## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Reed v . Aul t , 2012 IL App (2d) 110744

Appellate Court Caption AL LAN K. REED, Independe nt Administrator of the Estate of Br enda S. Reed, Dec ease d, Plaintiff-Appellant, v. SUSAN E. AUL T, De fe n dantAppellee

.

District & N o. Second District Docke t No. 2-11-0744

Filed May 3, 2012

Held (Note : T

his syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In an action arising from a situation that started when defe ndant’s vehicle slid off an icy

road a nd g ot stuck in a ditch and plaintiff’s dec edent wa s killed when she was struck by another vehicle afte r she stopped and went to aid defe ndant, the jury ’s rej ection of plaintiff’s claim that under the “re s cu e d octrine,” defe ndant proxi mately cause d dece dent’s death by placing herse lf in a position of peril and causing dece den t to attempt a

resc ue was aff

irmed, since the jury could have found that defe ndant was

n o t n eg lige nt and the resc ue doctrine did not apply
, or t hat t he do ct ri n e did not apply beca

use dece dent did not knowing ly place herse lf at risk to save de fenda

nt from imminent peril.

Dec ision Under Review Appea l from the Circuit Court of Stephenson County
, No. 07-L -039; the Hon. David L . J eff

rey , J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l H. Kent Heller
, of Heller
, Holmes & Associates, P

. C

. , o f Mattoon, for appellant.

Donna R. Honzel, of Mate er & Associates, of Rockford, f

or appe llee.

Panel PRES IDI NG J USTI CE J ORGENSEN delivere d the judgme nt of the court, with opinion.
J ustices McL are n and Hudson c oncurr ed in the judg ment and opinion.

OP INION

¶ 1 In 2007, defe ndant, Susan E. Ault, lost control of her ve hicle on an ic y road a nd ended
up in a ditch. Br enda S. Reed stopped her vehicle and, as she ap proac hed defe ndant, was struck and killed by another vehicle that lost control on the ice. Plaintiff, Allan K. Reed, as i ndepende nt administrator of Br enda’ s estate, sued defe ndant for neg lige nce. Specifical l y , plaintiff alleg ed, pursuant to the “re scue doctrine,” that defe ndant place d herse lf in a position of peril and, when Br enda attempted to resc ue her, proxi mately cause d Br enda’ s death. On April 13, 2011, a jury

reje cted plaintiff’ s neg lige nce claim and found in defe ndant’s fa vor. Pla i n t i ff appea ls, arguing that: (1) defe nse counsel committed plain error in closing
argument; (2) the court err ed in sustaining a defe nse objection during plaintiff’s rebutt al closing argument; (3) the court err ed in ref using two of plaintiff’s proposed jury instructions and allowing
, instead, def endant’ s proposed instructions re g ardingthe re scue doc trine and burden of proof

there on; and (4) the jury ’s ver dict is c ontrary to the manifest weight of the evidenc e. F or the followingrea sons, we af firm.

¶ 2 I . BA CKGROUND ¶ 3 A. Over view ¶ 4 The witnesses at t rial were comprised of the drivers and/or passenge rs of five vehicles that either wer e involved in the acc ident or stopped afte r the acc ident. To provide an overa ll picture of the scene , we briefly note that the acc ident happene d on Route 26 near Fr eepor t. Def endant was driving south on Route 26 but lost control of her vehicle; it landed in the ditch adjac ent t o the northbound lane (vehicle 1). After seeingdefe ndant land in the ditch, three vehicles stopped: (1 ) Br en da was driving north on Route 26 and, afte r viewing d ef endant g o off the road, came to a stop south of defe ndant’s car , on the shoulde r o f t h e northbound lane (vehicle 2) ; (2) Robert Martin, who was driving north, pulled his car into a drive way

north of def

endant’ s vehicle ( vehicle 3) ; and (3) B randon K emp, who was a lso driving his truck north, stopped on the shou l d er o f t h e northbound lane, behind Br enda’ s

-2-vehicle and, there fore
, south of defe ndant’s vehicle (vehic le 4). The vehicle that struck and

killed Br enda, here inafter the Morrison vehicle, was driving south on Route 26 when it lost control and came to rest in the ditch adjac ent to the northbound lane and south of defe ndant’s vehicle ( vehicle 5)

.

¶ 5 B. Evide nce at Trial ¶ 6 Def

endant testified at trial that, on Marc h 3, 2007, at around 12:45 p.m., she was driving south on Route 26 on her way to Fr eepor t. The speed limit on Route 26 is 55 miles per hour and defe ndant was driving betwee n 50 and 55 miles per hour. It was a sunny day and it was not snowing or raining ; howeve r, it was cold and windy and, as it had snowed the night befor e, there was snow on the g round and there wer e occasional patches of snow, ice, and slush on the road. Def

endant testified that, despite the occa sional snow patch, the roads wer e clea r and she was not experiencing any sliding. Def endant testified that she does not use her cell phone while driving and that she was not using her cell phone, smoking, or eating when the ac cident occ urre d; rather , her phone was in her purse and her hands wer e on the whe el
at the 9 o’cloc k and 3 o’cloc k positions beca use she did not know what the next are a of road would be like. As defe ndant approa ched a curve in the road near Fr eepor t, she saw another patch of snow and ice. As she had done with prior ice patche s, defe ndant slowed her car to 40 or 45 miles per hour

and kept both hands on the wheel. Def endant’ s car slid on the ice; she panicke d and rea cted by applying the brake s, losing control of the vehicle. At trial, she

was asked “and you knew you shouldn’t hit t h e b rakes,” and defe ndant replied “yes.” Def endant’ s car made a complete revolution and slid acr oss the road, of f the shoulder, and down into the bottom of a ditch. ¶ 7 Def

endant took a deep breath and tried to move the car , but the whee ls spun and the car was stuck. When def

endant trie d to open her driver’ s side door, she rea liz ed she could not
open it far enough to exit beca use it was resting ag ainst a snow drift. Def endant then exit ed from the passeng er- side door. When asked to estimate the time it took for her to exit the car afte r landing in the ditch, defe ndant testified that it took a “couple [of] seconds, just stopped, took a bre ath, re alized Icouldn’t g et out of my car on that side, opened the passeng er side,
g ot out.” As defe ndant exit ed her car , planning to use her cell phone to call a tow truck, she

saw Br enda and her son, Be njamin, who had been trave ling north on Route 26 befor e stopping, walking toward her on the shoulder. Def endant assumed they had stopped to see 1 if she was all right. Def

endant was n o t i n

jured and she walked at a normal pace up to the shoulder and to wa rd Br en da and Be n. Def endant intended to tell Br enda that she was fine and thank her for stopping, but Br enda was approximately one block awa y and defe ndant did not holler. ¶ 8 Be fore defe ndant had an opportunity to spe ak with Br enda, she heard Ellen Morrison’s vehicle approa ching and, when she looked at it, she could tell it was g oing to lose control on the ice patch. Def

endant turned to run back toward her ca r, t ry i n g to g et to a safe spot;

