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                                   Appellate Court                           Date: 2017.01.03
                                                                             12:56:37 -06'00'




                      Larkin v. George, 2016 IL App (1st) 152209



Appellate Court       JOHN LARKIN, Plaintiff-Appellant, v. KEVIN BOYD GEORGE,
Caption               Defendant-Appellee.



District & No.        First District, First Division
                      Docket No. 1-15-2209



Rule 23 order filed   August 30, 2016
Rule 23 order
withdrawn             October 21, 2016
Opinion filed         October 31, 2016



Decision Under        Appeal from the Circuit Court of Cook County, No. 12-L-002306; the
Review                Hon. Ronald F. Bartkowicz, Judge, presiding.



Judgment              Affirmed.



Counsel on            Stephen Le Brocq, of Law Offices of Stephen Le Brocq, of Dallas,
Appeal                Texas, for appellant.

                      Bruce Farrel, of Dorn & Associates, of Chicago, for appellee.



Panel                 JUSTICE SIMON delivered the judgment of the court, with opinion.
                      Justices Pierce and Neville concurred in the judgment and opinion.
                                               OPINION

¶1       Plaintiff John Larkin filed an action for negligence against defendant Kevin Boyd George
     as a result of a multi-car accident. Defendant admitted that he drove negligently, and the
     remaining issues at trial were the nature and the extent of plaintiff’s injuries and whether those
     injuries were proximately caused by defendant’s negligent driving. Following a jury trial, the
     jury returned a unanimous verdict in favor of defendant. Plaintiff appeals that verdict arguing
     that (1) the trial court erred in ruling that defendant did not violate the court’s previous order
     regarding plaintiff’s motion in limine, (2) the jury’s verdict was against the manifest weight of
     the evidence, and (3) the trial court failed to properly instruct the jury to not engage in their
     own independent investigation.

¶2                                          BACKGROUND
¶3       On January 27, 2011, plaintiff was driving his motor vehicle southbound on Interstate 294
     near mile post 39 when he was involved in a multi-car accident. Defendant’s vehicle contacted
     the rear of the vehicle driven by a nonparty. The nonparty then contacted the rear of the vehicle
     operated by plaintiff. Plaintiff’s vehicle then contacted the rear of a vehicle driven by another
     nonparty.
¶4       On March 1, 2012, plaintiff filed his complaint against defendant alleging that he suffered
     numerous injuries as a result of defendant’s negligent driving. Prior to trial, plaintiff filed a
     motion in limine asking the court to bar defendant from presenting testimony and photographs
     depicting damages sustained by the vehicles involved in the underlying motor vehicle
     accident. The trial court limited the use of the photographs to show the “point of impact” and
     not the extent of damages.
¶5       At trial, investigating trooper John Oreskovich testified that he was on the scene for at least
     45 minutes investigating the accident. He stated that his report reflected that plaintiff made no
     complaints of pain or discomfort at the accident scene. He prepared a no injury code police
     report indicating that both from his personal observations and from plaintiff’s reporting there
     were no complaints of pain or discomfort at the scene. Defendant testified that, on the day of
     the accident, plaintiff was in no observable pain or discomfort and that plaintiff made no
     complaints to him of his left foot or ankle discomfort at the accident scene.
¶6       Plaintiff testified that he went to an urgent care center the day after the accident due to
     discomfort in his left ankle. Approximately a month later he saw an orthopedic surgeon who
     performed an ankle surgical procedure. Subsequently, plaintiff underwent a second surgical
     procedure performed by another surgeon. Plaintiff reported continuing pain and discomfort in
     his left foot up until the time of trial and testified about his inability to participate in family
     activities, such as golfing, and playing basketball as a result of the traffic incident. Plaintiff
     stated that prior to the traffic accident he regularly played basketball on a team.
¶7       At the close of the evidence, the jury returned a verdict in favor of defendant. Plaintiff filed
     his motion for a new trial arguing that (1) defendant’s counsel repeatedly violated plaintiff’s
     motion in limine when counsel intentionally brought up the pictures in the presence of the jury
     multiple times, (2) the verdict was against the manifest weight of the evidence, and (3) the jury
     clearly engaged in premature deliberation and was biased by extrinsic influences, or, in the
     alternative, the court should grant plaintiff an evidentiary hearing regarding juror misconduct.


