Brummet v. Farel

• Decision Date: 02 August 1991
• Docket Number: No. 5-90-0358,5-90-0358
• Citation: 160 Ill.Dec. 278,217 Ill.App.3d 264,576 N.E.2d 1232
• Parties: , 160 Ill.Dec. 278 Larry N. BRUMMET, Plaintiff-Appellant, v. Michael J. FAREL, Defendant (Larry D. Brummet, Defendant-Appellee).
• Court: United States Appellate Court of Illinois

Page 1232

576 N.E.2d 1232

217 Ill.App.3d 264, 160 Ill.Dec. 278

Larry N. BRUMMET, Plaintiff-Appellant, v. Michael J. FAREL, Defendant (Larry D. Brummet, Defendant-Appellee).

No. 5-90-0358.

Appellate Court of Illinois Fifth District.

Aug. 2, 1991.

Pratt & Callis, P.C., Granite City, for plaintiff-appellant.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago (Stephen R. Swofford, Dawn A. Sallerson, Gary J. Bazydlo, of counsel), for defendant-appellee.

Justice HOWERTON delivered the opinion of the court:

The circuit court ruled that plaintiff made judicial admissions in a pretrial deposition, and on the strength of those admissions granted summary judgment for defendant. We reverse, holding that the admissions were evidentiary, not judicial admissions.

Plaintiff was injured while riding as a passenger in a truck driven by his father, defendant. The truck collided with a car driven by Michael Farel.

In support of his motion for summary judgment, defendant attached plaintiff's deposition testimony:

"Q: Do you know whether he [father] applied his brakes or not as he got over to the rail?

A: I really can't answer that. I really don't know.

Q: At any time before the impact between the two vehicles, did your dad's truck cross the center line?

A: No.

Q: So your recollection of this is your dad was in his own lane of traffic, this other car comes toward him and he pulls over to the right as far as he could go and there is an impact?

A: Yes.

Q: And the impact, as I understand what you are saying here, it occurred right along the east side of that northbound traffic; in other words, on the right-hand guard rail?

A: Yes.

* * * * * *

Q: And now I forgot to ask you one other thing. Do you see or do you claim that your father in driving the truck that evening and being in this accident did anything wrong?

A: No.

Q: He didn't do anything wrong?

A: No.

Q: His conduct and his driving had absolutely nothing to do with how the accident occurred, is that a true statement?

A: Yes."

In opposition to defendant's motion for summary judgment, plaintiff stated:

"A deposition was taken of Michael Farel on May 10, 1989 at that time, Mr. Farel stated, Pg. 13, 'I am heading southbound, And I noticed and everyone else noticed that--off in the distance that the headlights were coming, you know, it looked like the headlights were in our lane, you know, coming straight at us. And someone said from the back seat, you know, is this a one way street, cause this guy was coming straight in our lane.' 'The crest of the hill I could see clearly that the car was driving a straight line and in my lane. He was in the southbound lane coming north, completely within the confines of the lane. And I slowed at that point and veered as far as I could.' "

Plaintiff argues that there is conflict over who crossed the center line, precluding summary judgment.

We look to the pleadings, depositions, admissions, and affidavits to determine if there is an issue of material fact. Ill.Rev.Stat.1987, ch. 110, par. 2-1005. Summary judgment is proper only where the evidence, when construed most strongly against the moving party, establishes clearly and without doubt the right thereto. (Fisher v. Crippen (1986), 144 Ill.App.3d 239, 98 Ill.Dec. 183, 493 N.E.2d 1204, citing Motz v. Central National Bank (1983), 119 Ill.App.3d 601, 75 Ill.Dec. 137, 456 N.E.2d 958.) Summary judgment is a drastic remedy and should be awarded with due care and caution. (Rivan Die Mold Corp. v. Stewart-Warner Corp. (1975), 26 Ill.App.3d 637, 325 N.E.2d 357.) In deciding whether to grant summary judgment, a court must construe the evidence strictly against the movant and liberally in favor of the opponent (Kolakowski v. Voris (1980), 83 Ill.2d 388, 47 Ill.Dec. 392, 415 N.E.2d 397); however, when defendant files a motion for summary judgment, plaintiff must oppose a motion for summary judgment with evidence of defendant's negligence. Whitman v. Lopatkiewicz (1987), 152 Ill.App.3d 332, 105 Ill.Dec. 374, 504 N.E.2d 243.

The dispositive issue in this case is whether plaintiff's statements are judicial admissions.

