Digitally signed by Reporter of Decisions Reason: I attest to Illinois Official Reports the accuracy and integrity of this document Appellate Court Date: 2019.08.26 15:01:22 -05'00'

Inman v. Howe Freightways, Inc., 2019 IL App (1st) 172459 Appellate Court LISA INMAN, Individually and as Administrator of the Estate of Caption Jesse Inman, Deceased, Plaintiff-Appellee, v. HOWE FREIGHTWAYS, INC., an Illinois Corporation; HINER TRANSPORT, LLC, a/k/a Hiner Transport, Inc.; and HINER EQUIPMENT, LLC, Defendants (Howe Freightways, Inc., Defendant-Appellant; Hiner Transport, LLC, a/k/a Hiner Transport, Inc., Defendant-Appellee). District & No. First District, Fourth Division Docket No. 1-17-2459 Filed May 30, 2019 Decision Under Appeal from the Circuit Court of Cook County, No. 12-L-4183; the Review Hon. James N. O’Hara and the Hon. Thomas J. Lipscomb, Judges, presiding. Judgment Affirmed in part and reversed in part; cause remanded with directions. Counsel on Michael Resis and Andrew Seiber, of SmithAmundsen LLC, and Appeal Glenn F. Fencl and David M. Macksey, of Johnson & Bell Ltd., both of Chicago, for appellant. J. Timothy Eaton and Jonathan B. Amarilio, of Taft Stettinius & Hollister LLP, and Todd A. Smith and Sean M. Houlihan, of Power Rogers & Smith LLP, both of Chicago, for appellee Lisa Inman. Panel JUSTICE BURKE delivered the judgment of the court, with opinion. Justices Gordon and Pierce * concurred in the judgment and opinion. OPINION ¶1 As the sun was setting one night in September 2011, James Langholf, a truck driver and employee of Howe Freightways, Inc. (Howe), was driving his semi-tractor trailer west on Interstate 80 in Iowa when he began to have engine trouble. He pulled over to the shoulder of the highway and turned off his vehicle. When Langholf could not restart it, he called Howe, who told him to call the manufacturer of his engine. Eventually, Langholf called a towing company, which dispatched Jesse Inman (Inman) and Daniel Walsh in separate tow trucks to tow Langholf’s tractor and his trailer, the latter being the storage compartment for the freight. When Inman and Walsh arrived at the scene, Inman parked in front of Langholf and Walsh parked behind Langholf. Shortly thereafter, a semi-tractor trailer driven by Herbert Terrell, an employee and agent of Hiner Transport, LLC, a/k/a Hiner Transport, Inc., and Hiner Equipment, LLC (collectively, Hiner), sideswiped Walsh’s tow truck and collided with the back of Langholf’s truck. The force of the collision pushed Langholf’s truck into Inman’s tow truck, pinning Inman between them. As a result of the collision, all four men died. ¶2 Plaintiff Lisa Inman, Inman’s widow, initiated this lawsuit on her behalf and his estate against several defendants, including Howe and Hiner, and alleged their negligence caused his death. Ultimately, the case proceeded to trial where a jury found that both Howe and Hiner were liable, apportioning their liability at 57% and 43%, respectively, and awarded plaintiff a multimillion dollar verdict. ¶3 On appeal, Howe contends that the trial court erred (1) by denying its motion for a judgment notwithstanding the verdict where plaintiff failed to present evidence that showed it proximately caused the injuries to Inman; (2) by denying its motion for a judgment notwithstanding the verdict where the jury’s verdict and apportionment of liability was against the manifest weight of the evidence; (3) by granting pretrial discovery sanctions that deemed admitted certain acts by it were negligent; and (4) in its rulings on multiple pretrial motions in limine, including one that barred a witness from testifying that, mere seconds before the accident occurred, Terrell was shirtless but, after the accident, he was wearing a shirt. ¶4 Because we find the trial court erred by barring that witness from testifying about his observation of Terrell just seconds before the accident occurred and that evidence, if presented at trial, very likely would have changed the jury’s apportionment of liability between Howe and Hiner, we must reverse the jury’s verdict and remand this matter for a new trial. ¶5 I. BACKGROUND ¶6 A. The Complaint ¶7 At one point, this lawsuit had several defendants and included multiple counterclaims, but pertinent to this appeal is plaintiff’s fourth amended complaint, where she brought wrongful * Justice Pierce was substituted for Presiding Justice McBride after oral argument and has read all of the briefs and has listened to the audio recording of the oral argument.

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death and survival actions against Howe and Hiner, by and through their former employees, Langholf and Terrell, respectively. ¶8 Plaintiff premised her claims against Howe on several alleged negligent acts or omissions, including Howe’s failure to properly repair and maintain Langholf’s tractor, Howe’s failure to ensure that Langholf completed a safety training course after he had been involved in another accident, Langholf’s decision to stop his tractor-trailer on the shoulder of the highway rather than continue driving to the next highway exit, Langholf’s failure to use reflective warning triangles behind his tractor-trailer, and Howe’s failure to promptly contact a towing company to tow Langholf’s tractor-trailer from the highway. Plaintiff premised her claims against Hiner on multiple alleged negligent acts or omissions, including Terrell’s failure to keep a proper lookout on the highway, failure to reduce his speed as he approached the vehicles on the shoulder of the highway, and his collision with the vehicles. Plaintiff claimed that, as a proximate cause of one or more of these negligent acts or omissions, Inman suffered serious injuries that resulted in his death. Both Howe and Hiner denied that either they or their employees had acted negligently.

¶9 B. Pretrial ¶ 10 Three and a half months before trial, plaintiff filed a motion seeking sanctions against Howe for its failure to produce certain training and maintenance records of Langholf and his tractor before the depositions of Howe’s former director of safety and maintenance and its successor director of safety and maintenance. Ultimately, the trial court granted sanctions and deemed admitted three allegations of negligence in plaintiff’s then-operative third amended complaint, which were that (1) following a preventable accident, Langholf failed to complete a required safety training course, (2) Howe failed to ensure that Langholf complied with its internal policy of completing the safety training course following a preventable accident but before receiving another dispatch, and (3) Howe and Langholf failed to properly maintain his tractor when they improperly replaced the turbo two weeks before the accident, which caused the tractor to become unsafe for highway operation. ¶ 11 Thereafter, plaintiff filed another motion for sanctions against Howe for its failure to preserve Langholf’s tractor engine and turbo. Ultimately, the trial court granted new sanctions and deemed admitted the allegation in plaintiff’s now-fourth amended complaint that Howe and Langholf failed to properly maintain the tractor engine, including the turbo, which caused it to become unsafe for highway operation in violation of section 396.7(a) of the Federal Motor Carrier Safety Regulations (FMCSR) (49 C.F.R. § 396.7(a) (2011)). The court also affirmed the deemed admitted allegations from the first sanctions order concerning the safety training. ¶ 12 In the week before trial, now with the trial judge presiding over the case (Judge Thomas J. Lipscomb), Howe filed a motion to reconsider the imposition of discovery sanctions by the motion judge (Judge James N. O’Hara). The trial judge denied the motion. ¶ 13 The parties also filed several motions in limine, but relevant to this appeal were plaintiff’s motion in limine No. 32 and Howe’s motions in limine Nos. 35 and 37. ¶ 14 Plaintiff’s motion in limine No. 32 sought to bar eyewitness Franklin Green from testifying at trial that Terrell passed him on the highway before the accident and was not wearing a shirt, but after the accident, when Green went to render aid at the scene, he observed that Terrell was pinned in his seat but wearing a shirt. The trial judge granted the motion and barred this testimony.

