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Waldemar A. Argueta v. Peter D. Krivickas

July 8, 2011

WALDEMAR A. ARGUETA,
PLAINTIFF-APPELLANT,
v.
PETER D. KRIVICKAS,
DEFENDANT-APPELLEE.



No. 08 L 1383 Appeal from the Circuit Court of Cook County Deceased, by Special Honorable Representative,Rosa Gomez, Drella C. Savage,Judge Presiding.

The opinion of the court was delivered by: Judge Epstein

JUDGE EPSTEIN delivered the judgment of the court, with opinion.

Presiding Justice Fitzgerald Smith and Justice Joseph Gordon concurred in the judgment and opinion.

OPINION

¶ 1 This litigation arose from a two-vehicle accident involving plaintiff, Waldemar A. Argueta, and the now-deceased defendant, Peter D. Krivickas, the only other known witness to the collision. Plaintiff appeals the trial court's grant of summary judgment in defendant's favor, claiming the trial court misapplied the Dead-Man's Act (the Act) (735 ILCS 5/8-201 (West 2008)). We affirm.

¶ 2 BACKGROUND

¶ 3 In 2008 plaintiff filed the instant negligence action against Krivickas, claiming damages from the accident. Krivickas subsequently passed away from injuries unrelated to the accident. Plaintiff then filed an amended complaint naming Rosa Gomez as Krivickas's special representative. Gomez answered, asserting plaintiff's negligence as an affirmative defense. After the parties exchanged interrogatories and completed depositions, Gomez moved for summary judgment claiming plaintiff could not prevail because the Act bars his testimony, and Krivickas, the only other known witness to the collision, is deceased. Plaintiff responded that Gomez had waived the Act by her affirmative defense and that his affidavit and the depositions of two police officers who responded to the collision created genuine issues of material fact precluding summary judgment. The trial court disagreed, granting defendant judgment. Plaintiff appeals.

¶ 4 ANALYSIS

¶ 5 Summary judgment is intended to determine whether triable issues of fact exist and "is appropriate where the pleadings, affidavits, depositions, admissions, and exhibits on file, when viewed in the light most favorable to the non-movant, reveal that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Busch v. Graphic Color Corp., 169 Ill. 2d 325, 333 (1996). "Since the entry of a summary judgment is not a matter committed to the discretion of the trial court, a reviewing court must independently examine the evidence presented in support of and in opposition to a motion for summary judgment [citation] and review the decision of the trial court de novo [citation]." Groce v. South Chicago Community Hospital, 282 Ill. App. 3d 1004, 1006 (1996). "The trial court's summary judgment may be affirmed on any basis appearing in the record whether or not the court relied on that basis or its reasoning was correct." Ray Dancer, Inc. v. DMC Corp., 230 Ill. App. 3d 40, 50 (1992).

¶ 6 Where, as in this case, the defendant moves for summary judgment, she may prevail "(1) by affirmatively disproving the plaintiff's case by introducing evidence that, if uncontroverted, would entitle the movant to judgment as a matter of law (traditionaltest) [citation], or (2) by establishing that the non-movant lacks sufficient evidence to prove an essential element of the cause of action (Celotex test) [citations].

*** Only if a defendant satisfies its initial burden of production does the burden shift to the plaintiff[ ] to present some factual basis that would arguably entitle [him] to a judgment under the applicable law. [Citation.] A party opposing summary judgment may rely solely upon the pleadings to create a question of material fact until the movant supplies facts that would clearly entitle it to judgment as a matter of law." Williams v. Covenant Medical Center, 316 Ill. App. 3d 682, 688-89 (2000).

Gomez met her initial burden here by arguing, based on plaintiff's interrogatory answers (Washington v. City of Evanston, 336 Ill. App. 3d 117, 130-31 (2002)), that plaintiff lacks sufficient evidence to prevail because Krivickas is deceased, and plaintiff, the only other known witness to the collision, is barred by the Act from testifying as to certain issues. Application of the Act here is a matter of statutory interpretation.

"The controlling principles are familiar. The primary rule of statutory construction is to ascertain and give effect to the intention of the legislature. The best evidence of legislative intent is the language used in the statute itself, which must be given its plain and ordinary meaning. The statute should be evaluated as a whole, with each provision construed in connection with every other section. [Citations.] When the statutory language is clear, no resort is necessary to ...


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