Carroll v. Preston Trucking Co., Inc.

• Decision Date: 15 June 2004
• Docket Number: No. 1-02-3223, No. 1-02-3604.
• Citation: 349 Ill.App.3d 562,812 N.E.2d 431,285 Ill.Dec. 611
• Parties: John CARROLL and Georgene Carroll, Plaintiffs-Appellees, v. PRESTON TRUCKING COMPANY, INC., and Ron Trieb, Defendants-Appellants and Third-Party Plaintiffs-Appellants (A and G Electrical Contractors, Inc., and F.H. Paschen Group, Inc., Third-Party Defendants-Appellees).
• Court: United States Appellate Court of Illinois

812 N.E.2d 431

349 Ill.App.3d 562

285 Ill.Dec. 611

John CARROLL and Georgene Carroll, Plaintiffs-Appellees, v. PRESTON TRUCKING COMPANY, INC., and Ron Trieb, Defendants-Appellants and Third-Party Plaintiffs-Appellants (A and G Electrical Contractors, Inc., and F.H. Paschen Group, Inc., Third-Party Defendants-Appellees).

Nos. 1-02-3223, 1-02-3604.

Appellate Court of Illinois, First District, Second Division.

June 15, 2004.

Rehearing Denied July 21, 2004.

Clausen Miller P.C., Chicago (James T. Ferrini, Edward M. Kay, Paul V. Esposito and Agelo L. Reppas, of counsel), for Appellants.

Louis Cairo and Michael D. Fisher, of Goldberg, Weisman & Cairo, Ltd.; David A. Novoselsky and Leslie J. Rosen, of Novoselsky Law Offices; Harlene G. Matyas, of Meachum Spahr Cossi Postel Zenz & Matyas; and Gary T. Jansen and Misti H. Floyd, of Cremer, Kopon, Shaughnessy & Spina, Chicago, for Appellees.

Justice CAHILL delivered the opinion of the court:

We review a substantial jury verdict in which one of the issues is whether a defendant may attack a verdict through juror affidavits that establish that the jury used a method that yielded a quotient verdict. We affirm.

Defendants Preston Trucking Company, Inc., and Ron Trieb appeal a $3,169,008 jury award for plaintiff John Carroll in a personal injury action. Defendants argue: (1) the trial court abused its discretion by excluding videotape evidence offered to show the nature and extent of plaintiff's injuries; (2) the trial court erred in striking juror affidavits supporting defendants' theory that the jury reached its verdict through an impermissible quotient process; and (3) the verdict was the result of passion and prejudice.

On November 22, 1996, plaintiff was employed as an electrician by A & G Electrical Contractors, Inc., and assigned to work at the Sugar House Project located at 358 West Harrison in Chicago, Illinois. F.H. Paschen Group, Inc., was the general contractor for the project. A & G was hired to install new switch gears, panels and lights at the project. A switch gear is a piece of power equipment that acts as a main distribution center for electricity.

In the afternoon of November 22, plaintiff and his coworkers were asked to unload two switch gears from a truck owned by Preston Trucking and driven by Trieb, an employee of Preston Trucking. When plaintiff and his coworkers arrived at the loading dock, they decided the switch gears, which weighed approximately 2,347 pounds collectively, were too heavy to unload at that particular dock. Trieb agreed to drive the truck to a lower dock. Plaintiff rode in the back of the truck with the switch gears. As the truck crossed a bridge on an incline, the larger switch gear fell on top of plaintiff, injuring his left knee.

Plaintiff was taken to the hospital, where he was diagnosed with ligament damage. Plaintiff underwent several surgeries, including knee replacement surgery. Although the surgeries were successful and later examinations showed plaintiff had recovered from 0 to 130 degrees of motion, plaintiff continued to experience pain and swelling in his left knee. Plaintiff was prescribed compression stockings to alleviate the swelling. Plaintiff's doctor said the injury was permanent. Plaintiff, who was 5 feet 9 inches and approximately 300 pounds at the time of his accident, also was advised to lose weight. Plaintiff was told he could return to light-duty work, preferably in a job that did not require standing for long periods.

On March 14, 1997, plaintiff filed a negligence action against defendants that included a spouse's claim for loss of consortium. Defendants brought a third-party action against A & G and Paschen for contribution. A & G and Paschen were dismissed from this appeal and defendants' claims against them are not at issue.

During discovery, defendants served A & G with a notice to produce all relevant photographs and video surveillance. After discovery was completed but before trial, A & G produced a surveillance videotape of plaintiff taken in the summer of 1999. A & G's worker's compensation carrier had hired a company to conduct the surveillance in connection to a related worker's compensation claim. The videotape spans several days and appears to have been edited. The part at issue was recorded in the late morning and afternoon hours of July 1, 1999. The recording shows plaintiff in the front and back yards of his home, walking without the assistance of a cane, moving a ladder, bending over, operating a chain saw, using his weight as leverage to remove a tree stump, walking up and down stairs, swinging an ax, picking up and carrying tree branches and pushing a wheelbarrow. Plaintiff's wife, nephew and niece are also shown in the video. The date and times appear in the recording.

