Juliano v. Jackson

1

2024 IL App (4th) 231187-U

MELISSA JULIANO, Plaintiff-Appellee, v. CADE JACKSON, Defendant-Appellant.

No. 4-23-1187

Court of Appeals of Illinois, Fourth District

July 2, 2024

This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Jersey County No. 19L19 Honorable Kenneth R. Deihl, Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court. Justices Doherty and Turner concurred in the judgment.

ORDER

HARRIS, JUSTICE

¶ 1 Held: (1) The trial court did not commit error, or did not commit reversible error, by excluding testimony and opinions from defendant's accident reconstruction expert regarding the speed of defendant's vehicle and whether tire marks at the scene were attributable to defendant's vehicle. (2) Defendant forfeited his claim that the trial court erred in excluding evidence of an intervening event that aggravated plaintiff's injuries. Assuming arguendo, that the issue was not forfeited, the court did not abuse its discretion.

¶ 2 Plaintiff, Melissa Juliano, brought a negligence action against defendant, Cade Jackson, seeking damages for personal injuries she allegedly sustained as the result of a motor vehicle accident. The trial court granted plaintiff's motion for summary judgment on the issue of medical causation and a jury returned a verdict in plaintiff's favor on the issue of liability. Ultimately, plaintiff was awarded damages totaling $1,463,595.74. Defendant appeals, arguing the court erred by barring (1) testimony at trial from his accident reconstruction expert and (2) evidence at trial of a judicial admission against interest that plaintiff made regarding an intervening event that aggravated her injuries. He also contends that the cumulative effect of the court's errors requires a new trial. We affirm.

¶ 3 I. BACKGROUND

¶ 4 On November 19, 2018, defendant's truck struck the front passenger side of plaintiff's vehicle in the parking lot of Jersey Community High School in Jerseyville Illinois. The record reflects that there were eyewitnesses to the crash. Surveillance cameras at the school captured video of both vehicles in the parking lot prior to the collision but not the collision itself.

¶ 5 A. The Parties' Pleadings

¶ 6 In August 2019, plaintiff filed a single-count complaint against defendant, alleging defendant negligently operated his vehicle by (1) failing to keep a proper lookout, (2) failing to warn plaintiff of an impending collision, (3) failing to stop his vehicle to avoid a collision, (4) failing to reduce his speed to avoid a collision, (5) driving his vehicle at a speed greater than was reasonable and proper while on school property, (6) driving while distracted, (7) failing to give a proper signal or sound his horn as a warning, (8) driving at a speed greater than was reasonable and proper under the traffic circumstances, (9) failing to reduce speed to avoid an accident and driving too fast for conditions, and (10) driving his vehicle without safe and adequate brakes. According to plaintiff, prior to striking her vehicle, defendant "accelerated quickly in the parking lot and left skid marks in the asphalt pavement that were 210 feet long." She alleged that as a result of defendant's negligent acts or omissions, she sustained injuries to various parts of her body, including her back, left shoulder, neck, head, and right hip.

¶ 7 In September 2021, plaintiff filed a motion for leave to file an amended complaint to seek punitive damages. The trial court granted the motion over defendant's objection. In February 2022, plaintiff filed her first amended complaint, realleging the negligence count set forth in her original complaint and adding a second count seeking punitive damages based on defendant's alleged willful and wanton conduct in (1) accelerating quickly and performing a "burnout leaving marks in the asphalt pavement," (2) driving at an excessive rate of speed for the setting in which he drove, and (3) driving recklessly. The same month, defendant filed an answer to plaintiff's complaint, denying the material allegations against him. Later, he was allowed to raise an affirmative defense of contributory fault, alleging plaintiff was negligent for failing to keep a proper lookout for oncoming vehicles and failing to reduce her speed to avoid an accident.