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¶ 15 Howe’s motion in limine No. 35 sought, in part, to bar plaintiff’s expert witness from offering an opinion that, despite the engine issues, Langholf’s truck could have reached the next highway exit. The trial judge denied the motion as it related to this opinion. ¶ 16 Howe’s motion in limine No. 37 sought to bar, in part, any assertion that a violation of its purported internal policy requiring a driver to complete a safety training course after a preventable accident but before receiving another dispatch established a standard of care that, if breached, constituted negligence. The trial judge denied the motion as it related to establishing a standard of care, relying on the motion judge’s earlier sanctions order that deemed admitted the allegation regarding Howe’s failure to ensure that Langholf complied with its internal policy of completing the safety training course. ¶ 17 Before trial, the trial judge determined that a high-low settlement between plaintiff and Hiner was made in good faith and dismissed contribution counterclaims between Howe and Hiner. Additionally, before trial, plaintiff voluntarily dismissed Hiner Equipment, LLC.

¶ 18 C. Trial ¶ 19 1. Commercial Trucking and Regulations ¶ 20 At trial, the evidence revealed that Howe and Hiner, as commercial motor vehicle companies, and Langholf and Terrell, as operators of semi-tractor trailers, were required to follow the FMCSR. Langholf owned his tractor but leased it to Howe pursuant to an agreement, under which Howe became fully responsible for the operation of the tractor. As well, under the FMCSR, Langholf was considered an employee of Howe. Multiple FMCSR regulations were presented at trial. ¶ 21 One regulation prohibited the operation of a motor vehicle in a condition likely to cause an accident or breakdown of the vehicle. However, if that vehicle was discovered to be in an unsafe condition while being operated on the highway, the regulation allowed drivers to continue operating the vehicles until reaching the nearest place where repairs could safely be performed, but only if continuing to operate the vehicle was safer than remaining on the highway. There was unanimous agreement among the trial witnesses concerning this regulation. For one, they agreed the regulation allowed drivers to “limp” their vehicle forward, meaning if they had an issue with their engine, but still had power, they could continue driving but at a reduced speed until reaching a point of safety. The witnesses also agreed that being parked on the shoulder of the highway was dangerous and the danger increased the longer the vehicle remained on the shoulder. But the witnesses further noted that being parked on the shoulder was safer than being parked in a lane of traffic. ¶ 22 Another regulation required drivers to keep specific warning devices in their vehicles: three reflective warning triangles or either six fusees or three flares. According to an expert at trial, fusees and flares were much rarer than the triangles because the fusees and flares could only be used for a finite period of time. Another regulation detailed how the warning devices were to be used. The regulation required drivers who had stopped their vehicles on the shoulder of the highway to immediately activate their hazard warning signal flashers. Within 10 minutes of stopping, drivers were required to place their warning devices in specific locations around their vehicles, the arrangement depending on the type of roadway on which they were located. According to the regulation, hazard warning signal flashers could be used, but not in lieu of the reflective warning triangles, fusees, or flares.

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¶ 23 2. Before the Accident ¶ 24 On September 7, 2011, Langholf was involved in an accident that Howe later deemed to be preventable. Following the accident, Langholf did not complete a safety training course. At trial, David Grimm, who became Howe’s director of safety and maintenance in October 2011, testified that, in September 2011, there was no requirement by Howe for its drivers to complete a safety training course following a preventable accident but before receiving another dispatch. However, Grimm agreed that, during a deposition, he testified there was such a policy and, had Howe adhered to it, Langholf would not have received another dispatch until completing the safety training course. ¶ 25 On September 13, 2011, Langholf was driving westbound on Interstate 80 near mile marker 188—close to Grinnell, Iowa—hauling steel coils on a flatbed semi-tractor trailer. That stretch of Interstate 80 was a divided highway, with two lanes of traffic eastbound and two lanes westbound. The highway had slight hills but was fairly straight with no curves. From mile marker 188, the next highway exit westbound was between five and six miles away. ¶ 26 At approximately 5 p.m., Langholf called Howe, where Margaret O’Brien, Howe’s director of safety and maintenance at the time, answered. O’Brien told Grimm, Howe’s shop foreman at the time who was training to take O’Brien’s position, to take the call. Because Howe used a two-way cell phone, O’Brien could hear the ensuing conversation between Langholf and Grimm. According to both O’Brien and Grimm, Langholf reported that he had engine trouble, pulled onto the shoulder of the highway, and turned off the engine. According to Grimm, Langholf said that he heard a pop accompanied by a shake of his engine, and according to O’Brien, Langholf said that he had black smoke emanating from his tractor. At trial, Grimm agreed that Langholf still had engine power by virtue of him being able to manually drive onto the shoulder. After pulling over, Langholf was unable to restart his engine. Grimm subsequently gave Langholf the number of Cummins, the manufacturing company of his tractor’s engine, who had a repair shop in nearby Des Moines, Iowa. Although Grimm’s shift was ending at the time he took the call from Langholf, Grimm explained at trial that he gave Langholf the number of Cummins because its employees would have the expertise to troubleshoot his engine issue. The phone call between Grimm and Langholf lasted two minutes, and neither Grimm nor O’Brien called a tow truck for Langholf. At trial, Grimm acknowledged that he should have immediately called the nearest towing company. ¶ 27 At approximately 5:45 p.m., Justin Schwarz, a dispatcher for Hanifen towing company in Des Moines, received a call from Langholf, who needed to be towed to Cummins because his “turbo had gone out.” Cummins had apparently given Langholf the number for Hanifen, which was located approximately 53 miles away from Langholf. There were at least two other towing companies closer to Langholf than Hanifen: Doc’s in Brooklyn, Iowa, and Barney’s in Newton, Iowa. Doc’s was roughly 10 miles away from Langholf while Barney’s was roughly 24 miles away. But because semi-tractor trailers were extremely large, only heavy duty tow trucks had the capability to tow them. Doc’s had the capability, but there was some evidence at trial that Barney did not. ¶ 28 Schwarz informed Langholf that he would dispatch two tow trucks as soon as possible. Schwarz needed two because, according to Iowa law, one tow truck could not tow both a tractor and its trailer, so he called Walsh and Inman. Walsh, who lived in Des Moines, was home when he received the call, but he needed to drive to Hanifen in order to pick up his tow truck. Inman took the call while finishing another tow job in Altoona, Iowa, near mile marker 142. It

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is unclear exactly when Walsh and Inman arrived at the scene, but it appears both arrived at some point between 6:30 p.m. and 7 p.m. When Walsh arrived, he parked his tow truck on the shoulder of the highway some 100 to 150 feet behind Langholf’s truck. When Inman arrived, he parked his tow truck on the shoulder of the highway in front of Langholf’s truck.

