Admissibility and Use of Vehicle Photos in Minor Impact Car Accident Cases
The admission of vehicle photographs that show minor damage to the plaintiff’s car is powerful evidence that most jurors find persuasive on the issue of whether the plaintiff was injured in the accident. Plaintiffs’ attorneys have therefore attempted to avoid the admissions of these photographs wherever possible. Until early 2003, vehicle photographs were routinely admitted in minor impact cases without the need for any additional foundational testimony from an expert. In 2000, the Illinois Supreme Court issued a ruling regarding the requirement of expert testimony that plaintiffs’ attorneys’ seized upon as a basis to argue that expert testimony should be required to admit vehicle photographs.
In Voykin v. Deboer, the Illinois Supreme Court required defendants to have expert testimony when they sought to admit evidence of a plaintiff’s pre-existing injury to show a lack of a current injury caused by the accident. The Court reasoned that without such testimony the preexisting condition evidence lacked basic relevancy foundational requirements to be admitted. Plaintiff’s counsel seized upon the reasoning in Voykin to argue that photographs of the plaintiff’s vehicle depicting little or no damage could not be admitted to show a causal relationship between the minimal damage and lack of injury without expert testimony.
The first case utilizing the Voykin decision to exclude vehicle photos was Dicosola v. Bowman. In Dicosola, the defendants attempted to admit photographs showing little to no damage to the plaintiff’s vehicle for the sole purpose of showing a lack of injury to the plaintiff. The Circuit Court held that, absent expert testimony, the evidence was not relevant, and therefore, inadmissible to show that a correlation existed between the amount of damage to plaintiff’s vehicle and the extent of the plaintiff’s injuries. In affirming the Circuit Court, the Appellate Court dismissed the concept that there was a bright line rule regarding the relevancy and admissibility of vehicle photos to show a person’s lack of injury.
The Dicosola case emboldened plaintiffs’ attorneys in their efforts to deny defendants the use of vehicle photos. However, their success has been limited and the trend is to allow the use of photos without expert testimony. Subsequent Appellate Court decisions have not directly overturned Dicosola, but have limited its impact to the particular exercise of the trial court’s discretion in that case. The most recent example is the case of Fronabarger v . Burns.
In Fronabarger, a rear-ended driver brought a personal injury action against the adverse driver and objected when the adverse driver attempted to introduce photographs of the vehicles without expert testimony. The Appellate Court held that the Circuit Court did not abuse its discretion in determining that the photographs were relevant to show the correlation between the lack of vehicular damage and plaintiff’s injury claim. In making this ruling the Court noted that a trial court has to 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 can readily assess their relationship, if any, without expert interpretation.”
Practical Lessons from the Appellate Court Decisions
The common thread among all of the cases dealing with this issue is that the trial court maintains wide discretion in admitting these photographs. The standard that they will employ is the time honored standard for the admission of relevant evidence which is now codified in Illinois in Supreme Court Rule 401 which states:
“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. IRE 401.
In making this determination, the courts tend to focus on the particular issues in the case. For example, if a plaintiff testifies that the accident was severe and that they were thrown around the vehicle violently, but the photographs show only minor scrapes to that plaintiff’s back bumper, a trial court is more likely to allow this evidence to rebut the lay testimony of the plaintiff.
When an adjuster undertakes the cost-benefit analysis of whether to retain an expert in order to establish a correlation between vehicular damage and lack of injury, the nature of these types of cases often favors risking the inadmissibility rather than incurring the costs. For that reason, defense counsel have had to become creative in finding ways to admit this evidence without expert testimony.
The simplest way to at least have the photographs admitted is to offer them for the purpose of contesting liability. In almost every case, the defendant driver’s version of how the accident took place will differ from the plaintiff’s. If there is any basis to contest liability, no matter how slight, this should be factored in as an additional theory of relevance for the photographs. If the photographs are admitted and the plaintiff still objects and seeks an instruction from the court to limit the use of the photographs by the jury only on the issue of liability, that plaintiff runs the risk of over emphasizing the overall importance of the photographs to all issues in the case. Similar to asking someone to close their eyes and not think about a white elephant.
Another strategy developed by defense counsel for the admission of the vehicle photographs without expert testimony is to use them to rebut the testimony of a plaintiff regarding how the accident took place.
Finally, if a defense attorney suspects that a trial court disfavors the use of photographic evidence without expert testimony to correlate the relevancy of the minor damage to the plaintiff’s injury, a defense attorney may attempt to utilize these photos in the plaintiff’s own treating physicians’ evidence deposition as a means to contradict the basis of that physician’s opinion. Often times plaintiffs will tell the same exaggerated version of the accident to their treating physician or chiropractor and that will be relied upon by the physician or chiropractor as a basis in formulating their causation opinions. Showing photographs to these physicians of the lack of damage to the vehicle may cause the physician to alter their causation opinions or at the very least, indicate that the photographs contradict the plaintiff’s version of the accident.
Overall, the trend of the Appellate Courts’ rulings on vehicle damage photograph admission is to leave the determination to the sound discretion of the trial court. Therefore, it is important to ascertain the particular trial court judge’s general disposition regarding the need for expert testimony to allow vehicle photographs while the case is being litigated. By employing these strategies, defense counsel should be able to continue to utilize this powerful form of evidence in the representation of defendants in minor impact cases.
Originally published in the Spring 2011 edition of Quinn Quarterly.