route 54 is a two-lane
highway, with a speed limit of 65 miles per hour. It was the preferential highway with no stop
signs. The defendant was traveling on Buffalo Hart Road, which had a stop sign at the
intersection with Route 54. A jury verdict was returned in favor of defendant and plaintiffs
appealed.
¶ 49 The Hale court noted that the defendant had a statutory duty to stop and yield the
right-of-way to the plaintiffs and the only bar to the plaintiffs’ recovery was their contributory
negligence, which in this case could have been the plaintiffs’ speed and failure to keep a proper
lookout. Hale, 129 Ill. App. 2d at 471-72. The Hale court reasoned that “[a] traveler on a
preferential highway has a right to expect a car approaching along a secondary road controlled
by a stop sign to obey the stop sign and yield the right-of-way as required by law.” Hale, 129
Ill. App. 2d at 472.
“ ‘Stop signs are erected for the obvious purpose of requiring motorists to yield to
vehicles on through highways. If the motorist on the through highway had to travel at
such a speed that he could stop his car in time to avoid collisions with vehicles which
ignore stop signs on intersecting roads, the purpose of having a through highway in the
first place would be entirely thwarted. The driver who has the stop sign cannot assume
the car on the through highway will stop. It is the other way around.’ ” Hale, 129 Ill.
App. 2d at 472-73 (quoting Hession v. Liberty Asphalt Products, Inc., 93 Ill. App. 2d
65, 74 (1968)).
¶ 50 Further, the Hale court concluded that even in the light most favorable to defendant, the
plaintiffs’ speed was not the proximate cause of the accident. “Whether the speed of plaintiffs’
automobile was 60 miles per hour or 70 miles per hour, the sole cause of the collision was the
fact that defendant drove her automobile directly into the path of plaintiffs’ vehicle under
circumstances that afforded plaintiffs no opportunity to avoid the collision.” Hale, 129 Ill.
App. 2d at 473.
“ ‘Violation of a law at the time of an accident by one connected with it is usually
evidence of negligence, but there remains a question of fact whether the illegal act is
the proximate cause of the injury. The mere fact, if it be a fact, that defendant in error
was violating the law at the time he was injured will not bar his right to recover unless
the unlawful act in some way proximately contributed to the accident in which he was
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injured. If the illegal act is a mere condition which made it possible for the accident to
occur but is not itself a part of the accident it will not bar recovery.’ ” Hale, 129 Ill.
App. 2d at 474 (quoting Jeneary v. Chicago & Interurban Traction Co., 306 Ill. 392,
395 (1923)).
¶ 51 The Hale court noted that it was “mindful” of the weight given to jury verdicts, but found
that the evidence did not support the verdicts.
“Whether they were swayed by sympathy for defendant because her minor son was
killed in the collision, which plaintiffs claim resulted from the defendant’s improper
emphasis at the trial, or by other factors, is immaterial. We think that the evidence in
this case, when viewed in its aspects most favorable to the defendant, so
overwhelmingly favor the plaintiffs that no verdict against the plaintiffs based on that
evidence could ever stand, and the court should have granted plaintiffs’ motions for
judgment notwithstanding the verdict.” Hale, 129 Ill. App. 2d at 475.
¶ 52 The court then reversed the jury’s verdict in favor of the defendant and remanded for a new
trial on damages only. Hale, 129 Ill. App. 2d at 476.
¶ 53 In Salo, the plaintiff argued that he, as the driver on the preferential highway, had a right to
expect the driver on the secondary road to yield the right of way to him and that he did not
proximately cause the accident. Salo, 181 Ill. App. 3d at 642-43. The reviewing court agreed
with the plaintiff and reversed the judgment apportioning 60% of the fault to the plaintiff
because “[f]or the jury to attribute 60% of the fault to Salo under such circumstances [was] not
only contrary to the manifest weight of the evidence, but also beyond comprehension and
reason.” Salo, 181 Ill. App. 3d at 644.
“Whether or not the jury believed Salo should have exercised more caution under
the circumstances of a flashing yellow light by possibly slowing down more or
watching Singhurse’s car longer in order to sound his horn or swerve, any negligence
on his part was not the proximate cause of the collision. Singhurse had a duty to stop
and yield the right-of-way to approaching cars. Instead, she rolled into the intersection
and hit Salo’s car after he was already in the intersection at a time when there was
nothing he could do to avoid the collision. Salo could not reasonably be expected to
anticipate Singhurse entering the intersection in disregard of her duty to yield. But for
Singhurse running the stop sign or not looking, the collision would not have occurred.
*** If we were to follow the jury’s apportionment in this case, every time a driver on a
preferential highway saw an approaching car on an intersecting road or drive, he
essentially would be required to stop to make sure the other car obeyed the stop sign
and stayed there or else be found negligent.” Salo, 181 Ill. App. 3d at 643-44.
¶ 54 In Johnson, the reviewing court reversed a jury’s verdict that the plaintiff was 50%
contributorily negligent and found the defendant to be 100% negligent. There, the plaintiff was
driving a tractor-trailer on the preferential highway when he was struck by the defendant’s
truck crossing the intersection from a street with a stop sign. The court reasoned that under the
defendant’s version of the facts, he stopped at the stop sign and then the plaintiff would have
no reason to believe that the defendant would proceed into the intersection and not yield the
right-of-way. There was nothing the plaintiff could reasonably have done to avoid the
collision. Johnson, 223 Ill. App. 3d at 484.
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¶ 55 Similarly, in Coole, the court affirmed the trial court’s grant of summary judgment in favor
of the defendants because the plaintiff’s decedent failed to yield the right-of-way to a garbage
truck owned by the defendants. The court concluded that the plaintiff failed to provide any
evidence “supporting an inference [the garbage truck driver] could have avoided the accident if
he would have been driving slower, had been keeping a better lookout, or had applied the
brakes.” Coole, 384 Ill. App. 3d at 400. The court found that a reasonable jury could not find
that the garbage truck driver’s breach of duty was a substantial cause of the accident and
summary judgment was proper. Coole, 384 Ill. App. 3d at 400-01.
¶ 56 The circumstances of the instant case are similar to those presented in Hale, Salo, Johnson,
and Coole since they all involve collisions and the first three decisions involve accidents
between a driver on a preferential highway and another driver on a nonpreferential road. They
do in some measure support defendants’ argument on the issue of legal cause.
¶ 57 Plaintiffs cite the decision in Guy v. Steurer, 239 Ill. App. 3d 304 (1992), as support for
their position that the duty of the intersecting driver to yield only arises when the oncoming
driver constitutes an immediate hazard. There, the jury returned a verdict in favor of the
defendant. Guy, 239 Ill. App. 3d at 306-07. On appeal, the plaintiff argued that his motion for
judgment notwithstanding the verdict or motion for a new trial should have been granted by the
trial court. The Guy court cited the Illinois Vehicle Code provision that requires: “a driver at a
stop sign on a road intersecting with a preferential highway must yield the right-of-way to any
vehicle approaching so closely on the highway that it constitutes an immediate hazard to his
vehicle’s travel across the intersection.” Id. at 307 (citing Ill. Rev. Stat. 1989, ch. 95½,
¶ 11-904(b)). It then pointed out that “[t]his provision has not been construed to impose
absolute liability upon a party approaching a stop sign on a nonpreferential road such that he
must stop long enough to permit any car he observes on the highway to pass, regardless of its
distance from the intersection.” (Emphasis added.) Guy, 239 Ill. App. 3d at 307-08 (citing Ill.
Rev. Stat. 1989, ch. 95½, ¶ 11-904(b)). “Rather, the statute requires the motorist confronted by
the stop sign to exercise reasonable care and proceed across the intersection after he has
stopped and yielded the right-of-way to vehicles on the highway that constitute an ‘immediate
hazard.’ ” Guy, 239 Ill. App. 3d at 308 (quoting Pennington v. McLean, 16 Ill. 2d 577, 583
(1959)). Similarly, the driver on the preferential roadway does not have an absolute right to
proceed through the intersection, but has a duty to exercise due care, keep a proper lookout,
and drive as a prudent person would to avoid a collision. Guy, 239 Ill. App. 3d at 308.
¶ 58 The Guy court observed that there was “no precise formula” for determining whether a
particular vehicle followed the duty imposed on it. Guy, 239 Ill. App. 3d at 308. “The issue
involves considerations as to the relative speeds and distances of the vehicles from the
intersection and must be determined by the trier of fact.” Guy, 239 Ill. App. 3d at 308. The Guy
court reasoned that the case did not involve an unavoidable collision because the plaintiff
admitted that he observed the defendant cross four lanes of traffic, but failed to slow down or
otherwise try to avoid the accident because he thought the defendant would stop. “[P]laintiff
had an opportunity to avoid the collision by decreasing his speed, sounding his horn, or
changing lanes. This is significant in that it bears on whether plaintiff observed his own duty to
exercise due care in approaching and crossing the intersection and to drive as a prudent person
would to avoid a collision when danger is discovered, or should have been discovered by the
exercise of reasonable care.” Guy, 239 Ill. App. 3d at 310. The Guy court concluded that the
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evidence was sufficient for the jury to have found the plaintiff more than 50% negligent and
bar any recovery. Guy, 239 Ill. App. 3d at 310.
¶ 59 Under all of the authority outlined above, Reeves and Chakonas each had duties to follow
while approaching the intersection. A driver of a vehicle approaching an intersection with a
stop sign has a duty to stop and after having stopped, to yield the right-of-way to any vehicle
which has entered the intersection or is approaching so closely as to constitute an immediate
hazard during the time the driver was in the intersection. Johnson, 223 Ill. App. 3d at 483
(citing Ill. Rev. Stat. 1987, ch. 95½, ¶ 11-904(b)). 3 Although the driver on a preferential
highway has the right to expect that the vehicle approaching on the secondary roadway
controlled by a stop sign will obey the stop sign and yield the right-of-way, the driver does not
have an absolute right to proceed into the intersection. Rather, the preferential driver “has a
duty to keep a proper lookout, observe due care in approaching and crossing intersections, and
drive as a prudent person would to avoid a collision when danger is discovered or, by the
exercise of reasonable care, should have been discovered.” Johnson, 223 Ill. App. 3d at 484
(citing Salo, 181 Ill. App. 3d at 643).
¶ 60 Differing testimony was presented regarding Reeves’ speed at the time of the accident.
Plaintiffs’ experts opined that Reeves was traveling 49.5 miles per hour at the time of the
collision while the defense expert concluded that Reeves was traveling 37 miles per hour.
Reeves testified that he thought he was going between 40 to 45 miles per hour. The evidence
regarding whether Reeves was fatigued and in violation of the 70-hour rule was also contested.
Hess opined that Reeves had exceeded his 70 hours at the time of the accident according to the
DDEC information and based on Hess’s own experience, Reeves would have been fatigued.
Reeves testified that he was not over his hours and was not fatigued. Ayen, Reeves’ supervisor,
also stated that he checked Reeves’ log prior to Reeves leaving on this delivery and he was not
over 70 hours. Finally, plaintiffs asserted that Reeves could have taken evasive action to avoid
the collision and that Reeves should have noticed Chakonas’ vehicle prior to impact. Reeves
testified that he observed the Reid vehicle, but he did not see Chakonas’ vehicle until the
impact.
¶ 61 Based on the evidence presented at trial, the jury could have concluded that Reeves’
speeding was a legal cause of the collision because it was reasonably foreseeable that a driver
seeking to merge onto Route 30 from Lincoln Street might misjudge how long it would take
the semitruck to reach the intersection. Further, the jury could have determined that, based
upon the evidence, Reeves could have avoided the collision with the Chakonas vehicle. As
noted, Reeves testified that he applied his brakes when he observed the Reid vehicle crossing
the intersection; however, Rogers opined that Reeves only applied the semitruck’s brakes four
seconds after impact with the Chakonas vehicle, and Brach testified that Reeves only applied
the semitruck’s brakes three seconds after impact.
¶ 62 Additionally, the jury could have found that Reeves’ violation of the 70-hour rule at the
time of the collision was also part of a legal cause of the accident. While we find the evidence
to be extremely close on this issue and could have resulted in a verdict either for or against
plaintiffs, it is not our function to reweigh the evidence. “ ‘[I]t is the province of the jury to
resolve conflicts in the evidence, to pass upon the credibility of the witnesses, and to decide
3
We acknowledge that the jury was instructed of a driver’s duties under Indiana law.
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what weight should be given to the witnesses’ testimony.’ ” Velarde, 354 Ill. App. 3d at 537
(quoting Maple v. Gustafson, 151 Ill. 2d 445, 452 (1992)).
¶ 63 Given the contested evidence of speeding and fatigue, the jury could have concluded that
the evidence supported a finding that Reeves was the legal cause of the collision.
¶ 64 Dean Foods additionally argues that it is entitled to a judgment notwithstanding the verdict
because plaintiffs failed to prove that it was vicariously liable for the actions of Reeves.
Specifically, Dean Foods claims that plaintiff failed to introduce evidence of any words or
conduct by Dean Foods necessary to establish their actual agency/joint venture claims. Dean
Foods contends plaintiffs failed to call any Dean Foods representative as a witness, but simply
relied on the testimony of Reeves and other Alco and Alder employees, statements in the Alder
driver’s manual, and evidence that the Dean Foods logo appeared on the truck tractor and
trailer, on the uniforms of Alder and Alco employees, etc., to establish an agency relationship.
We disagree.
¶ 65 An agency is a fiduciary relationship in which the principal has the right to control the
agent’s conduct and the agent has the power to act on the principal’s behalf. Letsos v. Century
21-New West Realty, 285 Ill. App. 3d 1056, 1064 (1996). An agent’s authority may be either
actual or apparent, and actual authority may be either express or implied. C.A.M. Affiliates, Inc.
v. First American Title Insurance Co., 306 Ill. App. 3d 1015, 1021 (1999). “Only the alleged
principal’s words and conduct, not those of the alleged agent, establish the agent’s authority.”
Kaporovskiy v. Grecian Delight Foods, Inc., 338 Ill. App. 3d 206, 210 (2003).
¶ 66 Generally, the question of whether an agency relationship exists and the scope of the
purported agent’s authority are questions of fact. Progress Printing Corp. v. Jane Byrne
Political Committee, 235 Ill. App. 3d 292, 306 (1992). A principal-agent relationship exists
when the principal has the right to control the manner in which the agent performs his work
and the agent has the ability to subject the principal to liability. Lang v. Silva, 306 Ill. App. 3d
960, 972 (1999).
