Illinois Appellate Court Affirms Summary Judgment in Favor of Defendant in Dead-Man’s Act Argument

Kathleen Waldeck was driving a car that was alleged to have rear-ended the car of the plaintiff, Andice Peacock, causing her injuries. Peacock had alleged that her car was rear-ended by Waldeck while waiting for a stoplight to turn green.

The lawsuit alleged that Peacock’s vehicle was stopped at a red light when the collision occurred, and “there were no visual obstructions to block defendant’s view of plaintiff’s vehicle.” In the Waldeck answer, she admitted her car rear-ended Peacock’s vehicle and that her view was not obstructed. In the meantime, before bringing this summary judgment motion, Waldeck passed away. Her representative of the estate, Barton Waldeck, argued that the Dead-Man’s Act barred Peacock from testifying about this car crash.

A DuPage County, Ill., circuit court judge granted the motion for summary judgment in favor of the Estate of Kathleen Waldeck. Peacock appealed.

“Given that the Dead-Man’s Act was designed to bar testimony that a decedent could have refuted, plaintiff could have argued, perhaps that the Dead-Man’s Act should not apply to matters about which the decedent admittedly had no knowledge.” But because “that is not the argument that plaintiff has made,” the Illinois Appellate Court declined to consider whether the case of Rerack v. Larry, 241 Ill.App.3d 692 (1992), might have permitted Peacock to provide testimony about the accident despite Waldeck’s death.

Illinois Appellate Court for the 2^nd District also acknowledged that if Waldeck’s answer had admitted the allegation that Peacock was stopped at a red light when Waldeck crashed into the back of her car, this would have been adequate to raise a prima facie case of negligence on the part of the driver of the rear vehicle,” based on Burns v. Grezeka, 155 Ill.App.3d 294 (1987).

The appellate court went on to say that Waldeck’s limited admissions were not sufficient to establish an inference of negligence because “they leave open the possibility that the accident occurred because plaintiff stopped abruptly or in an otherwise unsafe manner.”

The special representative of the Waldeck estate successfully moved for summary judgment contending that plaintiff Peacock could not establish defendant’s negligence without testimony that would be inadmissible under the Dead-Man’s Act at trial.

The plaintiff argued on appeal that the summary judgment was wrong because the pleadings (answer) established the existence of a question of material fact. However, the Illinois Appellate Court affirmed the trial court’s decision dismissing the case on summary judgment. The record reviewed by the appellate court showed that there were no known witnesses to the incident other than plaintiff and the defendant. A party opposing a motion for summary judgment may not rely on evidence barred by the Dead-Man’s Act to establish the existence of a question of material fact. Rerack v. Larry.

In pertinent part, the Dead-Man’s Act provides that: “In the trial of any action in which any party sues or defends as the representative of a deceased person or person under a legal disability, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability.”

There are several exceptions to the Dead-Man’s Act and this rule. But neither party here contends that any of the exceptions apply.

“The Dead-Man’s Act is intended to remove the temptation of a survivor to testify to matters that cannot be rebutted because of the death of the only other party or witness to the event, but it is not intended to disadvantage the living.” Balma v. Henry, 404 Ill.App.3d 233 (2010).

In this case, given that the Dead-Man’s Act was designed to bar testimony that a decedent could have refuted, the plaintiff could have argued that the Dead-Man’s Act should not apply to matters about which the decedent admittedly had no knowledge. That, however, is not the argument that the plaintiff made, so the appellate court could not consider the matter.

In contrast to the other fact scenarios in Rerack and Burns, the defendant’s admissions leave open the possibility that the accident occurred because plaintiff stopped abruptly in an otherwise unsafe manner because of road conditions or because of a mechanical problem with plaintiff’s vehicle. Were this matter to proceed to trial, the trier of fact might conjecture that the accident resulted from negligence on defendant’s part, but a verdict based on conjecture could not stand. Accordingly, the trial court properly entered summary judgment in favor of the estate of Waldeck.

Peacock v. Waldeck, 2016 IL App (2d) 151043 (Aug. 8, 2016).

Kreisman Law Offices has been handling car crash cases, work injury cases, truck accident cases, motorcycle crash cases and bicycle accident cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Bridgeview, Orland park, Arlington Heights, Deerfield, Winfield, Winnetka, Naperville, Evergreen Park, Schaumburg, Schiller Park, Mundelein, Chicago (Wicker Park, Rogers Park, Albany Park, Lincoln Square, South Shore, Lawndale), Tinley Park and Skokie, Ill.