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Date: 2017.08.14
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Spencer v. Strenger Wayne, 2017 IL App (2d) 160801
Appellate Court ARLETHIA SPENCER, Plaintiff-Appellant, v. GAIL STRENGER
Caption 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).
District & No. Second District
Docket No. 2-16-0801
Filed June 29, 2017
Decision Under Appeal from the Circuit Court of Lake County, No. 15-L-465; the
Review Hon. Mitchell L. Hoffman, Judge, presiding.
Judgment Affirmed.
Counsel on Keith L. Young, of Law Offices of Keith L. Young, of Chicago, for
Appeal appellant.
Jay R. Orlowski, Joseph P. Postel, and Lauren E. Rafferty, of Lindsay,
Rappaport & Postel, LLC, of Chicago, for appellee.
Panel JUSTICE SCHOSTOK delivered the judgment of the court, with
opinion.
Justices Jorgensen and Burke concurred in the judgment and opinion.
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
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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 evidence, it was
insufficient to defeat summary judgment.
¶ 11 Plaintiff appealed.
¶ 12 II. ANALYSIS
¶ 13 Plaintiff argues that the trial court erred in granting summary judgment for Wayne.
Specifically, she argues that the trial court was incorrect in finding that the Act barred her
testimony as to the cause of her fall.
¶ 14 Summary judgment is proper where “the pleadings, depositions, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c)
(West 2014). The trial court’s ruling on a motion for summary judgment is subject to de novo
review. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004).
¶ 15 To prevail in a negligence action, the plaintiff must prove that the defendant owed a duty to
her, that the defendant breached that duty, and that the plaintiff’s injury proximately resulted
from that breach. Reed v. Galaxy Holdings, Inc., 394 Ill. App. 3d 39, 42 (2009). Proximate
cause can be established only when there is a reasonable certainty that the defendant’s acts
caused the injury. Berke v. Manilow, 2016 IL App (1st) 150397, ¶ 34.
¶ 16 Our review of the trial court’s application of the Act involves the construction of a statute.
Issues of statutory construction are reviewed de novo. Kean v. Wal-Mart Stores, Inc., 235 Ill.
2d 351, 361 (2009). Our objective in construing a statute is to determine and give effect to the
intent of the legislature. Id. The best indicator of the legislature’s intent is the plain language of
the statute itself. Id.
¶ 17 The Act provides, in relevant part:
“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 “is intended 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.” Balma v. Henry, 404 Ill. App. 3d 233, 238
(2010).
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¶ 18 Here, Strenger was indisputably in plaintiff’s presence during the event at issue.
“Presence” is defined as “1 a: the fact or condition of being present : the state of being in one
place and not elsewhere : the condition of being within sight or call, at hand, or in a place being
thought of : the fact of being in company, attendance, or association: the state of being in front
of or in the same place as someone or something *** 2 a: the part of space within one’s ken,
call, or influence: the vicinity of or the area immediately near one: the place in front of or
around a person.” Webster’s Third New International Dictionary 1793 (1993). Plaintiff does
not dispute that Strenger was, at the very least, in the garage and thus within the immediate
vicinity and within sight of her when she fell. Thus, the plain language of the Act supports the
trial court’s conclusion that the event took place in the presence of Strenger.
¶ 19 Nevertheless, plaintiff argues that the Act should not apply to bar her testimony about the
cause of the fall because Strenger could not see plaintiff’s feet and thus could not have rebutted
plaintiff’s testimony. This argument is circular. It turns on her assertion that Strenger was in
the driver’s seat when plaintiff fell. According to plaintiff, because Strenger was in the driver’s
seat, she could not see plaintiff’s feet and thus could not have refuted her testimony that she
slipped on the mat. However, what plaintiff fails to acknowledge is that Strenger could have
refuted plaintiff’s assertion that Strenger was in the driver’s seat. At her deposition, Strenger
answered “yes” when asked if she saw plaintiff fall. She was not asked where she was when
she saw plaintiff fall, and she never admitted having been in the driver’s seat at the time.