¶ 29 3. The Accident ¶ 30 At around 7 p.m., Elaine Schellhorn was driving her semi-tractor with a side dump trailer westbound on Interstate 80 near mile marker 188. The traffic was “very heavy” and it was “very sunny.” The sun was positioned below the visor of her truck, which made it “very hard” for her to see and “probably” affected her vision. Schellhorn was in the right lane adjacent to the shoulder and driving behind Terrell’s truck with about three truck lengths between them, which prevented her from seeing ahead of his truck. Schellhorn had been following Terrell for some time but was not exactly sure how long. She was driving roughly 65 miles per hour and estimated Terrell to be driving the same. She had not noticed any erratic driving by Terrell. ¶ 31 Suddenly, Schellhorn observed Terrell’s truck fishtail and drive into a ditch on the right side of the road. Based on Terrell’s location, her straight-ahead view was obstructed and she could not see the vehicles on the shoulder, and she never witnessed his truck contact any of the trucks on the shoulder. She also did not recall seeing his truck use a turn signal, use its brakes, slow down, or attempt to move into the left lane immediately before the crash. After the crash, Schellhorn slowed down, stopped on the shoulder and reported the accident. She remained at the scene for three hours after the accident but did not give a statement to the police on the scene. ¶ 32 At around 7 p.m., Green was also driving a semi-tractor trailer westbound on Interstate 80 in the right lane. The setting sun did not affect his vision or view of the road. As Green was driving up a slight elevation on the highway between 60 and 62 miles per hour, he noticed Terrell’s truck passing him in the left lane. Green estimated that Terrell was driving between 63 and 70 miles per hour. According to Green, the posted speed limit was 70 miles per hour and the minimum speed was 40 miles per hour. In front of Green on the road was a dump trailer and in front of that truck was a 13-foot van trailer. Because the dump trailer sat lower to the ground, it did not obstruct Green’s vision, but the van trailer did at times. At the top of the slight elevation, as Terrell passed Green, Green observed vehicles on the right shoulder between a half mile to a little over a mile away with their lights flashing. From his vantage point, he could see that no parts of the vehicles were protruding over the fog line—the line separating the shoulder of the highway from the lanes of traffic—though he acknowledged at trial that the vehicles could have been right on the fog line. Green did not observe any reflective warning triangles behind the vehicles. ¶ 33 Eventually, Terrell passed the two trucks ahead of Green, after which Terrell moved his truck into the right lane. At this point, Green estimated that his own truck was roughly one- eighth of a mile away from the vehicles on the shoulder. Within seconds of Terrell moving into the right lane and some 8 to 20 seconds after Terrell had passed him, Green observed a plume of steam and debris. Although Green could not see the back of Terrell’s truck after it moved into the right lane and did not know if Terrell had attempted to brake, Green could tell that Terrell did not activate his turn signal, as there was a mid-light on the truck that would have lit up. Prior to the accident, nothing about Terrell’s driving caused Green to be concerned, and as far as he could tell, Terrell had moved into the right lane properly. According to Green,

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had there been glare from the sun, there would have been no trucks to shield Terrell from the glare. Once Green passed the accident, he moved onto the shoulder, parked, and called 911. Afterward, he exited his vehicle and proceeded to the scene of the accident.

¶ 34 4. After the Accident ¶ 35 At approximately 7:05 p.m., Poweshiek County Deputy Sheriff Jonathan Cheney and Tisha Miller, an emergency medical technician, received calls about a traffic accident. Cheney immediately drove to the scene, and as he was driving westbound on Interstate 80, he observed that the sun was “very bright” and, at times, “overpowering.” Often at that time in the evening, the sun’s brightness was so overpowering that, even when Cheney wore sunglasses, he would also have to use his hand to shield the sun. During such conditions, Cheney would often park on the shoulder and perform speed traps because the sun would help conceal his presence. ¶ 36 When Cheney arrived at the scene some 10 minutes after receiving the call, he noticed the lights on the back of Walsh’s tow truck were flashing and then immediately began looking for victims. Cheney observed Inman, who was completely covered in a white sheet and laying on his stomach, indicating to Cheney that he had already passed away. However, Cheney observed that Inman’s body was moving, so he rushed over to Inman, removed the cover, and saw that Inman was still alive. Cheney comforted Inman until medical professionals arrived. ¶ 37 Emergency medical technician Miller arrived at the scene around 7:16 p.m. and three minutes later encountered Inman lying between his tow truck and Langholf’s truck. Although Inman was pale, his eyes were open, he was conscious, and he was able to communicate with Miller, though not conversationally. Miller observed that Inman’s body was mangled with various serious injuries. Inman was placed on a backboard and transported onto an ambulance. Shortly afterward, Inman began to have breathing problems and passed away at 7:52 p.m. Dr. Michele Catellier performed an autopsy on Inman and determined his cause of death was blunt force trauma injuries to the abdomen, pelvis, and extremities. Dr. Catellier noted, however, that his brain and head were intact.

¶ 38 5. The Investigation ¶ 39 Iowa State Patrol Sergeant Christopher Starrett, who led the investigation into the cause of the accident, arrived at the scene at 8:11 p.m. He observed that both Inman and Walsh’s tow trucks had their hazard lights activated. On Walsh’s tow truck, Starrett observed that the left mirror had broken off and there was extensive damage to the left tires. As part of the investigation, Starrett took several photographs of the scene of the accident that night and the following morning as well as several measurements of the vehicles and the road. Many of the photographs he took he later characterized as horrible. The day after the crash when Starrett returned to the scene, he spent three or four minutes there and observed for the first time gouge and scrub marks on the ground where Walsh’s tow truck had been that were located very close to the fog line. He did not take a photograph of the marks that morning and did not measure them because it was too unsafe with the traffic conditions. ¶ 40 Despite the lack of physical measurements, Starrett visually estimated the distance from the gouge and scrub marks to the roadway and determined that Walsh’s tow truck was about 6 to 12 inches off the road, though he did not attempt to determine how far Walsh’s left mirror would have been from the roadway. Starrett likewise visually estimated where Langholf’s vehicle was in relation to the roadway and determined it was about two feet away. The shoulder

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itself was 10 feet wide. At trial, Starrett testified that, although he did not observe the gouge and scrub marks on the ground the night of the accident, one photograph he took that night revealed marks on the ground. Starrett further testified that, in the photograph, there was a mark on the fog line, but he never determined what it was. ¶ 41 As part of Starrett’s investigation, he interviewed three witnesses: Schellhorn, Green, and Dawn Rietman, who other evidence at trial indicated was behind Terrell’s truck in the left lane shortly before the accident. Schellhorn reported that the sun was in her eyes and terrible, but that she could nonetheless see about 300 feet ahead of her. Green reported that the sun was not an issue for him and that he could see the lights of Walsh’s tow truck from about a half-mile to mile away. Rietman, whom Starrett interviewed twice, also reported that the sun was not an issue, but at trial, Starrett agreed that, because she was behind Terrell’s truck, there was a strong possibility that his truck shielded her from the sun. In Rietman’s first interview, which occurred two weeks after the accident, she stated that Terrell’s vehicle had sideswiped Walsh’s tow truck, but in her second interview, which occurred three days later, she told Starrett that she did not see Terrell’s vehicle sideswipe Walsh’s tow truck. ¶ 42 At the conclusion of Starrett’s investigation, he determined that Terrell’s truck had moved from the right lane of traffic onto the shoulder and sideswiped Walsh’s tow truck with the initial point of contact being Terrell’s right steering tire against Walsh’s left steering tire. When this occurred, the right steering tire of Terrell’s truck was cut, causing it to lose air pressure immediately and blow. This caused Terrell’s truck to run into the trailer of Langholf’s truck, which forced Langholf’s truck into Inman’s tow truck. Terrell’s truck ultimately fell into a ditch. During the collision, Walsh, Inman, and Langholf were all standing in various places on the shoulder. Though the mirror of Walsh’s tow truck broke off, Starrett could not determine when in the chronology of the collision that happened. Starrett did not believe that the reason why Langholf’s truck was on the shoulder played a role in the cause of the accident. ¶ 43 At trial, Starrett was unsure if reflective warning triangles had been placed behind Langholf’s truck, but he saw no evidence of them and never found any. However, Starrett explained that, in his experience, when a tow truck arrives at the scene behind a semi-tractor trailer, the semi-tractor driver will pick up the warning triangles so that the vehicles can be moved off the highway quickly. Starrett further noted that, while a tow truck’s hazard lights could not act as a substitute for warning triangles, such lights nevertheless provided an effective warning for oncoming traffic. Starrett did agree that, had the warning triangles been placed in the appropriate locations, one triangle would have been behind where Walsh ultimately parked his tow truck.

