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Eyster v. Conrad

Court of Appeals of Illinois, Fifth District

January 9, 2020

KEVIN EYSTER, Plaintiff-Appellant,
v.
KENNETH CONRAD, Defendant-Appellee.

          Appeal 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 opinion.

          OPINION

          CATES, JUSTICE.

         ¶ 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 remand.

         ¶ 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 County.[1]

         ¶ 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."[2] 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 do so.

         ¶ 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 decedent follow:

"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 switched lanes?
A. No.
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?
A. No.
* * *
Q. All right. Did you talk with Mr. Eyster or do you ...

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