T he sno w hadbee n pu she d of f t he r oadanddown int o t he d it ch, le aving a stri p of gravel 1
on t he s houl der

.
-3-Br enda and Be n ran in differ ent direc tions. She h ea rd the impact of Morrison’s vehicle

striking Bre nda. W hen M o rr i s o n ’s vehicle came to a st op, it landed in the di tch about one block awa

y from defe ndant’s vehicle. After calling 911, defe ndant noticed for the first time
t h at another car had stopped and was sitti ng in a near by drivewa

y

. A man was st an d i n g outside the vehicle, and a woman was sitti ng inside. Def endant approa ched the car and told the woman that she was okay and that she had called 911. Def endant told the woman and the 911 operator that Br enda ha d stopped to help defe ndant. ¶ 9 Prior to the acc ident involving Morrison’s vehicle, defe ndant had not tried to flag anyone down or di re ct t ra ff

ic and did not notice anyone else doing so; she believed her car was located in a spot far enough off the road that it would not cause a problem. Def endant did not think she was in any dang er and did not think “in a milli on year s” that someone else would slide off the r oad the same way , same time, that day

. A tow truck pulled defe ndant’s car to the road, but there was no damag e to it and she drove it home. After the acc ident, defe ndant

saw a plow come to clea

r the curve where she and Morrison had sl id. Fur t h er , s he heard a State Trooper talk about the fac t that the roadw ay was “banke d” a littl e bit as it curve d to the left. ¶ 10 Be n Reed testified that he was ag e 15 at the ti m e of these events and that Br enda w as driving him to a band competition. They wer e driving north on Route 26 and saw defe ndant’s

car spin out of control in front of them and end up in the ditch. It appea red to Be n that, as the

car slipped off the road, the car ’s driver was turning the wheel to try to control the car

. Be cause Br enda was a nurse, Be n asked her to stop to chec k on the person who had spun into the ditch. Br enda stopped the car and went to talk to other drivers who h ad p ulled over, including three men and a woman. As Be n and Br enda approa ched the vehicle in the ditch, Be n noticed “a lady climbing out of the window” of the driver’ s side of the car

. The car was pretty far off the road and, althoug h it appea red stuck, i t wa s n o t o n fi re and there was no smoke or steam coming from it. Be n saw the driver g et out of the car and walk toward him, but then his attention was drawn to the Morrison vehicle, which was coming pretty fast. He

ran toward the car in the ditch to g et out of the way

. The Morrison vehicle slid past him, hit the Reed c ar, a

nd hit Bre nda. ¶ 11 Robert Martin testified that, on Marc h 3, 2007, he and his wife, Tina, wer e drivingnorth

on Route 26. It was a sunny day
, but windy
, approximately 40 degree s, and some snow had drifted the night befor e. The roads wer e “fa irly clea r,” with snow drifting acr oss on occa sion. Are as with slush build-up wer e “fe w and far betwee n.” Martin was driving betwee n 50 and 55 miles per hour. As he approa ched a curve in the road, Martin noticed snow blowing acr oss it and a “lot of slush on it.” He slowed down beca use he had driven the road numerous times and knew that “that curve is a menac e when it comes to snow blowing” and that it is a particula rly slick curve beca

use of the way it banks from left to right. Martin saw defe ndant’s vehicle approa ch the curve ; h e t es tified that he saw her hit the brake s and start to slide, rotating around and landing i n t h e ditch approximately 15 fee t awa y from the road. As defe ndant’s vehicle c rossed his lane of traff ic and in front of him, Ma rtin “believe [d] ” that

-4-defe ndant had a cell phone in one hand and a cig are tte in the other. After defe ndant’s vehicle 2 stopped, Martin could see that it was not damag ed, smoking, or steaming
, and it simply looked stuck. ¶ 12 Martin drove north and pa rked in a drivewa

y ; for her safety
, he tol d Tina t o stay in the

car and he exit ed, int ending to see if defe ndant was okay

. He observed that defe ndant was moving around in her vehicle; she did not appea r injured, so, when he went to chec k on her, it was to make sure she had someone coming who could pull her out of the ditch, to g ive her

a ride, or to let her sit in his car to keep war m while waiting for help. Martin saw that another

car (the Reed vehicle) and a tr uck (w ith three pe ople who stayed inside the truc k) had a lso pulled over onto the shoulder. Martin beg an walking at a normal pace beca use he did not fee l
any need to hurry

. Simi larly
, he saw Br enda and Be n exit their vehicle and walk, at a normal
pace , toward defe ndant’s car ; defe ndant was still in her vehicle. Martin felt that defe ndant’s

car was far enough off of the road that it was well out of h arm ’s way , and he was not

conce rned about himself or anyone else being in dang er. A couple of minutes later, he hear d traff ic noise, saw Morrison’s J eep approa ching the slushy are a, and was conce rned beca use the youngdriver w as driving 50 to 55 miles per hour and wa s on her c ell phone. Until this point, Martin ha d not thought that a nother car might have trouble at the same spot of slush and did not think it was likely to happen twice in the same spot. As the J eep started to slide, Martin yelled at B renda

and B en, and B en looked up a nd jumped out of the wa

y . The Jeep turned and hit Br enda, landing about 30 fee t from defe ndant’s car

. In his deposition, Martin testified that, when the J eep b ega n sliding toward Br enda, he believed defe ndant was standingoutside of her

car and wa s talking on he r ce ll phone. ¶ 13 After Br enda was hit, Martin asked his wife to g o far ther north to try to slow down ca rs that might be coming