¶ 44 6. The Trial Experts ¶ 45 Whitney Morgan, plaintiff’s expert, worked for the United States Department of Transportation in its Bureau of Motor Carrier Safety, now called the Federal Motor Carrier Safety Administration, as a special agent for several years before starting his own motor carrier safety consulting business. Morgan had been involved in the transportation safety business for over 40 years. Morgan testified that, because it had been deemed admitted that Langholf’s engine had been improperly maintained, its compromised function violated the FMCSR. Morgan acknowledged that a compromised vehicle could limp forward to the nearest place of safety if limping forward was safer than remaining on the highway, but he did not see any evidence to suggest that Langholf attempted to limp forward. Morgan, however, conceded that

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he did not know what exactly went wrong with Langholf’s vehicle or what the capabilities of his engine were and there was no specific evidence to indicate that Langholf could have actually limped along to the next exit. Morgan agreed that, had Langholf’s engine been on fire, pulling over would have been proper, but noted though that a blown turbocharger could have caused smoke but would not have caused a fire. Morgan testified that, based on the materials from the case he reviewed, there was no evidence that reflective warning triangles had been placed behind Langholf’s truck. ¶ 46 Overall, Morgan determined that Langholf’s failure to place the triangles behind his truck, his failure to attempt to exit the highway once his engine began to have issues, Howe’s substandard maintenance, and Howe allowing Langholf to be dispatched after a preventable accident without taking a safety training course all contributed to, or caused, the crash and resulting injuries and death to Inman. Regarding Terrell’s driving, Morgan identified multiple deviations from the best practices of commercial driving, including Terrell’s failure to keep a proper lookout of the road ahead, his failure to practice proper hazard perception, and his failure to slow down as he approached the vehicles on the shoulder. Although Morgan believed that Terrell did not keep a proper lookout, Morgan believed that the setting sun would have impeded Terrell’s vision of the trucks’ flashing lights. Morgan also believed it was possible that Terrell drove too close to the fog line, which caused his vehicle to sideswipe Walsh’s tow truck. Morgan opined that Terrell’s deviations from the best practices of commercial driving were also contributing causes to the accident. Morgan agreed that, had Terrell stayed in his lane or moved over to the left lane, the accident would not have happened, at least with Terrell initiating it. ¶ 47 James Whelan, Howe’s expert, was a mechanical engineer and accident reconstructionist, who had investigated or reconstructed hundreds of accidents over his career, including many involving trucks. Based on his review of the materials in the case, Whelan determined that, before the accident, Walsh’s tow truck was parked on the shoulder eight or nine inches away from the fog line and not parked crookedly. Whelan acknowledged that, when Walsh would have opened the door of his tow truck, the door would have been in a lane of traffic and that it was possible Walsh’s left mirror was over a lane of traffic. But Whelan noted that, according to a postaccident statement from Franklin Green, there was enough room for someone to walk between Walsh’s tow truck and the fog line. Whelan determined that Langholf’s vehicle was parked on the shoulder nearly two feet away from the fog line. ¶ 48 As for the accident itself, Whelan concluded that the accident was initiated when Terrell’s truck crossed over the fog line, causing it to sideswipe Walsh’s tow truck. Although Whelan could not conclusively determine where the initial point of impact was due to the extensive damage on Terrell’s truck, Whelan believed it was either the front right bumper or front right steering wheel of Terrell’s truck making contact with the back of Walsh’s tow truck. After Terrell sideswiped Walsh’s tow truck, Terrell lost control of his truck and rear-ended Langholf’s truck, which forced that vehicle into Inman’s tow truck. Whelan did not believe that the initial impact was between Terrell’s front right steering wheel and Walsh’s front left steering wheel because of certain paint transfer evidence. Whelan also rejected the notion that the initial impact was with Walsh’s left side mirror, explaining that, if true, Terrell would have maintained a straight direction of travel and the chain-reaction collision would not have occurred.

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¶ 49 Whelan concluded that Terrell, and only Terrell, caused the accident when he failed to keep a proper lookout of the road ahead of him. According to Whelan, Terrell should have stayed in the left lane when passing by the vehicles on the shoulder or, at the very least while in the right lane, slowed down and stayed in his lane. Because of this, Whelan determined that the reason Langholf ended up on the shoulder played no role in the cause of the accident. Although Whelan agreed that there was no evidence that the reflective warning triangles had been used, he believed the flashing lights of the tow trucks provided an effective warning to oncoming traffic and based on the circumstances, the vehicles on the shoulder were plainly visible. Concerning Langholf’s engine, Whelan noted that Langholf’s semi-tractor trailer weighed a combined 72,000 pounds. Using this weight, Whelan performed a horsepower loss calculation and concluded that, with a loss of turbo power, it was “not likely” Langholf’s vehicle could have limped along to the next highway exit while maintaining the minimum speed limit. And even if Langholf had attempted to limp along on the shoulder of the highway, it would have still presented a dangerous situation.

¶ 50 7. Jury Instructions ¶ 51 After testimony and closing arguments, the trial judge gave the jury several instructions, including that Langholf and Terrell were agents of Howe and Hiner, respectively, and therefore any act or omission on their part was imputed to Howe and Hiner. Concerning the allegations of negligence, the instructions informed the jury that plaintiff alleged Howe was negligent when (1) it failed to ensure that Langholf completed a safety training course following his preventable accident but before receiving another dispatch, (2) it failed to properly repair or maintain the engine of Langholf’s tractor, (3) Langholf failed to use reflective warning triangles, (4) Langholf performed diagnostics on the shoulder of the highway, (5) it failed to contact a towing company in close proximity to Langholf, and (6) Langholf chose to stop on the shoulder of the highway while his truck was capable of continuing to operate. Another instruction told the jury that plaintiff’s first and second allegations of negligence against Howe had been deemed admitted, but Howe denied the remaining allegations and that any of its alleged acts or omissions, including the two deemed admitted, were a proximate cause of Inman’s injuries. ¶ 52 Regarding Hiner, the instructions informed the jury that plaintiff alleged Hiner was negligent when Terrell (1) operated his truck without keeping a proper lookout, (2) operated his truck without reducing his speed to a reasonable rate upon approaching the vehicles on the shoulder of the highway, and (3) hit Walsh’s tow truck. The instructions also defined proximate cause and informed the jury of the relevant regulations of the FMCSR. The trial judge further provided the jury with a special interrogatory that asked if any act or omission of Howe proximately caused the injuries and death of Inman.

