                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           Johnson v. Bailey, 2012 IL App (3d) 110016




Appellate Court            YVONNE M. JOHNSON, Plaintiff-Appellant, v. CHARLES E.
Caption                    BAILEY, Defendant-Appellee.



District & No.             Third District
                           Docket No. 3-11-0016


Rule 23 Order filed        February 9, 2012
Motion to publish
allowed                    March 29, 2012
Opinion filed              March 29, 2012


Held                       On appeal from the entry of a judgment for defendant in an action arising
(Note: This syllabus       from an automobile accident in the parking lot of a convenience store, the
constitutes no part of     judgment was reversed and the cause was remanded where the trial court
the opinion of the court   erred in admitting a postoccurrence photograph defendant took to show
but has been prepared      the layout of the parking lot and the traffic flow and in allowing
by the Reporter of         testimony about plaintiff’s prior back injury, since the photograph was
Decisions for the          misleading and lacked a proper foundation, and the testimony about
convenience of the         plaintiff’s prior injury was not supported by expert testimony connecting
reader.)
                           that injury to the accident at issue.


Decision Under             Appeal from the Circuit Court of Will County, No. 08-L-1010; the Hon.
Review                     James E. Garrison, Judge, presiding.



Judgment                   Reversed and remanded.
Counsel on                 Scott Pyles (argued) and Michael J. Lichner, both of Rathbun,
Appeal                     Cservenyak & Kozol, LLC, of Joliet, for appellant.

                           Marilynn Frangella, Mark S. Kawinski, and Jamie Shimer (argued), all
                           of Febrizio, Hanson, Peyla & Kawinski, P.C., of Joliet, for appellee.


Panel                      JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
                           Justice Lytton concurred in the judgment and opinion.
                           Justice Carter dissented, with opinion.




                                             OPINION

¶1          Plaintiff Yvonne Johnson brought this negligence action against defendant Charles Bailey
        to recover for personal injuries she alleged to have sustained as a result of an automobile
        accident in which she and Bailey were involved. The jury returned a verdict in favor of
        Bailey. Johnson appealed. We reverse and remand.

¶2                                               FACTS
¶3           Plaintiff Yvonne Johnson and defendant Charles Bailey were involved in an automobile
        accident in the parking lot of a Casey’s General Store and gas station in Channahon. Johnson
        filed a negligence action against Bailey to recover for injuries she claims to have suffered in
        the accident. Bailey denied liability and asserted as an affirmative defense that Johnson
        caused the accident. Both parties were deposed. At Bailey’s deposition, he used
        postoccurrence photographs of the parking lot that he had taken using his and his fiancée’s
        vehicles as props. Johnson disclosed in her discovery deposition that she had injured her
        neck, head, shoulders and back in a 2005 slip and fall. She continued to see a chiropractor
        after she completed her treatment for routine adjustments. The same chiropractor treated her
        injuries from the instant accident.
¶4           Johnson served Bailey with a request to admit, asking Bailey to admit that her medical
        bills were charges for treatment “for conditions occurring as a result of the occurrence which
        is the subject of the Plaintiff’s lawsuit” and that the medical charges for the treatment were
        fair and reasonable. Bailey admitted the statements concerning the reasonable cost of medical
        service and denied the statements admitting that Johnson’s injuries resulted from their
        accident. His response was unsworn and signed only by defense counsel.
¶5           Prior to trial, Johnson filed a motion in limine, seeking to preclude Bailey’s use of the
        postoccurrence photographs of the Casey’s parking lot. At a hearing on her motion, Johnson
        argued that Bailey did not offer a proper foundation for the photographs during his deposition

