Gresham v. Kirby

• Decision Date: 11 June 1992
• Docket Number: No. 4-91-0212,4-91-0212
• Citation: 172 Ill.Dec. 138,229 Ill.App.3d 952,595 N.E.2d 201
• Parties: , 172 Ill.Dec. 138 Donald E. GRESHAM, Administrator of the Estate of Carol Gresham, Deceased, Plaintiff-Appellant, v. Lloyd A. KIRBY and the Town of Normal, a Municipal Corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 201

595 N.E.2d 201

229 Ill.App.3d 952, 172 Ill.Dec. 138

Donald E. GRESHAM, Administrator of the Estate of Carol Gresham, Deceased, Plaintiff-Appellant, v. Lloyd A. KIRBY and the Town of Normal, a Municipal Corporation, Defendants-Appellees.

No. 4-91-0212.

Appellate Court of Illinois Fourth District.

June 11, 1992.

William A. Allison, Allison & Kelly, Bloomington, for plaintiff-appellant.

William F. Costigan, Robert S. White, Costigan & Wollrab, P.C., Bloomington, for Lloyd A. Kirby.

Ancel, Glink, Diamond & Cope, P.C. (David Lincoln Ader, Jennifer A. Pritz, of counsel), Chicago, for Town of Normal.

Justice COOK delivered the opinion of the court:

Plaintiff Donald E. Gresham, administrator of the estate of Carol Gresham, deceased, filed this wrongful death action against defendants, the Town of Normal (Town) and Lloyd Kirby. The Town's motion for summary judgment was granted. A jury found in Kirby's favor. Plaintiff appeals the grant of summary judgment. We affirm.

On July 5, 1988, Carol Gresham died in an automobile accident at the intersection of College Avenue and U.S. Route 150 in Normal, Illinois. Decedent approached the intersection from the southwest on College Avenue, a two-lane road owned and maintained by the Town; the road had a posted speed limit of 30 miles per hour. Kirby approached the intersection from the southeast on Route 150, a two-lane highway owned and maintained by the State of Illinois Department of Transportation (IDOT); the highway had a posted speed limit of 55 miles per hour. There were stop signs on both College Avenue approaches to the intersection, and no stop signs or other traffic devices on either Route 150 approach. Route 150 traffic accordingly had the right of way. Upon entering the intersection, decedent's step van was struck by Kirby's automobile, resulting in decedent's death. The intersection was first opened in November 1987. There had been at least eight accidents at the intersection before this one, including a fatality in April 1988. After this accident, the Town added two more stop signs for traffic on College Avenue, to the two already present, and placed red flags on top of all four stop signs.

Plaintiff filed a wrongful death action against Kirby, then an amended four-count complaint adding the Town as a defendant. This appeal concerns counts II, III and IV directed against the Town.

The Town averred it was entitled to summary judgment because (1) on the date of the accident, it had no authority to place any traffic regulatory devices on Route 150, which was under the jurisdiction of the State; (2) it did not owe the decedent any duty to warn her as to the condition of the intersection; (3) it was immune from liability under section 3-104 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (Ill.Rev.Stat.1989, ch. 85, par. 3-104); and (4) none of its alleged acts were the proximate cause of decedent's death. The court granted the Town's motion for summary judgment.

Summary judgments are desirable where the pleadings, affidavits, and depositions show that there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. (Ill.Rev.Stat.1989, ch. 110, par. 2-1005(c); Wojdyla v. City of Park Ridge (1992), 148 Ill.2d 417, 420, 170 Ill.Dec. 418, 420, 592 N.E.2d 1098, 1100; Fitt v. City of Mattoon (1991), 215 Ill.App.3d 472, 479, 158 Ill.Dec. 882, 886, 574 N.E.2d 1275, 1279.) It was formerly held that when a defendant moved for summary judgment defendant was required to show it was not possible that plaintiff could prove his case, that is, defendant was required to negate plaintiff's case, even though plaintiff had the burden of proof at trial. (See, e.g., Motz v. Central National Bank (1983), 119 Ill.App.3d 601, 605, 75 Ill.Dec. 137, 140-41, 456 N.E.2d 958, 961-62.) More recent cases make it easier for defendants to obtain summary judgment, holding it sufficient for defendant to point out an absence of some element of evidence to support plaintiff's case. (Celotex Corp. v. Catrett (1986), 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265, 275; Koukoulomatis v. Disco Wheels, Inc. (1984), 127 Ill.App.3d 95, 101, 82 Ill.Dec. 215, 219-20, 468 N.E.2d 477, 481-82; Lindenmier v. City of Rockford (1987) 156 Ill.App.3d 76, 85, 108 Ill.Dec. 624, 630, 508 N.E.2d 1201, 1207 ("When a defendant files a motion for summary judgment, the plaintiff must come forward with evidence of negligence on the part of the defendant and with evidence that defendant's negligence was a proximate cause of the plaintiff's injuries"); see Schwarzer, Hirsch & Barrans, The Analysis and Decision of Summary Judgment Motions, 139 F.R.D. 441, 449-51, 478 (1991).) In this case, defendant attempts to negate plaintiff's case by showing there was no duty on its part. The entry of summary judgment is not a matter within the discretion of the trial court. In reviewing a trial court's ruling on a motion for summary judgment, the appellate court should consider anew the facts and law related to the case to determine whether the trial court was correct. Shull v. Harristown Township (1992), 223 Ill.App.3d 819, 824, 166 Ill.Dec. 142, 145, 585 N.E.2d 1164, 1167.

