Niewold v. Fry

• Decision Date: 29 July 1999
• Docket Number: No. 2-98-1008.,2-98-1008.
• Citation: 714 N.E.2d 1082,306 Ill. App.3d 735,239 Ill.Dec. 785
• Parties: Cary L. NIEWOLD et al., Plaintiffs-Appellants, v. Alan L. FRY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

714 N.E.2d 1082

306 Ill. App.3d 735

239 Ill.Dec. 785

Cary L. NIEWOLD et al., Plaintiffs-Appellants, v. Alan L. FRY, Defendant-Appellee.

No. 2-98-1008.

Appellate Court of Illinois, Second District.

July 29, 1999.

Thomas W. Duda, Arlington Heights, for Barbara Niewold and Cary L. Niewold.

Michael Resis, Dennis J. Cotter, O'Hagan, Smith & Amundsen, LLC, Chicago, for Alan L. Fry.

Justice THOMAS delivered the opinion of the court:

Plaintiffs, Cary L. Niewold and Barbara Niewold, filed a two-count complaint against defendant, Alan L. Fry, alleging that defendant was negligent in the operation of his motor vehicle. Following a jury trial, the jury returned a verdict and a special interrogatory in favor of defendant and against plaintiffs. Plaintiffs now timely appeal.

The instant action arose out of a head-on collision between plaintiffs' vehicle and defendant's vehicle on November 24, 1992. Defendant was driving eastbound when his vehicle crossed the center lane marker and hit plaintiffs' vehicle. Plaintiff Cary Niewold claimed that defendant was negligent and that he suffered personal injuries as a proximate result of defendant's negligence. Plaintiff Barbara Niewold claimed a loss of consortium and society as a proximate result of defendant's negligence. Defendant claimed that a deer had jumped in front of his vehicle and that the subsequent collision with the deer caused his car to cross the center lane and hit plaintiffs' car. Defendant denied all allegations of negligence or wrongdoing.

As a preliminary matter, we note that defendant contends that plaintiffs' appellate brief violates Illinois Supreme Court Rule 341(e)(3) (177 Ill.2d R. 341(e)(3)) because plaintiffs have failed to include a concise statement of the applicable standard of review for each issue. We agree and further observe that plaintiffs' appellate brief also violates Illinois Supreme Court Rule 341(e)(6) (177 Ill.2d R. 341(e)(6)). Rule 341(e)(6) provides that the statement of facts in an appellant's brief "shall contain the facts necessary to an understanding of the case, stated accurately and fairly without argument or comment, and with appropriate reference to the pages of the record on appeal." 177 Ill.2d R. 341(e)(6). The statement of facts in plaintiffs' brief, however, contains a summary of the testimony only of defendant and of plaintiffs' expert, completely omitting any reference to the testimony of eight other witnesses that was relevant to the issues on appeal.

The rules of procedure concerning appellate briefs are rules and not mere suggestions. Ryan v. Katz, 234 Ill.App.3d 536, 537, 175 Ill.Dec. 748, 600 N.E.2d 1206 (1992). It is within this court's discretion to strike the plaintiffs' brief and dismiss the appeal for failure to comply with Rule 341 (177 Ill.2d R. 341). Ryan, 234 Ill.App.3d at 537, 175 Ill. Dec. 748, 600 N.E.2d 1206. However, because defendant has provided a summary of the relevant testimony in his response brief and because the record is not long and the issues are simple, we will not penalize the plaintiffs so severely for the lapses of their counsel. See Ryan, 234 Ill.App.3d at 537, 175 Ill.Dec. 748, 600 N.E.2d 1206.

The relevant testimony at trial was as follows. Curt Mathey, one of plaintiff Cary Niewold's coworkers, testified that on November 24, 1992, he was a passenger in Cary Niewold's van and was seated in the front passenger seat. Just before the collision with defendant's car, Mathey noticed defendant's car approaching and saw the car's wheels go into Niewold's lane and then go back. As Niewold's van got closer to defendant's car, Mathey noticed a deer in the middle of defendant's lane and saw defendant's car turn into their lane. When Niewold's van collided with defendant's car, the van veered into a ditch and hit an embankment. Mathey testified that defendant's car did not hit the deer.

Jacob Sparks testified that he also is plaintiff Cary Niewold's coworker and was driving with plaintiff and Mathey when Niewold's van collided with defendant's car on November 24, 1992. Sparks was seated in the middle bench seat of the van. Sparks said that prior to the collision he was looking out the windshield and saw headlights coming toward Niewold's car. He also saw at least two deer along the road and saw the deer make a movement toward the road. Sparks then saw headlights come at Niewold's car from the oncoming traffic, followed by the collision. Sparks did not see whether the oncoming car hit any of the deer. Sparks said that after the collision he got out of the van and saw two deer bounding over the embankment. Sparks did not notice that either of the animals showed any signs of injury but said that he did not pay close attention.