¶ 67 Dean Foods correctly points out that “to establish the actual authority of an agent, the
authority must be founded upon some word or act of the principal, not on the acts or words of
the agent.” Wadden v. Village of Woodridge, 193 Ill. App. 3d 231, 239 (1990). However, our
Illinois Supreme Court has cautioned that this principle “is not to be confused with the rule
which permits an alleged agent to be called as a witness for the purpose of establishing the
existence of an agency.” City of Evanston v. Piotrowicz, 20 Ill. 2d 512, 519 (1960). As the
supreme court explained in Piotrowicz:
“Agency may be established and its nature and extent shown by parol evidence,
whether direct or circumstantial, and reference may be had to the situations of parties
and property, acts of the parties, and other circumstances germane to the question, and
if the evidence shows one acting for another under circumstances implying knowledge
on the part of the supposed principal of such acts, a prima facie case of agency is
established.” Piotrowicz, 20 Ill. 2d at 518.
¶ 68 “The existence of an agency relationship may be established by circumstantial evidence,
including the situation of the parties, their acts and other relevant circumstances.” Prodromos
v. Everen Securities, Inc., 341 Ill. App. 3d 718, 724-25 (2003).
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¶ 69 Here, the evidence was sufficient to establish that Dean Foods had the right to control the
actions of Alder/Alco’s drivers. At the time of the collision, the relationship between Dean
Foods and Alder/Alco had been in place for 60 years, and Alder/Alco “pulled” exclusively for
Dean Foods. In 2000, Alder received the “Partners in Distribution Award” from Dean Foods.
White, “Alder and Alco’s” assistant safety director and driver trainer at the time of the
collision, testified that he used letterhead that bore Dean Foods insignia with the notation
“distributor of Dean Foods” in the performance of his job, including the reprimand of drivers.
The “Alder Companies Driving Manual,” which was admitted into evidence without objection,
states that Alder/Alco drivers were part of Dean Foods’ fleet and instructs the drivers to wear
Dean Foods clothing and act in a manner that will encourage positive opinions about Dean
Foods. In particular, the manual states “When you step out of your truck, you are immediately
recognized as DEAN FOODS.” Perhaps most importantly, Dean Foods owned the loaded
trailer which Reeves was “pulling” at the time of the collision.
¶ 70 Despite the foregoing, Dean Foods argues that the evidence established, as a matter of law,
that Alder/Alco had sole control over Reeves’ driving and that Dean Foods exercised no such
control. Dean Foods mistakenly relies on the fact that it chose not to exercise its right to control
the Alder/Alco drivers. However, it is the right or duty to supervise and control, not the
exercise of the right, that determines whether an agency exists. Lang, 306 Ill. App. 3d at 972.
¶ 71 The cases cited by Dean Foods in support of its argument are distinguishable. In Daniels v.
Corrigan, 382 Ill. App. 3d 66 (2008), this court considered whether a principal-agency
relationship existed between the owner of a taxicab and Yellow Cab Affiliation Company. A
City of Chicago ordinance required all taxicab medallion owners to be affiliated with a taxicab
affiliation licensed by the city, but the affiliation agreement signed by the taxicab owner
expressly provided that the owner was an independent contractor and that the affiliation
agreement did not create an agency or joint venture. Daniels, 382 Ill. App. 3d at 77-78. This
court found that there was no conduct which, irrespective of the express agreement, would give
rise to an agency-principal relationship. The taxicab owner set the hours of operation and paid
all the expenses for the taxicab, was free to decide which fares to pick and was under no
obligation to report any fares to the affiliation. The presence of an express agreement
disclaiming an agency or joint venture is not present in the case at bar.
¶ 72 The circumstances involved in Trzaska v. Bigane, 325 Ill. App. 528 (1945), and Shoemaker
v. Elmhurst-Chicago Stone Co., 273 Ill. App. 3d 916 (1994), also cited by Dean Foods are
likewise factually distinguishable. Trzaska involved a truck owner/driver who occasionally
delivered coal for a coal company. The coal company hired the driver on an as-needed basis
and he was free to refuse to haul any load. He delivered the coal where he was instructed to
deliver it and collected money for the load when he was requested to do so. The court found
that the evidence showed that the coal company had no control over the driver. Trzaska, 325
Ill. App. at 534.
¶ 73 In Shoemaker, relying in part on Trzaska, the court found that a driver was not the agent of
the stone company whose products he hauled on behalf of the trucking company that leased the
truck he operated. The court rejected the argument that instructing the driver where to take the
load constituted control of the driver, and concluded that the driver was an independent
contractor in the absence of any other evidence of control. Shoemaker, 273 Ill. App. 3d at 922.
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¶ 74 The cases cited by Dean Foods do not support the contention that under the facts presented
here there was no agency relationship between Dean Foods and Reeves. The evidence showed
that Dean Foods had the right to control the actions of Alco’s drivers. At the time of the
collision, the relationship between Dean Foods and Alder/Alco had been in place for 60 years,
and Alder/Alco “pulled” exclusively for Dean Foods. In 2000, Alder received the “Partners in
Distribution Award” from Dean Foods. White, “Alder and Alco’s” assistant safety director and
driver trainer at the time of the collision, testified that he used letterhead that bore Dean Foods
insignia with the notation “distributor of Dean Foods” in the performance of his job, including
the reprimand of drivers. The “Alder Companies Driving Manual,” which was admitted into
evidence without objection, states that Alder/Alco drivers were part of Dean Foods’ fleet and
instructs the drivers to wear Dean Foods clothing and act in a manner that will encourage
positive opinions about Dean Foods. In particular, the manual states “When you step out of
your truck, you are immediately recognized as DEAN FOODS.” Again, and perhaps most
importantly, Dean Foods owned the loaded trailer which Reeves was “pulling” at the time of
the collision.
¶ 75 Accordingly, the trial court did not err in denying defendants’ motions for judgment
notwithstanding the verdicts on the issue of legal cause and the issue of Dean Foods’ agency.
¶ 76 However, we conclude the evidence at trial failed to establish the existence of a joint
venture between Dean Foods and Alder, Alco, and Reeves. “A joint venture is defined as ‘an
association of two or more persons to carry out a single enterprise for profit.’ ” Thompson v.
Hiter, 356 Ill. App. 3d 574, 582 (2005). Like the existence of an agency relationship, the
existence of a joint venture may be inferred from the circumstances and does not require a
formal agreement. Thompson, 356 Ill. App. 3d at 582. The factors to be considered in
determining whether a joint venture exists include: (1) a community of interest in the purpose
of the joint association; (2) a right of each member to direct and govern the policy or conduct of
the other members; (3) a right to joint control and management of the property used in the
enterprise; and (4) a sharing in both profits and losses. Thompson, 356 Ill. App. 3d at 582. “In
the absence of any one of the elements, a joint venture does not exist.” Daniels, 382 Ill. App.
3d at 80.
¶ 77 Although the evidence showed that Alco/Alder was a distributor of Dean Foods, the
evidence did not show that Dean Foods shared its profits and losses with Alco/Alder. As
previously discussed, none of the trial witnesses were representatives of Dean Foods.
Therefore, the only evidence relating to the existence of a joint venture was testimony from
Alco/Alder employees. However, none of the witnesses at trial gave any testimony indicating
that profits and losses were shared among the companies. No other circumstantial evidence
was admitted to prove this element. Without evidence that Dean Foods and Alco/Alder shared
profits and losses, then as a matter of law, a joint venture could not be found. We also question
whether the evidence at trial was sufficient to establish that Alco/Alder had the right to direct
and govern Dean Foods’ policy or conduct. Since the absence of one element negates the
existence of joint venture, Dean Foods was entitled to a judgment notwithstanding the verdict
as to the finding of a joint venture. 4
4
Although Dean Foods has not raised the issue of the jury instructions on joint venture, we point out
that the trial court erroneously instructed the jury about the elements of a “joint enterprise” as defined in
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¶ 78 Defendants also claim that the jury’s verdicts were contrary to the manifest weight of the
evidence due to the lack of evidence of proximate cause, and thus they are entitled to a new
trial. Dean Foods also contends it is entitled to a new trial on the issue of agency. “On a motion
for a new trial, the court, after weighing the evidence, will set aside the verdict and order a new
trial ‘ “if the verdict is contrary to the manifest weight of the evidence.” ’ ” Lazenby v. Mark’s
Construction, Inc., 236 Ill. 2d 83, 100-01 (2010) (quoting Maple, 151 Ill. 2d at 454, quoting
Mizowek v. De Franco, 64 Ill. 2d 303, 310 (1976)). “A verdict is against the manifest weight of
the evidence ‘ “where the opposite conclusion is clearly evident or where the findings of the
jury are unreasonable, arbitrary and not based upon any of the evidence.” [Citations.]’ ”
Lazenby, 236 Ill. 2d at 101 (quoting Maple, 151 Ill. 2d at 454).
¶ 79 Based upon our review of the evidence already outlined above, we cannot say the verdicts
are against the manifest weight on the questions of proximate cause and Dean Foods’ agency.
Accordingly, the trial court did not err in denying defendants’ motions for a new trial on these
issues.
¶ 80 We next consider whether the remaining defendants were denied a fair trial when the trial
court admitted evidence of the prior bad acts of Reeves, Alco and Alder. Specifically,
defendants argue that there was no proper purpose for informing the jury that (1) Reeves was
speeding on days prior to the accident; (2) Reeves and Alder violated federal trucking
regulations several weeks and months prior to the accident; (3) Reeves had been found guilty
of falsifying driving logs prior to the accident; and (4) Reeves and Alder had been fined by the
federal government after an audit for misconduct that occurred prior to the accident.
Defendants assert that the admission of this evidence was erroneous, highly prejudicial, and
warrants the granting of a new trial.
¶ 81 Plaintiffs maintain that the evidence of prior bad acts was properly admitted because the
evidence of earlier log violations demonstrated Alco’s knowledge in scheduling Reeves for
long runs. According to plaintiffs, Alco “implicitly” approved of Reeves’ driving time
violations. Plaintiffs assert that the evidence was properly admitted to show absence of mistake
that the violation was not accidental. Plaintiffs also argue that defense counsel opened the door
to the admission of this evidence by stating in opening statements that the evidence would
show that “he wasn’t falsifying his logs.”
¶ 82 Defendants filed two motions in limine to exclude evidence of prior bad acts. Prior to trial,
the trial court granted defendants’ motion in limine to exclude evidence of Reeves’ prior traffic
tickets for speeding. Later, prior to the introduction of evidence at trial, defendants filed a
motion in limine to “exclude evidence of prior log violations.” Defendants stated that Reeves
was cited for a logbook violation prior to the accident, but they sought to exclude this evidence
because the prior violation was irrelevant to the issues at trial and any probative value would
the IPI for “Automobile Guests–Joint Enterprise–Passengers.” See IPI Civil (2006) No. 72.04.
However, this instruction is generally used for an exception to the general rule that the negligence of a
driver may not be imputed to his passenger. Campanella v. Zajic, 62 Ill. App. 3d 886, 887 (1978).
Though similar, the elements for a joint enterprise are slightly different than the elements of a joint
venture and this case did not involve whether Reeves and a passenger were engaged in a joint
enterprise, but rather whether Dean Foods was part of a joint venture with Alder, Alco, and Reeves.
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have been substantially outweighed by undue prejudice. The defendants also argued that the
logbook violation could not be used for impeachment purposes.
¶ 83 In response, plaintiffs Powell and Kakidas asserted that Reeves was only cited for the
logbook violation one month prior to the accident. They noted that he was specifically cited for
“false reports of record of duty status” and his company was fined $10,000. Plaintiffs also
argued that defense counsel opened the door for this evidence by stating in opening statements
that Reeves “wasn’t falsifying his logs.” Plaintiffs claimed that the logbook violation was
relevant to Reeves’ credibility because it demonstrated his dishonesty and desire to conceal
facts which ought to be reported. According to plaintiffs, this violation was a crime of
dishonesty. Plaintiffs additionally claimed that the logbook violation gave his employer notice
that Reeves was routinely driving over the speed limit and over his hours of service, such that it
was incumbent on defendants not to schedule Reeves for runs near 500 miles.
¶ 84 Following argument, the trial court denied the defendants’ motions in limine and allowed
the admission of the prior logbook violation into evidence. The court found that “it is
something a little bit more than a traffic citation. It is an affirmative act on the part of Mr.
Reeves or was a part in the act Mr. Reeves and some *** action was taken in the form of a fine
for a substantial amount and it did happen in close proximation to the accident.” The court also
noted that defense counsel “did make an affirmative statement during the course of [his]
opening statement that requires them to bear a response.” The court held that the evidence was
relevant and probative. Defense counsel objected to the admission of the prior violation and
stated that he would make a continuing objection at trial.
¶ 85 Additionally, prior to trial, defense counsel also moved to bar the testimony of Donald
Hess, plaintiffs’ expert. Hess was to testify as an expert on negligent hiring and supervision as
well as to the logs and federal regulations kept for a trucking company. Defendants argued that
Hess’s testimony would have been duplicative because Alco admitted that Reeves was its
employee. According to defendants, any negligence by Reeves would be imputed to his
employer and reviewing federal logs was unnecessary. In response, plaintiffs contended that
the federal violations were relevant because they had set forth allegations that Alco and Alder
had violated federal safety regulations and those violations involved the employer’s conduct
and responsibility. According to plaintiffs, Hess had extensive experience with the federal
regulations and he would “assist the jury in understanding how these regulations apply to real
life and that the obligations of Alco and Alder are separate and distinct from the supervisory
obligations over Mr. Reeves.” The trial court denied the motion to bar Hess’s testimony, but
indicated that it would revisit the issue if the testimony became duplicative regarding negligent
hiring.
¶ 86 Defendants then sought to exclude specific opinions of Hess, as set forth in his deposition.
Defendants argued that there was no causal connection between any sort of logbook issue and
why this accident happened. The court allowed, over defendants’ objection, the admission of
Hess’s opinions that Alco and Alder encouraged Reeves to violate federal requirements and to
drive in excess of the speed limit.
