                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           Kociscak v. Kelly, 2011 IL App (1st) 102811




Appellate 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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