from the Circuit Court of Jackson County. No. 14-L-110
Honorable Christy W. Solverson, Judge, presiding.
Attorneys for Appellant Mark D. Prince, Tyler N. Dihle
Attorneys for Appellee Wm. Kent Brandon, Jerrod H.
Montgomery, Brandon & Schmidt
JUSTICE CATES delivered the judgment of the court, with
opinion. Presiding Justice Welch concurred in the judgment
and opinion. Justice Overstreet specially concurred, with
1 Plaintiff, Kevin Eyster, filed an action in the circuit
court of Jackson County, alleging that he sustained personal
injuries when Kenneth Conrad negligently entered plaintiffs
lane of travel and sideswiped plaintiffs vehicle. Conrad
passed away while the suit was pending, and a special
representative was appointed and substituted as party
defendant. Subsequently, defendant moved for summary judgment
and argued that plaintiff could not establish that the
decedent was negligent because the decedent and plaintiff
were the only witnesses to the accident and plaintiff was
barred from testifying about the facts of the accident and
his conversations with decedent under the Dead-Man's Act
(735 ILCS 5/8-201 (West 2016)). The trial court granted
defendant's motion for summary judgment, and plaintiff
appealed. On appeal, plaintiff contends that summary judgment
was improper because defendant waived the protections of the
Dead-Man's Act and because the testimony and admissions
made by the decedent in his discovery deposition were
admissible as substantive evidence of decedent's
negligence under Illinois Supreme Court Rule 212(a) (eff.
Jan. 1, 2011). For reasons that follow, we reverse and
2 I. BACKGROUND
3 According to plaintiffs complaint, plaintiff was involved
in four motor vehicle accidents in 2012. In January 2012,
plaintiff was injured when his vehicle was rear-ended by a
vehicle in Paducah, Kentucky. That incident is not a part of
the pending litigation. On February 13, 2012, a vehicle
operated by Benjamin Devardo struck the rear of plaintiffs
vehicle. Plaintiff filed a negligence action against Devardo
and Marion Ford in the circuit court of Williamson County. On
April 28, 2012, plaintiffs vehicle was rear-ended by a
vehicle operated by Melissa Granderson. Plaintiff filed a
second negligence action against Granderson in Williamson
County. Then, on November 13, 2012, a vehicle operated by
Conrad allegedly sideswiped plaintiffs vehicle. Plaintiff
filed another action, this one against Conrad in the circuit
court of Jackson County. In the Jackson County case,
plaintiff alleged that Conrad was negligent in that he failed
to keep a proper lookout, failed to yield the right of way,
and entered plaintiffs lane of travel when it was unsafe to
do so. Plaintiff further alleged that he sustained new
injuries and an aggravation of prior injuries as a result of
Conrad's negligence. On November 19, 2015, the parties
filed a joint motion to consolidate the Williamson County
cases for purposes of discovery and trial. According to the
appellee's brief, the circuit court in Williamson County
granted the motion and ordered that the cases be consolidated
for purposes of discovery and trial in Jackson
4 On May 22, 2017, Conrad passed away from causes unrelated
to the November 13, 2012, accident. On May 31, 2017,
Conrad's attorney filed a suggestion of death and served
the suggestion on all parties of record. On July 11, 2017,
plaintiff filed a motion, "pursuant to section 180/2.1
of the Illinois Wrongful Death Act," for the appointment
of a "Special Administrator for purposes of defending
the Plaintiffs Claim." On July 13, 2017, the circuit
court granted the motion and appointed Matthew Caraway as the
special administrator of the estate of Kenneth Conrad,
deceased, (hereinafter defendant) for the purpose of
defending against plaintiffs cause of action.
5 On November 2, 2017, defendant filed a motion for summary
judgment and an accompanying memorandum, supported by the
transcript of decedent's discovery deposition and an
affidavit of the police officer who responded to the
accident. Defendant argued that plaintiff could not set forth
admissible evidence to establish the decedent's
negligence because plaintiff and decedent were the only
witnesses to the accident, and plaintiff was barred from
testifying about the facts of the accident and his
conversations with the decedent under the Dead-Man's Act
(735 ILCS 5/8-201 (West 2016)).
