2024 IL App (3d) 230170
Opinion filed December 3, 2024
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2024
DUSTIN T. CAPSEL, ) Appeal from the Circuit Court
) of the 13th Judicial Circuit,
Plaintiff-Appellant, ) Grundy County, Illinois.
)
v. ) Appeal No. 3-23-0170
) Circuit No. 16-L-51
REBEKAH J. BURWELL, )
) The Honorable
Defendant-Appellee. ) Scott M. Belt,
) Judge, presiding.
____________________________________________________________________________
PRESIDING JUSTICE McDADE delivered the judgment of the court, with opinion.
Justices Albrecht and Davenport concurred in the judgment and opinion.
____________________________________________________________________________
OPINION
¶1 Plaintiff, Dustin T. Capsel, brought a negligence action in the circuit court of Grundy
County to recover damages for personal injuries sustained in an automobile collision involving
defendant, Rebekah J. Burwell. The matter later proceeded to trial, at the conclusion of which the
jury returned a verdict in favor of defendant. Judgment was entered on the verdict, and plaintiff
appeals on the grounds that the circuit court erred in admitting hearsay statements offered through
the testimony of a responding officer and by denying his motions for a directed verdict, a new trial,
and judgment notwithstanding the verdict. For the following reasons, we vacate the judgment and
remand for a new trial.
¶2 I. BACKGROUND
¶3 A. Undisputed Facts
¶4 Certain facts are undisputed in this case. On July 3, 2016, plaintiff and six of his family
members were traveling along Interstate 80 when their vehicle, which was owned and being driven
by plaintiff’s grandmother, Beverly Rodriguez, was rear-ended by one driven by defendant.
Rodriguez’s vehicle was pushed off the highway and overturned multiple times. Plaintiff sustained
several significant injuries, including scalp degloving, a comminuted tibia and fibula, and long-
term brain injury. Defendant’s vehicle was the only one that contacted Rodriguez’s vehicle during
the collision.
¶5 Trooper Thomas Vodicka responded to the scene of the collision and spoke to some of the
occupants of Rodriguez’s vehicle and defendant. Vodicka prepared an Illinois Traffic Crash Report
(Report) and issued defendant a ticket for failure to reduce speed to avoid a collision, to which she
later pleaded guilty.
¶6 B. Pretrial Proceedings
¶7 Plaintiff filed his complaint for negligence on November 10, 2016, and discovery later
ensued. In answer to plaintiff’s requests to admit, defendant admitted that plaintiff was injured in
the collision between her vehicle and Rodriguez’s vehicle.
¶8 Plaintiff also filed numerous motions in limine, one of which sought to bar Vodicka from
testifying that, leading up to the collision, an unidentified truck was driving recklessly along
Interstate 80 and cut in front of Rodriguez’s vehicle, causing Rodriguez to abruptly brake. Plaintiff
argued that this testimony should be barred partly because, during his deposition, Vodicka testified
that he did not recall speaking to either party. Nor did he remember the specific sources of the
information contained in the Report, including the statements therein regarding the unidentified
2
truck. Plaintiff argued that Vodicka’s lack of recollection precluded his testimony from being
admitted into evidence or used as impeachment and that the testimony constituted inadmissible
hearsay. The circuit court then ultimately granted part of the motion in limine pertaining to
Vodicka’s testimony, barring admissibility of Vodicka’s testimony pursuant to the past
recollection recorded exception to hearsay, “unless [his] testimony change[d] at trial.” The circuit
court reserved ruling on the remainder of the motion. For purposes of both clarity and conciseness,
we reserve further discussion of this hearing for the analysis section of this order.