¶ 8 B. Pretrial Motions

¶ 9 In September 2022, defendant filed a motion to reconsider the trial court's ruling granting plaintiff leave to seek punitive damages. The court denied the motion; however during the proceedings, defendant disclosed an accident reconstruction expert, Michael DiTallo, and submitted a report DiTallo prepared regarding the collision. The report stated DiTallo was asked "to conduct a video analysis to determine speed of' defendant's vehicle. To assist with that analysis, DiTallo reviewed a motor vehicle crash report and an incident report from the Jerseyville Police Department, two surveillance videos, photographs of plaintiff's vehicle, an inspection report for plaintiff's vehicle, and the depositions of plaintiff, defendant, and several eyewitnesses. DiTallo also visited the "crash site," where he took photographs with the aid of an unmanned aerial vehicle (UAV), as well as "several 3D scans."

¶ 10 DiTallo selected landmarks from one of the surveillance videos for his speed analysis. Additionally, "[a]n orthomosaic image was created from the UAV photographs and from the 3D scans." The orthomosaic image was used to determine the distance between the three selected landmarks, and "[t]he video was used to determine the time between each landmark," which "was [one] frame or [one] second." DiTallo calculated the "speeds between the landmarks" and further explained his analysis as follows:

"I calculated the acceleration rate of [defendant's vehicle] from its start position to the first landmark. I used the average of *** six *** velocities ***. This resulted in an acceleration rate of 7.8 [feet per second squared] (f = 0.24 g's). Based on the acceleration rate and average velocity, it would take 4.4 seconds to reach the first landmark. Based on the time [defendant's vehicle] moved in the video, it took 4 seconds to reach the first landmark. Based on the slow frame rate of the camera, these times are consistent since it cannot be known exactly when the truck started moving within a 1 second resolution."

Based on his analysis of the video, DiTallo concluded that prior to the collision, defendant stopped northbound in the parking lot for approximately eight seconds and then "accelerated northbound at approximately 0.24g's." He determined that approximately 18 to 20 feet from the point of impact of the collision, defendant was traveling between 21 to 25 miles per hour. In his report, DiTallo also noted that tire marks measured at the scene and found to be 210 feet and 10 inches in length would place defendant's vehicle "further south of its starting point [than was] depicted in the [surveillance] video."

¶ 11 In January 2023, plaintiff filed a motion to strike and bar DiTallo's testimony and opinions, arguing they were speculative, unreliable, and not relevant. As an exhibit to her filing, plaintiff attached DiTallo's discovery deposition taken in December 2022. She argued DiTallo's deposition testimony showed he performed only a limited investigation of the collision and that he could not perform a full accident reconstruction because of "the limited evidence available to him." Plaintiff asserted DiTallo (1) lacked information regarding the "measurements of Plaintiff's vehicle's rest position after the collision," (2) never examined either party's vehicle, (3) did not download any data from either party's vehicle, (4) did not know whether the surface of the parking lot was wet or dry at the time of the collision, (5) did not know if defendant's vehicle had any mechanical issues, and (6) did not know the point of impact for the collision. Plaintiff asserted that DiTallo's testimony showed he did not determine the speed of defendant's vehicle at the time of impact and, instead, concluded that approximately 18 to 20 feet from the point of collision, defendant's vehicle was traveling approximately 21 to 25 miles per hour. Plaintiff also noted testimony from DiTallo that if defendant "release[d] from an intentional burnout" and accelerated quickly, his speed could have been "into the 30s" miles per hour.

¶ 12 Finally, plaintiff complained that DiTallo speculated throughout his deposition. She cited deposition testimony showing that his speed calculations were based on averages that he estimated were within a "close range," effectively opining that defendant was traveling 21 to 25 miles per hour, "plus or minus 2-3 miles per hour," when he was 18 to 20 feet from the point of impact, "plus or minus a few feet." She cited the following colloquies from DiTallo's deposition:

"Q. When you say you are doing averages that are very close, what is the range of very close that these averages are? Are they plus or minus two miles per hour, one mile per hour? How close are we talking?

A. Well, you would have to know, you would have to know a little bit more information to know the exact range for that but I would say because we are dealing with one second, I would guess that we are plus or minus, and again it is not something that I calculated, but I would say the uncertainty here is probably plus or minus two to three miles an hour. It is pretty close.

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Q. Okay. All right. Then the next paragraph [states] the distance from the third landmark, which I think on the prior page you have listed as the pole closest to the point of impact, to the area of impact was

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