. He wa s conce rned about the curve and that drivers might not e x pect the cur ve to be a s slippery

as it was, and he t houg ht drivers w ould have a hard time see ing if there wer e something on the road, or they might not a pprec iate how slick or de ep the ice and slush wer e. Martin later mentioned to a police office r that a plow should clea r the curve , and, at some point, that occ urre d. ¶ 14 M ar t i n wa s d ep o s ed on J uly 6, 2010. At that time, Martin ref err ed to notes h e h ad
p repared that wer e dated the day of the acc ident. He testified that he had not shar ed th o s e notes with anyone. 3 ¶ 15 Br andon Kemp testified that he was driving his pickup truck north on Route 26 with two
passen ger s , Michae l Dierkse n and Mi kaey la R ickman, when he saw defe ndant go i nto the ditch. Acc ording to Kemp, defe ndant’s ca r wa s ap p rox imately 30 to 40 fee t off of the roadw ay

. Kemp pulled over his truck onto the shoulder, behind Br enda’ s vehicle, and he g ot

I n pla int if

f’ s app el la te bri ef

, he st at es tha t “on cr oss

- exa m ina t i o n , o p pos ing cou nse l 2
sugg est ed to Mr

. Ma rt in tha t the fi rs t t ime he had m ent ion ed tha t [de fe nda nt] was on a cel l phon e

or smoking a ci garet te was at the ti m e of his dep osi ti on.” Pla int if f pro vides no re cor d ci ta ti on for thi s pro pos it ion , an d we d id not , in ourre view of the re cor d, fin d any suc h sugg est ion dur ing M arti n’s

cr oss

- exa m ina ti on.

T his in for m at ionapp ear s i n t he r eco rd as an a tt ach m entto pl ai nti ff’s pos tt ri al m oti on. 3

-5-out of the truck to see if defe ndant neede d him t o ca ll anyone or to tow her car out of the

ditch. Prior to this incident, road conditions had not cause d Kemp to slow his vehicle below 55 miles pe r hour. Def

endant’ s car looked stuck, not damag ed, and he could see defe ndant moving around i n her car and t hen q u i ck l y ex i t her vehicle. Kemp was not conce rned that defe ndant was at all injured, based upon the manner in which defe ndant moved and beca use she qui ckly exit ed her car

. Indeed, although Kemp and his passeng ers had ce l l p h o n es , no

one discussed calling 911; defe ndant’s car just appea red stuck. Kemp and Br enda exchang ed pleasa ntries, they walked in a normal pace toward defe ndant, and there was no conver sation of calling for emer g ency service s or conce rn that defe ndant was in dang er. As Kemp walked toward defe ndant, he saw Morrison’s J eep coming ; he wa s s u rp ri sed beca use it was not something that had occur

red to him as likely to happen, and he had not been conce rned that

car s might slide into him and strike him while he walked on the shoulder. There was no time to y ell befor e the Jeep hit Br enda. D ierksen te stified consistently with Kemp. ¶ 16 Ellen Morrison testified that she wa s driving under the speed limit
, 50 to 55 miles per hour, when she came to the curve

. Prior to her sliding on the curve , she had not encounte red
any slipping or sliding on the road that day
, the roads wer e otherwise “fine ,” and she did not notice the s n o w, s l ush, or ice on the curve

. Morrison testified that she was not on her cell phone when she slid. When Morrison started to spin, she was conce rned that she would hit Br enda’ s vehicle parke d on the shoulder, not the car in the ditch. Morrison testified that she

rec eived a

ticket from the police office r who responde d at the scene

. Her car was damag ed from hitting B renda

and hitting B renda ’s ca

r, and it wa s towed fr om the scene

. ¶ 17 State Trooper

Erin L anthrip testified that she responde d to the scene

. L anthrip testified that she was t h e l as t s t ate car to arrive and, upon her arrival, she: (1) spoke with her

cowor k er s , wh o had obtained some witness information; and (2) “just took acc ount of t he

scene basica lly .” L anthrip testified that her duties include prepa ring repor ts and diagrams at

cra sh scene s and that she used the information she had obtained from her cowor kers, as well

as the information she g ather ed, to prepa re an acc ident repor

t. Using her repor

t to ref resh her

rec ollection, L anthrip rec alled that the curve on Route 26 is g rade d or banked on a slope and that, the day of t he accident, t h e cu rv e had snow and sl ush on it. She ticketed Morrison as having cause d the cra sh, an d she prepa red for her repor

t a diagram of the locations of the
persons and vehicles involved in the acc ident. On that diagram, Unit 1 was used to depict Morrison’s vehicle as the vehicle that cause d the cra sh. Unit 2 repr esente d wher e Br enda’ s body was located on the g round. Unit 3 repr esente d Br en d a’ s car

. L anthrip testified that defe ndant’s vehicle was de picted on the diagram only as an outline of a

nother c ar w ith the

wo rd s “n o t related” next to it beca use it was involved in an incident separ ate from th e

acc ident. In the narr ative section of her r eport, L anthrip noted that de fenda nt’s vehicle lost control and landed in the ditch and that Br enda stopped to che ck o n d efendant; howeve r, L anthrip testified that defe ndant’s loss of control was separ ate and apar t from the cra sh, and,
so, she did not make note of the license plate number or vehicle identifica t i o n n u m b er on defe ndant’s car

. L anthrip testified that defe ndant’s vehicle was ou t of harm’s way and, further
, that it just appea red stuck, but not damag ed. L anthrip’s repor t lists Martin as a witness, but attributes no statements to him. Def ense cou n s el asked L anthrip whether she
wrote the ticket that Morrison testified she rec eived. Plaintiff objected, and the court

-6-sustained t h e o b j ection. Def

ense counsel asked L anthrip, “you did not write a ticket for [defendant? ]” Pl aintiff objec ted, and the c ourt sustained the objec tion. ¶ 18 On cross-e x amination, L an t h ri p agree d that succe ssive collisions are a conce rn whe re roads are icy

. I f there is sufficie nt manpower , controlling traff ic so that no one else g oes off the road at the same point helps to ensure that no one is injured. L anthrip testified that other office rs perf

ormed traff

ic control, both to prese rve the scene and to preve nt other acc idents. She agree d that, at a c rash sc ene, one puts himself or herse lf at risk by exit ing a vehicle.

