The standard for the admissibility of photographs of a motor vehicle collision depicting minimal damage to the vehicles in a personal injury trial has been debated since the First District Appellate Court’s opinion in Dicosola v. Bowman, 342 Ill. App. 3d 530 (1st Dist. 2003). In Dicosola, the trial court granted Plaintiff’s Motion in Limine to exclude photographs depicting the apparent minimal damage to Plaintiff’s post-collision vehicle and prohibited the defendant from arguing, without expert testimony, that a correlation existed between the amount of damage to the vehicle and the extent of Plaintiff’s injuries. The defendant appealed, citing Cancio v. White, 297 Ill. App. 3d 422 (1998), in which the Appellate Court concluded that the admission of photographs of a vehicle was proper as they were relevant to the nature and extent of Plaintiff’s damages. The court found they were relevant because they showed little or no damage, which is something the jury could consider in determining what, if any, injuries the Plaintiff sustained as a result of the accident. Cancio at 433.
However, Cancio did not state that such photographs are always or are automatically relevant and, although not explicitly stated, the court in Cancio acknowledged that the standard regarding the admissibility of photographs is within the trial court’s discretion. Cancio did not require expert testimony before the photographic evidence was admissible; however, the Plaintiffs in Cancio had only argued that the photographs were irrelevant because liability was not an issue. The Cancio court was not presented with, nor did it consider, the issue of whether expert testimony should have been required with respect to the admissibility of the photographs.
The Dicosola court instead followed the reasoning of the Illinois Supreme Court in Voykin v. DeBoer, 192 Ill. 2d 49 (2000). In Voykin, the Court rejected the evidentiary rule known as “the same part of the body rule,” which had essentially provided that if a plaintiff had previously suffered an injury to the same part of the body, then that previous injury would automatically be relevant to the present injury simply because it affected the same part of the body. While finding that jurors are not skilled in the practice of medicine, the Voykin court held that if a defendant wished to introduce evidence that the plaintiff had suffered a prior injury, whether to the same part of the body or not, the defendant must introduce expert evidence demonstrating why the prior injury is relevant to causation, damages, or some other issue of consequence. However, the court went on to say that “this rule applies unless the trial court, in its discretion, determines that the nature of the prior and current injuries are such that a lay person can readily appraise the relationship, if any, between those injuries without expert assistance.”
The Dicosola court, in following Voykin, did not hold that expert testimony is always required for photographic damage evidence to be admissible. The court found only that the trial court in this case did not abuse its discretion by requiring expert testimony to show a correlation between the extent of the vehicular damage and the extent of Plaintiff’s injuries. Yet, in following Voykin, the implication was clear that expert testimony would be necessary if the issue was beyond the knowledge of an average juror. The defendant’s petition for leave to appeal was denied. (206 Ill. 2d 620 (2003)).
Following Dicosola, the Third District decided Ferro v. Griffiths, 351 Ill. App. 3d 738 (3rd Dist. 2005). Ferro also involved a vehicular collision in which the defendant attempted to present photographs of both vehicles to suggest a minor impact and dispute the severity of injuries to the plaintiff. The jury returned a verdict in favor of the defendant Griffith and Ferro appealed claiming that it was improper and highly prejudicial for the court to allow the defendant to offer into evidence photographs that showed little damage to either vehicle. Citing Dicosola, Ferro argued that expert testimony was required to show a correlation between the lack of damage to the vehicle and the injury to the plaintiff. In affirming the verdict for the defendant, the Appellate Court stated “when the trial court makes a decision to admit pictures, it has to determine whether the photographs make the resulting injury to the plaintiff more or less probable. The court must determine whether the nature of the damage to the vehicles and the injury to the plaintiff are such that a lay person can readily assess the relationship, if any, without expert interpretation.” See Voykin v. DeBoer, 192 Ill. 2d 49 (2000). A reviewing court will not disturb the trial court’s decision absent a clear abuse of that discretion. An abuse of discretion occurs only where no reasonable person would take the position adopted by the trial court. Taxman v. 1st Illinois Bank of Evanston, 336 Ill. App. 3d 92 (2002).
Most recently, the Fifth District Appellate Court ruled on the same issue in Fronabarger v. Burns, 2008 Ill. App. Lexus 976 (5th Dist. 2008). In Fronabarger, the Appellate Court affirmed the trial court’s ruling allowing into evidence, without expert testimony, photographs of the parties’ vehicles following the collision. The defendant introduced two photographs of the defendant’s and two of the plaintiff’s cars following the accident. The photographs depicted no damage to the defendant’s car and minor damage to the plaintiff’s vehicle. Over Plaintiff’s objection, the photographs were admitted into evidence. Following their admission, the defendant presented the testimony of a board-certified neurologist who had reviewed the plaintiff’s medical records and conducted a physical and neurological examination of the plaintiff. Following her testimony on the issue of the plaintiff’s injuries, the physician was shown the photographs of the vehicles and opined that “if the vehicle doesn’t sustain any evidence of an impact, then it’s not likely that the people in the vehicle are going to have significant evidence of an impact.” In Fronabarger, the Appellate Court determined that “we cannot say that the trial court abused its discretion by admitting the photographs without expert testimony.”
The second prong of the plaintiff’s argument was that the trial court should not have allowed the defendant’s expert to testify that if the vehicle doesn’t sustain any evidence of an impact, then it’s not likely that the people in the vehicle would have significant evidence of an impact. The plaintiff argued that the defendant failed to lay a proper foundation because the physician was not qualified to give testimony regarding how the damage to vehicles related with injuries to the plaintiff. The Appellate Court rejected the plaintiff’s foundation argument and held that the admissibility of expert testimony, like that of the photographs, is within the sound discretion of the trial court.
The general assembly has also reviewed this issue by introducing House bill 4899 in the 95th general assembly. House bill 4899 would amend the Code of Civil Procedure to provide, “that in any action concerning a motor vehicle accident in which personal injury or property damage is alleged, a photographic or electronic image of a motor vehicle or other property is relevant and admissible through a lay or a current witness with personal knowledge that the image truly and accurately portrays what it purports to portray.” The bill further provides that it is not necessary that an expert or opinion witness testify to the image’s relevancy or to the correlation between the image and the claimed injury. On March 14, 2008, the bill was re-referred to the rules committee.
Although many plaintiff practitioners since Dicosola have argued that expert testimony is required before photographic evidence of minimal damage to vehicles can be admitted at trial, it is now clear that such is not the standard. The standard is that the admission of such photographs is within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. The trial court need only determine whether the photographs make the resulting injury to the plaintiff more or less probable and whether the nature of the damage to the vehicles and the injury to the plaintiff are such that a lay person could readily assess the relationship, if any, without expert interpretation. ■