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                              Appellate Court                         Date: 2016.10.06
                                                                      08:50:46 -05'00'




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



Appellate Court   ANDICE PEACOCK, Plaintiff-Appellant, v. KATHLEEN
Caption           WALDECK, Deceased, by Special Representative Barton Waldeck,
                  Defendant-Appellee.



District & No.    Second District
                  Docket No. 2-15-1043



Filed             August 8, 2016



Decision Under    Appeal from the Circuit Court of Du Page County, No. 13-L-761; the
Review            Hon. Kenneth L. Popejoy, Judge, presiding.



Judgment          Affirmed.



Counsel on        Travis Dunn, of Law Offices of Peter F. Ferracuti, of Ottawa, for
Appeal            appellant.

                  John J. Skawski and Peter J. Evans, both of Skawski Law Offices,
                  LLC, of Oak Brook, for appellee.



Panel             JUSTICE JORGENSEN delivered the judgment of the court, with
                  opinion.
                  Justices Hutchinson and Zenoff concurred in the judgment and
                  opinion.
                                              OPINION

¶1        Plaintiff, Andice Peacock, filed a complaint in the circuit court of Du Page County against
     defendant, Kathleen Waldeck, seeking recovery for personal injuries that plaintiff allegedly
     suffered as a result of a rear-end motor vehicle collision. Defendant died during the pendency
     of the lawsuit (her death was unrelated to the motor vehicle accident), and the trial court
     appointed Barton Waldeck to serve as her special representative. The special representative
     successfully moved for summary judgment, contending that plaintiff could not establish
     defendant’s negligence without testimony that would be inadmissible under the Dead-Man’s
     Act (Act) (735 ILCS 5/8-201 (West 2014)) at trial. Plaintiff appeals from the summary
     judgment, arguing that the pleadings establish the existence of a question of material fact. We
     affirm.
¶2        According to plaintiff’s complaint, on October 6, 2011, at 5:23 p.m., she was driving west
     on Roosevelt Road, and defendant was driving behind plaintiff in the same lane. While
     plaintiff was stopped for a stoplight, defendant’s vehicle struck the rear of plaintiff’s vehicle.
     According to the complaint, at the time of the collision, “[t]here were no visual obstructions to
     block Defendant’s view of Plaintiff’s vehicle.” Prior to her death, defendant filed her answer.
     She averred a lack of knowledge sufficient to answer the allegation that plaintiff’s vehicle was
     stopped at a stoplight when the collision occurred, and she neither admitted nor denied that
     allegation. Defendant admitted the other allegations concerning the time and location of the
     accident. Defendant also admitted that her vehicle struck the rear end of plaintiff’s vehicle and
     that she had an unobstructed view of plaintiff’s vehicle when the accident occurred. The record
     reveals that there were no known witnesses to the incident other than plaintiff and defendant.
¶3        Summary judgment is proper where “the pleadings, depositions, and admissions on file,
     together with the affidavits, if any, show that there is no genuine issue as to any material fact
     and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c)
     (West 2014). The trial court’s ruling on a motion for summary judgment is subject to de novo
     review. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004). “Even if some issue of
     fact is presented by a motion for summary judgment, if what is contained in the pleadings and
     affidavits would have constituted all of the evidence before the court at trial and upon such
     evidence nothing would be left to go to a jury, and the court would be required to direct a
     verdict, then a summary judgment should be entered.” Koziol v. Hayden, 309 Ill. App. 3d 472,
     477 (1999).
¶4        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. Lally, 241
     Ill. App. 3d 692, 694-95 (1992). As pertinent here, the Dead-Man’s Act provides that “[i]n 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.” 735 ILCS 5/8-201 (West 2014). The Dead-Man’s Act carves
     out several exceptions to this rule (id.), but neither party here contends that any of the
     exceptions applies. Furthermore, there is no dispute that the special representative qualifies for
     the protection afforded under the Dead-Man’s Act. “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

