tell us who you are in who you represent please call the case by especially not taking into consideration both the police record by the investigating officer or his deposition testimony regarding that report he trial court appeared to find if you obviously needed quote firsthand knowledge of an intersection collision that occurred in december i believe of two thousand and seven the defendant was heading southbound on land or road and collided with  as passed recollection recorded and also another basis was that his his testimony about his record contained the admissions of a party opponent that is the deceased declarant there is some argument by the defendant concerning the dead man's act and as we've pointed out now replied we weren't quite sure how that had any impact on officers sandow and the reason for that is simple the dead man sat by as the testimony only of adverse parties or persons directly interested in the action and officers endo meets ny the criteria officers endo is not an adverse party he's a police officer works for the village of going to you and he has no pekin a very interested in the cause of action he doesn't take any money he's a salaried employee and no allegation of any personal interest has ever been made about him and to the extent that it can testify to the overall mechanical condition of his vehicle he can testify to the function of brake lights he can testify to weather conditions where his feet were in his car or whether he heard a sound or not lally two forty one illinois color third six ninety two so i don't think that the dead man's act is where we should begin what we should begin is taking a look at the two cases the case that the defendant relies on the taylor case and the dissection of the taylor case by the loaning case which is listed in detail on page ten of our opening brief i this court went out of its way and learning to make it clear that even though the taylor case quote creates the impression that not even statements of the victim recorded in a police report would be admissible this aspect election recorded that is not the law  and i think that what happened here is that the trial judge was looking at the taylor case and i don't believe the law man case was considered and the first three there's no dispute about that is the one the witness had no independent recollection to the report itself fails to refresh that recollection three facts in the report were recorded at the time of the occurrence  soon thereafter and these were recorded he interviewed the drivers at the time of the accident he and his partner but he the record is clear he stated that he tell he he would have talked to both drivers  and so the question is the truth anacharis accuracy of the report was it was it established and i believe that in this particular case the only negative to that is this requirement by the trial judge of first hand knowledge in fact there was first hand knowledge of officers and zero testified that he spoke to both drivers that's a deposition twenty one  that one of the investigating officers would testify that any statements taken yet in emergency room are those of the victim unless otherwise noted in the report we don't really have it here do we i know you are what do you but we have something very close to that because he said that the fact that he issued one ticket in this case based on his practice indicates that number one that the person who we see the ticket made an admission and number two that never issues a ticket without speaking to the parties any never issues he always issues two tickets and lets the court decide if there is some ambiguity about who's at fault in this particular case the police report  states that  well we use it because it is past recollection recorded he testified that he spoke to the woman and testified that he spoke to my client and he issued her a ticket we don't know there was a question race we don't know whether you know what proceedings if any occurred on the ticket but we do know that he spoke to both of these individuals and i don't believe under warning much more is amendment right to confront witnesses i don't believe in civil cases there certainly isn't criminal cases so there were the lot harder to get evidence in normal cases and still so you prefers to follow luck nane and her own anan you think that's close enough a question of summary judgment which is as we repeat all the time a drastic when any opposition is simply that need the issues raised concerning  report the police record in the officer's testimony regarding that report is a question that goes to the weight to be given to it by the trier of fact i did defendant wants to categorize it as a question of reliability and that should be completely byard courses with more said everything should go to the jury but the proper instruction and this particular case that's that's our position that it a try your fact should listen to the officers testimony cross examination will establish some of the points that you've made and a new jury can weigh dad and it's in its decision as to whether or not to find life villany well you're you're removing from the court it's from the drivers of the two vehicles and beyond that defense counsel didn't ask the officer if his report was a was a lie or  on that level there was no attack on his on his testimony that he spoke to both drivers the question here is the only question here is what the trial judge said which is whether or first hand knowledge novice or testified that he spoke to both drivers and created his report as a consequence of that he testified that the fact that his report clearly states that one driver entered the intersection is in his practice a comment that would have been a statement made by the driver of the car that hit my client's vehicle that would be misspelling and there is no rather  as i understand it you put a witness on and you are vouching for him