¶ 19 C. Clos ing Arguments ¶ 20 In plaintiff’s closing arg ument, counsel commented that Martin had testified that, when defe ndant lost control of her car , she was on a cell phone and smoking a cig are tte. He noted that Martin “had no pony in this rac e” and no rea son to testify falsely

. “I f she wasn’t talking

on the cell phone and that wer e an issue, there would be a bill to show you that there wasn’t
any cell usag e at that time; and you don’t have that.” ¶ 21 In response , defe nse counsel noted in her closing argument that, reg arding the cell phone and cig are tte testimony , “the f irst time Mr. Robert Martin was ever asked about the details

was three to three -and- a-ha lf year s after t h is incident ***. *** Mr. Martin, trying to be helpful, but three -and- a-ha lf year s later, sometimes with time you add fac ts. You fill in fac ts, kind of g oing back and trying to think how things are .” Fur ther, counsel noted that, if there

wer e a cell phone bill ref lecting that d ef

en d ant was on her cell phone at the time of the

acc ident, plaintiff ce rtainly would have produce d that. Plaintiff’s counsel did not object to this testim ony

. ¶ 22 In his rebuttal closing argument, plaintiff’s counsel stated that L anthrip testified that “she took statements from all the people that wer e at the scene the day of the incident. And if Mr. Martin had said something differ ent at the time he was at the scene than he did wh en h i s deposition was taken, you can be sure that [defense counsel] would have mentioned that.” Def ense c ounsel objecte d:
“DEF ENSE COUNSEL : Objection, that’s not in evidenc e and no suc h statement. THE COURT: Sustained. The jury will disreg ard that.
PLAI NTI FF ’S COUNSEL : But you hear d the officer s ay she took the statements from eve ry

one of the se people

. DEF ENSE COUNSEL : Objection, fa cts not in evidence

. PLAI NTI FF ’S COUNSEL : That is what she testified to, Judge.
THE COURT: Quite fra

nkly , I don’t reme mber whe ther she te stified to that or not. It will be the jury ’s collec tive memory as to whethe r she testified to that.”

¶ 23 D. J ury Instructions ¶ 24 The court instructed the jury reg arding neg lige nce, explaining that neg lige nce means the failure to do something that a rea sonably car eful person would do, or the doing of something that a rea sonably car eful person would not do under simil ar circ umstances. Fur ther, the court

-7-instructed that ordinary car e means the car e a rea sonably car eful person would use under the

circ umstances and that defe ndant had a duty to use ordinary car e to avoid placing herse lf in dang er. ¶ 25 Be fore instructing the jury
, the court had reje cted p l ai n t i ff’s proposed jury instruction Nos. 18 and 19 in favor of defe ndant’s instruction Nos. 6 and 16. Instruction Nos. 18 and 19, refused by the cour t, stated as follows:
“N o

. 1 8 : The Rescue Doctrine arises when a Plaintiff bring s a neg lige nce action
ag ainst a Def

endant whose neg lige nce has place d a party in a position of peril even if it is the defe ndant himself. I f the Plaintiff is injured in the attempted resc ue, he is allowed
to neg ate a presumption that: (1) his intentional act of resc ue is the superc eding cause of his injuries, thereb y al l o wi ng him to prove that the Def endant’ s neg lige nce is the proxi mate cause of his injuries; and (2) that he is guilty of contributory neg lige nce by the

mere act of voluntarily assuming that known risk of harm unless he acts rationally [ sic ]

or rec klessly

. Essentially
, the Doctrine provides t h at it is alway s fore seea ble that

s o m eo n e m ay attempt to resc ue a person who has been place d in a dange rous pos ition and that the resc uer may incur inj u ri es i n so doing. There fore
, if the Def endant was neg lige nt in placinga per son in dang er, he is also neg lige nt towards the r escue r. No. 19: That Plai n t i ff claims that the Def endant’ s next-of-kin are entitled to compensation as the result of the neg lige nt acts of the Def endant. In order to preva il, the Plaintiff is required to prove the following : 1) that the De fenda

nt committed a neg lige nt act; 2) that the ne g lige nt act place d the Def endant or some other pe rson in a position of
perc eived da

ng er; 3) that the Plaintiff’s Dec edent was attempting to provide aid or ‘re scue’ the person in the place of dang er; 4) that as a result of the attempt to provide aid or resc ue the Def endant, the Plaintiff’s Dec edent wa s killed.
I f you find from your consideration of the evidenc e that the Plaintiff has proven eac h of the propositions require d to be proven, then your verdic t should be for the Plaintiff and
you should a ssess damag es as provided in the se instructions. I f you find, howeve r, that the Plaintiff has not proven any one of these propositions, then your verdic t should be for the Def endant.” ¶ 26 Def

endant’ s instruction Nos. 6 and 16, acce pted by the court an d p rovi ded to the jury
, explained as follows:
“No. 6: The Rescue Doctrine aris es wh en a plaintiff bring s a neg lige nce action
ag ainst a defe ndant whose neg lige nce has place d the defe ndant in a position of imminent peril or danger

. I f t he plainti ff in an attempt to save the life o r s ecure the safe ty of t he defe ndant voluntarily assumes a known ri sk of harm and is injured in that attempted

resc ue, she is allowed to neg ate a presum p t i o n that her intentional act of resc ue is the

cause of her injuries. This allows her to prove t h at the defe ndant’s neg lige nce is the proxi mate cause of her injuries and not he r actions in attempting a resc ue in the fac e of

-8-a known risk of harm. The plaintiff is also allowed to ne g ate a presumption that her act of assuming a known ris k was contributory neg lige nce, unless she acte d rashly or

rec klessly

. No. 16: The plaintiff claims that the dece dent’s next-of-kin are entitled to compensation as the result of the neg lige nt acts of the defe ndant. In order to preva il, the plaintiff is require d to prove the f ollowing: 1. That the de fenda

nt committed a neg lige nt act; 2. That the defe ndant’s neg lige nt ac t place d the defe ndant herse lf in a position of imminent peril or danger ; 3. T h at t h e plaintiff’s dece dent voluntarily assumed a known risk of harm in an attempt to save the life or secur e the safe ty of the defe ndant in that position of imminent peril or danger ; and
4. That as a proxi mate cause of the attempt to resc ue th e defe ndant, the plaintiff’s dece dent was killed.
I f you find from your consideration of the evidenc e that the plaintiff has proven eac h of the propositions require d to be proven, then your verdic t should be for the plaintiff and
you should assess damag es as provided in the se instructions. I f you find, howeve r, that the plaintiff has not proven any one of these propositions, then your verdic t should be for the def endant.” (Emphase s added.) ¶ 27 The court briefly explained that it found defe n d an t ’s i n s t ru ct i o n s t o b e clea r, less confusing to the jury than plaintiff’s proposed instructions, more consistent with the case as it was prese nted to the jury
, and more acc urate in ref lecting the resc ue doctrine as define d in

case law.

