Motion 9-Defendant's Response to Plaintiff's Motion for Sumamry Judgment in Car Accident Case

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Defendants' Resistance to Plaintiff's Motion for Summary Judgment

____________________________., ____________________________, (Address), (phone), (fax) , for defendants.

COME NOW the Defendants, ____________________________, by and through their attorneys, ____________________________, and state the following for their Resistance to Plaintiff's Motion for Summary Judgment:

STATEMENT OF DISPUTED FACTS

1. The Plaintiff's First Amended Complaint alleges the negligence of Defendant Jacob Stohl, an employee of Wayne Stohl & Sons Plastering, resulting in personal injuries to Plaintiff from an automobile accident that occurred at or near the intersection of John Deere Road and 70th Street in Moline, Illinois on November 19, 2008

Authority: Plaintiff's First Amended Complaint

2. The Complaint alleges that Defendants: () Failed to maintain a proper lookout for other vehicles; (2) Failed to reduce speed to avoid an accident, (3) Failed to maintain reasonable and proper control of the vehicle; 1(4) Drove under the influence.

Authority: Plaintiff's First Amended Complaint

3. Defendant, Jacob Stohl was deposed on March 4 2010 during which he testified as to the facts leading up to the collision. Mr Stohl stated the following:

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, 1 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.

Authority: Exhibit B to Plaintiff's Motion for Summary Judgment, p. 15, lines 19-25 & p. 16, line 1.

4. During Mr. Stohl's deposition, the following exchange also took place.

Q: Okay. In your estimation, did Mr. Edgerson do anything wrong to cause this accident?

A: No.

Authority: Exhibit B to Plaintiff's Motion for Summary Judgment, p.35, lines 11 - 13.

STANDARD FOR MOTION FOR SUMMARY JUDGMENT

Summary judgment is only appropriate “when there are no genuine issues of material tact and the moving party is entitled to judgment as a matter of law.” Outboard Marine Corp. v. Liberty Mut Ins. Co., 607 N.E.2d 1204, 1209 (Ill. 1992), Summary judgment is a “drastic measure” and “should be allowed only when a moving party's right to it is clear and free from doubt.” Pyne v. Witmer, 543 NE.2d 1304, 1307 (Ill. 1989), Summary judgment should be denied “[w]here a reasonable person could draw divergent inferences from undisputed facts.” Outboard Marine Corp., 607 N.E.2d at 1209. When considering summary judgment motions, “a court must construe the evidence strictly against the movant and liberally in favor of the opponent of the motion” Hansen v Ruby Constr Co., 155 Ill. App.3d 475 479 (1987).

ARGUMENT

I. Mr. Stohl's Deposition Testimony does not Constitute Judicial Adminission for Purposes of Summary Judgment.,

A. Mr. Stohl's Statements Do Not Meet the Definition of Judicial Admission,

Plaintiff asserts in his Motion for Summary Judgment that Mr Stohl's statements during his discovery deposition constitute a judicial admission of liability The Court in Brummet v. Farel explained that there are two types of admissions, “judicial and evidentiary” 576 N.E.2d 232, 1234 (Ill. App Ct 1991). Judicial admissions are conclusive and “binding upon the party making them,” whereas evidentiary admissions “may be controverted or explained.” Trapkus v. Edstrom's Inc., 489 N.E.2d 340, 343 (Ill. App. Ct. 1986) A judicial admission is defined as “a (1) deliberate, (2) clear, (3) unequivocal, (4) statement of a party. (5) about a concrete fact, (6) within that party's peculiar knowledge.” Brummet, 576 N.E.2d at 1234.

1. Mr. Stohl's Statements Were not Clear and Were not Unequivocal.

While “testimony at evidence and discovery depositions may be treated as judicial admissions,” in order to be considered a judicial admission, the testimony “taken as a whole” must be unequivocal. Brummet, 576 N.E.2d at 1234. When discussing whether statements made in a deposition are unequivocal, the Court in Hansen v. Ruby Constr Co. explained that the decision “is closely analogous to the question of whether a contract is ambiguous.” 508 N.E.2d 301, 304 (Ill. App. Ct, 1987). “In cases where there is an ambiguity in the contract, a fact question is presented for resolution by the trier of fact,” thus rendering summary judgment inappropriate, Id.

In this case, Mr. Stohl's statements were ambiguous and unclear The halting statements, indicated by the several breaks in the deposition transcript indicate that Mr Stohl saw that the stoplight was green and that the other vehicle stopped ahead of him and that this combination of events caused the collision. See Exhibit B to Plaintiff's Motion for Summary Judgment, p 15 lines 19-25 & p, 16 line 1. This testimony does not indicate any admission of liability on behalf of Mr Stohl. There is ambiguity in the statements, as it is not clear whether he is indicating that seeing the green light caused the accident, or the stopping of the other vehicle. It is also unclear whether Mr. Stohl is saying that the accident was his fault or whether he was stating that his assumption that he was clear to go was his fault. Mr Stohl's assumptions as a lay person do not constitute a legal opinion, and such statements are unclear and ambiguous. Therefore, under the Hansen analysis of ambiguity, a question of fact remains and summary judgment is not appropriate here.

