Illinois Official Reports 

Appellate Court

Peacock v. Waldeck, 2016 IL App (2d) 151043

Appellate Court 

Caption

ANDICE PEACOCK, Plaintiff-Appellant, v. KATHLEEN 

WALDECK, Deceased, by Special Representative Barton Waldeck,

Defendant-Appellee.

District & No. Second District

Docket No. 2-15-1043

Filed August 8, 2016

Decision Under 

Review

Appeal from the Circuit Court of Du Page County, No. 13-L-761; the 

Hon. Kenneth L. Popejoy, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

Travis Dunn, of Law Offices of Peter F. Ferracuti, of Ottawa, for 

appellant.

John J. Skawski and Peter J. Evans, both of Skawski Law Offices, 

LLC, of Oak Brook, for appellee.

Panel JUSTICE JORGENSEN delivered the judgment of the court, with 

opinion.

Justices Hutchinson and Zenoff concurred in the judgment and 

opinion.
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 OPINION 

¶ 1 Plaintiff, Andice Peacock, filed a complaint in the circuit court of Du Page County against 

defendant, Kathleen Waldeck, seeking recovery for personal injuries that plaintiff allegedly 

suffered as a result of a rear-end motor vehicle collision. Defendant died during the pendency 

of the lawsuit (her death was unrelated to the motor vehicle accident), and the trial court 

appointed Barton Waldeck to serve as her special representative. The special representative 

successfully moved for summary judgment, contending that plaintiff could not establish 

defendant’s negligence without testimony that would be inadmissible under the Dead-Man’s 

Act (Act) (735 ILCS 5/8-201 (West 2014)) at trial. Plaintiff appeals from the summary 

judgment, arguing that the pleadings establish the existence of a question of material fact. We 

affirm. 

¶ 2 According to plaintiff’s complaint, on October 6, 2011, at 5:23 p.m., she was driving west 

on Roosevelt Road, and defendant was driving behind plaintiff in the same lane. While 

plaintiff was stopped for a stoplight, defendant’s vehicle struck the rear of plaintiff’s vehicle. 

According to the complaint, at the time of the collision, “[t]here were no visual obstructions to 

block Defendant’s view of Plaintiff’s vehicle.” Prior to her death, defendant filed her answer. 

She averred a lack of knowledge sufficient to answer the allegation that plaintiff’s vehicle was 

stopped at a stoplight when the collision occurred, and she neither admitted nor denied that 

allegation. Defendant admitted the other allegations concerning the time and location of the 

accident. Defendant also admitted that her vehicle struck the rear end of plaintiff’s vehicle and 

that she had an unobstructed view of plaintiff’s vehicle when the accident occurred. The record 

reveals that there were no known witnesses to the incident other than plaintiff and defendant. 

¶ 3 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 a judgment as a matter of law.” 735 ILCS 5/2-1005(c) 

(West 2014). The trial court’s ruling on a motion for summary judgment is subject to de novo

review. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004). “Even if some issue of 

fact is presented by a motion for summary judgment, if what is contained in the pleadings and 

affidavits would have constituted all of the evidence before the court at trial and upon such 

evidence nothing would be left to go to a jury, and the court would be required to direct a 

verdict, then a summary judgment should be entered.” Koziol v. Hayden, 309 Ill. App. 3d 472, 

477 (1999). 

¶ 4 A party opposing a motion for summary judgment may not rely on evidence barred by the 

Dead-Man’s Act to establish the existence of a question of material fact. Rerack v. Lally, 241 

Ill. App. 3d 692, 694-95 (1992). As pertinent here, the Dead-Man’s Act provides that “[i]n the 

trial of any action in which any party sues or defends as the representative of a deceased person 

or person under a legal disability, 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 ILCS 5/8-201 (West 2014). The Dead-Man’s Act carves 

out several exceptions to this rule (id.), but neither party here contends that any of the 

exceptions applies. Furthermore, there is no dispute that the special representative qualifies for 

the protection afforded under the Dead-Man’s Act. “The Dead-Man’s Act is intended to 

remove the temptation of a survivor to testify to matters that cannot be rebutted because of the 
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death of the only other party to the conversation or witness to the event, but it is not intended to 

disadvantage the living.” Balma v. Henry, 404 Ill. App. 3d 233, 238 (2010). 