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       The court denied plaintiff’s posttrial motion, and this appeal followed.

¶8                                               ANALYSIS
¶9          On a motion for a new trial, the trial court will weigh the evidence and order a new trial if
       the verdict is contrary to the manifest weight of the evidence. Lawlor v. North American Corp.
       of Illinois, 2012 IL 112530, ¶ 38. A verdict is against the manifest weight of the evidence only
       where the opposite result is clearly evident or where the jury’s findings are unreasonable,
       arbitrary, and not based upon any of the evidence. Id. We will not reverse the trial court’s
       ruling on a motion for a new trial unless it is affirmatively shown that the trial court abused its
       discretion. Id.
¶ 10        Plaintiff argues that the defendant “blatantly ignored” the court’s order regarding the use of
       photographs at trial and that he was denied his right to a fair trial by defendant’s repeated
       attempts to use this inadmissible evidence at trial. Although the jury did not see the
       photographs, plaintiff claims that he was prejudiced when the jury was left to speculate and
       was never able to view or appreciate why the photographs were not disclosed.
¶ 11        Once a motion in limine is granted, the movant must be vigilant and object when evidence
       is presented which may violate the order. Compton v. Ubilluz, 353 Ill. App. 3d 863, 871
       (2004). The purpose of an order in limine is to exclude inadmissible evidence. Id. A new trial
       may be granted for a violation of an in limine order only if the order’s prohibitions are specific,
       the violation is clear, and the violation deprived the moving party a fair trial. Id.
¶ 12        Here, plaintiff failed to establish that defense counsel violated the trial court’s order.
       Plaintiff argues that the trial court prohibited the use of photographs entirely at trial. This is
       simply incorrect. The trial court’s order did not completely prohibit the use of photographs but
       limited their use to show the “point of impact” and not the extent of the damage of the vehicles
       involved in the accident. When determining the scope of the motion in limine at issue, the trial
       court explained that certain photographs could be used to reference the point of impact and that
       if these photographs were to be used for this purpose, the court would rule on their
       admissibility at that time. This is exactly what happened at trial. Defense counsel attempted to
       show the photographs to defendant to discuss the point of impact. Plaintiff objected. Defendant
       showed the court the photographs and argued that they should be admitted into evidence, as the
       force of contact was disputed and described by plaintiff through his own testimony, his
       physician’s testimony, and in the opening statement as “violent.” Defense counsel indicated
       that he wanted to use the photographs to remind the jury that defendant’s vehicle never
       contacted plaintiff’s vehicle but, rather, a vehicle in between the two cars.
¶ 13        The trial court evaluated the photographs and the arguments presented and did not allow
       any photographs to be viewed by the jury. The jury did not see the photographs as they were
       never entered into evidence. Based on the record and the scope of the motion in limine, we
       cannot say that defendant’s counsel’s actions violated the trial court’s order. To the contrary,
       just as the trial court noted in denying plaintiff’s motion for a new trial, defense counsel’s
       actions followed the procedure the court had previously established when granting plaintiff’s
       motion in limine.
¶ 14        Plaintiff contends that even if the jury did not see the photographs, he was prejudiced
       because the jury heard plaintiff’s objection to the photographs, observed a sidebar about the
       photographs, and was left to speculate why they were not disclosed. Plaintiff’s allegations lack
       any type of support. There is no evidence that the jury saw the photographs or that the jury

