Lansing v. McLean County

• Decision Date: 06 January 1976
• Docket Number: No. 13502,13502
• Parties: , 3 Ill.Dec. 755 Donald J. LANSING, Executor of the Estate of Helen Elizabeth Lansing, Deceased, et al., Plaintiffs-Appellants, v. COUNTY OF McLEAN, a governmental entity and McLean County Superintendent of Highways, a governmental entity, Defendant-Appellees.
• Court: United States Appellate Court of Illinois

Page 165

359 N.E.2d 165

45 Ill.App.3d 91, 3 Ill.Dec. 755

Donald J. LANSING, Executor of the Estate of Helen Elizabeth

Lansing, Deceased, et al., Plaintiffs-Appellants, v. COUNTY OF McLEAN, a governmental entity and McLean County

Superintendent of Highways, a governmental entity,

Defendant-Appellees.

No. 13502.

Appellate Court of Illinois, Fourth District.

Jan. 6, 1976.

Rehearing Denied Feb. 14, 1977.

James Walker, Bloomington, for plaintiffs-appellants.

Randall B. Ehlers and Gale W. Saint, Bloomington, for defendants-appellees.

REARDON, Justice.

This is an appeal from a judgment of the circuit court of McLean County dismissing plaintiffs' complaints in actions for wrongful death and personal injuries arising from an automobile accident. In their complaints, plaintiffs allege that the defendants were negligent in failing to remove accumulated ice from a State aid highway and in failing to post signs warning of the alleged danger. Plaintiffs allege that these failures breached defendants' statutory duties to supervise, construct, maintain and repair the highway pursuant to sections 5-205.5 and 5-401 of the Illinois Highway Code (Ill.Rev.Stat.1971, ch. 121, pars. 5-205.5, 5-401). Plaintiffs further allege that this breach proximately caused the death of Helen Lansing and the personal injuries sustained by Charles Lansing even though both were exercising ordinary care for their own safety at the time of the accident. The order dismissing the complaints recited that 'common law recognizes to duty (on the part of defendants) to remove natural accumulations of ice and snow' from the highway on which the accident occurred.

On December 14, 1972, Helen Lansing, the wife and mother of plaintiffs herein, was a passenger in an automobile driven by her son Charles which was proceeding in an easterly direction along State aid route 24, a part of the county road system of Tazewell and McLean counties. Although the snowfall had apparently been uniform in both counties prior to that date, the Tazewell County highway was clear and free of ice and snow while the McLean County highway was not clear. Upon entering McLean County, the vehicle encountered a sheet of ice which allegedly covered the highway to a depth of one inch. The automobile allegedly swerved out of control on the ice and crashed into a culvert, killing Mrs. Lansing and severely injuring her son Charles.

Donald Lansing, husband of the deceased and executor of her estate, filed this action against the County of McLean and its superintendent of highways, alleging that his wife's death resulted from the defendants' negligence. Plaintiff also sought reimbursement for the decedent's funeral and burial expenses. The defendant's son, Charles Lansing, sued both defendants for damages arising from the personal injuries he suffered in the accident.

The defendants moved to dismiss the action on two grounds: (1) that they were immune from the suit; and (2) that they had no duty to remove accumulated ice and snow from State aid route 24.

Sovereign immunity is of judicial origin and is a contemporary, although disfavored doctrine founded on the ancient principle that 'the King can do no wrong.' An early explanation of the doctrine emphasized that permitting suit to be brought against the King was offensive to the concept of royal sovereignty. Later, allowance of suits against the government was recognized as inconsistent with the concept of the 'supreme executive power.' (Prosser, Handbook of the Law of Torts, 970 (4th ed. 1971).) Even later, as the King was replaced by the modern State, the theory was attacked in its entirety. Prosser, 984 Et seq.

A constitutional form of sovereign immunity is embodied in the eleventh amendment of the United States Constitution and in section 26 of article IV of the 1870 Illinois Constitution. In recent years, however, the trend of thought has been turning against the doctrine. In this regard, section 4 of article XIII of the 1970 Illinois Constitution abolishes the doctrine except as the General Assembly shall provide.

Our supreme court has abolished the sovereign immunity of local governments (Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill.2d 11, 163 N.E.2d 89; Harvey v. Clyde Park District (1964), 32 Ill.2d 60, 203 N.E.2d 573; Lorton v. Brown County Community Unit School District (1966), 35 Ill.2d 362, 220 N.E.2d 161; Sullivan v. Midlothian Park District (1972), 51 Ill.2d 274, 281 N.E.2d 659; Housewright v. City of La Harpe (1972), 51 Ill.2d 357, 282 N.E.2d 437) although our general assembly thereafter attempted to reinstate the tort immunity of local governments by passing the Local Government and Governmental Employees Tort Immunity Act (Ill.Rev.Stat.1971, ch. 85, par. 1-101, et seq.). Recently, however, out supreme and appellate courts have again chipped the edifice of local governmental immunity by liberally interpreting section 9-103 of the Act which concerns waiver of immunity by insurance. (See, West, 'Immunity' from the Tort Immunity Act, 62 Ill.B.J. 496 (1974), and the authorities cited therein.) We do not exaggerate when we say that the field of immunity is in a topsy-turvy state.

