                            ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                           Lambert v. Coonrod, 2012 IL App (4th) 110518




Appellate Court             RICHARD WAYNE LAMBERT and BILLIE JO LAMBERT, Plaintiffs-
Caption                     Appellants, v. TIM COONROD, Defendant-Appellee.



District & No.              Fourth District
                            Docket No. 4-11-0518


Filed                       March 5, 2012


Held                        In an action for the injuries plaintiff suffered when he fell off a wire spool
(Note: This syllabus        while helping defendant with a project at defendant’s residence, the trial
constitutes no part of      court did not abuse its discretion in refusing to admit defendant’s
the opinion of the court    statement at the hospital where plaintiff was treated that plaintiff and his
but has been prepared       wife would not have to pay any of the expenses, since the statement was
by the Reporter of          barred by section 8-1901 of the Code of Civil Procedure and Rule 409 of
Decisions for the           the Illinois Rules of Evidence, and photographs of the scene of the fall
convenience of the          taken one year later were properly admitted over plaintiffs’ contention
reader.)
                            that they were prejudicial due to the depiction of a ladder, because the
                            jury was admonished that the photographs were admitted to show the
                            interior of the shed and the position of the loft into which plaintiff was
                            trying to reach when he fell and that they were not to be concerned about
                            the shed’s contents.


Decision Under              Appeal from the Circuit Court of Macoupin County, No. 09-L-23; the
Review                      Hon. Patrick J. Londrigan, Judge, presiding.


Judgment                    Affirmed.
Counsel on                 Byron J. Sims (argued), of Kasten, Ruyle, Sims & Bellm, P.C., of
Appeal                     Carlinville, for appellants.

                           Dominique N. Seymoure (argued), of Reed, Armstrong, Gorman, Mudge
                           & Morrissey P.C., of Edwardsville, for appellee.


Panel                      PRESIDING JUSTICE TURNER delivered the judgment of the court,
                           with opinion.
                           Justices Steigmann and Cook concurred in the judgment and opinion.



                                             OPINION

¶1          In October 2010, plaintiffs, Richard Wayne Lambert and Billie Jo Lambert, filed a two-
        count complaint against defendant, Tim Coonrod, to recover damages for injuries sustained
        by Richard at Coonrod’s residence. In February 2011, a jury found in favor of defendant and
        against plaintiffs.
¶2          On appeal, plaintiffs argue the trial court erred in (1) improperly denying admission of
        defendant’s statement to Billie Jo and (2) admitting prejudicial photographs into evidence.
        We affirm.

¶3                                        I. BACKGROUND
¶4          In August 2009, Richard filed a complaint in negligence against Coonrod after an
        October 2008 fall with injury on Coonrod’s property. Richard alleged he was helping
        Coonrod with a project that required him to reach for a light above him. While mounting a
        coil spool, Richard fell backward and landed on the spool. Richard alleged Coonrod failed
        to provide a safe and stable platform from which he could work and failed to warn him that
        the spool he stood upon was or could be unstable and easily tipped. Richard alleged he
        sustained injuries to his left side and back, including a lumbar fracture and broken rib. In
        October 2009, Coonrod filed his answer and asserted the affirmative defense of contributory
        negligence.
¶5          In October 2010, plaintiffs filed an amended two-count complaint against Coonrod.
        Count I realleged the negligence claim pertaining to Richard’s injuries. Count II set forth a
        claim of loss of consortium on behalf of Billie Jo. Count II alleged Richard’s injuries
        deprived Billie Jo of the affections, society, companionship, and consortium of her husband.
        In December 2010, Coonrod filed his answer to the amended complaint.
¶6          In February 2011, Coonrod filed a motion in limine. In part, Coonrod asked the trial court
        to bar plaintiffs from referencing or suggesting to the jury that Coonrod offered to pay
        Richard’s medical expenses. See 735 ILCS 5/8-1901 (West 2004); Ill. R. Evid. 409 (eff. Jan.

