from the Circuit Court of Lake County. No. 15-L-465 Honorable
Mitchell L. Hoffman, Judge, Presiding.
SCHOSTOK JUSTICE delivered the judgment of the court, with
opinion. Justices Jorgensen and Burke concurred in the
judgment and opinion.
1 Plaintiff, Arlethia Spencer, filed a complaint in the
circuit court of Lake County against Mona Strenger, seeking
recovery for personal injuries that plaintiff suffered when
she allegedly slipped on a mat and fell while exiting a
vehicle in defendant's garage. Strenger died during the
pendency of the lawsuit, and the trial court appointed
defendant, Gail Strenger Wayne, as her special
representative. Wayne successfully moved for summary
judgment, contending that plaintiff could not establish
Strenger's negligence without testimony that would be
inadmissible under the Dead-Man's Act (Act) (735 ILCS
5/8-201 (West 2014)) at trial. Following the denial of her
motion for reconsideration, plaintiff timely appeals, arguing
that the trial court misapplied the Act. We affirm.
2 I. BACKGROUND
3 According to plaintiff's complaint, on July 12, 2012,
she was employed by an agency that had contracted with
Strenger to provide certain caretaker services. Plaintiff was
riding in the passenger seat of Strenger's vehicle as
Strenger drove the vehicle into her garage. As plaintiff
exited from the vehicle, she stepped on a mat that had been
placed on the floor of the garage. The mat slipped, causing
plaintiff to fall and sustain injuries.
4 The complaint alleged that Strenger was negligent in the
following respects: by placing a mat that lacked a nonskid
backing or other means to prevent sliding, by failing to warn
plaintiff of the presence of the mat, by failing to provide
plaintiff with a safe area to exit the vehicle, by failing to
provide plaintiff with a safe pathway from her vehicle to her
home, and by failing to maintain the garage floor.
5 In her answer to plaintiff's complaint, Strenger
admitted the allegation that plaintiff stepped onto a mat as
she exited the vehicle. However, Strenger denied that, as
plaintiff did so, the mat slipped, causing plaintiff to fall.
6 Wayne filed a motion for summary judgment, arguing that the
Act barred plaintiff's testimony regarding the fall
because it occurred in Strenger's presence. According to
Wayne, because plaintiff was barred from testifying as to the
fall, there was no admissible evidence to prove her case.
7 In response, plaintiff argued that, because Strenger was
not in a position to see what caused plaintiff to slip,
Strenger could not have refuted plaintiff's testimony and
thus the Act did not bar plaintiff from testifying as to the
cause of her fall. In support, she attached excerpts from the
depositions of plaintiff and Strenger. In those excerpts,
plaintiff testified that she exited the car, she stepped onto
the mat, the mat slipped, and she was thrown into a brick
wall. In addition, plaintiff testified that Strenger was
still inside the car at the time and would not have been able
to see the mat slipping as plaintiff stepped onto it.
Strenger testified that she had a freezer and a refrigerator
in her garage, that there were mats near the freezer, and
that a person who exited the car would walk on the mats.
8 Following a hearing, the trial court entered summary
judgment for Wayne. The court stated:
"I don't think there is any question that [the] in
the presence requirement for the Dead Man's Act is met
here, and I think that to basically speculate about what the
decedent may or may not have been able to see while plaintiff
was in her presence would undercut the entire purpose of the
Dead Man's Act."
9 Plaintiff moved for reconsideration. In support, she
attached photographs of the garage, the full transcript of
Strenger's deposition, the full deposition transcript of
Robert Wayne (Strenger's son-in-law), an employer injury
report, and a medical report. Robert testified that Strenger
had told him that plaintiff had fallen. The employer injury
report stated: "Worker was getting out of the
Client's car, slipped and fell into a brick wall."
The medical report stated: "She was stepping out of a
client's car at home, tripped on the rug, stumbling
forward and hitting a brick wall." According to
plaintiff, this additional evidence could not be refuted by
Strenger and was sufficient to raise a genuine issue of fact.
10 The trial court denied the motion, refusing to consider
the attachments, as they were previously available. In
addition, the court stated that, even if it considered the