Kociscak v. Kelly , 962 N.E.2d 1062 ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Kociscak v. Kelly, 2011 IL App (1st) 102811Appellate Court MARIAN KOCISCAK, Plaintiff-Appellant, v. MARY KELLY, as
Caption Administrator of the Estate of Carole H. Bowen, Deceased, Defendant-
Appellee.
District & No. First District, Second Division
Docket No. 1-10-2811
Filed December 13, 2011
Held In an action seeking damages arising from an automobile accident
(Note: This syllabus involving plaintiff and defendant’s decedent, the entry of summary
constitutes no part of judgment for defendant was upheld, notwithstanding plaintiff’s
the opinion of the court contention that the trial court erred by excluding the deposition testimony
but has been prepared of a responding police officer and the police report in granting summary
by the Reporter of judgment, since the deposition testimony and police report did not satisfy
Decisions for the the prerequisites for being admitted as evidence of a past recollection
convenience of the recorded, and furthermore, plaintiff was barred from testifying under the
reader.)
Dead-Man’s Act and could not make a prima facie showing of negligence
against decedent.
Decision Under Appeal from the Circuit Court of Cook County, No. 08-L-62028; the
Review Hon. Roger G. Fein, Judge, presiding.
Judgment Affirmed.
Counsel on Moran Law Group, of Chicago (John Thomas Moran, Jr., of counsel), for
Appeal appellant.
Ripes, Nelson Baggot & Kalobratsos, P.C., of Chicago (Jonathan T.
Koehler, of counsel), for appellee.
Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Quinn and Justice Connors concurred in the judgment
and opinion.
OPINION
¶1 Here we are called upon to determine whether the circuit court properly granted summary
judgment in favor of defendant Mary Kelly, as administrator of the estate of Carole H.
Bowen, deceased (Kelly). During the proceedings before the circuit court, Kelly was
appointed personal representative of Carole H. Bowen (decedent), who passed away from
unrelated health conditions during proceedings before the circuit court. Plaintiff Marian
Kociscak’s complaint sought personal injury damages from an automobile accident that
occurred at in intersection in Glenview, Illinois, on December 27, 2007, involving himself
and decedent. On appeal, Kociscak contends the circuit court erred by excluding deposition
testimony from the responding police officer and the police report in granting Kelly’s motion
for summary judgment.
¶2 We hold that the circuit court did not err in granting summary judgment in Kelly’s favor
because Kociscak cannot show evidence of negligence by the decedent. The circuit court did
not err in excluding the deposition testimony and police report of the responding police
officer because the report and accompanying testimony did not satisfy the prerequisites for
being admitted as evidence of a past recollection recorded.
¶3 JURISDICTION
¶4 On May 19, 2010, the circuit court granted Kelly’s motion for summary judgment. On
August 18, 2010, the circuit court denied Kociscak’s motion to reconsider. On September
13, 2010, Kociscak timely filed his notice of appeal. Accordingly, this court has jurisdiction
pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final
judgments entered below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).
¶5 BACKGROUND
¶6 On July 16, 2008, Kociscak filed a single-count complaint against decedent alleging
decedent negligently operated her vehicle causing an automobile collision on December 27,
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2007, at an intersection in Glenview, Illinois. In his complaint, Kociscak alleged, in relevant
part:
“2. On or about December 27, 2007, at approximately 11:03 a.m., [decedent] owned,
operated, managed, maintained and controlled a motor vehicle traveling southbound on
Landwehr Road at or near the intersection of Willow Road.
3. On said date, and at the time of the accident, [Kociscak] owned, operated,
managed, maintained and controlled a motor vehicle traveling eastbound on Willow
Road.
4. On said date, [decedent] had a duty to act with reasonable care and not to expose
[Kociscak] to an unreasonable risk of injury or harm.
5. At the time of the accident, the vehicle owned and operated by [decedent] caused
contact with [Kociscak’s] vehicle.
6. [Decedent] was negligent in one or more of the following respects:
a) Negligently and carelessly failed to keep a proper lookout for other vehicles
upon said roadway;
b) Negligently and carelessly failed to keep said vehicle under sufficient and
proper control;
c) Negligently and carelessly operated said vehicle in violation of the traffic lights
at said intersection;
d) Negligently and carelessly drove said vehicle at a greater rate of speed than
was reasonable and proper for the conditions and circumstances of said roadway;
e) Negligently and carelessly failed to equip and provide said vehicle with
adequate and proper brakes to stop or hold the movement of said vehicle.”
