Lusietto v. Kingan, Gen. No. 68--46
| Court | United States Appellate Court of Illinois |
| Writing for the Court | PER CURIAM |
| Citation | 107 Ill.App.2d 239,246 N.E.2d 24 |
| Parties | James LUSIETTO, Administrator of the Estate of Shirley Lusietto, Deceased, Plaintiff-Appellee, v. James KINGAN, Defendant-Appellant. |
| Docket Number | Gen. No. 68--46 |
| Decision Date | 18 March 1969 |
Page 24
Lusietto, Deceased, Plaintiff-Appellee,
v.
James KINGAN, Defendant-Appellant.
[107 Ill.App.2d 240]
Page 25
William G. Clark, Chicago, by Jas. Collins, Kankakee, John O'Toole, Chicago, for plaintiff-appellee.Kevin D. Kelly, LaSalle, Walter Durley Boyle and Linn C. Goldsmith, Hennepin, for defendant-appellant.
PER CURIAM.
The administrator plaintiff recovered a judgment on a jury's verdict for $10,000 for the wrongful death of plaintiff's intestate who was killed while operating an automobile on a portion of State Highway 89 in Putnam County which was under the jurisdiction of the defendant in his capacity as Maintenance Supervisor for certain state highways in District No. 3 of the State Highway Division.
The complaint alleged that the defendant failed to maintain the highway properly and permitted a large and dangerous hole to form and exist in the highway for a [107 Ill.App.2d 241] long period of time; that the defendant failed to repair the hole when he knew or should have known of such condition; that the defendant failed to warn plaintiff's intestate of the condition of the highway by way of warning signs, etc. whereupon the car driven by plaintiff's intestate struck the hole which caused it to leave the road, thereby causing the death of plaintiff's intestate.
The testimony varied as to the size of the hole, the length of time it had been in existence and as to its location. However, from the jury verdict, it is obvious that the jury believed that the hole was there and that it caused the accident in question.
The defendant was employed by the State of Illinois occupying the position of Maintenance Supervisor for certain state highways in District No. 3 of the State Highway Division. The area under his jurisdiction contained two hundred and forty miles of highways in five counties. That part of State Highway 89 at the place of the occurrence was under his supervision. The defendant had about thirty men under him. On the Monday following the occurrence of the accident,
Page 26
he went to the scene and supervised the men in making repairs. He knew that the section of highway in the area where plaintiff's intestate was killed was in need of repairs for quite a long time before the accident. There were a lot of holes in the road. There were no barricades at the place of the accident.Defendant has appealed contending that a suit against a state highway employee alleging nonfeasance in the maintenance of a state highway is in fact a suit against the State of Illinois which suit is prohibited by the Illinois Constitution, S.H.A. (Article IV, Section 26); and that, in any event, the evidence adduced by the plaintiff showed neither that the nonfeasance of the defendant constituted negligence in the performance of his duties nor that such nonfeasance was the proximate cause of the death of plaintiff's intestate.
[107 Ill.App.2d 242] We believe that the law is clear that a state highway employee may be sued and held individually liable for certain negligent acts committed by him in the course of his employment. Creamer v. Rude, 37 Ill.App.2d 148, 185 N.E.2d 345. In order for a negligent act to give rise to liability, however, it is a well established common law rule that a legal duty must exist in favor of the person injured and imposed on the person whose conduct produces the injury. Aetna Ins. Co. v. Ill. Cent. R. Co., 365 Ill. 303, 6 N.E.2d 189. In the Creamer case above cited and in the cases of Hering v. Hilton, 12 Ill.2d 559, 147 N.E.2d 311, and Pree v. Hymbaugh, 23 Ill.App.2d 211, 162 N.E.2d 297 relied on by the plaintiff, the defendants in each case were operating motor vehicles on the public highways in a negligent manner. What the opinions said in those cases, in effect, was that the fact of governmental employment could not be used as a shield. The duty imposed on those defendants was held to be the same duty imposed on all other persons operating motor vehicles on the public highways. We believe this to be sound law.
In the instant case, however, the plaintiff is asking that we predicate the defendant's liability solely on the basis that he is a government employee. That is to say, that as a Maintenance Supervisor of the State Highway Division, he owed a duty to the plaintiff to maintain that portion of the highway where the accident occurred and to have either filled the particular hole that caused the injury or to have posted or barricaded it in some way. With this contention, we cannot agree.