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     and that they should not be used at trial without a proper foundation. The trial court found
     that Bailey could use the photographs subject to the establishment of a proper foundation.
     Johnson also moved to preclude evidence of any preexisting injuries she had and any opinion
     not disclosed per Illinois Supreme Court Rule 213. Ill. S. Ct. R. 213 (eff. Jan. 1, 2007). The
     motions were denied.
¶6       At trial, Johnson testified that she entered the Casey’s gas station to buy gas. Because all
     the spots at the pumps were full, she decided to exit the lot. Bailey was stopped at a pump.
     She stated he moved forward from his pump and struck the driver’s side of her vehicle as she
     drove past. She did not see Bailey’s vehicle until it hit her car. During her testimony, Johnson
     relied on defense exhibit No. 5, one of the postoccurrence photographs taken by Bailey.
     Johnson said it was an accurate representation of the parking lot’s layout, that the vehicles
     in the picture depicted the direction of the traffic flow, but that her vehicle was farther away
     from Bailey’s truck than shown in the photograph. Johnson marked the exhibit to show
     where she recalled her vehicle was located prior to the accident and how she turned at the
     pumps to exit the lot prior to the collision. Johnson stated that she suffered a neck injury in
     the collision with Bailey. Johnson’s treating chiropractor, Joann Maruszak, D.C., diagnosed
     her with a cervical strain, treated her for her injury and prescribed physical therapy. In
     Maruszak’s opinion, Johnson suffered the neck injury in the collision with Bailey. She
     testified that there was no connection between Johnson’s preexisting injuries and those
     sustained in the collision with Bailey.
¶7       Channahon police officer Kevin McRaven, who took a desk report concerning the
     accident, testified as Johnson’s witness. McRaven’s police report was used to help the officer
     recollect the incident. McRaven stated that Bailey told him that when he finished filling his
     vehicle with gas, he pulled forward and struck Johnson’s vehicle in the driver’s side door,
     damaging it. McRaven’s report included an admission by Johnson that her back hurt after the
     accident from a preexisting injury. Prior to cross-examining McRaven, defense counsel
     argued in a sidebar that Johnson opened the door to the admission. The trial court allowed
     the officer to testify regarding Johnson’s admission in Bailey’s presentation of evidence,
     determining that it was admissible as an admission that Johnson was not injured in the
     collision and was not evidence of a preexisting injury.
¶8       Bailey testified. He said that he was moving forward from the pumps at the same time
     Johnson was driving through the lot. Both vehicles were proceeding westward when the
     accident took place. Bailey offered his opinions concerning the point of impact and damages
     to the vehicles based on his recollection of the accident. Bailey used as demonstrative
     evidence defense exhibits Nos. 4 and 5, the staged photographs he had taken of the accident
     site. He offered the photographs to depict the layout of the Casey’s lot and the flow of traffic
     through the lot. Bailey testified that the photographs accurately reflected the layout at Casey’s
     when the accident occurred. The photograph depicted his car as it was located just prior to
     the collision. The other vehicle in the photograph showed the way both vehicles were prior
     to the accident “as close as” Bailey could remember it. Johnson objected to the use of the
     photographs, arguing they were misleading and lacked foundation. The trial court found
     defense exhibit No. 4 misleading and denied its admission but admitted exhibit No. 5.
     Johnson moved for a mistrial, contending that defense exhibit No. 4 lacked a proper

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       foundation but had been shown to the jury. The trial court denied Johnson’s motion.
¶9         Johnson also moved to deem facts admitted. She pointed to the unsigned and unsworn
       answers to her request to admit signed only by Bailey’s attorney, which omission the trial
       court had brought to the parties’ attention the previous day. Bailey moved to add a signature
       page to his response. His attorney argued that the signature page was not signed or submitted
       due to her inadvertence. Over Johnson’s objection, the trial court allowed Bailey a time
       extension to submit a sworn signature page, which he immediately did. Following
       deliberations, the jury found in favor of Bailey and against Johnson. She appealed.

¶ 10                                          ANALYSIS
¶ 11        On appeal, Johnson argues that the trial court erred when it failed to bar Bailey’s
       photographs depicting the gas station, to deem certain facts admitted, and to preclude
       testimony regarding Johnson’s preexisting back injury.
¶ 12        We turn first to the issues Johnson raises regarding defense exhibits Nos. 4 and 5,
       photographs that Bailey took of the parking lot. Johnson argues that the photographs were
       improperly admitted, asserting that the photographs lacked a proper foundation and that
       Bailey failed to disclose his “expert” opinions regarding the scene in his Rule 213 responses.
¶ 13        Photographs are admissible if they have a reasonable tendency to prove or disprove a fact
       at issue but may be excluded when irrelevant or immaterial or if their prejudicial nature
       outweighs their probative value. Boren v. The BOC Group, Inc., 385 Ill. App. 3d 248, 255
       (2008). As demonstrative evidence, photographs should not be admitted if they are inaccurate
       or would mislead or confuse the jury. Boren, 385 Ill. App. 3d at 256 (citing Barry v. Owens-
       Corning Fiberglas Corp., 282 Ill. App. 3d 199, 202 (1996)). Before a photograph may be
       admitted, a proper foundation must be offered establishing: (1) the photo is a true and
       accurate representation of what it purports to portray; and (2) the subject of the photo was
       in substantially the same condition it was in at the time of the accident. Reid v. Sledge, 224
       Ill. App. 3d 817, 821 (1992). We review the admission of photographs for an abuse of
       discretion. Reid, 224 Ill. App. 3d at 821.
¶ 14        Johnson argued in support of her motion in limine that because Bailey was unable to
       definitively testify at his deposition to the location of Johnson’s vehicle prior to the accident,
       the photographs did not accurately depict the parking lot and Bailey could not lay a proper
       foundation for their admission. At trial, Johnson used the photographs in her case-in-chief,
       stating that defense exhibit No. 5 accurately depicted the Casey’s lot but did not accurately
       depict where her car was located. She marked the photograph to show the location of her car
       and the path she took through the parking lot. According to Johnson, the location of her
       vehicle was approximately two feet farther from the second prop vehicle depicted in Bailey’s
       photographs. Bailey stated at trial that the photographs were offered to demonstrate the
       layout of the gas station and the flow of traffic through the lot and that they accurately
       reflected the layout of the parking lot the day of the accident. In staging the photographs, he
       placed his vehicle in the position it was located prior to the accident. To Bailey’s best
       recollection, the vehicles as depicted in defense exhibit No. 4 were in “substantially similar”
       positions as they were prior to the accident. However, Bailey admitted that he did not know

