Dinges v. Gabardi

• Court: Appellate Court of Illinois
• Writing for the Court: INGLIS
• Citation: Dinges v. Gabardi, 560 N.E.2d 21, 202 Ill.App.3d 732, 147 Ill.Dec. 873 (Ill. App. 1990)
• Decision Date: 31 August 1990
• Docket Number: 2-89-1258,Nos. 2-89-1160,s. 2-89-1160
• Parties: , 147 Ill.Dec. 873 Takako DINGES, Plaintiff-Appellant, v. Myong GABARDI, et al., Defendants (The County of Kane, et al., Defendants-Appellees).

Page 21

560 N.E.2d 21

202 Ill.App.3d 732, 147 Ill.Dec. 873

Takako DINGES, Plaintiff-Appellant, v. Myong GABARDI, et al., Defendants (The County of Kane, et al., Defendants-Appellees).

Nos. 2-89-1160, 2-89-1258.

Appellate Court of Illinois Second District.

Aug. 31, 1990.

Kenneth C. Chessick, John W. Fisk, Kenneth C. Chessick, M.D., S.C., Schaumburg, for Takako Dinges.

Richard J. Larson, Larson, Mickey, Weiler, P.C., David G. Mountcastle, Mountcastle & DeRosa, Wheaton, Rita Farrell, Edgar K. Collison, Early, Collison, Tousey, Regan & Farrell, Elgin, for Myong Gabardi.

Justice INGLIS delivered the opinion of the court:

Plaintiff, Takako Dinges, appeals from two orders of the circuit court of Kane County, each of which dismissed one count of her complaint. The order at issue in appeal No. 2-89-1160 dismissed count III of the complaint against defendant Kane County (County). The order involved in appeal No. 2-89-1258 dismissed count V, which was against defendant Nabi Fakroddin. Plaintiff raises two issues on appeal: whether the County had a duty to warn of a downed stop sign; and whether Fakroddin, as an agent of the County, had a duty to warn of a downed stop sign.

On December 6, 1988, plaintiff filed a five-count complaint in the circuit court of Kane County. The complaint alleged that on April 26, 1987, Myong Gabardi was driving a car, in which plaintiff was a passenger, on Big Timber Road in Kane County. The Gabardi vehicle entered the intersection at Route 47, and it was struck by a truck driven by defendant John Hutsler, Jr. Count I alleged that Gabardi was negligent, and count II alleged that Hutsler was negligent. Neither party is involved in this appeal.

In count III, plaintiff alleged that the County maintained a stop sign at the intersection of Big Timber Road and Route 47 and that the stop sign "had been knocked down for some time prior to" the accident in which plaintiff was injured. The downed stop sign was not visible to Gabardi as her vehicle approached the intersection with Route 47. Plaintiff further alleged that the County had notice of the hazardous condition caused by the downed stop sign and that the County failed to inspect the stop sign, to repair the stop sign, and to warn motorists approaching the intersection of the dangerous condition. In addition, the County advised plaintiff that it did not maintain the stop sign. Subsequently, plaintiff informed the Department of Transportation of her claim. The Department of Transportation denied plaintiff's claim based on lack of notice. According to plaintiff, the Department of Transportation later denied responsibility for the maintenance of the stop sign.

Count IV of the complaint alleged that the Kane County Highway Department (Highway Department) was negligent based on the negligence of its principal, the County. The trial court subsequently granted plaintiff's motion to voluntarily dismiss without prejudice the Highway Department as a defendant. Count V alleged that defendant Fakroddin, the superintendent of highways for the County, was negligent under the same theories as those alleged against the County.

Plaintiff attached to the complaint the affidavit of Joseph Kostur, the safety and claims manager for District One of the Department of Transportation. In the affidavit, Kostur stated that Route 47 was under the jurisdiction of the Department of Transportation, but that Big Timber Road was not a part of the State highway system. Kostur averred that the Department of Transportation did not have a duty to warn, regulate or control motorists traveling on Big Timber Road and that the County was responsible for Big Timber Road.

On August 18, 1989, the County filed a motion to dismiss count III of the complaint pursuant to section 2-619 of the Code of Civil Procedure (Ill.Rev.Stat.1989, ch. 110, par. 2-619), asserting the affirmative defense that the stop sign was on the Department of Transportation's right-of-way, that the County did not own or maintain the stop sign, and that the County was immune from liability pursuant to sections 3-102, 3-104, and 3-108(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill.Rev.Stat.1987, ch. 85, pars. 3-102, 3-104, 3-108(a)).

The County attached the affidavit of Thomas Holderby, the assistant superintendent of the Highway Department, to its motion to dismiss. Holderby stated that the Highway Department did not erect, maintain, repair, or replace the stop sign on Big Timber Road at Route 47 and that the stop sign had always been maintained, repaired and replaced by the Department of Transportation. Holderby further stated that the stop sign is located on a right-of-way purchased by the Department of Transportation. The court found that section 2-105 of the Tort Immunity Act (Ill.Rev.Stat.1987, ch. 85, par. 2-105) applied because the stop sign was not on the County's property, and it never erected or maintained the stop sign. Consequently, the court dismissed count III of the complaint with prejudice. Plaintiff timely filed an appeal of the order.