Therefore, because plaintiff’s testimony that Strenger was in the driver’s seat at the time of her
fall is barred under the Act, so is her testimony about the fall itself.
¶ 20 Plaintiff’s reliance on Argueta v. Krivickas, 2011 IL App (1st) 102166, does not warrant a
different conclusion. In Argueta, the plaintiff sued the defendant (who later died) for damages
resulting from a two-car accident, to which the plaintiff and the defendant were the only
witnesses. Id. ¶ 1. The plaintiff had alleged that the defendant drove through a red light. Id. ¶ 7.
The trial court granted summary judgment for the defendant based on the Act, finding that the
plaintiff’s version of the events occurred within the presence of the defendant. Id. ¶ 3.
According to the plaintiff’s affidavit, the plaintiff was traveling east on 55th Street approaching
its intersection with Racine Avenue (which was controlled by a traffic light), while the
defendant was traveling south on Racine Avenue. Id. ¶ 9. There were trees and bushes in the
parkway located between the east and westbound lanes of 55th Street, which obstructed her
view of the southbound traffic on Racine Avenue. Id. The plaintiff averred that the defendant’s
view of the eastbound traffic was similarly obstructed. Id. The plaintiff claimed that, when she
was a quarter-block from the intersection, she saw a northbound vehicle stopped at the
intersection on Racine Avenue. Id. She continued to observe the northbound vehicle as she
approached the intersection; it remained stopped and never moved. Id. When she was a car
length from the intersection, the traffic light for eastbound traffic was green. Id.
¶ 21 On appeal, the reviewing court found that the Act did not bar the plaintiff’s testimony in its
entirety. Id. First, the court agreed that the plaintiff was barred from testifying about the speed
and operation of the defendant’s vehicle, any warnings the defendant failed to provide, the
defendant’s failure to control his vehicle, and the defendant’s failure to keep a proper lookout
because all those facts occurred within the defendant’s presence. Id. The court also found that
the plaintiff was barred from testifying as to the condition of the traffic light or the intersection
while the defendant was present. Id. However, the court went on to state: “As for matters
outside the decedent’s presence, the relevant inquiry is not whether the decedent could see
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plaintiff on 55th Street but, rather, whether the decedent could also see that which plaintiff
claims to have observed from 55th Street.” Id. The court found:
“While it could reasonably be inferred that the decedent was present at the intersection
immediately prior, during, and subsequent to the collision, thus barring plaintiff from
testifying to any facts that occurred within that time frame, there is no competent
evidence on the record establishing the decedent’s view of the intersection. There is no
evidence, for example, that the decedent could see the northbound vehicles on Racine
Avenue while a quarter block away from the intersection, absent which the trial court
should not have barred that testimony.” Id.
The court concluded that, because the Act barred the plaintiff from testifying only to that
which the defendant would have observed and been able to testify to, the trial court should not
have barred the plaintiff from testifying about the northbound car. Id.1
¶ 22 Initially, we question the validity of the Argueta court’s apparent assumption, which was
arguably dicta, that the defendant would not have been able to see the intersection from a
quarter of a block away. We note that plaintiff here makes the equally questionable assumption
that, from the driver’s seat, Strenger would not have been able to see how plaintiff fell.
Nothing in the record supports that assumption.
¶ 23 In any event, Argueta’s holding is consistent with the general rule that, where the
admissible evidence indicates that the decedent would have been unable to observe the events
to which the plaintiff would testify, the Act does not bar the plaintiff’s testimony. Thus, here, if
the admissible evidence had indicated that Strenger was indeed in the driver’s seat when
plaintiff fell, such that Strenger was unable to see how plaintiff fell, plaintiff might well have
been able to testify to those events. However, as noted, the only evidence that Strenger was in
the driver’s seat was plaintiff’s own testimony, which itself was inadmissible under the Act. As
a result, Argueta is plainly distinguishable.
