Argueta v. Krivickas
2011 IL App (1st) 102166
Ill. App. Ct.2011Background
- Plaintiff Waldemar Argueta sued Peter D. Krivickas for negligence arising from a two-vehicle collision at an intersection.
- Krivickas died from injuries unrelated to the collision; Rosa Gomez was appointed as Krivickas’s special representative.
- Gomez moved for summary judgment arguing the Dead-Man’s Act bars Argueta’s testimony about events in the decedent’s presence.
- The trial court granted summary judgment in Gomez’s favor; plaintiff appealed arguing waiver and admissible evidence created issues of material fact.
- On review, the court held the Dead-Man’s Act applied too broadly but Gomez was still entitled to summary judgment because plaintiff lacked admissible evidence showing proximate causation is more likely than not.
- The case affirms summary judgment but discusses the Act’s scope, including testimony outside the decedent’s presence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the Dead-Man’s Act bar plaintiff’s testimony about events within the decedent’s presence? | Argueta argues the Act bars certain testimony but does not bar all testimonies; evidence outside decedent’s presence remains admissible. | Gomez argues the Act bars all admissions and events within the decedent’s presence, preventing plaintiff’s testimony on those points. | The Act bars testimony within the decedent’s presence, but some testimony outside presence remains admissible. |
| Did Gomez waiver the Dead-Man’s Act by pleading an affirmative defense? | Gomez’s affirmative defenses constitute waiver under 735 ILCS 5/8-201(a). | Subsection (a) allows waiver only where evidence is presented; pleadings alone do not waive the Act. | Waiver requires evidence, not mere unsworn allegations; Gomez did not waive the Act. |
| Does the admissible evidence raise a factual basis for proximate causation? | Plaintiff’s affidavits and depositions (where admissible) show decedent may have caused the collision; material issues exist. | Even with admissible evidence, Argueta cannot prove that decedent’s negligence was more likely than not the proximate cause. | Plaintiff fails to show it is probable, not merely possible, that decedent caused the collision; summary judgment affirmed. |
| Is the traffic-signal claim sufficiently supported given Dead-Man’s Act constraints? | Plaintiff’s affidavit outside decedent’s presence addresses light status and driver observations. | Act bars testimony about decedent’s presence; officers’ testimony is inadmissible and plaintiff’s affidavit insufficient to show probable causation. | Even considering admissible portions, plaintiff did not establish probable causation; summary judgment proper. |
Key Cases Cited
- Goad v. Evans, 191 Ill. App. 3d 283 (1989) (subsection (a) waives Act with evidence, not unsworn allegations)
- Balma v. Henry, 404 Ill. App. 3d 233 (2010) (evidence outside decedent’s presence permissible if decedent could not refute it)
- Brown v. Arco Petroleum Products Co., 195 Ill. App. 3d 563 (1989) (requires that decedent’s view be established to bar testimony about what decedent would observe)
- Groce v. South Chicago Community Hospital, 282 Ill. App. 3d 1004 (1996) (summary judgment de novo review; evidence viewed in plaintiff’s favor)
- Payne v. Mroz, 259 Ill. App. 3d 399 (1994) (summary judgment standard; requires probable causation evidence)
- Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90 (1992) (standard for evidence credibility and admissibility on summary judgment)
- Williams v. Covenant Medical Center, 316 Ill. App. 3d 682 (2000) (burden-shifting framework for summary judgment)
- Grove v. County Collector, 41 Ill. App. 3d 106 (1976) (unsworn allegations are not evidence)