Mossberger v. Kochheiser

SASHA M. MOSSBERGER, Plaintiff, v. PATRICIA KOCHHEISER, as representative of the Estate ofMICHAEL E. KOCHHEISER, Defendant.

No. 14 C 7284

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

May 5, 2016

Magistrate Judge Mary M. Rowland

MEMORANDUM OPINION AND ORDER

This case arises from a vehicle collision. Before this Court is Defendant's motion for summary judgment. (Dkt. 47). This Court has jurisdiction pursuant to 28 U.S.C. § 1332. The parties have consented to proceed before a magistrate judge pursuant to 28 U.S.C. § 636(c)(1). (Dkt. 19). For the reasons set forth below, Defendant's motion for summary judgment is denied.

I. BACKGROUND

On August 1, 2014, Plaintiff Sasha Mossberger filed a complaint in the Circuit Court of Cook County, Illinois, alleging that on April 10, 2013, Michael Kochheiser operated his vehicle in a negligent manner causing a collision with the vehicle operated by Mossberger. (Dkt. 1-1); Complaint, Sasha M. Mossberger v. Michael E. Kochheiser, No. 14 M6 003125 (Cook County Aug. 1, 2014). On September 18, 2014, Defendant removed the action to the United States District Court for the Northern District of Illinois, and asserted this Court's jurisdiction based on diversity jurisdiction.¹ (Dkt. 1). On October 13, 2014, Defendant Michael Kochheiser filed an Answer admitting that a collision occurred, but denying that he was negligent. (Dkt. 10).

On June 4, 2015, defense counsel filed a statement noting the death of Michael Kochheiser on April 20, 2015. (Dkt. 28). On May 27, 2015, fact discovery closed, and on August 31, 2015, expert discovery closed. (Dkt. 27). On September 10, 2015, Plaintiff filed an Amended Complaint substituting as the defendant Patricia Kochheiser, representative of the Estate of Michael Kochheiser. (Dkt. 38). The only witnesses to the accident are Sasha Mossberger, Michael Kochheiser, and an individual identified by Plaintiff as "Tommy" (Dkt. 49, ¶ 7), and the only other witness disclosed by Plaintiff is a state police officer who appeared after the occurrence. (Dkt. 49, ¶ 8-10).

II. DISCUSSION

A. Summary Judgment Standard

Summary judgment is appropriate if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir. 2014); Fed. R. Civ. P. 56(a). A genuine dispute as to any material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment has the burden of establishing that there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In determining whether a genuine issue of material fact exists, this Court must construe all facts and reasonable inferences in the light most favorable to the nonmoving party. See CTL ex rel. Trebatoski v. Ashland School District, 743 F.3d 524, 528 (7th Cir. 2014).

B. Negligence Standard

Illinois law governs the extent of Defendant's liability in this diversity action. Protective Life Insurance. Co. v. Hansen, 632 F.3d 388, 392 (7th Cir. 2011) (a federal court sitting in diversity applies the substantive law of the state in which it is sitting). To prevail on a claim of negligence, a plaintiff must prove: (1) that the defendant owed the plaintiff a duty of care; (2) that the defendant breached that duty of care; and (3) that the breach of that duty proximately caused the plaintiff's injury. Parker v. CBM Design, Inc., 2014 IL App (1st) 130677-U, ¶ 39; Baez v.Target Corp., 80 F. Supp. 3d 862, 865 (N.D. Ill. 2015). "Whether a duty is owed presents a question of law for the court to decide, while breach of duty and proximate cause present questions of fact for the jury to decide." Thompson v. Gordon, 241 Ill. 2d 428, 438-39, 948 N.E. 2d 39, 45 (2011).

C. Illinois Dead Man's Act

Plaintiff alleges that Michael Kochheiser operated a vehicle in a negligent manner causing a collision, and as a result of the collision, she suffered personal and pecuniary injuries. Defendant moves for summary judgment on Plaintiff's negligence claim, asserting that the Illinois Dead Man's Act precludes Mossberger from offering "testimony concerning the motor vehicle accident itself as well as any conversations she may have had with Kochheiser following the accident." (Dkt. 48 at 7). Defendant asserts that because Mossberger cannot offer her own testimony and has failed to identify any other witnesses to the accident or provide testimony from those witnesses, Plaintiff has no evidence to offer in this case and summary judgment is warranted pursuant to the Illinois Dead Man's Act.