Fakroddin subsequently filed a motion to dismiss on the basis that, since the County was not liable for plaintiff's injuries, Fakroddin, as agent for the County, was also not liable to plaintiff. The court dismissed count V with prejudice, and plaintiff timely appealed that order. We granted plaintiff's motion to consolidate the appeals.

Plaintiff first contends that the County had a duty to warn of the downed stop sign because it regulated the flow of traffic on a road under the County's jurisdiction. Plaintiff correctly asserts that since this is an appeal of an order dismissing a complaint, all well-pleaded facts are taken as true. (See Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill.2d 507, 514, 111 Ill.Dec. 944, 513 N.E.2d 387, cert. denied (1988), 485 U.S. 905, 108 S.Ct. 1077, 99 L.Ed.2d 236.) Even if the complaint states a cause of action on its face, where an affirmative defense negates the cause of action, the dismissal is proper. Land v. Auler (1989), 186 Ill.App.3d 382, 384-85, 134 Ill.Dec. 330, 542 N.E.2d 509.

To properly plead a cause of action in negligence, a plaintiff must allege the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by the breach. (Ward v. K mart Corp. (1990), 136 Ill.2d 132, 140, 143 Ill.Dec. 288, 554 N.E.2d 223.) Plaintiff here focuses on the question of whether the County had a duty to warn of a downed stop sign which the County was not responsible for maintaining. Duty is a legal question to be decided by the court. Kirk, 117 Ill.2d at 525, 111 Ill.Dec. 944, 513 N.E.2d 387.

The trial court found that the County was not liable because the stop sign was the State's property and, under section 2-105 of the Tort Immunity Act, the County "is not liable for injury caused by its failure to make an inspection * * * of any property, other than its own" (Ill.Rev.Stat.1987, ch. 85, par. 2-105). Plaintiff argues that even if the County is immune from liability for failing to inspect or repair the sign, the County had a duty to warn of the dangerous condition.

In support thereof, plaintiff cites Janssen v. City of Springfield (1980), 79 Ill.2d 435, 38 Ill.Dec. 789, 404 N.E.2d 213. In Janssen, our supreme court determined that a governmental unit which controls a roadway has a duty to warn motorists of hazards adjacent to the roadway even if the hazard itself is not within the control of the governmental unit. Janssen, 79 Ill.2d at 444-45, 38 Ill.Dec. 789, 404 N.E.2d 213.

Defendants contend that Janssen is no longer controlling because the decision relied upon section 3-104(b) of the Tort Immunity Act (Ill.Rev.Stat.1973, ch. 85, § 3-104(b)). Defendants correctly point out that this section was deleted by an amendment in 1986 and is no longer in effect. However, we disagree with defendants' claim that this deletion somehow affects the viability of Janssen. The Janssen decision noted that the duty to warn had been codified in section 3-104(b) (Janssen, 79 Ill.2d at 450, 38 Ill.Dec. 789, 404 N.E.2d 213) but did not find that the duty arose from the Tort Immunity Act. Instead, the court determined that the duty arose from the long-recognized obligation of governmental units to maintain public highways within its boundaries in a safe condition. 79 Ill.2d at 450, 38 Ill.Dec. 789, 404 N.E.2d 213.

We recognized this distinction in our recent decision in Battisfore v. Moraites (1989), 186 Ill.App.3d 180, 133 Ill.Dec. 938, 541 N.E.2d 1376. In Battisfore, we pointed out that Janssen "adopted the principle that a municipal unit which controls a roadway has a duty to warn motorists of hazards adjacent to the roadway even if the hazard itself is not within the control of the governmental unit." (Battisfore, 186 Ill.App.3d at 186, 133 Ill.Dec. 938, 541 N.E.2d 1376.) We pointed out that Janssen "further found that a municipality's duty to warn motorists of dangerous conditions is codified in section 3-104(b) of the Tort Immunity Act." (Emphasis added.) 186 Ill.App.3d at 186-87, 133 Ill.Dec. 938, 541 N.E.2d 1376.

Plaintiff correctly points out that the Tort Immunity Act does not impose duties but instead confers immunities. (Havens v. Harris Township (1988), 175 Ill.App.3d 768, 770, 125 Ill.Dec. 256, 530 N.E.2d 284.) According to plaintiff, since the deletion of the former section 3-104(b) did not impose a new duty on local governmental entities, its deletion could not relieve a local government of a duty which preexisted the statute.

We agree with plaintiff that the duty to warn stems from the duty to maintain the public roadways in a reasonably safe condition, and does not arise from section 3-104 of the Tort Immunity Act. Furthermore, courts have determined that the immunity available under section 3-104(a) of the Tort Immunity Act (Ill.Rev.Stat.1985, ch. 85, par. 3-104(a)) does not apply where a...