¶9 C. Trial
¶ 10 On August 29, 2022, the jury trial commenced. Following opening statements, defendant
testified that, on the day of the collision, she was traveling behind Rodriguez’s vehicle in the right
lane on Interstate 80. Defendant stated that she was driving the speed limit and at a distance of
three to four car lengths behind Rodriguez’s vehicle, when a truck approached at a high speed via
the left lane, passed her, and swerved in and out of her lane. The truck then sped ahead, cut in front
of Rodriguez’s vehicle, and suddenly braked. Defendant slowed her vehicle in an attempt to stop
but was unable to prevent her vehicle from rear-ending Rodriguez’s vehicle. Defendant was
unaware of any other collisions resulting from these events and believed that the collision between
her vehicle and Rodriguez’s vehicle was the only one that occurred.
¶ 11 Vodicka testified that he responded to the July 3, 2016, collision and that, when he arrived
at the scene, he inspected the vehicles and spoke with some of the occupants, although he could
not recall with whom he specifically spoke. Vodicka prepared the Report within several hours after
the collision, based on his “firsthand knowledge of [the] statements” made to him by those
involved in the collision with whom he was able to talk.
3
¶ 12 The back side of the Report form contained a narrative section, which Vodicka typically
used to document the statements of those involved in an incident, along with what he learned about
the incident. Vodicka wrote in the narrative of the Report that defendant stated that she saw
Rodriguez’s vehicle brake but did not have enough time to prevent the collision. He also wrote
that one of the occupants of Rodriguez’s vehicle stated that a truck was driving recklessly and cut
in front of Rodriguez’s vehicle, causing Rodriguez to brake. Vodicka testified that defendant
herself never mentioned the truck to him, but he acknowledged that it was possible, though not
probable, that the statements in the Report regarding the truck were misattributed to one of the
occupants of Rodriguez’s vehicle but were actually made by defendant.
¶ 13 Based on his investigation, Vodicka believed it clear that the collision involved “a situation
where somebody cut off somebody else and the next person slammed on their brakes.” Vodicka
issued defendant a ticket for failure to reduce speed to avoid a collision, to which she later pleaded
guilty.
¶ 14 Next, plaintiff’s six family members who were involved in the collision each testified as to
the surrounding events. All six testified that they did not recall a vehicle driving in front of
Rodriguez’s vehicle or Rodriguez suddenly braking prior to the collision, but their testimony
differed in some other respects.
¶ 15 Rodriguez testified that she did not remember anything that occurred between when she
was driving plaintiff and her other family members along Interstate 80 on July 3 and about a week
later. She had been in a coma and had only later become aware that defendant’s vehicle had rear-
ended her own.
¶ 16 Randy Travis Davis, plaintiff’s cousin, testified that their family was traveling along
Interstate 80 on July 3 after having left the Grundy County Fairgrounds (Fairgrounds), where they
4
had gone to view fireworks. He stated that, when they were leaving the parking lot of the
Fairgrounds, defendant, who was also present, grew angry and yelled at Rodriguez because a guard
at the Fairgrounds permitted Rodriguez to leave the parking lot before her. Upon leaving the
Fairgrounds, defendant followed Rodriguez’s vehicle, driving gradually closer behind until her
vehicle eventually collided with Rodriguez’s vehicle three or four times.
¶ 17 Tammy Davis, plaintiff’s aunt, recalled the same incident but testified that it involved a
man whom she did not know. She also did not know whether anyone followed Rodriguez’s vehicle
after they left the Fairgrounds. According to Tammy, during the collision, Rodriguez’s vehicle
was hit twice.
¶ 18 Michael Hauck, plaintiff’s uncle, testified that he did not recall an altercation occurring on
the day of the collision or how the collision occurred. The last thing he remembered regarding the
collision was getting hit twice from behind.
¶ 19 Randy L. Davis, plaintiff’s uncle, testified that he recalled the incident when they were
leaving the Fairgrounds, but that he did not recognize the individual involved or see defendant at
the Fairgrounds that day. He further testified that defendant’s vehicle struck Rodriguez’s vehicle
twice from behind.
¶ 20 Caleb Davis, plaintiff’s cousin, testified that he was not aware of any altercation occurring
at the Fairgrounds on July 3 and that defendant’s vehicle struck Rodriguez’s vehicle twice.