¶ 28 E. J ury Ver dict and Posttrial Motion ¶ 29 The jury returne d a verdic t i n d ef en d an t ’s favor

. The court denied plaintiff’s posttrial motion, wher ein plaintiff attache d a note, purportedly hand wr itten by Martin and labeled “M ar t i n Ex

. 1,” that was dated Marc h 3, 2007. In the note, Martin rec ounted the acc ident
events and stated that, when he saw defe ndant fishtail, slide, and turn 180 degree s, she was talking on a

cell phone a

nd a cig are tte was in her

hand. Plaintiff appe als.

¶ 30 I I . ANALYSI S ¶ 31 A. Plain Error ¶ 32 P l ai n t i ff ar gu es fi rs t t h at d efe nse counsel’s comments in closing argument wer e improper. Specifica lly
, plaintiff notes that defe nse counsel sug g ested to the jur y th a t Martin’s testimony reg arding d efendant smoking a cig are tte and using her cell phone during the

acc ident arose for the first time 31⁄2 year s afte r the acc ident. This was imp ro p er , plaintiff
argues, beca

use Martin did not testify that he was questioned for the first time 31⁄2 year s afte r the acc ident, and, indeed, “[L anthrip] testified that she interviewe d all of the witnesses at the

scene .” Fur

ther, plaintiff notes, defe nse counsel had in her possession Martin’s handwr itten statement, draf

ted the day of the acc ident, which mentioned that defe ndant had a cell phone

-9-and cig are tte. There fore
, plaintiff conclude s, counsel’s sug g estion that Martin fabricated this

information was known by counsel to be untrue and was unsupported by the evidenc e. Plaintiff notes that counsel argu ed at trial that defe ndant did nothing an ordinary person would not have done; thus, whether defe ndant was smoking and talking on the phone while driving through snow and slush might have been important to the jury ’s deliberation on this issue. Thus, plaintiff conclude s, counsel’s sug g estion that Martin invent ed fa cts was so improper a s to deprive plaintiff of a fa ir trial. ¶ 33 De fe n d an t n o t es that plaintiff did not object at trial to defe ndant’s statements an d
, there fore
, that this issue is forf eited. See Babikian v. Mruz
, 2011 I L App (1st) 102579, ¶ 14 (fa ilure to contempora

neously object to alleg ed er

ror in closingargument forf eits issue for revie w). Although plaintiff does not s p ecif ically reque st this court to revie w the issue for plain err or under I llinois Supreme Court Rule 615(a) (I ll. S. Ct. R. 615(a) ), she states, in her issue statement, that counsel committed plain error and she asser ts g ener ally that counsel’s
comments deprive d her of a fair trial. We note that applica t i o n of the plain-er ror doctrine (which may permit a revie wing court to revie w claims of err or not proper ly prese rved at trial) in civil case s is “excee dingly rar e.” (Interna l quotation marks omitted.) Matthews v. Avalon P et r o l eu m Co.
, 375 I ll. App. 3d 1, 8 (2007). Plain err or applies in civil case s only wh er e there was an egreg ious err or so preju d i ci al that it deprive d the complaining party of a fair trial. Id. ; see also Ge is e v. P h o enix Co. of Chicago, Inc.
, 159 I ll. 2d 507, 514 (1994) (in a civil case , a court may revie w fo rfe ited err or when nece ssary to a “just result” and to maintain a “sound and uniform body of prec edent” ); Simmons v. University of C h icago Ho s p i tals
, 162 I ll. 2d 1, 12-13 (1994) (in a civil case , a court may revie w forf eited err or wher e the litigant did not rec eive a fair trial or the judicial proce ss suffe red “dete rioration”)

. Neve rtheless, the applicability o f the plain-er ror doctrine (or any other exception to forf eiture) is imm ater ial here beca use there was no e rror

. ¶ 34 T h e p re

j u d i ci al i mp ac t of comments made in closing arg ument is left to the soun d discretion of the trial court. Petraski v. Thedos
, 2011 I L App (1st) 103218, ¶ 97. Attorney s

are permitted wide latitude in closing argument. Id. Her e, the court did not abuse its discretion in failing to sua sponte order a new trial. First, defe nse co u n s el d i d not acc use Martin of fabricating his testimony

. Rather, counsel’s arguments that Martin was not asked the “deta ils” of the event unt i l h i s 2 0 1 0 deposition and that, there fore
, details might have been “ filled-in” ove r time, perta ined to the cr edibility of Martin’s comments reg ardingthe cig are tte and cell phone. S econd, counsel’s comments wer e not contra ry to the evidenc e. L anthrip did not testify that sh e (a s opposed to her cowor kers) interviewe d all of the witnesses at the scene , that the witnesses provided any statements, or that the witnesses wer e asked to provide any detailed information reg arding defe ndant g oing off the road–a s opposed
to Morrison’s vehicle hitting Br enda, which, as L anthrip testified, was the only acc ident she

was investigating. Nor did Ma rtin testify at trial that, at any time prior to his deposition, he discussed with police or a nyone else the details about defe ndant s liding int o the ditch and, specific ally
, his rec ollection that defe ndant was holding both a cig are tte and a ce l l p h o n e. Fur ther, at his deposition, Martin agree d that the handwr itten notes that he prepa red the day of the acc ident had not previou s l y b ee n share d with anyone

. Martin was not asked about
t h es e n o t es at trial. Thus, there is no dispute that Martin’s handwr itten notes wer e n o t

-10-provided to police, nor wer e they

mentioned bef

ore or prese nted to the jury

. ¶ 35 It is the jury ’s function to weigh the cre dibilit y of evidenc e. Snover v. McGraw , 172 I ll. 2d 438
, 4 4 8 (1996). Def

ense counsel was permitted to argue to the jury why it should not place g reat weight on portions of Martin’s testimony

. There is nothing in the rec ord ref lecting that Martin was ever asked about the details of defe ndant’s acc ident prior to his deposition, which was undisputedly more than t h re e year s afte r the acc ident. His handwritten notes, which wer e not prese nted at t ri al, are not rele vant to this court’s consideration of whether counsel’s c omments wereso unfair a s to require a new trial. Thus, plaintiff’s c laim fails.