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       heard or understood the nature of the conversations between the trial court and the attorneys
       regarding this topic. Moreover, plaintiff failed to present any evidence that the jury’s
       awareness of the existence of the photographs prejudiced him. Bare speculation and
       unsupported presumptions are insufficient to establish that plaintiff was prejudiced. See
       Anderson v. Smith, 91 Ill. App. 3d 938, 941 (1980).
¶ 15        Plaintiff also claims that he was prejudiced by defendant’s conscious violation of the order
       in limine when defendant mentioned the photographs during plaintiff’s testimony at trial.
       Specifically, plaintiff points out that during his direct examination, defendant’s counsel
       improperly remarked, “[j]udge if he wants to describe the damage, I’m fine. I have these
       pictures.” The relevant context to the remark was as follows:
                     “Q. Okay. And prior to getting in your car to where—before the state trooper
                arrived while you were at the car behind you, were you able to observe the damage to
                the white Range Rover?
                     A. Yes.
                     Q. Can you describe the damage?
                     THE COURT: We went through this before.
                     MR. SALVATO [plaintiff’s attorney]: Okay. Could I—
                     MR. BEATEN [defense attorney]: Judge if he wants to describe the damage, I’m
                fine. I have these pictures.
                     MR. SALVATO: I’ll withdraw the question. The court has already instructed us on
                just the point of impact.”
¶ 16        Initially, we note that plaintiff did not object when defendant’s counsel mentioned the
       photographs, failing to properly preserve the error for review. In addition, the record indicates
       that defendant’s counsel mentioned the photographs only after plaintiff’s counsel asked
       plaintiff to describe the damage at the scene, knowing that the trial court specifically prohibited
       any evidence that would depict the damages incurred by the vehicles. It is well established that
       counsel cannot complain about an error he himself invited. Clemons v. Alton & Southern R.R.
       Co., 56 Ill. App. 3d 328, 335 (1977). Since the comment was elicited because of plaintiff’s own
       improper argument, it is clear that plaintiff invited the remark. Defendant’s counsel mentioned
       the photographs to rebut plaintiff’s testimony and ultimately plaintiff’s counsel withdrew his
       question. Accordingly, since plaintiff invited defendant’s remark about the photographs, the
       trial court did not abuse its discretion when it rejected plaintiff’s motion for a new trial on this
       basis.
¶ 17        Plaintiff claims next that the trial court erred in denying his motion for a new trial arguing
       that the jury’s verdict was against the manifest weight of the evidence. Plaintiff contends that
       he presented the testimony of multiple board-certified expert witnesses that established the
       extent of his injuries and that defendant’s negligent driving was the proximate cause of his
       injuries. Meanwhile, plaintiff argues defendant presented no experts and no evidence to rebut
       the evidence presented at trial, and as such, the verdict was against the manifest weight of the
       evidence. “A verdict is against the manifest weight of the evidence where the opposite result is
       clearly evident or where the findings of the jury are unreasonable, arbitrary, and not based on
       the evidence.” Jackson v. Seib, 372 Ill. App. 3d 1061, 1069 (2007).
¶ 18        After carefully reviewing the evidence adduced at the trial, we cannot find that the findings
       of the jury were unreasonable, arbitrary, and not based on the evidence. The jury in this case