Kociscak further alleged that “[a]s a direct and proximate result of one or more of these
negligent acts and or omission” of decedent, she suffered “injuries of a personal and
pecuniary nature.”
¶7 On December 3, 2008, decedent filed her answer, urging the circuit court to dismiss the
complaint. Decedent alleged, as an affirmative defense, that Kociscak’s own negligent acts
and or omissions were the proximate cause of his injuries. On April 2, 2009, decedent filed
a counterclaim against Kociscak. In her counterclaim, decedent alleged Kociscak’s negligent
operation of his motor vehicle was the proximate cause of her injuries. In response to
decedent’s counterclaim, Kociscak filed an affirmative defense alleging decedent’s acts or
omissions to act were the proximate cause of his injuries. Kociscak urged the circuit court
to dismiss decedent’s counterclaim and enter judgment in his favor.
¶8 On June 3, 2009, decedent passed away due to causes unrelated to the automobile
accident at issue in this case. Decedent’s attorneys filed a motion to spread the record of
death and to have decedent’s sister-in-law, Mary Kelly, be named as the administrator and
personal representative for purposes of the lawsuit pursuant to section 2-1008(b) of the
Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-1008(b) (West 2008)). On July 8,
2009, the circuit court granted the motion and appointed Kelly as the administrator and
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personal representative of decedent for the remainder of the proceedings.1
¶9 On March 17, 2010, Kelly filed her motion for summary judgment pursuant to section
2-1005 of the Code (735 ILCS 5/2-1005 (West 2008)), alleging there is no genuine issue as
to any material fact. Kelly alleged that there was no evidence to support any of Kociscak’s
allegations of negligence. Specifically, Kelly argued Kociscak offered no evidence that
decedent “failed to keep a proper lookout, failed to control her vehicle, violated the traffic
lights at the intersection, drove at an excessive rate of speed, or failed to equip proper
brakes.” Kelly argued summary judgment was proper because decedent and Kociscak were
the only witnesses to the accident. Relying on section 8-201 of the Illinois Dead-Man’s Act,
Kelly claimed Kociscak should be barred from testifying regarding any actions after he
reached the intersection where the accident occurred. 735 ILCS 5/8-201 (West 2008). As
decedent and Kociscak were the only witnesses to the accident, Kelly contended that
Kociscak could not plead a prima facie case for negligence. Kelly attached to her motion
Kociscak’s complaint and her answer to Kociscak’s complaint, which included her
affirmative defenses.
¶ 10 Kociscak, in response to Kelly’s motion for summary judgement, argued that summary
judgment was improper based on statements made by Kelly in her motion for summary
judgment, which Kociscak characterized as judicial admissions, and the statements of the
responding police officer to the scene of the accident. Attached to his response were his own
answers to Kelly’s interrogatories, the traffic crash report prepared by Officer Heydo Zando
of the Glenview police department, and the deposition testimony of Officer Zando. Kociscak
argued that Kelly’s admissions as to the accident “relieved [Kociscak] of the necessity of
having to prove them at trial.” Kociscak contended that Kelly made admissions as to the
point of contact of the accident, damage to the vehicles and the setting in which the collision
took place. Based on these admissions, Kociscak argued that he only had to show evidence
as to fault. In arguing that decedent was at fault, Kociscak relied on the report and testimony
of the responding police officer to the scene of the accident, Officer Zando. Officer Zando’s
report, in relevant part, stated: “[Kociscak] approached into intersection while traffic signal
he faced was green. [Decedent] disregarded red traffic signal she faced and crashed into
[Kociscak] by the driver’s side fender and door.”
¶ 11 In his deposition, Officer Zando testified he and his field training officer, Officer
Cholewinski, were the responding officers to the accident involving decedent and Kociscak.
Officer Zando testified that at the time of the incident, he was a recent graduate of the police
academy and, thus, Officer Cholewinski rode in his patrol vehicle with him and “most likely
played a big role” in helping him complete his report and investigation. He testified that
typically his reports are completed at the scene of the accident, but he could not recall if he
1
We note that section 2-1008(b) of the Code allows for a “special representative” be
appointed for the deceased, not an “administrator.” 735 ILCS 5/2-1008 (West 2008). Decedent’s
attorney’s motion and the subsequent order entered by the circuit court referred to Kelly as the
“administrator and personal representative.” According to section 2-1008(b) of the Code, Kelly
should have only been appointed as the “special representative” of decedent, not the “administrator
and special representative.” 735 ILCS 5/2-1008 (West 2008).