¶ 53 8. Verdict ¶ 54 Following deliberations, the jury returned a verdict finding both Howe and Hiner liable and apportioning that liability at 57% and 43%, respectively. The jury awarded plaintiff $19,010,273 in total damages. Regarding the special interrogatory, the jury answered in the affirmative that an act or omission of Howe proximately caused the injuries and death to Inman. The trial judge subsequently entered judgment in accordance with the jury’s verdict.

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¶ 55 D. Posttrial ¶ 56 Thereafter, Howe filed a posttrial motion primarily arguing that it was entitled to a judgment notwithstanding the verdict because plaintiff failed to establish that the acts and omissions alleged against it proximately caused Inman’s injuries and death. In the alternative, Howe argued that it was entitled to a new trial on several grounds, including that (1) the jury’s verdict and answer to the special interrogatory were against the manifest weight of the evidence, (2) the motion judge erred in entering the discovery sanctions and the trial judge erred in refusing to reconsider those sanctions, and (3) the trial judge erred with respect to its rulings on plaintiff’s motion in limine No. 32 and Howe’s motions in limine Nos. 35 and 37. Further, in the alternative, Howe sought a setoff of the damages award to account for plaintiff’s pretrial settlement with Hiner as well as her pretrial settlement with additional parties. The trial judge ultimately denied Howe’s posttrial motion in most respects but did grant Howe a setoff in the amount of $1,275,000 against the total damages award. ¶ 57 Howe timely appealed. Although both plaintiff and Hiner are appellees in this appeal, only plaintiff has filed a brief.

¶ 58 II. ANALYSIS ¶ 59 A. Judgment Notwithstanding the Verdict ¶ 60 Howe first contends that the trial judge erred in denying its motion for a judgment notwithstanding the verdict because plaintiff failed to show that the acts and omissions alleged against it proximately caused the injuries and death to Inman. Howe argues that, despite all of the allegations of negligence, nothing it did or did not do caused Terrell’s truck to leave his lane of traffic, cross onto the shoulder, and initiate the chain-reaction collision. ¶ 61 A motion for a judgment notwithstanding the verdict will be granted only where all of the evidence, when viewed in the light most favorable to the nonmoving party, so overwhelmingly favors the movant that no contrary verdict could ever stand. Lawlor v. North American Corp. of Illinois, 2012 IL 112530, ¶ 37. Stated another way, the motion should be granted only “ ‘when all of the evidence is considered, together with all reasonable inferences from it in its aspect most favorable to the plaintiff[ ], there is a total failure or lack of evidence to prove any necessary element of the [plaintiff’s] case.’ ” York v. Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d 147, 178 (2006) (quoting Merlo v. Public Service Co. of Northern Illinois, 381 Ill. 300, 311 (1942)). As long as there is some evidence that supports the jury’s verdict, a judgment notwithstanding the verdict is improper. Vanderhoof v. Berk, 2015 IL App (1st) 132927, ¶ 62. We review the trial court’s denial of a motion for a judgment notwithstanding the verdict de novo. Lawlor, 2012 IL 112530, ¶ 37. ¶ 62 As both plaintiff’s survival and wrongful death actions were based on negligence, she was required to prove that (1) Langholf and Howe owed a duty of care, (2) Langholf and Howe breached that duty of care, and (3) the breach was the proximate cause of Inman’s injuries or death. First Springfield Bank & Trust v. Galman, 188 Ill. 2d 252, 256 (1999). Howe has not contested the first two elements, but instead focuses on the proximate cause element, which generally “is defined as a cause that, in the ordinary course of events produced the plaintiff’s injury.” Atchley v. University of Chicago Medical Center, 2016 IL App (1st) 152481, ¶ 45. Ordinarily, the determination of proximate cause is a question of fact to be determined by the trier of fact, though when the facts proven at trial do not legally entitle the plaintiff to a recovery, the court may rule on proximate cause as a matter of law. Abrams v. City of Chicago,

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211 Ill. 2d 251, 257-58 (2004). Proximate cause has two components: cause in fact and legal cause. Turcios v. The DeBruler Co., 2015 IL 117962, ¶ 23. ¶ 63 Cause in fact examines the reasonable certainty that the defendant’s conduct caused the injury. Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 455 (1992). There may be more than one proximate cause of an injury (Rivera v. Garcia, 401 Ill. App. 3d 602, 611 (2010)), and that cause “need not be the only, last or nearest cause; it is sufficient if it occurs with some other cause acting at the same time, which in combination with it, causes injury.” Leone v. City of Chicago, 235 Ill. App. 3d 595, 603 (1992). When an injury does not result directly from the conduct of the defendant but rather a subsequent, independent act of a third party, we utilize the substantial factor test to determine if cause in fact exists. Kramer v. Szczepaniak, 2018 IL App (1st) 171411, ¶ 27. Under this test, the defendant’s conduct will be considered a cause if it “was a material element and a substantial factor in bringing about the injury.” Young v. Bryco Arms, 213 Ill. 2d 433, 446 (2004). A defendant’s conduct is a material element and substantial factor in causing an injury “if, absent that conduct, the injury would not have occurred.” Abrams, 211 Ill. 2d at 258. ¶ 64 When dealing with the possible concurrent negligence of multiple parties, our supreme court has warned that we must distinguish between the cause of an injury and a condition that merely made the injury possible. Galman, 188 Ill. 2d at 257. Under the cause-condition dichotomy, if the alleged negligent acts only “furnish a condition by which the injury is made possible, and that condition causes an injury by the subsequent, independent act of a third person, the creation of the condition is not the proximate cause of the injury.” Id. Distinguishing between the two, however, is essentially the same analysis we employ in determining if cause in fact exists. Kramer, 2018 IL App (1st) 171411, ¶ 31. ¶ 65 In discussing cause in fact, Galman is instructive. There, a truck driver illegally parked his tanker truck on the street 41 feet from the intersection with another street. Galman, 188 Ill. 2d at 254. A student was leaving a nearby high school and instead of crossing the street at the crosswalk, she attempted to cross in the middle of the block in front of the tanker truck. Id. While crossing, she was struck by another vehicle whose view was obstructed by the presence of the tanker truck. Id. at 255. The student died, and the plaintiff, on behalf of the decedent’s estate, sued the truck company and its driver, arguing that their negligence from illegally parking the truck was a proximate cause of the decedent’s death. Id. 255-56. The defendants argued that the parked truck did not proximately cause the decedent’s injuries because it merely furnished a condition by which the injury was made possible and instead, the decedent’s negligent jaywalking and the driver’s negligent driving were intervening and superseding causes of her injuries. Id. at 257. ¶ 66 Our supreme court reviewed the issue of proximate cause and initially noted that the cause- condition dichotomy was merely another way of presenting the cause-in-fact analysis. See id. at 259. The court then discussed whether cause in fact existed and concluded that, had the truck driver not parked his truck illegally on the street, the decedent’s “injuries almost certainly would not have occurred.” Id. at 260. Although she may have still crossed the street in the middle of the block, without the obstruction of the truck, the decedent would have had a clear view of the roadway and “presumably would have timed her crossing to avoid a collision.” Id. ¶ 67 In this case, had Langholf and Howe’s conduct that resulted in Langholf’s truck being on the shoulder of the highway or had their conduct that kept Langholf’s truck on the shoulder of the highway for some two hours not occurred, Inman certainly would not have been injured

