Tort Law Newsletter
The newsletter of the ISBA’s Section on Tort Law

February 2010, vol. 45, no. 4

Admissibility of vehicle impact photographs

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. ■

Member Comments

Take a look at Baraniak v. Kurby, 371 Ill.App.3d 310, 317, 308 Ill.Dec. 949, 955, 862 N.E.2d 1152, 1158 (1st Dist. 2007), appeal denied 224 Ill.2d 571 (holding that, on retrial, photos of vehicular damage should not be admitted); and Williams v. City of Evanston, 378 Ill.App.3d 590, 599, 318 Ill.Dec. 251, 259, 883 N.E.2d 85, 93 (1st Dist. 2007) (holding trial court properly disregarded photographs of vehicles when ruling on motion for summary judgment regarding ambulance’s speed and willful and wanton conduct). These cases leave little doubt that the First District has abandoned the rule of trial court discretion in the admission of photographic evidence and now requires expert testimony to admit vehicle photos. In my view, these cases go against Illinois Supreme Court precedent in Maple v. Gustafson, 151 Ill.2d 445, 458, 177 Ill.Dec. 438, 444-45, 603 N.E.2d 508, 514-15 (1992), and Drews v. Gobel Freight Lines, Inc., 144 Ill.2d 84, 101, 161 Ill.Dec. 324, 332-33, 578 N.E.2d 970, 978-79 (1991).

A good articulation of the opposing view can be found in Bishop v. Dale Jessup, Inc., Not Reported in F.Supp.2d, 2006 WL 571979 (E.D.Mo. 2006) (allowing admission of photos in trial under Federal Rules of Evidence, explaining and distinguishing Davis v. Maute, 770 A.2d 36, 42 (Del.2001), which was cited in DiCosola):

"The Court disagrees that the photographs are not relevant. Even if there is not a perfect correlation between property damage and personal injury in automobile accidents, it does not mean that property damage is not relevant. See Mason, 878 A.2d at 600-601. See also Fed.R.Evid. 401 (" 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."). In addition, the Court holds that the photographs should not be excluded under Fed.R.Evid. 403. Evidence of property damage is probative of the extent of personal injury, and it is not even outweighed, let alone substantially outweighed, by any danger of unfair prejudice. Evidence of property damage to Plaintiff's car may be admitted during trial."

There are also cases from New Jersey, Maryland, Pennsylvania, Ohio and even Delaware that hold expert testimony is not a prerequisite for vehicle photo admission. The First District's stand on this issue is unique. The Illinois Supreme Court should clarify the subject and affirm the rule adopted by the Third and Fifth Districts.
What the courts have failed to address in discussing this issue is the actual medical evidence with respect to the relationship between property damage and injury. The medical studies that have been done on the issue have found that there is no correlation between the injury suffered and the property damage. Three of them are cited below. The "common sense" that no damage = no injury is, in fact, medically unsupported. The decisions in Baraniak and Dicosola were in line with the medical evidence. It all depends on whether we're searching for truth, or simply advantage.

In a study of data Volvo has collected from over 25,000 crashes scientists have concluded “EBS or impact speed are probably not good predictors of neck injury risks.” Jakobsson L, Lundell B, Norin H, Isaksson-Hellman I: WHIPS – Volvo's whiplash protection study. Accid. Anal. Prev. 32:307-319 (2000). This study found that the percentage of injury in a 25 mph collision was 50%, where the percentage of injury at only 6 mph was 40%.
"The assumption that injuries relate to the amount of external vehicle damage in all types of crashes has no scientific basis....[t]here is little correlation between neck injury and vehicle damage in the low-speed rear-end collision." Motor Vehicle Collision Injuries, Mechanisms, Diagnosis and Management by L. Nordhoff (1996) at 290.
"There is no direct relationship between vehicular damage and injury to and prognosis for the occupant(s) of the damaged vehicle. Light vehicles at low speeds can generate considerable forces. These forces are sufficient to cause significant bodily injuries. Impact resistant bumpers and body frames are currently absorbing less force than in previous automotive designs. More kinetic energy is available for occupant injury. The occurrence of injury relates primarily to the amount of kinetic energy developed in the collision, the ability to dissipate that energy, victim awareness, body posture at impact and a myriad of other factors. Each accident and each victim is unique, and each must be evaluated objectively and individually based on the unique biomechanics and physics of the collision." David B. Miller, DDS, Low Velocity Impact, Vehicular Damage and Passenger Injury, 16 Cranio: The Journal of Craniomandibular Practice 226, 229 (1998).
The argument for the plaintiffs seems to be that severity of the impact is irrelevant to the injury. If that is the case, then should defendant be barred from asking plaintiff to testify as to the severity of the impact, whether hard, medium or soft? Can this possibly be the right result? If the plaintiff answers this question, can the defendant be prohibited from showing the photos to the jury to judge plaintiff's testimony on the issue? Are we suggesting that only photos depicting severe damage can be admitted? What about photos depicting moderate damage? Where does the trial court draw the line? The only logical outcome is to allow the photos into evidence and let the lawyers argue the correlation between the damage and the injury.