¶ 87 “Where it appears that an error did not affect the outcome below, or where the court can see
from the entire record that no injury has been done, the judgment or decree will not be
disturbed.” Both v. Nelson, 31 Ill. 2d 511, 514 (1964); see also Sbarboro v. Vollala, 392 Ill.
App. 3d 1040, 1057 (2009). “But where the case is a close one on the facts, and the jury might
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have decided either way, any substantial error which might have tipped the scales in favor of
the successful party calls for reversal.” Both, 31 Ill. 2d at 514; Sbarboro, 392 Ill. App. 3d at
1057.
¶ 88 “It is axiomatic that ‘[e]vidence of specific prior bad acts unrelated to a material issue is
prohibited.’ ” Timothy Whelan Law Associates, Ltd. v. Kruppe, 409 Ill. App. 3d 359, 369
(2011) (quoting Sharma v. Zollar, 265 Ill. App. 3d 1022, 1025 n.4 (1994)). “The law
concerning the admissibility of a defendant’s prior acts of misconduct in a criminal
prosecution is fairly well established. Such evidence is inadmissible if introduced merely to
establish the defendant’s propensity to commit crime.” Thompson v. Petit, 294 Ill. App. 3d
1029, 1034 (1998) (citing People v. Thingvold, 145 Ill. 2d 441, 452 (1991)). See also
Wernowsky v. Economy Fire & Casualty Co., 106 Ill. 2d 49, 53 (1985). “Propensity evidence
is not rejected because it is irrelevant; ‘on the contrary, it is said to weigh too much with the
jury and to so overpersuade them as to prejudice one with a bad general record and deny him a
fair opportunity to defend against a particular charge.’ ” Thompson, 294 Ill. App. 3d at 1034
(quoting Michelson v. United States, 335 U.S. 469, 475-76 (1948)). However, evidence of
prior bad acts may be admitted if relevant to prove modus operandi, intent, identity, motive,
absence of mistake, or any material question other than the propensity to commit crime.
Thompson, 294 Ill. App. 3d at 1034-35.
¶ 89 “Although not expressed in exactly the same terms, Illinois has long subscribed to a similar
rule in civil cases. The admission of evidence of prior similar tortious or wrongful conduct to
establish purpose, intent, motive, knowledge or other mental state of a party to a civil action
forms an exception to the general rule which prohibits proof of one wrongful act by evidence
of the commission of another such act.” Thompson, 294 Ill. App. 3d at 1035. “ ‘Evidence of
misconduct other than that in issue is not properly admissible to establish a person’s
disposition to behave in a certain way.’ ” Kruppe, 409 Ill. App. 3d at 369 (quoting Plooy v.
Paryani, 275 Ill. App. 3d 1074, 1089 (1995)).
¶ 90 Further, “the fact that evidence of prior acts of misconduct may be relevant to prove
something other than propensity does not mean that such evidence should be admitted as a
matter of course. Trial judges must still determine whether the danger of ‘unfair prejudice’ to
the defendant ‘substantially’ outweighs the probative value of the prior-act evidence.”
Thompson, 294 Ill. App. 3d at 1036 (citing People v. Illgen, 145 Ill. 2d 353, 375-76 (1991)).
“Such a determination is a matter committed to the sound discretion of the trial judge, and we
will not reverse the court’s resolution of the question absent a clear abuse of that discretion.”
Thompson, 294 Ill. App. 3d at 1036.
¶ 91 In Kruppe, the plaintiff filed a breach of contract action against the defendant in an attempt
to collect fees owed for its representation of the defendant. The plaintiff had previously
represented the defendant in shareholder litigation based on the defendant’s involvement in
two corporations. The defendant terminated the plaintiff’s representation in favor of a new
attorney and a dispute arose over payment of attorney fees. Following a jury trial, the jury
awarded the plaintiff $30,330.14 and the trial court increased the award for a total of $50,000.
Kruppe, 409 Ill. App. 3d at 361.
¶ 92 One of the issues raised on appeal was whether the trial court erred in allowing the plaintiff
to present evidence of the defendant’s alleged failure to pay other professionals for their
services, specifically a fee petition filed by another law firm. The defendant objected to its
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admission, but the trial court found the evidence relevant as to the defendant’s credibility and
his course of conduct. The court admitted the evidence. Kruppe, 409 Ill. App. 3d at 368-69.
¶ 93 The Kruppe court concluded that the trial court abused its discretion in admitting the
evidence as a course of conduct. Kruppe, 409 Ill. App. 3d at 369. It held that “the only possible
relevance we see for this evidence is to impugn defendant’s character in an attempt to show
that he acted in conformity therewith when he allegedly declined to pay plaintiff for its
services. That, however, is not a permissible purpose for admitting such evidence.” Kruppe,
409 Ill. App. 3d at 370.
“In criminal cases, the danger that evidence of other bad acts is likely to overpersuade
the fact finder and lead to a conviction by causing the fact finder to dislike the
defendant is well recognized. E.g., People v. Manning, 182 Ill. 2d 193, 213-14 (1998);
People v. Hensley, 354 Ill. App. 3d 224, 232 (2004). The same danger is present here.
Thus, the trial court abused its discretion in permitting the admission of this evidence.”
Kruppe, 409 Ill. App. 3d at 370.
¶ 94 Plaintiffs rely on a federal district court decision, Trotter v. B&W Cartage Co., No.
05-cv-0205-MJR, 2006 WL 1004882 (S.D. Ill. Apr. 13, 2006), to support their position that the
evidence of prior log violations was properly admitted. Plaintiffs assert that the district court in
Trotter admitted evidence of prior “faked” logs because “it tended to prove that the trucking
company operated with conscious indifference to its federal mandated duty and also because
its behavior sent a message to the drivers that violating hours of service regulations was
acceptable.” However, the district court in Trotter did not consider the propriety of the
admission of prior “faked” logs in a jury trial for negligence, but was reviewing the
defendants’ motion for summary judgment on a request for punitive damages filed by plaintiffs
against the defendant trucking company. Trotter, 2006 WL 1004882, at *1.
¶ 95 The district court noted that the deposition testimony revealed the trucking company’s
method for reviewing the logs was inadequate for the last five to seven years, the managers
would regularly schedule drivers with minimal time for breaks, and that “ ‘[m]oney took
precedent [sic] over safety.’ ” Trotter, 2006 WL 1004882, at *5-7. The court also found that
the evidence showed a pattern of “conscious indifference” to the federal regulations. Trotter,
2006 WL 1004882, at *7. As a result, the district court denied the defendants’ motion for
summary judgment because reasonable jurors could find that the imposition of damages based
on aggravating circumstances was warranted.
¶ 96 Plaintiffs’ reliance on Trotter is misplaced, because in that case plaintiffs were seeking
punitive damages and would have to prove the trucking company’s knowing or conscious
disregard of the federal regulations at trial in order to recover those special damages. The
question of whether the court should have allowed introduction of prior log violations evidence
was never visited by the court.
¶ 97 In Thompson, the reviewing court affirmed the admission of prior bad acts at trial because
the defendant’s mental state was an issue at trial. There, the plaintiff filed a negligence action
against the defendant following an incident in which the parties repeatedly cut each other off
and stopped their vehicles in front of the other on the Eisenhower Expressway which
culminated in the defendant shooting the plaintiff twice. At trial, the defendant raised two
affirmative defenses, contributory negligence and self-defense, arguing that he shot the
plaintiff after the plaintiff and his passenger approached him while armed with a baseball bat
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and a tire iron and began to strike him. Illinois recognizes the doctrine of self-defense as a
defense in both criminal and civil cases. The trial court admitted evidence of a similar incident
in which the defendant also displayed a gun after cutting another driver off on a highway.
Thompson, 294 Ill. App. 3d at 1031-34.
¶ 98 On appeal, the reviewing court observed that “[b]y bringing his cause of action grounded in
allegations of negligence, the plaintiff in this case obviated the need to plead or prove the
defendant’s motive or intent as he would have been obliged to do had he chosen to seek
recovery for a battery.” Thompson, 294 Ill. App. 3d at 1035-36. “However, by pleading
self-defense as an affirmative defense to the plaintiff’s action, the defendant introduced his
mental state as an issue in controversy, as self-defense necessarily involves the question of the
defendant’s subjective belief and intent at the time of the incident.” Thompson, 294 Ill. App. 3d
at 1036. The reviewing court found the witness’s testimony about the defendant’s prior bad
acts to be relevant to the defendant’s state of mind and intent when he shot the plaintiff and also
whether the defendant introduced the gun as a measure of self-defense or “an instrument of
aggression.” Thompson, 294 Ill. App. 3d at 1036.
¶ 99 However, the Thompson court recognized that the trial court must still determine whether
the probative value of the prior bad acts substantially outweighed the prejudicial effect. The
reviewing court held that the trial court did not abuse its discretion in admitting the evidence of
prior bad acts. The court determined that “the risk of unfair prejudice to the defendant was
minimal in comparison to its probative worth” and the witness testimony was relevant to the
issue of the defendant’s state of mind, especially given the high degree of similarity between
the road encounters. Thompson, 294 Ill. App. 3d at 1038.
¶ 100 In contrast with Thompson, Reeves’ mental state at the time of the accident was not a
question before the jury. Plaintiffs had filed a negligence action against defendants and no
affirmative defense placed Reeves’ mental state at issue. Thus, plaintiffs were not required to
prove the defendants’ motive, intent, or knowledge. See Thompson, 294 Ill. App. 3d at
1035-36.
¶ 101 As in Kruppe, the same danger of overpersuasion was present in this case, given the
circumstances of the accident and closeness of the evidence. The cases we previously
reviewed, Salo, Hale, Johnson, Coole, and Steurer, all illustrate that the facts of this case were
extremely close and the jury could have decided either way. Similar to Hale, in which the
defendant’s young son was killed, and the reviewing court expressed concern that the jury may
have been swayed by sympathy (see Hale, 129 Ill. App. 2d at 475), this case involved the tragic
and untimely deaths of three young people due to a traffic collision involving an allegedly
fatigued, speeding truck driver carrying some 80,000 pounds of milk product. Given these
highly charged facts, the admission of the prior bad acts of speeding and log falsifications
required a careful weighing of the probative value of this evidence against the prejudicial
impact it would have had upon the fact finder, which we find was not done in this case. In the
instant case, plaintiffs’ wrongful death actions were based upon negligence claims. Reeves’
prior bad acts had no connection to the question of whether he was negligent at the time of the
accident. There was no claim for an intentional tort or punitive damages to merit the
introduction of the prior log violations. Contrary to plaintiffs’ argument, the introduction of
prior misconduct was not used for any proper purpose.
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¶ 102 Further, the evidence of the prior bad acts, i.e., prior speeding, prior violation of federal
regulations, and the $10,000 fine, had no purpose other than to allow the inference that
defendants acted badly at the time of the accident because they had done so prior to the
accident. The record fails to establish that the evidence of prior bad acts was offered for an
admissible purpose, such as purpose, intent, motive, knowledge or other mental state. As
previously noted, the intent, mental state, or knowledge of any of the defendants was not at
issue in this negligence action.
¶ 103 We also disagree with plaintiffs’ assertion that the evidence of prior bad acts was
admissible because during opening statements defense counsel stated that Reeves “wasn’t
falsifying his logs.” Plaintiffs contend that this statement opened the door to evidence that
Reeves had previously falsified his logs. Defendants maintain that the comment was not
referring to prior log entries, but was discussing his log for the week of the accident.
Defendants do not dispute the admissibility of evidence relating to Reeves’ logs for the week
of the accident and the 70-hour rule.
¶ 104 Plaintiffs cited Young v. Rabideau, 821 F.2d 373, 380 (7th Cir. 1987), and Hamrock v.
Henry, 222 Ill. App. 3d 487, 494-95 (1991), to support their argument that the comment in
opening statements opened the door for the admission of the prior bad acts. However, in both
of those cases, the plaintiffs opened the door for additional evidence during their own
testimony. See Young, 821 F.2d at 380 (prisoner’s testimony that he grabbed a guard’s chain
by reflex opened the door for the prison guards to contradict this testimony with his prior
prison disciplinary record); Hamrock, 222 Ill. App. 3d at 494-95 (plaintiff opened the door for
defendants to question her about her collateral source of pension funds when she testified that
she was referred to a physician by the pension board). Plaintiffs have not cited any authority in
which an attorney’s comment in opening statements made inadmissible evidence relevant and
admissible.
¶ 105 Moreover, the evidence of prior bad acts was not admissible to show a “crime of
dishonesty.” “In Illinois a witness’s credibility may not be impeached by inquiry into specific
acts of misconduct which have not led to a criminal conviction.” Podolsky & Associates L.P. v.
Discipio, 297 Ill. App. 3d 1014, 1026 (1998) (citing People v. West, 158 Ill. 2d 155, 162-64
(1994)). Here, the prior log violations and the subsequent fine did not lead to a criminal
conviction, but only a finding of a violation of federal regulations and were not admissible for
purposes of impeachment.
¶ 106 Because the case was close on the facts and the jury could have decided either way, we
cannot say that the error did not affect the jury’s verdict. Whether Reeves was speeding and
whether he was fatigued were two of the most hotly contested issues in the case. As to
speeding, the plaintiffs’ experts opined that Reeves was traveling at 49.5 miles per hour at
impact. However, the defendants’ expert testified that Reeves was driving at a speed of 41.5
miles per hour just prior to the collision and at 37 miles per hour at impact. The speed of
Reeves’ truck was a crucial fact determination and the introduction of this inadmissible
evidence of speeding on dates prior to the accident was not harmless.
¶ 107 On the issue of fatigue, Reeves testified that he was not fatigued and the initial responding
officer testified that he did not notice that Reeves was fatigued. In contrast, Hess opined that
Reeves was fatigued based in part on the log evidence from the relevant time that showed
Reeves was driving more than the 70-hour rule allowed. The evidence of the fine was also
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unfairly prejudicial because it carried with it the imprimatur of the government. The wrongful
admission of the prior log falsifications and fine were not harmless errors.
¶ 108 The dissent relies on several cases from other jurisdictions to support the admission of a
truck driver’s logs in negligence cases. However, all of the cases cited in the dissent involved
the issue of punitive damages in which the truck driver and/or his employer’s state of mind was
at issue to prove a wanton disregard for the safety of others or intentional misconduct. Further,
these cases can be factually distinguished from the circumstances present in this case.
