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.
This underinsured motorist claim revolved around a motor vehicle collision occurring on Route 83 near Lake Villa, Illinois. Attorney Kurt Koepke represented the insurance company in this matter. The claimant was a passenger in a vehicle involved in the collision. The vehicle being operated by the at fault driver drifted from his lane into the claimant’s lane of travel. The vehicle that the claimant was a passenger in had moderate damage. Claimant was a restrained passenger in the right front passenger seat.
Claimant settled his claim against the at fault driver for $50,000 and pursued this underinsured motorist claim. Claimant asserted that he continued to suffer from mid-back pain that radiates down his left leg which started the day of the accident. Additionally, claimant stated incurred medical bills of claim of $34,184.34. The matter proceeded to arbitration pursuant to the provisions of claimant’s underinsured motorist coverage in the applicable insurance policy.
Claimant and attorney Koepke presented evidence and arguments to the arbitration panel. The arbitrators determined that the total value of this claim was $45,000. Claimant received a net award of $0 after applying the insurance companies’ right to set off $50,000 for the payment received by Claimant from the at fault driver. This was an excellent result for attorney Koepke and his client.
By: Jason G. Schutte
The Illinois Supreme Court recently discussed the limitations of the Illinois Snow and Ice Removal Act in Murpy-Hylton v. Lieberman, et al. In Murphy, plaintiff sustained personal injuries after slipping while walking on the sidewalk outside her condominium.[i] Plaintiff’s condominium was located at Klein Creek Condominium (herein Condo) in Carol Stream, Illinois. The Condo owned and controlled the common elements of the property.[ii] Condo retained the services of Lieberman Management Services, Inc., (herein Management) to manage the property.[iii]
A snowstorm occurred in February of 2011, which affected Carol Stream and resulted in 20 inches of snow accumulation. A snow removal and landscaping service hired by the Condo cleared snow and ice from the sidewalks of the condominium complex. Plaintiff’s fall occurred on the morning of February 18, 2011, when she was walking on the sidewalk behind her building toward the adjacent parking lot. Her fall resulted in a fracture to her leg, knee, and hip.
She filed a negligence suit against defendants Management and Condo. Plaintiff asserted that her fall was caused by a defective condition and negligent maintenance of the premises which created an unnatural accumulation of ice.[v] More specifically, plaintiff asserted in her Fourth Amended Complaint, the defendants were negligent in the following actions/omissions:
Facts of Case
Plaintiff testified in her discovery deposition that that the weather on the date in question was cold (in the twenties) and sunny without precipitation. No precipitation had occurred since the last snowfall in early February. Plaintiff did not see any ice prior to falling but she did notice a patch of ice after she fell, approximately the size of a letter-sized piece of paper. Plaintiff believed that the ice that caused her fall resulted from water that had accumulated on either side of the sidewalk. She had observed that water would run off from the downspouts attached to either side of the building onto the grass. The water would collect on the sidewalk and freeze instead of draining onto the parking lot.[vii]
Several other witnesses were deposed regarding their observations of the condition of the premises where plaintiff fell. Roger McGowan, a neighbor, slipped and fell on ice in the same area of the sidewalk that same morning at about 6 a.m. He observed an issue of water collecting on the sidewalk that had been present since he moved to the complex in 2008. Roger believed that the sidewalks were lower than where the foundation of the building sat, and, lower than where the downspouts were positioned. Water would run away from the building and toward the sidewalk, where the water would collect after heavy rains. Also snow from areas close to the building would melt and then run toward the sidewalk. Once the weather got cold again the water would freeze up across the sidewalk.
