Another Look at Dicosola V. Bowman - The Debate Continues

By Brian R. Shoemaker

Bruce Farrel Dorn & Associates

The admissibility (relevance) of post-accident vehicle photographs continues to provoke debate as appellate courts throughout the state still disagree as to whether photographs are admissible into evidence absent expert testimony. The debate specifically is about whether post-accident vehicle photographs can be admitted into evidence as an indicator of human injury without the foundational requirement of an expert. The debate began in earnest with the now well-known case of DiCosola v. Bowman, 342 Ill.App.3d 530 (1st Dist. 2003).

Prior to DiCosola, photographs depicting vehicle property damage were routinely admitted into evidence simply by laying a photograph foundation. (See Cancio v. White, 297 Ill.App.3d 422 (1st Dist. 1998). DiCosola, at least in how many judges have interpreted it, turned that rule on its ear. DiCosola v. Bowman involved a two car accident that occurred in the parking lot of a Dominick’s grocery store. Plaintiff was "t-boned" in the parking lot by Defendant when Defendant drove her vehicle through a parking space. DiCosola, 342 Ill.App.3d at 533. The trial court excluded the photographs showing minimal damage to Plaintiff’s vehicle as irrelevant. Id. The court further ruled that without an expert to testify that a correlation existed between the amount of damage to Plaintiff’s vehicle and the extent of Plaintiff’s injuries, the evidence was inadmissible. Id.

The First District Appellate Court agreed, holding there is no Illinois case law that “stands for the proposition that photographs showing minimal damage to a vehicle are automatically relevant and must be admitted to show the nature and extent of a plaintiff’s injuries.” DiCosola, 342 Ill.App.3d at 535. The First District ruled further that “there simply is no such bright-line rule that photographs depicting minimal damage to a post-collision vehicle are automatically admissible to prove the extent of a plaintiff's bodily injury or lack thereof.” Id.

Although DiCosola did not seemingly intend to create a bright line rule that required an expert for post-accident vehicle photographs to be admissible, for all practical purposes that is exactly what the First District appellate court did. The court purposefully used words such as “automatically” and “must” to indicate that certain situations existed where an expert would not be required and photographs would be admissible. Interestingly, the court held in DiCosola “we do not hold that expert testimony must always be required for such photographic evidence to be admissible. We hold that the trial court in this case did not abuse its discretion in requiring expert testimony to show a correlation between the extent of the vehicular damage and the extent of plaintiff's injuries.” DiCosola, 342 Ill.App.3d at 537. DiCosola seems to hold that whether photographs were admissible into evidence should be reviewed on a case-by-case basis as evidenced by their emphasis on “in this case.” Thus, it appeared the First District intended to leave some wiggle room, or judge’s discretion, as to the evidentiary requirements of the admissibility of post-accident vehicular photographs.

However, practically speaking, many trial courts in the First District have interpreted the case as precedence that no photographs are admissible without expert testimony. Where photographs show minimal damage to vehicles, defense attorneys have argued that photographs are relevant, especially where the claimed injury is significant. Where the vehicles showed significant damage to the vehicles involved in the accident, plaintiff’s attorneys have argued that the photographs are relevant to show that an injury was more likely to result from the accident. As such, DiCosola barred photographs for parties on both sides.

DiCosola did not address whether photographs were relevant for impeachment purposes or to demonstrate points of impacts between vehicles. Should a witness testify that an impact between vehicles was “heavy” or “hard,” some trial courts following DiCosola have allowed the cross-examination of that witness with the post-accident photographs of the vehicles involved showing little to no damage to impeach the witness. However, parties are still barred from arguing little or no property damage equals little or no injury even if the photographs are admitted into evidence. Consistently, should a party testify that an impact between vehicles was minor or “light,” some trial courts have allowed the cross-examination of that party with the post accident photographs of the heavily damaged vehicle to impeach the witness’ testimony. In other cases, the parties may disagree about how the accident occurred or what were the points of impacts between vehicles. In that situation, the post-collision vehicle photographs are relevant to demonstrate the actual points of impacts between the vehicles. In any of these cases, trial courts seemingly had the ability to rule that photographs were admissible for impeachment purposes or to demonstrate the points of impact between vehicles without the need for expert testimony. In other words, DiCosola left the decision of relevance up to the discretion of the trial court.