¶ 109 In Torres v. North American Van Lines, Inc., 658 P.2d 835 (Ariz. Ct. App. 1982), the
plaintiffs’ decedent was killed when a truck driven by a North American driver struck the rear
end of the decedent’s vehicle while parked in the emergency lane of the freeway. The driver’s
logs, including his repeated failure to include one item, was admitted at trial on the issue of
gross negligence for punitive damages and the reviewing court found that the jury could have
concluded “this manifested a wanton disregard for the safety of others, that is, gross
negligence.” Torres, 658 P.2d at 839.
¶ 110 In Purnick v. C.R. England, Inc., 269 F.3d 851 (7th Cir. 2001), the Seventh Circuit was
reviewing the district court’s grant of summary judgment in favor of the defendants on the
issue of punitive damages. There, the defendants’ truck driver rear-ended the plaintiff, stating
that he had been “mesmerized” by the road prior to impact. The plaintiff’s experts asserted that
the driver had falsified his logs. However, the reviewing court held that the plaintiff had failed
to meet her burden “by clear and convincing evidence that the defendant engaged in conscious
and intentional misconduct that he knew would probably result in injury,” finding that even if
the driver falsified his logs and was fatigued, he did not know that his actions would result in
injury. Purnick, 269 F.3d at 852.
¶ 111 In Librado v. M.S. Carriers, Inc., No. 3:02-CV-2095-D, 2004 WL 1490304 (N.D. Tex.
June 30, 2004), the district court denied the defendants’ partial motion for summary judgment
on the issue of gross negligence. In that case, the truck driver ran a stop sign while looking at a
map and struck the vehicle driven by the plaintiffs’ decedent and another passenger. The
defendant trucking company admitted liability for negligence and negligence per se, but only
contested the claim of gross negligence. Librado, 2004 WL 1490304, at *1. Under Texas law,
“[e]vidence of simple negligence is not enough to prove either the objective or subjective
elements of gross negligence.” Librado, 2004 WL 1490304, at *2. The district court found a
question of material fact on the issue of gross negligence and that the driver’s prior log
violations were relevant to the employers’ knowledge and failure to discipline, “consciously
indifferent to the effect on others.” Librado, 2004 WL 1490304, at *4.
¶ 112 In Briner v. Hyslop, 337 N.W.2d 858 (Iowa 1983), the truck driver was intoxicated, fell
asleep while driving and his truck drifted over the center line, striking the vehicle driven by the
plaintiff’s decedent. After a trial, the jury entered awards of compensatory and punitive
damages against both defendants, but the trial court entered a judgment notwithstanding the
verdict as to the award of punitive damages against the defendant employer. On appeal, the
Iowa Supreme Court reversed and remanded for a new trial on the issue of punitive damages,
finding that it was a jury question as to whether the employer failed to supervise and
disregarded the driver’s actions of driving excessive hours without sufficient rest. Briner, 337
N.W.2d at 867-68.
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¶ 113 In Smith v. Printup, 866 P.2d 985 (Kan. 1993), the defendant driver was driving a moving
van when he lost control, the vehicle jack-knifed, crossed the median and struck the vehicle
driven by plaintiffs’ decedents. On appeal, the Kansas Supreme Court held that the trial court
erred in excluding evidence that the defendant employer had knowledge of the driver’s history
of log falsification and other service violations from the jury’s determination of punitive
damages and remanded for further proceedings on punitive damages. Smith, 866 P.2d at
1006-07.
¶ 114 In Elbar, Inc. v. Claussen, 774 S.W.2d 45 (Tex. App. 1989), the appellees’ decedent lost
control of his motorcycle and died after a truck driven by the appellants’ driver crossed into the
decedent’s lane of traffic. The reviewing court held that the employer’s noncompliance with
federal regulations was properly admitted for the jury’s determination of gross negligence.
Elbar, 774 S.W.2d at 51.
¶ 115 In Came v. Micou, No. 4:04-CV-1207, 2005 WL 1500978 (M.D. Pa. June 23, 2005), the
district court considered the partial motion for summary judgment filed by the defendants
regarding the issues of punitive damages. There, the plaintiff alleged that the defendant
trucking company’s tractor-trailer operated by the defendant driver rear-ended the
tractor-trailer operated by the plaintiff. The court found a genuine issue of material fact existed
as to whether the defendant driver violated the federal regulations, including “whether
Defendants’ conduct was so outrageous as to warrant an award of punitive damages in this
case.” Came, 2005 WL 1500978, at *5.
¶ 116 None of these cited cases involved a truck driver on a preferential highway colliding with a
driver crossing from a non-preferential road. In each case, the defendant truck driver was
clearly at fault for the accident. Each of these cases involved a determination of punitive
damages in which the defendants’ knowledge and state of mind was at issue. Such a
determination is not present in this case because plaintiffs alleged survival and wrongful death
counts in negligence, and no claim for punitive damages was raised. Moreover, the question of
whether to allow evidence of prior bad acts on a negligence count was never addressed in these
cases. Further, we point out that Reeves’ driving logs for the week of the accident were
properly admitted and that has not been challenged on appeal.
¶ 117 We conclude that the improper admission of the evidence of prior bad acts, specifically the
prior speeding, prior log violations, and prior fine occurring weeks and months before the
accident were substantial errors that may have tipped the scales in favor of plaintiffs.
Accordingly, we find that the trial court abused its discretion in admitting the evidence of prior
bad acts, we reverse the judgments in plaintiffs’ favor and we remand for a new trial without
the use of the improperly admitted evidence.
¶ 118 Defendants also assert that the trial court abused its discretion in giving the “careful habits”
instruction after plaintiffs admitted that Chakonas was at least 25% of the proximate cause of
the accident. Plaintiffs respond that the instruction was properly given because they had
presented evidence that Chakonas was a person of careful habits and none of the witnesses at
trial testified as to the complete movement of Chakonas’ car from the stop sign and into the
intersection.
¶ 119 “In Illinois, the parties are entitled to have the jury instructed on the issues presented, the
principles of law to be applied, and the necessary facts to be proved to support its verdict.”
Dillon v. Evanston Hospital, 199 Ill. 2d 483, 505 (2002). “The trial court has discretion to
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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 (2002). “A reviewing court ordinarily will not reverse a trial court
for giving faulty instructions unless they clearly misled the jury and resulted in prejudice to the
appellant.” Schultz, 201 Ill. 2d at 274. “The function of jury instructions is to convey to the jury
the correct principles of law applicable to the submitted evidence and, as a result, jury
instructions must state the law fairly and distinctly and must not mislead the jury or prejudice a
party.” (Emphasis in original.) Dillon, 199 Ill. 2d at 507.
¶ 120 During the jury instruction conference, plaintiff Chakonas requested IPI Civil (2006) No.
10.08, “Careful Habits as Proof of Ordinary Care,” instruction be given. This instruction
informed the jurors that if evidence had been presented that the decedent was a person of
careful habits, then it could infer that she exercised ordinary care at the time of the accident.
¶ 121 Defense counsel objected to this instruction because there were “ample eyewitnesses” who
testified and plaintiffs admitted some degree of fault for the accident on Chakonas’ part.
Chakonas’ attorney responded there were witnesses to “bits and pieces” but there was no one
witness who observed the entire period in which the decedent was in the exercise of ordinary
care. Defendants’ attorney argued that the entire occurrence was witnessed “not only by Mr.
Reeves, but Miss Solma, and Mr. Reid also saw what occurred, as did Mr. Youngreen in terms
of the events leading up to and immediately after this event.” Chakonas’ attorney maintained
that none of these witnesses observed the entire incident from the time when Chakonas was
stopped at the stop sign until the accident occurred. The trial court ruled that the instruction
would be given over the defense objection.
¶ 122 The IPI Civil (2006) No. 10.08, “Careful Habits as Proof of Ordinary Care,” instruction
provides:
“If you decide there is evidence tending to show that the decedent was a person of
careful habits, you may infer that [she] was in the exercise of ordinary care for [her]
own safety at and before the time of the occurrence, unless the inference is overcome
by other evidence. In deciding the issue of the exercise of ordinary care by the
decedent, you may consider this inference and any other evidence upon the subject of
the decedent’s care.”
¶ 123 The notes on use for this instruction indicate that “[t]his instruction can be given in a
negligence or willful and wanton action based on the Wrongful Death Act when there are no
witnesses to the occurrence, other than the defendant, covering the entire period in which the
decedent must be in the exercise of ordinary care.” IPI Civil (2006) No. 10.08, Notes on Use.
¶ 124 Plaintiffs respond that Illinois courts have adopted Federal Rule of Evidence 406, which
allows for the admission of habit evidence regardless of eyewitness testimony. Plaintiffs are
correct. The Illinois Supreme Court adopted Federal Rule 406 in September 2010 as part of the
Illinois Rules of Evidence. Illinois Rule of Evidence 406 provides:
“Evidence of the habit of a person or of the routine practice of an organization,
whether corroborated or not and regardless of the presence of eyewitnesses, is relevant
to prove that the conduct of the person or organization on a particular occasion was in
conformity with the habit or routine practice.” Ill. R. Evid. 406 (eff. Jan. 1, 2011).
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¶ 125 However, allowing the admission of habit evidence does not automatically mean that the
jury instruction should have been given. “A reviewing court ordinarily will not reverse a trial
court for giving faulty instructions unless they clearly misled the jury and resulted in prejudice
to the appellant.” Schultz, 201 Ill. 2d at 274. “Generally, if a verdict is tainted by an erroneous
instruction then the entire verdict is called into question, unless the instruction pertains to the
issue of damages.” Graham v. Northwestern Memorial Hospital, 2012 IL App (1st) 102609,
¶ 42.
¶ 126 “It is beyond contention that contributory negligence affects the apportionment of liability,
not the calculation of damages.” Graham, 2012 IL App (1st) 102609, ¶ 42 (citing Alvis v.
Ribar, 85 Ill. 2d 1, 25 (1981)). “Section 2-1116 of the Code of Civil Procedure [citation] bars a
plaintiff ‘whose contributory negligence is more than 50% of the proximate cause of the injury
or damage for which recovery is sought’ from recovering any damages. [Citation.]” Coole, 384
Ill. App. 3d at 396 (citing 735 ILCS 5/2-1116 (West 1994)). “A plaintiff is contributorily
negligent when he or she acts without the degree of care that a reasonably prudent person
would have used for his or her own safety under like circumstances and that action is the
proximate cause of his or her injuries.” Coole, 384 Ill. App. 3d at 396. The issue of
contributory negligence is a question of fact for the jury. Coole, 384 Ill. App. 3d at 396.
¶ 127 Plaintiffs admitted that Chakonas was contributorily negligent and was part of the
proximate cause of the accident. The careful habits instruction contradicts this admission by
allowing the jury to infer that Chakonas exercised ordinary care prior to the collision. This is
wholly inconsistent with the position taken at trial by all plaintiffs that Chakonas was in fact
not in the exercise of due care but rather was contributorily negligent. The issue was how much
did her negligence contribute to the cause of the accident. The attorney for Powell and Kakidas
argued during closing arguments for the jury to find Chakonas 25% to 35% at fault for the
accident. Chakonas’ attorney likewise asserted that Chakonas was 25% contributorily
negligent for the accident. Further, this instruction was inconsistent with her attorney’s
comment in closing arguments that Chakonas “should not have attempted to cross that street
until that truck has passed.” Both attorneys admitted that Chakonas made a mistake in her
decision to enter the intersection. It was inconsistent to then instruct the jury that it could find
she was in the exercise of due care while at the same time the plaintiffs were admitting her
contributory negligence. The issue before the jury was not whether she stopped at the stop sign,
as perhaps she normally did, but whether it was safe for her to cross Route 30 at that time.
¶ 128 We find that the instruction misled the jurors by instructing that they could infer that
Chakonas exercised due care, despite the admission that she was contributorily negligent. This
instruction was erroneous and may well have erroneously affected the allocation of fault by the
jury. Therefore, the trial court abused its discretion in giving the careful habits jury instruction.
¶ 129 We next review Dean Foods’ contention that the trial court abused its discretion in refusing
to give its proposed jury instruction regarding the burden of proof for agency. During the jury
instruction conference, defendant Dean Foods submitted an instruction to explain the burden
of proof on Dean Foods’ agency.
¶ 130 The proposed instruction, a modified version of IPI Civil (2006) No. B21.02, stated:
“If you find that the plaintiffs have proved the propositions required of them as to
Jaime Reeves, Alder Group, Inc., and Alco of Wisconsin, Inc., you must then
determine whether Jaime Reeves was an agent of Dean Foods Co., Inc.
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If you find from your consideration of all the evidence that the plaintiffs have not
proved that Jaime Reeves was an agent of Dean Foods Co., Inc., then your verdict
should be for Dean Foods Co., Inc.
If you find that the plaintiffs have proved each of the propositions they are required
to prove against Jaime Reeves, Alder Group, Inc. and Alco of Wisconsin, Inc., and
have further proved that Jaime Reeves was the agent of Dean Foods Co., Inc., then your
verdict should be for the plaintiffs and against Dean Foods Co., Inc.”
¶ 131 Plaintiffs objected to this instruction, arguing that it was duplicative of other instructions
on the burden of proof and that the instruction was incomplete because it only considered
whether Reeves was an agent, but did not address whether he was in a joint venture with Dean
Foods or an independent contractor. The trial court agreed with plaintiffs and found that other
instructions sufficiently explained the burden of proof and agency. The proposed instruction
was denied over Dean Foods’ objection.
¶ 132 The trial court instructed the jury on the definition of the burden of proof with IPI Civil
(2006) No. 21.01, as follows:
“When I say that a party has the burden of proof on any proposition, or use the
expression ‘if you find,’ or ‘if you decide,’ I mean you must be persuaded, considering
all the evidence in the case, that the proposition on which he has the burden of proof is
more probably true than not true.”
¶ 133 The trial court also gave the IPI Civil (2006) No. 20.01 instruction on plaintiffs’ burden of
proof regarding the negligence claims. The court further instructed the jury with IPI Civil
(2006) Nos. 50.03 and 50.10, which defined agency and independent contractor and set forth
what was needed to prove the existence of a principal and agent relationship. These
instructions included the following language:
“If you find that the Defendant Jaime Reeves was the agent of the Defendant Dean
Foods Company at the time of the occurrence and if you find Jaime Reeves is liable,
then all Defendants are liable. If you find that Jaime Reeves is not liable, then no
Defendant is liable.”