¶ 24 We note that although plaintiff, in the issue section of her brief, contends that the trial court
erred in denying her motion for reconsideration, she has forfeited the issue by failing to argue it
or cite authority. Illinois Supreme Court Rule 341(h)(7) (eff. Jan. 1, 2016) requires the
appellant’s brief to include argument “which shall contain the contentions of the appellant and
the reasons therefor, with citation of the authorities and the pages of the record relied on.” Rule
341(h)(7) further provides that “[p]oints not argued are waived and shall not be raised in the
reply brief *** or on petition for rehearing.” Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016). Here,
plaintiff did not even raise the issue in her reply brief, despite the fact that Wayne argued in her
response brief that the motion to reconsider was properly granted.
¶ 25 In any event, the motion to reconsider was properly denied. The purpose of a motion to
reconsider is to bring to the court’s attention newly discovered evidence, changes in the law, or
errors in the court’s previous application of existing law. In re Marriage of Heinrich, 2014 IL
App (2d) 121333, ¶ 55. Where the motion was based only on the trial court’s application or
1
The court nevertheless affirmed summary judgment, finding that it was mere conjecture that the
plaintiff had a green light when entering the intersection. The court stated: “Under plaintiff’s
admissible version of the events prior to the collision, it is just as likely as not that the light changed
prior to the decedent and the plaintiff reaching the intersection and/or that the northbound vehicle
plaintiff observed also entered the intersection. While plaintiff maintains otherwise, the Act bars him
from testifying to what happened once the decedent was present.” Id. ¶ 10.
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misapplication of existing law, we review de novo the trial court’s decision to grant or deny the
motion. Id. But where the motion was based on new matters, such as additional facts or new
arguments or legal theories not presented during the course of the proceedings leading to the
order being challenged, the abuse-of-discretion standard applies. Compton v. Country Mutual
Insurance Co., 382 Ill. App. 3d 323, 330 (2008). Here, we conclude that under either standard
of review, the trial court did not err in denying plaintiff’s motion.
¶ 26 First, the trial court properly refused to consider the evidence attached to the motion to
reconsider, as it was available at the time of the hearing on the summary-judgment motion.
When a movant relies on new evidence, the movant must show that the evidence existed before
the initial hearing but had not yet been discovered or was otherwise unobtainable. Heinrich,
2014 IL App (2d) 121333, ¶ 57. In the absence of a reasonable explanation as to why the
evidence was not available at the time of the hearing, the court is under no obligation to
consider it. Emrikson v. Morfin, 2012 IL App (1st) 111687, ¶ 30.
¶ 27 Moreover, the trial court properly determined that the additional evidence, even if
considered, was insufficient to defeat summary judgment, as the evidence did not raise a
genuine issue as to whether Strenger’s negligence was the proximate cause of plaintiff’s fall.
Plaintiff alleged that the mat slipped. The additional evidence established only that Strenger
told Robert that plaintiff had fallen, that plaintiff told her employer that she “slipped and fell
into a brick wall,” and that plaintiff told a medical professional that she “tripped on the rug.”
Under plaintiff’s admissible version of the events, it is equally probable that she tripped over
her own two feet. (Indeed, it is worth noting that Robert also testified that plaintiff told him
that, as she was walking into the house with Strenger, she slipped while stepping up onto a
wooden platform.) As “[l]iability against a defendant cannot be predicated on speculation,
surmise, or conjecture,” the evidence, even if considered, was insufficient to defeat summary
judgment. See Berke, 2016 IL App (1st) 150397, ¶¶ 34-41.
¶ 28 III. CONCLUSION
¶ 29 For the reasons stated, we affirm the order of the circuit court of Lake County granting
summary judgment for Wayne.
¶ 30 Affirmed.
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