DiBenedetto v. Flora Tp.
| Decision Date | 18 October 1991 |
| Docket Number | No. 2-90-0762,2-90-0762 |
| Parties | , 162 Ill.Dec. 684 Sandra DiBENEDETTO, Special Adm'r of the Estate of Scott A. DiBenedetto, Deceased, Plaintiff-Appellant, v. FLORA TOWNSHIP, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Gregory E. Barrett, Schlueter, Ecklund, Olson, Barrett & Moore, Rockford, for Sandra L. DiBenedetto, Sp. Adm'r.
Kathryn M. James, Judge & James, Ltd., Joette S. Doran, Knight, Hoppe, Fanning & Knight, Ltd., Sarah Hansen Sotos, Knight, Hoppe, Fanning & Knight, Ltd., Des Plaines, for Flora Tp.
Plaintiff, Sandra L. DiBenedetto, as special administrator of the estate of Scott A. DiBenedetto, deceased, appeals from an order of the circuit court of Boone County which dismissed with prejudice her complaint against defendant, Flora Township. The issue raised on appeal is whether the trial court erred in dismissing plaintiff's amended complaint for failure to state a cause of action in accordance with section 2-615 of the Code of Civil Procedure (Code) (Ill.Rev.Stat.1989, ch. 110, par. 2-615).
On January 12, 1990, plaintiff filed her amended complaint containing the following allegations: that defendant is a municipal corporation located in Boone County, Illinois, which owns and maintains a system of township roads, highways and rights-of-way within its boundaries, including Wheeler Road; that on or about January 25, 1989, plaintiff's decedent was operating a motor vehicle traveling south on Wheeler Road, in Flora Township, south of the intersection of Wheeler Road and Cherry Valley Road; that driving conditions were wet, and there was dense fog and complete darkness; that there were no street or highway lights in this area; that the vehicle operated by plaintiff's decedent entered the shoulder area on the east edge of the paved portion of the road and immediately overturned onto its roof killing the decedent; that at and near the area of the occurrence, Wheeler Road has a width of only 18 feet, a speed limit of 55 miles per hour and no center line or other lane markings; that approximately five to seven feet from the east edge of the paved portion of the road, on the shoulder portion of the road, for a distance of approximately one-quarter of a mile in the area of the occurrence, a deep ditch runs parallel to the pavement of the road; that the ditch drops at a 45- to 90-degree angle off the shoulder of the road and is five to six feet in depth; and that the ditch is entirely within the Wheeler Road right-of-way owned and maintained by defendant.
The amended complaint further alleged that defendant was negligent in that it:
"a. Maintained its right-of-way on Wheeler Road in such a manner as to place or permit to be placed a ditch on its said right-of-way which ditch is a danger to traffic using Wheeler Road by reason of its severe dropoff [sic ] and extreme close proximity to the east edge of the pavement of Wheeler Road.
b. Failed to remedy or correct the condition created in its right-of-way along said Wheeler Road by the existence of said ditch.
c. Failed to erect a suitable guard rail [sic ] or barricade to protect traffic using Defendant's right-of-way from injury or death from entering said ditch despite the reasonable foreseeability that some persons operating vehicles along Wheeler Road and its right-of-way may enter the area of the right-of-way upon which the ditch is located.
d. Failed to provide suitable and adequate warning to the motoring public of the existence of said ditch and the hazard attendant therewith."
It was also alleged that, prior to the occurrence involving plaintiff's decedent, at least one accident had occurred wherein a car had entered the same ditch and that complaints had been made to defendant about the existence of the ditch.
Plaintiff sought damages for the alleged wrongful death of the decedent under the provisions of section 2 of the Wrongful Death Act (Ill.Rev.Stat.1989, ch. 70, par. 2).
Defendant filed a motion to strike and dismiss the amended complaint pursuant to section 2-615 of the Code. A hearing was held regarding defendant's motion. No transcript of the hearing has been included in the record. However, the memorandum of decision prepared by the trial court states that plaintiff elected to withdraw her allegations of negligence contained in paragraph 9(c) of the amended complaint (failure to erect a guardrail or barricade) and paragraph 9(d) of the amended complaint (failure to warn). Plaintiff acknowledges this in her appellate brief.
The trial court noted in the memorandum of decision that the complaint does not allege that the paved roadway in question is other than straight, flat and in good physical condition. As the only hazard alleged was the existence of a deep ditch and its proximity to the roadway, the court concluded that the magnitude of the duty which would be imposed on defendant to prevent this type of hazard outweighed the other relevant factors in making a duty determination. The court stated:
An order was entered June 19, 1990, dismissing the amended complaint with prejudice.