¶ 134 As previously observed, “[t]he 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, 201 Ill. 2d at 273.
¶ 135 Here, the burden of proof remained on plaintiffs to prove not only that defendants were
negligent, but also to prove that Reeves was acting as an agent of Dean Foods. “ ‘The burden of
proving the existence of an agency relationship and the scope of authority is on the party
seeking to charge the alleged principal.’ ” Daniels, 382 Ill. App. 3d at 75 (quoting Anderson v.
Boy Scouts of America, Inc., 226 Ill. App. 3d 440, 444 (1992)). The instructions, as given to the
jury, did not state that it was plaintiffs’ burden to prove that Reeves was an agent of Dean
Foods. “ ‘[I]t is essential that jurors receive a definition or description of the applicable burden
of proof.’ ” In re Timothy H., 301 Ill. App. 3d 1008, 1016 (1998) (quoting Rikard v. Dover
Elevator Co., 126 Ill. App. 3d 438, 441 (1984)). Further, “[a] trial court’s nondescription of the
applicable burden of proof cannot be harmless because the jury’s deliberations, findings, and
ultimate decision were rendered through an improper scope of analysis.” Timothy H., 301 Ill.
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App. 3d at 1016. We conclude that it was reversible error not to give an instruction on the
burden of proof on the issue of Dean Foods’ agency.
¶ 136 The evidence presented came not from the principal but from inferences drawn from
circumstances surrounding other facts. The evidence of agency was based on the testimony of
Reeves, Ayen and White, along with statements in the drivers’ manual referring to Dean
Foods, and the use of the Dean Foods logo on the tractor and trailer and stationary. No
evidence was presented that Dean Foods had any control over Reeves’ schedule or his conduct.
Ayen testified that he was responsible for setting Reeves’ schedule. Both Ayen and White were
responsible for overseeing Reeves’ logbooks and compliance with federal regulations. None of
the witnesses at trial was an employee or representative of Dean Foods.
¶ 137 Although there was some evidence from which to infer an agency relationship, there was
never any direct proof that Dean Foods controlled the agent. IPI Civil (2006) No. 21.01 simply
defined the burden, more probably true than not, but it did not allocate the burden. IPI Civil
(2006) No. 20.01 related to the burden of proof on negligence only. Similarly, IPI Civil (2006)
No. 50.03 instructed the jury that if it found Reeves was Dean Foods’ agent at the time of the
accident and found Reeves’ liable, then it should find Dean Foods liable. Dean Foods’
proposed instruction explained that the burden was on plaintiffs to establish an agency
relationship. The failure to give an applicable burden of proof instruction is not harmless. See
Timothy H., 301 Ill. App. 3d at 1016. Therefore, the trial court’s refusal to give Dean Foods’
instruction to the jury deprived Dean Foods of a fair trial.
¶ 138 Defendants also argue that the jury’s finding that Christina Chakonas was 40%
contributorily negligent was against the manifest weight of the evidence. Because we have
already remanded the case for a new trial, we need not reach the merits of this issue.
¶ 139 Finally, defendants contend that the jury’s award of damages was excessive and the trial
court erred when it denied their motion for remittitur. Defendants also request a new trial
because the record showed that the verdicts were, in part, a result of the passion and prejudice
against defendants based on the improper admission of the prior bad acts evidence.
¶ 140 Since we have already concluded that the trial court erred in admitting evidence of
defendants’ prior bad acts and committed instructional errors and we have remanded the case
for a new trial, including the issue of damages, we do not need to reach the merits of this issue.
¶ 141 In a petition for rehearing, plaintiffs contend that the evidence of prior speeding and log
violations was relevant because they had alleged direct liability against Alco in the complaint.
However, our review of the record, particularly the jury instructions, shows that the jury was
not charged with determining any direct liability by Alco, but that Alco and Dean Foods were
vicariously liable for the actions of Reeves, their agent. Further, the evidence of prior speeding
and log violations has no relationship to the allegations of negligence set forth to the jury, such
as whether Reeves failed to keep a proper lookout, whether Reeves failed to operate to operate
the truck at a reasonable speed with regard to actual and potential hazards, whether he was
speeding, whether he failed to reduce his speed to avoid a collision, and whether he was
fatigued at the time of the accident. We still fail to see, even assuming that Reeves falsified
logs as opposed to Reeves’ own statements that he made mistakes and other testimony that the
fine imposed was not solely a result of Reeves’ errors, how those facts could possibly support
these negligence allegations. We do not accept the suggestion that the lawyer for Alco and
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Reeves would bring up the subject of the prior log violations without the trial judge having
previously indicated that she would permit this evidence at the trial.
¶ 142 Based upon all of the above, we reverse the verdicts in favor of plaintiffs and remand for a
new trial consistent with this opinion.
¶ 143 Reversed and remanded.
¶ 144 JUSTICE PALMER, specially concurring.
¶ 145 I concur in the judgment of this court in all respects. Inter alia, this court holds today that
the trial court abused its discretion and committed error when it gave to the jury the “careful
habits” instruction found in IPI Civil (2006) No. 10.08. We held that the instruction misled the
jury by instructing that they could infer that the driver exercised due care, despite the
admission that she was contributorily negligent. See supra ¶¶ 118-28.
¶ 146 I write separately, however, to express some doubts that I have concerning the continued
viability of the concept of “careful habits” evidence and thus the use of IPI Civil (2006) No.
10.08 in any case.
¶ 147 In his treatise on Illinois evidence, Professor Graham traces the historical roots of “careful
habits” testimony:
“The Illinois requirement, now abolished ***, that plaintiff in a negligence action
plead and prove freedom from contributory negligence was applied to wrongful death
actions. Accordingly, a plaintiff personal representative was confronted with a difficult
problem of proof if there were no eyewitnesses to the occurrence. As a means of coping
with the problem, case law evolved a procedure of allowing plaintiff to introduce
evidence of careful habits of her decedent.” (Emphasis added.) Michael H. Graham,
Graham’s Handbook of Illinois Evidence § 406.2, at 287-88 (10th ed. 2010).
¶ 148 Professor Graham, however, goes on to note that the necessity for this special procedure no
longer exists with the abolition of the bar to recovery upon a finding of contributory negligence
and the advent of our current system of comparative negligence:
“The decision of the Illinois Supreme Court in Alvis v. Ribar, 85 Ill. 2d 1, 52 Ill.
Dec. 23, 421 N.E.2d 886 (1981), abolishing contributory negligence ***, removed the
necessity of plaintiff’s offering careful habits testimony in its case in chief in order to
avoid a directed verdict.” Graham, supra § 406.2, at 289.
¶ 149 That being said, I believe that the term “careful habits” is actually a misnomer. This type of
evidence is actually more akin to character evidence as opposed to habit evidence. Graham
points out that “[w]hile habit, in contrast to character, may be defined as a settled way of doing
a particular thing, [citation], the dividing line between habit and character is far from distinct.”
Graham, supra § 406.1, at 286.
“ ‘Habit’ is more specific than ‘character.’ Character is a generalized description of
one’s disposition or of one’s disposition in respect to a particular trait, such as honesty,
temperance, or peacefulness.” Graham, supra § 406.1, at 287.
¶ 150 I would add to that list of generalized dispositions the trait of carefulness. Professor
Graham goes on to say:
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“Evidence of a person’s character or a trait of his character for the purpose of proving
that he acted in conformity therewith on a particular occasion is not admissible in civil
cases ***.” Graham, supra § 406.1, at 287.
Indeed, our now-adopted Illinois Rules of Evidence provide that “[e]vidence of a person’s
character or a trait of character is not admissible for the purpose of proving action in
conformity therewith on a particular occasion.” Ill. R. Evid. 404(a) (eff. Jan. 1, 2011).
¶ 151 Professor Graham contrasts habit evidence as follows:
“On the other hand, *** a person’s habit or the routine practice of an organization is
admitted as tending to establish that conduct on a particular occasion was in conformity
therewith. Habit describes one’s regular response to a repeated specific situation so that
doing the habitual act becomes semiautomatic and extremely regular.” (Emphasis
added.) Graham, supra § 406.1, at 287.
¶ 152 Our now-adopted Illinois Rules of Evidence provide for habit evidence as follows:
“Evidence of the habit of a person or of the routine practice of an organization,
whether corroborated or not and regardless of the presence of eyewitnesses, is relevant
to prove that the conduct of the person or organization on a particular occasion was in
conformity with the habit or routine practice.” Ill. R. Evid. 406 (eff. Jan. 1, 2011).
¶ 153 Of importance here, Professor Graham goes on to note that “[e]vidence that one is a
‘careful man’ is lacking the specificity of the act becoming semiautomatic and extremely
regular; it goes to character rather than habit.” Graham, supra § 406.1, at 287.
¶ 154 Always putting a stamp on an envelope after addressing it and before mailing it is a habit, a
response to a repeated specific situation. I believe that being a careful driver is not a response to
a repeated specific situation but rather a more generalized description of a person’s character
trait. As character evidence I believe it should be inadmissible under our Rule 404(a).
Therefore, as the special circumstances that spawned the concept of “careful habits” evidence
no longer exist, and as I feel that this is simply character evidence, I believe the concept to no
longer be viable and further that IPI Civil (2006) No. 10.08 should be discarded.
¶ 155 However, I must add that as this issue was not raised, briefed or argued by the parties, it has
not entered into my decision to concur in this court’s judgment.
¶ 156 JUSTICE GORDON, dissenting.
¶ 157 I must respectfully dissent on three issues: (1) the admission of “prior bad acts” evidence
admitted against Reeves, Alco of Wisconsin, Inc., and Alder Group, Inc., that the majority
finds was improper; (2) the tendering of a “careful habits” instruction to the jury after plaintiffs
admitted that the driver, Christina Chakonas, was contributorily negligent in causing the fatal
collision, which the majority finds was error; and (3) the burden of proof instructions regarding
agency.
¶ 158 A defendant is not entitled to a perfect trial, only a fair trial. Wilbourn v. Cavalenes, 398 Ill.
App. 3d 837, 855 (2010). As the majority notes, substantial verdicts for three young dead
people against defendants were vacated when the majority found that the trial court erred in
denying defendant Alder a substitution of judge as a matter of right affected the jury verdicts
against all defendants. Our supreme court vacated and reinstated those verdicts against all of
the defendants except Alder. Plaintiffs dismissed Alder as a party defendant with prejudice,
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and now we must decide defendants’ posttrial motions. Powell v. Dean Foods Co., 2012 IL
111714, ¶ 50.
¶ 159 I. “Prior Bad Acts” Evidence
¶ 160 Defendants argue that the evidence of prior speeding, violations of federal trucking
regulations and the $10,000 fine had no purpose other than to foster the legally impermissible
inference that defendants acted badly at the time of the collision because they had acted badly
prior to the collision. They argue that the fact that Reeves may have been speeding and had
falsified his logs prior to the collision made it no more likely that he was speeding at the time of
this accident or falsified his log here, and as a result, the trial court abused its discretion in
admitting this evidence.
¶ 161 Specifically, defendants argue that there was no proper purpose for informing the jury (1)
that Reeves was speeding prior to the accident; (2) that Reeves and Alder violated federal
trucking regulations several weeks and months prior to the accident; (3) that Reeves had been
found to have falsified driving logs prior to the accident; (4) and that Reeves and Alder had
been fined after an audit by the federal government for misconduct in maintaining its trucking
logs. As a result, defendants argue that all of this evidence was erroneous, highly prejudicial,
and warrants the granting of a new trial.
¶ 162 Evidence of a person’s conduct on another occasion generally is not relevant or admissible.
Doe v. Lutz, 281 Ill. App. 3d 630, 638 (1996); Plooy v. Paryani, 275 Ill. App. 3d 1074, 1089
(1995). A court will not consider evidence that a person has, or has not, done a certain act at a
particular time as probative of a contention that he has, or has not, done a similar act at another
time. Bevelheimer v. Gierach, 33 Ill. App. 3d 988, 995 (1975).
¶ 163 However, such evidence may be admissible if offered for some purpose other than as proof
of a person’s disposition to behave in a certain way. Wernowsky v. Economy Fire & Casualty
Co., 106 Ill. 2d 49, 53 (1985). Thus, the admission of evidence of prior similar wrongful
conduct to establish purpose, intent, motive, knowledge, modus operandi, or other mental state
of a party to a civil action, forms an exception to the general rule which prohibits proof of one
wrongful act by evidence of the commission of another such act. Thompson v. Petit, 294 Ill.
App. 3d 1029, 1034-35 (1998).
¶ 164 Plaintiffs claim that Reeves was fatigued because he had driven beyond the hourly limits
provided for by the federal motor carrier safety regulations. At trial, plaintiffs introduced
evidence that Alco had assigned Reeves a driving schedule that ensured that Reeves would be
required to violate federal regulations if he followed that schedule by requiring Reeves to both
speed and to drive beyond the maximum hours allowed for truck drivers in an eight-day work
period. Plaintiffs also introduced evidence that Reeves’ driver logs for the week in question
were incorrect and that he was driving in excess of the 70-hour rule at the time of the collision.
¶ 165 This evidence showed that Reeves had the intention to falsify his logs and that all of the
other defendants had knowledge of what he was doing. The majority states in paragraph 102 of
its opinion that the intent, mental state, or knowledge of any of the defendants was not at issue
in this negligence action. I say it was the major issue of the case.
¶ 166 In the case at bar, Reeves testified that he did not know what happened to the trip ticket for
the week ending July 6, 2002 when the accident occurred on July 6, 2002. A trip ticket is
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maintained to keep track of miles driven, stops made, and fuel. However, the log maintained by
Reeves was produced and is a separate document from a trip ticket.
¶ 167 The prior bad act evidence revealed that, in June 2002, the federal motor carrier
compliance inspector performed an audit. Reeves testified that “it was determined he had made
some mistakes on [his log].” He denied it was intentional; however, plaintiff argues that the
evidence of the audit showed Reeves falsified his logs. Defendants assert that the admission of
this evidence was erroneous, highly prejudicial, and warrants the granting of a new trial.
¶ 168 Defendants argue that the evidence of prior speeding, violations of trucking regulations
and the $10,000 fine had no purpose other than to foster the legally impermissible inference
that defendants acted badly at the time of the collision because they had acted badly prior to the
collision.