6 Defendant next argued that the only occurrence witness,
Officer Michael Baxter, could not provide admissible
testimony to create a genuine issue of material fact
regarding the cause of the accident or decedent's
negligence because he had no personal knowledge of any facts
concerning the accident. Defendant asserted that Officer
Baxter's testimony would be inadmissible because it was
based on hearsay and speculation. The affidavit by Officer
Baxter was attached in support of decedent's contention.
In the affidavit, Officer Baxter stated that by the time he
arrived, the vehicles involved in the accident had been moved
from the scene to the shoulder. Officer Baxter stated that he
did not recall finding any debris or marks on the roadway
indicating the point of impact, and he drew no diagrams
marking the position of the vehicles involved. He could not
recall any specific conversations he had with either driver,
and he had no personal recall of the accident, "except
what appears in my Crash Report."
7 Defendant also argued that the decedent's discovery
deposition was not admissible as substantive evidence because
plaintiff could not satisfy the requirements for admission
under Illinois Supreme Court Rule 212(a)(5) (eff. Jan. 1,
2011). Defendant noted that Rule 212(a)(5) was amended in
2011 to permit the discovery depositions of parties to be
used as evidence. Ill. S.Ct. R. 212(a)(5) (eff. Jan. 1,
2011). Citing to the committee comments on that amendment,
defendant argued that Rule 212(a)(5) required a party to
demonstrate "rare, but compelling, circumstances"
justifying the admission of a discovery deposition. Ill.
S.Ct. R. 212, Committee Comments (adopted Jan. 1, 2011).
Defendant asserted that the fact that the decedent died prior
to a trial or the completion of an evidence deposition did
not constitute the "rare, but compelling,
circumstances" that would justify the trial court to
exercise its discretion to permit the introduction of the
decedent's discovery deposition as substantive evidence.
Defendant pointed out that the decedent testified he was 90
years old at the time of this deposition. Defendant argued
that plaintiff was aware of the decedent's advanced age
and that plaintiff had ample opportunity to preserve
decedent's testimony during the two-year period between
decedent's discovery deposition and his death and did not
8 Defendant also argued that admitting decedent's
discovery deposition as substantive evidence "would not
do substantial justice" between the parties because
plaintiffs counsel asked all of the questions during the
discovery deposition, the decedent made no "unqualified
admissions," and there was no reason to clarify any of
the decedent's responses at the time of the deposition.
Relying on the testimony in decedent's discovery
deposition, defendant claimed that the decedent offered
"a plausible explanation as to why he believed the
accident was caused by the manner in which Eyster drove his
vehicle." Defendant pointed out that decedent testified
that he put on his blinkers and started to enter the adjacent
lane and that plaintiff pulled up beside him and they bumped.
Decedent also testified that plaintiff could have avoided the
accident by slowing down. Defendant maintained that
throughout the deposition, decedent denied liability and
testified in accordance with his answer and affirmative
defense. In concluding remarks, defendant asserted that the
trial court, in its discretion, should refuse to permit
decedent's discovery deposition to be used as substantive
evidence because the introduction of decedent's discovery
deposition, at best, would require the jury to speculate
about fault based upon ambiguous testimony and, at worst,
would substantially prejudice defendant.
9 As noted, defendant attached the complete transcript of
decedent's discovery deposition taken May 7, 2015, in
support of the summary judgment motion. During the
deposition, the decedent testified that he was 90 years old
and retired. Plaintiffs counsel asked the decedent what he
remembered about the November 2012 accident. Pertinent
portions of the exchange between plaintiffs counsel and the
"Q. Okay. Tell me what you remember about that.
A. Well, it happened. I was leaving Marion and going west.
This is two and a half years ago. And I'm going by the
mall and the road made a jig to the right and a jig to the
left and I made the jig and made a left jig and I decided to
enter the outside lane. I put on my blinkers. Moved in that
direction and started to enter that lane and this man pulled
up beside me and we bumped.
Q. All right. Did you see the other vehicle before you
Q. All right. What part of your car impacted with the other
car? Do you know?
A. Mainly the mirrors.
* * *
Q. Was there anything that would have blocked your view of
seeing the other car before you switched lanes?
* * *
Q. All right. Did you talk with Mr. Eyster or do you ...