Eidson v. Audrey's C T L, Inc. ( 1993 )

JUSTICE RARICK,

dissenting:

I respectfully dissent. The majority concludes that George Daiker’s deposition testimony cannot constitute a judicial admission because such testimony was hardly unequivocal. The majority reasons that because Daiker stated that he was asleep at the time of the accident and had no recollection thereof, he could not unequivocally and clearly state who was driving. I do not agree with this reasoning. In his deposition testimony, Daiker clearly and unequivocally states that he was not driving. When asked what happened next, Daiker said he did not remember because he fell asleep in the car and woke up three days later in the hospital. The majority’s conclusion that Daiker cannot unequivocally state that he was not driving because he was asleep makes sense only if we accept the possibility that, while asleep, Daiker took control of the car. That possibility I cannot accept. I believe that Daiker’s deposition testimony constitutes a judicial admission that he was not driving and would affirm the trial court’s grant of summary judgment with respect to count II.