NOTICE

Decision filed 01/13/16. The text of this decision may be NO. 5-14-0461 changed or corrected prior to the filing of a Peti ion for Rehearing or the disposition of IN THE the same.

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

CHRISTOPHER WARDWELL, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) St. Clair County. ) v. ) No. 10-L-106 ) UNION PACIFIC RAILROAD COMPANY, ) Honorable ) Vincent J. Lopinot, Defendant-Appellee. ) Judge, presiding. ________________________________________________________________________

JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion. Justice Stewart concurred in the judgment and opinion. Justice Moore dissented, with opinion.

OPINION

¶1 This appeal is taken from the trial court's denial of plaintiff Christopher

Wardwell's posttrial motions following a jury verdict in favor of defendant, Union Pacific

Railroad Company. The trial court permitted defendant to present evidence that a

nonrailroad third party was the sole cause of injuries plaintiff sustained in a motor vehicle

accident while riding as a passenger in a vehicle owned and operated by defendant.

Plaintiff was an employee of defendant at the time of the accident, and brought an action

against defendant under the Federal Employers' Liability Act (FELA) (

et

1 seq. (2006)). For the reasons stated below, we reverse and remand this cause for further

proceedings.

¶2 BACKGROUND

¶3 Plaintiff was hired by defendant on September 11, 2006, and worked as a

switchman, brakeman, and conductor on freight trains until the date of the accident in

question. The details of the accident are as follows.

¶4 At approximately 5:16 a.m. on August 9, 2008, plaintiff suffered a severe back

injury in a two-car collision while riding as a passenger in defendant's van being driven

by Regeania Goodwin (Goodwin), a professional driver hired by defendant to transport

plaintiff and two coworkers from defendant's railway yard to a train owned by defendant.

Goodwin was rear-ended by a vehicle operated by Erin Behnken (Behnken). It has been

stipulated that Goodwin was the agent of defendant, and that defendant was responsible

for Goodwin's conduct concerning the accident. It has also been stipulated that Behnken

was intoxicated at the time of the accident, and had admittedly "blacked out" or had

fallen asleep at the wheel immediately prior to the collision. As a result of the accident,

plaintiff can no longer perform the job duties that he could prior to the collision, and is

currently employed by defendant as a security guard at a significant wage reduction.

¶5 Plaintiff brought an action against defendant under FELA based on the negligent

acts of defendant's driver.

et seq. (2006). A jury trial was held from

November 18 through 23, 2013. At trial, defendant argued and presented evidence that

the sole cause of the accident was the negligence of Behnken, who admittedly operated

2 the vehicle that rear-ended defendant's van while intoxicated. Plaintiff subsequently filed

two motions in limine to exclude this evidence and argument, asserting FELA does not

permit a sole-cause defense based on a nonrailroad third party's negligence. The trial

court denied plaintiff's motions in limine and permitted defendant's sole-cause defense.

¶6 The accident itself occurred in the right-hand lane of southbound Route 3 near

Columbia, Illinois, which is formed by the merger of the left lane from southbound I-255,

the location where defendant's van was traveling, and the right lane of eastbound I-255,

the location where Behnken's vehicle was traveling. There was a dispute at trial as to

how long the van was in the right lane before it was rear-ended by Behnken's vehicle.

¶7 Goodwin testified that prior to the accident while driving defendant's van in the

left-hand lane on Route 3, she looked for vehicles in the right-hand lane, waited for a

truck to pass her in the right-hand lane, activated her turn signal, checked her side mirror,

and confirmed there was no vehicle in the right lane before moving the van from the left

lane into the right lane. While the forms Goodwin filled out at the scene of the accident

indicate she was driving the van in the right lane for over two minutes before the accident

occurred, Goodwin testified at trial that she was driving in the right lane for only 20

seconds prior to the collision. In contrast, plaintiff testified the van was only in the right

lane for one or two seconds before impact. The length of time the van was in the right

lane before impact was relevant to defendant's negligence concerning the accident.

