*1 vеry poses easements in the area of the that foot traffic established condition already vulnerable threats to the real and serious beyond, easements the area of the both within property, Stotler Accordingly, under bluff. traversing the Stotler persons as well as to extin- be easements should purpose, the doctrine of failure created, access safe they were guished purpose for which since harm to Michigan without Seymours waters of Lake court’s conclusion has failed. The circuit property, easement weight the evidence should contrary against the manifest reversed. al., SPENCER, Plaintiff-Appellee, et JOSEPH WANDOLOWSKI
JACK Defendants-Aрpellants. (2nd Division) District No. 1 — 92—0749
First July Opinion May Rehearing 1994. filed denied 1994. SCARIANO, J., dissenting. *2 Ltd., Vacala,
Stevenson, Friedman, Chicago (Gregory G. Rusin & counsel), appellants. for (Edmund Scanlan, Ltd., Chicago Scanlan and Richard C.
Edmund J. J. Gleason, counsel), appellee. for opinion
PRESIDING DiVITO of the court: JUSTICE delivered action, alleging Spencer brought Jack that defen Plaintiff Wandolowski, truck owned Joseph operating dant while semitrailer Forwarders, Inc., Always Freight Air and SMK codefendants Inc.,1 injured Transportation, plaintiff when defendant Wandolowski connecting changed ramp on feeder northbound negligently lanes (the expressway) and westbound Interstate Interstate 55 Stevenson (the Ryan plaintiff A for expressway). found Dan $609,111, damages his but reduced the award determined contributory negligence. appеaled. Defendants half due to Plaintiff, trial, a full- following presented. At evidence was teacher, Chicago school Chicago part-time public time fireman and at he left his home 4401 South St. that on June testified ar- motorcycle at about 6:15 a.m. He scheduled Louis his station, fire located at 4911 place employment rive his Avenue, a.m., usually there be- by 8 but he reached West Belmont home, he drove to Kedzie Avenue 7 and 7:30. From tween expressway. He traveled north to the Stevenson proceeded then per hour he expressway at about 40 miles until northbound on the Ryan leading Dan ramp to the westbound reached the feeder expressway. intо and is ramp divides two lanes
Plaintiff stated that the feeder eventually merges with the Dan long four blocks before about liability theory of re under the their common 1All defendants concede spondeat superior. right no room to the that there is explained He
Ryan expressway. ve- another vehicle, motorcycle, pass even any right lane into two divides ramp right lane. Where proceeding hicle lane of the right lanes, he moved into testified that plaintiff hour, miles traveling while a.m.) (about He "medium.” 7:05 congestion point at this traffic lane, and in the left blocks ahead truck a few observed a semitrailer of the the end a block from with it about eventually drew even into lane, began to veer left the truck slowed ramp. As traffic signal. The middle its turn right putting without lane shoulder, causing him to truck struck his left portion trailer flew He then into the trailer. curb and bounce back crash into the over his truck ran pavement, and the the handlebars onto the over right lane. into the leg proceed left as it continued ground, he tried unsuccess- lying pain As Transportation Department An Elinois fully to offhis left boot. kick later, later a and still a short time arrived on the scene minuteman Eventually, both Wandolowski boot. came and cut off his nurse also scene, but at the Kim arrived Trooper State Rhodes and Elinois He was then to either of them. speaking did not remember for sev- where he was treated Mercy Hospital, taken ambulance ankle. eral fractures in his left fractures, he still a result of the testified that as
