Motion 8-Plaintiff's Motion for Summary Judgement in Car Accident Case

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Plaintiff's Motion for Summary Judgment on Issue of Liability

INTRODUCTION

The Plaintiff has filed his First Amended Complaint against the Defendants alleging personal injuries as a result of an automobile collision at or near the intersection of John Deere and 70th Street in Moline, Rock Island County, Ilinois on November 19, 2008. At the time of the collision, the Plaintiff was riding in the front passenger seat of an automobile being operated by Curtis Edgerson (hereinafter “Mr. Edgerson”). In his answers to the Plaintiff's written interrogatories, the Defendant, Jacob Stohl, admitted that he was an employee and an agent of Wayne Stohl & Sons Plastering at the time of the subject automobile collision and that he was working in the scope of his employment with Wayne Sthol & Sons Plastering at the time of the subject automobile collision, driving the company truck traveling to the shop to retrieve materal and return to the work site. (Exhibit “A”)

The Plaintiff's First Amended Complaint sounds in negligence, and alleges the following acts on behalf of the defendants:

a. Operated a motor vehicle at a speed greater than was reasonable and proper in regard to the traffic conditions, in violation of 625 ILCS 5/11-601(a);

b. Failed to reduce the speed of the vehicle he was oprating to avoid a collision, in violation of 625 ILCS 5/11-601(a);

c. Failed to keep a proper lookout for the vehicle he was operating to avoid a collision, in violation of 625 ILCS 5/11-601(a).

FACTUAL BACKGROUND

The deposition of the defendant, Jacob Stohl, was taken on March 4, 2010. (Exhibit “B”). During the course of the deposition, Mr. Stohl testified as follows:

“I thought that the light was green. That's what caused the accident. Because I was looking - - that's why I said this specific - - that's why I'm explaining this is because I saw - - I saw them. I saw the light. Then I looked down. And, you know, then they're stopping. That's what caused - - so I assume - - that was my fault is that I - - I thought it was clear to go. That's what caused it” (p. 15, lines 19-25 & p. 16, line 1)

In addition to the foregoing, during the course of the deposition, Mr. Stohl was asked the following question and provided the following answer:

Q: Okay. In your estimation, did Mr. Edgerson do anything wrong to cause this accident? (p. 35, lines 11-12)

A: No. (p. 35, line 13)

ARGUMENT

A. STANDARD FOR MOTION FOR SUMMARY JUDGMENT

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 judgment as a matter of law.” 735 ILCS 5/2-1005(c); Abrams v. City of Chicago, 211 Ill.2d 251, 257 (2004). A party opposing a motion for summary judgment must present a factual basis which would arguably entitle him to a judgment.” Allegro Service, Ltd. v. Metropolitan Pier & Exposition Authority, 172 Ill. 2d 243, 256 (1996).

B. DEFENDANT'S ASSERTIONS DURING HIS DEPOSITION CONSTITUE JUDICIAL ADMISSIONS FOR PURPOSE OF SUMMARY JUDGMENT

Pursuant to Illinois Supreme Court Rule 212(a)(2), discovery depositions can be used as an admission made by a party or by an officer or agent of a party in the same manner and to the same extent as any other admission made by that person. 134 Ill.2d R. 212. The standard for whether an assertion made during a deposition constitutes a binding judicial admission is whether said assertion is unequivocal Hansen v. Ruby Constr. Co., 155 Ill. App. 3d 475, 480 (1st Dist. 1987). First and foremost, it should be noted that it has been established that the use of the term “fault” does not constitute a legal conclusion which is inadmissible as an admission. Wright v. Stokes, 167 Ill. App. 3d 887 (5th Dist. 1988). Rather, a party's statement that he may have been at fault can constitute an admission. Asher v. Stromberg, 78 Ill.App.2d 267 (1st Dist. 1966).

Turning to the case at bar, as aforementioned, when describing how the subject automobile accident occurred during his deposition, the Defendant, Jacob Stohl, testified, “That's what caused - - so I assume - - that was my fault is that I - - I thought it was clear to go. That's what caused it” (p. 15, lines 24-25 & p. 16, line 1). When determining whether deposition testimony was unequivocal in the past, the Appellate Court has held the following statement to be unequivocal:

“[T]he only thing I vividly remember at that point is I evidently dozed for a minute (Emphasis added). Tennes v. Tennes, 320 Ill. App. 19, 23 (1st Dist. 1943).

Additionally, the Appellate Court has held the following statement to be unequivocal so as to constitute an admission:

as far as he was concerned he may have been at fault and that he had an insurance policy of $ 10,(000) for malpractice” (Emphasis supplied). Asher v. Stromberg, 78 Ill.App.2d 267 (1st Dist. 1966).

It is important to note that in the instant case, an attorney for the Defendant was present during his deposition, and did not seek to supplement or clarify the Defendant's responses as to any additional circumstances. Chmielewski v. Kahlfeldt, 23 Ill.App.3d 129 (2d Dist. 1992). Based upon the forgoing, the Defendant's testimony that he “assumes” the accident was his fault should be determined to be unequivocal, and thus should qualify as a judicial admission under Supreme Court Rule 212(a)(2).

In addition to the forgoing, when asked whether Mr. Edgerson did anything wrong to cause this accident, the Defendant simply replied, “No”. (p. 35, line 13). There is no doubt that said testimony is unequivocal so that said testimony should qualify as a judicial admission under Supreme Court Rule 212(a)(2).

C. DEFENDANT'S JUDICIAL ADMISSIONS REMOVE ANY GENUINE ISSUE OF FACT REGARDING LIABILITY AND THEREFORE MAKE SUMMARY JUDGMENT ON THE ISSUE OF LIABILITY PROPER

A party cannot create a factual dispute by contradicting a previously made judicial admission. Smith v. Ashley, 29 Ill.App.3d 932 (4th Dist. 1975). After making these admissions, a party may not create a genuine issue of material fact by taking contradictory positions, nor may he remove a factual question from consideration just to raise it anew when convenient. Hansen v. Ruby Constr. Co., 155 Ill. App 3d 475, 480 (1st Dist. 1987). The frequently stated purpose of the doctrine of judicial admissions is to eliminate the temptation to commit perjury. Schmahl v. A.V.C. Enterprises, Inc., 148 Ill.App.3d 324 (1st Dist. 1986). Accordingly the Defendant's admissions that he assumes the subject automobile collision was his fault and that Mr. Edgerson did nothing wrong to cause the subject automobile collision removed any genuine issue of fact regarding liability in the subject claim. Due to the fact there is no genuine as to any material fact regarding liability, the Plaintiff is entitled to judgment as a matter of law.” 735 ILCS 5/2-1005(c); Abrams v. City of Chicago, 211 Ill.2d 251, 257 (2004).

CONCLUSION

WHEREFORE, the Plaintiff, ROBERT MONTEGNA, respectfully requests that this Court enter an ORDER granting summary judgment as to the issue of liability in its favor. Plaintiff further requests any other relief that this Court deems just and appropriate

Respectfully Submitted,

_________________________

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