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did so for the accident in question. Officer Zando testified that he had no independent
recollection of the accident in question. Officer Zando read from his report and the diagram
of the crash in the report in giving his deposition testimony. He testified that he did not know
of any other witnesses to the accident. He could not recall what the parties to this accident
told him after the accident. He testified that after responding to an accident, he writes a
narrative statement in the crash report. In this case, Officer Zando’s narrative states that
Kociscak approached the intersection facing a green light while decedent approached the
intersection facing a red traffic signal. Based on the narrative in the crash report, Officer
Zando testified that decedent disregarded the red traffic signal and crashed into Kociscak’s
driver-side fender and door. He testified further that, based on his report, he issued a citation
to decedent, but not Kociscak. The citation was for disobeying a red light. When asked about
the court date on the ticket he issued, Officer Zando could not recall if he attended the
proceedings.
¶ 12 On cross-examination, Officer Zando admitted he had no independent recollection of the
incident, nor could he remember speaking to either party at the scene of the accident. He
admitted that his deposition testimony was based on the police report he had prepared.
Officer Zando also admitted that looking at the police report, he did not know specifically
what either party stated to him. He also admitted that it is possible that Officer Cholewinski
spoke to one of the drivers, as he does not recall speaking to either.
¶ 13 In her reply in support of her motion for summary judgment, Kelly argued that the police
report prepared by Officer Zando is not admissible under the recorded recollection exception
to the hearsay rule because the relevant information in the police report is not based on
Officer Zando’s firsthand, or personal, knowledge. Kelly argued that Officer Zando admitted
to arriving on the scene after the accident and that the report does not contain any statements
from either party. Instead of personal knowledge, Kelly characterized the police report as
containing only Officer Zando’s narrative of the incident. Kelly also stressed that Officer
Zando could not speak to the report’s accuracy and admitted that his field training officer,
Officer Cholewinski, may have supplied some of the information in the report. Kelly
contended that because Kociscak did not have any admissible evidence to prove his claim
of negligence, summary judgement in her favor was proper. Kelly, in her reply, reiterated that
there is no one available to testify regarding decedent’s alleged negligence as decedent is
deceased and Kociscak is prohibited from testifying under section 8-201 of the Illinois Dead-
Man’s Act. 735 ILCS 5/8-201 (West 2008).
¶ 14 On May 19, 2010, the circuit court, after hearing arguments of counsel and reviewing the
pleadings of the parties, issued a written order granting Kelly’s motion for summary
judgment. The court found Kociscak failed to present any evidence of decedent’s negligence.
Accordingly, the circuit court found Kociscak would be unable to prove decedent was
negligent by a preponderance of the evidence at trial and, thus, Kelly’s motion for summary
judgment must be granted.
¶ 15 On June 16, 2010, Kociscak filed a motion asking the court to reconsider its granting of
summary judgment in Kelly’s favor. In his motion, Kociscak argued that the circuit court
erred in its application of the law. Specifically, Kociscak contended the circuit court erred
in finding there was no admissible evidence as to the existence of fault on the part of
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decedent. Kociscak argued further that any statement made by decedent to Officer Zando
qualified as a party admission and, thus, can be admitted as an exception to the hearsay rule
and used as evidence against Kelly. Kociscak maintained that because Officer Zando testified
that he would not have written in his report that decedent had disobeyed the red light unless
decedent had told him so, Officer Zando’s testimony was circumstantial evidence of
decedent’s admission. In his motion, Kociscak stressed that Kelly’s motion for summary
judgment should have been denied because “[i]t is not necessary for Officer Zando to have
witnessed the accident; merely that he be a witness to the [decedent’s] admission of running
the light.” Kociscak raised no issues concerning the circuit court’s application of the Illinois
Dead-Man’s Act.
¶ 16 Kelly responded, arguing Kociscak’s motion to reconsider should be denied because
Kociscak “failed to offer any new evidence or legal bases for his Motion.” Kelly argued that
Officer Zando’s testimony that he would not have written that decedent ran a red light unless
decedent had made that statement to him does not establish the accuracy of the police report,
such that it may be properly admitted.