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     death of the only other party to the conversation or witness to the event, but it is not intended to
     disadvantage the living.” Balma v. Henry, 404 Ill. App. 3d 233, 238 (2010).
¶5       In Rerack, the First District reversed a summary judgment for the administrator of the
     estate of the original defendant in an action arising from a rear-end collision. The propriety of
     the summary judgment in Rerack hinged on the extent to which the plaintiff’s testimony about
     the collision would be admissible if the matter proceeded to trial. The plaintiff contended on
     appeal that the trial court erred by “not allowing him to present testimony regarding the
     following: the overall mechanical condition of plaintiff’s automobile and, specifically, the
     functioning of its brake light; the weather conditions at the time of the accident; that plaintiff’s
     vehicle was stopped for two minutes; that plaintiff’s foot was on the brake pedal of his car
     continuously; that plaintiff had heard no sound prior to the accident’s impact; and that plaintiff
     observed damage to the rear of his vehicle the day after the occurrence.” Rerack, 241 Ill. App.
     3d at 695. In concluding that the Dead-Man’s Act did not bar the testimony, the Rerack court
     reasoned as follows:
             “None of the plaintiff’s proffered testimony, listed above, can reasonably be said to
             have occurred during the ‘event.’ Even assuming that any of the above testimony could
             be categorized as regarding something that was within the event, it is still not testimony
             regarding an occurrence in the ‘presence’ of the decedent. Thus, absent evidence
             establishing that decedent would have observed the aforementioned, it was error for the
             trial court to have excluded such testimony.” Id.
     While noting that “[t]he mere fact that a rear-end collision occurred is not enough to support a
     finding of negligence against a defendant,” the Rerack court explained that “a litigant may rely
     upon circumstantial evidence where such evidence reasonably implies negligence from all the
     facts and circumstances shown to exist prior to and at the time of the collision.” Id. at 696. The
     court concluded that the defendant’s negligence could be inferred from the circumstances of
     the accident and that the defendant was not entitled to summary judgment. Id.
¶6       In her brief, plaintiff contends that negligence can be inferred here because defendant
     admitted that she was traveling behind plaintiff and had an unobstructed view of plaintiff’s
     vehicle when the collision occurred. At oral argument, however, plaintiff conceded that
     negligence cannot be inferred simply because defendant was traveling behind plaintiff and had
     an unobstructed view of plaintiff’s vehicle. She argued, however, that defendant’s lack of
     knowledge of whether plaintiff’s vehicle was stopped at a stoplight permitted an inference
     that—as plaintiff would have testified—it was indeed stopped.
¶7       If defendant had actually admitted that plaintiff was waiting at a stoplight when the
     accident occurred, our decision in Burns v. Grezeka, 155 Ill. App. 3d 294 (1987), would
     control the disposition of this appeal. In Burns, we held that “although the fact of a rear-end
     collision into a parked vehicle is not sufficient to establish liability as a matter of law, it is
     adequate to raise a prima facie case of negligence on the part of the driver of the rear vehicle.”
     Id. at 298. On that basis, we reversed a summary judgment for the estate of a deceased driver
     whose vehicle struck the plaintiff’s from behind while the plaintiff’s vehicle was stopped at a
     red light.
¶8       Of course, defendant did not admit that plaintiff’s vehicle was stopped at a traffic light; she
     averred a lack of knowledge of the truth of the allegation. Contrary to the position plaintiff
     took at oral argument, defendant’s lack of knowledge has no evidentiary significance. Given
     that the Dead-Man’s Act was designed to bar testimony that a decedent could have refuted,

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       plaintiff could have argued, perhaps, 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 plaintiff has made, so we consider the matter no further.
¶9          With only defendant’s actual admissions, the evidence of negligence here is not of the
       same quality as the evidence that was available in Rerack, where the plaintiff was capable of
       showing that his vehicle’s brake lights were functioning and that it had been stopped at a red
       light for two minutes before the defendant’s vehicle struck it. That evidence would enable the
       trier of fact to eliminate several possible explanations of how the collision occurred without
       fault on the defendant’s part. Here, in contrast, defendant’s admissions leave open the
       possibility that the accident occurred because plaintiff stopped abruptly or in an otherwise
       unsafe manner (see, e.g., Thomas v. Northington, 134 Ill. App. 3d 141, 148 (1985)), because of
       road conditions (see, e.g., Fabschitz v. King, 10 Ill. App. 3d 43, 44-45 (1973)), 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. Argueta v. Krivickas, 2011 IL App (1st) 102166,
       ¶ 10. Accordingly, the trial court properly entered summary judgment for defendant.
¶ 10        For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.

¶ 11      Affirmed.




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