Plaintiff further objects. He also carrying heavy walking, running, and difficulty has *3 which were grafts skin scarring calf due to two on his left has severe had been torn off replace skin that performed in order to three 12-ounce that he had consumed Plaintiff also stated accident. the accident. day before p.m. at about 6 on cans of beer behalf, Nelson, M.D., testifying plaintiff’s in Douglas Dirk his for fractures of on June plaintiff he treated stated that bones, a inserted the fractured Dr. Nelson reset left ankle and fibula. them, placed plaintiff’s and screws to secure plate and some metal left calf grafts performed two skin leg in a cast. He also plaintiff Dr. Nelson determined a scar. permanent which left foot and 40% ability raise his left his to 50% of approximately lost Consequently, of the accident. ability on it as result push his to down impaired run will be ability walk and to opinion, plaintiff’s in his injury plaintifFs also stated that his life. Dr. Nelson the remainder of to do will continue time of the occurrence pain him at the caused future. so for the indefinite Funkhouser, who testified was Steven
Plaintiff’s next witness returning home from he 7 a.m. on June that at about Stevenson the northbound Chicago he entered when the south side expressway traveling approximately at at Pulaski Road. He was when per expressway or 45 miles hour on the northbound Stevenson ramp Ryan express- he Dan approached the feeder to the westbound way. ramp, he portion As soon as he the two-lane entered motorcycle in left and a beside observed semitrailer truck lane lane, right congested it in in the left he slowed lane. When traffic approached to as he to within feet about miles hour right hurry, in a into the truck. Since he was he decided move truck, so, however, lane. Just as he was about to do he saw slowed, signalling, begin right lane. He then without to move into reasoning eventually the truck driver would notice motorcycle right the left lane. The truck continued his and reenter lanes, however, portion struck switch the trailer by the knocking motorcycle. him his Plaintiff was then run over off rear wheels the truck. hurry get testified that he was home because
Funkhouser waiting at house and he to take female friend his intended sheet, however, day worked employer’s off. His time showed that he eight day. hurry, he in a did not hours that Because was Funkhouser accident, Dan stop proceeded but onto the scene of instead Chicago. Ryan expressway toward his on the north side home later fact he had witnеssed Plaintiff became aware event, relating of his through accident on trial the circumstance Bliss, at a to Charlie who worked party bachelor sometime and was a mutual friend of the same firehouse with subsequently plaintiff’s. Funkhouser further testified that he by plaintiff’s attorney, that he did investigator contacted hired accident, he had met at the time of the and that know through briefly only him after the incident once or twice Bliss. testified, both as an adverse witness Defendant Wandolowski behalf, had worked for that at the time of he on his own same route years five and drove the codefendants for morning of years. three of those On the five times each week fоr route, heading from R.R. leg was on the final of his June he King Drive Co. and Martin Luther Donnelley & Sons at 21st Street a.m., left R.R. Don- Chicago Village. At about 6:50 he Elk Grove Ryan Dan nelley ramp to the northbound and entered feeder King 22nd Street and Drive. the intersection of Drive, proceeded King ramp he entered the When lane, slowly immediately right traveling down into the *4 Although traffic, lane. leaving right bumper-to-bumper never lane, right edge of inches from the guard rail was six motorcycle pass him on enough room for whether there was He in the lane. of the truck depended position shoulder left his to the side explained typically keep he truck that would he not right ramp because did lane when he was on the feeder a bridge. like to look down over away a block in traffic about
Suddenly, stopped while he was his side of passenger onto the ramp, jumped up from the someone truck, window, that he had been and told him knocked on parking his put on motorcycle. involved He then in accident brakes, ramp where up and walked lights, turned on his hazard in or- plaintiff lying plaintiff he saw He pavement. approached so, he did he badly. der determine whether he was hurt When bloodshot, breath, eyes were smelled alcohol on his noticed that his facts, speech his these recognized that was slurred. Based on believed was plaintiff that intoxicated.
