Kennell v. Clayton Tp.
| Decision Date | 31 December 1992 |
| Docket Number | No. 4-92-0254,4-92-0254 |
| Citation | 606 N.E.2d 812,239 Ill.App.3d 634,179 Ill.Dec. 980 |
| Parties | , 179 Ill.Dec. 980 Marilyn K. KENNELL, Individually and as Administrator of the Estate of Michelle Kay Kennell, and Cheryl A. Pisel and Larry J. Pisel, Individually and as Administrators of the Estate of Cheri Ann Pisel, Plaintiffs-Appellants, v. CLAYTON TOWNSHIP, Defendant-Appellee (Estate of Chester Gerdes, Defendant). |
| Court | United States Appellate Court of Illinois |
Jay S. Judge, Kathryn M. James, Kristine A. Karlin, Judge & James, Ltd., Park Ridge, for defendant-appellee.
This is an appeal by plaintiffs Marilyn K. Kennell, individually and as administrator of the estate of Michelle Kay Kennell, and Cheryl A. Pisel and Larry J. Pisel, individually and as administrators of the estate of Cheri Ann Pisel, from an order of the circuit court of Woodford County directing a verdict in favor of defendant Clayton
[179 Ill.Dec. 982] Township (Township) in a wrongful death cause of action based on immunity of the Township under section 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (Ill.Rev.Stat.1989, ch. 85, par. 2-201). Defendants originally included the Township road commissioner; however, dismissal occurred upon suggestion on the record of his death.
Cheri Ann Pisel and Michelle Kay Kennell, sole occupants of the Pisel family auto, died as a result of a one-car accident which took place at 5:15 p.m. on March 24, 1989. The accident occurred on Clayton Township Road 2400 E and the location of an abandoned rail crossing which crossed the road at a 45-degree angle. While rails had been removed and blacktop substituted, a rise in the road resulting from the rail crossing still existed. Cheri was 16 years of age and a newly licensed driver. Upon motion for directed verdict, the trial court ruled:
"I conclude that, whether what happened here was a decision not to remove this hump in the road after the tracks were removed or whether it was simply the lack of a decision, the function of the road commissioner in determining to do the work or not, or to not even think about it, was a discretionary function, and thus immune from liability under Section 2-201 of the Act."
While defendant emphasizes the distance the auto traveled after loss of control as evidence of excessive speed, we find the trial court's dismissal was based solely on the argument on section 2-201 of the Act. For purposes of this appeal, the question of speed, an issue not determined below by the fact finder, is of no relevance.
Verdicts should be directed only where all the evidence, when viewed in a light most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict, based on that evidence, could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-14.
While the trial court ruled based upon section 2-201 of the Act and upon the theory of a discretionary decision, after an examination of the trial record, we feel compelled to affirm because of the absence of evidence of proximate cause.
The evidence established that the accident victims were in a motor vehicle, driving north on an oil and chip country road. The driver was young and recently licensed. There was good visibility, and the road was straight without other traffic. Exhibits indicate there was an elevation in the road caused by an abandoned rail crossing. The crossing was at an angle, but photograph exhibits fail to indicate a particularly substantial rise. All warning signs for the crossing had been removed. The rails had been removed, and the surface was blacktopped. There was no expert testimony as to whether the rise was dangerous or any evidence of other accidents at the location of the rise.
There were two eyewitnesses to this accident, a father and son who lived across the road from each other. Their residences were located just north of the elevation where the rail crossing had been. Both men were standing in the son's yard, on the east side of the road. The father, Harold Moritz, testified that he noticed the Pisel car approaching the rise from the south. He watched the car as it crossed the rise and continued on for some distance beyond. He noticed nothing unusual about the car's motion, and he had no opinion as to the speed of the vehicle. When the car was "far beyond" the rise, he turned around to continue attending to his chores. He then heard tires squealing and the car's engine revving. He ran around the barn, and saw dust flying and the tires and hood flying off the car.