¶ 21 Prior to closing arguments, plaintiff filed a motion for a directed verdict. The circuit court
reserved ruling on the motion, and the jury returned a unanimous verdict in favor of defendant, on
which the circuit court entered judgment. Plaintiff filed motions for judgment notwithstanding the
verdict and for a new trial, both of which the circuit court also denied. Plaintiff now appeals.
¶ 22 II. ANALYSIS
5
¶ 23 On appeal, plaintiff argues that the circuit court erred by (1) allowing the statements in
Vodicka’s Report to be admitted into evidence, (2) determining that he had forfeited certain issues
for review, and (3) denying his motions for a directed verdict, judgment notwithstanding the
verdict, and for a new trial. We will begin by analyzing plaintiff’s argument regarding the
admissibility of the statements in the Report.
¶ 24 Plaintiff argues that it was error for the circuit court to admit the statements in the Report
into evidence because Vodicka could not provide a proper foundation to establish a hearsay
exception to allow their use. “Generally, evidentiary rulings are within the sound discretion of the
[circuit] court and will not be reversed on review absent an abuse of discretion.” Lovell v. Sarah
Bush Lincoln Health Center, 397 Ill. App. 3d 890, 900 (2010). An abuse of discretion exists only
where the circuit court’s decision is arbitrary, fanciful, or unreasonable or where no reasonable
person would adopt the same view as the circuit court. Favia v. Ford Motor Co., 381 Ill. App. 3d
809, 815-16 (2008).
¶ 25 Plaintiff advocates for de novo review, contending that the ruling resulted from the circuit
court’s misinterpretation of the legal principles underlying the concepts of recorded and refreshed
recollections. “It is true that [we] sometimes review evidentiary rulings de novo” “where ‘a
[circuit] court’s exercise of discretion has been frustrated by an erroneous rule of law.’ ” People v.
Caffey, 205 Ill. 2d 52, 89 (2001) (quoting People v. Williams,
188 Ill. 2d 365, 369 (1999)).
However, a review of the record in this case shows that the circuit court based its admission of the
statements in the Report partly on the specific testimony elicited at trial and the circumstances of
this case, rather than solely on its interpretation of the relevant evidentiary rules. Thus, we will
review the circuit court’s ruling for an abuse of discretion, rather than de novo. See id. at 89-90
6
(reviewing the circuit court’s evidentiary rulings for an abuse of discretion because the rulings
were made based on the specific circumstances of the case and not on broadly applicable rules).
¶ 26 Relevant to the merits, prior to trial, plaintiff filed a motion in limine to bar Vodicka from
testifying to the statements in the Report regarding the unidentified truck. Plaintiff argued in his
motion that these statements were inadmissible because Vodicka had earlier testified during his
deposition that he did not recall whether he spoke with defendant or any specific occupant of
Rodriguez’s vehicle at the scene of the collision and that he did not recall who informed him that
the unidentified truck was driving recklessly near Rodriguez’s vehicle leading up to the collision,
causing Rodriguez to abruptly brake. Plaintiff argued that the statements in the Report relating to
the truck did not meet any hearsay exception, including those for party admissions or past
recollections recorded.
¶ 27 During the hearing on the motion in limine, the circuit court expressed that, the issue of
hearsay aside, it was concerned that, without Vodicka being able to remember to whom he spoke
at the scene of the collision, the statements in the Report lacked the proper foundation to be entered
into evidence. Specifically, the circuit court stated:
“THE COURT: … [S]o hearsay was raised as the basis of the objection, but before
you even get to hearsay, my perception is that you have a foundation question …. How
can he testify to a conversation with somebody that he doesn’t remember having a
conversation with, you know, or the circumstances surrounding it other than maybe being
at the accident scene and who else was present, and just the very fundamental, foundational
requirements for, you know, offering a statement into evidence …. [A]s it relates to unit
two, I don’t think it’s consistent with the rules of evidence to allow him to come in and say
somebody in unit two told me something. I need a specific somebody, what the
7
circumstances were, where the conversation took place, who else was present. Unit one
may be a different story because we only have one occupant …. [B]ut I think we—this is
one of those where I think we’ll just have to see how it plays out ….