We believe that the plaintiff and the trial court in this case have misconstrued the matter by attempting to impose the State's duty to...
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Chicago Flood Litigation, In re, Nos. 80460
...distinction survives. See Mora v. State, 68 Ill.2d 223, 233-34, 12 Ill.Dec. 161, 369 N.E.2d 868 (1977), quoting Lusietto v. Kingan, 107 Ill.App.2d 239, 244, 246 N.E.2d 24 (1969); Eck v. McHenry County Public Building Comm'n, 237 Ill.App.3d 755, 762-63, 178 Ill.Dec. 586, 604 N.E.2d 1109 (199......
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Monson v. City of Danville, Docket No. 122486
...Ill.Dec. 532, 680 N.E.2d 265 (citing Kennell , 239 Ill. App. 3d at 641, 179 Ill.Dec. 980, 606 N.E.2d 812, citing Lusietto v. Kingan , 107 Ill. App. 2d 239, 244, 246 N.E.2d 24 (1969) ). However, " ‘[d]iscretion’ connotes a conscious decision." Corning v. East Oakland Township , 283 Ill. App.......
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Tcherepnin v. Franz, No. 64 C 1285.
...465, 309 N.E.2d 394 (3d Dist. 1974); Anderberg v. Newman, 5 Ill.App.3d 736, 283 N.E.2d 904 (1st Dist. 1972); Lusietto v. Kingan, 107 Ill. App.2d 239, 246 N.E.2d 24 (3d Dist. 1969); 63 Am.Jur.2d Public Officers and Employees §§ 292-293 (1972). It has been held that the failure of a public of......
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Robinson v. Wash. Twp., Corp., No. 3–11–0177.
...657 N.E.2d 988. Plaintiff's complaint adequately alleges that duty. ¶ 15 Nevertheless, defendant urges us to follow Lusietto v. Kingan, 107 Ill.App.2d 239, 246 N.E.2d 24 (1969) ( per curiam), and Wrobel, 318 Ill.App.3d 390, 252 Ill.Dec. 151, 742 N.E.2d 401, and conclude that the repair of a......
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Chicago Flood Litigation, In re, Nos. 80460
...distinction survives. See Mora v. State, 68 Ill.2d 223, 233-34, 12 Ill.Dec. 161, 369 N.E.2d 868 (1977), quoting Lusietto v. Kingan, 107 Ill.App.2d 239, 244, 246 N.E.2d 24 (1969); Eck v. McHenry County Public Building Comm'n, 237 Ill.App.3d 755, 762-63, 178 Ill.Dec. 586, 604 N.E.2d 1109 (199......
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Monson v. City of Danville, Docket No. 122486
...Ill.Dec. 532, 680 N.E.2d 265 (citing Kennell , 239 Ill. App. 3d at 641, 179 Ill.Dec. 980, 606 N.E.2d 812, citing Lusietto v. Kingan , 107 Ill. App. 2d 239, 244, 246 N.E.2d 24 (1969) ). However, " ‘[d]iscretion’ connotes a conscious decision." Corning v. East Oakland Township , 283 Ill. App.......
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Tcherepnin v. Franz, No. 64 C 1285.
...465, 309 N.E.2d 394 (3d Dist. 1974); Anderberg v. Newman, 5 Ill.App.3d 736, 283 N.E.2d 904 (1st Dist. 1972); Lusietto v. Kingan, 107 Ill. App.2d 239, 246 N.E.2d 24 (3d Dist. 1969); 63 Am.Jur.2d Public Officers and Employees §§ 292-293 (1972). It has been held that the failure of a public of......
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Robinson v. Wash. Twp., Corp., No. 3–11–0177.
...657 N.E.2d 988. Plaintiff's complaint adequately alleges that duty. ¶ 15 Nevertheless, defendant urges us to follow Lusietto v. Kingan, 107 Ill.App.2d 239, 246 N.E.2d 24 (1969) ( per curiam), and Wrobel, 318 Ill.App.3d 390, 252 Ill.Dec. 151, 742 N.E.2d 401, and conclude that the repair of a......