Kociscak v. Kelly
962 N.E.2d 1062
Ill. App. Ct.2011Background
- Kociscak filed a single-count negligence action arising from a December 27, 2007 automobile collision with decedent in Glenview, Illinois.
- Decedent died July 2009 during the litigation; Kelly was appointed special representative/personal representative for purposes of the suit.
- Kelly, moving for summary judgment in May 2010, argued there was no evidence of decedent’s negligence and that plaintiff was barred from testifying under the Dead-Man’s Act.
- Kociscak countered with police officer deposition and the officer’s report, arguing admissions and past recollection evidence could prove fault.
- Circuit court granted summary judgment, excluding the officer’s deposition and report as past recollection and not admissible as party admissions.
- On appeal, the court affirmed, holding no genuine issue of material fact and that plaintiff could not establish decedent’s negligence due to Dead-Man’s Act and evidentiary deficiencies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of past recollection evidence | Officer Zando’s deposition and report fit past recollection recorded. | They lack firsthand knowledge and proper foundation. | Excluded; no admissible past recollection; summary judgment proper. |
| Admissibility of decedent’s statements as party admissions | Decedent’s statements to Zando constitute admissions by a party opponent. | No admissible statements attributed to decedent in the record. | Not admitted; cannot prove fault via admission. |
| Impact of Dead-Man’s Act on plaintiff’s ability to prove negligence | Evidence from officer and report could establish decedent’s fault. | Plaintiff barred from testifying; no independent proof of decedent’s negligence. | Plaintiff cannot establish prima facie negligence; summary judgment affirmed. |
Key Cases Cited
- People v. Watkins, 98 Ill. App. 3d 889 (Ill. App. 2d Cir. 1981) (police reports admissible as past recollection when foundation met)
- Roeseke v. Pryor, 152 Ill. App. 3d 771 (Ill. App. 1st Dist. 1987) (past recollection prerequisites; firsthand knowledge required)
- Taylor v. City of Chicago, 114 Ill. App. 3d 715 (Ill. App. 1st Dist. 1983) (four elements for past recollection recorded)
- Payne v. Mroz, 259 Ill. App. 3d 399 (Ill. App. 2d Dist. 1994) (proximate cause requires reasonable certainty)
- Smith v. Tri-R Vending, 249 Ill. App. 3d 654 (Ill. App. 1st Dist. 1993) (liability cannot be premised on speculation)
- Williams v. Manchester, 228 Ill. 2d 404 (Ill. 2008) (summary judgment standard; de novo review)
- Loughnane v. City of Chicago, 188 Ill. App. 3d 1078 (Ill. App. 1st Dist. 1989) (reiterates past recollection framework)
- Allegro Servs., Ltd. v. Metropolitan Pier & Exposition Auth., 172 Ill. 2d 243 (Ill. 1996) (summary judgment standards; liberally construed pleadings)