Illinois Appellate Court Upholds Injured Delivery Driver’s $489,000 Jury Verdict on Credibility Issues

Robert Jones was injured while he was delivering supplies to a Pizza Hut restaurant in South Elgin, Ill. Jones was struck by the pizza delivery car driven by defendant Bibiana Bojorge in the parking lot of the pizza restaurant. Jones injured his knee. The jury’s verdict of $489,364.05, which was reduced by 5% for contributory negligence of Mr. Jones, was appealed by the defendants Bojorge and Pizza Hut.

The issue on appeal was whether the trial judge was in error in admitting into evidence the plaintiff’s prior consistent statement to his wife that he was hit by defendant’s car. The defendant had made  Jones’s credibility the centerpiece of their defense at trial. The plaintiff’s prior consistent statement was admissible to rebut the charge that plaintiff’s prior testimony was a fabrication, especially when the evidence included defendant’s written statement in which she admitted that she “hit the delivery guy.”  The appellate court affirmed the trial judge’s order and the jury verdict stands.

The facts were that the plaintiff  Jones, a delivery truck driver working at a Pizza Hut location, claimed that the defendant Bojorge, a pizza delivery driver, struck him with a car as he was moving boxes of dough on his dolly, injuring his knee. 

At the trial, defendant Bojorge alleged that it was Jones who ran into her car with his dolly, causing only a scratch on his body and on her car.  Jones offered defendant’s written statement in which she admitted that she “hit the delivery guy” while leaving the parking lot.

In the meantime, the defendant persistently sought to portray Jones as an inveterate liar who repeatedly misled his physicians.  Jones’s evidence included a prior consistent statement in which he told his wife he had been hit by “the delivery lady.”

After the trial, the jury returned a net verdict after a 5% reduction for $489,364.05.  The gross verdict was $515,120.05.

Jones had testified that his 18-wheeler truck was parked at the restaurant’s ramp, and he was in the process of moving boxes of pizza dough when he was hit by Bojorge’s vehicle and knocked to the ground.  He said he remembered Bojorge standing over him and apologizing for hitting him.

Bojorge told the jury that she was familiar with Jones and that he routinely went about his job in a hurried fashion, overloading his dolly to the point that his vision would necessarily be obscured. Bojorge testified that Jones crashed his dolly into her car.  She said that the collision of her dolly and her car caused a number of boxes to fall on her car.She said that Jones showed her a little scratch on his leg that was a product of the collision. Bojorge said that she went on to make a delivery and when she returned about a half hour later, Jones was still there delivering product at the restaurant.

At the jury trial, the defendants focused resolutely on Jones’s credibility making use of several inconsistent statements that plaintiff made to two medical doctors who were treating him. Defense counsel also sought to prove that Jones was lying about the accident itself.

Because the defense maintained that Bojorge never hit Jones with her car and the defendants claimed that Jones lied to his doctors, there were concerns about credibility on both sides. 

On the appeal, the issue was whether the judge was wrong in allowing the wife of the plaintiff to testify that her husband’s prior consistent statement was admissible. The court ruled that it was.Generally, a prior consistent statement is not admissible, since it has the tendency to bolster the credibility of the witness. Moore v. Anchor Organization for Health Maintenance, 284 Ill.App.3d 874, 883 (1996).  The court said that like most rules of evidence, there is an exception to this general rule.  “A prior consistence statement is admissible only to rebut a charge or inference that . . . the witness’s testimony is of recent fabrication, as long as she made the prior statement before the alleged fabrication.”  2 Robert J. Steigmann & Lori A. Nicholson, Illinois Evidence Manual §10:38, at 257 (4th ed 2006). 

In this case, the defendant did not claim that the contested statement was admitted substantively, so the court was left to determine whether it was properly admitted in a rehabilitative fashion, to rebut a charge of recent fabrication. Similarly, defendant does not contend that the statement was inadmissible merely because the wife of the plaintiff testified to its content, as opposed to plaintiff himself. See People v. Graham, 2006 Ill.2d 465, 478 (2003). 

The exception to the prior consistent statement rule is that if the witness’s trial testimony was recently fabricated or that the witness had some motive for testifying falsely, then a prior consistent statement was admissible if it was made before the motive to fabricate arose. 

Because the defendants’ counsel double downed on the credibility of the plaintiff, calling him a liar, the evidence at issue was quite relevant to disprove the defense theory of subsequent perfidy and was fairly well invited by the defendants. Accordingly, the Illinois Appellate Court concluded that the trial judge was well within his discretion in allowing the prior consistent statement since recent fabrication was the gravamen of the defense. When one party relentlessly calls the other a liar, it should not come as a surprise when the aggrieved party is allowed to introduce a single instance where he was, remarkably enough, consistent with both his and his opponent’s original version of the events.

Robert Jones v. Bibiana Bojorge, No. 013 IL App. (1st) 123209 (June 20, 2013).

Kreisman Law Offices has been handling automobile or truck accidents for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Chicago (Sauganash), Chicago (Streeterville), Chicago (Ukrainian Village), Barrington, Chicago Ridge, Crystal Lake, Fox River Grove, Evergreen Park, Frankfurt, Glen Ellyn, Homewood, Geneva, Elgin, Long Grove and Niles, Ill.

Related blog posts:

$1.1 Million Jury Verdict in Effingham County, Illinois, Truck Crash; Reaves v. Kuresevic