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Bulger v. Chicago Transit Authority12/12/2003
psey testified that in "charging" Williams and sending him for retraining, the purpose was not to assess fault or determine who caused the accident. Given these circumstances, for the reasons previously discussed, we find Pearl factually distinguishable and not instructive.
These factual differences are significant since Pearl brushed aside any concern that allowing evidence of post-accident remedial measures could discourage the undertaking of safety measures because such measures were undertaken automatically as a matter of CTA policy. In the factual context of the instant case we do not dismiss such concern. Internal safety guidelines can be amended or repealed. Thus, the public policy of not discouraging the undertaking of safety measures is promoted by prohibiting evidence of post-accident remedial measures as proof of negligence.
We additionally find the public policy discussion in Pearl incomplete. We note that Pearl's dicta recognized one public policy reason for the post-accident remedial measure exclusionary rule; namely, that parties should not be discouraged from undertaking safety measures. However, Pearl failed to consider the other equally important reasons for excluding evidence of post-accident remedial measures, including the fact that such measures are not considered sufficiently reliable to be probative of negligence because later carefulness may simply be an attempt to exercise the highest standard of care, and the concern that the trier of fact may view post-accident remedial measures as an admission of negligence. Herzog, 167 Ill. 2d at 300.
We are mindful that factual "time of the accident"evidence and evidence of post-accident remedial measures are distinct types of evidence. As noted by the CTA and Williams in their brief:
"The CTA agrees that factual evidence about an accident obtained through a bus supervisor's accident investigation can be properly introduced as trial evidence. * For example, the general information about the accident set forth in the `Summary of Facts' section of Lipsey's report typifies the type of information that is admissible. Likewise, for example, information obtained by CTA personnel during post-accident investigations about the speed or resting point of vehicles, the point of impact and the like is admissible and not generally shielded by the exclusion of evidence of post-accident remedial measures."
In the context of the instant case, the CTA's investigative opinions, conclusions, and follow-up actions are inadmissible as post-accident remedial measures. However, this opinion should not be interpreted as precluding the admission of factual "time of the accident" evidence. We limit our holding, in the context of the instant case, to preclude admission of evidence of post-accident remedial measures to prove negligence. See Herzog, 167 Ill. 2d at 300.
JURY INSTRUCTIONS
Defendants contend that the CTA's internal rules lack the force of law and that therefore, violation of the rules should not have been incorporated into the jury instructions as evidence of negligence. The instructions in question are plaintiffs' instructions 24A, 25, and 25A, all of which were modeled after Illinois Pattern Jury Instructions, Civil, No. 60.01 (2000) (hereinafter IPI Civil (2000) No. 60.01). A generic IPI Civil (2000) No. 60.01 instruction informs the jury that a statute, ordinance, or administrative regulation was "in force at the time of the occurrence" and the jury may consider its violation as evidence of negligence. IPI Civil (2000) No. 60.01 provides as follows, including the bracketed material:
"There was in force in the [State of
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