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       the exact location of Johnson’s car and that the photograph did not accurately depict its
       position. In defense exhibit No. 5, he used his fiancée’s vehicle as a “prop” to demonstrate
       the “relationship in the parking lot to the traffic flow.” In the photograph, he placed the
       vehicles in the same positions they were in immediately before the accident as close as he
       could remember it.
¶ 15       The trial court denied admission of defense exhibit No. 4, finding it misleading, but
       allowed the admission of defense exhibit No. 5. We find that defense exhibit No. 5 should
       also have been precluded because it lacked an adequate foundation and was also misleading.
       Bailey was able to establish that the photograph was a true and accurate depiction of the
       layout of the Casey’s lot but he could not state that the second vehicle was in the same
       position it was in on the day of the accident. Accordingly, the foundation was incomplete and
       the photograph should not have been admitted. Moreover, although Bailey argued at trial that
       both photographs were offered to show the layout of the lot and its traffic flow, the
       photographs depicted more than layout and traffic flow. The photographs also showed two
       vehicles, the first of which was Bailey’s truck that was involved in the accident and
       undisputedly properly located in the exhibit. However, the location of the second vehicle,
       which was positioned in the area of the lot where Johnson’s car was located prior to the
       accident, did not truly and accurately demonstrate its actual position. Bailey testified he did
       not know exactly where Johnson’s vehicle was positioned and stated it could have been a
       couple of feet farther away from where the second car was placed in the photograph.
¶ 16       In J.L. Simmons Co. v. Firestone Tire & Rubber Co., 126 Ill. App. 3d 859, 866 (1984),
       the reviewing court considered admission of a photograph of the location where the plaintiff
       was injured. The photograph showed the location in a considerably different state than when
       the injury occurred. J.L. Simmons Co., 126 Ill. App. 3d at 866. The J.L. Simmons court found
       that the photograph was likely to mislead the jury, even after the difference in appearance
       was explained to the jury. J.L. Simmons Co., 126 Ill. App. 3d at 866. Because the photograph
       did not accurately portray the location at the time of the accident, its probative value was
       outweighed by the prejudice to the plaintiff by representing the scene favorably to the
       defendant. J.L. Simmons Co., 126 Ill. App. 3d at 866. Similarly, the failure to adequately
       represent the location of the second vehicle as depicted in Bailey’s photographs prejudiced
       Johnson. The prejudice resulted even though Johnson had a chance to demonstrate on the
       photographs where she believed her vehicle was located prior to the accident. At trial, one
       of the disputed issues involved liability, the determination of which hinged, in part, on the
       location of the vehicles. Because Bailey’s photographs did not accurately depict the position
       of both vehicles prior to the accident, they were likely to mislead the jury. Defense exhibit
       No. 5 should not have been admitted and its admission prejudiced Johnson. We find the trial
       court abused its discretion when it allowed it into evidence.
¶ 17       We next consider whether the trial court erred in allowing testimony regarding Johnson’s
       preexisting back injury. Johnson argues that the trial court erred in allowing the investigating
       police officer to testify to statements she made after the accident that her back hurt, but it was
       the result of a prior injury. She contends that it was improper to allow the testimony without
       requiring an expert to connect the prior injury to the claims at issue.
¶ 18       Evidence of a prior injury is admissible when relevant to negate causation, negate or