¶ 36 B. D efe nse Objec tion DuringPlaintiff’s Closing Argument ¶ 37 Plaintiff next argues that the c ourt err ed in sustaining de fenda nt’s objection duringher rebuttal closing argument. Specifica lly
, plaintiff argued to the jury that, if Martin had g iven

a statement to police inconsistent with his d ep o s i t i o n or trial testimony
, defe ndant would have prese nted that inconsistent statement at trial. Def endant’ s objection was sustained. Plaintiff argues that the court err ed beca use he could not, in closing
, rebut defe ndant’s claim of rec ent fabricatio n wi t h a prior consistent statement and, there fore
, counsel’s mere argument to the jury

that Martin consistently

told the truth was prope r. ¶ 38 Ag ain, plaintiff ref ers to a prior police statement that does not exis t. Plaintiff r epeatedly ref ere nce s that L anthrip testified that she interviewe d ever yone at the scene

. Howeve r, L anthrip testified that she spoke only wi th her cowor kers who had obtained some witness information. Alt houg h Mar t i n i s l isted on the crash report as a witness, there is absolutely

no statement in the rec ord explaining whether he was questioned about defe ndant g oing off the road and, if he was, whether he said any thing about her being on a cell phone and holding a ciga rette. Ag ain, M artin di d not even testify that he sp o k e wi t h police about defe ndant’s

acc ident, let alone what he told them. There fore
, wher e plaintiff’s couns el in closing
argument repe atedly stated that L anthrip testified that she took statements at the scene , which

was c ontrary

to the evidenc e, the c ourt properly sustained def

endant’ s objection.

¶ 39 C. J ury Instructions ¶ 40 Next, plaintiff argues that the trial court err ed in reje cting his proposed jury instructions. Specifica lly
, he argues that def en d ant’s instructions, which the court allowed, wer e misleading beca

use they stated that defe ndant must be in a position of imminent peril and that the position o f p er i l must be life-thre atening

. Plaintiff argues that the law require s neither imminent peril nor life-thre ateningdang er f or the re scue doc trine to apply

. ¶ 41 The determination whether to g ive a jury instruction lies i n th e trial court’s discr etion, and we wi l l n ot reve rse that deter mination unless no rea sonable person would adopt the court’s p o s i t i o n

. Eskew v. Burlington Northern & Santa Fe Ry. Co.
, 2011 I L App (1st) 0 9 3 4 5 0
, ¶ 31. “The standard for deciding whether a trial court abused its discretio n i s whether
, tak en as a whole, the instructions fairly
, fully
, and comprehensively apprised the jury of the rele vant leg al principles.” Schultz v. Northeast Illinois Regional Commuter R.R. Corp.
, 201 I ll. 2d 260, 273 (2002). Fur ther, we will not reve rse a trial court for g iving faulty instructions unless the instructions clearl y m isled the jury and resulted in prejudice to the

-11-appellant. Id. at 274.

¶ 42 The resc ue doctrine arises when a plaintiff bring s a neg lige nce action ag ainst a def endant whose neg lige nce has place d a t h i rd p arty or himself or herself in a position of peril. Tannehill v. Costello
, 401 I ll. App. 3d 39, 42 (2010); Strickland v. Kotecki
, 392 I ll. App. 3d 1099, 1104 (2009) (considering as a matter o f first impression whether the doctrine could apply wher e the defe ndant place d himself or herse lf (not a third party ) in a position of peril and an s wer ing that question in the aff irmative). “A resc uer is someone who voluntarily attempts to save the life or secur e the safe ty of another who is in a position of peril. [C itation.] Often, when a resc uer comes to the aid of another
, the resc uer knowing ly subjects himself to imminent peril.” (Emphasis added.) Seibutis v. Smith
, 83 I ll. App. 3d 1010, 1015- 16 (1980). The doctrine applies to protec t the resc uer, whose contributory neg lige nce would otherwise prec lude rec overy for the damag es he or she sustained in t h e re scue eff ort. See Dev ine v. Pfaelzer
, 277 I ll. 255, 259 (1917 ) (r ec o gn i zing that the purpose of the resc ue doctrine is to permit rec overy wher e contributory neg lige nce would ordinarily defe at the action). Acc ording ly
, beca use of the risk and beca

use public policy interests promote resc ue, the doctrine permits the plaintiff ( i.e.
, resc uer) who is injured in the att em p t ed re s cue to neg ate the presumptions: (1) that his or her intentional act is the superse ding cause of his or her injuries, there by establishing the defe ndant’s ( i.e.
, resc uee’ s) neg lige nce as the proxi mate
cause; and (2) that, unless he or she acts rashly or rec klessly
, he or she is guilty of contributory neg lige nce by voluntarily assuming a known risk of harm. Seibutis
, 83 I ll. App. 3d at 1016; see also Strickland
, 392 I ll. App. 3d at 1102. The doctrine essentially provides 4 that “it i s al wa y s fore seea ble that someone may attempt to resc ue a person who has been place d in a dang erous position and that the resc uer may incur injuries in doing so. There fore
, i f the defe ndant is neg lige nt towards the resc uee [which, per Strickland
, may incl u d e himself], he is also neg lige nt towa rd the resc uer.” W

illiams v. Foster
, 281 I ll. App. 3d 203, 207 (1996). Thus, “a defe ndant cannot be liable under the resc ue doctrine unless his conduct is neg lige nt.” McG inty v. Nissen , 127 I ll. App. 3d 618, 620 (1984). ¶ 43 Whil e plaintiff is cor rec t that courts often describe t he rescue doctrine a s applying in a situation involving “peril” or “dang er,” with no expli cit require ment that the peril or dang er be “imminent,” it is, never theless, clea

r that the doctrine is ty

pically applied when the peril

or dang er is, in fac t, imminen t

. See Strickland
, 392 I ll. App. 3d at 1100 (the plaintiff was injured when he jumped a fenc e t o re s cue the defe ndant, who was attempting suicide by running a hose from his exhaust pipe to the passeng er window of his car); W illiams
, 281 I ll. App. 3d at 204 (the plaintiff was injured while resc uing the trappe d defe ndants fr o m the