Sergeant Kim that on Rhodes testified for defendants June usually Effingham, a State who in trooper she was worked Illinois, day duty Chicago. in special patrol but on that she was on morning She was in an unmarked expressway on the Stevenson car, and At stop-and-go traffic had been thereon since about a.m. 7:25, lane, proceeding about while received an emer- the left she gency informing call on the feeder that an accident had occurred ramp Ryan expressway. immediately, proceeded the Dan She there but heavy, because traffic was it took her two to five distance, minutes despite to travel the the fаct that her siren short "blaring.” Upon arriving scene, sprawled at the plaintiff she noticed right pavement in the lane of the and a semitrailer truck parked lights flashing. up emergency ahead with As she tended to alcohol, although she plaintiff, strong she noticed odor of was not positive hospital as to its source. When she went order to alcohol, led question again she smelled her to once drinking think had at some time plaintiff been not, however, opinion accident. formulate an as to whether She could intoxicated, it was not feasible for primarily he was because perform field-sobriety opine, her to She did the standard tests. however, рrobably content below the blood-alcohol statutory limit of 0.10. hearing arguments, jury
After final favor found $609,111.00,2 amount of but also determined $304,555.50. negligent 50% and reduced his award to comparatively $370,000 damages 2Specifically, incurred found $23,278 $200,000 suffering; disfigurement; pain for disability for for $15,833 earnings. expenses; medical lost *5 seeking a Thereafter, new post-trial filed a motion defendants motion, newly support In of their trial based on discovered evidence. wife, Mary Spencer, plaintiffs presented defendants affidavit plaintiff had on that the alleged that told her several occasions pass had tried to question accident in had occurred because he hurry right gеt on he was in a to work truck shoulder because morning, drinking previous had the entire that and that he been out evening. nobody told her that The affidavit also stated that and he and Funkhouser were fact had witnessed the accident good Finally, process divorcing was in friends. it stated that she if what plaintiff, anyone he had her life she told threatened incident, told and that had not come forward had her about the she her and her children’s lives. previously because she was fear for judgment on the court denied the motion entered circuit verdict. seek, contending
On that the circuit appeal, defendants new (1) (2) verdict; improperly court denied their motion for directed (3) trial; abused requiring plaintiffs attendance at erred not testifying plaintiffs their prohibiting expert discretion three hours after the accident blood-alcohol content 0.096 testimony to providing retrograde extrapolation without demon- first 0.10 at the time of strate that his blood-alcohol content above (4) unsealed, occurrence; that an improperly excluded evidence saddlebag two-thirds-empty of vodka was found bottle (5) motorcycle; inappropriately limited redirect examina- plaintiffs regarding her of conduct when she tion of Rhodes normal course (6) level; but someone was intoxicated below 0.10 believеd that driving right along mistakenly plaintiffs barred evidence (7) remote; failed as moments before the accident too shoulder (8) case; theory of jury on errone- instruct defendants’ newly based ously their motion a new trial denied circuit erred in agree Because we discovered evidence. accident, driving excluding shortly before the plaintiffs evidence of a new trial. we reverse and remand for improperly barred the that the circuit court Defendants assert Sergeant wherein she would have Rhodes proffered lane position from her the left stated traveling at least 40 she expressway, observed the Stevenson expressway, right of the Stevenson miles hour on the shoulder would have further go” rush hour traffic. She "stop passing and the traf- position of her because of the combination testified that conditions, but possible apprehend fic was not for her it informing call shortly observing plaintiff, she received a radio after motorcycle, involving a her of an accident feeder traffic, minutes to reach heavy it took her that because of the several it evidence, stated that excluding In this the court the accident scene. credibility, rather found "as a but would determine witness’ not ten minutes beforehand is matter of law what observed [Rhodes] at the time of this being too remote as tо what occurred agree the circuit impact.” cannot court. We commentator has noted: As one judging the claims of presupposses
"The law of evidence
that in
of affairs
litigants,
important
discern the true state
it
objective,
proceeds
underlying
dispute.
pursuing
In
permit
parties
premise
way
that the
to find the truth is to
present
to the court or
all the evidence that bears on
*6
(1
184,
Strong,
be decided.”
J.
McCormick on Evidence
issue to
§
1992).)
(4th
at 772
ed.
purpose,
repeatedly
Consistent with
our courts have
stated that
"
that
law
is
what
principle
'[t]he basic
animates our
of evidence
admissible!;]
justify
is
must
[exceptions
principle
relevant
is
”
321,
(1977),
317,
(People v.
66
362
themselves.’
Monroe
Ill. 2d
N.E.2d
295, 296,
(1957),
People
v.