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       1, 2011). Plaintiffs objected, claiming Coonrod made a statement to Billie Jo that he was
       sorry about the incident and would take care of the expenses. Plaintiffs argued evidence of
       a defendant’s offer or payment of a portion of a plaintiff’s expenses is admissible as a
       statement inconsistent with the party’s position at trial, where it was not part of any
       settlement negotiation or offer of compromise. The court found Coonrod’s statement that he
       was sorry about the incident was admissible but testimony about payment of medical
       expenses was not.
¶7          In February 2011, a jury trial commenced. Prior to the start of the trial, plaintiffs’ counsel
       made an offer of proof as to the alleged statement made by Coonrod. Billie Jo testified that
       while at the hospital on October 30, 2008, “Coonrod stated that he was very sorry that the
       accident happened, and he promised that we would have nothing to worry about and we
       wouldn’t have to pay a dime of any expenses.” Billie Jo stated Coonrod never used the
       phrase “medical expenses,” and she understood his statement to include “anything in general
       that we needed help with.”
¶8          Richard testified he has worked as a laborer for Aladdin Steel in Carlinville since 1998.
       He is married to Billie Jo, and they have two grown children. On October 30, 2008, Richard
       went to the home of his “good friend” to put up Halloween decorations that were stored in
       an 8-foot by16-foot shed. Some of the decorations were on the floor and others were in a loft,
       which was about six feet high. Richard stated Coonrod pulled a wooden wire spool over to
       the loft. The spool was approximately 24 inches in diameter and painted. Richard described
       it as “slick and shiny.” Richard did not see a ladder or a step stool in the shed, and there was
       no built-in access to get to the loft. At one point, Coonrod stepped on the spool, grabbed a
       couple of boxes, and handed them to Richard. Coonrod then asked Richard to reach some
       items in the back. Richard stepped onto the spool and grabbed the edge of the loft. As he
       prepared to get into the loft, “the spool teetered.” Richard then lost his grip and fell. He
       landed on the edge of the spool on his lower back and left side. Richard eventually was taken
       to the hospital by ambulance. Richard testified he was off work for eight weeks. He stated
       he was still stiff and sore with lower-back pain. He stated he has difficulty walking, hiking,
       and gardening.
¶9          On cross-examination, Richard acknowledged the spool was designed to hold wire and
       not for a person to stand on. He stated he did not check the stability of the spool before
       stepping on it. He also did not ask or look for a ladder. Richard returned to work on
       December 29, 2008, and continued in his steelworker position.
¶ 10        Billie Jo testified she was at work on October 30, 2008, when she received a call from
       the police that her husband had been in an accident. At the hospital, Coonrod told her he was
       very sorry that the accident happened. Billie Jo also testified to the activities Richard is no
       longer able to perform.
¶ 11        Plaintiffs presented the evidence deposition of Dr. Brian Quarton, who treated Richard.
       The parties stipulated Richard incurred medical expenses totaling $23,765.30 and lost wages
       totaling $5,073.60.
¶ 12        Coonrod testified he asked Richard to come over to help him get Halloween decorations
       out of the storage shed. Counsel showed Coonrod several pictures of the interior of his shed,


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       which included a ladder on the wall. Coonrod stated the pictures were taken and the ladder
       was purchased after the accident. The wire spool had been converted into a patio table. Prior
       to Richard’s fall, Coonrod did not step on the spool. Coonrod stated Richard was taking
       items off the shelf and handing them to him. Coonrod never saw Richard stand on the spool
       before he fell.
¶ 13       Following Coonrod’s testimony, plaintiffs’ counsel objected to the admission of the
       photos of the shed. Counsel argued the photos were taken a year after the incident and
       included items that were not present on the date of the occurrence. The trial court admitted
       the photos. The court admonished the jury the photos were admitted to show the structure
       of the shed and the position of the loft. The court told the jury it should not concern itself
       with the contents of the shed, just the structure and the shelving.
¶ 14       Following closing arguments, the jury found in favor of Coonrod and against plaintiffs.
       In March 2011, plaintiffs filed a posttrial motion for a new trial, arguing the trial court erred
       in excluding Coonrod’s statement to Billie Jo that he would take care of the expenses.
       Plaintiffs also argued the court erred in admitting the photos of the shed, claiming they were
       not taken on the date of the occurrence and were “highly prejudicial” because they showed
       a ladder and other items that were not present at the time of the accident. In June 2011, the
       court denied the motion. This appeal followed.