I nde ed, as the doc tr ine p r o mo te s re scu e by p rot ect ing the re scu er fr om cl ai m s tha t his or 4 her con tr ibu tor y negli gence, as oppo sed to the re scu ee’ s negligent act ion s, prox imatel y cau sed the

re scu er ’s inj ury, it is not cl ear tha t the doc tr ine woul d eve n a p p l y t o s ituat ion s li ke the one her e, wher e the re was an int ervening act of negli gence ( i.e

. , by Mo rr is on’ s vehicl e) tha t cau sed the inj ury. T he dis ti nct ion between a con dit ion (de fe nda nt’ s vehicl e) tha t le d to an inj ury, a n d a c a u se (M orr is on’ s vehicl e) of the inj ury, m ight sugg est tha t t h e i n te rveni ng negli gence m ight negate app li cat ion of the doc tr i n e a l t o ge t her

. Nevert hel ess , we nee d not addre ss the se sub tl et ie s her e, bec aus e t he ver dic t i s a ff ir m abl e on m

ult ipl e ot herbas es.

-12-second floor of their burning house); Seibutis
, 83 I ll. App. 3d at 1 0 1 2 (t he plaintiff was

injured when she approa ched a vehicle that was stopped in the cente r lane of a h i gh way wher e car s wer e driving 60 miles per hour). Indeed, and as mentioned above, the doctrine has been described as exis ting because a resc uer might knowing ly subject herse lf to “imminent peril.” Seibutis
, 83 I ll. App. 3d at 1016; see also W est Chicago Street R.R. Co. v. Liderman
, 187 I ll. 463, 469 (1900) (c onsideringfac ts where a child was a lmost hi t by a stree t car

and noting “the g ener al rule is that a person has a right to risk his own life or limb in an eff ort to

save the life of an o t h er p erson, and cannot be charg ed with contributory neg lige nce in so doing” (empha sis added) ); Ingram v. Jack son , 206 I ll. App. 466 (1917) (noti n g, i n a case wher e a son tried to resc ue a fathe r from an oncoming train and both wer e ki l l ed
, t hat an attempt to rescue one fr om immi nent dang er ma y not amount to contributory neg lige nce)

. ¶ 44 Fur

ther, the resc ue doctrine has been reje cted in case s wher e, althoug h dang er arguably exis ted to some degree , it was not immi nent or of a ty pe such that an injury

to the plaintiff

was so fore seea

ble that placing on the defe ndant the burden to guard ag ai n s t s uch injury would be prac ticable. For example, in Tannehill
, the court found the resc ue do ctrine inapplicable wher e the defe ndant, an elder ly woman who was rec uperating from rec ent open hear t surg ery , was experiencing pain and, ref using an ambulance
, fr an t i ca lly asked the plaintiff to drive her to the hospital. The plaintiff injured her shoulder helping the defe ndant into he r car

. Tannehill
, 401 I ll. App. 3d at 44. There
, the court found that the defe ndant did
not place herse lf in a situation wher e she would know others might attempt to resc ue her and that the plaintiff’s i n

j u ry was not fore seea

ble such that burdening the defe ndant with
guardingag ainst such an injury was pra cticable

. Id. ¶ 45 In McG inty
, the plaint i ff
, wh i l e b ab y sitti ng for the defe ndants’ children, was injured when she attempted to resc ue the defe ndants’ two-y ear -old child as he r an toward an open and steep stairway in the defe ndants’ home. The court noted: “The exis tence of a leg al duty depends not only upon the rea sonable fore seea bility of injury , but also upon the likelihood

o f injury from the exis tence of the particula r conditions, the magnitude of the bu rd en o f
guarding ag ainst the injury
, the conseque nces of placing the burden upon the defe ndant, public policy [,] and social require ments.” McG inty
, 1 2 7 I ll. App. 3d at 620-21. Thus, the
court re jected the plaintiff’s argument that, by failingto pr otect the stairw ay with a g ate or other protec tive device
, the defe ndants cre ated a rea sonably fore seea ble risk of harm to her
, holding that, althoug h it may be rea sonably fore seea ble that a young child might fall, and be injured, on a steep stairway
, “[t] o require pare nts to install g ates at the tops of the stairway s in their residenc es at the risk of liabili ty to those who would attempt to preve nt children from falling down the stairs would be to hold pare nts to a duty of extraordinary car e.” Id. at 621. Acc ording ly
, toge ther, Tannehi l l and McG inty sug g est that, even where a dange r arguably

ex i s t s, it must be of a nature that cre ates a fore seea ble risk to those who might attempt to assist; mostlikely , such a da ng er w ill be immi nent. ¶ 46 There fore
, as to the issue of whether the court err ed in instructing the jury that the re scue doctrine applies to situations of imminent peril or dang er, we conclude
, g iven the fore g oing

case law, that the court did not abuse its discretion and that d ef en d ant’s jury instructions, taken as a whole and g iven the fac ts of this case , wer e appropriate and fairly apprised the jury of the re levant leg al principles.

-13-¶ 47 Fu rt her, even if the court had err ed in g iving the instructions, we would no t re v er s e.

Critically
, plaintiff has prese nted no evidenc e that: (1) the jury was mi sled; or (2) plaintiff

was p re j udiced. As more fully discussed below, the jury here could have found that,
reg ardle ss of the severity of peril, defe ndant was not negligent
, thus neg ating application of the re s cu e d octrine altog ether

. There fore
, plaintiff’s claim of prejudice based on the instructions is mere ly speculative. See Snelson v. Kamm
, 204 I ll. 2d 1, 32 (2003) (no reve rsal wher e alleg ations of prejudice–that the jury “may” have decide d ca s e on improper basis–wer e only

speculative). ¶ 48 Finally
, we note that plaintiff also arg ues that the court err ed in instructing the jury that, for the resc ue doctrine to apply
, defe ndant must have been in a life-thre atening position. We quickly reje ct this argument beca use plaintiff ignor es that the inst ructions also permitted application of the doctrine wher e the resc uer acted “to secur e the defe ndant’s safe ty .” There fore
, the jury was not limit ed to considering only whether the situatio n was lifethreatening

. Acc ording ly
, there was no err or, and, even if there was error, plaintiff suffe red no prejudice

.