Similarly, Michael Melson, plaintiff’s brother, observed standing water on the sidewalk in the area where plaintiff fell either that night or the next day and he too slipped near the time of the plaintiff’s fall. He also observed water would pool on the sidewalk after a rainfall or melting snow. Likewise he believed the sidewalk was lower than the grass and the area was graded toward the grass instead of the parking lot, allowing water and dirt to run down onto it and allowing patches of ice to form.[ix]
The president of Condo, Jeff Graves, stated that prior to her fall he was aware of water collecting on and around the sidewalks in other areas of the complex, especially during heavy rainstorms, but he was not aware of similar water pooling in the area behind the building where plaintiff fell. Graves inspected the area where plaintiff fell several hours after the fall, and the sidewalk was “bone dry.” The temperature was in the forties or fifties and the sidewalk was “bone dry”.[x] Photographs of the sidewalk area where plaintiff fell, which were taken a month after the fall, depicted standing water on the sidewalk and mud and debris on the sidewalk from the grassy area.[xi]
David Selio owned the snow and ice removal and landscaping service hired by the Condo and was also a resident of Klein Creek. He stated that under the contract, he performed snow and ice removal services when two or more inches of snow fell but for any snowfall less than two inches prior authorization from the Condo was required. He last cleared the snow on February 7, 2011, approximately 11 days before the fall in issue. Mr. Selio was aware that prior to plaintiff’s fall, a drain tile was installed in another area of the complex to redirect the flow of water on the property away from the foundation to prevent soil erosion. In 2010, Condo accepted his bid for installation of drain tile work in another area of the complex to improve drainage near the foundation. In October 2011, additional drainage redirection work was done on the premises, including work to the area behind the building where plaintiff fell.
Defendants filed a joint motion for summary judgment, arguing, in part, that plaintiff’s slip and fall claim was barred by the immunity provided to residential owners and operators under the Snow and Ice Removal Act, (herein Act), 745 ILCS 75/0.01 et seq. (West 2010). Trial court granted defendants motion, then the appellate court reversed.[xiii] The Supreme Court reviewed in light of a split in authority in opinions of the Appellate Courts.
Landlords under the common law do not owe a duty to remove natural accumulations of snow and ice.[xiv] “To hold otherwise would create an unreasonable burden of vigilance when considering that snowstorms cannot be foreseen or controlled”.[xv] Landowners do owe a duty of reasonable care to prevent unnatural accumulations of snow and ice on their property where they have actual or constructive knowledge of the dangerous condition. A landowner may be liable where snow or ice accumulates by artificial causes or in an otherwise unnatural way, where the condition has been present long enough to charge the responsible party with notice and knowledge of the condition’s existence.
The Illinois General Assembly provided immunity to residential property owners under the Illinois Snow and Ice Removal Act in order to encourage them to “clean the sidewalks abutting their residences of snow and ice.” 745 ILCS 75/1,2 (2010).[xvii] §2 of the Act provides for immunity for:
“Any owner, lessor, occupant or other person in charge of any residential property, or any agent of or other person engaged by any such party, who removes or attempts to remove snow or ice from sidewalks abutting the property shall not be liable for any personal injuries allegedly caused by the snowy or icy condition of the sidewalk resulting from his or her acts or omissions unless the alleged misconduct was willful or wanton.” 745 ILCS 75/2 (West 2010).
The Supreme Court noted that the intent of the General Assembly was to encourage residential property owners to clear their sidewalks of snow and ice and that it was “undesirable” for any such person to be found liable due to their efforts at snow/ice removal.[xviii] The court noted that the statute specifically states that any residential property owner that “removes or attempts to remove snow or ice” will be provided immunity in that they “shall not be liable” for injuries allegedly occurring from those actions.[xix] Hence, the scope of the statute is limited to those times where property owners take action to remove the snow/ice.
The court found nothing in the plain language of the Act that evidenced an intent by the General Assembly to immunize liability for falls on accumulations of snow/ice that occur due to circumstances unrelated to negligence efforts at snow and ice removal.[xx] The court further emphasized that “The purpose of the immunity is to reward those residential property owners who voluntarily undertake a duty where there otherwise would be none…not to encourage the failure to otherwise maintain the premises in a reasonable save condition.” [xxi]
The Supreme Court stated that the plaintiff in this case alleged that the defendants were negligent in maintaining their property. The plaintiff was not asserting that the defendants were negligent in removing snow/ice. Hence, the immunity provisions of that Act were not applicable to the case at bar and summary judgment was inappropriate.
