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Appellate Court Date: 2018.02.22
12:12:55 -06'00'
Peach v. McGovern, 2017 IL App (5th) 160264
Appellate Court WILLIAM KEVIN PEACH, Plaintiff-Appellant, v. LYNSEY E.
Caption MCGOVERN, Defendant-Appellee.
District & No. Fifth District
Docket No. 5-16-0264
Filed December 12, 2017
Decision Under Appeal from the Circuit Court of Marion County, No. 14-L-28; the
Review Hon. Kevin S. Parker, Judge, presiding.
Judgment Reversed and remanded; motion to strike granted.
Counsel on George R. Ripplinger, of Ripplinger & Zimmer, LLC, of Belleville,
Appeal for appellant.
Edward L. Adelman, of Goffstein, Raskas, Pomerantz, Kraus &
Sherman, LLC, of St. Louis, Missouri, for appellee.
Panel JUSTICE CATES delivered the judgment of the court, with opinion.
Justices Goldenhersh and Chapman concurred in the judgment and
opinion.
OPINION
¶1 Plaintiff, William Kevin Peach, brought suit against defendant, Lynsey E. McGovern, for
personal injuries he sustained in an automobile accident. The jury returned a verdict in favor
of defendant, and the circuit court of Marion County entered judgment on that verdict.
Plaintiff appeals, contending the jury verdict was against the manifest weight of the evidence,
especially where defendant was adjudged negligent as a matter of law. Plaintiff further
asserts that the trial court erred in allowing defense counsel, over objection, to present
evidence pertaining to the relative amount of damage sustained by the vehicles and argues
that there was a direct correlation between the amount of damage to the vehicles, as depicted
in photographs, and plaintiff’s injuries. We reverse and remand.
¶2 The evidence revealed that plaintiff was on his way home around 10 p.m. after visiting
with his girlfriend on the evening of July 17, 2010. As he was driving home, he had to stop at
the intersection of North Shelby Street and East Main Street in Salem, Illinois, to allow
traffic to clear. While waiting at the stop sign, the rear of plaintiff’s 1985 Nissan pickup truck
was struck by another vehicle. Plaintiff testified that even though he had his foot on the
brake, his truck was pushed some 5 to 10 feet into the intersection. When the collision
occurred, plaintiff’s head hit the back window of his truck and his neck began hurting
immediately. The vehicle that rear-ended plaintiff’s truck was a 2001 Mitsubishi Eclipse
driven by defendant, who was also on her way home. Defendant claimed she was fully
stopped behind plaintiff, when her foot slipped off the brake. She further testified that her
vehicle simply rolled into the rear of plaintiff’s truck. Plaintiff, on the other hand, estimated
defendant’s speed to have been 20 to 25 miles per hour at the time of the impact. He also
noticed that defendant was on her cell phone.
¶3 After the accident, both plaintiff and defendant got out of their vehicles to inspect the
damage. The back bumper of plaintiff’s truck was dented, and the front bumper of
defendant’s Eclipse was cracked. Defendant was unwilling to call the police or exchange
information with plaintiff. Instead, defendant decided to leave the scene. As she was leaving,
plaintiff was able to get the license plate number from defendant’s car. Plaintiff drove back to
his girlfriend’s house because his neck was hurting so badly. He testified that it was as if
somebody suddenly set a match to his neck. Plaintiff also had a headache and felt like he was
in a daze. The girlfriend testified that plaintiff came back to her house about 15 minutes after
he left. Because plaintiff appeared to be a bit disoriented and was complaining of a severe
headache and neck pain, the girlfriend indicated she took plaintiff to the emergency room at a
nearby hospital.
¶4 While plaintiff was in the emergency room undergoing various tests, the police were
contacted so that a police report could be made. Plaintiff gave the license plate number he
had recorded from defendant’s car to the police. When the police contacted defendant, she
admitted she had been involved in a vehicular accident. Defendant was subsequently ticketed
for failure to reduce speed to avoid an accident and pled guilty to the offense.
