Mora v. State

• Decision Date: 05 October 1977
• Docket Number: No. 47368,47368
• Parties: , 12 Ill.Dec. 161 Ronald L. MORA et al., Appellants, v. The STATE of Illinois et al., Appellees.
• Court: Illinois Supreme Court

Page 868

369 N.E.2d 868

68 Ill.2d 223, 12 Ill.Dec. 161

Ronald L. MORA et al., Appellants, v. The STATE of Illinois et al., Appellees.

No. 47368.

Supreme Court of Illinois.

Oct. 5, 1977.

Rehearing Denied Nov. 23, 1977.

Louis G. Davidson & Associates, Ltd., Chicago (Louis G. Davidson and Robert B. Patterson, Chicago, of counsel), for appellants.

William J. Scott, Atty. Gen., Chicago (Paul J. Bargiel and Patricia Rosen, Asst. Attys. Gen., of counsel), for appellee State of Illinois.

Ruff & Grotefeld, Ltd., Chicago (William Sven Grotefeld, Robert J. Klovstad, and Robert A. Deane, Chicago, of counsel), for appellee Eaton Asphalt Co.

Menk, Bishop & Kezelis, Chicago (John Cadwalader Menk and John T. Mehigan, Chicago, of counsel), for appellee Peoria Blacktop, Inc.

French & Rogers, Chicago (Richard G. French and Michael C. Kominiarek, Chicago, of counsel), for appellees Robert H. Blasius, Claude Hershey, and Clay H. Skinner.

DOOLEY, Justice.

Plaintiffs, Ronald L. Mora, Carolyn Knaus, and Dennis Dannel, brought suit to recover damages for personal injuries sustained when an automobile in which they were riding as passengers was struck by a car driven by William J. Clemens. Named as defendants were Ronald Chapman, the driver of plaintiffs' car, the State of Illinois, two paving contractors, Peoria Blacktop, Inc., and Eaton Asphalt Company, and three employees of the State Department of Transportation, Robert H. Blasuis, Claude Hershey and Clay H. Skinner, who were sued in their individual capacity.

On plaintiffs' motion, Chapman was dismissed as a party defendant before trial. The trial court also dismissed the State as a party before trial. At the close of plaintiffs' case the court directed a verdict in favor of the other defendants. Plaintiffs appealed to the appellate court, and the cause was transferred here under Rule 302(b) (58 Ill.2d R. 302(b)) because of multiple cases challenging the validity of the Court of Claims Act (Ill.Rev.Stat.1975, ch. 37, par. 439.1 et seq.) and the statute providing that the State of Illinois may not, except as provided in the Court of Claims Act, be sued in any court (Ill.Rev.Stat.1975, ch. 127, par. 801).

Here the issue is as old as the judge and jury system. Was it proper to direct a verdict for the defendants at the close of the plaintiffs' case? Such requires an examination of the evidence.

Clemens was originally made a defendant. After the close of plaintiffs' case and entry of the directed verdict, he entered into a settlement with Mora, and was dismissed from the action by agreement. Ronald Chapman, the driver of the car in which plaintiffs were riding, was also named as a defendant when the action was filed, but was also dismissed by plaintiffs. Plaintiffs did not call him as a witness.

Clemens, called as an adverse witness, testified as follows: The accident took place at 5:30 a. m. on August 8, 1970. It was dark and rainy. Clemens was headed south on the two-lane highway. He had been following another car operated by Susan Maves with a trailer attached, and decided to pass it. He looked to see if it was safe to do so and saw no approaching car and no headlights. When about 75 feet behind the trailer, Clemens pulled into the northbound lane and accelerated to about 65 miles per hour (the posted limit) in order to begin the maneuver. Whether the roadway was straight or curved when Clemens commenced his effort to pass does not appear from this record.

For approximately one-half mile north of the site of the accident the highway is straight. At the scene of the occurrence the roadway goes up a small hill and makes a double-S blind curve. The plaintiffs' car was approaching the crest of the hill from the south. Because of the topography, neither the car nor the beam of its headlights was visible to Clemens, then on the left side of the highway. Clemens first saw plaintiffs' car when it was some 400 to 600 feet away. He at first increased his speed to avoid a collision by completing his passing operation and returning to the southbound lane. He realized that this goal could not be achieved and applied his brakes. A collision occurred between Clemens' southbound car and Chapman's northbound vehicle in the northbound traffic lane.