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       heard conflicting testimony regarding what injuries, if any, plaintiff sustained as a result of the
       accident in question and whether defendant’s negligent driving was the proximate cause of
       those injuries. Plaintiff testified that he suffered extensive injuries as a result of the accident,
       while defendant and the investigator at the scene both stated that plaintiff was in no observable
       pain or discomfort and that he made no complaints to them of his left foot or ankle discomfort
       at the accident scene. On cross-examination, plaintiff admitted that he did not strike any part of
       his ankle on any portions of the interior of the car during the accident. He also admitted that
       prior to the accident he regularly played basketball as part of a team.
¶ 19        The question of whom to believe and what weight to give to all the evidence is a decision
       for the trier of fact, whose determinations should not be upset on review unless manifestly
       erroneous. See id. It is the province of the jury to resolve conflicts in the evidence, to pass upon
       the credibility of the witnesses, and to decide the weight to be given to the witnesses’
       testimony. Id. Since the witnesses’ testimony and the evidence in the case conflicted, we
       cannot say that the verdict was manifestly erroneous.
¶ 20        Moreover, although plaintiff contends that the testimony of his medical experts proved that
       plaintiff’s injuries were proximately caused by defendant’s driving, he failed to include on
       appeal any evidentiary trial testimony of his treating physicians. The appellant has the burden
       to present a sufficiently complete record to support a claim of error on appeal. Webster v.
       Hartman, 195 Ill. 2d 426, 432 (2001) (citing Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92
       (1984)). Indeed, “[f]rom the very nature of an appeal it is evident that the court of review must
       have before it the record to review in order to determine whether there was the error claimed by
       the appellant.” Foutch, 99 Ill. 2d at 391. Where the issue on appeal relates to the conduct of a
       hearing or proceeding, this issue is not subject to review absent a report or record of the
       proceeding. Webster, 195 Ill. 2d at 432. Without such a record, it is presumed that the order
       entered by the trial court is in conformity with the law and has a sufficient factual basis.
       Foutch, 99 Ill. 2d at 392. “Any doubts which may arise from the incompleteness of the record
       will be resolved against the appellant.” Id.
¶ 21        Here, plaintiff failed to include in the record before us all of the relevant evidence that was
       actually presented to the jury. Without a transcript of the experts’ trial testimony, there is no
       adequate basis for concluding the trial court abused its discretion in denying plaintiff’s motion
       for a new trial. See id. We presume the order entered by the trial court was in conformity with
       the law and had a sufficient factual basis. Any doubts arising from the incompleteness of the
       record are resolved against plaintiff, the appellant in this case. Therefore, plaintiff’s claim that
       the verdict was against the manifest weight of the evidence fails on this basis as well. We
       emphasize that even if plaintiff presented the testimony of his treating physicians on appeal,
       we would still find, as discussed above, that the verdict was not against the manifest weight of
       the evidence. Plaintiff’s evidence at trial was vigorously contradicted by defendant and
       questions of whom to believe and what weight to be given to all the evidence are to be resolved
       by the trier of fact. Here, the jury returned a verdict in favor of defendant. Its determination was
       not manifestly erroneous.
¶ 22        Finally, plaintiff contends that the trial court erred when denying his posttrial motion when
       the court failed to properly instruct the jury not to engage in its own independent investigation
       until immediately before jury deliberations. During trial, plaintiff was facing pending criminal
       charges in Indiana, and since his case was newsworthy in multiple media outlets in Illinois and
       Indiana, plaintiff maintains the jurors were influenced by this information. Plaintiff claims that

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       the jurors reached a unanimous verdict for defendant due to this extrinsic information, as
       reflected by the fact that they reached their verdict in less than 40 minutes, and no juror was
       willing to talk after trial.
¶ 23       Plaintiff relies on People v. Holmes, 69 Ill. 2d 507 (1978) in support of his claim that he
       was prejudiced by the jury’s misconduct. In Holmes, the evidence established that several
       jurors went to a shoe store to investigate shoe heels after hearing police testimony regarding
       the heel print at the crime scene by defendant. Id. at 509-10. Our supreme court reversed the
       defendant’s conviction and held that a prejudicial error occurred as the extraneous information
       was essential to the issue of the defendant’s identification. Id. at 509.
¶ 24       However, plaintiff’s reliance on Holmes is misplaced. Unlike Holmes, where the evidence
       indicated that the jury actually engaged in improper investigation, here, there is no evidence
       whatsoever of the jury’s independent investigation. Plaintiff’s argument is nothing but pure
       speculation that the jurors were aware of his pending criminal charges in a different state or
       that the alleged extraneous investigation by the jurors influenced their verdict in the instant
       case. Furthermore, contrary to plaintiff’s argument, the record reflects that the trial court
       properly instructed the jury at the start of deliberation not to discuss the case with anyone until
       the verdict was reached and not to use the Internet in any way to research any of the matters.
       Also, during the jury selection process, the trial court questioned every potential juror about
       any prior knowledge and association with the parties in the case. All the jurors indicated that
       they had no knowledge or association with the parties. Based on this record we cannot say that
       the trial court abused its discretion in denying plaintiff’s motion for a new trial. Having found
       no basis for plaintiff’s claim that the jury engaged in misconduct we similarly deny plaintiff’s
       request to remand the case to the circuit court for an examination under oath of the jurors.

¶ 25                                      CONCLUSION
¶ 26      Based on the foregoing, we affirm the circuit court’s judgment.

¶ 27      Affirmed.




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