Douglas Pann testified that on November 24, 1992, he was employed as a patrol officer by the Boone County sheriff's department. On that date, Pann investigated the accident between plaintiffs' and defendant's vehicles. Pann said that, during his investigation of the accident, he searched the north and south sides of the road with a flashlight to try to find the remains of any animals, particularly any deer, but did not find any.

On cross-examination, Pann said that his report on the accident reflected that defendant told Pann that he had been driving his vehicle eastbound on Business Route 20 when two deer ran into his path. Defendant said that he hit one of the deer, which forced his car into the westbound lane of traffic where the accident occurred. Pann also testified that at the scene of the accident he observed skid marks that started in the eastbound lane of traffic. Pann stated that nothing in his investigation ruled out the possibility that defendant's vehicle had struck a deer before entering the westbound lane of traffic. Pann's report also noted that Pann had spoken with plaintiff Cary Niewold at the site of the accident and that Niewold told him that there had been deer in the roadway, although Niewold was not sure if defendant's vehicle had hit the deer.

Defendant then testified as an adverse witness that he was driving on eastbound Business Route 20 at around 55 miles per hour when he noticed two deer on the shoulder of the road. When defendant noticed the deer, he pressed the brake to slow his car down and moved his car closer to the center line so that the deer had more room on the shoulder. Defendant said that one of the deer then jumped and struck his car on the right front passenger side. Defendant was aware that there were cars coming in the opposite direction.

In response to questioning by his attorney, defendant testified that, when he saw the deer move from the shoulder of the road, he pressed the brake as hard as he could and locked the brakes. He said that he not only felt the impact with the deer, but he also heard the impact. At the same time, the steering wheel jerked violently to the left. Defendant kept his foot on the brake and the car continued to slide, going into a skid until it hit plaintiffs' vehicle.

Plaintiff Cary Niewold testified that as he was driving westbound on Business Route 20 with Mathey and Sparks on November 24, 1992, he noticed two cars approaching from the west. Niewold had taken his foot off the accelerator because he was approaching his destination. As they passed Anderson Road, the front car swerved into Niewold's lane and hit his van. Niewold said that he did not remember what happened after that until he awoke in St. Anthony Hospital. In contrast to Pann's testimony that his report contained a statement from Niewold that there had been deer in the road, Niewold testified that he did not see any deer that night.

Plaintiffs' expert witness, Kirk Rosenhan, testified that he is an engineer employed part time by Mississippi State University and part time by Oktibbeha County, Mississippi, and he also does private consulting. Rosenhan said that for a number of years he has done accident reconstruction. Rosenhan said he had worked with plaintiffs' attorney on two previous cases involving personal injuries. In rendering his opinion in the case, Rosenhan reviewed the accident report, portions of defendant's deposition, and photographs of the two vehicles involved in the accident. Rosenhan's opinion, to a reasonable degree of engineering certainty, is that a lateral collision with a deer would not have caused defendant's vehicle to go over the center line into oncoming traffic. Rosenhan based his opinion on the fact that the pavement was dry, defendant's car was a fairly heavy vehicle and was traveling around 50 miles per hour, and the deer was up to 200 pounds. Rosenhan said that, even if a collision with the deer had occurred, under basic physics principles the collision would not have been sufficient to push defendant's car over into the other lane.

On cross-examination, Rosenhan said that his opinion was that it must have been driver input, including turning the wheel, that caused defendant's car to cross into oncoming traffic. Rosenhan acknowledged that his primary area of experience is in fire science engineering and fire protection. Prior to this case, Rosenhan had never been retained to render an opinion regarding a vehicular collision with a deer, although he had testified in cases involving collisions with cows, horses, smaller animals, and humans. Rosenhan also said that this was the first case in which he had been asked to testify concerning whether a collision with an animal caused a vehicle to deviate from its course of travel. Rosenhan then agreed that a large deer, if it was going fast enough and hit defendant's car in the right place, potentially could have exerted enough force to cause defendant's vehicle to travel into the oncoming lane of traffic. On redirect examination, Rosenhan explained that to impact defendant's vehicle the deer would have to weigh in excess of 300 pounds and would have to be traveling in excess of 20 miles per hour.

Following the testimony of Rosenhan, defendant presented...