Plaintiff moved to exclude the videotape. He argued it was produced after the discovery deadline and defendants could not establish an adequate foundation because the surveillance company went out of business and the cameraman could not be identified. Defendants responded that A & G's failure to timely disclose the tape is not a ground for exclusion because of the prejudice defendants would suffer. Defendants also argued they could establish a foundation for the tape through plaintiff's testimony. The trial court granted plaintiff's motion to exclude the videotape. The court agreed with plaintiff that defendants could not establish an adequate foundation. Defendants again sought to introduce the videotape at trial to impeach plaintiff. The court denied defendants' request.

On February 26, 2002, the jury returned a verdict in favor of plaintiff for $3,169,008 and for plaintiff's wife in the amount of $124,500. Judgment on the award was entered February 27, 2002. On November 25, 2002, the trial court entered an order granting in part plaintiff's petition for costs under section 5-108 of the Code of Civil Procedure (735 ILCS 5/5-108 (West 1996)).

Defendants moved for a new trial, arguing the jury reached its verdict by an impermissible quotient method. Defendants submitted three juror affidavits in support of their theory. Plaintiff moved to strike the affidavits on the ground that they revealed the process and methodology of jury deliberations. The trial court granted plaintiff's motion to strike and denied defendants' motion for a new trial.

Defendants have filed two notices of appeal, Nos. 1-02-3223 and 1-02-3604. The notices are identical with the exception that No. 1-02-3604 includes an appeal from the November 25, 2002, order granting in part plaintiff's petition for costs. The appeals have been consolidated. The consolidated brief filed by defendants does not challenge the November 25, 2002, order. The arguments raised by defendants include whether: (1) the trial court abused its discretion in excluding the videotape; (2) the trial court erred in striking the juror affidavits and denying defendants' motion for a new trial; and (3) the verdict was excessive and based on passion and prejudice, requiring remittitur or a new trial on damages.

We first look at the trial court's exclusion of the videotape evidence. Admission of a videotape into evidence is within the discretion of the trial court and will not be disturbed absent an abuse of discretion. People ex rel. Sherman v. Cryns, 203 Ill.2d 264, 284, 271 Ill.Dec. 881, 786 N.E.2d 139 (2003).

Defendants argue excluding the videotape was an improper sanction for a discovery rule violation under Supreme Court Rule 219(c) (166 Ill.2d R. 219(c)). But as plaintiff points out, there is nothing in the record to suggest that the trial court decision to exclude the videotape was punitive in nature or made in reliance on Rule 219(c). Rather, the record shows the trial court relied on its belief that the videotape presented a foundational hurdle that defendants could not overcome.

A videotape recording may be introduced as demonstrative evidence if it is properly authenticated and relevant to a particular issue in the case. Cryns, 203 Ill.2d at 283, 271 Ill.Dec. 881, 786 N.E.2d 139. To establish authenticity, a foundation must be laid by someone having personal knowledge of the filmed object. Cryns, 203 Ill.2d at 283-84, 271 Ill.Dec. 881, 786 N.E.2d 139. The foundation may be established through testimony of a competent witness who has sufficient knowledge to testify that the videotape accurately represents what it purports to show. Cryns, 203 Ill.2d at 284, 271 Ill.Dec. 881, 786 N.E.2d 139.

Plaintiff argues the trial court correctly excluded the videotape because defendants did not offer foundation evidence from the cameraman. We disagree. The cameraman is not necessary where a foundation can be laid by another competent witness who has sufficient knowledge to testify that the videotape fully represents what it purports to show. People ex rel. Sherman v. Cryns, 327 Ill.App.3d 753, 760, 261 Ill.Dec. 655, 763 N.E.2d 904 (2002), aff'd 203 Ill.2d 264, 271 Ill.Dec. 881, 786 N.E.2d 139; Missouri Portland Cement Co. v. United Cement, Lime, Gypsum & Allied Workers International Union, Division of Boilermakers, AFL-CIO, Local No. 438, 145 Ill.App.3d 1023, 1027, 99 Ill.Dec. 796, 496 N.E.2d 489 (1986). Because plaintiff was shown in the videotape doing the various tasks alleged, he qualifies as a competent witness with sufficient knowledge to testify that the videotape fully represents what it purports to show. We also note that plaintiff's wife, nephew and niece, who were also in the film, could provide competent foundational testimony sufficient for admission of the videotape into evidence.

We believe, however, that the videotape was properly excluded on relevance grounds. See Hawkes v. Casino Queen, Inc., 336 Ill.App.3d 994, 1005, 271 Ill.Dec. 575, 785 N.E.2d 507 (2003) (reviewing court may affirm trial court order admitting or excluding evidence on any ground that appears in the record). A videotape is relevant as long as its probative value is not substantially...