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January 24, 2005

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ted woerthwein

This is an important point sometimes overlooked by even alert attorneys. If your client hurts his or her case at deposition then his or her self serving affidavit produced with your response to the other sides motion for summary judgment is likely to fail.

Clarifying a misstatement, even if it creates an impeachment, goes to the witness' credibility. The credibility of a witness is a question for the trier of fact to resolve, not a matter to be decided on a motion for summary judgment.

In Pedersen v. Joliet Park District, 136 Ill. App. 3d 172, 483 N.E.2d 21, (3d Dist 1985), the plaintiff slipped and fell to the floor while playing basketball in defendant's gymnasium. Plaintiff argued that a genuine issue of fact existed with respect to whether plaintiff's injury was caused by a dusty and slippery gym floor.

However, in his deposition, the plaintiff had stated that at the time of his injury the floor did not appear to be dusty, the floor did not appear or feel slippery, and the floor seemed like it was clean and in good shape.

The defendant moved for summary judgment based upon plaintiff's deposition. In response, plaintiff filed an affidavit in which he asserted that when he returned to the scene of his injury two years after the incident with his expert witness, he began to remember that at the time of the injury the tile surface of the gym floor was dusty.

The trial court granted summary judgment for the defendant. The appellate court affirmed, stating, "we find unpersuasive the plaintiff's attempt to create an issue of fact by stating in his deposition that [the floor] was not dusty, and then by contradicting himself in a later affidavit." Pedersen, 136 Ill. App. 3d at 176.

In Schulenburg v. Rexnord, Inc., 254 Ill. App. 3d 445, 451, 627 N.E.2d 16, 20, (1Dist. 1993), the conflicting statements were in the deposition. The trial court granted summary judgment but the appellate court reversed stating that the contradictory statements appear in the deposition not a self serving affidavit and thus went to credibility and were not susceptible to a motion for summary judgment.

Ted Woerthwein
Woerthwein & Miller
1400 Three First National Plaza
70 West Madison Street
Chicago, Illinois 60602
(312) 654-0001
(866) 525-9460 FAX

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