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Marian Kociscak v. Mary Kelly

December 13, 2011

MARIAN KOCISCAK,
PLAINTIFF-APPELLANT,
v.
MARY KELLY, AS ADMINISTRATOR OF THE ESTATE OF CAROLE H. BOWEN, DECEASED,
DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 08 L 62028 The Honorable Roger G. Fein, Judge Presiding.

The opinion of the court was delivered by: Justice Harris

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 herself 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.

¶ 3JURISDICTION

¶ 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, 2007, at an intersection in Glenview, Illinois. In her 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 ...


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