¶8 Goodwin's training as a professional driver was also discussed at trial. At the time

of the collision, Goodwin was employed by PTI, a van company that defendant

3 contracted with to transport its employees to and from its trains and rail yards. Goodwin

received her professional training through the Smith System, which required that

Goodwin check her mirrors every five to eight seconds and keep a 360-degree level of

awareness of her vehicle. Goodwin was further trained through the SMOG technique for

changing lanes, which required her to (1) signal first, (2) look in her mirrors, (3) look

over her shoulder to check her blind spot, and (4) change lanes only when it is safe to do

so. As previously stated, it was stipulated at trial that Goodwin was an agent of

defendant and defendant was responsible for Goodwin's conduct concerning the collision.

¶9 The jury returned a verdict in favor of defendant and against plaintiff. On

December 16, 2013, plaintiff filed motions for judgment notwithstanding the verdict and

to vacate the jury verdict or for a new trial on all issues, and a memorandum of law in

support thereof. Similar to his motions in limine which were denied, plaintiff asserted

FELA prohibits defendant from presenting a sole-cause defense based on the negligence

of a nonrailroad third party. The trial court denied plaintiff's posttrial motions. On

September 18, 2014, plaintiff timely filed a notice of appeal.

¶ 10 ANALYSIS

¶ 11 The first issue raised by plaintiff on appeal alleges the trial court abused its

discretion in denying his motion for a new trial because defendant did not have the right

to introduce evidence and argument that a nonrailroad third-party driver was the sole

cause of the accident in question. For the following reasons, we agree with plaintiff and

reverse and remand this cause for further proceedings.

4 ¶ 12 The standard for determining whether a trial court erred in denying a motion for a

new trial is whether the jury's verdict was against the manifest weight of the evidence.

Maple v. Gustafson,

,

(1992). A verdict is

against the manifest weight of the evidence where the opposite conclusion is readily

apparent or where the findings of the jury are unreasonable, arbitrary, and not based upon

any of the evidence. Maple,

,

. A trial court's

decision to grant or deny a motion for a new trial is generally given great deference.

Reidelberger v. Highland Body Shop, Inc.,

,

(1981). Therefore, a trial court's ruling on a motion for a new trial will not be reversed

except in those instances where it is affirmatively shown that it clearly abused its

discretion. Maple,

,

.

¶ 13 In the instant case, plaintiff's cause of action against defendant alleged negligence

under FELA (

et seq. (2006)). Under FELA, railroad companies are liable

in damages to any employee who suffers injury due to the railroad's negligence. As a

general matter, FELA actions adjudicated in state courts are subject to state procedural

rules, but the substantive law governing them is federal. St. Louis Southwestern Ry. Co.

v. Dickerson,

(1985).

¶ 14 In a FELA action, an injured railroad employee can recover all of his damages

from his employer if the employer's negligence caused any part of the employee's injury,

regardless of whether the injury was also caused in part by the actions of a third party.

Norfolk & Western Ry. Co. v. Ayers,

(2003). The statutory

5 language supports the understanding that FELA does not provide for the apportionment

of damages between railroad and nonrailroad causes:

"Every common carrier by railroad while engaging in commerce *** shall be

liable in damages to any person suffering injury while he is employed by such

carrier in such commerce *** for such injury *** resulting in whole or in part

from the negligence of *** such carrier ***."

(2006).

Because FELA's express terms allow a worker to recover his entire damages from a

railroad whose negligence jointly caused an injury, the burden of seeking contribution

from other potential tortfeasors is placed on the railroad. Ayers,

.

¶ 15 Furthermore, where a jury could reasonably conclude that the defendant's

negligence contributed to the plaintiff's injury, it does not matter that, from the evidence

adduced at trial, the jury could also reasonably attribute the plaintiff's injury to a third

party's negligence. "[T]he test of a jury case is simply whether the proofs justify with

reason the conclusion that employer negligence played any part, even the slightest, in

producing the injury or death for which damages are sought." Rogers v. Missouri Pacific

R.R. Co.,

(1957). The fact that a number of factors may have

contributed to an injury is irrelevant so long as one cause may be attributable to the

railroad's negligence. Coffey v. Northeast Illinois Regional Commuter R.R. Corp.,

(7th Cir. 2007). Therefore, if negligence is proven and is shown to have

played any part in producing the injury, the railroad is liable in damages even if the

extent of the injury or the manner in which it occurred was not probable or foreseeable.

