Reed v. Ault

2012 IL App (2d) 110744

969 N.E.2d 515

360 Ill.Dec. 705

Allan K. REED, Independent Administrator of the Estate of Brenda S. Reed, Deceased, Plaintiff–Appellant,

v.Susan E. AULT, Defendant–Appellee.

No. 2–11–0744.

Appellate Court of Illinois, Second District.

May 3, 2012.

H. Kent Heller, Heller, Holmes & Associates, P.C., Mattoon, for appellant.

Donna R. Honzel, Mateer, Goff & Honzel, Rockford, for appellee.

OPINION

Presiding Justice JORGENSEN delivered the judgment of the court, with opinion.

[360 Ill.Dec. 708]¶ 1 In 2007, defendant, Susan E. Ault, lost control of her vehicle on an icy road and ended up in a ditch. Brenda S. Reed stopped her vehicle and, as she approached defendant, was struck and killed by another vehicle that lost control on the ice. Plaintiff, Allan K. Reed, as independent administrator of Brenda's estate, sued defendant for negligence. Specifically, plaintiff alleged, pursuant to the “rescue doctrine,” that defendant placed herself in a position of peril and, when Brenda attempted to rescue her, proximately caused Brenda's death. On April 13, 2011, a jury rejected plaintiff's negligence claim and found in defendant's favor. Plaintiff appeals, arguing that: (1) defense counsel committed plain error in closing argument; (2) the court erred in sustaining a defense objection during plaintiff's rebuttal closing argument; (3) the court erred in refusing two of plaintiff's proposed jury instructions and allowing, instead, defendant's proposed instructions regarding the rescue doctrine and burden of proof thereon; and (4) the jury's verdict is contrary to the manifest weight of the evidence. For the following reasons, we affirm.

¶ 2 I. BACKGROUND

¶ 3 A. Overview

¶ 4 The witnesses at trial were comprised of the drivers and/or passengers of five vehicles that either were involved in the accident or stopped after the accident. To provide an overall picture of the scene, we briefly note that the accident happened on Route 26 near Freeport. Defendant was driving south on Route 26 but lost control of her vehicle; it landed in the ditch adjacent to the northbound lane (vehicle 1). After seeing defendant land in the ditch, three vehicles stopped: (1) Brenda was driving north on Route 26 and, after viewing defendant go off the road, came to a stop south of defendant's car, on the shoulder of the northbound lane (vehicle 2); (2) Robert Martin, who was driving north, pulled his car into a driveway north of defendant's vehicle (vehicle 3); and (3) Brandon Kemp, who was also driving his truck north, stopped on the shoulder of the northbound lane, behind Brenda's vehicle and, therefore, south of defendant's vehicle (vehicle 4). The vehicle that struck and killed Brenda, hereinafter the Morrison vehicle, was driving south on Route 26 when it lost control and came to rest in the ditch adjacent to the northbound lane and south of defendant's vehicle (vehicle 5).

¶ 5 B. Evidence at Trial

¶ 6 Defendant testified at trial that, on March 3, 2007, at around 12:45 p.m., she was driving south on Route 26 on her way to Freeport. The speed limit on Route 26 is 55 miles per hour and defendant was driving between 50 and 55 miles per hour. It was a sunny day and it was not snowing or raining; however, it was cold and windy and, as it had snowed the night before, there was snow on the ground and there were occasional patches of snow, ice, and slush on the road. Defendant testified that, despite the occasional snow patch, the roads were clear and she was not experiencing any sliding. Defendant testified that she does not use her cell phone while driving and that she was not using her cell phone, smoking, or eating when the accident occurred; rather, her phone was in her purse and her hands were on the wheel at the 9 o'clock and 3 o'clock positions because she did not know what the next area of road would be like. As defendantapproached a curve in the road near Freeport, she saw another patch of snow and ice. As she had done with prior ice patches, defendant slowed her car to 40 or 45 miles per hour and kept both hands on the wheel. Defendant's car slid on the ice; she panicked and reacted by applying the brakes, losing control of the vehicle. At trial, she was asked “and you knew you shouldn't hit the brakes,” and defendant replied “yes.” Defendant's car made a complete revolution and slid across the road, off the shoulder, and down into the bottom of a ditch.

