Illinois Official Reports

Appellate Court

Fellows v. Barajas, 2020 IL App (3d) 190388

Appellate Court 

Caption

DAVID FELLOWS and GERALDINE M. FELLOWS, PlaintiffsAppellants, v. GARY A. BARAJAS, O’MARA MOVING

SYSTEMS, INC., and RODOLFO MENESES, Defendants (O’Mara 

Moving Systems, Inc., and Rodolfo Meneses, Defendants-Appellees).

District & No. Third District 

No. 3-19-0388

Filed October 6, 2020

Decision Under 

Review

Appeal from the Circuit Court of Will County, No. 15-L-431; the Hon. 

Barbara N. Petrungaro, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

Amanda Martin and Cole H. Munvez, of Parente & Norem, P.C., of 

Chicago, for appellants.

Richard J. Turiello, of Krakar & Olsen, of Chicago, for appellees.

Panel JUSTICE SCHMIDT delivered the judgment of the court, with 

opinion.

Presiding Justice Lytton and Justice Carter concurred in the judgment 

and opinion.
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OPINION

¶ 1 In a suit for damages sustained from a motor vehicle accident, plaintiffs,1 David and 

Geraldine M. Fellows, appeal from a jury verdict in favor of defendants, Rodolfo Meneses and 

O’Mara Moving Systems, Inc (O’Mara Moving).2 Plaintiff contends the circuit court erred in 

allowing the defense’s expert witness to testify to the circumstances surrounding the motor 

vehicle accident. Plaintiff also contends he is entitled to a new trial because the jury intended 

to—but was instructed not to—use toy cars to recreate the accident during deliberations. We 

affirm.

¶ 2 I. BACKGROUND

¶ 3 Plaintiff brought an action against defendants seeking damages for injuries sustained in a 

three-vehicle accident on Interstate 55 in Will County. The facts of the accident are 

straightforward. Plaintiff and the two defendants, Barajas and Meneses, were traveling in the 

same direction on Interstate 55 near the exit ramp for Route 53. Defendant Barajas occupied 

the left lane, plaintiff the center lane, and defendant Meneses the right lane. Barajas saw that 

the traffic in front of him stopped suddenly. Barajas veered right to the center lane and collided 

with plaintiff. The collision forced plaintiff into the right lane where he collided with Meneses. 

Plaintiff testified that only two seconds passed between the first and second collision.

¶ 4 Defendants, O’Mara Moving and Meneses, disclosed Jeffrey Clark, an expert of trucking 

safety, to provide opinions on behalf of defendants. Plaintiff filed a motion in limine to bar 

specific opinions of Clark at trial. The motion alleged that Clark’s opinions should be barred 

on the grounds that (1) Clark was not qualified to give accident reconstruction opinions and 

(2) his opinions lacked scientific foundation. In response, defendants agreed that Clark was not 

an expert in accident reconstruction, but they argued that his expertise in trucking safety was 

sufficient to testify to the braking distance and timing of Meneses’s truck and to the blind spots 

of Meneses’s vehicle.

¶ 5 Following a hearing on the motion in limine, the court barred Clark from testifying to the 

foreseeability of plaintiff’s vehicle spinning into the lane of Meneses. However, the court 

allowed Clark to testify as to the braking times, blind spots, locations of the vehicles at the 

time of impact, and the timing and sequence of the accident. The cause proceeded to a jury 

trial.

¶ 6 Barajas testified that he saw brake lights and traffic slowed heavily. The car in front of him 

slammed on its brakes, and Barajas veered into the center lane to avoid the collision. However, 

as he entered the center lane, he struck plaintiff’s vehicle. He did not see the second impact 

that followed between plaintiff and Meneses.

¶ 7 Plaintiff testified that only two seconds passed between the first and second collision. 

When asked if he could have stopped after the first collision, plaintiff answered, “There was 

absolutely no time to be stopped.”

1

Geraldine was not involved in the accident. For clarity, we will refer to plaintiffs in the singular 

form for the remainder of the order.

2

Plaintiff obtained a jury verdict against defendant, Gary A. Barajas, in the amount of $226,096.11. 

Defendant Barajas is not a party to this appeal.
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¶ 8 At the time of the accident, Meneses was operating a vehicle as part of his employment 

with defendant O’Mara Moving. According to Meneses, he did not see plaintiff’s vehicle until 

it struck his vehicle. Meneses stated that he was traveling at about 25 to 30 miles per hour at 

the time of the impact.

¶ 9 Clark testified as an expert to the reasonableness of Meneses’s actions during the accident. 

In Clark’s opinion, he did not “believe given the circumstances in this case and the events that 

were unfolding that there [was] any action [Meneses] could have taken that would have 

prevented the accident.” Clark did not perform an independent investigation regarding the 

accident. Instead, Clark based his opinion on the deposition testimony of the drivers involved, 

photographs of the scene of the accident, and the police report. Specifically, Clark relied on 

plaintiff’s deposition testimony that two seconds passed between the first impact and his 

collision with Meneses. He also relied on Meneses’s testimony that his vehicle was traveling 

at about 25 to 30 miles per hour at the time of the collision. The two seconds were important 

in Clark’s calculation of Meneses’s braking time in avoiding the accident. According to 

published figures in the Illinois CDL Handbook and its published safety stopping distances, 

two seconds was not enough time for Meneses to bring his vehicle to a stop to avoid the 

collision. Based on Meneses’s testimony that he did not see plaintiff’s vehicle prior to the 

collision, Clark believed plaintiff was in Meneses’s blind spot when it collided with his vehicle. 