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and died. Had Howe adhered to its purported policy of requiring drivers to complete a safety training course following a preventable accident but before receiving another dispatch, Langholf would not have been on road that day. Had Howe properly maintained or repaired Langholf’s tractor, including the engine and turbo, Langholf would not have been forced to pull over onto the shoulder of the highway. Had Howe contacted a local towing company immediately after Langholf pulled onto the shoulder of the highway, such as Doc’s, which was only 10 miles away and had the capability to tow a semi-tractor trailer, Inman would not have been dispatched to tow Langholf’s truck and Langholf’s truck would have very likely been off the highway around 7 p.m. when the accident occurred. Had Langholf limped forward on the highway, which there was some evidence he could have done based on still having engine power, rather than pulling onto the shoulder, Langholf clearly would not have been on the shoulder of the highway. Lastly, there was some evidence presented that, had Langholf used reflective warning triangles, the accident could have been avoided given the extreme glare of the sun that day, which might have masked the tow trucks’ hazard lights. In sum, although we do not know which of the alleged negligent conduct of Langholf and Howe the jury determined to have proximately caused Inman’s injuries, it is clear that Howe and Langholf’s conduct was a material and substantial factor in causing them. Consequently, cause in fact exists in this case. ¶ 68 Now we turn to the second component of proximate cause, legal cause, which requires an analysis of foreseeability and “whether the injury is the type of injury that a reasonable person would see as a ‘likely result’ of his or her conduct, or whether the injury is so ‘highly extraordinary’ that imposing liability is not justified.” Turcios, 2015 IL 117962, ¶ 24 (quoting Lee, 152 Ill. 2d at 456). Stated another way, “legal cause[ ] is established only if the defendant’s conduct is so closely tied to the plaintiff’s injury that he should be held legally responsible for it.” (Internal quotation marks omitted.) City of Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d 351, 395 (2004). When one party’s negligence is premised upon the subsequent negligent act of a third party, as is the case here, the critical question is whether the intervening cause was of a type that a reasonable person could conclude as a likely result of his conduct. Galman, 188 Ill. 2d at 259. ¶ 69 Howe acknowledges that the accident may not have happened without the presence of Langholf’s truck on the shoulder of the highway. Regardless, however, Howe argues that the circumstances did not establish it was the legal cause of the accident because it was not reasonably foreseeable that, a result of it and Langholf’s conduct, Terrell would veer from a lane of traffic onto the shoulder of the highway, collide with a clearly visible tow truck, and cause the injuries and death to Inman. Citing to Galman, Howe posits that that Terrell’s actions were entirely of his own making. ¶ 70 In Galman, although our supreme court found cause in fact existed, it still had to determine whether the illegal parking of the truck was the legal cause of the decedent’s injuries. Id. at 260. The court posed the specific question of whether it was reasonably foreseeable that illegally parking in the middle of the road “would likely result in a pedestrian’s ignoring a marked crosswalk at the corner, walking to mid-block, and attempting to cross a designated truck route blindly and in clear violation of the law.” Id. at 261. Answering that question, the court concluded that the decedent’s decision to jaywalk “was entirely of her own making” and the defendants could not have reasonably foreseen her decision as a result of parking illegally. Id.

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¶ 71 However, what is reasonably foreseeable is a context-dependent inquiry. See Kramer, 2018 IL App (1st) 171411, ¶ 47. The context in this case was an extremely dangerous scenario: large vehicles on the shoulder of the highway in the direction of travel of a setting sun. At trial, not one witness, including Howe’s own, disputed the notion that being parked on the shoulder of the highway, particular for a large semi-tractor trailer, was extremely dangerous. Howe and Langholf’s conduct left his truck in a position of danger for not only himself but to Inman and Walsh and oncoming drivers, such as Terrell. Langholf’s stopping in a place of danger was exacerbated by the circumstances. Schellhorn considered the traffic on Interstate 80 that evening to be heavy, and the sun was setting directly in the eyes of westbound drivers. Though Green and Rietman, westbound drivers at the time of the accident, did not believe the sun affected their vision, Schellhorn and Cheney remarked that the sun was terrible. Given the combination of the location of Langholf’s vehicle and the conditions during the evening of the accident, the circumstances were ripe for an accident to occur. ¶ 72 Though drivers, especially truck drivers as the evidence in this case established, are required to maintain control of their vehicles and keep a proper lookout for obstacles in the road ahead, common experience shows that drivers do not always do so. See Martinelli v. City of Chicago, 2013 IL App (1st) 113040, ¶ 30 (observing that “it is well known that people do various things that lead to distracted driving,” including “spilling a drink; dropping a cigarette; reaching for an item of food or drink; applying makeup; looking at a map; looking for loose change on the seat; or looking away from the roadway for any number of other reasons”). Obviously, in this case, Terrell did not survive the crash, and no one will know why he veered from his lane of traffic onto the shoulder and collided with Walsh’s truck. But highway drivers veer away from their lanes of traffic for a multitude of reasons. See Vosbein v. E.T. Simonds Construction Co., 295 Ill. App. 3d 427, 430 (1998) (finding it was reasonably foreseeable that a vehicle would leave the interstate highway and enter the grassy median between the divided highway). Not all of these driving mishaps result in traffic accidents but surely many do. It is reasonably foreseeable that a large truck driving upwards of 70 miles per hour could veer from its lane of traffic momentarily. ¶ 73 This risk is amplified during certain circumstances, as exemplified by this court’s decision in Smith v. Armor Plus Co., 248 Ill. App. 3d 831, 832 (1993), which involved a collision between a truck and another vehicle on the highway. The defendant had parked his truck on the shoulder of the highway after it became disabled and abandoned it but failed to place any warning devices on the road. Id. at 833, 835. The truck was completely off the roadway with its rear wheels actually in the grassy area of the highway. Id. at 834. That day, it had been snowing, heavily at times, and there was evidence that the roadway was icy. Id. at 834-35. However, closer to the time of the accident, there was evidence that the highway was clear of snow and no longer icy. Id. at 836-37. At around 12:40 a.m., another vehicle collided with the truck in which the passenger was killed. Id. at 833. The plaintiff, on behalf of the decedent, sued the truck driver and his employer, alleging that the decedent’s injuries were the result of the truck driver’s failure to remove the truck from the shoulder within a reasonable time, failure to place warning devices behind the truck as required by law, and parking of the vehicle on the shoulder rather than the nearest tollway oasis. Id. The trial court granted summary judgment for the defendants, finding that as a matter of law their actions did not proximately cause the decedent’s injuries. Id. at 839.