…
Trooper Vodicka testified that he does not recall specifically speaking to either
party nor the substance of any such conversation. And you got deposition transcript
testimony that validates that. So I think—so I guess for purposes of [this motion], I guess
I want to share some of my thoughts in terms of where I’m at in terms of the objections
being made, but I think the best thing for the Court to do … is to reserve it and revisit it
either immediately prior to trial or during the course of trial.”
The circuit court then granted part of the motion in limine, finding that the statements in the Report
were barred under the past recollection recorded exception to hearsay unless Vodicka’s testimony
changed at trial. The circuit court reserved ruling on the remainder of the motion, which pertained
to the admissibility of the statements on other grounds.
¶ 28 Immediately prior to Vodicka testifying at trial, defense counsel informed the circuit court
that he intended to later move to enter the Report into evidence, under the past recollection
recorded exception to hearsay, and that he believed that he would be able to ask the necessary
questions to lay the proper foundation for the Report’s admissibility. Plaintiff’s counsel countered
this belief and argued that the Report could not be admitted as a past recollection recorded or used
to refresh Vodicka’s recollection because the statements in the Report were unattributable to
specific people and lacked foundation. The circuit court expressed its belief that, “if [Vodicka]
testifie[d] consistent with his deposition and with the information that’s contained in his report,
[then defendant would] never get a foundation out of [him],” but later stated that “it [would] hold
8
and make a firm ruling . . . on the past recorded recollection that [would] be prohibited . . . unless
the testimony change[d].”
¶ 29 During direct examination, Vodicka testified consistent with his deposition that he did not
independently recall the collision or whom of those involved in the collision he specifically spoke
with. On cross-examination, Vodicka testified that, upon reporting to the scene of the collision, he
talked to those involved; that he prepared the Report himself within several hours after the
collision, while he clearly and accurately remembered his investigation; and that he had firsthand
knowledge of the statements in the Report. Vodicka did not identify the individuals with whom he
spoke or indicate that he spoke with everyone involved in the collision. Nor did Vodicka describe
the condition of each speaker, including the one who allegedly saw the unidentified truck.
¶ 30 Defense counsel subsequently began reading statements from the Report into the record,
at which time plaintiff’s counsel objected and a sidebar was held. During the sidebar, plaintiff’s
counsel argued that the statements in the Report were still inadmissible because Vodicka had not
testified as to which individuals made which statements. Defense counsel argued that he was
seeking admission of the statements under the past recollection recorded exception to hearsay, and
that this exception did not require Vodicka to remember who provided him with which statements.
The circuit court found that defense counsel refreshed Vodicka’s recollection and that there was
adequate foundation for the statements to be admitted. Vodicka then proceeded to testify that the
Report stated that someone from Rodriguez’s vehicle informed him that, prior to the collision, an
unidentified truck was driving recklessly and cut in front of Rodriguez’s vehicle, causing
Rodriguez to suddenly brake. Vodicka further testified that this information did not come from
defendant, and that, if it had, he would have written this fact in the Report.
9
¶ 31 Plaintiff now renews his argument that, because Vodicka testified at trial that he did not
recall to whom he specifically spoke at the scene of the collision, the statements in the Report
lacked the appropriate foundation to be entered into evidence and constituted inadmissible hearsay.
“Hearsay is an out-of-court statement offered to prove the truth of the matter asserted and is
inadmissible unless it falls within one of the recognized exceptions to the rule.” Pavlik v. Wal-
Mart Stores, Inc., 323 Ill. App. 3d 1060, 1064 (2001). Generally, written police reports are not
admissible because they summarize information obtained from various sources during an
investigation and, thus, are the product of the secondhand knowledge of the reporting officer and
hearsay. Kociscak v. Kelly, 2011 IL App (1st) 102811, ¶ 25; People v. Garrett,
216 Ill. App. 3d
348, 357 (1991). However, “[p]olice reports may be used to refresh a witness’[s] recollection
[citation] or may be admitted as past recollection recorded if the proper foundation is laid.” Horace
Mann Insurance Co. v. Brown, 236 Ill. App. 3d 456, 462 (1992).