However, Clark opined that Meneses still would not have enough time or distance to stop his 

vehicle to avoid the collision had he saw plaintiff’s vehicle.

¶ 10 Prior to closing arguments, the bailiff informed the court that a jury member had brought 

toy cars to recreate the accident during deliberations. The bailiff confiscated the toys and 

reported the incident to the court. The court informed counsel for the parties. Plaintiff did not 

move for a mistrial or argue that the incident had prejudiced him. Instead, the parties agreed 

that the court would instruct the jury not to perform independent investigations or consider any 

material not given to the jury by the court.

¶ 11 Ultimately, the jury returned a verdict in favor of Meneses against plaintiff. The jury did 

return a verdict in favor of plaintiff and against Barajas in the amount of $226,096.11.

¶ 12 II. ANALYSIS

¶ 13 On appeal, plaintiff contends that the trial court erred in allowing Clark to testify as an 

expert witness. Alternatively, plaintiff contends that he is entitled to a new trial due to the jury 

possessing toy cars prior to deliberating.

¶ 14 A. Expert Testimony

¶ 15 First, plaintiff argues that the circuit court should have barred Clark’s testimony in the 

entirety. According to plaintiff, Clark’s testimony as to “the location of the vehicles, the 

preventability of the collision, the speed of the vehicles, who hit whom, where the impact 

occurred and how fast the parties were going” amounts to accident reconstruction, which is 

beyond Clark’s expertise as a trucking safety expert. Plaintiff also contends that Clark lacked 

a factual foundation to reach his opinions. Upon review, we need not address plaintiff’s 

allegations of error. Even if we assumed the circuit court should have barred Clark’s testimony, 

we find that any error is harmless beyond a reasonable doubt. 
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¶ 16 Decisions on the admission of evidence are largely matters within the discretion of the trial 

judge. Jackson v. Pellerano, 210 Ill. App. 3d 464, 471 (1991). However, erroneous evidentiary 

rulings will not support a reversal unless the error was prejudicial and affected the outcome of 

the trial. Id. In other words, the judgment will not be reversed if “no harm has been done.” Id.

Where it appears an error did not affect the outcome of the trial, or where the reviewing court 

can see from the entire record that the error did not result in substantial prejudice, the judgment 

will not be disturbed. Cairns v. Hansen, 170 Ill. App. 3d 505, 511 (1988). The burden is on the 

party seeking reversal to establish prejudice. Burns v. Michelotti, 237 Ill. App. 3d 923, 938 

(1992).

¶ 17 Here, plaintiff’s own testimony established that he was in the center lane of Interstate 55 

when Barajas unexpectedly struck his vehicle. Traveling at around 50 miles per hour, the 

collision pushed plaintiff’s vehicle into the right lane. This caused plaintiff’s vehicle to collide 

with Meneses’s semi-truck. The second collision occurred within two seconds of the first 

collision. When asked if he stopped his vehicle after the first collision, plaintiff responded 

“[t]here was absolutely no time to be stopped.” In short, plaintiff’s own testimony establishes 

that there is nothing Meneses could have done to avoid the collision between him and plaintiff. 

As such, we find any error in admitting Clark’s expert testimony to be harmless beyond a 

reasonable doubt.

¶ 18 Accepting plaintiff’s testimony as true there is no basis for liability. Plaintiff offered no 

evidence to suggest that Meneses could have avoided the collision with plaintiff. With only 

two seconds to react to plaintiff swerving into his lane without warning, there is nothing 

Meneses could have done to avoid the collision. Simply put, plaintiff’s vehicle being forced 

into Meneses’s lane is the only cause of the collision between plaintiff and Meneses. See 

generally Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967). “Illinois courts 

have long held that a sudden swerve into a defendant’s right of way by an approaching vehicle 

does not give rise to negligence by the defendant.” Turner v. Roesner, 193 Ill. App. 3d 482, 

488 (1990). The driver of a vehicle who is faced in a sudden emergency with imminent peril 

is not required to possess the same coolness and judgment as when there is no imminent peril. 

McCullough v. McTavish, 62 Ill. App. 3d 1041, 1047 (1978). Here, as a matter of law, the 

evidence failed to show any negligence on the part of Meneses.

¶ 19 B. Jury Prejudice

¶ 20 Next, plaintiff contends he is entitled to a new trial based on the jury’s possession of toy 

cars that it intended to use to recreate the accident during deliberations. Plaintiff forfeited 

review of this issue by failing to object to the continuation of the case, argue that he was 

prejudiced by the possession of the toy cars, or move for a mistrial. Fillmore v. Walker, 2013 

IL App (4th) 120533, ¶ 27. Rather than objecting, plaintiff agreed with opposing counsels and 

the court to take the toy cars from the jury and instruct the jury not to perform independent 

investigations. As plaintiff fails to make any argument to excuse his forfeiture, we decline to 

address this argument. While we decline to address this argument, we note that in light of the 

facts of this case, any error would have been harmless.
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¶ 21 III. CONCLUSION

¶ 22 For the foregoing reasons, we affirm the judgment of the circuit court of Will County.

¶ 23 Affirmed.