¶ 15                                         II. ANALYSIS
¶ 16                                    A. Coonrod’s Statement
¶ 17       Plaintiffs argue the trial court improperly denied admission into evidence a statement
       made by Coonrod to Billie Jo that he offered to pay all of Richard’s expenses pertaining to
       the incident. We disagree.
¶ 18       “A trial judge has discretion in granting a motion in limine and a reviewing court will not
       reverse a trial court’s order allowing or excluding evidence unless that discretion was clearly
       abused.” Swick v. Liautaud, 169 Ill. 2d 504, 521, 662 N.E.2d 1238, 1246 (1996). To the
       extent plaintiffs’ argument requires the construction of a statute or rule of evidence, it
       presents a question of statutory interpretation, which we review de novo. McFatridge v.
       Madigan, 2011 IL App (4th) 100936, ¶ 26, 2011 WL 6288120, at *5; see also In re Storment,
       203 Ill. 2d 378, 390, 786 N.E.2d 963, 970 (2002) (stating the interpretation of a rule is
       reviewed de novo). In construing a statute, the fundamental rule “is to ascertain and give
       effect to the legislature’s intent.” Nowak v. City of Country Club Hills, 2011 IL 111838, ¶ 11,
       958 N.E.2d 1021, 1023. “The most reliable indicator of that intent is the statutory language
       itself, which must be given its plain and ordinary meaning.” Snyder v. Heidelberger, 2011
       IL 111052, ¶ 16, 953 N.E.2d 415, 420-21.
¶ 19       Section 8-1901(a) of the Code of Civil Procedure (735 ILCS 5/8-1901(a) (West 2010))
       provides as follows:
           “The providing of, or payment for, medical, surgical, hospital, or rehabilitation services,
           facilities, or equipment by or on behalf of any person, or the offer to provide, or pay for,
           any one or more of the foregoing, shall not be construed as an admission of any liability
           by such person or persons. Testimony, writings, records, reports or information with

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           respect to the foregoing shall not be admissible in evidence as an admission of any
           liability in any action of any kind in any court or before any commission, administrative
           agency, or other tribunal in this State, except at the instance of the person or persons so
           making any such provision, payment or offer.”
       Section 8-1901(a), along with section 8-1901(b), was part of Public Act 94-677, which
       became effective on August 25, 2005. Pub. Act 94-677, § 330 (eff. Aug. 25, 2005) (2005 Ill.
       Laws 4964, 5000). In February 2010, the supreme court, in considering the constitutionality
       of the statute limiting the recovery of noneconomic damages in a medical malpractice action,
       held Public Act 94-677 “invalid and void in its entirety.” Lebron v. Gottlieb Memorial
       Hospital, 237 Ill. 2d 217, 250, 930 N.E.2d 895, 914 (2010). “The effect of declaring a statute
       unconstitutional is to revert to the statute as it existed before the amendment.” Cookson v.
       Price, 239 Ill. 2d 339, 341, 941 N.E.2d 162, 164 (2010).
¶ 20       The prior version of section 8-1901 included the same provision as subsection (a) above,
       but without section 8-1901(b) which is irrelevant in this case, and became effective on July
       1, 1982. 735 ILCS 5/8-1901 (West 2004). Thus, this version of section 8-1901 applied here.
¶ 21       Also, on September 27, 2010, our supreme court adopted the Illinois Rules of Evidence,
       which became effective in Illinois courts on January 1, 2011. Rule 409 (Ill. R. Evid. 409 (eff.
       Jan. 1, 2011)) provides as follows:
                “In addition to the provisions of section 8-1901 of the Code of Civil Procedure (735
           ILCS 5/8-1901), evidence of furnishing or offering or promising to pay medical, hospital,
           or similar expenses occasioned by an injury is not admissible to prove liability for the
           injury.”
¶ 22       In their brief on appeal, plaintiffs argue the newly effective Rule 409 does not apply
       because Richard’s accident took place in October 2008 and the first complaint was filed in
       August 2009. However, plaintiffs offer no support for their contention. The supreme court
       stated the rules became effective on January 1, 2011, and nowhere did the court state that
       they did not apply to cases that were pending but had not yet gone to trial. Moreover, a
       change in a rule affecting matters of procedure, such as a rule of evidence, and not
       substantive rights, applies retroactively to pending cases. See Niven v. Siqueira, 109 Ill. 2d
       357, 364, 487 N.E.2d 937, 941 (1985) (“[a] new law which affects only procedure generally
       applies to litigation pending when the law takes effect”); Schweickert v. AG Services of
       America, Inc., 355 Ill. App. 3d 439, 442, 823 N.E.2d 213, 216 (2005) (“a procedural change
       in the law prescribes a method of enforcing rights or involves pleadings, evidence and
       practice”). Rule 409 involves matters of evidence, a procedural issue, and thus the rule
       applied here since plaintiffs’ trial took place after the rule’s effective date.
¶ 23       Plaintiffs argue the facts of this case render section 8-1901 and Rule 409 inapplicable.
       As set forth in the offer of proof, plaintiffs sought to introduce testimony from Billie Jo,
       wherein she would relate a statement made by Coonrod at the hospital. Billie Jo testified
       Coonrod “promised that [plaintiffs] would have nothing to worry about and [they] wouldn’t
       have to pay a dime of any expenses.”
¶ 24       Plaintiffs claim section 8-1901 deals with medical expenses, and Coonrod’s statement
       was not limited to medical expenses but “would necessarily include any and all out-of-pocket