¶ 5 In Rerack, the First District reversed a summary judgment for the administrator of the 

estate of the original defendant in an action arising from a rear-end collision. The propriety of 

the summary judgment in Rerack hinged on the extent to which the plaintiff’s testimony about 

the collision would be admissible if the matter proceeded to trial. The plaintiff contended on 

appeal that the trial court erred by “not allowing him to present testimony regarding the 

following: 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 after the occurrence.” Rerack, 241 Ill. App. 

3d at 695. In concluding that the Dead-Man’s Act did not bar the testimony, the Rerack court 

reasoned as follows: 

“None of the plaintiff’s proffered testimony, listed above, can reasonably be said to 

have occurred during the ‘event.’ Even assuming that any of the above testimony could 

be categorized as regarding something that was within the event, it is still not testimony 

regarding an occurrence in the ‘presence’ of the decedent. Thus, absent evidence 

establishing that decedent would have observed the aforementioned, it was error for the 

trial court to have excluded such testimony.” Id.

While noting that “[t]he mere fact that a rear-end collision occurred is not enough to support a 

finding of negligence against a defendant,” the Rerack court explained that “a litigant may rely 

upon circumstantial evidence where such evidence reasonably implies negligence from all the 

facts and circumstances shown to exist prior to and at the time of the collision.” Id. at 696. The 

court concluded that the defendant’s negligence could be inferred from the circumstances of 

the accident and that the defendant was not entitled to summary judgment. Id.

¶ 6 In her brief, plaintiff contends that negligence can be inferred here because defendant 

admitted that she was traveling behind plaintiff and had an unobstructed view of plaintiff’s 

vehicle when the collision occurred. At oral argument, however, plaintiff conceded that 

negligence cannot be inferred simply because defendant was traveling behind plaintiff and had 

an unobstructed view of plaintiff’s vehicle. She argued, however, that defendant’s lack of 

knowledge of whether plaintiff’s vehicle was stopped at a stoplight permitted an inference 

that—as plaintiff would have testified—it was indeed stopped. 

¶ 7 If defendant had actually admitted that plaintiff was waiting at a stoplight when the 

accident occurred, our decision in Burns v. Grezeka, 155 Ill. App. 3d 294 (1987), would 

control the disposition of this appeal. In Burns, we held that “although the fact of a rear-end 

collision into a parked vehicle is not sufficient to establish liability as a matter of law, it is 

adequate to raise a prima facie case of negligence on the part of the driver of the rear vehicle.” 

Id. at 298. On that basis, we reversed a summary judgment for the estate of a deceased driver 

whose vehicle struck the plaintiff’s from behind while the plaintiff’s vehicle was stopped at a 

red light. 

¶ 8 Of course, defendant did not admit that plaintiff’s vehicle was stopped at a traffic light; she 

averred a lack of knowledge of the truth of the allegation. Contrary to the position plaintiff 

took at oral argument, defendant’s lack of knowledge has no evidentiary significance. Given 

that the Dead-Man’s Act was designed to bar testimony that a decedent could have refuted, 
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plaintiff could have argued, perhaps, that the Dead-Man’s Act should not apply to matters 

about which the decedent admittedly had no knowledge. That, however, is not the argument 

that plaintiff has made, so we consider the matter no further. 

¶ 9 With only defendant’s actual admissions, the evidence of negligence here is not of the 

same quality as the evidence that was available in Rerack, where the plaintiff was capable of 

showing that his vehicle’s brake lights were functioning and that it had been stopped at a red 

light for two minutes before the defendant’s vehicle struck it. That evidence would enable the 

trier of fact to eliminate several possible explanations of how the collision occurred without 

fault on the defendant’s part. Here, in contrast, defendant’s admissions leave open the 

possibility that the accident occurred because plaintiff stopped abruptly or in an otherwise 

unsafe manner (see, e.g., Thomas v. Northington, 134 Ill. App. 3d 141, 148 (1985)), because of 

road conditions (see, e.g., Fabschitz v. King, 10 Ill. App. 3d 43, 44-45 (1973)), or because of a 

mechanical problem with plaintiff’s vehicle. Were this matter to proceed to trial, the trier of 

fact might conjecture that the accident resulted from negligence on defendant’s part, but a 

verdict based on conjecture could not stand. Argueta v. Krivickas, 2011 IL App (1st) 102166, 

¶ 10. Accordingly, the trial court properly entered summary judgment for defendant. 

¶ 10 For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed. 

¶ 11 Affirmed.