Effect of Case
This ruling from the Supreme Court clarifies the Act in definitively stating that it only provides immunity to residential property owners when the allegations of negligence asserted by the plaintiff arise from the owners’ efforts at removing snow/ice. If the allegations of fault included in plaintiff’s complaint arise from negligent maintenance of the premises where the injury occurs, there will be no immunity provided under the Act. The case will have to be proven/defended on the facts of that case.
Thorough discovery should be conducted to evaluate if any witnesses can present testimony that the accumulation in issue actually arose from something other than normal precipitation. For instance, in the case above, extensive testimony and evidence was presented showing the water accumulation occurred often prior to the fall in issue. Practitioners, claims representatives and parties should investigate whether plaintiff can establish that the water accumulation occurred more than once. This information will help prove/disprove whether there accumulation occurred due to the structure/maintenance of the property. Additionally, it may be necessary to address common drainage issues at the property, including guttering, sloping of yards/landscaping, potential defects of walkways, etc. to determine if they had any effect on creating the snow/ice accumulation in issue.
[i] Murphy-Hylton v. Lieberman Mang. Services, Inc., et. al., 2016 IL 120394 (2016) at ¶1
[ii] Murphy ¶3
[iii] Murphy ¶3
[iv] Murphy ¶4
[v] Murphy ¶1
[vi] Murphy ¶4
[vii] Murphy ¶5
[viii] Murphy ¶6
[ix] Murphy ¶7
[x] Murphy ¶8
[xi] Murphy ¶10
[xii] Murphy ¶11
[xiii] Murphy at ¶1, 12
[xiv] Murphy ¶19
[xv] Murphy ¶19
[xvi] Murphy ¶20
[xvii] Murphy ¶24
[xviii] Murphy ¶27
[xix] Murphy ¶28
[xx] Murphy ¶29
[xxi] Murphy ¶30
Kurt Koepke and Lori Hiltabrand recently obtained a no liability judgment in a dog bite/animal liability case in Sangamon County, Illinois. Our client was a landlord who rented residential apartments. The Plaintiff was a guest of our client’s tenant. Plaintiff filed suit against our client after she was bitten by the tenant’s dog. Plaintiff sought damages for personal injuries sustained from the dog bite.
Plaintiff argued that the no pet clause contained in the residential lease was enough to establish negligence on the part of the landlord in failing to enforce the provisions of the lease coupled with the fact that the landlord was aware that the dog had bitten a child approximately one week before. Plaintiff also claimed the landlord was negligent in failing to warn the plaintiff of the dangerous propensities of the dog and failing to enforce the no pet clause in the lease.
Koepke & Hiltabrand filed a Motion for Summary Judgment asserting that the landlord could not be liable as a matter of law. After hearing the arguments of Ms. Hiltabrand and Plaintiff’s counsel, the court granted Judgment in favor of our client (the landlord) finding that he could not be held liable for Plaintiff’s claimed injuries.
The court relied upon Howle v. Aqua Illinois, 978 N.E.2d 1132 (4th Dist. 2012) and Klitzka v. Hellios, 810 N.E.2d 252 (2nd Dist. 2004), finding that a landlord-tenant relationship without more is insufficient to establish ownership under the Animal Control Act and that the plaintiff had failed to prove that the landlord had any type of controlling interest in the dog at issue or that he had maintained control over the property. The court also held that a landlord does not retain control over the property when he has the right to coerce the removal of the animal by threatening to terminate the tenancy. Likewise, even if the landlord was aware of the animal’s aggressiveness, a duty, and by extension, liability does not flow because the landlord had no control over what occurred on the rental property.
The attorneys at Koepke & Hiltabrand routinely litigate animal liability (including dog bite) cases. Contact our attorneys if you have any questions regarding animal liability claims.