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03/30/94 VINCENT JONES v. TATYANA BEKER

March 30, 1994

VINCENT JONES, PLAINTIFF-APPELLANT,
v.
TATYANA BEKER, INDIVIDUALLY AND D/B/A BECK'S AUTO SALES, AND BECK'S AUTO SALES, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Richard Elrod, Judge Presiding.

Cerda, Tully, Rizzi

The opinion of the court was delivered by: Cerda

JUSTICE CERDA delivered the opinion of the court:

This appeal arises from a personal injury action. While standing on the side of the street, plaintiff, Vincent Jones, was struck by an automobile being driven by Tom Mc Clennan. The automobile was owned by Jaime Alferes and was repossessed on behalf of defendants, Tatyana Beker and Beck's Auto Sales (Beck's). Summary judgment was entered in favor of defendants, Beker and Beck's, and the remaining defendants were voluntarily dismissed by plaintiff.

On appeal, plaintiff asserts that (1) summary judgment was improper because defendants should be held liable for the acts of therepossessor, who was acting as defendants' agent when he committed a breach of the peace during the repossession; (2) the trial court erred in striking the police report and portions of a police officer's affidavit; (3) defendants should be held liable for hiring an unlicensed, incompetent repossessor; (4) defendants should be held strictly liable for the repossessor's action under the doctrine of ultrahazardous or abnormally dangerous activity; and (5) defendants should be held liable for the acts of the repossessor under the doctrine of negligent entrustment. Based on the following reasoning, we affirm.

In November 1986, Alferes bought an automobile from Beck's, which is co-owned by codefendant Beker, pursuant to an installment sales contract. Beck's retained a security lien in the automobile and a right of repossession.

After Alferes stopped making payments, Beker followed her standard procedure of contacting Condor Recovery to repossess the automobile. Beker called Max at Condor Recovery on April 8, 1987. She had gotten Max's name from other dealers and neighbors, but did not know his last name. Condor Recovery had previously repossessed six or seven automobiles for Beck's and was paid on a per job basis. Beker had no knowledge regarding who actually repossessed the automobiles, but Max returned the automobiles after they had been repossessed. Beker did not direct or specify how or when the automobiles were to be repossessed. According to Beker, Tom Mc Clennan had no relationship with Beck's and had no authority to repossess the automobile on its behalf.

On April 10, 1987, Beker was notified that Condor Recovery had repossessed the automobile. That day, Beker sent Alferes a notice of repossession. Two days later, plaintiff was injured when he was struck by the automobile, which was being operated by Mc Clennan.

According to the affidavit of Mark Rzab, who was one of the investigating police officers, plaintiff was lying on top of the automobile roof in an injured state when Officer Rzab arrived at the accident scene. Mc Clennan was intoxicated and was arrested for driving under the influence of alcohol and leaving the scene of an accident. Officer Rzab stated that Mc Clennan told him that he was employed by B. J. Condor and the automobile was being repossessed by Beck's. A copy of the police report was attached to Officer Rzab's affidavit. The police report indicates that the report was prepared by other police officers. Officer Rzab's name does not appear on the two pages of the report, which contained information regarding Mc Clennan's repossession of a vehicle.

Summary judgment was entered in favor of defendants, and plaintiff dismissed all remaining defendants. Mc Clennan had died during the litigation.

Plaintiff argues on appeal that the trial court improperly struck those portions of Officer Rzab's affidavit that contained a copy of the police report and Mc Clennan's statement that he was employed by Condor Recovery. For the following reasons, we find that the statements were not admissible in evidence and the trial court properly struck them from the affidavit.

We reject plaintiff's argument that the police report was not presented as a business record and should have been admitted as past recollection recorded. Although police reports are not admissible as substantive evidence because they constitute hearsay or state Conclusions ( Baumgartner v. Ziessow (1988), 169 Ill. App. 3d 647, 655, 523 N.E.2d 1010), they can be admissible for limited purposes, including as past recollection recorded. ( People v. Garrett (1991), 216 Ill. App. 3d 348, 357, 576 N.E.2d 331.) However, a police report to be admitted as past recollection recorded, (1) the witness must have no independent recollection of the occurrence or event recorded; (2) the report must fail to refresh the witness's recollection; (3) the facts in the report must have been recorded at the time of the occurrence or soon thereafter; and (4) the truth and accuracy of the report must be established. Loughnane v. City of Chicago (1989), 188 Ill. App. 3d 1078, 1082, 545 N.E.2d 150.

We conclude that the police report attached to Officer Rzab's affidavit cannot be admitted as past recollection recorded because it was based on Officer Rzab's independent recollection of the result of his investigation of the accident scene. Furthermore, it was not being used for impeachment or to refresh his recollection. In addition, the report does not contain any statement of the driver regarding the repossession of the vehicle, only information obtained from the investigation. As a result, the trial court properly struck the police report.

Plaintiff also argues that Mc Clennan's statements to Officer Rzab were admissible as party admissions since Mc Clennan was an agent of defendants. To support his position, plaintiff mistakenly relies on City of Evanston v. Piotrowicz (1960), 20 Ill. 2d 512, 519, 170 N.E.2d 569, which establishes that an alleged agent can be called as a witness for the purpose of establishing an agency. The issue, however, is not whether Mc Clennan could be called as a witness, but whether his statement to Officer ...


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