¶5 Plaintiff testified that since the accident, he has had chronic neck pain. A few days after
the accident, plaintiff visited his regular physician, Dr. Luecha. Plaintiff was given steroids
and a neck brace, and he underwent therapy, but nothing helped with the pain. He was then
referred to Dr. Templer, a pain management specialist in Mount Vernon. Plaintiff underwent
an MRI of his cervical spine in September and began treatment with Dr. Templer in October
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of 2010. The MRI revealed that plaintiff was not suffering from degenerative changes that
had accumulated over the years, but rather from more recent injuries, consistent with having
been rear-ended in a motor vehicle collision. Specifically, the MRI showed a straightening of
the normal lordosis, consistent with muscle spasm and pain, and a right disc protrusion at
C3-4, with foraminal narrowing on the right, compression of the right lateral recess,
compression of the dural sac, and compression of the anterior margin of the spinal cord.
Plaintiff was diagnosed with cervical sprain or strain, consistent with whiplash.
¶6 Plaintiff further stated he was suffering from pain radiating down into his right arm and
tenderness in the upper trapezius muscle. He indicated that he still has to rest his neck every
three to four days because of the pain. Plaintiff testified that prior to the collision, he had
experienced no problems with his neck. By the time of the trial, his medical bills had
exceeded $23,000. Plaintiff’s final diagnosis was whiplash syndrome, chronic neck pain,
cervical facet arthropathy, cervical disc herniation, cervical annular tear, and possible
cervical radiculopathy, cervical foraminal stenosis, and cervical degenerative disc disease.
¶7 Dr. Templer, the pain management physician, testified that with whiplash, the neck
moves beyond its typical range of motion and the overextension and flexion of the neck is the
mechanism that causes the chronic pain. Dr. Templer noted that even very low speed
collisions can cause hyperflexion/hyperextension injuries. Dr. Templer further opined that
the accident caused the whiplash, annular tear, and loss of integrity of disc space reported in
plaintiff’s medical records.
¶8 Plaintiff also testified that the dented bumper was not the only damage to his truck caused
by the collision. According to plaintiff, a few days after the accident, the brackets on the
truck bed failed. As a result, plaintiff’s vehicle was no longer drivable.
¶9 At the close of the evidence, the court directed a verdict for plaintiff on the issue of
negligence and reserved the questions of causation and damages for the jury. The jury
subsequently returned a verdict in favor of defendant, awarding plaintiff no damages. This
appeal followed.
¶ 10 Plaintiff first argues on appeal that the jury verdict was against the manifest weight of the
evidence. The only evidence of damages and causation came from plaintiff, his girlfriend,
and Dr. Templer. Both plaintiff and his girlfriend testified that plaintiff received medical care
and treatment immediately after being involved in the motor vehicle accident. Both also
testified that ever since the accident, plaintiff was suffering from pain in his neck. The MRI
revealed injuries consistent with whiplash. Dr. Templer also testified that plaintiff’s injuries
were consistent with whiplash. Dr. Templer further stated that low speed impact could cause
such injuries.
¶ 11 Defendant did not put on any witnesses to contradict plaintiff or the medical evidence.
Instead, during defendant’s closing argument, she relied on photographs to defeat plaintiff’s
claims. As plaintiff points out, defense counsel was allowed, over objection, to present
photographs depicting damage to the two vehicles involved and to argue that plaintiff
exaggerated the impact between the two vehicles in order to relate his neck injuries to the
rear-end collision. While it may have been possible that some other event caused plaintiff’s
injuries and medical findings, there was no substantive evidence introduced during trial to
suggest the occurrence of any such events. Nor was there any testimony, even during
cross-examination, regarding a correlation between the amount of vehicular damage, relative
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to the speed of the vehicles involved, and plaintiff’s injuries.