¶ 17 In his reply, Kociscak argued that Officer Zando’s testimony regarding his police report
is some evidence of fault on the part of decedent, such that summary judgment was improper.
¶ 18 On August 18, 2010, the circuit court, after considering the arguments of the parties and
reviewing the pleadings, issued a written order denying Kociscak’s motion to reconsider. The
circuit court found that it had not erred in its application of the law. Specifically, the circuit
court found that it properly applied the elements of the past recollection recorded exception
to the hearsay rule and that it understood Kociscak’s position with respect to the significance
of the police report. The circuit court found further:
“[It] previously found in effect and continues to be of the opinion that [Kociscak]
may not have Officer Zando testify as to what [decedent] allegedly said to him (even if
it was an admission), nor may the police report be utilized by [Kociscak], to defeat the
motion for summary judgment or at trial. Since Officer Zando cannot competently testify,
[Kociscak] has not presented any evidence of [decedent’s] negligence, and is without
legal means to do so.”
¶ 19 On September 13, 2010, Kociscak timely filed his notice of appeal, urging this court to
reverse the circuit court’s granting of summary judgment in favor of the administrator.
¶ 20 ANALYSIS
¶ 21 Before this court, Kociscak argues that the circuit court erred in granting Kelly’s motion
for summary judgment because Officer Zando’s deposition testimony and the police report
he made are admissible under the past recollection recorded exception to the hearsay rule.
Kociscak further argues that the circuit court erred in granting Kelly’s motion for summary
judgment because decedent’s alleged statement to Officer Zando that she ran a red light at
the intersection is admissible as an admission by a party opponent. Kociscak does not dispute
the circuit court’s conclusion that he is barred from testifying under the Illinois Dead-Man’s
Act.
¶ 22 Kelly argues summary judgment was proper because Officer Zando’s deposition
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testimony and his police report are not admissible under the past recollection recorded
exception to the hearsay rule because Officer Zando could not identify statements made by
the parties at the scene of the accident and, thus, cannot establish the truth and accuracy of
his report. Kelly also argues that Officer Zando’s testimony established that he had no
personal knowledge of the accident and, thus, Kociscak cannot satisfy the elements of the
past recollection recorded exception to the hearsay rule. Kelly further argues that Kociscak
cannot satisfy the elements of the admission by a party opponent exception to the hearsay
rule because Officer Zando’s testimony only speculated what decedent said as he had no
independent recollection of the incident nor did the report distinguish between statements
made by decedent and statements made by Kociscak.
¶ 23 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 judgment as a matter of law.” 735 ILCS 5/2-1005(c)
(West 2008). In ruling on a motion for summary judgment, the circuit court is to determine
whether a genuine issue of material fact exists, not try a question of fact. Williams v.
Manchester, 228 Ill. 2d 404, 417 (2008). A party opposing a motion for summary judgment
“must present a factual basis which would arguably entitle him to a judgment.” Allegro
Services, Ltd. v. Metropolitan Pier & Exposition Authority, 172 Ill. 2d 243, 256 (1996).
When determining whether a genuine issue of material fact exists, the pleadings are to be
liberally construed in favor of the nonmoving party. Williams, 228 Ill. 2d at 417. “Summary
judgment is to be encouraged in the interest of prompt disposition of lawsuits, but as a drastic
measure it should be allowed only when a moving party’s right to it is clear and free from
doubt.” Pyne v. Witmer, 129 Ill. 2d 351, 358 (1989). We review summary judgment rulings
de novo. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995).
¶ 24 A plaintiff alleging negligence must allege facts establishing that the defendants owed
the plaintiff a duty of care, that they breached that duty of care, and that the alleged breach
proximately caused the plaintiff’s injuries. Iseberg v. Gross, 227 Ill. 2d 78, 86-87 (2007).
This court, in ruling on a motion for summary judgment in a personal injury action based in
negligence after a car accident, held:
“The mere happening of an accident does not entitle a plaintiff to recover. A plaintiff
must come forward with evidence of negligence on the part of defendant and with
evidence that the defendant’s negligence was a proximate cause of the plaintiff’s injuries.
