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Posted on Sep 12th, 2017

Appellate Court confirms importance of Dead Man’s Act in Surviving Litigation!

By Jason G. Schutte


What is the Dead Man’s Act?

The Dead Man’s Act (herein Act) is an evidentiary rule pertaining to the admissibility of testimony that a dead party could have contested.  The Act states:

“In the trial of any action in which any party sues or defends as the representative of a deceased person ***, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased *** or to any event which took place in the presence of the deceased ***.” 735 ILCS 5/8-201 (West 2014).

The Act applies to situations where a party sues a deceased person or defends a suit as the representative of a dead person.[i] The act prevents an adverse party (or person directly interested in the action) from testifying on his own behalf to any conversations with the dead person or to any event which took place in the presence of the dead person.[ii]  The purpose of the act is “to protect decedents’ estates from fraudulent claims and to equalize the position of the parties in regard to the giving of testimony.  The Act bars only that evidence which defendant could have refuted.”[iii] The Act does not wholly prohibit the testimony of the person who interacted with the decedent, or that person’s spouse.[iv]

Facts of The Spencer Case

This case[v] revolves around a personal injury claim asserted by Arlethia Spencer against Mona Strenger. Plaintiff Spencer claims she was injured when she slipped on a floor mat and fell while exiting a vehicle in Defendant’s garage. Defendant Strenger died while the lawsuit was pending.[vi] Plaintiff was a passenger in Strenger’s vehicle on the date of the occurrence at issue.  Plaintiff attempted to exit Strenger’s vehicle in Strenger’s garage.  She stepped onto a floor mat that had been placed in the garage.  The mat slipped, resulting in plaintiff’s alleged fall and injuries.[vii]

The plaintiff filed a negligence suit against Strenger relating to the fall on the garage floor mat.[viii] Strenger denied that the mat slipped when plaintiff stepped on it, causing plaintiff to fall.[ix] Defendant’s special administrator filed a motion for summary judgment arguing that the Illinois Dead Man’s Act (herein Act) barred plaintiff from testifying regarding the fall because it occurred in Strenger’s presence. Further, there was no admissible evidence to establish fault since the plaintiff could not testify regarding the facts of the fall.[x]

Plaintiff opposed the motion and asserted that Strenger was not in a position to see what caused plaintiff to slip, hence, Strenger could not have refuted plaintiff’s testimony about the fall. Therefore, the Act did not bar plaintiff from testifying as to the cause of the fall.

Excerpts of depositions were presented by plaintiff in opposition to the motion. Plaintiff testified in her deposition that she exited the car, then stepped onto the mat, the mat slipped, then she fell into a brick wall. Plaintiff also testified that defendant Strenger was still inside the car at the time and would not have been able to see the mat slipping. Strenger testified in her deposition that a freezer and a refrigerator were located in her garage, mats near the freezer, and that a person who exited the car would walk on the mats.

The trial court granted the motion for summary judgment. Plaintiff moved to reconsider the ruling of the court.  The trial court denied the motion to reconsider.

Spencer Appellate Court Ruling

The Spencer court noted that the purpose of The Act was “to remove the temptation of a survivor to testify to matters that cannot be rebutted because of the death of the only other party to the conversation or witness to the event, but it is not intended to disadvantage the living.”[xi]

The court emphasized that Strenger was indisputably in plaintiff’s presence during the occurrence at issue.  Plaintiff Spencer did not dispute that Strenger was, at a minimum, in the garage and thus within the immediate vicinity and within sight of plaintiff during the fall. Therefore, the plain language of the Act supported the trial court’s conclusion that the event took place in the presence of Strenger.[xii]

The Spencer court put little weight into Spencer’s argument that the Act did not apply because Strenger could not see plaintiff’s feet and thus could not have rebutted plaintiff’s testimony. The court noted that his argument was based on Spencer’s assertion that Strenger was in the driver’s seat when Spencer fell. Hence Strenger could not see plaintiff’s feet and thus could not have refuted her testimony that she slipped on the mat. [xiii]

The weakness in Plaintiff Spencer’s argument is that Strenger could have refuted plaintiff’s assertion that Strenger was in the driver’s seat. Strenger answered “yes” when asked if she saw plaintiff fall during her deposition. She was not asked where she was located when she saw plaintiff fall, and she never admitted having been in the driver’s seat during the fall. Plaintiff’s testimony that Strenger was in the driver’s seat at the time of her fall is barred under the Act since Strenger could have contested it.  Spencer could not rely on this inadmissible testimony to save her testimony about the fall.  Hence, Spencer’s testimony about the fall itself was barred as well.[xiv]

The motion for summary judgment was properly granted because the defendant could not present any admissible evidence to establish the cause of her fall.  Hence, failing to satisfy the requirements of a prima facia negligence case.

Importance of the Act

The Dead Man’s Act can be a very effective tool in defending personal injury claims.  It can be used to wholly defeat a negligence case, as occurred in Spencer. Also, it can be used to limit portions of testimony that could be detrimental to the defense of a case.

Claims representatives, investigators and attorneys should take special note of cases where the insured defendant has died during the event, after the event or is ill or elderly.  In such cases, we should specifically investigate the potential testimony of the parties and potential witnesses. An in depth, detailed investigation of what events were seen, or heard, must be obtained. If the witnesses cannot testify to some, or all of the events in issue, then the Act may be useful in limiting the potential trial testimony of the plaintiff.  For instance, the severity of a car accident, or an admission of prior knowledge of a defective condition might be excluded in the available testimony supports such action under the Act.

Please contact us with any questions you may have regarding the Illinois Dead Man’s Act or related issues.


[i] Rerack v. Lally, 241 Ill. App. 3d 692, 695 (1st. Div. 1992)            ;

[ii] Rerack at 695;

[iii] Ruback v. Doss, et. al., 347 Ill. App. 3d 808, 812, (1st. Dist. 2004), citing Smith v. Haran, 273 Ill. App. 3d 866, 875 (1995);

[iv] Danzot v. Zablika, 342 Ill. App. 3d 493, 498 (1st. Dist. 2003);

[v] Spencer v. Strenger Wayne, 2017 IL App (2d) 160801;

[vi] Spencer at ¶1;

[vii] Spencer at ¶3;

[viii] Spencer at ¶4;

[ix] Spencer ¶5;

[x] Spencer ¶6;

[xi] Spencer ¶ 17 citing Balma v. Henry, 404 Ill. App. 3d 233, 238 (2010);

[xii] Spencer ¶18;

[xiii] Spencer ¶19;

[xiv] Spencer ¶23.

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