If ever there was a question as to whether post-accident vehicle photographs were admissible without an expert for impeachment purposes during cross-examination, Baraniak v. Kurby, which followed DiCosola ended the debate in the First District. In Baraniak, the Plaintiff testified that the impact was “hard” following a rear-end accident where Defendant had admitted negligence. Baraniak v. Kurby, 371 Ill.App.3d 310, 317 (1st Dist. 2007). The defense attorney in Baraniak was barred from using the photographs of the vehicles post-accident as the basis for the medical experts’ opinions regarding Plaintiff’s injury. Baraniak, 371 Ill.App.3d at 316. However, the trial court ruled that the defense attorney could use the post-accident vehicle photographs for impeachment purposes during cross-examination and the photos were admitted into evidence. Id.

The First District overturned the trial court and decided that using the photographs for impeachment purposes was only “conducting an end around the relevancy rule.” Id. at 318. Baraniak held that “absent expert testimony on the correlation between vehicular damage and plaintiff’s claimed injuries, photographs of parties damaged vehicles were not relevant.” Id. at 317. Baraniak went on to hold that “although Plaintiff’s credibility was an issue for the jury to determine, that would be true in any case since it was a function of juries to determine credibility to all witnesses who testified before them.” Id. Baraniak’s heavy reliance on DiCosola goes even further in effectively establishing a bright line rule of law that an expert is necessary and required to admit post-accident vehicle photographs into evidence whether impeaching a witness or to demonstrate the correlation between damage to the vehicle and bodily injury. Baraniak also removed the discretionary decision of the trial court and barred post accident vehicular photographs unless expert testimony was presented – something that DiCosola explicitly declined to do. DiCosola, 342 Ill.App.3d at 631.

Other Appellate Districts in Illinois

Other appellate courts in Illinois disagree drastically with the First District rulings and the relevancy of the post-accident vehicle photographs, absent expert testimony. If any case stands in purposeful contrast with the Baraniak Court and concludes that photographs showing minimal damage are relevant to bodily injury claims, it is the recent case of Fronabarger v. Burns, 385 Ill.App.3d 560 (5th Dist. 2008). Fronabarger involved a two-vehicle, rear end accident resulting in little to no damage to either vehicle involved. Id. at 562. Plaintiff claimed lower back pain and treated with a chiropractor for over a year, two to three times per week. Id. at 562. The trial court allowed the post-accident vehicle photographs into evidence. Id. at 563. The Fifth District Appellate Court ruled that “a jury could assess the relationship between the damage to the vehicles and the injury to the plaintiff without the aid of an expert.” Fronabarger, 385 Ill.App.3d at 565.

The Third District reached a similar conclusion three years prior to Fronabarger with the case Ferro v. Griffiths. The Ferro court refused to “adopt a rigid rule that proscribes the admission of pictures without an expert” and left the evidentiary decision up the discretion of the trial court. Ferro v. Griffiths, 361 Ill.App.3d 738, 743 (3rd Dist. 2005). The Ferro Court relied on DiCosola, interpreting the DiCosola opinion as holding that an expert is not always required just as photos are not always relevant.

However, for over a year now, the appellate courts have been in clear disagreement with no Illinois Supreme Court case to cite to for guidance. An appellate court sitting in one district is not bound to follow the opinions of any other district, and instead must adhere to the opinions of the Illinois Supreme Court. Pajic v. Old Republic Ins. Co, 2009 WL 3161785 (1st Dist. 2009). Thus, the appellate courts are waiting for the Illinois Supreme Court to weigh in on the relevancy of post-accident vehicular photographs.

In conclusion, the debate regarding post accident vehicle photographs continues to flourish. With such stark differences between the district appellate courts, an end to the debate does not appear to be near. One consistency is true regarding the relevancy of post-accident vehicle photographs at trial; the appellate courts have apparently agreed to disagree.