¶ 12 Analysis
¶ 13 We recognize that it is the function of the trial court to determine the admissibility and
relevance of evidence, and its ruling will not be disturbed on appeal absent an abuse of that
discretion. Ford v. Grizzle, 398 Ill. App. 3d 639, 647, 924 N.E.2d 531, 540 (2010).
Additionally, we note that evidence is deemed relevant if it has any tendency to make the
existence of any fact that is of consequence to the determination of the action more or less
probable than it would be without the evidence. Ford, 398 Ill. App. 3d at 648; Ill. R. Evid.
401 (eff. Jan. 1, 2011). Photographs are used at trial for a variety of purposes. Some require
the testimony of an expert witness, while others may not. The general rule is that a
photograph is admissible if it has a reasonable tendency to prove a material fact at issue in
the case. Smith v. Baker’s Feed & Grain, Inc., 213 Ill. App. 3d 950, 952, 572 N.E.2d 430, 431
(1991). Here, plaintiff filed a motion in limine to preclude the introduction of the
photographs of the vehicles. Plaintiff made no claim for property damage, and the fact of the
impact was uncontested. The question then became why the photographs were relevant, and
thus admissible, at all.
¶ 14 During the evidence deposition of Dr. Templer, he indicated that he did not have the
expertise to relate the damage depicted in the photographs to the various medical findings in
plaintiff’s neck, such as the overextension and flexion of plaintiff’s neck, which allegedly
caused plaintiff’s chronic pain, the right disc protrusion of C3-4, with foraminal narrowing,
the annular tear, and the loss of integrity to the disc space. Defendant had no other witness
who could testify that the damage depicted in the photographs did not cause the various
injuries testified to by Dr. Templer. The only evidence regarding the photographs was that
they depicted the damage to the vehicles. While the court initially deferred a ruling on the
admissibility of the photographs, plaintiff’s motion in limine to bar their use was ultimately
denied, and the photos were admitted.
¶ 15 When faced with cases involving rear-end collisions between two vehicles, courts often
refer to Fronabarger v. Burns, 385 Ill. App. 3d 560, 895 N.E.2d 1125 (2008), in resolving
whether to admit photographs depicting damage to the vehicles involved in a collision. The
court in Fronabarger declined to accept a rigid rule that photographs depicting damage to the
vehicles were always admissible or that expert testimony was always necessary for such
photographs to be admissible. See Fronabarger, 385 Ill. App. 3d at 564. Rather, according to
the court, the critical question in admitting such photographs into evidence is whether the
jury can properly relate the vehicular damage depicted in the photos to the injury, without the
aid of an expert. Fronabarger, 385 Ill. App. 3d at 564-65. In reaching this decision, the court
in Fronabarger declined to follow the earlier holding of Baraniak v. Kurby, 371 Ill. App. 3d
310, 862 N.E.2d 1152 (2007), which concluded that, absent expert testimony on the
correlation between vehicular damage and a plaintiff’s injuries, photographs of the parties’
damaged vehicles should be excluded.
¶ 16 Here, while the photographs may have been relevant to allow the jury to infer the relative
speed of the vehicles, there was clearly no evidence at trial relating the damage depicted in
the photographs as the proximate cause of plaintiff’s overextension and flexion of his neck,
the annular tear, the right disc protrusion at C3-4, or the loss of the integrity of plaintiff’s disc
space. Indeed, these kinds of injuries, as described by Dr. Templer, are not within the ken of
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the ordinary juror and require the testimony of an expert witness. Therefore, under the
circumstances of this case, we believe the rule expressed in Baraniak is a better view than
that adopted in Fronabarger. We reach this conclusion after noting that the cases relied upon
in Fronabarger all involved evidence from expert witnesses on the very issue of the
correlation between vehicular damage and a plaintiff’s injuries. Even Fronabarger had an
expert witness who opined that if a vehicle does not sustain any evidence of impact, it is
therefore likely that the people in the vehicle are not going to have significant evidence of an
impact. Fronabarger, 385 Ill. App. 3d at 563. That expert was proffered by the defendant to
relate the lack of vehicular damage relative to the injuries claimed by the plaintiff. See also
Jackson v. Seib, 372 Ill. App. 3d 1061, 866 N.E.2d 663 (2007) (expert relied on photographs
of vehicles in order to reach an opinion regarding the nature and severity of the impact);
Ferro v. Griffiths, 361 Ill. App. 3d 738, 836 N.E.2d 925 (2005) (photographs relevant
because of expert testimony regarding the nature and extent of injury). Such is not the case
here.
