Tuesday, February 16, 2021
Illinois Court Finds Dead Man's Act Did Not Apply to Police Officer Conversations w/Drivers Who Subsequently Died
Like a handful of other states, Illinois still has a Dead Man's Act. Illinois's act can be found in 735 ILCS 5/8-201, which states in pertinent part that
In 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, except in the following instances:
(a) If any person testifies on behalf of the representative 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, any adverse party or interested person, if otherwise competent, may testify concerning the same conversation or event.
(b) If the deposition of the deceased or person under legal disability is admitted in evidence on behalf of the representative, any adverse party or interested person, if otherwise competent, may testify concerning the same matters admitted in evidence.
So, would this Dead Man's Act prevent police officers from testifying to their conversations with two drivers (who subsequently died) after they was in a car accident? That was the question addressed by the Appellate Court of Illinois, Fifth District, in its recent opinion in Hood v. Leighty, 2020 WL 7395890 (Ill.App.5th 2020),In Leighty, the facts were as stated above. In finding that the Dead Man's Act did not apply, the court concluded that
The Act is intended “to protect decedents' estates from fraudulent claims and to equalize the position of the parties in regard to the giving of testimony.”...The Act bars an adverse party, or a person directly interested in the action, from testifying about a conversation with the deceased or any event which took place in the presence of the deceased. 735 ILCS 5/8-201 (West 2018). A person is interested under the Act if that person will directly experience a monetary gain or loss as an immediate result of the judgment....The Act does not bar testimony regarding facts that the decedent could not have refuted....The Act is applicable not only in trials but also in summary judgment proceedings because summary judgment is an adjudication of a claim on the merits and is the procedural equivalent of a trial....
In this case, the officers from the Hamilton County Sheriff's Department and the Illinois State Police are nonparty witnesses, and they have no direct interest in the litigation. Accordingly, the Act does not disqualify those officers from testifying about their conversations with Hampton and Hood, provided such statements are otherwise admissible.