MURPHY, District Judge:
This matter is before the Court on the motion for summary judgment brought by Defendant/Cross-Claim Plaintiff/Cross-Claim
David Payne asserts a claim for negligence against Schneider, Teton, and Jeff Foster; his wife, Plaintiff Sherrie Payne, asserts a derivative claim for loss of consortium. Donald Troyer asserts a claim for negligence against Jeff Foster; his wife, Plaintiff Michelle Troyer, asserts a claim for loss of consortium. Schneider, Teton, and Jeff Foster each are cross-claiming against one another for contribution, and Schneider and Teton are cross-claiming against Jeff Foster for damage to their trucks and the cargo thereof caused by the accident. Additionally, Jeff Foster has impleaded Third-Party Defendant E.T. Simonds Construction Company ("Simonds"), the firm that was performing the highway construction on Interstate 57 that caused David Payne to stop on the road on the day of the accident giving rise to this case, demanding contribution from Simonds. Schneider now has moved for summary judgment. Mr. and Mrs. Payne have filed a response brief in opposition to Schneider's summary judgment motion, as has Jeff Foster. Having reviewed carefully the submissions of the parties and conducted a hearing on Schneider's summary judgment motion, the Court now rules as follows.
As an initial matter, the Court notes the well-established standard under which it must evaluate a motion for summary judgment. Rule 56 of the Federal Rules of Civil Procedure provides, in pertinent part, that "[a] party against whom relief is sought may move, with or without supporting affidavits, for summary judgment on all or part of the claim." Fed.R.Civ.P. 56(b). The rule provides further that "[t]he judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2). In considering a summary judgment motion, a court must review the entire record and draw all reasonable inferences in the light most favorable to the non-moving party. See NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 234 (7th Cir.1995); Enquip, Inc. v. Smith-McDonald Corp., 655 F.2d 115, 118 (7th Cir.1981). See also Miller v. Herman, 600 F.3d 726, 733 (7th Cir.2010) (citing Reget v. City of La Crosse, 595 F.3d 691, 695 (7th Cir.2010)) ("We construe all facts in the light most favorable to [the non-movant] and draw all reasonable inferences in his favor."). On summary judgment
In Schneider's motion for summary judgment, the carrier argues that its truck was stopped at the time of the accident giving rise to this case and thus, as a matter of law, Schneider's truck was merely a condition, not a cause, of David Payne's injuries. Additionally, Schneider contends that it could not have caused the accident because the force with which Jeff Foster's truck hit Teton's truck was sufficient to propel the latter into Payne's car even if the Schneider truck had not been present at the accident scene at all. In response Mr. and Mrs. Payne point out that, even if the driver of the Schneider truck came to a complete halt without striking David Payne's car shortly before the Jeff Foster truck collided with the Teton truck, causing the Teton truck to push Schneider's truck into Payne's car, this does not exclude possible liability for Schneider under the so-called "sudden stop" doctrine. Under Illinois law, "[g]enerally, a motorist intending to stop or suddenly slow down his vehicle must use due care for his own safety and for the safety of others, such as other vehicles following so closely behind him that they may be imperiled by a sudden stop," and "a sudden slowing up may amount to a practical stop so as to require the same precautions as would be necessary in case of an actual stop." Mernick v. Chiodini, 12 Ill.App.2d 249, 139 N.E.2d 784, 787 (1956). See also 625 ILCS 5/11-804(c) (prohibiting a motorist from stopping or suddenly decreasing vehicle speed without giving an appropriate signal, whenever possible, to any vehicle immediately to the rear); Carter v. Williams, 361 F.2d 189, 192 (7th Cir.1966) ("[I]n Illinois it is negligence as a matter of law to drive an automobile at such a rate of speed that it cannot be stopped in time to avoid collision with an object discernible within the driver's length of vision ahead of him."); Joseph v. Schwartz, 96 Ill.App.3d 749, 52 Ill.Dec. 354, 422 N.E.2d 35, 39-40 (1981) (where vehicles are traveling in the same direction, the operator of the forward or lead vehicle must exercise ordinary care to prevent injury to vehicles that may be following); Morse v. Johnson, 81 Ill.App.3d 552, 36 Ill.Dec. 813, 401 N.E.2d 654, 656 (1980) ("While it is not always negligent to stop a vehicle on the highway, or even to stop a vehicle abruptly on the highway, the sudden or abrupt stopping of a vehicle on the roadway where traffic conditions are heavy, without justification or because of inattentiveness, can, under such circumstances, constitute . . . negligence."); Ryon v. Javior, 69 Ill.App.3d 946, 26 Ill.Dec. 106, 387 N.E.2d 936, 942 (1979) ("[A] driver who stops suddenly without warning may be negligent and liable to the driver of an automobile behind him.").
