Culver v. Velcor, 2-92-1063

• Decision Date: 15 July 1993
• Docket Number: No. 2-92-1063,2-92-1063
• Citation: Culver v. Velcor, 616 N.E.2d 1013, 247 Ill.App.3d 589 (Ill. App. 1993)
• Parties: , 186 Ill.Dec. 571 Kenneth CULVER et al., Plaintiffs-Appellants, v. Sarah VELCOR et al., Defendants-Appellees.
• Court: Appellate Court of Illinois

Page 1013

616 N.E.2d 1013

247 Ill.App.3d 589, 186 Ill.Dec. 571

Kenneth CULVER et al., Plaintiffs-Appellants, v. Sarah VELCOR et al., Defendants-Appellees.

No. 2-92-1063.

Appellate Court of Illinois Second District.

July 15, 1993.

Walter D. Braud, Duane Thompson, Braud/Warner, Ltd., Rock Island, for Kenneth Culver.

Paula M. Stenlund, Dubuque, IA, Sarah Hansen Sotos, Knight, Hoppe, Fanning & Knight, Ltd., Des Plaines, for Sarah Velcor.

John J. Kohnke, Knight, Hoppe, Fanning & Knight Ltd., Des Plaines, for Jo Daviess County.

Presiding Justice INGLIS delivered the opinion of the court:

Plaintiffs, Kenneth Culver, Jackie Culver and Olive Culver, appeal after the trial court dismissed that portion of their complaint, counts IV, V and VI, filed against defendant, Jo Daviess County (the county). Sarah Velcor (correctly spelled Velsor) is a defendant not participating in this appeal. Plaintiffs contend that the trial court erred in allowing the county's motion to dismiss pursuant to section 2-615 of the Civil Practice Law (the Code) (Ill.Rev.Stat.1991, ch. 110, par. 2-615 (now 735 ILCS 5/2-615 (West 1992))).

The well-pleaded facts are taken as true and are taken from counts IV, V and VI of plaintiffs' first amended complaint. On or about July 1, 1990, plaintiffs were driving in a westerly direction on Council Hill Road in Galena, Jo Daviess County. At the intersection of Council Hill Road and Route 84, plaintiffs' vehicle collided with Velsor's vehicle, which was traveling in a northerly direction on Route 84. Prior to July 1, 1990, there was a stop sign for westbound travelers on Council Hill Road at Route 84, which did not exist on that date because it had been knocked down or removed.

Plaintiffs further alleged that the county is a municipal corporation that owned, controlled and maintained certain roads, particularly Council Hill Road. Plaintiffs alleged that the county had a duty, pursuant to section 11-304 of the Illinois Rules of the Road (Ill.Rev.Stat.1989, ch. 95 1/2, par. 11-304 (now 625 ILCS 5/11-304 (West 1992))), to maintain and post traffic signs to notify the motoring public of dangerous conditions that exist on the roadway. The county had been notified by a county resident 48 hours before the accident in question that the stop sign was down. Plaintiffs claimed that the county breached one or more of the following duties:

"a. Failed to put a stop sign in the appropriate location on or before the intersection with Route 84 or to notify the State of Illinois that the stop sign was down b. Failed to take temporary emergency measures to notify the motoring public of the down stop sign;

c. Failed to make the roadway reasonably safe for the traveling public at the aforesaid location."

As a proximate cause of the county's alleged negligence, all three plaintiffs were severely injured.

The county then filed a motion to dismiss counts IV, V and VI of plaintiffs' first amended complaint. The county contended that the State of Illinois was responsible for erecting and maintaining stop signs at the intersection of Council Hill Road and Route 84; that the first amended complaint failed to contain sufficient facts to state a cause of action; that the statute cited by plaintiffs does not create a duty owed by the county to plaintiffs; that the county owed plaintiffs no duty to initially post traffic signs, make improvements or warn of the condition complained of; and that the county is immune from liability under the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act) (Ill.Rev.Stat.1989, ch. 85, par. 1-101 et seq. (now 745 ILCS 10/1-101 et seq. (West 1992))).

After hearing arguments from both parties, the trial court noted that the factual situation was identical to that in Dinges v. Gabardi (1990), 202 Ill.App.3d 732, 147 Ill.Dec. 873, 560 N.E.2d 21, in which this court found that Kane County had a duty to warn of the dangerous condition. The trial court further noted that Dinges was modified by Castorena v. Browning-Ferris Industries (1991), 217 Ill.App.3d 328, 160 Ill.Dec. 309, 577 N.E.2d 185, which held that a public entity is immune from liability for initially failing to warn of a dangerous condition unless the public entity had prior notice of the dangerous condition. Because the trial court found that the county had a "common law" duty to warn of a dangerous condition when it had actual notice that a dangerous condition existed, the trial court denied the county's motion to dismiss counts IV, V and VI of plaintiffs' first amended complaint, but struck certain portions of the pleading. The trial court also certified a question of law, the applicability of sections 3-104 of the Tort Immunity Act, pursuant to Supreme Court Rule 308 (134 Ill.2d R. 308), if proper application was made by the parties to appeal to the supreme court.