¶ 32 The statements in the Report that are at issue are those written by Vodicka stating that,
prior to the collision, a truck was driving recklessly near the parties and then cut in front of
Rodriguez’s vehicle, causing Rodriguez to suddenly brake. The writings themselves constitute
hearsay because the Report was generated near the time of the collision and outside of Vodicka’s
testimony at trial, and because defense counsel argued to the jury that the truck, rather than
defendant, caused the collision, which shows that the writings were offered to prove the truth of
the matter asserted. Separately, and for similar reasons, these same statements regarding an
unidentified truck that was not present at the scene of the collision, as made by a single unattributed
source at the scene of the collision, are also hearsay. Thus, the statements at issue constitute
hearsay within hearsay, or double hearsay.
10
¶ 33 Next is the issue of whether the statements in the Report met the refreshed recollection and
past recollection recorded exceptions to hearsay. Starting with the first of these exceptions,
plaintiff argues that the circuit court erred by finding that Vodicka’s recollection had been
refreshed because he still did not recall who provided which statements contained in the Report.
Plaintiff further argues that, even if the refreshed recollection exception to hearsay were to apply,
this alone would not have authorized defense counsel to read the statements in the Report into the
record verbatim.
¶ 34 “A witness may testify only to facts within his knowledge and recollection and to refresh
and assist his memory he may be afforded the use of a written instrument ….” In re Thomas, 65
Ill. App. 3d 136, 138 (1978). The written instrument need not be independently admissible, so long
as, after inspecting it, the witness can speak to the facts from his own recollection. Id. at 139 (citing
People v. Van Dyk, 40 Ill. App. 3d 275, 279 (1976)). The witness “may not merely recite what he
read on the refresher document under the guise of refreshed recollection.” Aliano v. Transform SR
LLC, 2020 IL App (1st) 172325, ¶ 22.
¶ 35 At trial, Vodicka testified during direct examination that he did not independently recall
the collision or who he spoke to at the scene of the collision, but that he had generated the Report,
with the help of which he remembered some of the details pertaining to his investigation of the
collision. On cross-examination, defense counsel asked Vodicka whether one of the vehicles
mentioned in the Report was the unidentified truck alleged to have been driving recklessly.
Plaintiff’s counsel then objected to a lack of foundation, and after the circuit court sustained the
objection, defense counsel elicited testimony from Vodicka that he himself prepared the Report
within several hours following the collision; had firsthand knowledge of the statements in the
11
Report, which reflected what he was told; and prepared the Report while he clearly and accurately
remembered his investigation of the collision.
¶ 36 Defense counsel then began to recite statements in the Report when plaintiff’s counsel
again objected to a lack of foundation. This time, the circuit court overruled the objection, finding
that defense counsel had refreshed Vodicka’s memory, and Vodicka proceeded to testify that
someone in Rodriguez’s vehicle provided the statement regarding the unidentified truck, though
he still could not recall who specifically told him.
¶ 37 The above portions of the record demonstrate that the circuit court found Vodicka’s
memory to have been refreshed after Vodicka again testified to being unable to recall both the
collision itself and who he had spoken to at the scene, even after defense counsel’s efforts to refresh
his recollection. Based on Vodicka’s testimony that he did not, in fact, remember who provided
him with the statements regarding the unidentified truck, it cannot be said that his memory was
sufficiently refreshed as to any relevant facts.
¶ 38 A further consequence of Vodicka’s inability to recall who provided the statements
regarding the truck is that there was a lack of adequate foundation for the statements to be admitted
into evidence. This is because, in Illinois, a witness is prohibited from testifying to a matter unless
evidence is introduced and shows that the witness has personal knowledge of the matter. See Ill.