Just as a motorist is expected to use reasonable care in slowing and stopping, so, in addition, "[w]hen faced with a sudden emergency or imminent peril, the driver of an automobile must exercise that degree of care and caution which an ordinarily prudent and careful person would exercise under the circumstances." Apcon Corp. v. Dunn, 204 Ill.App.3d 865, 149 Ill.Dec. 922, 562 N.E.2d 386, 388 (1990) (quoting Ball v. Continental S. Lines, Inc.,
In opposition to Schneider's summary judgment motion, Jeff Foster vigorously disputes Trooper Ventura's account of the April 21 accident, contending that in fact Schneider's truck hit David Payne's car before Jeff Foster's truck collided with Teton's truck, thereby pushing the Teton truck into the Schneider truck. In support of its position, Jeff Foster proffers the expert opinion of John Goebelbecker, a mechanical engineer and professional accident reconstructionist. Goebelbecker differs with the factual findings of Trooper Ventura regarding how the accident happened. In Goebelbecker's opinion, the physical evidence at the scene of the crash is consistent with an impact between Schneider's truck and David Payne's car prior to any impact between Jeff Foster's truck and Teton's truck. Goebelbecker concludes that Trooper Ventura and other police at the accident scene failed to consider reasonable alternative scenarios about how the accident happened, relying instead merely on the testimony of Payne, Donald Troyer, and Dale Stumbo, who was driving the Schneider truck at the time of the accident. In support of his opinion, Goebelbecker relies upon a photograph taken at the scene of the accident by Jackie McPherson, a reporter for television station WSIL, shortly after the accident occurred. The photograph shows Payne's car, the Teton truck, and the Schneider truck at rest in positions different from the final post-crash positions assigned to those vehicles in Trooper Ventura's report on the accident. The photograph serves, obviously, to undercut the authority of Trooper Ventura's accident report and to cast doubt on the report's accuracy. Trooper Ventura's report, Goebelbecker contends, was prepared using only the statements of Payne, Troyer, and Stumbo, rather than by making measurements at the scene of the accident. Additionally,
To the extent Goebelbecker's opinion is based upon the report of Martin Leffler, the coroner of Franklin County, regarding the death of Lawrence Rich, who was driving the Jeff Foster truck on the day of the accident giving rise to this case and who was killed in a post-collision fire, the Court is not inclined to consider the opinion. The Leffler report is hearsay, of course, meaning that it "is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). In general, "[h]earsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress." Fed.R.Evid. 802. Nevertheless, Leffler's account of the physical cause of Rich's death is admissible into evidence under the exception to the hearsay rule for public records and reports. See Fed.R.Evid. 803(8). See also Blake v. Pellegrino, 329 F.3d 43, 47-48 (1st Cir.2003) (finding that the portion of a death certificate stating the cause of death is admissible under the Federal Rules of Evidence); Burton v. Johns-Manville Corp., 613 F.Supp. 91, 93 n. 2 (W.D.Pa. 1985) (same). Moreover, Goebelbecker, as an expert witness, can base his opinions on inadmissible hearsay evidence, provided that the evidence is of the type "reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject[.]" Fed.R.Evid. 703. See also United States v. Gardner, 211 F.3d 1049, 1054 (7th Cir.2000) (an expert was permitted to base opinion as to the cause of a fire on photographs and reports); United States v. Lundy, 809 F.2d 392, 395-96 (7th Cir.1987) (the trial court did not err in permitting an expert to testify that a fire was incendiary in origin where the expert's opinion was based on hearsay, given that "interviews with many witnesses to a fire are a standard investigatory technique in cause and origin inquiries."); Johnson v. Consolidated Rail Corp., 