- 14 - ¶ 74 The appellate court reversed, finding the evidence adduced at that stage in the litigation created a triable issue of material fact as to whether the truck driver’s decision to abandon his vehicle “on the shoulder during serious weather conditions without the use of statutorily required warning devices constituted a proximate cause of the collision.” Id. at 840, 844. The court asserted that “[t]he mere fact that the truck was entirely off the roadway at the time of the collision [was] not dispositive” of the issue of proximate causation given “the very existence of the statutes requiring the use of warning devices when trucks are disabled on a shoulder.” Id. at 841. As such, the truck’s location did “not by itself demonstrate that the danger caused by its presence was not reasonably foreseeable.” Id. The court further found that “[i]t might be reasonably anticipated that during weather conditions impairing visibility a vehicle might for some reason temporarily stray across the line of the shoulder and strike an unlighted truck parked in proximity to the lane of traffic.” Id. Although it was unknown why the driver crossed onto the shoulder, the court concluded “it is not clear that the accident was the result of any unforeseeable or extraordinarily careless behavior on his part” given the conditions. Id. at 843. ¶ 75 Though in Smith, the appellate court reversed in part based on the truck being unlit, the critical analysis from that decision is the finding that the facts and circumstances are critical in making a decision on proximate cause. See also Kramer, 2018 IL App (1st) 171411, ¶ 47 (finding that, in a legal cause analysis, “[t]he context matters” and “[t]he facts matter”). In this case, while all of the trucks on the shoulder of the highway had various lights activated, there was evidence presented at trial showing that those lights could have been obscured by the glare of the sun. Notably, federal law required truck drivers to be equipped with reflective warning triangles, flares, or fusees and to use those warning devices, which the evidence established was most often the triangles, when their trucks have stopped on the shoulder of the highway for more than 10 minutes, regardless of whether their hazard warning signal flashers had been activated. 49 C.F.R. §§ 392.22, 393.95 (2011). These regulations are a recognition that, by themselves, hazard lights, do not obviate the risk associated with highway accidents involving stopped trucks. See Smith, 248 Ill. App. 3d at 841 (finding that, given “the very existence of the statutes requiring the use of warning devices when trucks are disabled on a shoulder, the fact that the truck was entirely off the roadway does not by itself demonstrate that the danger caused by its presence was not reasonably foreseeable”). This is not a case where a truck was parked on the side of some rarely traveled country road, this case involved the heavily trafficked Interstate 80. With the abundance of drivers moving at high rates of speed and the prevalence of distracted driving, “some ‘negligent driving’ could be reasonably foreseeable.” Kramer, 2018 IL App (1st) 171411, ¶ 59. When Terrell unfortunately provided that negligent driving, it interacted with the concurrent negligence of Langholf and Hiner to proximately cause Inman’s injuries and death. ¶ 76 Although Howe maintains that it and Langholf’s conduct did nothing more than furnish a passive condition by which Inman’s injuries were made possible rather than furnish a cause of his injuries, this distinction only carries weight “where the forces set in operation by the defendant have come to rest in a position of apparent safety, and some new force intervenes.” Shank v. Fields, 373 Ill. App. 3d 290, 294 (2007). Langholf and Howe’s conduct never resulted in his tractor trailer coming to a position of apparent safety. Rather the exact opposite is true: their conduct resulted in his tractor trailer being placed in a position of danger. See Duncan v. Rzonca, 133 Ill. App. 3d 184, 204 (1985) (observing that the “ ‘forces set in operation,’ ” or - 15 - the first negligent act, only come to rest in a position of apparent safety “when the risk of harm to the plaintiff created by the defendants’ alleged negligence had passed”). ¶ 77 Howe also has highlighted multiple cases, in particular Salinas v. Werton, 161 Ill. App. 3d 510 (1987), Long v. Soderquist, 126 Ill. App. 3d 1059 (1984), and Sheehan v. Janesville Auto Transport, 102 Ill. App. 3d 507 (1981), where, according to it, this court purportedly found that a vehicle stopped on the road off a lane of traffic was not the proximate cause of a traffic accident as a matter of law. But we find those decisions distinguishable. ¶ 78 Sheehan, 102 Ill. App. 3d at 509, involved a semi-tractor trailer parked in a curb lane of a city street at close to midnight, which presents far different circumstances than what occurred here of a semi-tractor trailer parking on the shoulder of a highly trafficked highway during the early evening hours. Long, 126 Ill. App. 3d at 1061, likewise is factually distinguishable, where two vehicles had pulled over partially onto the shoulder of an icy highway and later were hit by the driver of another vehicle who had slipped on the ice and lost control of the vehicle. The appellate court concluded that the actions of the drivers on the shoulder could not be a proximate cause of the other driver and his passenger’s injuries because their vehicle had slipped on ice and the driver could not have avoided a collision and injuries, even if the driver knew of the presence of the vehicles on the shoulder. Id. at 1064. Conversely, in this case, there was ample evidence presented that, had Langholf and Howe acted differently, no crash would have occurred. ¶ 79 Lastly, in Salinas, 161 Ill. App. 3d at 512-13, the defendant drove his tow truck, in which the plaintiff’s decedent was a passenger, onto the shoulder of the highway to tow out a vehicle in a ditch. While the defendant activated his emergency lights, he did not utilize any flares. Id. The decedent was standing behind the tow truck on the shoulder when a van drove off the road, hitting and killing him. Id. The plaintiff sued, alleging that the defendant had a duty to place warning flares behind his truck and his failure to do so was a proximate cause of the decedent’s injuries. Id. at 514. The trial court entered summary judgment in favor of the defendant, finding that he could not be considered a proximate cause of the injuries as a matter of law. Id. ¶ 80 On appeal, the appellate court agreed, initially observing that the plaintiff had attempted to establish that the defendant’s failure to use flares prevented the driver of the van from slowing down and thereby caused him to veer off the road and into the decedent. Id. at 515. However, the court found the plaintiff’s causal inference was unsupported by the record because her expert admitted in his deposition that, in forming his opinion about the failure to use flares, he did not consider any information regarding the speed of the van. Id. Thus, any inference that using flares would have caused the van to slow down was pure speculation. Id. Additionally, the appellate court noted that the record was devoid of any evidence as to why the van left the road and thus, the plaintiff had failed to establish a causal connection between the defendant’s failure to use flares and the decedent’s injuries. Id. at 515-16. ¶ 81 In contrast to Salinas, here, the lack of reflective warning triangles was only one possible cause of the accident. In addition, the lack of triangles being a cause of the accident was not completely speculative, as plaintiff presented some evidence through its expert Whitney Morgan that, had the triangles been used, the collision could have been avoided. What weight the jury ascribed to such an opinion is another question, but there was some evidence presented on the matter. ¶ 82 In sum, the evidence in this case supported the jury’s conclusion that Howe’s conduct together with the act of Terrell hitting the tow truck proximately caused Inman’s injuries and - 16 - death. Accordingly, the trial judge properly denied Howe’s motion for a judgment notwithstanding the verdict. ¶ 83 B. Jury’s Verdict and Special Interrogatory ¶ 84 Howe next contends that the trial judge erred in denying its motion for a new trial where the jury’s general verdict, including its apportionment of liability, and its answer to the special interrogatory on proximate causation were against the manifest weight of the evidence. ¶ 85 When presented with a motion for a new trial, the trial court must weigh the evidence and determine if the jury’s verdict is contrary to the manifest weight of the evidence. Lawlor, 2012 IL 112530, ¶ 38. A verdict will be considered against the manifest weight of the evidence only when “the opposite result is clearly evident or where the jury’s findings are unreasonable, arbitrary and not based upon any of the evidence.” Id. And we will not reverse the court’s ruling on such a motion “unless it is affirmatively shown that the trial court abused its discretion.” Id. ¶ 86 In this case, the jury found both Howe and Hiner to be liable for Inman’s injuries and death, and apportioned the liability between them at 57% and 43%, respectively. Given the facts of this case, which clearly demonstrated that Howe and Langholf failed to meet their standard of care through multiple