The county then filed a motion to reconsider in light of West v. Kirkham (1992), 147 Ill.2d 1, 167 Ill.Dec. 974, 588 N.E.2d 1104, a supreme court case that the county contended virtually overruled the Dinges case. The trial court held that West and Wood v. Village of Grayslake (1992), 229 Ill.App.3d 343, 170 Ill.Dec. 590, 593 N.E.2d 132, "effectively eliminated" the rationale relied upon by the trial court when it denied the county's motion to dismiss. Thus, the trial court, on reconsideration, granted the county's motion to dismiss counts IV, V and VI of plaintiffs' first amended complaint. After the trial court ordered that there was no just reason for delaying enforcement or appeal of that order, plaintiffs filed a timely notice of appeal.

Plaintiffs contend that immunity is unavailable to the county because it has a duty to warn motorists of dangerous conditions and to maintain roads in a reasonably safe condition. Section 3-104 of the Tort Immunity Act only provides immunity to public entities that initially fail to provide traffic control devices or warning signs. Plaintiffs argue that this section does not provide immunity if the county fails to warn of a defective condition, in this case a downed stop sign. They claim that the case law that exists following the Dinges decision does not affect the county's duty to warn of a defective condition.

The county contends that it had no duty to warn motorists traveling westbound on Council Hill Road that the State failed to maintain its stop sign. Further, it argues that the cases decided after Dinges, particularly the West case, interpret section 3-104 of the Tort Immunity Act to provide absolute immunity to public entities for failure initially to provide traffic control devices, even when the failure might endanger the safe movement of traffic. The county claims that notice, or the lack of it, is irrelevant under that section of the Act. A motion brought under section 2-615 of the Code (Ill.Rev.Stat.1989, ch. 110, par. 2-615 (now 735 ILCS 5/2-615 (West 1992))) admits all well-pleaded facts and reasonable inferences drawn therefrom. (Boender v. Chicago North Clubhouse Association, Inc. (1992), 240 Ill.App.3d 622, 627, 181 Ill.Dec. 134, 608 N.E.2d 207.) The reviewing court must determine whether the allegations in the complaint are sufficient to state a cause of action when viewed in the light most favorable to the plaintiffs. (Packard v. Rockford Park District (1993), 244 Ill.App.3d 643, 648, 184 Ill.Dec. 294, 613 N.E.2d 321.) "A complaint should not be dismissed for failure to state a cause of action unless it clearly appears that no set of facts could be proved under the allegations which would entitle the party to relief." Geick v. Kay (1992), 236 Ill.App.3d 868, 873, 177 Ill.Dec. 340, 603 N.E.2d 121.

Section 3-104 of the Tort Immunity Act provides:

"Neither a local public entity nor a public employee is liable under this Act for an injury caused by the failure to initially provide regulatory traffic control devices, stop signs, yield right-of-way signs, speed restriction signs, distinctive roadway markings or any other traffic regulating or warning sign, device or marking, signs, overhead lights, traffic separating or restraining devices or barriers." Ill.Rev.Stat.1991, ch. 85, par. 3-104 (now 745 ILCS 10/3-104 (West 1992)).

We begin our analysis with Dinges, 202 Ill.App.3d 732, 147 Ill.Dec. 873, 560 N.E.2d 21, a case which the parties agree is factually identical to the case at hand. One of the issues on appeal in Dinges was whether Kane County had a duty to warn motorists of a downed stop sign that was maintained by the State and located in a right-of-way purchased by the State Department of Transportation. (Dinges, 202 Ill.App.3d at 733, 735, 147 Ill.Dec. 873, 560 N.E.2d 21.) Relying in part on Janssen v. City of Springfield (1980), 79 Ill.2d 435, 444-45, 38 Ill.Dec. 789, 404 N.E.2d 213, this court found that the duty to warn motorists of hazards adjacent to the roadway, even if the public entity did not control the hazard itself, did not arise from section 3-104 of the Tort Immunity Act, but from the common-law duty to maintain roads in a reasonably safe condition. (Dinges, 202 Ill.App.3d at 736, 147 Ill.Dec. 873, 560 N.E.2d 21.) We also concluded that section 3-104 of the Tort Immunity Act was "virtually identical" to subsection "a" of the prior version of section 3-104, amended effective November 25, 1986, which provided:

"Neither a local public entity nor a public employee is liable under this Act for an injury caused by the failure to initially provide regulatory traffic control devices, stop signs, yield right-of-way signs, speed restriction signs, distinctive roadway markings or any other traffic regulatory signs." (Ill.Rev.Stat.1985, ch. 85, par. 3-104(a).)

Thus, we concluded that immunity was not available to Kane County for failing to warn of a condition which endangered the safe movement of traffic. Dinges, 202 Ill.App.3d at 737, 147 Ill.Dec. 873, 560 N.E.2d 21.

If the Dinges case stood alone as the only relevant authority on the applicability of ...