Plaintiff contends on appeal that the dismissal of her amended complaint was error because the trial court improperly based its decision on the "onerous consequences on the township if a duty were to be imposed," rather than on the foreseeability of the occurrence alleged. Plaintiff asserts that the trial court, without evidence, could not properly conclude the nature and extent of the onerous consequences upon the Township and, therefore, could not determine as a matter of law that a duty should not be imposed in this situation. Plaintiff argues that the pertinent case law provides that a municipality's duty to keep its streets, sidewalks and parkways in a reasonably safe condition is not limited, but extends to any part or portion thereof immediately adjacent thereto. Plaintiff cites Janssen v. City of Springfield (1980), 79 Ill.2d 435, 450, 38 Ill.Dec. 789, 404 N.E.2d 213, Hennigs v. Centreville Township (1973), 56 Ill.2d 151, 154, 306 N.E.2d 287, Long v. Friesland (1988), 178 Ill.App.3d 42, 51, 127 Ill.Dec. 85, 532 N.E.2d 914, Predny v. Village of Park Forest (1987), 164 Ill.App.3d 688, 697-98, 116 Ill.Dec. 263, 518 N.E.2d 1243, and Michalak v. County of La Salle (1984), 121 Ill.App.3d 574, 77 Ill.Dec. 35, 459 N.E.2d 1131 in support of her position. Plaintiff further maintains that a duty should be imposed here because it was reasonably foreseeable that cars would be occupying the shoulder of the road. She contends that this is true, especially when "weather conditions affecting visibility" exist, because the road is "rather narrow" and the road surface itself is not marked.
Defendant responds that since the decedent was southbound on Wheeler Road and overturned in a ditch on the east edge of the road, the decedent obviously crossed onto the opposite lane of traffic and went off the opposite side of the road and into the ditch. Defendant contends that such occurrence is not reasonably foreseeable. Defendant further opines that the cases cited by plaintiff as imposing a duty on the township are distinguishable from the facts of this case. Defendant contends that those cases involved an unusual, unreasonably dangerous roadway condition such as: a traffic island projecting 5 1/2 feet into the east lane of the street (Janssen, 79 Ill.2d at 438, 38 Ill.Dec. 789, 404 N.E.2d 213); a pile of gravel along a township road in a publicly owned area frequented by pedestrians and cyclists which caused the pedestrians to trip and fall (Hennigs, 56 Ill.2d at 152, 306 N.E.2d 287); "an unsigned and hilly road which was not wide enough for two oncoming cars to pass each other safely and/or which was overhung by brush forcing drivers to drive near the center of the road and obscuring their vision" (Long, 178 Ill.App.3d at 51-52, 127 Ill.Dec. 85, 532 N.E.2d 914); and a bicycle path hidden by bushes at the point where it intersected a service driveway of a shopping center (Predny, 164 Ill.App.3d at 690, 116 Ill.Dec. 263, 518 N.E.2d 1243). Defendant takes the position that no such unusual or unreasonably dangerous road condition was involved in this case.
In considering the law applicable to defendant's motion, we note that a cause of action should be dismissed on the pleadings only if it is clearly apparent that no set of facts can be proved which will entitle the plaintiff to recover. (Burdinie v. Village of Glendale Heights (1990), 139 Ill.2d 501, 504, 152 Ill.Dec. 121, 565 N.E.2d 654.) When the legal sufficiency of a complaint is challenged by a section 2-615 motion to strike or dismiss, all well-pleaded facts in the complaint must be taken as true, and "a reviewing court must determine whether the allegations of the complaint, when interpreted in the light most favorable to the plaintiff, are sufficient to set forth a cause of action upon which relief may be granted." Burdinie, 139 Ill.2d at 505, 152 Ill.Dec. 121, 565 N.E.2d 654.
"A complaint for common law negligence must set forth the existence of a duty owed by the defendant to the plaintiff, a breach of that duty and an injury proximately resulting from that breach." (Widlowski v. Durkee Foods (1990), 138 Ill.2d 369, 373, 150 Ill.Dec. 164, 562 N.E.2d 967; see also Dinges v. Gabardi (1990), 202 Ill.App.3d 732, 735, 147 Ill.Dec. 873, 560 N.E.2d 21.) In this case, brought under the Wrongful Death A...
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