R. Evid. 602 (eff. Jan. 1, 2011). Here, Vodicka testified to the existence of the unidentified truck
and that, leading up to the collision, the truck cut in front of Rodriguez’s vehicle and caused
Rodriguez to suddenly brake. However, there is nothing in the record to indicate that Vodicka had
personal knowledge of these matters. Rather, to the opposite, in so far as Vodicka testified that one
unidentified occupant of Rodriguez’s vehicle provided the information regarding the truck, the
record indicates that it was this occupant, and not Vodicka himself, who possessed the requisite
12
personal knowledge. This is further bolstered by the fact that Vodicka testified at trial that he did
not witness the actual collision. Thus, without more, the use of the Report to refresh Vodicka’s
recollection could not substantiate any relevant facts and did not permit the statements in the
Report regarding the unidentified truck to be admitted into evidence.
¶ 39 Vodicka’s inability to remember who made the statements regarding the truck also
precluded the statements from being admitted under the past recollection recorded exception, again
due to a lack of foundation and firsthand knowledge regarding the truck. The four prerequisites to
the admission of a police report as a past recollection recorded are:
“(1) the witness must have no independent recollection of the occurrence or event recorded;
(2) the report must fail to refresh the witness’[s] recollection; (3) the facts in the report
must have been recorded at the time of the occurrence or soon thereafter; and (4) the truth
and accuracy of the report when made must be established.” Loughnane v. City of Chicago,
188 Ill. App. 3d 1078, 1082 (1989).
Incorporated into the last element is the requirement that the witness have firsthand knowledge of
the events reported. See Kociscak, 2011 IL App (1st) 102811, ¶ 27. The past recollection recorded
exception can apply to double hearsay, as long as both levels of hearsay constitute exceptions to
the hearsay rules. Loughnane, 188 Ill. App. 3d at 1083.
¶ 40 As earlier noted, at trial, Vodicka testified that he did not recall to whom he specifically
spoke at the scene of the collision, even after defense counsel’s attempt to refresh his recollection
by using the Report. Vodicka also testified that he wrote the Report within several hours following
the collision, while he clearly remembered his investigation. Thus, the first three prerequisites to
the past recollection recorded exception had been met.
13
¶ 41 As to the final prerequisite, the parties dispute whether it has also been met, with plaintiff
citing Kociscak, 2011 IL App (1st) 102811, and Roeseke v. Pryor,
152 Ill. App. 3d 771 (1987), to
support his position. In Kociscak, an officer testified that he and a partner officer responded to the
accident at issue and that he did not independently recall the accident, what each person involved
in the accident told him regarding the accident, or whether he completed his report at the scene of
the accident. 2011 IL App (1st) 102811, ¶ 11. The officer also testified that his partner likely helped
him complete the report. Id.
¶ 42 On appeal, the defendant argued that the officer’s report was inadmissible under the past
recollection recorded exception to hearsay because the officer could not attribute the statements in
the report to specific people and, thus, could not establish the truth and accuracy of the report. Id.
¶ 22. In conducting its analysis, the court examined the Roeseke decision, in which the appellate
court upheld the circuit court’s ruling barring a police officer from testifying about a report that he
and his partner had jointly created. 152 Ill. App. 3d at 776. The Roeseke court upheld the ruling
upon finding that the information in the report was outside of the officer’s firsthand knowledge, in
that both he and his partner compiled the report through consulting multiple sources and the officer
could not attribute the information therein to specific sources. Id. at 780.
¶ 43 Analogizing to the circumstances in Roeseke, the court in Kociscak found that the testifying
officer in the case before it also lacked the requisite personal knowledge of the information in the
report, in so far as both he and his partner compiled the information included in the report from
multiple sources but could not identify the specific sources of the information. Kociscak, 2011 IL
App (1st) 102811, ¶ 29. The court also found that the proper foundation had not been laid because
the officer never vouched for the truth or accuracy of the report, and could not have done so, since
his partner compiled portions of the report in his stead. Id. ¶ 30. The court ultimately found that
14
the officer’s testimony based on the report was not admissible under the past recollection recorded
exception to hearsay. Id.