10
2d
quoting
Dempsey
ex rel. Noren
Ill.
288,
780,
293,
783;
(1993),
Ill.
People
App.
139 N.E.2d
v. Brewer
245
3d
890,
787,
894,
790;
(1990),
N.E.2d
v.
193 Ill.
3d
People
App.
615
Ward
580.)
677,
576,
682,
N.E.2d
defined
550
Relevant evidence is
as "evi-
any
dence
fact
having any tendency to make the existence of
is
determination
probable
of the
more
or
consequence to
action
(Fed.
probable
less
it
Evid.
than
would be without
evidence.”
R.
401;
(1986),
321, 334,
1327,
see
In
Elias
114
2d
499 N.E.2d
also
re
Ill.
1332; Monroe,
322,
(adopting
Ill. 2d
66
at
Materiality, consequence” or "fact of it is referred rules, relationship particular proposition Federal refers to (M. Graham, Cleary determination bears to the ultimate action. (5th 401.1, 128 & Graham’s Handbook of Illinois Evidence at ed. § 1990).) value, hand, tendency to the Probative on the other refers probable less particular proposition the evidence to render a more or evidence, by testing than it would be without and is determined proffered against light logic, experience accepted fact "the (1966), assumptions human Marut 34 Ill. as to behavior.” Costello v. 125, 128, 768, 2d 214 N.E.2d 769.
618 question of whether the
We have often considered the relevant to what driving party in an accident involved admit ev happened Generally, at site "courts will collision. depending party doing prior idence of what an accident degree actually proba what or most to which 'tends show [it] ” (Galowich v. Beech bly occurred at the time of the [accident].’ 46, 50, 128, 135, (1991), 568 Corp. App. 3d N.E.2d Aircraft 112, 539, quoting Ill. 2d Klavine appeal denied 141 358.) 355, 483, 487, ev Ill. Such App. v. Hair 3d N.E.2d the vehicle proffered testimony idence admissible if the identifies reasonably jury as the involved in the or one accident leads (Schneider (1965), 66 Wedding infer was the vehicle v. it same " 626-27), 7, 12, 624, 'the and cir App. Ill. N.E.2d and if facts 2d support inference that the conduct testified cumstances a reasonable point place to continued from the observation ” (Galowich, аt Ill. 3d at N.E.2d [accident].’ 3d quoting Eleopoulos v. Dzakovich 985.) on its own set of N.E.2d Each case must be determined (Wassman facts Ritchason 1028), may ] on "take[ and circumstantial where importance eyewitnesses, no available
more where there are was at may may method which it be shown who Klavine, at 358.3 fault.” Ill. estate, Klavine, In as administrator of the decedent’s brought wrongful against defendants whose death action negligence allegedly an automobile áccident resulted caused 484-85, (Klavine, Randall Klavine’s death. ground found for the defendants (Klavine, contributorily negligent. Klavine was proper whether *7 agree circuit to consider 3While we that it is courts tеstimony determining eyewitness a factor in whether to is available as disagree prior to we with the rule admit of conduct evidence is admissible advanced in Galowich that evidence of conduct (Galowich, 137, testimony. App. eyewitness 3d at 568 the absence 51.) that the rule set at that the court in case overstated N.E.2d We believe 12, 465, 46 N.E.2d which did not v. Ill. 2d 264 forth Plank Holman eyewitness testimony be allow evidence to introduced where reconstruction Clearly, applied preclude presented. cannot so as to was the "Plank” rule testimony party challenging eyewitness with relevant circumstantial from 919, Ry. 3d Chesapeake & Co. v. Ohio evidence. Babcоck ("Circumstantial competent is evidence 404 evidence N.E.2d 270 testimony eyewitness a fact may positive on to contradict be used lawsuit”). 