Havens v. Harris Tp.

• Court: Appellate Court of Illinois
• Writing for the Court: HEIPLE
• Citation: Havens v. Harris Tp., 530 N.E.2d 284, 175 Ill.App.3d 768, 125 Ill.Dec. 256 (Ill. App. 1988)
• Decision Date: 24 October 1988
• Docket Number: No. 3-88-0136,3-88-0136
• Parties: , 125 Ill.Dec. 256 Joseph L. HAVENS, A Minor, by Linda Havens, his Mother and Next Friend, and Linda Havens, Individually, Plaintiffs-Appellants, v. HARRIS TOWNSHIP, A Township of Fulton County, Illinois; Ronald Hungerford, Harris Township Road Commissioner; Defendants-Appellees (Lorrie Dilts, d/b/a Marietta Tap, and Betty Brooks, Defendants).

Page 284

530 N.E.2d 284

175 Ill.App.3d 768, 125 Ill.Dec. 256

Joseph L. HAVENS, A Minor, by Linda Havens, his Mother and Next Friend, and Linda Havens, Individually Plaintiffs-Appellants, v. HARRIS TOWNSHIP, A Township of Fulton County, Illinois Ronald Hungerford, Harris Township Road Commissioner; Defendants-Appellees (Lorrie Dilts, d/b/a Marietta Tap, and Betty Brooks, Defendants).

No. 3-88-0136.

Appellate Court of Illinois Third District.

Oct. 24, 1988.

James J. Elson (argued), James J. Elson, Chartered, Canton, for Joseph L. Havens.

Bradley W. Dunham (argued), Quinn, Johnston, Henderson & Pretorius, Chartered, Peoria, for Harris Tp.

Justice HEIPLE delivered the opinion of the court:

This appeal involves a collision between the plaintiff's mini bike and a Ford truck driven by 27-year-old James Jones. The 11-year old plaintiff, Joseph Havens, sustained serious injuries to his left leg and arm. The collision occurred on a narrow, twisting, rural, gravel road in Harris Township, a township of Fulton County, Illinois. The original action involved a dram shop claim as well as a claim against Harris Township and the Harris Township road commissioner. The dram shop portion of the suit was settled and the plaintiff now seeks damages from the township and the road commissioner. The trial court granted defendants' motion to dismiss the plaintiff's fourth amended complaint for failure to state a cause of action. We affirm.

The plaintiff alleges on appeal that the defendants breached three duties: (1) the duty to maintain the roadway in question in a reasonably safe condition; (2) the duty to warn of the alleged dangerous conditions on the roadway; and (3) the duty to mow and trim weeds and brush alongside the roadway.

At the outset, it is important to note that the plaintiff's complaint is deficient of any specific allegations about how the condition of the roadway actually caused the accident. Instead, the plaintiff complains about the generalized condition of the roadway in question. The plaintiff alleges that the width of the road, the grade of the road, the failure to mow weeds and brush alongside the road, and the failure to have warning signs all combined to make the road unsafe and dangerous. These allegations are insufficient to support a cause of action.

The plaintiff agrees with the defendants' brief that a public entity has no obligation to undertake or create public improvements. (Harding v. Chicago Park District (1975), 34 Ill.App.3d 425, 339 N.E.2d 779.) Rather, the plaintiff argues that the defendants had a duty to maintain the township road involved in a reasonably safe condition. The problem with this reasoning is that the conditions of the roadway in question have remained constant since its creation. It is a one-lane, twisting, gravel country road with trees and vegetation bordering the road on both sides. Thus, to make the roadway safer according to the plaintiff's standards, the defendants would have to change the character of the road itself. This necessitates improving the roadway in some form or fashion, a matter which the plaintiff concedes the defendants are not obligated to do.

The plaintiff's reliance on the governmental Tort Immunity Act to create such a duty in the instant case is misplaced. (Ill.Rev.Stat.1985, ch. 85, § 1-101 et seq.) The plaintiff argues that this Act imposes a duty on the township to maintain the road in a reasonably safe condition. Illinois courts, however, have repeatedly held that the Tort Immunity Act does not impose duties, but confers immunities. As the Fourth District stated in Porter v. City of Urbana (1980), 88 Ill.App.3d 443, 455, 43 Ill.Dec. 610, 410 N.E.2d 610:

"The Tort Immunity Act is not a catalog of duties or a source of rights; it does not create new liabilities where none already exist. (Hannon v. Counihan (1977), 54 Ill.App.3d 509 [12 Ill.Dec. 210], 369 N.E.2d 917.) Thus, we must look to other statutes and to the common law to determine whether the complaint states a cause of action."

Moreover, it...