Curtis by Curtis v. Cook County, 81-1774

CourtUnited States Appellate Court of Illinois
Citation65 Ill.Dec. 87,440 N.E.2d 942,109 Ill.App.3d 400
Docket NumberNo. 81-1774,81-1774
Parties, 65 Ill.Dec. 87 Deborah CURTIS, a minor, By Donald CURTIS, her father and next friend, Donald Curtis, individually, and Lynn Carol Curtis, Plaintiffs-Appellants, v. COUNTY OF COOK, Village of Westchester, and Village of Hillside, Defendants- Appellees.
Decision Date21 September 1982

Wildman, Harrold, Allen & Dixon, Chicago (Kevin T. Martin and Kay L. Schichtel, Chicago, of counsel), for plaintiffs-appellants.

Richard M. Daley, State's Atty. of Cook County, Chicago (Myra J. Brown and Jeffrey M. Marks, Asst. State's Attys., Chicago, of counsel), for defendant-appellee County of Cook.

Aries, Hoyt & Williams, Chicago (Harvey J. Cohen, Chicago, of counsel), for defendant-appellee Village of Westchester.

Dore & Clark, Ltd. and Ronald A. Parizek & Associates, Ltd., Chicago (Cornelius F. Dore, William G. Clark, Jr., and Ilene M. Davidson, Chicago, of counsel), for plaintiff-appellee Village of Hillside.

HARTMAN, Justice:

On August 28, 1980, plaintiffs filed a second amended, six count complaint ("complaint"), seeking damages from defendants, County of Cook ("Cook County"), Village of Hillside ("Hillside") and Village of Westchester ("Westchester") in each count. Hillside and Westchester moved to dismiss the complaint and Cook County moved for judgment on the pleadings, each pursuant to section 45 of the Civil Practice Act (Ill.Rev.Stat.1979, ch. 110, par. 45), 1 which the circuit court granted. Plaintiffs appeal, raising the principal issue of whether plaintiffs' complaint is legally sufficient.

Count I of the complaint is brought by Deborah Curtis, then age 16, through her father and next friend, Donald Curtis. That count alleges, inter alia, the following facts: On June 30, 1978, at 11 p.m., Theodore H. Spieker, then age 18, operated a motor vehicle westerly on 22nd Street about one-half mile west of Wolf Road, accompanied by plaintiff Deborah Curtis, a passenger. Spieker drove his auto on the north shoulder of the four-lane highway, where it struck a traffic standard, causing injury to Curtis. Defendants Cook County, Hillside and Westchester had selected, placed, and maintained the sign with which the vehicle collided. Defendants were negligent in that they: failed to erect and maintain "break-away" poles at the aforesaid location; acquired, erected and placed a speed limit sign of wood and steel, creating a dangerous condition to vehicles on the highway; and, erected the speed limit sign near the highway, creating a dangerous condition to vehicles which might enter the shoulder of the road.

In count II, also brought by Deborah Curtis through Donald Curtis, plaintiffs further alleged that: The speed limit sign was constantly and repeatedly used as a "quarter-mile" post by teenage and young adult drivers for the purpose of clocking vehicles moving in the quarter-mile distance at speeds which greatly exceeded the legal limit. Spieker was using the speed limit sign for that purpose when he lost control of his vehicle, causing it to be operated on the shoulder of the road, where it struck the speed limit sign. Defendants negligently: (a) failed to patrol the area of the accident for certain drivers who would use the speed limit sign as a clocking quarter-mile post; (b) knew or should have known that the area and sign were so used, but failed to remove or replace the sign; (c) failed to install speed-control equipment; (d) placed and permitted the speed limit sign to remain in its position, when they knew or should have known that it would be used to clock speeds of automobiles; (e) failed to patrol the area of the accident during specific times when the area was likely to be frequented by drivers using the sign to clock their speeds; and (f) permitted a dangerous condition to remain on the highway when they knew it was being used as a quarter-mile post by certain drivers.

Counts III and IV are causes of action on behalf of Deborah Curtis' father individually to recover medical and hospital expenses, incorporating by reference the allegations of counts I and II respectively. Counts V and VI allege independent causes of action on behalf of both Deborah Curtis' parents for the loss of the aid, society, comfort and companionship of their minor daughter.

I.

With respect to counts I and III of the complaint, plaintiffs argue that a jury should be allowed to decide whether the wooden post on which the speed limit sign was mounted should have been replaced with "break-away" or yielding metal posts, citing O'Connell v. Chicago and North Western R.R. (1940), 305 Ill.App. 430, 27 N.E.2d 644; and Stern v. International Ry. (1917), 220 N.Y. 284, 115 N.E. 759. In both cases verdicts were upheld against defendants where plaintiffs were injured as the result of colliding with obstructions, a steel girder and electric power pole, respectively, each of which stood in the middle of the roadway. In neither case was the suitability of the material of which the obstruction, girder or pole was made at issue; rather, the conflicts involved the propriety of their placement.