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       losses sustained by Plaintiff, including lost wages, mileage or any other expenses incurred.”
       However, the clear language of section 8-1901 prohibits the admission of Coonrod’s
       statement on the issue of liability. Considering the statement was made at the hospital,
       Coonrod was clearly referencing expenses resulting from Richard’s treatment. Accordingly,
       we find Coonrod’s statement regarding the payment of plaintiffs’ expenses was inadmissible
       under section 8-1901 to prove liability.
¶ 25       Coonrod’s statement was also inadmissible under Rule 409. The clear language of Rule
       409 is broad enough to include expenses beyond hospital and medical costs. Rule 409 states
       its prohibition is “in addition to” the provisions of section 8-1901. Moreover, Rule 409
       excludes evidence of promises to pay “similar expenses occasioned by an injury.”
¶ 26       We find the statement at issue was barred by section 8-1901 and Rule 409. Thus, we find
       the trial court did not abuse its discretion in denying Coonrod’s statement into evidence.

¶ 27                                    B. Shed Photographs
¶ 28       Plaintiffs argue the trial court erred in admitting the shed photographs into evidence
       because they did not accurately depict the scene of the occurrence at the time of the incident.
       We disagree.
¶ 29       “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 v. Grizzle, 398 Ill. App. 3d 639, 648, 924 N.E.2d 531, 540
       (2010). “In general, photographs are admissible into evidence if they are identified by a
       witness who has personal knowledge of the subject matter depicted in the photographs and
       the witness testifies that the photographs are a fair and accurate representation of the subject
       matter at the relevant time.” People v. Martinez, 371 Ill. App. 3d 363, 380, 862 N.E.2d 1022,
       1037 (2007). A photograph “may be excluded if it is irrelevant or immaterial or if its
       prejudicial nature clearly outweighs its probative value.” Boren v. BOC Group, Inc., 385 Ill.
       App. 3d 248, 255, 895 N.E.2d 53, 60 (2008). Moreover, “where a photograph might confuse
       or mislead the jury it may be inadmissible.” Amstar Corp. v. Aurora Fast Freight, 141 Ill.
       App. 3d 705, 708, 490 N.E.2d 1067, 1070 (1986). Whether to admit a photograph rests
       within the sound discretion of the trial court, and we will not reverse that decision absent an
       abuse of discretion. Baraniak v. Kurby, 371 Ill. App. 3d 310, 316-17, 862 N.E.2d 1152, 1158
       (2007).
¶ 30       In the case sub judice, Coonrod testified to pictures of his shed that were taken
       approximately one year after the incident occurred. The pictures showed the interior of the
       shed, including the shelving area. Coonrod testified the photos fairly and accurately depicted
       the layout of the shed, although not the items therein, at the time of the accident. He also
       testified the ladder in the picture was purchased after the accident had occurred. Plaintiffs
       argue the photos were highly prejudicial because they showed a “ladder as being available
       and conveniently located in the shed.”
¶ 31       The photos of the shed were relevant in this case. The pictures showed the interior of the
       shed where the accident took place, as well as the white-painted spool that Richard stepped
       on before falling. Although the ladder was not present at the time of the accident, the jury

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       cannot be said to have been misled by the photo. Coonrod testified he purchased the ladder
       after the accident. Moreover, the trial court admonished the jury that the photos were being
       admitted to show the interior of the shed and the position of the loft. The court told the jury
       it was not to concern itself with the contents of the shed depicted in the photos. We find no
       abuse of discretion.

¶ 32                                  III. CONCLUSION
¶ 33      For the reasons stated, we affirm the trial court’s judgment.

¶ 34      Affirmed.




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