Robinson v. Atchison, Topeka & Santa Fe Ry. Co.

• Decision Date: 10 February 1994
• Docket Number: No. 3-93-0261,3-93-0261
• Citation: 629 N.E.2d 209,257 Ill.App.3d 772,195 Ill.Dec. 901
• Parties: , 195 Ill.Dec. 901 Jeffrey ROBINSON, Individually and as Next Friend of Brandi Robinson, a minor, and Phyllis Robinson, Administratrix of the Estate of Bernard Robinson, Deceased, Plaintiff-Appellants, v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Defendant (Allen Township, Defendant-Appellee).
• Court: United States Appellate Court of Illinois

Page 209

629 N.E.2d 209

257 Ill.App.3d 772, 195 Ill.Dec. 901

Jeffrey ROBINSON, Individually and as Next Friend of Brandi Robinson, a minor, and Phyllis Robinson Administratrix of the Estate of Bernard Robinson, Deceased, Plaintiff-Appellants, v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Defendant (Allen Township, Defendant-Appellee).

No. 3-93-0261.

Appellate Court of Illinois Third District.

Feb. 10, 1994.

Rehearing Denied March 14, 1994.

Jay H. Janssen, argued, Janssen, Maher, Wertz & Miller, Peoria, for Jeffrey Robinson and Phyllis Robinson.

Kristine A. Karlin, Park Ridge, Jay S. Judge, argued, Judge & James, Ltd., Park Ridge, for Allen Tp Justice STOUDER delivered the opinion of the court:

This action arose out of a collision between an automobile and a train at a railroad crossing in Allen Township in La Salle County. The plaintiffs, Jeffrey Robinson, individually and as next friend of Brandi Robinson, a minor, and Phyllis Robinson, Administratrix of the estate of Bernard Robinson, deceased, appeal from the dismissal with prejudice of paragraphs 13(e) through 13(i) of their second amended complaint against the defendant, Allen Township, and also from the granting of summary judgment in favor of the township on the remaining counts of the complaint. The plaintiffs have reached a settlement with defendant Atchison, Topeka & Santa Fe Railway company and the allegations of the complaint against that defendant are not involved in this appeal. The plaintiffs raise four issues for our consideration: (1) whether the defendant township had a duty to place railroad advance warning signs on North 15th Road, south of the Railroad crossing; (2) whether the township had a duty to maintain the advance warning sign that was present on North 15th Road ten years prior to the accident; (3) whether the township had a duty to place a stop sign in the vicinity of the railroad crossbucks; and (4) whether there is a genuine issue of fact as to whether the illegal grade of the crossing proximately caused the collision in question. We affirm.

The accident out of which this action arose occurred on December 2, 1988 at approximately 7:55 p.m. According to the plaintiffs' second amended complaint, Pamela Robinson was driving a 1974 Cadillac in which Bernard Robinson and Brandi Robinson were passengers. They were proceeding westbound on North 15th Road and then turned north on 24th Road. After turning on to 24th Road they crossed the railroad tracks of Atchison, Topeka & Santa Fe Railway Company. Their vehicle was struck by a westbound train. Bernard Robinson was killed and Brandi Robinson suffered serious injuries.

The plaintiffs filed a second amended complaint in which counts nine through twelve were directed at this defendant. The plaintiffs alleged numerous acts of negligence on the part of the defendant. Specifically, the plaintiffs alleged violations of various provisions of the Illinois Manual on Uniform Traffic Control Devices for Streets and Highways and also various Rules of the Illinois Commerce Commission (ICC). The defendants filed a motion to dismiss. The court granted the motion with respect to paragraphs 13(e) through 13(i) of counts IX, X, and XI. Those paragraphs contained the following allegations of negligence:

e) Allen Township failed to properly install a stop sign in the vicinity of the crossbucks.

f) Allen Township failed to place a stop sign as directed by the Illinois Manual on Uniform Traffic Control Devices for Streets and Highways "at the point where the vehicle is to stop or as near thereto as possible" which is in the position where the motorist would be at right angles with the railroad tracks immediately before the Railroad Tracks.

g) Allen Township violated the mandatory condition "shall" in not placing a Railroad Advance Warning Sign on the roadway in advance of the grade crossing in violation of the "Manual" 8B-3.

h) Allen Township violated the mandatory condition "shall" in not replacing the Railroad Advance Warning sign on the roadway in advance of the grade crossing in violation of the "Manual" 8B-3 when said advance warning was present on March 11, 1978, but was absent at the time of this collision.

i) Allen Township violated the duty to apply for and obtain flashers and gates at this crossing after the 1978 collision and before the 1988 collision.

On appeal, the plaintiffs first argue that the court erred in dismissing the above paragraphs of their complaint because the defendant had a duty to place railroad advance warning signs on North 15th Road, south of the railroad crossing. The defendant responds that it has immunity pursuant to section 3-104 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/3-104 (West 1992)). That section provides as follows:

"Neither a local public entity nor a public employee is liable under this Act for an injury caused by the failure to initially provide regulatory traffic control devices, stop signs, yield right-of-way signs, speed restriction signs, distinctive roadway markings or any other traffic regulating or warning sign, device or marking, signs, overhead lights, traffic separating or restraining devices or barriers."

The supreme court in West v. Kirkham (1992) 147 Ill.2d 1, 167 Ill.Dec. 974, 588 N.E.2d 1104, read this section broadly and found its language to be unconditional. The court's decision in West effectively disposes of this argument by the plaintiffs and also the argument that a stop sign was necessary in the vicinity of the crossbucks. The court noted that section 3-104 "clearly and unequivocally states that the municipality is immune from all liability arising out of the failure to provide a particular traffic control device." (West, 147 Ill.2d at 7, 167 Ill.Dec. at 977, 588 N.E.2d at 1107.) The West court further found that the legislature's intent in amending this section in 1986 was to immunize absolutely the failure to initially provide a traffic control device, even where that failure might endanger the safe movement of traffic. West, 147 Ill.2d at 8, 167 Ill.Dec. at 978, 588 N.E.2d at 1108.

The plaintiffs argue that the township is not immune because the Manual on Uniform Traffic Control Devices provides that railroad advance warning signs are mandatory on roadways in advance of every grade crossing. Neither the express language of section 3-104 nor the supreme court's interpretation of that section in West provide for an exception for mandatory warning signs. Further, even if such an exception did exist, it would not apply to this case. The road in advance of the railroad crossing was 24th road, on which there was an advance warning sign. The plaintiffs argue that there should have been such a sign on 15th road, the road parallel to the railroad tracks. The defendants correctly point out that the manual makes placement of railroad advance warning signs on parallel roads optional. We therefore conclude that the court did not err in dismissing paragraphs 13(e) through (i) of counts IX through XI of the plaintiff's second amended complaint.

The plaintiffs have also made the argument that even if the township had no duty to initially place a railroad advance warning sign on North 15th Road, it did have a duty to maintain the sign that had once been there. The plaintiffs had evidence that, at the time of another accident at this same crossing in 1978, there was a railroad advance warning sign on North 15th Road. Section 3-104, by its terms, immunizes only an initial failure to place traffic control devices. Section 3-102(a) (745 ILCS 10/3-102(a) (West 1992)) provides that local public entities have a duty to use ordinary care to maintain their property in a reasonably safe condition. Nevertheless, we do not view this case as being an instance of a failure to maintain a sign. The term "maintenance" implies repair and upkeep. What the plaintiffs are essentially arguing is that, because the township once had a warning sign on 15th road they are now forever required to have one there. As previously noted, the decision whether to place a railroad advance warning sign on a parallel road is discretionary. Likewise, the decision to remove...