More in point is Hunt v. Blasius (1978), 74 Ill.2d 203, 23 Ill.Dec. 574, 384 N.E.2d 368. There, plaintiffs sued the manufacturer of an exit signpost, claiming it should have been designed as a breakaway post, as in the instant case. With reference to a count sounding in strict liability, the supreme court stated (74 Ill.2d at 212, 23 Ill.Dec. 574, 384 N.E.2d 368):

"[P]laintiffs have alleged no legally cognizable defect in the sign post. They have merely indicated a preference for 'break-away' posts. However valid that preference might be, the availability of an alternative design does not translate into a legal duty in products liability. * * * Here, there is no allegation of a defect in the post which affected its intended or actual use--to safely support the sign. The risks which inhered in the collision with the post were the same risks which attend all collisions between motorists and stationary objects which align the highway."

Here also plaintiffs have alleged no legally cognizable defect in the signposts. The dismissal of counts I and III must therefore be affirmed.

II.

Considering next count II, it essentially alleges: defendants were negligent in failing to correct an unsafe condition on their roadway; the placement of the speed limit post created a dangerous condition of which defendants had actual knowledge or should have known, in that drivers repeatedly used the sign post as a quarter-mile marker while clocking their speed ("speed clocking"); 2 defendants should have alleviated the danger in moving the sign closer or farther from the intersection; and defendants should have patrolled the area at the specific times when they knew certain drivers were using the sign for clocking their speed. 3

Local municipal entities have a duty to maintain their property in a reasonably safe condition (Ill.Rev.Stat.1977, ch. 85, par. 3-102), which extends beyond their mere physical upkeep. When a municipality adopts a plan or design for improvement of public property, the Local Governmental and Governmental Employees Tort Immunity Act, after exculpating the governmental unit from liability generally provides (Ill.Rev.Stat.1977, ch. 85, par. 3-103(a)):

"The local public entity is liable, however, if after the execution of such plan or design it appears from its use that it has created a condition that is not reasonably safe." (Emphasis added.)

Here, according to the allegations of count II of the complaint, well-pleaded allegations of which, for the purposes of the motions, must be taken as true (Johnson v. Franzen (1979), 77 Ill.2d 513, 522, 34 Ill.Dec. 153, 397 N.E.2d 825; Johnston v. City of Bloomington (1979), 77 Ill.2d 108, 111, 32 Ill.Dec. 319, 395 N.E.2d 549), defendants allegedly had actual notice of the fact that their placement of the speed limit post permitted young people to continue to utilize the sign in their speed clocking activities, thereby creating and maintaining a dangerous condition.

Illinois courts have identified a duty owed by defendants in comparable circumstances. In Baran v. City of Chicago Heights (1969), 43 Ill.2d 177, 181, 251 N.E.2d 227, the city was held responsible for injuries resulting from an accident caused by improper placement of streetlights. As here, no issue was raised regarding installation or maintenance of the lights; rather, the conflict arose over their location. The court stated, " * * * when a city creates a hazardous condition and someone is injured as a consequence it must respond in damages, just as others are required to do." (43 Ill.2d at 181, 251 N.E.2d 227.) The foregoing ratio decidendi was again adopted by the supreme court in Greene v. City of Chicago (1978), 73 Ill.2d 100, 22 Ill.Dec. 507, 382 N.E.2d 1205, in a somewhat similar factual setting. In Porter v. City of Decatur (1974), 16 Ill.App.3d 1031, 307 N.E.2d 440, the court upheld a complaint alleging the city was negligent in allowing an intersection traffic light to continue its ordinary sequence of signals notwithstanding its previous arrangement with the National Guard to allow the passing of one of its caravans without regard to the operation of the established signals.

Defendants argue Baran, Greene and Porter are inapposite since they involve accidents which were the result of ordinary and foreseeable use of the streets, whereas in the instant case the accident occurred because the driver lost control of his vehicle while "speed clocking." In support of their argument they rely upon Boylan v. Martindale (1982), 103 Ill.App.3d 335, 59 Ill.Dec. 43, 431 N.E.2d 62, Hoffman v. Vernon Township (1981), 97 Ill.App.3d 721, 53 Ill.Dec. 135, 423 N.E.2d 519, Harding v. Chicago Park District (1975), 34 Ill.App.3d 425, 339 N.E.2d 779, and Deren v. City of Carbondale (1973), 13 Ill.App.3d 473, 300 N.E.2d 590. In Boylan, plaintiff's...

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