¶ 17 The facts in Baraniak are strikingly similar to those before us. In Baraniak, the plaintiff
was stopped at a red light when the car she was driving was struck in the rear by a car being
driven by the defendant. The plaintiff described the impact as “hard” and claimed that it
caused her head to strike the back of her headrest. As a result, the plaintiff immediately
complained of a headache, pain in her neck, and lack of sensation in her hands. She went to
the hospital and was treated and released. Six days later, she saw her personal physician, who
diagnosed the plaintiff with a spinal cord injury and whiplash. The plaintiff sought medical
treatment for over a year and amassed medical bills in excess of $50,000. The defense
admitted liability, but challenged the nature and extent of the plaintiff’s injuries. The
defendant offered the testimony of an expert witness, who indicated that the plaintiff’s
injuries were resolved by the time she was discharged by her first neurosurgeon. The plaintiff
offered the testimony of three of her treating physicians who related her medical treatment
and injuries to the accident. The plaintiff argued that it was an abuse of discretion to allow
defense counsel to use the photographs during closing argument to argue the lack of injury to
the plaintiff, as no expert had related the damage illustrated by the photographs to the nature
and extent of the plaintiff’s injuries. The defendant argued that she was not using the photos
to show a lack of damages, but was using the photos to argue which party was more
“credible.” Baraniak, 371 Ill. App. 3d at 317.
¶ 18 The Baraniak court held that to allow the use of photos to argue credibility would be an
“end run around the relevancy rule, and photographs of damaged vehicles would always be
admissible in trials of this nature on the grounds that credibility is always an issue. The effect
of such a ruling would be to allow parties to accomplish indirectly what the courts have
already determined is improper absent expert testimony, i.e., to argue or even imply that
there is a correlation between the extent of vehicular damage and the extent of a person’s
injuries caused by an accident.” Baraniak, 371 Ill. App. 3d at 317-18. The Baraniak court
recognized the rule set forth in DiCosola v. Bowman, 342 Ill. App. 3d 530, 535, 794 N.E.2d
875 (2003), that “no Illinois case stands for the proposition that photographs showing
minimal damage to a vehicle are automatically relevant and must be admitted to show the
nature and extent of a plaintiff’s injuries. There simply is no such bright-line rule that
photographs depicting minimal damage to a post-collision vehicle are automatically
admissible to prove the extent of a plaintiff’s bodily injury or lack thereof.” The court
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therefore reversed the judgment of the lower court and remanded for a new trial. Upon
remand, the court held that, absent expert testimony on the correlation between the vehicular
damage and plaintiff’s injuries, the photographs of the parties’ damaged vehicles shall be
excluded. Baraniak, 371 Ill. App. 3d at 318. We believe this reasoning is sound in the case
before us as well.