The Illinois Dead Man's Act provides that "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 person under legal disability or to any event which took place in the presence of the deceased or person under legal disability." 735 Ill. Comp. Stat. 5/8-201. The purpose of the Act "is to protect decedents' estates from fraudulent claims and also to equalize the position of the parties with respect to giving testimony." Ball ex rel. Hedstrom v. Kotter, 746 F. Supp. 2d 940, 947-48(N.D. Ill. 2010) (citing Gunn v. Sobucki, 216 Ill. 2d 602, 837 N.E.2d 865, 869 (2005)); see also In re Estate of Gott, 213 Ill. App. 3d 297, 571 N.E.2d 1167, 1169 (1991) ("The Act is not designed to disadvantage the living, but it is designed to protect estates against fraudulent claims being made by putting the parties on equal footing."). The Act does not bar "evidence of facts that the decedent could not have refuted." Balma v. Henry, 404 Ill. App. 3d 233, 935 N.E.2d 1204, 1211 (2010). The application of the Act is applicable to summary judgment proceedings and applies to diversity actions in federal court. Zang v. Alliance Financial Services of Illinois, Ltd., 875 F. Supp. 2d 865, 877 (N.D. Ill. 2012) (citing Brown, Udell & Pomerantz, Ltd. v. Ryan, 369 Ill. App. 3d 821, 861 N.E.2d (2006); Fed. R. Evid. 601; Lovejoy Electronics, Inc. v. O'Berto, 873 F.2d 1001, 1005 (7th Cir. 1989)).

An adverse party can testify to events outside the presence of the deceased without the Dead Man's Act being invoked. Manning v. Mock, 119 Ill. App. 3d 788, 799, 457 N.E.2d 447, 453 (1983). In Rerack v Lalley, a vehicle driven by the defendant-decedent rear-ended the plaintiff's car, which had already come to a complete stop. While the plaintiff was barred from testifying about the details of the collision, the appellate court held that the plaintiff could testify to "the overall mechanical condition of plaintiff's automobile and, specifically, the functioning of its brake light; the weather conditions at the time of the accident; that plaintiff's vehicle was stopped for two minutes; that plaintiff's foot was on the brake pedal of his car continuously; that plaintiff had heard no sound prior to the accident's impact; and that plaintiff observed damage to the rear of his vehicle the day afterthe occurrence." Rerack v. Lally, 241 Ill. App. 3d 692, 695, 609 N.E.2d 727, 729-30 (1992). Similarly, testimony concerning the posted speed limit on a road where a collision occurred is acceptable testimony, as is testimony that the adverse party had his lights on prior to the collision. Moran v. Erickson, 297 Ill. App. 3d 342, 361, 696 N.E.2d 780, 793 (1998) ("While the speed of the decedent's vehicle at the time of the collision would relate to the collision event, the posted speed limit did not."); Malavolti v. Meridian Trucking Co., 69 Ill. App. 3d 336, 346, 387 N.E.2d 426, 433 (1979) (Dead Man's Act did not preclude testimony by driver that driver's lights were on.). See Rerack, 241 Ill. App. 3d at 695 (the purpose of the Dead Man's Act is to bar only that evidence which the decedent could have refuted).

While the Dead Man's Act limits the scope of Plaintiff's testimony in this case, it does not preclude Plaintiff from testifying altogether. While Plaintiff cannot provide testimony concerning the actual collision, Rerack, 241 Ill. App.3d at 695 (the "event" at issue was the accident and the court properly barred plaintiff from testifying regarding the details of the collision itself), she can testify, for example, that she was driving in a westbound direction in the left lane on I-80 in Joliet (see Compl.), to the weather conditions on that day, and to the condition of her automobile prior to and following the accident. In his Answer prior to his death, Mr. Kochheiser admitted that a collision occurred, (Dkt. 10, ¶ 3, October 13, 2014), allowing Plaintiff to testify to the fact of a collision. Balma, 404 Ill.App.3d at 240 ("evidence of facts that the decedent could not have refuted is not rendered inadmissible by the Dead-Man's Act"); see Rerack, supra, at 695 (allowing plaintiff to testify to the factthat "decedent admitted, prior to his death, rear-ending plaintiff in his answer to plaintiff's complaint").

Defendant's motion for summary judgment is based on the premise that Plaintiff may not testify at all and there is no other witness testimony. In addition to the testimony Plaintiff is permitted to offer consistent with the Dead Man's Act, Plaintiff responds that Officer Shelley Cox, a state trooper and a non-interested party to this action, can testify about the April 10, 2013 accident. (Dkt. 50 at 5). Plaintiff presents a transcript from a July 9, 2013 trial charging Mr. Kochheiser with violating the Illinois Vehicle Code, 625 Ill. Comp. Stat. 5/11-709, in connection with the April 10, 2013 collision. The People of the State of Illinois v. Michael Kochhetser [sic], Case No. 13 TR 27870 (Will County July 9, 2013). During the trial, Officer Cox testified that she spoke with Mr. Kochheiser following the accident and he admitted he did not see Plaintiff's vehicle: "he acknowledged that he was...