 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Kersey v. Ruch Trucking12/1/2003
61 (1999).
Prior to trial, plaintiff submitted to defendants a request for production of documents. See 166 Ill. 2d R. 214. Relevant here, plaintiff requested the following materials:
"27. Copy of any and all accident reports, including but not limited to reports filled out by Edward D. Lyle and/or employees or agents of Red Arrow or Rush Trucking.
33. Any and all accident reports, investigative reports and inspection reports pertaining to the injuries sustained by any party to the lawsuit, except those documents which fall under the protection of privileges or work product, containing factual material concerning the date of the occurrence which is the subject matter of this lawsuit."
In a letter dated March 10, 1999, defendants responded to plaintiff's inquiries as follows. With respect to inquiry 27, defendants stated, "None other than the statement given by Edward Lyle to his insurance company. Investigation continues." With respect to inquiry 33, defendants stated, "None at present. Investigation continues."
However, at trial, two witnesses testified regarding the existence of an accident-reconstruction report. The following colloquy occurred between plaintiff's counsel and Broughton, the safety supervisor for Rush and Red Arrow at the time of the accident:
"Q. Okay. Now someone for Rush Trucking and Red Arrow Corporation did some reconstruction of the collision back in December of '96; correct?
A. Correct.
Q. Okay. But you never talked to that person; correct?
A. No, sir." In addition, defendant Smith testified:
"Q. Okay. You heard Mr. Broughton testify that in December of 1996 Red Arrow and Rush did a reconstruction of this collision.
A. Yes.
Q. You heard him say that?
A. Yes.
Q. Did you ever see it?
A. Through an advisor, they gave me information in regards to it. I never saw it."
Despite this testimony, defendants claim that no such accident-reconstruction report exists. However, defendants never questioned these two witnesses regarding the report's existence. If the accident-reconstruction report did not exist as defendants claim, it was incumbent upon them to question the witnesses on this matter. Defendants did not do this. Accordingly, we presume that the report exists.
In addition, we find that the foundational requirements for the missing-evidence instruction have been satisfied. First, the testimony suggests that the evidence was under defendants' control and could have been produced by the exercise of reasonable diligence. Second, since the accident- reconstruction report was never produced through discovery, defendant cannot claim that it was equally available to plaintiff. See Jenkins, 288 Ill. App. 3d at 832. Third, a reasonably prudent person under the same or similar circumstances would have offered the evidence if he believed it to be favorable to him. Finally, although defendants offered a reason for failing to produce the accident- reconstruction report, i.e., the report was nonexistent, the evidence at trial contradicted defendants' claim. Accordingly, we conclude that the trial court abused its discretion in failing to give the missing-evidence instruction. See Jenkins, 288 Ill. App. 3d at 832 (holding that in personal injury action the plaintiff's failure to produce photographs of alleged injuries warranted missing-evidence instruction despite the plaintiff's claim that photographs had been lost); Dugan, 175 Ill. App. 3d at 1094 (holding that in medical malpractice action the defendant's failure to introduce the plaintiff's X rays warranted missing-evide
Page 1 2 3 4 5 6 7 8 9 10 11 Illinois Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|