The liability of the State, its employees, and the paving contractors is predicated on the lack of signs or markings on the highway which would have advised Clemens that he was at a point where passing would be hazardous. The connection of Peoria Blacktop, Inc., and Eaton Asphalt Company to the case stems from the fact that the Department of Transportation had hired the former to resurface and widen the highway in the vicinity where the collision occurred, and that the performance of the contract had been assigned by Peoria Blacktop to Eaton, presumably with the Department's consent. The repaving of the portion of the highway had been completed a short time before the accident.

The theory of plaintiffs' case is that if Clemens had been informed that he was approaching a hill and a curve, he would not have attempted to pass and the collision would not have taken place.

Clemens was a resident of Wisconsin, and he had never driven this portion of the highway before. Although plaintiffs called him as an adverse witness, he was not asked whether he would have refrained from passing had the road been differently marked.

Before taking up the legal obligations of the other defendants, we dispose of the suit against the State. Illinois law requires tort claims against the State to be pursued in the Court of Claims. (Ill.Rev Stat.1975, ch. 37, par. 439.8; ch. 127, par. 801.) Plaintiffs contend that those provisions are invalid under the equal protection and due process clauses of the Federal Constitution. Within the space of two years this court has twice rejected that contention. (See Williams v. Medical Center Com. (1975), 60 Ill.2d 389, 328 N.E.2d 1; Seifert v. Standard Paving Co. (1976), 64 Ill.2d 109, 355 N.E.2d 537.) We adhere to those decisions, and no further discussion of that issue is necessary. The dismissal of the State from this action is affirmed.

The entry of a directed verdict in favor of defendant Peoria Blacktop, Inc., must also be affirmed. As we have noted, that company had assigned the performance of its repaving contract to defendant Eaton Asphalt Company, and there is no evidence that Peoria Blacktop participated in any way.

The crucial question here is whether there could be an issue of fact as to the responsibility of Eaton and the three individual defendants. In determining this question, we shall consider all evidence which could be within the broad doctrine of Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co. (1971), 49 Ill.2d 118, 273 N.E.2d 809, notwithstanding that some was improperly excluded by the trial court.

It is conceded that before Eaton began the repaving operation the section of the highway where the accident occurred was not posted as a no-passing zone, nor with any sign advising that a curve and a hill lay ahead. Introduced in evidence was a publication of the Department of Public Works and Buildings, entitled Illinois Manual of Uniform Traffic Control Devices for Streets and Highways. It provides that a no-passing zone is to be established in any area where a motorist's ability to see ahead falls below a specified minimum. On the basis of extensive surveys taken after the accident, plaintiffs contend that the roadway here in question would qualify for posting as a no-passing zone under the standards set by the manual. This proposition is not seriously controverted by defendants.

Prior to its repaving and widening, the road had been marked with an intermittent, white center line and with a white edge line at each side of the paved portion. As a necessary result of the resurfacing, all these lines were obliterated. When the repaving was completed at this sector of the overall 13-mile project, Eaton placed strips of reflecting tape to indicate the center line as was required under the contract with the State. There is no contention that the proper side of the highway was unknown to Clemens. No temporary tape, however, was put in to mark the new edges of the road.

The repainting of permanent lines on the road after its resurfacing was a function of the Department and had not been imposed upon the paving contractor. According to the testimony, paint cannot be applied to new asphalt until it has cured. On August 8, when the accident occurred, the repaving of this portion of the highway had been completed to a point about 10 miles north of the site, but neither the center line nor the edge lines had as yet been repainted.

The uniform rule appears to be that a contractor has a duty to give warnings of dangers created by it. (Roberts v. Town of Cicero (1938), 369 Ill. 639, 642, 17 N.E.2d 960; cf. Brooks v. Dean Berenz Asphalt Co. (1967), 83 Ill.App.2d 258, 227 N.E.2d 100; McClendon v. T. L. James & Co. (5th Cir. 1956), 231 F.2d 802; Schwarcz v. Charlton County (1955), 211 Ga. 923, 89 S.E.2d 881; Archer v. Rogers Construction, Inc. (1968), 252 Or. 165, 447 P.2d 380.) The danger of the curve was not a consequence of Eaton's conduct. Eaton did not create the topography of the land. Eaton's repaving did not change the configuration of the roadway, nor did it remove any warnings indicating the presence of a danger zone.

Plaintiffs cite numerous decisions from Illinois and other jurisdictions, and our research has revealed more, in which contractors have been held to a duty to protect members of the public from injuries in connection with construction work on highways. In each case, however, the contractor itself created the risk.

Duties of contractors assume many shapes and forms. Contractors must: (a) adequately mark highway detours they have constructed (Green v. Welts (1970), 130 Ill.App.2d 600, 265 N.E.2d 188; Smith v. Lafortune (1970), 288 Minn. 135, 179 N.W.2d 136; Best v. Fred...