¶ 7 Defendant took a deep breath and tried to move the car, but the wheels spun and the car was stuck. When defendant tried to open her driver's side door, she realized she could not open it far enough to exit because it was resting against a snow drift. Defendant then exited from the passenger-side door. When asked to estimate the time it took for her to exit the car after landing in the ditch, defendant testified that it took a “couple [of] seconds, just stopped, took a breath, realized I couldn't get out of my car on that side, opened the passenger side, got out.” As defendant exited her car, planning to use her cell phone to call a tow truck, she saw Brenda and her son, Benjamin, who had been traveling north on Route 26 before stopping, walking toward her on the shoulder.¹ Defendant assumed they had stopped to see if she was all right. Defendant was not injured and she walked at a normal pace up to the shoulder and toward Brenda and Ben. Defendant intended to tell Brenda that she was fine and thank her for stopping, but Brenda was approximately one block away and defendant did not holler.

¶ 8 Before defendant had an opportunity to speak with Brenda, she heard Ellen Morrison's vehicle approaching and, when she looked at it, she could tell it was going to lose control on the ice patch. Defendant turned to run back toward her car, trying to get to a safe spot; Brenda and Ben ran in different directions. She heard the impact of Morrison's vehicle striking Brenda. When Morrison's vehicle came to a stop, it landed in the ditch about one block away from defendant's vehicle. After calling 911, defendant noticed for the first time that another car had stopped and was sitting in a nearby driveway. A man was standing outside the vehicle, and a woman was sitting inside. Defendant approached the car and told the woman that she was okay and that she had called 911. Defendant told the woman and the 911 operator that Brenda had stopped to help defendant.

¶ 9 Prior to the accident involving Morrison's vehicle, defendant had not tried to flag anyone down or direct traffic and did not notice anyone else doing so; she believed her car was located in a spot far enough off the road that it would not cause a problem. Defendant did not think she was in any danger and did not think “in a million years” that someone else would slide off the road the same way, same time, that day. A tow truck pulled defendant's car to the road, but there was no damage to it and she drove it home. After the accident, defendant saw a plow come to clear the curve where she and Morrison had slid. Further, she heard a State Trooper talk about the fact that the roadway was “banked” a little bit as it curved to the left.

¶ 10 Ben Reed testified that he was age 15 at the time of these events and that Brenda was driving him to a band competition. They were driving north on Route 26 and saw defendant's car spin out of control in front of them and end up in the ditch. It appeared to Ben that, as the car slipped off the road, the car's driver was turning the wheel to try to control the car. Because Brenda was a nurse, Ben asked her to stop to check on the person who had spun into the ditch. Brenda stopped the car and went to talk to other drivers who had pulled over, including three men and a woman. As Ben and Brenda approached the vehicle in the ditch, Ben noticed “a lady climbing out of the window” of the driver's side of the car. The car was pretty far off the road and, although it appeared stuck, it was not on fire and there was no smoke or steam coming from it. Ben saw the driver get out of the car and walk toward him, but then his attention was drawn to the Morrison vehicle, which was coming pretty fast. He ran toward the car in the ditch to get out of the way. The Morrison vehicle slid past him, hit the Reed car, and hit Brenda.

¶ 11 Robert Martin testified that, on March 3, 2007, he and his wife, Tina, were driving north on Route 26. It was a sunny day, but windy, approximately 40 degrees, and some snow had drifted the night before. The roads were “fairly clear,” with snow drifting across on occasion. Areas with slush build-up were “few and far between.” Martin was driving between 50 and 55 miles per hour. As he approached a curve in the road, Martin noticed snow blowing across it and a “lot of slush on it.” He slowed down because he had driven the road numerous times and knew that “that curve is a menace when it comes to snow blowing” and that it is a particularly slick curve because of the way it banks from left to right. Martin saw defendant's vehicle approach the curve; he testified that he saw her hit the brakes and start to slide, rotating around and landing in the ditch approximately 15 feet away from the road. As defendant's vehicle crossed his lane of traffic and in front of him, Martin “believe[d]” that defendant had a cell phone in one hand and a cigarette in the other.² After defendant's vehicle stopped, Martin could see that it was not damaged, smoking, or steaming, and it simply looked stuck.

¶ 12 Martin drove north and parked in a driveway; for her safety, he told Tina to stay in the car and he exited, intending to see if defendant was okay. He observed that defendant was moving around in her vehicle; she did not appear injured, so, when he went to check on her, it was to make sure she had someone coming who could pull her out of the ditch, to give her a ride, or to let her sit in his car to keep warm while waiting for help. Martin saw that another car (the Reed vehicle) and a truck...