The opinion of the court was delivered by: Herndon, District Judge
On December 5, 2005, Plaintiff Mary Bonner, as administrator of the Estate of Barry Bonner, filed suit in the Circuit Court of St. Clair County, Illinois against Defendants Union Pacific Railroad Company ("Union Pacific"), John Clemons, and other unknown railroad policemen. (Doc. 2.) The three-count Complaint alleges that Defendants wrongfully and negligently caused the death of Barry Bonner. On March 29, 2006, Defendants filed a notice of removal based on this Court's diversity jurisdiction. (Doc. 5.) This matter is now before the Court on Defendants' motion for summary judgment. (Doc. 24.)
On the night of November 13, 2005 at approximately 11:25 p.m. Officer John Clemons shot and killed Plaintiff's husband, Barry Bonner ("Decedent"). Defendant Clemons is a railroad policeman employed by Union Pacific to patrol the railraod under McArthur Bridge in East St. Louis, Illinois. Many of the facts surrounding the shooting are disputed and will be discussed below. The question before the Court is whether any material facts are actually in dispute, which would prevent the entry of summary judgment in Defendants' favor.
III. Motion for Summary Judgment
Summary judgment is proper where the pleadings and affidavits, if any, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); Oats v. Discovery Zone, 116 F.3d 1161, 1165 (7th Cir. 1997) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The movant bears the burden of establishing the absence of fact issues and entitlement to judgment as a matter of law. Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997) (citing Celotex, 477 U.S. at 323). In reviewing a summary judgment motion, the Court does not determine the truth of asserted matters, but rather decides whether there is a genuine factual issue for trial. Celex Group, Inc. v. Executive Gallery, Inc., 877 F. Supp. 1114, 1124 (N.D. Ill. 1995) (Castillo, J.). The Court must consider the entire record, drawing reasonable inferences and resolving factual disputes in favor of the non-movant. Regensburger v. China Adoption Consultants, Ltd., 138 F.3d 1201, 1205 (7th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
In response to a motion for summary judgment, the non-movant may not simply rest on the allegations in his pleadings. Rather, she must show through specific evidence that an issue of fact remains on matters for which she bears the burden of proof at trial. Walker v. Shansky, 28 F.3d 666, 670-71 (7th Cir. 1994), aff'd, 51 F.3d 276 (citing Celotex, 477 U.S. at 324). No issue remains for trial "unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted); accord Starzenski v. City of Elkhart, 87 F.3d 872, 880 (7th Cir. 1996); Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994). "[Non-movant's] own uncorroborated testimony is insufficient to defeat a motion for summary judgment." Weeks v. Samsung Heavy Indus. Co., 126 F.3d 926, 939 (7th Cir. 1997) . Further, the non-moving party's own subjective belief does not create a genuine issue of material fact. Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 401 (7th Cir. 1997).
As an initial matter, Plaintiff asserts in her response that Defendant Clemons is barred from testifying regarding the sequence of events surrounding the shooting pursuant to the Illinois Dead Man's Act unless "as part of plaintiff's casein-chief, the estate offers testimony about the sequence of shots or the actions of Mr. Clemons then, and only then, can Mr. Clemons refute such testimony." (Doc. 32, p. 4.) The Dead Man's Act provides that an adverse party shall not be allowed to testify as to any conversation or to any event which took place in the presence of the deceased unless a person testifies on behalf of the decedent's representative as to any conversation or event -- only then may an adverse party testify concerning the same conversation or event. 735 ILCS 5/8-201.
Defendants counter that Plaintiff waived the protections of the Act when she included affidavits from Frederick and Barry Bonner, Jr., Decedent's sons, describing conversations and events surrounding the shooting of the Decedent in her brief in opposition to summary judgment. Defendants argue that Plaintiff cannot use the Act as both a shield and a sword. The Court agrees.
Although Plaintiff seems to suggest that she may only waive the protections afforded under the Act during trial, many courts have found that the Act is also applicable within the context of a summary judgment proceeding. See Brown, Udell and Pomerantz, Ltd. v. Ryan, 308 Ill.Dec. 193, 369 Ill.App.3d 821, 861 N.E.2d 258 (App. 1 Dist. 2006); Groce v. South Chicago Community Hosp., 218 Ill.Dec. 453, 282 Ill.App.3d 1004, 669 N.E.2d 596 (App. 1 Dist. 1996)(rehearing denied); Rerack v. Lally, 182 Ill.Dec. 193, 241 Ill.App.3d 692, 609 N.E.2d 727 (App. 1 Dist.1992)(appeal denied) 186 Ill.Dec. 393, 151 Ill.2d 577, 616 N.E.2d 346 (holding that the trial court did not err in applying the Dead Man's Act within the context of a summary judgment proceeding).
Had Plaintiff asserted that Defendant Clemons' testimony related to the events surrounding the shooting were prohibited under the Act and offered no other individual's testimony regarding the events in her own response, then the Court would have been required under the Act to disregard Clemons' testimony about the events involving the Decedent. Instead, Plaintiff offered the affidavits of the Decedent's sons regarding the events that occurred before, during, and after the shooting on the evening of November 13, 2005. This testimony clearly falls under the waiver section of the Act. Plaintiff may not offer this testimony to defeat Defendants' motion for summary ...