Proximate cause can only be established when there is a reasonable certainty that the
defendant’s acts caused the injury.” (Emphasis in original.) Payne v. Mroz, 259 Ill. App.
3d 399, 403 (1994).
“Liability must be premised on evidence and not on conjecture or speculation.” Smith v. Tri-
R Vending, 249 Ill. App. 3d 654, 657 (1993).
¶ 25 Generally, written police reports are not admissible in Illinois because they contain
conclusions or are hearsay. People v. Watkins, 98 Ill. App. 3d 889, 900 (1981); see also
People v. Garrett, 216 Ill. App. 3d 348, 357 (1991) (“a police report summarizes information
obtained from various sources during the course of an investigation. Consequently, they are
the product of secondhand knowledge as to the reporting officer and, hence, hearsay.”).
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However, police reports have been admitted into evidence, provided a proper foundation has
been laid, as evidence of a past recollection recorded or for use in impeachment. Watkins, 98
Ill. App. 3d at 900; Wilkinson v. Mullen, 27 Ill. App. 3d 804, 807 (1975).
¶ 26 Evidence admitted as a past recollection recorded must satisfy the following
prerequisites: “(1) the witness had firsthand knowledge of the recorded event; (2) the written
statement was made at or near the time of the event and while the witness had a clear and
accurate memory of it; (3) the witness lacks present recollection of the event; and (4) the
witness can vouch for the accuracy of the written statement.” Roeseke v. Pryor, 152 Ill. App.
3d 771, 779-80 (1987). We note that this court has described the elements of past
recollection recorded using different terminology in the past. For example, in Johnson v. City
of Chicago, 103 Ill. App. 3d 646, 647-48 (1981), and in People v. Andrews, 101 Ill. App. 3d
808, 811 (1981), this court used similar language as in Roeseke above. However, in Taylor
v. City of Chicago, 114 Ill. App. 3d 715, 717 (1983), this court described the requirements
for evidence to be admitted as a past recollection recorded as: “(1) lack of any independent
recollection of the witness regarding the occurrence; (2) failure of the report to refresh the
recollection of the witness; (3) recording of the facts in the report at the time of the
occurrence or soon thereafter; and (4) establishment of the truth and accuracy of the report
when made.” See also Loughnane v. City of Chicago, 188 Ill. App. 3d 1078, 1082 (1989).
¶ 27 Our review of the above authorities show that they are consistent despite using different
terminology. In Taylor and Loughnane, this court does not specifically state the element that
“the witness had firsthand knowledge of the recorded event” as in Roeseke. In Roeseke, this
court lists the final element as “the witness can vouch for the accuracy of the written
statement,” as opposed to Taylor, which states the final element as the “establishment of the
truth and accuracy of the report when made.” Roeseke, 152 Ill. App. 3d at 779-80; Taylor,
114 Ill. App. 3d at 717. We do not believe these differences cause a conflict in the authorities
because a witness must testify to facts of personal knowledge. Diamond Glue Co. v.
Wietzychowski, 227 Ill. 338, 344 (1907) (“A witness can testify only to such facts as are
within his own personal knowledge and recollection, but there are cases where writings may
be used to assist his recollection and recall to memory forgotten facts.”); Roeseke, 152 Ill.
App. 3d at 780 (“Critical to the use of the past-recollection-recorded doctrine is that the
testifying witness have ‘firsthand’ or personal knowledge of the events disclosed in the
report.”). The final element that the “establishment of the truth and accuracy of the report
when made,” as stated in Taylor, could not be satisfied if the witness testified regarding facts
outside his or her personal knowledge. Although this court has used different terminology
to describe the requirements to have evidence admitted as a past recollection recorded, we
do not believe our past decisions conflict with one another.
¶ 28 This court in Roeseke v. Pryor, 152 Ill. App. 3d 771 (1987), addressed a factual scenario
similar to this case. In Roeseke, a police officer and his partner had compiled a police report
after responding to the scene of an automobile accident. Id. at 776. The circuit court barred
the police officer from testifying about several portions of the report. Id. On review, this
court upheld the circuit court’s ruling, stating:
“Officer Stachula was asked to testify from a police report that contained information
that was clearly outside his firsthand knowledge. The record reveals that the police report
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sought to be introduced by the defendants through Stachula was not a report of Stachula’s
personal findings, but was rather a compilation of information gathered by both Stachula
and his partner from a multitude of sources. Stachula could not determine whether the
information (sought to be introduced by the defendants) was gathered from Dorenzo,
from hospital personnel, from other drivers at the scene, from people he called on the
phone, or from other drivers at the hospital. In Stachula’s own words, the police report
in question was ‘pieced together from all the sources.’ Furthermore, Stachula’s partner
was never called to testify even though he admittedly assisted in preparing the report.