¶ 169 Plaintiffs maintain that the evidence was properly admitted. The earlier log violations
demonstrated Alco’s knowledge in scheduling Reeves for long runs and “implicitly” approved
of Reeves’ driving time violations. Plaintiffs assert that the evidence was properly admitted to
show absence of mistake and intent showing that the violations were not accidental.
¶ 170 Plaintiffs further claim that the logbook violations were relevant to Reeves’ credibility
because it demonstrated his dishonesty and desire to conceal facts which are required to be
reported. Plaintiffs additionally claim that the log book violation placed defendants on notice
that Reeves was routinely driving over the speed limit and over his maximum allowed
hours-of-service, which made it incumbent for defendants not to schedule Reeves for truck
runs near 500 miles. Plaintiffs further claim that Reeves’ driving habits also placed defendants
on notice that Reeves was driving while fatigued.
¶ 171 Illinois Rule of Evidence 404(b) (eff. Jan. 1, 2011) was modeled after Federal Rule of
Evidence 404(b) and provides in its relevant part that “[e]vidence of other crimes, wrongs, or
acts *** may *** be admissible for *** purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” “Evidence of
crimes, wrongs, or acts other than the one at issue may be admissible if offered for some
purpose other than as proof merely of a person’s disposition to behave in a certain way.”
Wernowsky, 106 Ill. 2d at 53.
¶ 172 In Terpstra v. Niagara Fire Insurance Co., 256 N.E.2d 536, 539 (N.Y. 1970), the trial
court allowed the defendant insurer to introduce plaintiff’s admission to the police that earlier
fire loss recoveries had given him the idea to commit arson. The previous fire recoveries were
admitted to show intent or a plan. Terpstra, 256 N.E.2d at 539. Here, the trucking log
falsifications were admitted to show absence of mistake and a plan and an intent to drive over
the speed limit for long distances in order to meet schedules, thus placing all defendants on
notice of this conduct. It showed defendant’s modus operandi.
¶ 173 In Thompson v. Petit, 294 Ill. App. 3d 1029 (1998), the trial court was affirmed when it
admitted evidence in a negligence action that the defendant had similarly cut off an individual
six years earlier and then smashed his vehicle into the other vehicle. In Thompson, the plaintiff
was shot by the defendant after a traffic-related argument. Thompson, 294 Ill. App. 3d at 1031.
The appellate court reasoned that when evidence of prior bad acts is relevant to “the issue of a
defendant’s state of mind or intent, the prior conduct must be similar to the conduct in issue” in
order to be admissible in evidence. Thompson, 294 Ill. App. 3d at 1038. In the case at bar, the
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prior bad acts of Reeves are identical to the misconduct at issue. Plaintiffs’ expert Hess opined
that, if Reeves had not been speeding, then he would not have reached the location of the
accident at the time he did. He found inconsistencies in Reeves’ log as compared to the truck’s
Detroit Diesel Electronic Controls (DDEC) information known as the “black box,” which was
frequently at odds with Reeves’ daily log for his driving hours. He also found data retrieved
from the semitruck’s engine control module (ECM) that showed Reeves had reached a speed
of 79.5 miles per hour with an average speed of 65.9 miles per hour. Hess concluded that the
violations of the federal regulations were the causes of death of plaintiff’s decedents. Not only
do Reeves’ bad acts show an intent to deceive, they show a continued plan to falsify relevant
information of speed, distance, and time traveled.
¶ 174 Similarly, in Oxford Bank & Trust v. Hartford Accident & Indemnity Co., 298 Ill. App. 3d
199, 201, 206-07 (1998), the plaintiff bank filed a claim seeking employee dishonesty
coverage for its losses from a check-kiting scheme which one of its employees had participated
in with a customer. The trial court allowed evidence that, at a bank where the employee had
worked previously, dealings between the employee and the same customer had resulted in a
loss of money to that bank also. Oxford Bank & Trust, 298 Ill. App. 3d at 203. In affirming the
trial court, the appellate court specifically rejected the argument that the evidence “only
demonstrate[d] that the defendant ha[d] committed bad acts in the past” and held that the
evidence was admissible to demonstrate modus operandi. Oxford Bank & Trust, 298 Ill. App.
3d at 208.
¶ 175 Additionally, in Reinneck v. Taco Bell Corp., 297 Ill. App. 3d 211, 213 (1998), the trial
court found in favor of a terminated employee who had sued her former employer, claiming
that she was discharged in retaliation for claiming her rights to workers’ compensation. The
court upheld the trial court’s admission of testimony from other former employees of the
defendant who were fired after filing workers’ compensation claims because it was “directly
relevant” to the defendant’s motive in terminating the plaintiff. Reinneck, 297 Ill. App. 3d at
215.
¶ 176 Like the evidence in Oxford Bank and Reinneck, the evidence in the case at bar of
defendants’ prior bad acts was directly relevant to the manner in which defendants operated
their business; it showed evidence of motive, intent, plan, and modus operandi. So the trial
court did not err in admitting it. This conclusion is supported by independent evidence from
plaintiffs’ expert that Reeves was speeding and driving in excess of the 70-hour rule on the day
of the collision at issue.
¶ 177 The evidence here showed that Reeves testified that he did not know what happened to the
trip tickets that kept track of his stops, miles driven in each state, and the fuel placed into the
truck. The only evidence Reeves was able to produce was his logbooks for his time on the road.
Without the weekly trip tickets, there was no check and balance system intact and false entries
in a logbook went unverified and were easily subject to manipulation. Plaintiff’s expert Hess
compared the truck’s DDEC data to Reeves’ daily log and found that they were at odds. Hess
detailed the entire week prior to the accident and compared the DDEC report to Reeves’ logs to
determine his driving and duty hours. Hess relied exclusively on the DDEC report to form his
opinion that Reeves had exceeded the 70-hour rule, found him speeding, fatigued, and
responsible for the death of plaintiff’s decedents. Hess opined that Reeves violated the federal
regulations at the time of the accident. In addition, the data retrieved from the semitruck’s
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ECM supported Hess’s opinion. The ECM showed that the driver of the semitruck’s average
speed was 65.9 miles per hour and Reeves had reached a speed of 79.5 miles per hour. When
one takes into consideration that Reeves failed to produce his trip tickets and that his log
entries do not correlate with the DDEC report data or the ECM, the prior actions of Reeves in
falsifying his log becomes relevant as to his modus operandi and intent in making his trips. It is
a reasonable inference that he falsified the logbook so that he could comply with the federal
regulations, working in excess of the 70-hour rule, and drove over the speed limit to maintain
his schedule. His employer’s knowledge of that modus operandi is equally relevant to a
determination of whether the other defendants were negligent. Therefore, the prior falsified
evidence was proper to show modus operandi, as well as intent and knowledge of the other
defendants.
¶ 178 Plaintiffs cite a federal district court decision from the Southern District of Illinois, Trotter
v. B&W Cartage Co., No. 05-cv-0205-MJR, 2006 WL 1004882 (S.D. Ill. Apr. 13, 2006), to
support their position that the evidence of prior log violations of truckers is proper evidence in
a jury trial for negligence. The Trotter court admitted evidence of prior “faked” logs because it
tended to prove that the trucking company operated with conscious indifference to its federally
mandated duty and also because its behavior sent a message to the drivers that violating hours
of service regulations was acceptable. Trotter, 2006 WL 1004882. In the case at bar, the
majority dismisses Trotter as not applicable because the trial court was reviewing defendants’
motion for a summary judgment on a request for punitive damages filed by the plaintiffs
against the defendant trucking company. Trotter, 2006 WL 1004882. The majority concludes
that, since plaintiffs were seeking punitive damages, they would have to prove the trucking
company’s knowing or conscious disregard of the federal regulations in order to recover the
punitive damages, and that is why the trial court allowed the prior evidence of falsifying the
trucking logs.
¶ 179 The Trotter case is close on “all fours” to the case at bar, and the fact that the plaintiff had
to prove more than negligence does not give a court authority to bar prior bad acts for that
reason. The quantum of proof has never been the consideration of any cases on this subject
matter. If evidence is inadmissible, it cannot be considered at all on a motion for summary
judgment. Watkins v. Schmitt, 172 Ill. 2d 193, 203-04 (1996). Likewise, if evidence is relevant
to gross negligence, it certainly should be relevant to negligence. I cannot find any cited cases
to substantiate this statement, nor can I find any cases that would support the proposition that
prior falsification of log entries can only be admissible into evidence when punitive damages
or gross negligence is in issue.
¶ 180 As the majority pointed out:
“The district court noted that the deposition testimony revealed the trucking
company’s method for reviewing the logs was inadequate for the last five to seven
years, the managers would regularly schedule drivers with minimal time for breaks,
and that ‘ “[m]oney took precedent [sic] over safety.” ’ Trotter, 2006 WL 1004882, at
*5-7. The court also found that the evidence showed a pattern of ‘conscious
indifference’ to the federal regulations. Trotter, 2006 WL 1004882, at *7. As a result,
the district court denied the defendants’ motion for summary judgment because
reasonable jurors could find that the imposition of damages based on aggravating
circumstances was warranted.” Supra ¶ 95.
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¶ 181 I agree with the majority that the admission of the prior bad acts of speeding and log
falsification required a careful weighing of the probative value of this evidence against any
prejudicial impact it would have upon the jury. The rule in admitting prior bad act evidence is
set forth in “Trial Evidence” by Mauet and Wolfson, which states:
“The rule is one of inclusion. It authorizes the admission of a party’s conduct that is
extrinsic to the matter on trial for any relevant reason other than to prove the party’s
propensity to do the one thing at issue. It would be indulging in fiction to say that
admissible other conduct evidence must be completely free of any propensity taint. A
reasonable fact finder might entertain that notion no matter how careful the trial judge
is in defining the purpose of the evidence. The mere existence of the possibility of
misuse is not enough to bar the evidence if it fits within [Federal Rule of Evidence]
404(b). It is enough to call on the judge to carefully exercise his discretion.” Thomas A.
Mauet & Warren D. Wolfson, Trial Evidence (4th ed. 2009).
The majority concludes that weighing the evidence as to its probative value against its
prejudicial impact was not done in this case, and I find that it was and that it was done properly.
¶ 182 In the case at bar, plaintiffs allege that Reeves was fatigued because he had driven beyond
the hourly limits provided for by the federal motor carrier safety regulations. At trial, plaintiffs
introduced evidence that Alco of Wisconsin, Inc., had assigned Reeves a driving schedule that
ensured that Reeves would be required to violate federal regulations if he followed that
schedule by requiring Reeves to both speed and to drive beyond the maximum hours allowed
for truck drivers in a eight day work period. The evidence that plaintiff introduced at trial
showed that Reeves could not have made his scheduled runs unless he sped and drove in excess
of the 70-hour rule. Plaintiffs introduced evidence that Reeves’ driver logs for the week in
question were incorrect and that he was driving in excess of the 70-hour rule at the time of the
collision. Thus, the evidence of Reeves speeding and driving over the 70-hour limit on the
week in question was relevant and admissible at trial to show that Reeves was fatigued at the
time of the collision, and that the other defendants were aware that his logs were inaccurate and
that he was driving over the 70-hour limit per week. The evidence showed that Reeves had the
intent to falsify his logs and that the other defendants had knowledge of his conduct.
¶ 183 Reeves failed to produce his trip tickets as a check and balance to his log entries. That fact
is important with all the other facts in this case in order to determine whether the trial court
abused its discretion in allowing the admission of the “bad acts” evidence. The trial court
allowed the evidence of past log falsification and speeding to show intent to speed and make
log falsifications so that Reeves could make scheduled runs in the time period that his
employer required. It was part of defendant’s modus operandi and provided all of defendants
notice of what Reeves was doing.
¶ 184 The majority is giving the impression that “bad acts” evidence is allowed only in civil cases
where punitive damages are at issue. However, punitive damages are not available in wrongful
death cases (Mattyasovszky v. West Towns Bus Co., 21 Ill. App. 3d 46, 52 (1974), aff’d, 61 Ill.
2d 31 (1975)), and none of the cases cited in this dissent hold that the “bad acts” evidence was
admissible solely because punitive damages were claimed. What generally occurs is that
plaintiffs in trucking negligence cases normally file a count for punitive damages when they
have evidence of prior log falsification. Here, plaintiffs did not do so.
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¶ 185 In Smith v. Printup, 866 P.2d 985 (Kan. 1993), the Supreme Court of Kansas said the
following:
“Plaintiffs’ theory is that Printup had a long history of falsifying his driving logs and
inspection reports and that the companies for which he worked had a long history of
tolerating such violations. If the jury could find that fatigue due to hours of service
violations caused or contributed to the accident, then evidence that the companies knew
or had reason to know of Printup’s false logs and hours of service violations is relevant
to authorization and ratification of conduct that caused or contributed to the accident.
***
*** Southwest’s historical treatment of Printup’s alleged noncompliance with log
and hours of service requirements is relevant. Southwest was his employer and had
authority to fire him. To the extent Printup’s noncompliance was related to fatigue, Red
Ball’s and Southwest’s tolerance of such noncompliance was both relevant and
admissible.” Smith, 866 P.2d at 1005-06.
The Supreme Court of Kansas never indicated that a punitive count is necessary for the
admission of prior falsification of logs.
¶ 186 As a matter of course, the conduct of a truck driver in maintaining logs is admitted in
evidence in negligence cases throughout the United States where there are allegations of
fatigue to show, among other things, that the employer had notice and knowledge of the truck
driver’s past conduct. In Torres v. North American Van Lines, Inc., 658 P.2d 835 (Ariz. Ct.
App. 1982), a wrongful death jury trial, the driver’s prior logs for three months were admitted
into evidence to show that the driver failed to include a listed item in his log to avoid a
determination that he violated the 70-hour rule. The Arizona court never indicated that a
punitive count is necessary for the admission of a pattern of incomplete log entries.
¶ 187 In Purnick v. C.R. England, Inc., 269 F.3d 851, 852 (7th Cir. 2001), the trial court admitted
evidence that a truck driver falsified logs, drove beyond the 10-hour limit several times in the
week before the crash, and was fatigued when he struck the plaintiff solely in a punitive
damage case. Our Seventh Circuit never indicated that prior falsified logs are admissible only
in punitive damages cases. In Librado v. M.S. Carriers, Inc., No. Civ. A. 3:02-CV-2095-D,
2004 WL 1490304 (N.D. Tex. June 30, 2004), a Texas district court considered the Qualcomm
data and driver logs where, in a year, the truck driver committed more than 320 driver log
violations and violated the federal hours-of-service regulations. The Texas district court never
indicated that prior falsified logs are admissible only in punitive damages cases. In Briner v.