and the defendant didn't didn't attack that and neither did the tragedy doesn't say anywhere that he doesn't believe officers that he have enough first hand knowledge and our position is simply that first hand knowledge is a in attempt to graft the taylor kind of argument into the situation and ignores  basically the defendants position is that how can you definitely attribute this statement to to the deceased that is the statement that vehicle disregarded the light and the officers testimony was that he issued her a ticket and that that is his standard practice where someone has made the mission of a violation of a traffic  l device and because of the very concrete we're talking about and i believe that this underscores the ride this case should go to a jury to let them determine what kind of weight to place on the granted summary judgment for the a stay the decision was correct because the plaintiff did not and cannot produce any evidence to show that the defendant was negligent and therefore summary judgment for the defendant is proper couple principles to keep in mind when viewing this case first of all the mere happening of an event does not entitle the plaintiff to recover it must produce something more some evidence to show that the defendant was negligent in addition the tr judge fine it was just i'm sorry this officers nearer than the police report why can't we consider that an admission by the deceit well i ran the stated it's simply a narrative it's the officers narrative stating that you know one disregarded the traffic control signal so therefore there's no there's no statement per se that can be attributed to either party and therefore can't be a statement of a party it's merely the officer statement furthermore there's no doubt here that the dead man's act and they use sleep bars the plaintiff from testifying to facts within the to seaton's present i believe that's in disputed and one of the the overriding fact to be considered is whether or not he defended disregarded a red and the state contends that under rule one i do want a deposition that may only be used to contest a summary judgment motion if it meets the affidavit requirements including the requirement that it be nate made on the personal knowledge of the deponent here as we to be personality again that phrase comes from a second which with a proposition also cites criminal cases where again this is the standards are much more stringent than in civil i suppose both taylor and like name refer to the idea of the before elements in the first element is lack of any dependent recollection with us regarding the occurrence number two failure to report refers to recollection three reporting the facts and report of the time the occurrence for est off pronouncing that wrong the the officers made a offer of proof that the statement was that of the the plaintive here we have no such offer of proof that can even be made i believe it's the the officers testimony that he doesn't know which statement is attributable to either party he simply states that he usually would have spoken with both parties and then form this police report issued as citations that way although it is important note that at the time been admissible to contest a summary judgment no foundation can be laid for a pass recollection recorded that's why pass recollection recorded here is an applicable furthermore as i said previously this is not a statement against interest because there is no statement attributable to the defendant no statement attributable to the plate this we don't know which party said what it's it's entirely possible that officers handle mixed up the statements of both parties  just because officer sandow would say i would never issue a ticket unless i you know both parties were in agreement that's not necessarily doesn't really prove that the deceit in herself ran the red light when both parties went through it and i think that's the the main point to look at here is officers and his lack of first hand knowledge do do most other states have the dead man thing you know i really seen three an awful doctrine to occurred in the way that the plaintiff is asserting the defendant by virtue of be deceased had doesn't have the ability to testify as to what they have served personally or what may have occurred there's certainly an issue here as to ain and first hand knowledge i think that defendant has perhaps argued too much when he talks about first hand knowledge first of all the officer testified that he saw the position of vehicles he was there he's the one who ordered the paramedics he's the one who assessed the damage to the vehicles there's nothing nothing in this record indicates nor does loaning permit slicing and dicing police reports as to who said what it's very clear that the officer report does not have to say who said what but in this case he testified that he wouldn't put in certain material for talking to the deceased defendant argument would eliminate the reason for police reports why do we have these things in the first place if if they're to be utterly disregarded now the court the defendant has indicated that you know this it's only in the narrative section of the report that officer sandow indicated that i misspoke when violated attraction that's not true if you lower right hand corner it says contributory causes and he has twenty five written in a box under can primary cause of the accident and he testifies at the deposition of page twenty seven that that is disregarding the traffic signals that's the primary cause that at the top of the traffic report is under a category d r v a he has three in there and he testifies that his deposition that that means that unit one disregarded a control device and that's a deposition thirty so this isn't just a matter of a narrative which crafts will slice and dice this is the police report which was completed and it's on contradict it was completed a