¶ 49 D. J ury Ver dict ¶ 50 Plaintiff’s final argument is that the jury ’s verdic t in defe ndant’s favor is contra ry to the

m an i fest weight of the evidenc e. He argues that he proved: (1) that defe ndant ac t ed
neg lige ntly

wher e she w as trave ling too fa st for conditions, did not keep her vehicle under control, stepped on the brake instead of acc eler ating or steering out of the skid, and landed in a ditch; (2) that Br enda and others attempted to aid defe ndant, whom they perc eived to be in a position of dang er; a

nd (3) damag es. We disagree

. ¶ 51 It is well established that, in revie wing a jury verdic t, we may not rew eigh the evidenc e and substitut e our opinion for that of the jury

. Id. at 35. Instead, we may reve rse a jury verdic t only wher e the verdic t is contra ry to the manifest weight of the evidence, i

. e. , where the opposite conclusion is clea rl y evident. Id. Her e, we cannot find the opposite conclusion clea rly evident. ¶ 52 First, and as noted above, defe ndant cannot be liable under the resc ue doctrine unless her conduct was neg lige nt. McG inty
, 127 I ll. App. 3d at 620. The evidenc e showed that, the day of the acc ident, the roads wer e clea r except for occa sional patche s of slush. Def endant was driving under the speed limit at 50 to 55 miles per hour, she s l o we d d own when she saw patche s of snow or ice, and she did not slip or slide until the acc ident. Def endant’ s testimony

was corr oborate d b y M a

r ti n , Ke mp , a

n d M orrison, who simil arly testified that, althoug h there

wer e patche s of slush and ice, they did not s l i p o r s l i d e and they
, too, drove at a speed of around 50 to 55 miles per hour. Def endant testified that, as she approa ched the curve , she noticed a patch of snow and ice and slowed her vehicle to 40 or 45 miles per hour. Simi larly
, Martin testified that he w as aw are that the curve was “a menac e” and could be slippery , so he, too, slowed his vehicle as he approa ched it. When defe ndant’s car hit the curve , howeve r, she started to slide. Def

endant panicke d and hit the brake s to stop herse lf. Although this action cause d her car to rotate and slide into the ditch, the jury could rea sonably have found that, under the circ umstances, a rea sonably car eful person might have responde d in a simil ar

-14-fashion. It was also for the jury to weigh the evidenc e to decide whether it believed

defe ndant, when she said she was not talking on a cell phone o r s m o k i n g a cig are tte, or Martin, who testified that he “believe d” that she was, or whether
, even if it did cre dit Martin’s testimony
, those actions fell below the exercise of car e by a rea sonabl y ca re fu l
person. ¶ 53 In sum, the j ury co u l d have rea sonably found that, under the circumstances, de fenda nt exercised the ordinary car e that a rea sonably car eful person woul d u se to avoid placing herse lf in a place of dang er. As such, and gi v en t he undisputed testimony that Morrison’s vehicle struck and ultimately killed Br enda, the jury could have found that defe ndant was not the proxi mate cause of Br enda’ s death or that it was not rea sonably fore seea ble to defendant that her actions would put Br enda in a position of risk. Acc ording ly
, even if the jury believed that Br enda wa s a resc uer who knowing ly place d herse lf at risk in an eff ort to save defe ndant’s life or secur e her safe ty , the verdic t must be aff irmed beca

use the jury could have found def endant not neg lige nt and, there fore , that the re scue doc trine did not apply

. 5 ¶ 54 The conver se may also be true. In other words, it is possible that the jury found that, even if defe ndant acte d with neg lige nce, the resc ue doctrine was inap p li c a b le b e c a u se the evidenc e did not ref

lect that Br enda knowing ly place d herse lf at risk to save defe ndant’s life or secur e her sa fety from a position of imminent peril. Plaintiff a rgues that the evidenc e re flec ts that it is beca use Br enda stopped to resc ue defe ndant from her position of p er i l t h at she was killed. Whil e we agree with plaintiff t hat t he evidence refle ct ed an int ention by those who stopped, including Br enda, to offe r aid to defe ndant, we disagree that the only conclusion to be dra wn from the e vidence is that they viewed de fenda

nt to be in a position of dang er, le t alone imm inent dang er. Indeed, the witnesses all tes t i fi ed that defe ndant’s vehicle was far off the r oad and appea

red to be out of harm’s way , that defe ndant was moving ar ound and
appea red uninjured, that defe ndant’s v eh i cl e was not damag ed, but simply appea red stuck in the snow, that no one anticipated another car would slip and injure them, and that no one called 911 or

walked a t any thing other than a

normal pac e to see if defe ndant nee ded help. Def endant is corr ect that the resc ue doctrine does not specific ally require the resc uer to run;

never theless, “[w]hether one is a resc uer depends b o th on the state of mind of the person

asser ting he was acting as a resc uer and on the fac ts and circ umstances of the individual case that bear out his alleg ed role o f being a resc uer.” Seibutis
, 83 I ll. App. 3d at 1017. Thus, althoug h Br enda and other witnesses stopped to verify that defe ndant was all right, the jury could have rea sonably found, based on the fac ts and circ umstances of the incident, that Br enda did not act in a manner ref lecting that she was voluntarily assuming a known risk of harm to herse l

f i n o rder to save defe ndant’s life or secur e defe ndant’s safe ty

. I f it found Br enda did n o t voluntarily assume a known risk, the resc ue doctrine and its purpose of absolving the resc uer of the leg al eff ects of assumption of risk or contributory neg lige nce would not be implicated.

T her e wer e no spec ia l int errogat ori es off er ed in thi s case , so we do not know whet her the 5 j ury fou nd in def

end ant ’s fa vor bec aus e it fou nd her not negli gent, bec aus e it fou nd the re qui re m ent s of the re scu e do ct ri ne o the rwi se inappl ic abl e, o r b oth

.
-15-¶ 55 In sum, the j ury ’s verdict is not contra ry to th e m an i fe s t weight of t he evidence, as we
cannot conclude that the opposite conclusion is clea rly evident. The jury ’s verd i ct i s aff irmed.

¶ 56 I I I . CONCLUSI ON ¶ 57 Fo r t h e fo re go ing rea sons, the judgme nt of the circ uit court of Stephenson County is aff irmed.

¶ 58 Affir

med.

-16-