¶ 19 Here, the trial court, relying on Fronabarger, denied plaintiff’s motion in limine to bar
use of the photographs at trial. Defense counsel was allowed, over objection, to admit the
photographs of the vehicles and then argue that there was a direct correlation between the
amount of damage to the vehicles and plaintiff’s damages. As previously noted, defense
counsel presented no expert or medical evidence to support his argument. Instead, defense
counsel waited until closing argument to present the photographs to the jury and argue that
plaintiff could not have been injured to the extent claimed because the photos of the vehicles
showed minimal damage. Closing argument is the opportunity for the lawyers to comment on
the evidence introduced at trial. “Comments on the evidence during closing argument are
proper if proven by direct evidence or if reasonably inferable from the facts.” Magna Trust
Co. v. Illinois Central R.R. Co., 313 Ill. App. 3d 375, 396, 728 N.E.2d 797, 814 (2000). Here,
defense counsel provided his own testimony regarding the relationship of the damage
depicted in the photographs to plaintiff’s injuries. Under the circumstances presented here, to
allow defendant’s counsel to make such an argument, wholly unsupported by any evidence,
was an abuse of the trial court’s discretion. We also conclude that the court erred at the outset
in failing to grant plaintiff’s motion in limine with respect to the admissibility of the
photographs for the purpose of attempting to relate plaintiff’s injuries to the vehicular
damage depicted in the photographs, without expert testimony to support such an inference.
Plaintiff suffered cervical injuries that required the testimony of a physician expert. Without
this expert testimony regarding a relationship between what was seen in the photos and the
injuries suffered by plaintiff, the photographs were simply not relevant to any issues in the
case, and irrelevant evidence is not admissible. DiCosola, 342 Ill. App. 3d at 533-35, 538.
¶ 20 In addition to this abuse of the court’s discretion, we also believe the jury’s verdict is
against the manifest weight of the evidence. Dr. Templer testified that he was not able to
correlate the vehicle damage and plaintiff’s injury, as he was not qualified to make such an
analysis, and not all of the facts that would be necessary to make the calculations were
available. Dr. Templer did opine, however, that a low speed vehicular impact can cause the
type of injuries plaintiff was suffering from and that plaintiff’s injuries were related to the
rear-end impact. Plaintiff’s MRI was consistent with Dr. Templer’s opinion, as was the
testimony from both plaintiff and his girlfriend pertaining to plaintiff’s injuries immediately
after the accident. We therefore conclude that the jury’s verdict in this instance was against
the manifest weight of the evidence.
¶ 21 A verdict is against the manifest weight of the evidence when the opposite result is
clearly evident or where the jury’s findings are unreasonable, arbitrary, and not based on the
evidence. Ford, 398 Ill. App. 3d at 651. Here, the court had found defendant negligent as a
matter of law, but left the issue of causation and damages for the jury. A verdict in favor of
plaintiff on the issues of causation and damages should have followed, given the testimony
and medical evidence presented at trial. From the evidence, it is clear that the jury should
have concluded that defendant’s negligence proximately caused plaintiff’s injuries. We find
it unreasonable that any jury, under the circumstances and the evidence presented, would not
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have at least awarded recovery for plaintiff’s hospital expenses incurred immediately after
the collision. We recognize that the jury can disbelieve any testimony, at any time, even
when uncontradicted, but we conclude that, in this instance, the jury’s findings are
unreasonable and not based on the evidence presented at trial. We therefore reverse the
judgment in favor of defendant.
¶ 22 Finally, we must address one other issue before remanding this cause back to the circuit
court. Defendant filed a motion to strike plaintiff’s appendix and all related argument
pertaining to the appendix. That motion was ordered to be taken with the case. The appendix
consists of two articles on the relationship between the damage to vehicles and injuries to the
occupants of those vehicles. Neither article was submitted to the trial court as evidence in
support of any argument asserted by plaintiff. Consequently, neither article is part of the
record on appeal. Because the introduction of new evidence on appeal is improper, any
evidence that was not presented to the trial court should not be considered on appeal and
should be stricken. People ex rel. Madigan v. Leavell, 388 Ill. App. 3d 283, 287-88, 905
N.E.2d 849, 854 (2009). Defendant’s motion to strike that portion of plaintiff’s appendix and
any argument in the brief referencing those articles is therefore granted.
¶ 23 For the foregoing reasons, we reverse the judgment entered by the circuit court of Marion
County and remand this cause for further proceedings. Defendant’s motion to strike, taken
with the case, is hereby granted.
¶ 24 Reversed and remanded; motion to strike granted.
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