A judicial admission is a (1) deliberate, (2) clear, (3) unequivocal, (4) statement of a party, (5) about a concrete fact, (6) within that party's peculiar knowledge. Hansen v. Ruby Construction Co. (1987), 155 Ill.App.3d 475, 108 Ill.Dec. 140, 508 N.E.2d 301.

"Admissions come in two varieties, judicial and evidentiary. A judicial admission is conclusive upon the party making it; it may not be controverted at trial or on appeal. Judicial admissions are not evidence at all but rather have the effect of withdrawing a fact from contention." (M. Graham, Evidence Text, Rules, Illustrations and Problems at 146 (1983) (hereinafter cited as Graham).) Included in this category are admissions made in pleadings, formal admissions made in open court, stipulations, and admissions pursuant to requests to admit. Graham, at 146.

Evidentiary admissions, on the other hand, may be controverted or explained by the party. Evidentiary admissions may be made in, among other things, pleadings in a case other than the one being tried, pleadings that have been superseded or withdrawn, answers to interrogatories, and other statements made pursuant to Federal Rule of Evidence 801(d)(2) (Fed.R.Evid. 801(d)(2)). Graham at 146.

Insofar as discovery is concerned, answers to interrogatories and testimony at evidence and discovery depositions may be treated as judicial admissions (Van's Material Co. Inc. v. Department of Revenue (1989), 131 Ill.2d 196, 137 Ill.Dec. 42, 545 N.E.2d 695; Tom Olesker's Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1979), 71 Ill.App.3d 562, 28 Ill.Dec. 78, 390 N.E.2d 60; Albright v. Parr (1984), 126 Ill.App.3d 464, 81 Ill.Dec. 648, 467 N.E.2d 348; Hansen v. Ruby Construction Co. (1987), 164 Ill.App.3d 884, 115 Ill.Dec. 829, 518 N.E.2d 354), and the legal effect of those admissions may be tested by summary judgment proceedings. Young v. Pease (1983), 114 Ill.App.3d 120, 69 Ill.Dec. 868, 448 N.E.2d 586; Hansen v. Ruby Construction Co. (1987), 155 Ill.App.3d 475, 108 Ill.Dec. 140, 508 N.E.2d 301.

The general rule, however, is qualified. It applies only when a party's testimony, taken as a whole, is unequivocal. The rule is inapplicable when the party's testimony is inadvertent, or uncertain, or amounts to an estimate or opinion rather than a statement of concrete fact. In addition, the rule is inapplicable when the facts relate to a matter about which the party could easily have been mistaken, such as swiftly moving events preceding a collision in which the party was injured. Graham at 146; See McCormack v. Haan (1960), 20 Ill.2d 75, 169 N.E.2d 239.

Defendant argues that Finley v. Mercer County (1988), 172 Ill.App.3d 30, 122 Ill.Dec. 376, 526 N.E.2d 635, controls this case. The issue in Finley was whether a stop sign had been twisted long enough to give the defendant county constructive notice of its condition. The county filed a motion for summary judgment arguing there was no issue of material fact as to whether it had notice of the sign's condition. In support of his motion for summary judgment, defendant attached plaintiffs' depositions, wherein plaintiffs admitted they had traveled the intersection a week before the accident and the sign was not twisted. While the motion was pending, plaintiffs produced and deposed another witness who testified that the stop sign had been twisted three months prior to the collision. Finley held that summary judgment was proper because plaintiffs were bound by their deposition testimony.

There is a distinction between Finley and this case. In Finley plaintiff's witness's testimony was developed only after defendant had filed its motion for summary judgment, and the witness's perceptions in Finley went to notice of the condition of the stop sign--a static condition. In this case there are conflicting perceptions of eyewitnesses to a fast-moving car wreck--a fluid event, rather than a static condition.

The "swiftly moving event" exception to the general rule more appropriately allows the trier of fact to evaluate credibility and resolve conflicts in the testimony. Automobile accident cases often turn on the perceptions of the eyewitnesses, and the total picture of the event cannot rest on one witness's testimony alone. Treatment of a declaration as a judicial admission rather than an evidentiary admission "depends upon an evaluation of all [the] testimony, and not just a part of it [and] upon an appraisal of [the] testimony in the light of the testimony of the other witnesses and a consideration of their respective opportunities to observe the facts about which they testify. McCormick on Evidence at 513-516; 9 Wigmore on Evidence, 3rd ed., sec. 2594(a)." (McCormack, 20 Ill.2d at 78, 169 N.E.2d at 241.) These qualifications of the general rule serve several important policies, not the...