CSX Transportation, Inc. v. McBride,

, __,

(2011). 6 ¶ 16 In the case at bar, plaintiff presented a significant amount of evidence of

defendant's negligence concerning its driver in the collision. Specifically, Goodwin

admitted that she failed to comply with the training she underwent through the Smith

System for her employment as a professional driver:

"Q. [by plaintiff's counsel:] Look at the Smith System if you would, again

exhibit 6 and I'd like you to look at 6.13. And this is again how you were trained,

correct?

A. Yes.

Q. And it says here they want you to use the SMOG technique, S-M-O-G,

correct?

A. Yes sir.

Q. And that's an acronym, you know what an acronym is, it's like the short

letters?

A. Yes sir.

Q. So the first thing is to signal and you did that, correct?

A. Yes.

Q. And the second thing here says to look at your mirrors, mirrors plural,

correct?

A. Yes.

Q. And you agree you didn't look in your rearview mirror, correct?

A. Correct.

*** 7 Q. Okay. But in this case you agree you were taught to look over your

shoulder and make sure to check your blind spot before you pull over, correct?

A. Yes sir.

Q. And you didn't do that that day?

A. No sir, I made a judgment call at that point."

¶ 17 From Goodwin's admission of her noncompliance with her professional training

immediately prior to the collision, we find plaintiff produced circumstantial evidence of

defendant's negligence. Specifically, Goodwin admitted that she failed to check her

rearview mirror and failed to look over her right shoulder to check her blind spot prior to

changing lanes just before the collision occurred.

¶ 18 In an FELA action, our determination is narrowly limited to the single inquiry of

whether the conclusion may reasonably be drawn that the employer's negligence played

any part at all in the injury. Rogers,

. The employee's burden is met

when proof is adduced, even though entirely circumstantial, from which a jury may

reasonably make this inference. Rogers,

. Here, we find sufficient

evidence was produced from which a jury could have reasonably drawn the inference that

defendant was negligent and a cause, at least in part, of plaintiff's injuries. Therefore,

plaintiff has met his burden under FELA.

¶ 19 It is important to reiterate that employers such as defendant, who are subject to

FELA, have a duty to provide a reasonably safe work place, and an injured railroad

employee can recover all of his or her damages from the employer if the employer's

negligence caused any part of the employee's injury. Ayers,

. Therefore, 8 any evidence whose only relevance is to apportion culpability between the employer and

other causes is improper. Ayers,

.

¶ 20 Given our determination that the jury could have reasonably concluded that

defendant was negligent, at least in part, regarding the collision in question, we find the

trial court erred in permitting defendant's sole-cause defense. A nonrailroad third party's

alleged negligence is inadmissible when evidence is presented, albeit entirely

circumstantial, that the railroad contributed to the injury. Ayers,

. Here,

plaintiff has met this burden. Accordingly, we reverse and remand this cause for further

proceedings with directions to prohibit defendant's sole-cause defense under FELA.

¶ 21 Plaintiff further alleges the trial court abused its discretion in instructing the jury

with defendant's instruction No. 3 because a sole-cause affirmative defense based upon

the negligent acts of a nonrailroad third party is not a correct statement of law under

FELA. Plaintiff also contends the trial court abused its discretion in refusing to instruct

the jury with plaintiff's tendered instruction Nos. 8, 24, 25, and 26, which plaintiff asserts

correctly state the law under FELA. Because we reverse and remand this cause for

further proceedings for the foregoing reason, we need not address these issues.

¶ 22 Finally, plaintiff argues the trial court abused its discretion in permitting defendant

to introduce certain evidence at trial, including lay witness opinions concerning

Behnken's fault, evidence that plaintiff's medical insurance paid for his treatment, and

evidence concerning Behnken's consumption of alcohol on the date of the accident. We

again reiterate that because we reverse and remand this cause for further proceedings, we

9 need not address these issues. However, since the issue of the admissibility of the lay

witness testimony and opinion will likely arise on remand, we provide applicable

guidance which we consider appropriate.

¶ 23 The admission of evidence falls within the discretion of the trial court and will not

be disturbed on review absent an abuse of discretion. Ayala v. Murad,

,

(2006). A lay witness may express an opinion based

on personal observations when it is difficult or impossible to convey to the jury the

totality of the conditions perceived, and the opinion is one that people are generally

capable of and accustomed to making and understanding. Zoerner v. Iwan,

,

(1993).

