Ross v. City of Chicago

• Decision Date: 11 March 1988
• Docket Number: 87-0509,Nos. 87-0389,s. 87-0389
• Citation: 522 N.E.2d 215,168 Ill.App.3d 83
• Parties: , 118 Ill.Dec. 760 Janice ROSS, Special Administrator of the Estate of Samantha Ross, Quinton Ross and Cyril Ross, Deceased, Plaintiff-Appellant, v. CITY OF CHICAGO, a Municipal corporation, Defendant-Appellee, (Ford Motor Company, a foreign corporation, Defendant). Virginia CLEMENTS, Individually and as Administrator of the Estate of Lenore Clements, deceased; Harold Nabors; Patricia Clements; Mark Clements; and Lisa Clements, Plaintiffs-Appellants, v. CITY OF CHICAGO, a municipal corporation, and Ford Motor Company, a foreign corporation, Defendants.
• Court: United States Appellate Court of Illinois

Page 215

522 N.E.2d 215

168 Ill.App.3d 83, 118 Ill.Dec. 760

Janice ROSS, Special Administrator of the Estate of Samantha

Ross, Quinton Ross and Cyril Ross, Deceased, Plaintiff-Appellant, v. CITY OF CHICAGO, a Municipal corporation,

Defendant-Appellee, (Ford Motor Company, a foreign

corporation, Defendant).

Virginia CLEMENTS, Individually and as Administrator of the

Estate of Lenore Clements, deceased; Harold

Nabors; Patricia Clements; Mark

Clements; and Lisa Clements, Plaintiffs-Appellants, v. CITY OF CHICAGO, a municipal corporation, and Ford Motor

Company, a foreign corporation, Defendants.

Nos. 87-0389, 87-0509.

Appellate Court of Illinois First District, Fifth Division.

March 11, 1988.

[118 Ill.Dec. 761] [168 Ill.App.3d 85] Gerald M. Sachs & Associates, Ltd., Chicago (Gregory R. Sun and Thomas M. Klein, Chicago, of counsel), for Janice Ross.

Grant and Schencker, P.C., Chicago (Bennett R. Klasky, of counsel), for plaintiffs-appellants Virginia Clements, et al.

Judson H. Miner, Corp. Counsel of the City of Chicago, Chicago (Ruth M. Moscovitch, Chief Asst. Corp. Counsel, Lynn K. Mitchell, Asst. Corp. Counsel, of counsel), for City of Chicago.

Presiding Justice LORENZ delivered the opinion of the court:

Plaintiffs, Janice Ross (Ross) and Virginia Clements (Clements), in a consolidated action, filed separate complaints against defendants, Ford Motor Company and the City of Chicago (City) following the deaths of plaintiffs' decedents in an automobile collision. Plaintiffs appeal the dismissal below, as to defendant City, of both complaints under section 2-615 of the Code of Civil Procedure (Ill.Rev.Stat.1985, ch. 110, par. 2-615) pursuant to a finding by the On September 3, 1984, an automobile containing plaintiff Clements's decedent, traveling south at approximately 1800 North Lake Shore Drive, crossed over the roadway into on-coming traffic and collided head-on with an automobile containing plaintiff Ross's decedents. Both plaintiffs filed complaints, as amended, against defendant City alleging wrongful death and survival actions in counts I and II, respectively, arising out of the accident. The gravamen of each count being that, although with notice of numerous "crossover" collisions at the site of the accident, defendant City failed to erect a median barrier of adequate dimensions, as it had provided elsewhere on Lake Shore Drive, to prevent vehicles from crossing over the roadway into on-coming traffic. Collectively, the counts alleged that such duty arose either in accordance with common law, or contractually pursuant to a written agreement with the State of Illinois to "operate and maintain" portions of Lake Shore Drive, including the location where the accident occurred.

[118 Ill.Dec. 762] trial court under Supreme Court Rule 304(a). 107 Ill.2d R. 304(a).

In addition to the above, plaintiff Clements also brought wrongful death and survival counts against defendant City based on provisions of the Motor Vehicle Code. (Ill.Rev.Stat.1985, ch. 95 1/2 par. 1-100, et seq.) Counts III and IV of Clements's complaint alleged that various acts and omissions of defendant City constituted violations of the code with respect to the maintenance of adequate traffic control devices, including the failure to erect a barrier as outlined above. We note here that the parties, in both the motion and hearing thereon below, and now on appeal, concede that the disputed allegations concern only the failure to erect a median barrier.

In lieu of answers, defendant City filed a motion to dismiss both complaints pursuant to section 2-615 of the Code of Civil Procedure. (Ill.Rev.Stat.1985, ch. 110, par. 2-615.) The motion asserted that no duty existed to provide median barriers, and that the failure to erect such a barrier was a discretionary governmental decision protected under provisions of the Local Governmental and Governmental Employees Tort Immunity Act. (Ill.Rev.Stat.1985, ch. 85, par. 1-101, et seq.) On January 13, 1987, the trial court entered an order granting defendant City's motion. This appeal followed.

