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04/20/95 MARY CLARK AND DEBBIE DUNN v. OTIS

April 20, 1995

MARY CLARK AND DEBBIE DUNN, AS CO-GUARDIANS OF THE ESTATE AND PERSON OF MICHAEL CLARK, A DISABLED PERSON, PLAINTIFF-APPELLEES AND CROSS-APPELLANTS,
v.
OTIS ELEVATOR COMPANY, DEFENDANT-APPELLANT AND CROSS-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE DONALD J. O'BRIEN JR., JUDGE PRESIDING.

Rehearing Denied August 15, 1995. Petition for Leave to Appeal Denied December 6, 1995.

Presiding Justice Hoffman delivered the opinion of the court: Theis and S. O'brien, JJ., concur.

The opinion of the court was delivered by: Hoffman

PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:

The defendant, Otis Elevator Company, appeals from a jury verdict in favor of the plaintiff, Michael Clark, on his complaint seeking recovery for negligence. The plaintiff cross-appeals from the trial judge's order of a remittitur. We consider whether the trial judge erred when it found the plaintiff was incompetent to testify at trial because he had been adjudicated a disabled person under section 11a-3 of the Probate Act of 1975 (755 ILCS 5/11a-3 (West 1992)). For the following reasons, we reverse and remand for a new trial.

The plaintiff sought recovery against the defendant for injuries he allegedly sustained on December 4, 1986, in an elevator that the defendant maintained. On January 7, 1993, about two months before trial, on the petition of Mary Clark and Debbie Dunn, a judge in the probate division of the circuit court declared the plaintiff a disabled person based on his finding that the plaintiff was unable to make or communicate decisions regarding his person and unable to manage his finances. The order declaring the plaintiff disabled stated that it was based on the testimony of the petitioners, the report of Dr. Matthew Markos dated October 26, 1992, which indicated the plaintiff suffered an "organic mental problem," and the report of a guardianad litem. The order also stated that the plaintiff appeared in court and did not object to the guardianship. Clark and Dunn were appointed co-guardians of the plaintiff's estate and person and shortly thereafter, they filed a fourth-amended complaint on the plaintiff's behalf against the defendant, again alleging negligence.

Before trial, the co-guardians filed a motion in limine in the instant action asserting that under the Dead Man's Act (735 ILCS 5/8-201 (West 1992)), the defendant could not present testimony of any conversation with the plaintiff or any event that occurred in the plaintiff's presence because he had been adjudicated a disabled person. Specifically, the motion sought to exclude the testimony of the defendant's expert witnesses who relied on the plaintiff's discovery deposition taken before he was adjudicated disabled which described the accident and the plaintiff's injuries, and also sought to exclude any evidence that the plaintiff was drunk when he was injured.

At the hearing on the motion in limine, the parties argued whether the plaintiff was competent to testify when he had been adjudicated a disabled person. The trial judge stated:

"I can't make the determination [of whether the plaintiff is competent to testify] even if we got him on the stand. I can have some opinions about his incompetency, but I don't believe that I'm qualified without adding psychiatric or psychological testimony to make that determination. I might think he is, but I don't have the expertise to make the ultimate determination."

Subsequently, the defendant requested a hearing on the plaintiff's competency to testify. The trial judge responded:

"I'll do that, and I'm going to do it right now. As you are aware, under the probate act you do not need testimony to declare incompetency. I will adopt the testimony given in the probate hearing, and the affidavits filed thereto, and declare him incompetent for the purpose of pendency of this action."

The judge read into the record portions of the reports which were the basis of the adjudication that the plaintiff was disabled, although the reports are not in the record on appeal. Dr. Markos found the plaintiff suffered from "an organic mental disorder, i.e., dementia secondary to alcohol" and "frequent depression disorder, i.e., major, moderate to severe." As a result, Dr. Markos concluded that the plaintiff was incapable of making personal and financial decisions and required a structured environment. The judge stated that the report of the guardian ad litem merely discussed the interview with the plaintiff.

The jury found for the plaintiff and against the defendant and awarded damages of $978,600 after deducting 16% for the plaintiff's contributory fault. In response to the defendant's post-trial motion, the trial judge granted a remittitur of $16,278, reducing the verdict to $962,322. A setoff of $500,000 was applied for the plaintiff's settlement with another party. The defendant now appeals and the plaintiff cross appeals.

Although the plaintiff and the defendant raise several issues for review, we find it necessary to consider only whether the trial judge erred in finding that the plaintiff was incompetent to testify at trial. The defendant argues that in finding the plaintiff incompetent to testify at trial, the trial ...


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