¶ 24 In the instant case, Bruno Schmidt (Schmidt) was called to testify on behalf of

plaintiff. Schmidt indicated that he had obtained a Ph.D. in physics, had performed

consulting work in the area of accident reconstruction over the last 20-plus years, and had

been hired by plaintiff to perform certain work concerning the accident at issue.

Specifically, Schmidt testified that he was asked to look at the motion of the van as it was

traveling from the time plaintiff was picked up until the van was rear-ended. Schmidt

further testified that plaintiff's counsel had given him and he had reviewed reports

completed by the four occupants of the van, the deposition transcripts of the four

occupants, and the police report of the accident.

¶ 25 The testimony plaintiff claims the court erred in permitting occurred during

defendant counsel's cross-examination of Schmidt:

10 "Q. [Attorney for defendant:] Right. And, as a matter of fact, you, as part

of the materials that [plaintiff's counsel] gave you when he first hired you in this

case, he gave you the accident reports of every one of the occupants of the van, the

three passengers; correct?

A. I believe that's right, yes.

Q. And every one of them said that the sole cause of this accident was−

[Attorney for plaintiff:] I'm going to object, your Honor. That calls for

improper testimony, invades the province of the jury as to what caused−

THE COURT: Overruled. The witness can answer if he knows.

[Attorney for defendant:] They all indicated the cause was the drunk driver

rear-ended the van; correct.

A. The collision was when the rear car rear-ended the van, yes.

Q. And they didn't indicate that the driver of the van did anything wrong;

right?

A. I don't recall that they did say that, no."

¶ 26 Plaintiff alleges the term "sole cause" and the phrase "the cause was the drunk

driver" constitute opinion testimony of laypersons that the trial court improperly

permitted. Plaintiff contends the trial court abused its discretion when it allowed this line

of inquiry, as lay opinion testimony concerning causation is prohibited.

¶ 27 On remand, the trial court should note that lay opinion testimony is admissible

even on the ultimate issue to be decided by the trier of fact. As Illinois Rule of Evidence

704 indicates: 11 "Testimony in the form of an opinion or inference otherwise admissible is not

objectionable because it embraces an ultimate issue to be decided by the trier of

fact." Ill. R. Evid. 704 (eff. Jan. 1, 2011).

¶ 28 However, while lay opinion testimony is permitted as to the ultimate issue, it must

also be of assistance to the trier of fact to be admissible. The rule excludes opinion

testimony of a lay witness wherever inferences and conclusions can be made by the jury

as well as by the witness. Illinois Rule of Evidence 701 states the following:

"If the witness is not testifying as an expert, the witness' testimony in the form of

opinions or inferences is limited to those opinions or inferences which are (a)

rationally based on the perception of the witness, and (b) helpful to a clear

understanding of the witness' testimony or the determination of a fact in issue, and

(c) not based on scientific, technical, or other specialized knowledge within the

scope of Rule 702." Ill. R. Evid. 701 (eff. Jan. 1, 2011).

¶ 29 We further note that on cross-examination, counsel may probe an expert witness's

qualifications, experience and sincerity, the weaknesses in the basis of his opinions, the

sufficiency of his assumptions, and the general soundness of his opinion. Halleck v.

Coastal Building Maintenance Co.,

,

(1995). An expert may also be cross-examined on material he reviews, but from which

he did not ultimately rely. Halleck,

,

. A trial

court's determination regarding the scope of cross-examination will not be disturbed on

appeal absent an abuse of discretion. Halleck,

,

. 12 ¶ 30 In support of his argument that the admission of lay opinion testimony concerning

causation constitutes reversible error, plaintiff cites to Freeding-Skokie Roll-Off Service,

Inc. v. Hamilton,

,

(1985). Freeding-Skokie Roll-Off

Service, Inc. involved a truck owner and driver who brought an action against an

automobile driver to recover damages sustained in an automobile collision. The issue

presented to our supreme court was whether the trial court erred in admitting, over

objection, the opinion testimony of the plaintiff and a witness that the collision could not

have been avoided. Freeding-Skokie Roll-Off Service, Inc.,

,

. The supreme court held that such lay witness opinion testimony was superfluous,

and its admission in an action arising out of the collision at issue was reversible error.