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       reduce damages or to impeach a witness. Voykin v. Estate of DeBoer, 192 Ill. 2d 49, 57
       (2000). A prior injury is relevant to causation when it makes it less likely that the defendant’s
       actions caused any of the plaintiff’s injuries. Voykin, 192 Ill. 2d at 58. A prior injury is
       relevant to damages to establish that the defendant is liable for only a portion or aggravation
       of plaintiff’s injuries. Voykin, 192 Ill. 2d at 58. Expert testimony on causation may be
       necessary to connect the prior injury with the injury at issue. Voykin, 192 Ill. 2d at 59. The
       admission of evidence is within the trial court’s discretion and will not be reversed absent
       an abuse of that discretion. Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201
       Ill. 2d 260, 296 (2002).
¶ 19        In her motion in limine, Johnson sought to preclude evidence that she had any preexisting
       injuries, arguing that Bailey did not disclose that an expert would testify and connect the
       prior injury with the injury she sustained in the accident with Bailey. The trial court denied
       the motion pending the testimony of Johnson’s treating chiropractor. When the chiropractor
       testified, she stated that the cervical strain for which she treated Johnson was not connected
       to any of Johnson’s prior injuries, including a back injury, but was caused by the accident
       with Bailey. The chiropractor was questioned outside the jury’s presence and reiterated that
       although she had treated Johnson since 2000 for neck and back pain, the injuries Johnson
       suffered from the accident were not connected to her prior injuries. The trial court held that
       evidence regarding Johnson’s prior injuries was inadmissible.
¶ 20        During cross-examination, Johnson asked McRaven, the investigating officer, about
       admissions Bailey made that his vehicle struck hers as reflected in his police report. Bailey’s
       attorney then attempted to cross-examine McRaven as to a statement made by Johnson that
       her back hurt but it was due to a prior injury, which was also reflected in the police report.
       Johnson objected, and following sidebar arguments, the trial court determined that Johnson’s
       statement constituted an admission that was admissible during Bailey’s presentation of
       evidence. The trial court considered that Johnson’s statements concerned whether she was
       injured in the accident, not whether she had a preexisting injury. The trial court further
       considered that because Johnson did not claim a back injury resulted from the accident at
       issue, the admission did not constitute evidence of a preexisting injury. McRaven
       subsequently testified as a defense witness and stated that Johnson said, “her back hurt but
       it was from a preexisting injury.”
¶ 21        We find that the officer’s testimony regarding Johnson’s statement about her preexisting
       back injury should have been precluded. While both the chiropractor and the trial court
       distinguished Johnson’s back pain from her cervical strain, she testified that shortly after the
       accident she experienced “pain and tension” in her neck, back, and head. We do not consider
       the distinction between Johnson’s prior back injury and the injury she suffered in the accident
       with Bailey such that the jury could discern between them without the help of an expert.
       Voykin, 192 Ill. 2d at 59 (“if a defendant wishes to introduce evidence that the plaintiff has
       suffered a prior injury, whether to the ‘same part of the body’ or not, the defendant must
       introduce expert evidence demonstrating why the prior injury is relevant to causation,
       damages, or some other issue of consequence”). Bailey did not offer any expert testimony
       connecting the injuries. As such, the trial court erred when it allowed McRaven to testify
       regarding Johnson’s prior back injury. We find that this error, along with the erroneous

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       admission of defense exhibit No. 5, requires a new trial. Based on this disposition, we need
       not discuss the other issues Johnson raises on appeal.
¶ 22       For the foregoing reasons, the judgment of the circuit court of Will County is reversed
       and the cause remanded.

¶ 23      Reversed and remanded.

¶ 24       JUSTICE CARTER, dissenting:
¶ 25       I respectfully disagree with the majority’s conclusion in the present case. Unlike the
       majority, I would find that the trial court properly admitted the photograph of the Casey’s lot
       (defense exhibit No. 5) into evidence at trial. As the majority correctly notes, a trial court’s
       ruling on the admissibility of evidence will not be reversed on appeal absent an abuse of
       discretion. Troyan v. Reyes, 367 Ill. App. 3d 729, 732-33 (2006). An abuse of discretion
       occurs when no reasonable person would take the view adopted by the trial court. In re
       Leona W., 228 Ill. 2d 439, 460 (2008).
¶ 26       In the instant case, the photograph was admitted to show the set up of the gas station lot
       and the traffic flow through the lot. The photograph was true and accurate for that purpose.
       The fact that defendant could not testify whether one of the vehicles located in the
       photograph was in the position of plaintiff’s vehicle at the time of the accident was a matter
       that went to the weight of the evidence and not to the admissibility of the evidence. In my
       opinion, the trial court did not commit an abuse of discretion in ruling upon this issue. See
       Leona W., 228 Ill. 2d at 460.
¶ 27       Having reached that conclusion, I would find that the remaining arguments raised by
       plaintiff on appeal are moot because they pertain to the issue of damages, an issue that was
       never reached by the jury.
¶ 28       For the reasons stated, I respectfully dissent from the majority’s order. I would affirm the
       judgment of the trial court.




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