In order to recover in tort for negligence, a plaintiff must establish 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. (Wojdyla 148 Ill.2d at 421, 170 Ill.Dec. at 420, 592 N.E.2d at 1100; Ross v. City of Chicago (1988), 168 Ill.App.3d 83, 86, 118 Ill.Dec. 760, 762, 522 N.E.2d 215, 217; Dinges v. Gabardi (1990), 202 Ill.App.3d 732, 735, 147 Ill.Dec. 873, 875, 560 N.E.2d 21, 23.) The existence of a duty must be determined by the courts as a matter of law. (Curtis v. County of Cook (1983), 98 Ill.2d 158, 162, 74 Ill.Dec. 614, 616, 456 N.E.2d 116, 118; Fitt, 215 Ill.App.3d at 479, 158 Ill.Dec. at 886, 574 N.E.2d at 1279.) If no duty exists, no recovery is possible as a matter of law, and summary judgment for defendant is proper. Beal v. Kuptchian (1987), 164 Ill.App.3d 191, 193, 115 Ill.Dec. 301, 303, 517 N.E.2d 712, 714.

Count II of plaintiff's amended complaint was based on section 3-103(a) of the Act (Ill.Rev.Stat.1989, ch. 85, par. 3-103(a)), which makes a local public entity liable for the creation of a condition that is not reasonably safe. Plaintiff alleged that the Town had agreed with the State to reconstruct the intersection and to build it in accordance with the plans and specifications approved by the State. According to the plans, College Avenue would be a through street and traffic on Route 150 would stop at the intersection. Nevertheless, the Town built the intersection with Route 150 as the through street, with traffic on College Avenue to stop. Plaintiff asserted this failure created a "condition that was not reasonably safe for motorists" and was the proximate cause of decedent's death. However, regardless of whether the Town had a duty not to deviate from the approved plans, plaintiff could not establish that the Town breached such a duty because the Town had no duty or authority to place stop signs on Route 150.

At the time of the accident the State had jurisdiction of Route 150; jurisdiction was eventually transferred to McLean County after the accident. Sections 11-303(a) and (b) of the Illinois Vehicle Code (Code) (Ill.Rev.Stat.1989, ch. 95 1/2, pars. 11-303(a), (b)) provide the State is responsible for placing and maintaining traffic control devices on all highways under its jurisdiction, and local authorities shall not erect any traffic control devices on any State highway except by the State's permission. (Fitt, 215 Ill.App.3d at 480, 158 Ill.Dec. at 886, 574 N.E.2d at 1279.) Moreover, when roads and highways of larger and lesser governmental entities intersect, section 11-302 of the Code places the responsibility for the erection and maintenance of stop signs and the designation of through highways at the intersections upon the larger governmental entity. (Ill.Rev.Stat.1989, ch. 95 1/2, par. 11-302; Griglione v. Town of Long Point (1989), 184 Ill.App.3d 20, 28, 132 Ill.Dec. 542, 547, 539 N.E.2d 1348, 1353, citing Burris v. Madison County (1987), 154 Ill.App.3d 1064, 1073, 107 Ill.Dec. 898, 904, 507 N.E.2d 1267, 1273.) The Town could not place stop signs on Route 150 because that power was exclusively vested in the State.

The agreement between the Town and the State contains no specific authorization giving the Town authority to erect traffic control devices, other than an at-grade signalized crossing at the Norfolk & Southern railroad. The agreement clearly obligated the Town to construct the improvements according to the plans, but nothing in the language gave the Town the authority to erect traffic control devices at the intersection of College Avenue and Route 150. This contention is supported by the testimony of Edmund R. Wallens, IDOT bureau of traffic chief, that the joint agreement only made the Town responsible for the traffic control devices on College Avenue, and is reinforced by letters Wallens received from Town officials asking IDOT to act with regard to the intersection. Under the Code, the Town could not place stop signs on Route 150 because that power was reserved to the State, unless specific permission was given to the Town. Contrary to plaintiff's argument, the agreement did not authorize the Town to erect traffic control devices on Route 150. Summary judgment on count II was appropriate.

As plaintiff states in his brief, the only difference between count II and count III "is that count III suggests the action which the Town failed to take once the dangerous condition became known." The measures the Town failed to take were (1) to close the intersection to traffic on College Avenue, (2) to provide a four-way stop as recommended by a Town official's letter to Wallens, (3) to condition motorists on Route 150 or College Avenue to...