358.) circuit that plaintiff contended appeal, On who had testimony of witness improperly excluded "leisurely” pace traveling at a plaintiff’s observed the vehicle (Klavine, Ill. approximately yards from the accident. that the circuit court held appellate 331 N.E.2d at because testimony was too remote finding proffered court erred facts circum- "sufficiently particular it under the was relevant (Klavine, N.E.2d at 3d at stances” of 358.) case. finding jury’s on testimony affected the Because the could hаve the cause court remanded contributory negligence, issue weight appropriate for a so could determine new trial that 488, 331 Klavine, Ill. testimony. value at 358. case, court, court in as did circuit
In the instant the circuit Klavine, regarding Rhodes’ her proposed found that was be relevant to "too remote” the accident to observations agree. Although hand. circuit court’s issue at We do deference, finding improper entitled it exclude evidence to to so theory central to defendants’ case and so consistent totality of the evidence. See v. Hertl O’Brien (stating to party "[e]ach entitled case, present theory as well evidence which is relevant to his to with his tends show conduct inconsistent opponent’s theory”); Dayan Corp. McDonald’s (same). trial, get theory hurry
At in a to defendants’ was that congestion city, bypass work on the northwest side of the tried right. on passing the feeder Wandolowski’s truck on theory, presented Consistent with evidence at defendants very heavy traffic was and slow at the time of the incident. Wan- testified traffic was a fact bumper-to-bumper, dolowski corrobo- get ability running someone’s board to tell him rated Likewise, accident. stated because of traffic about the Rhodes conditions, it took her to reach the accident scene de- sеveral minutes using spite emergency lights and siren. Plaintiff and Funkhouser flatly by stating proceeding that traffic was contradicted this evidence Stevenson, and 25 per 40 miles hour on the Thus, testimony, ramp. proposed miles hour Rhodes’ about that, congestion, her observations and about the because of traffic fact logically she unable to in that was stop plaintiff, relevant conditions, say nothing highly probative prevailing traffic geographically about close to the temporally actions Furthermore, was material in that it accident. the excluded evidence *8 directly to Nor was the went the cause of the collision. effect, outweighed by the evidence prejudicial value its because and it thoroughly theory of the case consistent defendants’ ability substantially jury’s to determine could have affected the negligence degree plaintiff’s comparative appropriate or the of negligence. support is no record the circuit court’s
There
basis
dissent,
finding,
upon by
elapsed
10 minutes
between
relied
Rather,
the record
the time of Rhodes’
and the accident.
observations
lapse
shows that there
a 10-minute
between Rhodes’ observations
Thus,
informing
of
of
receipt
report
and her
her
the accident.
first
and the
period
actual
time
between her
observаtion of
of
had to
been
Before Rhodes could
time
the accident
have
shorter.
report
the accident
report,
have received
witness had
police
dispatched
and the
had to have been
to Rhodes.
information
Clearly,
the accident occurred less than 10 minutes after Rhodes’
plaintiff’s shoulder-riding.4
observation of
distinguish
from
totality
The
facts in this case
those cases
they
because
could'
where
acts of
driver have been excluded
changed
span
time and
have
innumerable
times within
short
(See,
Co.
37 Ill.
e.g.,
distance.
v. Prince Warehouse
Flesberg
line);
(crossing
v. Ruan
App. 2d
The of the circuit court of Cook reversed the cause is remanded for a new trial.
Reversed and remanded.
