                             2016 IL App (2d) 151043
                                  No. 2-15-1043
                           Opinion filed August 8, 2016
______________________________________________________________________________

                                           IN THE

                            APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

ANDICE PEACOCK,                           ) Appeal from the Circuit Court
                                          ) of Du Page County.
       Plaintiff-Appellant,               )
                                          )
v.                                        ) No. 13-L-761
                                          )
KATHLEEN WALDECK, Deceased,               )
by Special Representative Barton Waldeck, ) Honorable
                                          ) Kenneth L. Popejoy,
       Defendant-Appellee.                ) Judge, Presiding.
______________________________________________________________________________

       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
2016 IL App (2d) 151043


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).




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¶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 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



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2016 IL App (2d) 151043


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.




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2016 IL App (2d) 151043


¶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, 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



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2016 IL App (2d) 151043


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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