Freeding-Skokie Roll-Off Service, Inc.,

,

.

¶ 31 We distinguish Freeding-Skokie Roll-Off Service, Inc. from the instant case.

Unlike Freeding-Skokie Roll-Off Service, Inc., the lay opinion evidence plaintiff alleges

was improperly permitted was deposition testimony and testimony contained within the

police report from which plaintiff's own expert witness relied upon in forming his

opinion. The passengers themselves did not testify at trial.

¶ 32 Since this case involves the question of who was negligent regarding the collision,

the trial court will need to weigh whether the opinion expressed by the passengers

through deposition testimony and accident reports was helpful to a clear understanding to

the determination of a fact in issue. The trial court should note that this testimony was

elicited from plaintiff's expert witness, Schmidt, during defendant counsel's cross-

examination of Schmidt regarding the reports and transcripts of the passengers present in 13 the van with plaintiff at the time of the collision. We reiterate that the passengers

themselves did not testify. Rather, Schmidt testified that he relied on the deposition

testimony and reports of the eyewitness accounts to form his opinions in this matter.

¶ 33 CONCLUSION

¶ 34 For the reasons stated herein, the judgment of the circuit court of St. Clair County

is reversed and the cause is remanded for further proceedings.

¶ 35 Reversed and remanded.

¶ 36 JUSTICE MOORE, dissenting.

¶ 37 I respectfully dissent, and would affirm the jury's verdict. My review of the record

and applicable case law reveals that the jury was properly instructed in accordance with

the standards for liability set forth in the Federal Employers' Liability Act (FELA) (

et seq. (2006)) and that the evidence was sufficient to sustain the jury's

verdict. FELA provides that a common carrier is liable in damages to any person

suffering injury while employed by such carrier if such injury results in whole or in part

from the negligence of such carrier.

(2006). Accordingly, in Norfolk &

Western Ry. Co. v. Ayers,

(2003), the Supreme Court held that if a

plaintiff's injury was caused, at least in part, by the defendant railroad, then the railroad is

responsible for 100% of the plaintiff's damages, regardless of whether third parties are

partially at fault. In other words, FELA does not permit apportionment of damages

14 between railroad and nonrailroad causes.

There is a stark difference, however,

between apportioning fault between joint tortfeasors and finding no liability on the part of

a defendant because another actor was the sole cause of the injury. I find nothing in the

law that stands for the proposition set forth by the majority, that the mere production of

testimony that could be construed by a jury as evidence of the negligence of the railroad

precludes the railroad from putting forth additional evidence in the case, and a jury from

considering, that a third party was the sole cause of the injury. Such a holding

compromises the role of the jury in FELA cases.

¶ 38 The majority cites Rogers v. Missouri Pacific R.R. Co.,

(1957),

for the proposition that if this court, on review, finds that the employee has produced

evidence from which a jury could reasonably infer that the defendant was negligent and

was a cause, at least in part, of the plaintiff's injuries, it is reversible error for the circuit

court to allow the defendant to introduce evidence that another party was the sole cause

of the injury. Supra ¶ 18. I do not read Rogers to stand for this proposition. To the

contrary, the standard discussed in Rogers was employed to determine whether a jury

question was presented. The Rogers standard was not used in the manner employed by

the majority, to take the causation question out of the province of the jury entirely. See

Inman v. Baltimore & Ohio R.R. Co.,

(1959) (citing Rogers and

determining that no jury question was presented as to the railroad's negligence where the

plaintiff was hit by a drunk driver while working at a crossing and there was no evidence

of prior accidents or conditions at the crossing that would have contributed to cause the

accident). 15 ¶ 39 In Rogers, the Supreme Court held that the lower court should not have disturbed

a jury verdict in favor of the injured railroad worker.

. According to the

Rogers Court, when there is evidence in the record that supports the verdict, the decision

is exclusively for the jury to make.

The Rogers Court did not prohibit the jury from

considering evidence that the petitioner was the sole cause of the accident. In fact, the

Court found that the jury was properly instructed to return a verdict in favor of the

defendant railroad if it found that the negligence of the petitioner was the sole cause of

the accident.