¶ 44 Unlike the testifying officers in Kociscak and Roeseke, who generated their reports with
the help of other officers, Vodicka alone compiled the Report in this case. Nevertheless, like those
same officers in Kociscak and Roeseke, Vodicka still lacked firsthand knowledge of events that he
reported, including those relating to the existence of the unidentified truck, because he was not
present at the scene of the collision when the truck was said to have been present and he obtained
the only contemporaneous statement that a truck had even been there from an unknown passenger
in a vehicle that had rolled over multiple times into a ditch. Thus, Vodicka’s testimony regarding
the unidentified truck lacked the necessary foundation and was inadmissible under the past
recollection recorded, or any other, exception to hearsay, and the circuit court erred by admitting
the statements from that testimony into evidence.
¶ 45 However, because “[n]ot all errors in the admission of evidence require reversal” (People
v. Randolph, 2014 IL App (1st) 113624, ¶ 16), we must next determine whether the circuit court’s
error was harmless in nature or warrants reversal. “ ‘[T]o determine whether an ordinary trial error,
such as the improper admission of hearsay evidence, was harmless, we must ask whether the
verdict would have been different if the evidence had not been admitted.’ ” Id. (quoting People v.
McWhite, 399 Ill. App. 3d 637, 643 (2010)).
¶ 46 The sole claim litigated at trial in this case was for negligence, to which defendant asserted
affirmative defenses alleging, in sum, that, immediately prior to the collision, an unidentified truck
cut in front of Rodriguez’s vehicle, causing Rodriguez to suddenly brake and defendant’s vehicle
to collide with the rear of Rodriguez’s vehicle. To prevail on a claim of negligence, a plaintiff must
prove that the defendant owed him a duty, that the defendant breached that duty, and that an injury
15
proximately resulted from the breach. In re Estate of Case, 2016 IL App (2d) 151147, ¶ 27. Drivers
have a duty to exercise ordinary care, including to reduce speed, to avoid a collision. Chevrie v.
Gruesen, 208 Ill. App. 3d 881, 884 (1991); Hogrefe v. Johnson,
271 Ill. App. 469, 474 (1933).
¶ 47 The evidence presented at trial on the issue of whether defendant acted negligently leading
up to the collision was closely balanced. Plaintiff argued to the jury that defendant acted
negligently by following too closely behind Rodriguez’s vehicle immediately prior to the collision
and failing to reduce her speed to avoid the collision. Defendant argued that there was no
negligence on her part, and that rather, the collision was caused by the unidentified truck that cut
in front of Rodriguez’s vehicle, causing Rodriguez to suddenly brake and defendant to strike the
vehicle and force it from the road. That truck was not on the scene when Vodicka arrived to
investigate.
¶ 48 To support his theory that defendant acted negligently, plaintiff introduced testimony from
his six family members who were involved in the collision, and each of whom affirmatively
testified that they did not recall a vehicle driving in front of Rodriguez’s vehicle or Rodriguez
suddenly braking leading up to the collision. The remainder of their testimony did contain some
inconsistencies. For example, Randy Travis was the only family member who testified that
defendant was present at the Fairgrounds, yelled at Rodriguez because she was angry that a guard
permitted Rodriguez to exit the parking lot first, and followed Rodriguez’s vehicle upon leaving
the Fairgrounds, driving gradually closer behind until her vehicle eventually collided with
Rodriguez’s vehicle three or four times. The rest of the family members did not testify to defendant
driving gradually closer to Rodriguez’s vehicle, yet testified either that a man yelled at Rodriguez
or that they did not recall any sort of altercation occurring at the Fairgrounds, and either that they
did not remember the moment when the vehicles collided or that the vehicles only collided twice.