Section 5-401 of the Illinois Highway Code (Ill.Rev.Stat.1971, ch. 121, par. 5-401) provides:

'Subject to the general supervisory powers of the Department under this Code, all highways in the county highway system shall be under the direct control and supervision of the county board of the county in which such county highways are located, and the county board shall repair, maintain and construct such county highways by contract or with its own forces.'

A county highways system includes State aid roads (section 2-102 of the Act, Ill.Rev.Stat.1971, ch. 121, par. 2-102), and the duty to maintain these roads is extended to the county and its superintendent of highways by sections 5-205.5 and 5-401 of the Act (Ill.Rev.Stat.1971, ch. 121, pars. 5-205.5, 5-401).

On the other hand, section 3-105 of the Local Government and Governmental Employees Immunity Act (Ill.Rev.Stat.1971, ch. 85, par. 3-105) shields counties and their employees from liability for injuries sustained during use of county highways. Section 3-104(a) of the Act (Ill.Rev.Stat.1971, ch. 85, par. 3-104(a)) also shields counties and their employees from liability for injuries caused by the failure to provide highway signs warning of dangerous conditions on the roadway. Section 9-103 of the Act however, contains a waiver provision providing, in pertinent part, that:

'(a) A local public entity may contract for insurance against any loss or liability which may be imposed upon it under this Act. * * *

(b) Every policy for insurance coverage issued to a local public entity shall provide or be endorsed to provide that the company issuing such policy waives any right to refuse payment or to deny liability thereto within the limits of said policy by reason of the nonliability of the insured public entity for the wrongful or negligent acts of itself or its employees and its immunity from suit by reason of the defenses and immunities provided in this Act.' Ill.Rev.Stat.1971, ch. 85, par. 9-103(a), (b).

In the instant case, the county has admitted that it is insured under a contract of public liability insurance and we hold, therefore, that the county has waived its defenses and immunities under the Local Government and Governmental Employees Tort Immunity Act. Kobylanski v. Chicago Board of Education (1976), 63 Ill.2d 165, 347 N.E.2d 705.

In dismissing the complaint in the instant case, the trial court correctly noted that Illinois courts have held, as a general rule, that local governmental units are not obligated to remove snow and ice accumulating from natural conditions where the accumulation covers a large geographical area and constitutes a hazard generally known to the public. (Strappelli v. City of Chicago (1939), 371 Ill. 72, 20 N.E.2d 43.) A local governmental unit may, however, incur liability for its failure to neutralize or remove an unnatural accumulation of ice or snow as would arise by reason of a defect in a sidewalk (Jones v. City of Rock Island (1968), 101 Ill.App.2d 174, 242 N.E.2d 302), or by reason of an overflow from a skating rink (Graham v. City of Chicago (1931), 346 Ill. 638, 178 N.E. 911). In all cases the local governmental unit will not be amenable to suit unless it had actual or constructive notice of the dangerous condition. Barker v. City of Rockford (1926), 239 Ill.App. 528.

In Strappelli, a pedestrian preparing to board a streetcar slipped and was injured on the irregular icy surface of a streetcar platform. In reversing a $5000 award for damages incurred by the plaintiff, our supreme court stated that:

'* * * (T)he same general weather conditions affected the sidewalks of Chicago and the safety island in the same manner. This condition resulted from natural causes beyond the power of the city to prevent or control and required pedestrians, when using safety islands, placed by the city for their protection and convenience, to exercise the same degree of care for their own safety as they would use on the streets and highways under like conditions.' 371 Ill. 72, 75, 20 N.E.2d 43, 44.

In McElligott v. Illinois Central Railroad Co. (1967), 37 Ill.2d 459, 227 N.E.2d 764, plaintiff's automobile slipped on an icy roadway approaching defendant's track. The vehicle then collided with defendant's train, severely injuring the plaintiff and killing her husband. Defendant's right-of-way extended for 50 feet on either side of the tracks, but the municipality constructed and maintained all but defendant's 4-foot approach on either side of the tracks. In reversing and remanding for a new trial, our supreme court stated:

'We concur with the trial court's statement that if the only negligence charged was the failure to maintain the area within the entire right of way 'this court would have granted a directed verdict.' It is clear that the...