2. Mr. Stohl's Statements Were not About a Concrete Fact.

A party's deposition testimony is not a judicial admission “when the party's testimony is inadvertent., or uncertain, or amounts to an estimate or opinion rather than a statement of concrete fact” Brummet, 576 N.E.2d at 1234.

The portion of the testimony referred to in Plaintiff's Motion for Summary Judgment including “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,” is an estimate or opinion rather than a statement of concrete fact. See Exhibit B to Plaintiff's Motion for Summary Judgment, p. 15, lines 19-25 & p. 16, line 1. This statement indicates that the other car stopping is what caused the accident, states an assumption by Mr. Stahl, ambiguously indicates some form of fault, and then indicates that Mr. Stohl's opinion was that he was clear to go. Rather than stating any concrete act, this testimony states an uncertain estimate or opinion, thus leaving issues of material fact to be decided by the finder of fact

The second portion of testimony discussed in Plaintiff's Motion for Summary Judgment included a question that specifically asked, “[i]n your estimation, did Mr. Edgerson do anything wrong to cause his accident” See Exhibit B to Plaintiff's Motion for Summary Judgment p, 35 lines 11-12 (emphasis added). The question asks for an estimate on, and thus the response is “an estimate or opinion rather than a statement of concrete fact” and is not a judicial amiss on Brummet, 576 N.E.2d at 1234

3. Mr. Stohl's Statements Were not Within his Peculiar Knowledge.

In order for testimony to be peculiarly within the knowledge of the deponent ‘the information must be without question within the realm of information actually known to the witness although not exclusively known to him.” Eidson v. Audrey's CTL, Inc, 621 N.E.2d 921, 923 (Ill. App Ct. 1993). The testimony is not considered to he a judicial admission “when the facts relate to a matter about which the party could easily have been mistaken, such as swiftly moving events preceding a collision ....” Brummet, 576 N.E.2d at 1234. The Brummet Court explained that the “swiftly moving event” exception to judicial admissions serves several purposes including allow[ing] the trier of fact to evaluate credibility and resolve conflicts in the testimony,” and providing the opportunity for “an evaluation of all [the] testimony, and not just a part of it.” Id. at 1235. This allows the court to avoid “judicial comment on the credibility of witnesses” by treating the testimony of one party as “more worthy of belief than the other” testimony. Id. at 1235.

The facts here relate to a matter about which Mr. Stohl could easily have been mistaken, as they were swiftly moving events preceding a collision as described in Brummet, 576 N.E.2d at 1234 His statements were specifically describing the chain of events immediately before the collision occurred, including looking at the stoplights, seeing the car in front of him, and his belief that he was clear to go. See Exhibit B to Plaintiff's Motion for Summary Judgment, p 15, lines 19-25 & p. 16, line 1. Mr. Stohl's statements were made without the other evidence that the fact finder will have available to it at trial, and any statements of fault would deprive the fact-finder the opportunity to consider all of the evidence and possible testimony as contemplated by the Brummet Court. As the facts here are not with n Mr. Stohl's peculiar knowledge questions of fact remain and summary judgment is not appropriate

B. Mr. Stohl's Statements in the Discovery Deposition are not Judicial Admissions under Supreme Court Rule 201(j).

As provided in Supreme Court Rule 201(j), “[d]isclosure of any matter obtained by discovery is not conclusive, but may be contradicted by other evidence” This rule applies to “testimony by a party at a deposition” and such testimony is treated only as an evidentiary admission. Trapkus, 489 N.E.2d at 343. As the testimony discussed in Plaintiff's Motion for Summary Judgment was in the context of a discovery deposition, it should not be treated as a judicial admission under Supreme Court Rule 201(j). Thus, summary judgment should not be granted as questions of fact remain as to liability.

C. As Mr. Stohl's Deposition Testimony is not a Judicial Admission, a Genuine Issue of Fact Remains as to Liability, and Summary Judgment should be Denied.

Because no judicial admissions have been made in this case, genuine issues of material fact remain as to the liability of Defendants for the collision. Therefore, as summary judgment is only appropriate “when there are no genuine issues of material fact” remaining, the Court should deny Plaintiff's Motion for summary Judgment in this case.” Outboard Marine Corp, 607 N.E.2d at 1209.

CONCLUSION

WHEREFORE, Defendants, Wayne Stohl & Sons Plastering and Jacob Stohl requests that the Court deny Plaintiff's Motion for Summary Judgment

____________________________,

By: <<signature>>

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