Under these circumstances, we agree with the trial court that the police report constituted
inadmissible hearsay.” Id. at 780.
¶ 29 As in Roeseke, Officer Zando in this case testified regarding events outside his personal
knowledge. He could not recall speaking to either party, nor did he put any statements made
by the parties into his report. Officer Zando, like the police officer in Roeseke, gathered the
information for his report with his partner, Officer Cholewinski, who did not supply any
deposition testimony. Officer Zando testified that Officer Cholewinski “most likely played
a big role” in helping him complete his report. On cross-examination, he also admitted that
it was “possible” that Officer Cholewinski either spoke to one of the parties or at least got
some of the information from one of the parties. Although Officer Zando testified that the
report was in his handwriting, he could not recall where the information came from. He could
not recall speaking to either party, nor did he include any statements made by either party in
the report. Kociscak cannot prove that Officer Zando’s testimony is based on the officer’s
firsthand knowledge of the report as Officer Zando cannot even say that he witnessed the
information that was presented in his report. Based on his testimony, there is a very high
probability that at least some of the information was collected by Officer Cholewinski.
¶ 30 Most importantly, a proper foundation was not laid for Officer Zando’s deposition
testimony because he never vouched for the truth and accuracy of the report, one of the
prerequisites for having evidence admitted as a past recollection recorded. Roeseke, 152 Ill.
App. 3d at 779-80; see also Taylor, 114 Ill. App. 3d at 717 (“establishment of the truth and
accuracy of the report when made”). Officer Zando, in his deposition testimony, never
vouched for the truth or accuracy of his report. Nor could he, considering that he was not
even sure he gathered all of the information. He testified that Officer Cholewinksi “most
likely played a big role” in helping him complete his report and admitted that it was
“possible” Officer Cholewinski gathered some of the information for his report. Officer
Zando’s testimony cannot be admitted as a past recollection recorded because Kociscak
never laid the proper foundation for its admission.
¶ 31 Kociscak’s final argument is that decedent’s alleged statement to Officer Zando that she
ran a red light before the accident should have been admitted into evidence as an admission
by a party opponent. We disagree with Kociscak’s characterization of Officer Zando’s report
as containing an admission made by decedent. When asked “what each of the individual
drivers relayed to you as to how the accident happened,” Officer Zando responded that he
could not “recall as far as what they specifically told me.” On cross-examination, Officer
Zando admitted that he did not recall speaking to either party. Officer Zando also admitted
on cross-examination that nowhere in his report is there any statement made by either party.
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It appears Kociscak’s argument is based on the narrative contained in Officer Zando’s police
report. However, as shown above, the police report was properly excluded by the circuit
court. Additionally, the report does not contain any admissions by decedent. All it contains
is a narrative that may have been gathered by either Officer Zando or Officer Cholewinski
or both. Kociscak’s argument appears to be that decedent made an admission to either of the
responding officers, that Officer Zando did not reduce it to writing, but that he based his
narrative on it. We are not prepared to find negligence on the part of decedent based on
speculation. Smith, 249 Ill. App. 3d at 657 (“Liability must be premised on evidence and not
on conjecture or speculation.”).
¶ 32 We hold that the circuit court in this case did not err in granting summary judgment in
Kelly’s favor. The circuit court properly excluded Officer Zando’s police report and
accompanying deposition testimony, where it did not meet the prerequisites for being
admitted as evidence of a past recollection recorded. We disagree with Kociscak’s
speculative argument that Officer Zando’s police report contained an admission based on
Officer Zando’s testimony and the report itself. Kociscak did not dispute, either before this
court or the circuit court, that he is barred from testifying under the Illinois Dead-Man’s Act.
As he is the only available witness to the accident, he cannot make a prima facie case of
negligence against decedent. The circuit court did not err when it granted Kelly’s motion for
summary judgment.
¶ 33 CONCLUSION
¶ 34 The judgment of the circuit court is affirmed.
¶ 35 Affirmed.
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