Madison County Circuit Judge David Dugan granted summary judgment in a disputed trip and fall suit, concluding that the plaintiff failed to provide evidence that she fell due to a defect in the defendant’s premises.
Defendant Anita Bowman, who is now deceased, had previously argued that plaintiff Monica Haxton’s injuries were the result of her own negligence. She alleged Haxton was intoxicated and involved in a fight with a third party at the time of her fall.
Dugan granted summary judgment on June 8 after Haxton said she was unsure what caused her to fall. She attempted to retract that statement in an affidavit, explaining that she had been nervous. Dugan was unconvinced.
“Because her relevant testimony clearly constitutes a judicial admission that she does not know what caused her to fall, that testimony cannot be controverted by her affidavit, medical records, or testimony of trial.
“Her deposition testimony and the absence of other witnesses leaves the plaintiff without evidence as to a defect or condition in the premises that served as a cause of her injuries. As a result, plaintiff’s judicial admission removes from contention the issue of causation, a necessary element of her claim for personal injuries. Consequently, there remains no genuine issue of material fact relative to causation, and defendant is entitled to summary judgment as a matter of law,” Dugan wrote.
Dugan added that despite granting the plaintiff additional time to respond, she still failed to provide medical records as evidence.
Additionally, Dugan noted that Haxton failed to notify the counsel present at the deposition of her nervous and fatigued condition.
Bowman filed her motion for summary judgment on Sept. 24 through attorney Michael Hobin after Haxton testified in her Aug. 29 deposition that the alleged fall happened “very quickly” and she has “no clue” what caused her to fall.
“A plaintiff who does not know the cause of her fall, and who cannot present any witnesses to give evidence as to the cause, cannot prove her case as a matter of law,” the motion stated.
Haxton filed an affidavit and a response to the motion for summary judgment on Jan. 13 through attorney Thomas Hildebrand of Granite City.
“That when asked what happened, I was tired and nervous and I blurted out a statement which is completely contrary to the facts of this case,” the affidavit stated.
“That I knew at the time of my fall, knew when I went to Anderson Hospital, knew at the time of my deposition and always knew that I fell because I stepped in a hole dug by the dog,” it continued.
In her response to the motion, Haxton argued that she was “nervous and had never before been deposed.”
She added that she was distracted due to recent personal and employment problems and allegedly had transportation problems, causing her to be late to the deposition.
In a reply to Haxton’s response, Hobin wrote that Dugan gave the plaintiff additional time to file the response after she requested a continuance on the eve of the motion hearing set for Dec. 5. However, Haxton did not file a response until Jan. 13, three days before the rescheduled motion hearing.
“If plaintiff’s endeavor to withstand summary judgment is permitted in the instant case under the circumstances at hand, it will have the effect of turning the practice of taking discovery depositions over and/or upside down and set a precarious precedent.
“In short, should a party secure testimony warranting summary judgment while examining an adverse party during a discovery deposition, all that deponent party will have to do going forward is supplement the record with an affidavit contradicting her/his own detrimental depositional testimony to survive summary judgment,” the reply states.
Hobin called Haxton’s reasoning in her affidavit “absurd.” She argues that she was nervous because of transportation and employment issues. He added that Haxton was late to the deposition and caused the defendant to incur unnecessary additional legal fees.
“Nevertheless, the bottom line as to this point is plaintiff was represented during the deposition, and her attorney was present,” Hobin wrote. “The burden does not fall on defense counsel to determine if one is too emotionally distraught to answer questions as simple and core to her/his case as: what caused you to fall.”
Hobin further argued that Hildebrand is now a fact witness “attempting to attest to non-sworn testimony” and should withdraw due to a conflict of interest.
“It has been clear from the day the complaint was filed long ago that plaintiff’s counsel was alleging his client fell upon stepping into a concealed hole and I would hope such allegations were based on more than conjecture on the filing attorney’s part …” he wrote.
Haxton filed her complaint against Bowman in January 2018, alleging she was injured in October 2016 when she stepped into a concealed hole on the defendant’s Wood River property and fell.
She sought a judgment against Bowman of more than $50,000, plus costs.
Bowman admitted that Haxton was injured on her property in her answer to the complaint. However, she argued that Haxton was intoxicated and involved in a fight with a third party at the time of her fall.
“Without waiving her denials, the plaintiff’s injuries were not a result of the defendant’s negligence, nor as a result of the plaintiff falling in a hole, but rather because the plaintiff was involved in an altercation with another person, with whom she fought and was subsequently pushed down, causing her injuries herein,” Bowman’s answer stated.
According to a suggestion of death filed on Dec. 6, Bowman died on Oct. 31 in Mount Olive.
Madison County Circuit Court case number 18-L-38