McCORMICK, J., concurs. SCARIANO, dissenting:
JUSTICE majority case for reason that reverse and remand this judge [Sergeant the trial ruled that a matter of law what Rhodes] "as being ten not as too remote observed minutes beforehand is (264 3d impact.” as to what occurred at time of 401, adopted by the Supreme Federal Rule of Evidеnce Court (Fed. 401), way majority any Evid. and cited R. does not change long-established well-defined rule of law that the de as whether is is within the sound termination to evidence relevant decision is not to be discretion the trial and its overturned (1992), reviewing v. court absent an abuse thereof. O’Brien Hertl ("The 225, 217, 223, 238 Ill. 3d determination relevancy largely is discretion of the trial evidence within the interesting premised upon the cor
5It is to note dissent not that the is ruling, court’s the need deferential rectness circuit but rather on to be however, believe, holding appropriately deferential to it. We that our is which, ability present ruling having deprived the court’s of its defense theory case, permitted to stand. cannot be court, abuse of is warranted absent and reversal of its decision not 384, discretion!]”); 392, (1983), Barnes 112 Ill. 3d Bullard v. ("It is need citation of 445 N.E.2d so fundamental no largely admission authority is a matter within the judge is warranted discretion of the not reversal ]”), part an on other absence of abuse of that rev’d discretion! (1984), 1228; 2d accord v. grounds 468 N.E.2d Galowich Beech Corp. Aircraft 50; Eleopoulos 418 N.E.2d v. Dzakovich 980, 985; Brown v. Nale
9, 13; City Chicago Anthony Ill. 2d cf. (holding of the trial court it within discretion may expert’s opinion not determine whether admissible discretion). the court abused its be interfered unless Yet, circuit despite acknowledging their awareness evidentiary ruling within the sound judge’s on this issue was not be set aside discretion of the court make could therefore abused, out, majority, pay unless that discretion was it turns law, hoary they the well- lip service to that rule of overlook established definition of term "abuse discretion:” discretion, determining court abused its "In whether circuit agrees with the appellate] [the court should decide whether *10 decision; rather, determine whether the circuit court’s but should arbitrarily employment of without the consci- circuit court 'acted or, circumstances, judgment of all the exceeded entious view recognized law ignored principles of so reason and the bounds of ” Ray prejudice Insurance Co. v. that substantial resulted.’ Zurich 594-95, Industries, (1991), 591, Inc. Ill. 3d App. 213 572 mark (1986), 1122, 1119, Marriage In Aud 142 Ill. quoting re N.E.2d of 326, 894, 320, App. 491 898. 3d N.E.2d equally well-recognized explanation A of slightly different but by this court standard of review was offered the "abuse of discretion” 601, 609, (1990), App. 3d 566 N.E.2d as well in Schoon v. Hill 718, 724, said: where we judgment its appellate] of court is not substitute [the
"The role court, or whether the of even determine for that the circuit Rather, 'wisely.’ [Citations.] discretion circuit court exercised it discretion; if the circuit court abused its our task to determine discretion, decision of the circuit an abuse of the in the absence of *** be motion will not disturbed on granting denying or court review.” 593, (1948), 78 N.E.2d Whitney
Accord v. Madden ("[B]ut judicial has оf discretion power trial court the 596 where the law, abuse, scope the such and within it without exercises
623 ]”); In re reviewing by courts[ the actions will not disturbed 720, 349, 337, 603 N.E.2d (1992), Ill. 3d App. 236 Marriage Pearson of ("An would person no occurs when reasonable 729 abuse of discretion ]”); Printing Corp. Progress trial adopted by court[ the view the take App. Ill. 3d Byrne v. Jane Political Committee ("[A] question 1055, [a] court’s decision 601 N.E.2d circuit appeal] [concerning relevancy [on will be overruled evidence] the discretion); an Kirk v. Rosewell only represents if it abuse of obvious ("[Discre- 1214, 329-30, 326, 3d 587 N.E.2d Ill. the view only man would take tion is abused where no reasonable court[; differ as to the reasonablе men could adopted i]f the trial court, it cannot be said action taken the trial then propriety of the ]”); Application In re trial abused its the court discretion! 