Richard Moritz testified that he merely glanced at the Pisel car as it approached the old crossing from the south. He did not watch the car go over the rise. Like his father, he was unable to form an opinion as to speed of the vehicle. He looked The testimony of the Moritzes failed to establish that the rise in the roadway was the cause of the accident. Proximate cause is "any cause which, in natural or probable sequence, produced the injury complained of." (Illinois Pattern Jury Instructions, Civil, No. 15.01 (3d ed. 1992).) Without evidence of proximate cause, liability is not established. Liability for personal injuries cannot be predicated on mere speculation, conjecture, or surmise, but must be based upon facts established by competent evidence fairly tending to prove it. (Tompkins v. Twin Oaks Dairy, Inc. (1968), 91 Ill.App.2d 88, 94, 234 N.E.2d 403, 406; 28 Ill.L. & Prac. Negligence § 241, at 213 (1957).) A directed verdict is proper when there is insufficient evidence to create a factual question. (Derrico v. Clark Equipment Co. (1980), 91 Ill.App.3d 4, 9, 46 Ill.Dec. 232, 237, 413 N.E.2d 1345, 1350.) The evidence failed to establish proximate cause.
[179 Ill.Dec. 983] up when he heard tires squealing. He saw the Pisel vehicle sliding down the road sideways, then shoot into the ditch and become airborne.
Regardless of our finding of absence of sufficient evidence of proximate cause, we consider it beneficial to address the tort immunity issue. The issue involves joint consideration of sections 2-109, 2-201, and 3-102(a) of the Act. Section 2-109 provides: "A local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable." (Ill.Rev.Stat.1989, ch. 85, par. 2-109.) Section 2-201 provides:
"Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused." (Ill.Rev.Stat.1989, ch. 85, par. 2-201.)
Section 3-102(a) provides:
"Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition." Ill.Rev.Stat.1989, ch. 85, par. 3-102(a).
The question to be answered is whether section 3-102(a) of the Act imposed a duty upon the Township to remove the rise in the roadway, or whether the decision to do so was one for the road commissioner, thus triggering the immunity of both sections 2-201 and 2-109 of the Act.
We first confront plaintiffs' argument that because the road commissioner is no longer a party to this action, the purpose behind section 2-201 of the Act does not exist and section 2-109 of the Act has no effect. No authority is cited for this argument, and we find none. We find the argument spurious, and also find no logic in saying a public entity, otherwise immune, loses that immunity because the employee allegedly performing an act or omission is not made a party defendant or is no longer a party because of death. A contrary decision would lead to circumvention of section 2-109 immunity and section 2-201 immunity benefits, whereby plaintiffs would simply elect not to make the employee a party defendant. If the alleged wrongdoing relates to a discretionary act of an employee, there is immunity for both the employee and the public entity, regardless of whether the employee is a party defendant.
Plaintiffs' second contention is that the duty of local governments codified in section 3-102(a) of the Act cannot be avoided by invoking the immunity provided through section 2-109. This argument misconceives the nature of the relationship between these two sections.
The common law extended immunity to local governmental entities engaged in governmental or discretionary functions, but held them liable for negligence in the performance of ministerial functions. It has been recognized that it is part of the ministerial duty of a municipality to keep its streets and sidewalks in a reasonably safe condition for public travel. (Blackaby v. City of Lewiston (1932), 265 Ill.App. 63, 71; Lehigh Valley Transportation Co. v. City of Chicago (1908), 237 Ill. 581, 583-84, 86 N.E. 1093, 1093.) Discretionary acts are those which are unique to the particular public office and involve the exercise of judgment. (See Lusietto v. Kingan (1969), 107 Ill.App.2d 239, 244, 246 N.E.2d 24, 27.) On the other hand, ministerial acts are those which are performed in a prescribed manner, in obedience to the mandate of legal authority, without regard to the exercise of...
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... ... See Shields Enter., Inc. v. First Chicago Corp., 975 F.2d 1290, 1297 (7th Cir.1992) ... In Kennell v. Clayton Township, 239 Ill. App.3d 634, 179 Ill.Dec. 980, 606 N.E.2d 812 (1992), the Illinois Court of Appeals distinguished between discretionary ... ...
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... ... The cases recognize "that, depending upon the situation, what might be considered a repair can be a discretionary matter." Kennell v. Clayton Township, 239 Ill.App.3d 634, 641, 179 Ill.Dec. 980, 606 N.E.2d 812 (1992), citing Lusietto, 107 Ill.App.2d at 244, 246 N.E.2d 24. In ... ...