16
¶ 49 Additionally, defendant herself testified regarding the collision and provided a version of
the events that further differed from that of plaintiff’s family members. Specifically, defendant
testified that, prior to the collision, she was consistently driving between three to four car lengths
behind Rodriguez’s vehicle and at the speed limit of 70 miles per hour, when the unidentified truck
sped in front of Rodriguez’s vehicle, causing Rodriguez to suddenly brake and defendant to then
rear-end her vehicle. Defendant neither confirmed nor denied her alleged presence at the
Fairgrounds or any altercation between herself and any of plaintiff’s family members. That
plaintiff’s family members’ testimony differed among themselves and from defendant’s separate
testimony provided the jury with a basis to discredit any portion of the family members’ testimony
that tended to show that defendant acted negligently in connection with the collision. Conversely,
the jury was also allowed to discredit defendant’s testimony, especially regarding the unidentified
truck, which she apparently never mentioned to Vodicka at the scene of the collision. The jury was
further allowed to instead credit the portions of the family members’ testimony that supported a
finding of negligence, despite the inconsistencies across their testimony.
¶ 50 Plaintiff also presented evidence of the fact that defendant pleaded guilty to the offense of
failure to reduce speed to avoid a collision, related to the ticket that Vodicka issued to her following
the collision at issue in this case. Plaintiff relied on defendant’s guilty plea to show that she indeed
acted negligently by failing to slow her vehicle to prevent the collision with Rodriguez’s vehicle.
¶ 51 In Illinois, a guilty plea to a traffic offense is deemed a judicial admission that is not itself
conclusive, but instead merely serves as evidence against the pleader in a civil proceeding arising
from the same incident. People v. Powell, 107 Ill. App. 3d 418, 419 (1982). Thus, although the
jury could have found, based on defendant’s guilty plea, that she indeed acted negligently by
failing to slow her vehicle to avoid the collision, the jury was also permitted to find otherwise.
17
This is especially so in light of defendant’s own testimony acknowledging that she pleaded guilty
to the offense but explaining that she did so only because she “live[d] over an hour away,” “[did
not] have the money for an attorney,” and “wanted to just pay the dues and do what [she] could to
get past it.”
¶ 52 It was in addition to the above closely balanced evidence that defendant elicited testimony
from Vodicka that one of the occupants of Rodriguez’s vehicle provided the statements in the
Report about the absent and unidentified truck. The jury’s assessment of the truth of these
statements regarding the unidentified truck largely turned upon which witness testimony it decided
to credit, and Vodicka’s testimony that one of the occupants of Rodriguez’s vehicle provided these
statements bolstered defendant’s testimony at trial and overall theory on the issue of her alleged
negligent conduct. More specifically, Vodicka’s testimony provided additional support for the jury
to believe defendant’s, and not plaintiff’s, version of the events surrounding the collision without
also providing any way of validating either the fact or accuracy of the statements, in turn
influencing the jury to ultimately return its verdict in favor of defendant. For this reason, we find
it likely that, absent the circuit court’s admission of Vodicka’s testimony regarding the unidentified
truck, the outcome at trial would have been different. Therefore, the circuit court’s act of admitting
the testimony constituted reversible error, and a new trial is warranted. Having thus found that a
new trial is warranted on this basis, we need not address plaintiff’s remaining arguments on appeal
and decline to do so at this time.
¶ 53 III. CONCLUSION
¶ 54 The judgment of the circuit court of Grundy County is vacated and the cause remanded for
a new trial.
¶ 55 Vacated and remanded.
18
Capsel v. Burwell, 2024 IL App (3d) 230170
Decision Under Review: Appeal from the Circuit Court of Grundy County, No. 16-L-51;
the Hon. Scott M. Belt, Judge, presiding.
Attorneys Adam J. Zayed and Julian D. Hoshell, of Zayed Law Offices, of
for Joliet, for appellant.
Appellant:
Attorneys Matthew K. Krueger, of Brassfield & Krueger, Ltd., of Streator,
for for appellee.
Appellee:
19
