Illinois Appellate Court Reverses a Verdict Regarding Admitted Evidence of Misleading Photographs; Johnson v. Bailey

A Will County, Illinois, jury verdict has been reversed by the Illinois Appellate Court for the Third District. In this case, Yvonne Johnson was injured in a Casey’s General Store parking lot when she was struck by a vehicle operated by the defendant, Charles Bailey. At the Bailey deposition, photographs of the parking lot taken by Mr. Bailey were introduced. He had taken the photos using his own vehicle and that of his fiancé’s as props.

At the Johnson deposition, she testified that she had injured her neck, head, shoulders and back in a 2005 fall unrelated to this incident. From that time on, she continued to see a chiropractor who completed her treatment, but he continued to treat her after she was injured in this accident.

Prior to the beginning of the jury trial, Johnson filed a motion seeking an order precluding the photographs of the parking lot outside the Casey’s General Store. Johnson argued that Bailey had not laid a proper foundation for them in his deposition and that they should not be used at trial without laying a proper foundation.

The trial judge found that Bailey could use the photographs if he established foundation. In addition, Johnson moved the trial judge to preclude evidence of any pre-existing injuries, particularly from the 2005 fall.

At the trial, Bailey did use the photographs as intended. Although Johnson agreed that the photographs were fair and accurate representations of the parking lot, she argued that the photographs were inaccurate in terms of the placement of the cars used as props. Bailey admitted that the photos were entered into evidence only as illustrative rather than an accurate placement of the cars.

The trial judge disallowed the use of one of the photographs after it had been shown to the jury. The judge also denied Johnson’s motion for a mistrial based on the showing of that photograph. At the conclusion of the jury trial, the jury found in favor of Bailey; Johnson appealed.

Johnson argued that the trial court erred when it allowed Bailey’s photographs to be admitted. Johnson also argued that the photographs lacked a proper foundation and that Bailey also failed to disclose his “expert” opinions regarding the scene.

As for the admission of photographs, the appellate court relied on the case of Boren v. The BOC Group, Inc. Inasmuch as Bailey did not know the exact location of the Johnson vehicle after the crash, the court found that both of the photographs that were allowed to be seen by the jury were misleading, citing, J.L. Simmons Co. v. Firestone Tire & Rubber Co. A majority of the appellate court (2 of 3), found that Johnson was prejudiced by the photographs showing the vehicles in inaccurate positions.

The majority opinion then took up Johnson’s contention that the trial court was wrong about allowing testimony concerning plaintiff’s pre-existing injury. The court cited Voykin v. Estate of DeBoer to state that evidence of prior injuries is admissible to negate causation, negate or reduce damages or to impeach a witness. However, the majority ruled that the trial court was wrong in allowing testimony concerning Johnson’s pre-existing injury because the chiropractor who testified distinguished between Johnson’s back pain from her cervical injury and the injury she suffered in the car accident that was the subject of this case.

The case was returned to the trial court for further proceedings.

Yvonne Johnson v. Charles Bailey, 2012 IL App (3d) 110016.

Kreisman Law Offices has been handling automobile crashes, truck accidents and personal injury matters for individuals and families for more than 36 years, in and around Chicago, Cook County and its surrounding areas, including, Schaumburg, Mundelein, Bridgeview, Chicago (Rogers Park, Waukegan, Winfield, Morton Grove, Palatine and Palos Heights, Ill.

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