The jury in Rogers found that the petitioner was not the sole cause of

the accident, and the Supreme Court found that it was the jury's province to so decide.

The Rogers Court stringently emphasized that the decision on causation is for the jury

to make.

¶ 40 In this case, as the majority discusses, there was evidence that the railroad's van

driver failed to check her mirrors with the frequency that she was taught, and so a jury

question was presented under the standard enunciated in Rogers. However, there was

conflicting evidence before the jury as to how long the van had been in its lane before it

was struck from behind. Some evidence was presented to the jury that the van had

changed lanes as long as 20 seconds prior to the crash. If the jury concluded, as I believe

it did, that this was the case, then any purported negligence on the part of the van driver

regarding the manner in which she changed lanes could not have been a cause, even in

part, of the accident. Accordingly, unlike Rogers, after considering all of the evidence in

this case, the jury found that the drunk driver that rear-ended the van was the sole cause

of the plaintiff's injury, and, as such, the injury did not result, in whole or in part, from 16 the negligence of the railroad. This is the standard set forth for liability under FELA, and

to hold that evidence that a third party was the sole cause of an injury is inadmissible

would eviscerate the standard in FELA that the railroad be a cause, at least in part, of the

accident.

¶ 41 In fact, I believe that the Supreme Court's decision in Inman makes it clear that

evidence that a third party was the sole cause of the accident must be considered in

determining whether the plaintiff can establish a cause of action under FELA.

. In Inman, the jury had before it evidence that a drunk driver hit the plaintiff as he

was working at a railroad crossing.

. Nevertheless, the jury found that the

railroad was a cause, in part, of the accident because it did not afford the plaintiff enough

protection.

. The Supreme Court affirmed the lower court's reversal of the jury

verdict based on a lack of evidence that anything the railroad did contributed to cause the

accident.

. One simply cannot make a factual determination as to whether the

railroad was a cause, at least in part, of the accident if one does not consider all of the

circumstances surrounding the occurrence, including whether another party was the sole

cause. I believe Inman demonstrates this point.

¶ 42 Once the jury resolved the contested issue of how long the van was in its lane

before it was rear-ended, I find plenty of evidence in the record to support the jury's

conclusion that the van driver did not cause the injury, even in part. The plaintiff himself

reported to the police and to the defendant that the cause of the accident was that a drunk

driver rear-ended the vehicle in which he was riding. The plaintiff testified that there was

nothing defective or wrong with the van itself that could have contributed to his injury. 17 He testified that the driver for the railroad was alert and attentive, she obeyed the speed

limit, and he never saw the driver violating any rules of the road.

¶ 43 Again, there was conflicting evidence as to how long after the van changed lanes

that it was hit from behind. These are the types of conflicts that the jury was empanelled

to resolve (Rogers,

), and the jury in this case resolved them in favor of

the railroad. I find no basis to disturb the jury's determination that any alleged negligence

on the part of an agent of the railroad was not a cause of the plaintiff's injury. In addition,

I find that the evidentiary errors set forth by the plaintiff either were not an abuse of

discretion or did not have a prejudicial effect on the verdict. For these reasons, I would

affirm.

18

NO. 5-14-0461

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

CHRISTOPHER WARDWELL, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) St. Clair County. ) v. ) No. 10-L-106 ) UNION PACIFIC RAILROAD COMPANY, ) Honorable ) Vincent J. Lopinot, Defendant-Appellee. ) Judge, presiding. ______________________________________________________________________________

Opinion Filed: January 13, 2016 ______________________________________________________________________________

Justices: Honorable Richard P. Goldenhersh, J.

Honorable Bruce D. Stewart, J., concurred Honorable James R. Moore, J., dissented ______________________________________________________________________________

Attorney Mark P. Dupont, Attorney at Law, 443 Osborn Avenue, Suite 105, for Bigfork, MT 59911 Appellant ______________________________________________________________________________

Attorneys Thomas E. Jones, Harlan A. Harla, Thompson Coburn LLP, 525 West for Main Street, P.O. Box 750, Belleville, IL 62222-0750 Appellee ______________________________________________________________________________