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Spencer v. Wayne

Court of Appeals of Illinois, Second District

June 29, 2017

ARLETHIA SPENCER, Plaintiff-Appellant,
GAIL STRENGER WAYNE, as Special Representative of the Estate of Mona Strenger, Defendant and Third-Party Plaintiff-Appellee (Lake Bluff Home Care Solutions, LLC, d/b/a Home Town Home Care, LLC, Third-Party Defendant).

         Appeal 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 ...

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