797 F.2d 1440, 1446-47 (7th Cir. 1986) (in an action arising from a collision between a truck and a train, the trial court did not err in permitting experts to base their testimony on hearsay information); Baumholser v. Amax Coal Co., 630 F.2d 550, 553 (7th Cir.1980) (in an action alleging that blasting operations at a coal mine damaged the plaintiff's home, an expert was properly permitted to rely on hearsay in giving an opinion as to the proximate cause of the damage); 29 Charles Alan Wright & Victor James Gold, Federal Practice & Procedure § 6274 (3d ed. 1998 & Supp. 2009) ("[E]xperts generally have been permitted to base their opinions on hearsay and other inadmissible evidence where giving opinions . . . [as to] the cause or circumstances of an accident[.]") (collecting cases). Here, the Leffler report likely is hearsay evidence of the type upon which an expert would rely; for example, Trooper Ventura, who is, as already has been noted, a professional accident reconstructionist, testified that had he been aware of the Leffler report when he was preparing his own report about the April 21 accident, he would have considered the Leffler report in arriving at his findings.
However, while Rule 703 permits an expert to base an opinion or inference on hearsay, the rule provides also that
Doc. 106-8 at 1. Leffler freely admits that he has no personal knowledge of how the accident occurred and that his account of the accident in his report is based on hearsay statements from police officers at the accident scene. The mere fact that hearsay evidence is included in Leffler's official report regarding the cause of Lawrence Rich's death does not ipso facto render that evidence admissible for purposes either of summary judgment or trial. See United States v. Mackey, 117 F.3d 24, 28 (1st Cir.1997) ("[D]ecisions in this and other circuits squarely hold that hearsay statements by third persons . . . are not admissible under [Rule 803(8)] merely because they appear within public records."); Parsons v. Honeywell, Inc., 929 F.2d 901, 907 (2d Cir.1991) (quoting United States v. Pazsint, 703 F.2d 420, 424 (9th Cir.1983)) ("It is well established that entries in a police report which result from the officer's own observations and knowledge may be admitted but that statements made by third persons under no business duty to report may not.") (emphasis in original); Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir.1990) ("Hearsay evidence, inadmissible at trial, cannot be considered on a motion for summary judgment."). Likewise, hearsay is not rendered admissible merely because it is included in Goebelbecker's expert report. See Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261, 1270-71 (7th Cir. 1988) (holding that it is not the case "that Rule 703 supersedes Rule 403" and that evidence that is not barred by the hearsay rule nonetheless may be barred on the grounds that its probative value is outweighed by its prejudicial effect if admitted); Sommerfield v. City of Chicago, 254 F.R.D. 317, 328 & n. 12 (N.D.Ill.2008) (noting that Rule 703 "is not an exception to the hearsay rule" and in fact the rule "points in the opposite direction, for it prohibits disclosure by the proponent of the evidence to the jury of the inadmissible bases that underlie an expert's opinion"); 29 Wright & Gold, Federal Practice & Procedure § 6273 ("Rule 703 does not authorize admitting hearsay on the pretense that it is the basis for expert opinion when, in fact, the expert adds nothing to the out-of-court statements other than transmitting them to the jury.") (collecting cases). In the Court's opinion, the prejudicial effect and potential for jury confusion that would result from admitting into evidence Leffler's opinion about how the accident occurred vastly outweighs its probative value. Therefore, the Court does not consider the portion of Goebelbecker's opinion based on the account of how the May 21 accident occurred that is contained in the Leffler report.
For all of the foregoing reasons, Schneider's motion for summary judgment (Doc. 68) is