actions and omissions, and the jury’s proper finding that any one of the acts or omissions proximately caused Inman’s injuries, there was no basis for the trial judge to conclude that the opposite result was clearly evident or the jury’s findings were not based on the evidence. Although the judge may have apportioned the liability between Howe and Hiner differently than the jury in this case, there was ample evidence at trial to support the jury’s verdict and its answer to the special interrogatory. Consequently, the trial judge properly denied Howe’s motion for a new trial on this basis. ¶ 87 C. Discovery Sanctions ¶ 88 Howe next contends that the motion judge abused his discretion in ordering the discovery sanctions and the trial judge erred when it refused to reconsider those sanctions. Before addressing the specific arguments made by Howe related to the sanctions, we must provide a background of the discovery in this case. ¶ 89 1. Discovery Background ¶ 90 The fatal collision occurred in September 2011, and plaintiff initiated her lawsuit in April 2012. Three months later, in July 2012, plaintiff propounded written discovery on Howe and sought all records, including maintenance documents related to Langholf’s tractor and all training and educational materials provided to Langholf. In response, Howe produced hundreds of documents. Of those documents, 10 pages related to maintenance of the tractor, including a 1-page maintenance report dated August 30, 2011, detailing that someone had tested Langholf’s turbo, “found shaft loose,” and replaced the turbo in addition to other work. The report did not mention who had performed the work. Also included was another one-page maintenance report dated September 6, 2011, detailing that the lift pump of Langholf’s tractor had a bad wire and was repaired. That report also did not mention who had performed the work. Only one document pertained to Langholf’s safety training: a February 2011 e-mail from O’Brien, Howe’s former director of safety and maintenance, to its third-party training - 17 - contractor requesting an account be set up for Langholf so that he could complete safety training courses. ¶ 91 Years later, oral discovery commenced. In October 2016, Schwarz, Hanifen towing company’s dispatcher on the night of the accident, was deposed and testified that Langholf had called seeking a tow because he thought his turbo had blown. The following month, O’Brien was deposed, wherein she testified that Howe required its tractors to be inspected every 60 days and 60-day inspection reports should have been produced if requested. During the deposition, plaintiff’s counsel gave O’Brien the maintenance reports that Howe had produced, and O’Brien agreed that no inspection reports were included. O’Brien also testified that Howe worked with a third party who provided training that its drivers were required to complete monthly. ¶ 92 After O’Brien’s deposition, Grimm, her successor, was deposed. He testified that Howe maintained 60-day inspection reports, where it would document various issues with its tractors and general maintenance. According to Grimm, Langholf had purchased his tractor in the spring of 2011, and it underwent an annual inspection in May 2011, meaning that a 60-day inspection report was required in July and September 2011. Grimm also testified that, based on regulations from the United States Department of Transportation, he only had to keep certain logs for six months and certain maintenance records for one year. Based on these regulations, Grimm acknowledged that he “probably” purged records specific to Langholf’s tractor at some point after the accident, including any 60-day inspection reports, resulting in only 10 pages of maintenance records being produced to plaintiff. Although Howe enacted a policy to keep such records after a fatal accident beginning around 2014, Grimm was unsure if a similar policy existed in 2011-13. Grimm additionally discussed various safety protocols of Howe, including that Langholf was required to complete monthly training courses and reports were generated showing the completion of the training. Lastly, in September 2011, according to Grimm, Howe had a policy following preventable accidents that required its drivers to complete additional training before being dispatched again. ¶ 93 Following Grimm’s deposition, plaintiff propounded an additional request for production on Howe. On January 12, 2017, the parties entered into an expert witness disclosure schedule, which required plaintiff’s disclosures within a month. In court that day, Howe produced hundreds of additional documents concerning, in part, maintenance to Langholf’s tractor and his safety training. With regard to the latter, Howe provided documents related to the monthly training required to be completed by its drivers, including logs specific to Langholf. ¶ 94 With regard to the maintenance of Langholf’s tractor, Howe provided several records, such as a 60-day inspection report from July 2011 that detailed repairs performed and data related to his tires and brakes. Additionally, there was a day planner with numerous references to Langholf’s tractor and maintenance on it from May 2011 to September 2011. There were also the one-page maintenance reports dated August 30 and September 6, 2011, that had previously been provided as well as work orders and tractor assessment and repair forms from those dates. ¶ 95 Concerning the August 30, 2011, work performed on the tractor, the descriptions of the work performed differed between the previously provided maintenance report and the newly provided work order. In the maintenance report, the work was described as, “Driver stated coolant lose. Found oil cooler. Replaced part. Test turbo found shaft loose. replaced turbo. Found exhaust soot in front 3 cylinders. Pulled injectors. found one bad and replaced. Redid - 18 - all injector o-rings. Ran rack.” In the work order, it listed the “Condition or Problem” as “Coolant leak on engine” and described the work as “Driver stated coolant lose [sic]. Checked oil cooler and found oil in housing, pulled aprat [sic] and cleanned [sic] and order new parts. Pulled turbo to get to cooler. Found turbo had play in shaft, replaced turbo. Pulled valve cover to check injectors, front exhaust was wet. Found number one injector leaking and replaced. Changed all o-rings on injectors since cams wherre [sic] pulled. Ran over head. Filled with coolant. Pb#5- 212410009, wkww707241, w707442, w707220, w707233.” The work order also provided the name of the mechanic (Grimm) who serviced Langholf’s tractor, whereas the maintenance report did not. Moreover, there were two tractor assessment and repair forms from that time period, one dated August 29 and 30, 2011, and one dated just August 30, 2011. The former form noted the name of the mechanic (Jaron) who serviced Langholf’s tractor and contained notes stating: “installed lower coolant hose,” “filled coolant,” and “installed flex pipe to turbo.” The latter form noted the name of the mechanic (Mark) who serviced Langholf’s tractor and contained notes stating, “1 box,” and a word that is illegible. ^[1] ¶ 96 Concerning the September 6, 2011, work, the descriptions of the work performed varied slightly between the previously provided maintenance report and the newly provided work order. In the maintenance report, the work was described as, “Truck came in on check engiune [sic] light. Found bad wire for lift pump. Repaired, advise driver what was done.” In the work order, it listed the “Condition or Problem” as “Check engine light” and described the work as “Hooked up computer for codes. Found lift pump code. Repaired harness wire. Gave driver a light.” Additionally, the work order provided the name of the mechanic (Mark Smith) who serviced Langholf’s tractor, whereas the maintenance report did not. Moreover, the tractor assessment and repair form for September 6, 2011, noted the name of the mechanic (Mark) who serviced Langholf’s tractor and contained notes stating “comp hook up,” “repaired lift pump harness,” “order repair harness,” and “driver took light with him.” ¶ 97 2. First Motion for Sanctions ¶ 98 On January 26, 2017, based on the additional discovery provided by Howe and with the scheduled trial date just over three months away, plaintiff filed an emergency motion seeking Illinois Supreme Court Rule 219 (eff. July 1, 2002) sanctions against Howe for its alleged willful failure to produce the additional training and maintenance records before the depositions of O’Brien and Grimm. Plaintiff asserted that Howe’s failure to produce these documents before the depositions had prejudiced her and, because it had not provided a plausible explanation for the untimely production, sanctions were warranted. Plaintiff requested that the motion judge strike Howe’s answer to her then-third amended complaint. Hiner also joined in the motion. ¶ 99 Howe responded, acknowledging that the documents were responsive to plaintiff’s initial discovery requests but argued that its failure to produce the records was due to the mistaken belief of Grimm, who believed that the records had been purged. Because of this, Howe asserted that its failure to produce the records initially was not deliberate. But, in any event, Howe argued that plaintiff was not prejudiced by the late production because the records were duplicative, did not bear on any issue related to proximate cause, it voluntarily offered to