Hyslop, 337 N.W.2d 858, 867 (Iowa 1983), evidence admitted in the trial court in a wrongful
death jury trial verdict included the fact that the truck driver had not kept a log for the three
weeks prior to his collision and that he had previously failed to maintain logs to show that the
employer had notice and knowledge of the log violations and did nothing about it. The Iowa
court never indicated that prior falsified logs are admissible only in punitive damages cases.
See also Elbar, Inc. v. Claussen, 774 S.W.2d 45 (Tex. App. 1989) (where the truck driver’s log
admitted in evidence showed that he drove for period of time which violated federal
regulations). In Elbar, the court stated:
“Elbar argues that because it was in compliance with D.O.T. regulations, a finding
of gross negligence against it was precluded as a matter of law. We disagree. While
Elbar maintained at trial that its drivers operated within D.O.T. requirements, there was
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also evidence that neither Bullock’s nor Ingersoll’s driving logs were in compliance
with federal regulations and that such inaccuracies made auditing difficult.
Additionally, during trial, Elbar’s General Manager admitted that Ingersoll was grossly
out of compliance with federal regulations and should not have accompanied Bullock
on the trip in question. Elbar’s claim to be in compliance with federal regulations may
constitute evidence that it exercised ‘some care’ in its operations; however, the jury
was entitled to determine what weight to accord that evidence.” Elbar, 774 S.W.2d at
51.
The Elbar court never indicated that prior falsified logs are admissible only in punitive
damages cases. See also Came v. Micou, No. 4:04-CV-1207, 2005 WL 1500978 (M.D. Pa.
June 23, 2005) (where a federal district judge considered in a motion for summary judgment an
expert’s report that included that a truck driver had been on duty for at least 75.5 hours in the 8
days prior to the collision, and that the driver had previously falsified his truck logs in violation
of federal regulations). The Pennsylvania court never indicated that prior falsified logs are
admissible only in punitive damages cases.
¶ 188 Although the majority attempts to distinguish cases where the issue is one of punitive
damages or gross negligence, the only difference between allowing prior bad acts in a punitive
damages case as compared to a compensatory damages case is relevancy. The cases I cite on
this subject matter all stand for the proposition that the prior bad acts must be relevant to the
issue at hand to be admissible. In the case at bar, the majority does not argue relevancy, nor do
the defendants. The issue in the case at bar simply put is whether the prior bad act evidence is
being used to prove the character of Reeves to foster the legally impermissible inference that
since he acted badly prior to the collision, he must have acted badly at the time of the collision.
As I have shown in this dissent, case authority overwhelmingly supports the use of a trucker’s
past conduct in falsifying log records when independent evidence shows that the log records
were incorrect at the time of a collision. That evidence is probative in establishing fatigue and
outweighs its prejudicial effect. In the case at bar, Reeves failed to produce his route tickets,
claiming they were lost. His logs were impeached by the data from the DDEC and ECM.
¶ 189 The prior bad act evidence here also placed all of the defendants on notice that Reeves was
speeding in order to maintain his schedule and gave them notice that he was not maintaining
his logs in conformance with federal regulations. But most importantly the bad act evidence
was also evidence of the agency relationship between Reeves and the other defendants which
was at issue before the trial court and is an issue on this appeal. The evidence of Reeves’
previous conduct of falsifying his logs, and speeding in order to meet his employers’ schedule,
and the fine against the employer showed that all of defendants were aware of this conduct and
were responsible. Such evidence was offered for purposes other than Reeves’ disposition to
behave in a certain way. Wernowsky v. Economy Fire & Casualty Co., 106 Ill. 2d 49, 53
(1985). Its probative value exceeds its prejudicial effect because the same evidence of Reeves’
log entries for this accident were not consistent with the information obtained from his truck
data from the DDRC and ECM, and plaintiff’s expert opined he was speeding. Thus, the bad
act evidence could not have been unfairly prejudicial. People v. Illgen, 145 Ill. 2d 353, 375-76
(1991). The trial court was within its sound discretion to admit the prior bad acts into evidence
and the jury’s verdict should not be disturbed.
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¶ 190 A. Defendant Reeves “Opened The Door” to Allow
Evidence of His Prior Log Falsifications
¶ 191 The majority finds that a party cannot “open the door” to otherwise potentially
inadmissible evidence in its opening statement. See supra ¶ 104. To the contrary, there are
many instances in our case law where a party was found to have “opened the door” to evidence
that would be otherwise inadmissible.
¶ 192 In a personal injury case, Zadura v. Debish, 5 Ill. App. 3d 695, 697 (1972), we affirmed the
admissibility of evidence of defendant’s alcohol consumption prior to an accident, despite the
fact that there was no evidence of intoxication. Normally, evidence of alcohol consumption
without proof of intoxication is excluded because it may constitute extreme prejudice.
However, plaintiff was allowed to explore the subject matter because defendant claimed in his
opening statement that he had one beer prior to the accident. In affirming, this court found that
“[d]efendant’s opening statement was not evidence, but it was heard by the jury and could well
have left an impression on them. It was therefore proper to allow plaintiff to put into evidence
defendant’s admission that he had two drinks.” Zadura, 5 Ill. App. 3d at 697.
¶ 193 In People v. Whiters, 146 Ill. 2d 437, 442-43 (1992), the defendant in a murder trial
attacked decedent’s good character in his opening statement and during its case in chief. As a
result, the State was allowed to offer evidence of the decedent’s good character, even though
no character evidence was offered by the defense. The court reasoned that “[t]o hold otherwise
would enable the defendant to get away with using her opening statement to vilify the victim’s
character and thus poison the water without offering any supporting evidence.” Whiters, 146
Ill. 2d at 443. The court further noted that not allowing a response from the prosecution “would
defeat the truth-seeking function of a trial.” Whiters, 146 Ill. 2d at 443.
¶ 194 In the case at bar, the defense “opened the door” to Reeves’ prior log falsifications in their
opening statement to the jury when defense counsel informed the jury that “the evidence will
show, ladies and gentlemen, that he wasn’t falsifying his logs.” Defense counsel then focused
on Reeves’ character by informing the jury twice that the “only thing [Reeves] is guilty of is
trying to do his job,” and that “this man was a good man.” It is also important to note that the
defense continued to talk about Reeves’ character during their closing argument, arguing that
this case was “about [Reeves’] future,” that the jury was “judging” Reeves and that “cases like
this, these do have consequences. *** He’s a human being and these companies are human
beings.”
¶ 195 In addition, the defense brought out in Reeves’ direct testimony that he “always report[ed]
[his] logs accurately.” Defense counsel asked, “Now sir, you always report your logs
accurately, am I correct?” Reeves answered, “That is correct.” That direct testimony further
opened the door and, as a result, Reeves’ prior falsifications were admissible to refute his
testimony that his logs were always accurate. People v. Harris, 231 Ill. 2d 582, 588-90 (2008)
(defendant opened the door to other crimes by testifying “ ‘I don’t commit crimes’ ”). Further,
plaintiff had the right to impeach Reeves with the prior falsifications once he testified that he
always reported his logs accurately. Ill. S. Ct. R. 238 (eff. Apr. 11, 2001) (“[t]he credibility of
a witness may be attacked by any party”).
¶ 196 B. Defendant Failed to Object or Perfect a Continuing Objection
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¶ 197 In addition, the defense waived any error in the admission of Reeves’ log falsification by
failing to object or request a limiting instruction. The majority states, “[d]efense counsel
objected to the admission of the prior violation [prior to trial] and stated that he would make a
continuing objection at trial.” Supra ¶ 84. However, the defense never objected or made a
continuing objection when questions concerning the log falsification were asked. The trial
court could not accept a continuing objection when one was not made.
¶ 198 After opening statements, the trial court ruled that it was going to allow the prior log
violations to be admitted into evidence. After this ruling, defense counsel acknowledged that
“we know we have to make an objection during the testimony of the witness.” The following
discussion occurred before the court:
“ATTORNEY FOR DEFENDANT: [W]e just want to make sure that we just say,
‘Objection, your Honor,’ and we understand your prior ruling, and sit down. Would
that be–
ATTORNEY FOR PLAINTIFF: That would be a continuing objection.
THE COURT: Yes, that’s fine with the court. I do not want you to verbalize it.
ATTORNEY FOR DEFENDANT: Just, ‘Continuing objection, your Honor,’ and I
will sit down.”
¶ 199 Notwithstanding that discussion, the record is clear that defendants never requested a
“continuing objection” to the testimony that would obviate the need to object. A “continuing
objection” will not preserve any error unless the trial court recognizes the continuing
objection. Fleming v. Moswin, 2012 IL App (1st) 103475-B, ¶ 96. Here, defendant did not
request a continuing objection, but merely asked how to phrase his objection to the court
during testimony. Thus, no continuing objection was requested, or recognized by the court, and
the mere suggestion that a continuing objection might be requested in the future was not
sufficient to preserve defendants’ claim of error.
¶ 200 The denial of defendants’ motion in limine does not preserve any claimed error for review.
Schuler v. Mid-Central Cardiology, 313 Ill. App. 3d 326, 333-34 (2000). Therefore, it was
incumbent on defendants to object to any evidence of prior log falsification each and every
time it was introduced if they were to challenge the admission of that evidence. Gillespie v.
Chrysler Motors Corp., 135 Ill. 2d 363, 374 (1990). Defendants did not formally object or
make a continuing objection to the trial court, as they agreed to do during the discussions with
the trial court and plaintiff’s counsel.
¶ 201 C. Prior Log Falsifications and Prior Speeding Are Admissible
Against Defendant Alco
¶ 202 Plaintiffs’ complaint alleges that defendant Alco, which was defendant Reeves’ employer,
was negligent for violating the Federal Motor Carrier Safety Regulations, specifically section
392.6, which provides:
“No motor carrier shall schedule a run nor permit nor require the operation of any
commercial motor vehicle between points in such period of time as would necessitate
the commercial motor vehicle being operated at speeds greater than those prescribed by
the jurisdictions in or through which the commercial motor vehicle is being operated.”
49 C.F.R. § 392.6 (2002).
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¶ 203 On the day of this collision, defendant Reeves began driving at 8:30 a.m. and was involved
in the collision approximately 13 hours later. Reeves’ runs in the days preceding this collision
exceeded 730 and 1,000 miles. The evidence adduced at trial showed that Alco was repeatedly
scheduling Reeves for runs that would require him to either violate the speed limit or the hours
he drove. As a result, Reeves’ prior log falsifications were admissible to show that Alco had
notice that its scheduling was causing Reeves to speed and/or violate his allowable hours of
driving, and that Alco was not complying with section 392.6. Consequently, the trial court
correctly admitted Reeves’ prior falsification to show intent which was relevant to plaintiffs’
claims that Alco violated section 392.6.
¶ 204 II. The “Careful Habits” Jury Instruction
¶ 205 “The 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 (2002). The majority finds that the
careful habits jury instruction here misled the jurors by instructing them that they could infer
that Chakonas, the driver, exercised due care, despite the admission that she was contributorily
negligent. The majority concludes that the instruction may well have erroneously affected the
allocation of fault by the jury. Well, anything could be possible and the term “may well have”
means possible. In fact, Webster’s defines “may” as “used to indicate possibility.”
Merriam-Webster’s Collegiate Dictionary 767 (11th ed. 2006). The majority basically adopts
the arguments of defendants, who argue that the “careful habits” instruction given to the jury
was error because: (1) the instruction can only be given in the absence of eyewitness testimony
regarding the incident leading to a wrongful death action, and (2) plaintiffs’ counsel admitted
that Christina Chakonas was contributorily negligent in closing argument.
¶ 206 A reviewing court will reverse a trial court’s determination about which instruction to give,
only if the trial court abused its discretion. Schultz v. Northeast Illinois Regional Commuter
R.R. Corp., 201 Ill. 2d 260, 273 (2002). A trial court has discretion in determining which
instructions to give. Schultz, 201 Ill. 2d at 273. When deciding whether a trial court abused its
discretion, a reviewing court will examine the jury instructions in their entirety, to determine
whether they fairly, fully and comprehensively informed the jury of the relevant law. Schultz,
201 Ill. 2d at 273-74. Ordinarily, a reviewing court will not reverse a trial court, even if the trial
court gave faulty instructions, unless the instructions clearly misled the jury and resulted in
prejudice to the appellant. Schultz, 201 Ill. 2d at 274.
¶ 207 As noted, the trial court instructed the jury based upon IPI Civil (2006) No. 10.08, as
follows:
“If you decide there is evidence tending to show that the decedent was a person of
careful habits, you may infer that [she] was in the exercise of ordinary care for [her]
own safety at and before the time of the occurrence, unless the inference is overcome
by other evidence. In deciding the issue of ordinary care by the decedent you may
consider this inference and any other evidence upon the subject of the decedent’s care.”
The Notes on Use following IPI Civil (2006) No. 10.08 is instructive:
“can be given in a negligence or willful and wanton action based on the Wrongful
Death Act when there are no witnesses to the occurrence, other than the defendant,
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covering the entire period in which the decedent must be in the exercise of ordinary
care.” IPI Civil (2006) No. 10.08, Notes on Use.
¶ 208 Citing Plank v. Holman, 46 Ill. 2d 465 (1970), defendants argue that the trial court abused
its discretion in instructing the jury as to Christina Chakonas’ careful habits because there were
eyewitnesses to the collision. I disagree with defendants’ argument for several reasons.
¶ 209 First, I find Plank factually distinguishable. In Plank, a widow operated a motor vehicle
about eight or nine automobile lengths behind a motor vehicle operated by her husband with no
vehicles in between. The husband’s motor vehicle was struck by another motor vehicle
travelling in the opposite direction on a thoroughfare. The issue in that case was which motor
vehicle involved in the collision had crossed the center line of the thoroughfare causing the
collision. The surviving widow, who was driving behind her husband’s motor vehicle, testified
that she had clearly observed her husband’s motor vehicle during the entire occurrence and
observed the entire accident. Our supreme court held that the trial court properly barred
evidence regarding the husband’s careful driving habits. Plank, 46 Ill. 2d at 469-70. Here, there
was no testimony regarding the complete movement of the Chakonas vehicle, only incomplete
fragments of that movement. Reeves testified that he did not observe the Chakonas vehicle
until after impact. Youngreen testified that he observed the Chakonas vehicle stopped at the
stop sign, but how the vehicle moved after that is unknown. There was no actual eyewitness to
all of the movements of the motor vehicle. Accordingly, the instruction would not be barred
under Plank.