796, County Ill. Kane Collector being judicial action which (describing abuse of discretion unreasonable”). "arbitrary, fanciful us, fail apprehend, majority apprise I fail to and the how their overruling judge the trial on this issue conforms to formulae we above, by the law quoted are mandated to follow case subject. represents sample authority legion very recognize if all majority One can well wonder also they support holding except uphold the cases cite in one their instance, Eleopoulos, trial court’s exercise discretion. For jury finding returned a verdict in favor of defendant did negligently plaintiff wherein cause automobile accident 982.) injured. Ill. (Eleopoulos, alia, urged, On inter trial erred in appeal, plaintiff court excluding testimony passenger in the defendant’s automobile who would stated that short time before the have eye help in order the defendant took off road glove compartment. (Eleopoulos, look for an item 599-600, disagreed, appellate 3d at 418 N.E.2d at court holding properly testimony as the excluded this time witness could not "connect to the relevant Eleopoulos, frame.” 985. Transport Corp. In Hanck v. Ruan brought against an action the defendant and employee negligently operating gasoline tractor-trailer defendants,
transport. After found for *11 alia, argued improperly appeal, inter that the trial court excluded testimony of a witness for who would have testified just prior he saw defendants’ truck cross the centerline (Hanck, Ill. approximately accident 800 feet from the scene. 449.) rejected plaintiff’s 2d at 122 N.E.2d at The court testimony contention, nothing holding "[t]here *** testimony would as which that such witness offered indicates any transport was show observation of the manner being the same until driven from the time witness observed Hanck, at 449- 2d at сollision occurred.” Ill. 50. majority,
Additionally, in cases mentioned all of the other with re- exercise of its discretion this court affirmed the trial court’s (See, e.g., of a conduct accident. spect driver’s Ill. Wassman v. Ritchason 13; Brown, 245-46, Coo 1028; Ill. More-
per v. Cox over, determi- majority judge’s wherein the the lone case the cite Klavine, aside, involves a the issue of remoteness nation was set yards was witness’ determination plaintiff’s to see that he able scene traveling yards, that the vehicle was vehicle for a distance of 300 clearly amounting to a speed per to miles at a of 20 hour —all remotely 10-minute temporal approach that could not even span in this case. difference we encounter support the
The the record does not majority’s statement judge’s finding elapsed between the time of "that 10 minutes 620) (264 is to and the accident” Rhodes’ observations record itself: be contrasted COURT[, being after asked to reconsider its exclusion of
"THE shoulder-riding, stated]: earlier Rhodes’s your noon hour and materials. I read motion over the have is that and what I’ve been informed of What’s not there made 10 minutes the time observations were before occurrence. Judge, and the reason [counsel defendants]: MR. VACALA 10 minutes the time her observations were made before bumper bumper traffic from a was because was occurrence police vehicle stationary point where her unmarked observation that. stopped, lay will a foundation for and she testimony so dispute. far THE COURT:That is matter minimum, moving 30 miles at a has been that the traffic hour. * * * a time. too remote
What occurred 10 minutes before again respectfully I submit Judge, would once MR. VACALA: light here in quite in time is distorted that the minutes *** circumstances. traffic * * * *12 *** I’m, as matter ruling I’m just saying THE COURT: Rhodes] 10 minutes observed [Sergeant law that what beforehand at the time being as to what occurred as too remote added.) impact.” (Emphasis this offered inapposite. Since Consequently, Klavine is considerably more remote than case defendants in this Klavine, that under that decision proffered in it be said cannot excluding it. judge discretion in here abused his my as focusing they characterize on what majority, (264 Ill. ruling” glossing the circuit court’s over the "correctness of n.5), I accord the chiding me for the deference acknowledged meaning of abuse judge, obviously universally turn court appellate and redefine it: if the of discretion on its head what disagrees of the trial court’s exercise of with the result (never person what the reasonable indisputably its discretion mind might think), incorrect necessarily it must follow that the court was bootstrapping! abused its discretion. Shadеs of therefore a bit Appeals United views "correctness”
Our States Court elegantly: more pragmatically, even if less clearly erroneous, "To strike us more than be a decision must just maybe wrong; must, probably as one member argument, wrong recently during stated oral strike us as (Parts five-week-old,unrefrigerated with the force of dead fish.” (7th 1988), Motors, Electric, Sterling Inc. Cir. & Electric Inc. v. F.2d ruling existing authority requires
If majority’s displaces case appearance finding there be at a clear abuse least (see, e.g., Progress Printing Corp., discretion 1064), might olfactory one’s 601 N.E.2d at whatever its effect aside, may be set we the exercise of that discretion receptors, before may very why judges all. I therefore ask we need trial court well dissent.