OPINION

On review of dismissal of an action under section 2-615 of the Code of Civil Procedure, the appellate court applies the same standards with respect to the pleadings as the court below which initially heard the motion. The court must determine whether, interpreting the allegations of the complaint in a light most favorable to the plaintiff, it appears that no set of facts could be proven under the pleadings which would entitle the plaintiff to relief. (Village of Wheeling v. Stavros (1980), 89 Ill.App.3d 450, 44 Ill.Dec. 701, 411 N.E.2d 1067.) The court is to be concerned only with questions of law. (Jones v. Eagle II (1981), 99 Ill.App.3d 64, 54 Ill.Dec. 350, 424 N.E.2d 1253.) The court tests the sufficiency of the complaint by ascertaining whether the essential elements of a cause of action exist. Beese v. National Bank (1980), 82 Ill.App.3d 932, 38 Ill.Dec. 364, 403 N.E.2d 595.

Plaintiff, in a case involving negligence, such as the case at bar, must set forth the existence of a duty, a breach of that duty, and an injury proximately resulting from the breach of the duty. (Horrell v. City of Chicago (1986), 145 Ill.App.3d 428, 99 Ill.Dec. 524, 495 N.E.2d 1259.) The question of duty is one of law. (Curtis v. County of Cook (1983), 98 Ill.2d 158, 74 Ill.Dec. 614, 456 N.E.2d 116.) Thus, the issue before the court is whether defendant City had a duty arising either by operation of common law, under contract, or by statute, as alleged in the collective counts of plaintiffs' complaints, to provide an adequate median barrier on Lake Shore Drive, at the location of the accident, to prevent a vehicle from crossing over the roadway into lanes of on-coming traffic.

The liability of a municipal corporation in Illinois is governed by the Local Governmental and Governmental Employees Tort Immunity Act. (Ill.Rev.Stat.1985, ch. 85, par. 1-101, et seq.) However, that act has essentially continued common law duties respecting the liability of a municipality in the maintenance of its public ways. (Warchol v. City of Chicago (1979), 75 Ill.App.3d 289, 30 Ill.Dec. 689, 393 N.E.2d 725.) The act adds no new duties to those which existed prior to its codification. Charpentier v. City of Chicago (1986), 150 Ill.App.3d 988, 104 Ill.Dec. 122, 502 N.E.2d 385.

Under common law, it is well settled that a municipality is responsible for the negligent construction of public works and for the failure to maintain them, but has no duty, and, therefore, is not liable for its negligence or refusal to undertake such improvements initially. (Resnik v. Michaels (1964), 52 Ill.App.2d 107, 201 N.E.2d 769.) Generally, until the City acts, it cannot be held liable. (Johnston v. City of East Moline (1950), 405 Ill. 460, 91 N.E.2d 401.) However, even where it undertakes to act in some fashion, a municipality is not considered to be an insurer against all accidents occurring on the public way; rather, a municipality is required to maintain its streets in a reasonably safe condition for the amount and kind of travel which may fairly be expected on them. (Warchol v. City of Chicago (1979), 75 Ill.App.3d 289, 30 Ill.Dec. 689, 393 N.E.2d 725.) Liability arises only when the undertaken improvement, itself, creates an unreasonably dangerous condition. Harding v. Chicago Park District (1975), 34 Ill.App.3d 425, 339 N.E.2d 779.

Further, the duty to maintain can only logically be as broad as that encompassed by the definition of the term. "Maintain" is "variously defined as acts of repairs and other acts to prevent a decline, lapse, or cessation from existing state or condition, * * * [to] keep in repair; keep up; preserve, * * *." (Black's Law Dictionary 859 (5th ed. 1971).) Maintenance involves preserving the roadway, keeping it up, not permitting it to fall into a state of disrepair, and involves, for example, the filling of potholes, or repairing deteriorated portions of the roadway. Harding, 34 Ill.App.3d at 429, 339 N.E.2d at 782.

In the case at bar, plaintiffs do not allege that the deaths of plaintiffs' decedents were caused by a state of disrepair or deterioration of the roadway, or for any other failure of maintenance, as that term is commonly understood. Rather, plaintiffs base their complaints on the failure of defendant City to undertake erection of a median barrier on a portion of Lake Shore Drive where no median barrier exists. Both complaints allege that defendant City, in its assumption of maintenance of that portion of Lake Shore Drive where the accident at issue occurred, and with notice of previous "crossover" collisions at that location, failed to erect a median barrier to prevent vehicle "crossovers" as it so provided elsewhere on the roadway. In addition, the complaint of plaintiff Ross alleges that the City negligently erected a median "strip" at the location of the roadway in issue, rather than an adequate median barrier.

On appeal, both plaintiffs focus on the issue of defendant City's undertaken action to provide a median "strip" as opposed to a median barrier. Plaintiffs argue the median "strip" was insufficient to operate as a physical restraint to prevent "crossover" collisions. Plaintiff Ross further argues that the court below, in the determination of the motion before it, improperly considered the statements of counsel for defendant City that the improvement provided was intended only as a "fancy lane divider," not as a physical restraint. Plaintiff Ross contends, in any event, that the act of "raising that divider eight to ten inches" also created an unreasonably dangerous condition of the subject roadway.

As we have already noted, we are confined, on the review of the dismissal of a complaint under section 2-615, to determining whether the complaints, as alleged, set out a recognized cause of action in Illinois. In this determination we are to apply the same standards on review of the pleadings as those...