¶ 210 In Bitner v. Central Illinois Light Co., 75 Ill. App. 3d 715 (1979), the decedent climbed a
ladder to paint the top of an oil tank, and came into contact with power lines, which
electrocuted him and caused him to fall to the ground. Bitner, 75 Ill. App. 3d at 717. The
appellate court held that the eyewitness was not competent because he had not observed the
actual incident, and it found that the trial court erred in not allowing evidence of the decedent’s
careful habits. Bitner, 75 Ill. App. 3d at 720.
¶ 211 In the case at bar, there were eyewitnesses for only some parts of the events leading up to
the collision, but no one had observed the entire movement of decedent’s vehicle or the impact.
Reeves testified that he did not observe decedent’s vehicle until after impact, and another
witness testified that he observed decedent’s vehicle stopped at the stop sign, but did not
observe the collision. However, like Bitner, no witnesses observed the accident itself. So even
under the rule that requires no eyewitness testimony, habit testimony of decedent’s careful
habits would be admissible in the case at bar.
¶ 212 The salient point is that an eyewitness must actually observe the whole accident in
question. This did not occur in the case at bar, so the trial court’s admission of evidence about
decedent’s careful habits and the corresponding jury instruction were not erroneous.
¶ 213 Second, Illinois courts have adopted Federal Rule of Evidence 406 (Fed. R. Evid. 406)
regarding the admission of habit and routine practice evidence since Plank. In Alvarado v.
Goepp, 278 Ill. App. 3d 494 (1996), this court in a decision authored by Justice Warren
Wolfson noted that adoption. Alvarado, 278 Ill. App. 3d at 496 (citing Hajian v. Holy Family
Hospital, 273 Ill. App. 3d 932, 942 (1995), Taruc v. State Farm Mutual Automobile Insurance
Co., 218 Ill. App. 3d 51, 57 (1991), and Wasleff v. Dever, 194 Ill. App. 3d 147, 155 (1990)).
¶ 214 In Hajian, we found that Rule 406 provides:
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“Evidence of the habit of a person or of the routine practice of an organization,
whether corroborated or not and regardless of the presence of eyewitnesses, is relevant
to prove that the conduct of the person or organization on a particular occasion was in
conformity with the habit or routine practice.” (Emphasis added and internal quotation
marks omitted.) Hajian, 273 Ill. App. 3d at 942.
Defendant’s contention that the presence of an eyewitness precludes the admission of habit
testimony is contrary to Rule 406 of the Federal Rules of Evidence and case law. Rule 406
permits habit or custom evidence even if eyewitness testimony is available (Hajian, 273 Ill.
App. 3d at 942), and that rule was in effect at the time of the trial.
¶ 215 Finally, I do not agree with the majority’s decision that plaintiffs’ admission in closing
argument that Christina Chakonas was contributorily negligent in causing the collision was
legally inconsistent with the jury instruction as to Christina Chakonas’ careful habits. At trial,
there was dispute as to whether Christina Chakonas stopped at the stop sign prior to entering
the intersection and the evidence of her careful habits went to establishing that she did stop at
the stop sign. The majority does not find that the admission of “careful habits” evidence was
improper, but instead finds that the jury instruction should not have been given. When careful
habits evidence is properly admitted, it is important that the jury be instructed on how to use
that evidence. Hajian v. Holy Family Hospital, 273 Ill. App. 3d 932, 943 (1995) (“[s]ince the
admission of [habit testimony] was proper, the trial court could exercise its discretion to submit
for jury consideration the habit instruction based upon IPI Civil 2d No. 10.08”). In fact,
litigants have the right to have the jury instructed on each theory supported by the evidence.
Heastie v. Roberts, 226 Ill. 2d 515, 543 (2007).
¶ 216 The decision to give or refuse a tendered jury instruction is within the sound discretion of
the trial court. Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260,
273 (2002). A trial court does not abuse its discretion so long as the instructions fairly, fully
and comprehensively apprised the jury of the relevant legal principles. Schultz, 201 Ill. 2d at
273-74. “Nor can it be presumed that reversal is warranted because the jury was misled by the
court’s instruction unless there is some indication that the jury was improperly influenced.”
(Emphasis added.) Foley v. Fletcher, 361 Ill. App. 3d 39, 50 (2005).
¶ 217 In this case, following the proper admission of habit evidence as to Chakonas, the jury was
instructed verbatim from IPI Civil (2006) No. 10.08:
“If you decide there is evidence tending to show that the decedent was a person of
careful habits, you may infer that [she] was in the exercise of ordinary care for [her]
own safety at and before the time of the occurrence, unless the inference is overcome
by other evidence. In deciding the issue of the exercise of ordinary care by the decedent
you may consider this inference and any other evidence upon the subject of the
decedent’s care.”
¶ 218 This instruction was appropriate, as it instructed the jury that the habit evidence could be
considered by it, but that “any other evidence” should also be considered, and that said “other
evidence” could overcome the inference created by the habit evidence. Had the jury not been
instructed concerning how to use the properly admitted habit evidence, it would not have any
guidance on how, if at all, to consider this evidence. Without instruction, the jury could have
ignored all of the careful habit evidence, despite the fact that it was properly admitted, or
defendants could just as easily argue that the jurors accepted the habit evidence as conclusive
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proof. The given instruction appropriately and accurately explained to the jury how the
evidence was to be weighed. Ready v. United/Goedecke Services, Inc., 238 Ill. 2d 582, 591
(2010) (“[i]nstructions convey the legal rules applicable to the evidence presented at trial and
thus guide the jury’s deliberations” (internal quotation marks omitted)).
¶ 219 Further, even if the trial court erred in giving the careful habits instruction to the jury, the
error was harmless. As noted, ordinarily, a reviewing court will not reverse a trial court, even if
the trial court gave faulty instructions, unless the instructions as a whole clearly misled the jury
and resulted in prejudice to the appellant. Schultz, 201 Ill. 2d at 274. I find that the jury
instructions as a whole did not clearly mislead the jury. The jury was instructed as to
contributory negligence, a theory advanced by defendants, and the jury concluded that
Christina Chakonas was 40% contributorily negligent in causing the collision. Based upon the
evidence, the jury’s allocation of fault was within the permissible bounds of reason and the
defendants have failed to show how the careful habits instruction resulted in prejudice which
rose to the level of reversible error. Accordingly, any effect on the verdict arising from the
careful habits instruction was de minimus and does not require a new trial.
¶ 220 In order for the jury to have been confused from the careful habits instruction, the
defendants would have to show that they were prejudiced. The attorney for Powell and
Kakidas argued during closing arguments that Chakonas was 25% to 35% contributorily
negligent. Chakonas’s attorney asserted that she was 25% contributorily negligent because she
“should not have attempted to cross that street until the truck had passed.” The careful habits
argument was limited to whether she had stopped at the stop sign before making her left turn.
The defense argued that Chakonas was the sole cause of the accident or was over 50%
contributorily negligent. There was no confusion because the jury found her 40%
contributorily negligent. It is the position of the majority that the jury “may well have” found a
greater degree of fault against Chakonas if the instruction was not given. However, the “proof
is in the result.” If the jury had found that Chakonas was less than 25% contributorily
negligent, that would have been proof that the jury was confused. But when the majority
concludes that the jury “may well have” found more than 40% contributory negligence, they
are guessing. There is no evidence that this jury was confused and its verdict should not be
disturbed. The majority has not demonstrated how the trial court abused its discretion.
¶ 221 III. The Burden of Proof Instructions Regarding Agency
¶ 222 Dean Foods argues and the majority finds that the trial court’s failure to instruct the jury as
to the burden of proof regarding agency denied it a fair trial.
¶ 223 The trial court gave the jury the following burden of proof instruction regarding plaintiffs’
agency claims against Dean. Utilizing IPI Civil (2006) Nos. 50.03, 50.10, and 72.04, the trial
court instructed the jury as follows:
“Defendants, Dean Foods Company, Alco [of Wisconsin], Inc., Alder Group, Inc.
are sued as the principal and the Defendant Jaime Reeves as their agent. Dean Foods
Company denies that any agency existed.
If you find that Defendant Jaime Reeves was the agent of the Defendant Dean
Foods Company at the time of the occurrence and if you find Jaime Reeves is liable,
then all Defendants are liable.
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***
If you find that Jaime Reeves is not liable, then no Defendant is liable.
***
The question has been raised whether at the time of the occurrence Jaime Reeves
was the agent of the Defendant Dean Foods Company or was an independent
contractor. An agent is a person who by agreement with another, called a principal,
represents the principal in dealings with third persons or transacts some other business,
manages some affair, or does some service for the principal, with or without
compensation. The agreement may be oral or written, expressed or implied. The term
‘agent’ is broader than either ‘servant’ or ‘employee.’ A servant or employee is an
agent, but one may be an agent although he is neither a servant nor an employee.
If you find that one person has a right to control the actions of another at a given
time, you may find that the relation of principal and agent exists, even though the right
to control may not have been exercised.
An independent contractor is one who undertakes a specific job where the person
who engages him does not have the right to discharge him or to direct and control the
method and manner of doing the work.
In determining whether at the time of the occurrence Jaime Reeves was the agent of
the defendant Dean Foods Company or was an independent contractor, you may
consider the method of payment; the right to discharge; the skills required and the work
to be done; who provides the tools, materials and equipment; whether the worker’s
occupation is related to that of the employer; and whether the employer deducted for
withholding tax.
The principal is liable to third persons for the negligence of his agent in the
transaction of the business of the principal, if the agent himself is liable. The one who
engages an independent contractor is not liable to others for the negligence of the
contractor.”
¶ 224 Dean Foods objected to the above instructions pertaining to plaintiffs’ agency claims,
claiming that the instructions did not adequately inform the jury that plaintiffs had the burden
of proof with regard to establishing agency against Dean, and tendered the following
instruction to the trial court:
“If you find that the plaintiffs have proved the propositions required of them as to
Jaime Reeves, Alder Group, Inc., and Alco of Wisconsin, Inc., you must then
determine whether Jaime Reeves was an agent of Dean Foods [Company].
If you find from your consideration of all the evidence that the plaintiffs have not
proved that Jaime Reeves was an agent of Dean Foods [Company], then your verdict
should be for Dean Foods [Company].
If you find that plaintiffs have proved each of the propositions they are required to
prove against Jaime Reeves, Alder Group, Inc., and Alco of Wisconsin, Inc., and have
further proved that Jaime Reeves was the agent of Dean Foods [Company], then your
verdict should be for the plaintiffs and against Dean Foods [Company].”
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The trial court refused Dean’s tendered instruction finding that the “If you find” language
contained in IPI Civil (2006) No. 50.10 was sufficient to instruct the jury as to the burden of
proof regarding the agency claims against Dean Foods Company.
¶ 225 However, the jury instructions, when considered as a whole, fully and fairly advised the
jury with respect to the burden of proof, because IPI Civil (2006) No. 21.01 advises the jury
that anytime the expression “ ‘if you find’ ” or “ ‘if you decide’ ” is used, it means that the jury
has to be persuaded on that point by a preponderance of the evidence.
¶ 226 IPI Civil (2006) No. 21.01 states as follows:
“When I say that a party has the burden of proof on any proposition, or use the
expression ‘if you find,’ or ‘if you decide,’ I mean you must be persuaded, considering
all the evidence in the case, that the proposition on which he has the burden of proof is
more probably true than not true.” (Emphasis added.)
¶ 227 Again, “[t]he 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, 201 Ill. 2d
at 273. The majority has not demonstrated how the trial court abused its discretion. The
majority writes that there was no direct evidence of agency and that’s why the burden of proof
instruction was so important. “Direct evidence has been defined as evidence which, if
believed, proves the existence of the fact in issue without inference or presumption ***.”
People v. Christiansen, 118 Ill. App. 2d 51, 56 (1969). “Direct evidence has been described as
testimony of a person who has perceived the existence of a fact, sought to be proved or
disproved, by means of his senses.” Christiansen, 118 Ill. App. 2d at 56. Documents can also
be direct evidence. Gambino v. Boulevard Mortgage Corp., 398 Ill. App. 3d 21, 70 (2009)
(holding that “settlement documents are direct evidence of fraud”).
¶ 228 The direct evidence of agency is overwhelming in this case. However, the issue here has
nothing to do with the evidence that was admitted, the issue is whether the trial court abused its
discretion in refusing Dean Foods’ burden of proof instruction.
¶ 229 The direct evidence showed by testimony that Dean Foods had the right to control the
actions of Alder/Alco’s drivers. Supra ¶ 69. At the time of the collision, the relationship
between Dean Foods and Alder/Alco had been in place for 60 years, and Alder/Alco “pulled”
exclusively for Dean Foods. In 2000, Alder received the “Partners in Distribution Award”
from Dean Foods. White, “Alder and Alco’s” assistant safety director and driver trainer at the
time of the collision, testified that he used letterhead that bore Dean Foods’ insignia with the
notation “distributor of Dean Foods” in the performance of his job, including the reprimand of
drivers. The “Alder Companies Driving Manual,” which was admitted into evidence without
objection, states that Alder/Alco drivers were part of Dean Foods’ fleet and instructs the
drivers to wear Dean Foods clothing and act in a manner that will encourage positive opinions
about Dean Foods. In particular, the manual states “When you step out of your truck, you are
immediately recognized as DEAN FOODS.” Perhaps most importantly, Dean Foods owned
the loaded trailer which Reeves was “pulling” at the time of the collision. Supra ¶ 69. In
addition, the trucks bore Dean Foods’ insignia.
¶ 230 Since the majority cannot show us how the jury was confused with the instructions they
received, it cannot be said that the trial court abused its discretion in denying Dean Foods’
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tendered instruction. Even if the trial court abused its discretion in denying Dean Foods’
instruction, that denial could never rise to the level of denying them a fair trial.
¶ 231 For the reasons that I have stated, I must respectfully dissent, and I would affirm the
judgment of the trial court.
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