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Kitto v. Wattleworth

FEBRUARY 19, 1960.

GEORGE KITTO, AS ADMINISTRATOR OF THE ESTATE OF HELEN KITTO, DECEASED, GEORGE KITTO, AS ADMINISTRATOR OF THE ESTATE OF ARLENE KITTO, DECEASED, AND ROBERTA KITTO AND DONNA KITTO, MINOR DAUGHTERS OF HELEN KITTO, DECEASED, BY GEORGE KITTO, THEIR FATHER AND NEXT FRIEND, PLAINTIFFS-APPELLANTS,

v.

CHARLES WATTLEWORTH, INDIVIDUALLY AND AS COUNTY SUPERINTENDENT OF HIGHWAYS JO DAVIESS COUNTY, ILLINOIS, AND LEONARD HALL, INDIVIDUALLY AND AS ROAD COMMISSIONER FOR THE TOWNSHIP OF EAST GALENA IN JO DAVIESS COUNTY, ILLINOIS, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Jo Daviess county; the Hon. LEON A. ZICK, Judge, presiding. Reversed and remanded with directions.

JUSTICE DOVE DELIVERED THE OPINION OF THE COURT.

Rehearing denied March 14, 1960.

This is an eight count complaint. By the first count the personal representative of Helen Kitto, deceased, seeks to recover damages from Charles Wattleworth, individually and as County Superintendent of Highways of Jo Daviess County, Illinois, for the alleged wrongful death of his intestate. This count alleged that on the afternoon of December 29, 1957, the said Helen Kitto, accompanied by her children, Arlene, Roberta and Donna, was driving a Ford Sedan in a southeasterly direction, along a gravel surfaced road, known as "Muddy Hollow" road, in Jo Daviess County, Illinois, approximately one-fourth of a mile southeast of Galena.

This count then alleged that this road was much used for travel by automobiles and other vehicles, which was well known to defendant; that the car Helen Kitto was driving on this occasion slipped and skidded on ice which had formed on the surface of the highway causing said motor vehicle to plunge off the roadway, at a point where a stone bridge or culvert was located, overturn and fall fifteen feet into a ditch or creek located at that point.

This count then alleged that the defendant, Charles Wattleworth was the duly appointed County Superintendent of Highways of Jo Daviess County and averred that it was his duty to properly inspect and maintain the road, its bridges and abutments. It was then charged that defendant, notwithstanding said duty, was guilty of one or more of the following acts and omissions; (a) permitted the roadway at said point, to remain in a wet and slippery condition; (b) failed to have the surface of said road covered with asphaltum, cinders, gravel or other substance which would have prevented the road from being slippery when wet; (c) failed to give any notice or warning to motorists using said roadway that the surface thereof was slippery when wet; (d) failed to erect a guard rail, fence or barrier to prevent motor vehicles from falling off of said bridge or culvert; (e) allowed the bridge and fence to deteriorate so that no protection was provided to prevent automobiles from going over and falling off of said bridge; (f) failed to give proper, if any, notice, signal or warning, to motorists using said roadway, that there was no fence, guard rail or barrier to prevent automobiles from falling off of said bridge; (g) permitted said roadway and bridge to remain in said condition for a long period of time and (h) failed to properly inspect and maintain said roadway, guard rail and bridge contrary to the statute. (Ill. Rev. St. 1957, Chap. 121, sec. 56-1.)

This count then averred that at the time of the occurrence and prior thereto decedent was in the exercise of due care for the safety of her person and property and that her next of kin were also in the exercise of due care and caution for the safety of said decedent. It was then charged that as a direct and proximate result of the aforesaid negligence of the defendant, the said Helen Kitto sustained injuries from which she died on December 29, 1957, leaving her husband and two minor children, her next of kin, her surviving.

Count two sought a recovery for the alleged wrongful death of plaintiff's intestate, Arlene Kitto, a minor. Count three sought a recovery for the personal injuries which Roberta Kitto allegedly received upon the occasion in question and count four sought a recovery for the injuries, Donna Kitto, also a minor, allegedly received. Each count was directed against Wattleworth, individually and as County Superintendent of Highways and each count charged the same negligent acts and omissions and contained the same allegations of the duty of the defendant as count one.

By count five the personal representative of Helen Kitto, deceased, sought a recovery against Leonard Hall, individually and as Road Commissioner for the township of East Galena for the alleged wrongful death of this intestate. By count six a recovery was sought by the personal representative of Arlene Kitto, deceased, against said Hall, individually and as Road Commissioner for her alleged wrongful death. By count seven Roberta Kitto sought to recover from Hall, individually and as Road Commissioner for the personal injuries she received upon the occasion in question and in the eighth count, Donna Kitto sought to recover from Hall, individually and as Road Commissioner, for the personal injuries sustained by her upon this occasion. Each of these four counts alleged the same negligent acts and omissions and each count contained the same averments as to the duty of the defendant as count one. The trial court sustained the motions of the several defendants to dismiss on the ground that the doctrine of governmental immunity applied and from an appropriate final judgment dismissing each count of the complaint the plaintiffs appeal.

In Town of Waltham v. Kemper, 55 Ill. 346, Jacob Kemper sought to recover damages from the Town of Waltham for the pain he suffered during an illness occasioned when he became wet and chilled in extricating his team of horses and himself at a time when his team and wagon were unavoidably mired in a public highway in the Town of Waltham. The plaintiff recovered a judgment in the trial court and defendant appealed. In reversing the judgment of the trial court our Supreme Court held that the defendant, the Town of Waltham was not liable at common law and that no right of action against it had been given by statute.

Nagle v. Wakey, 161 Ill. 387, was an action brought by George Nagle against Jeremiah Wakey, Englebert Sauter and W.A. Dickeman, the three commissioners of highways of the town of Grand Rapids of LaSalle County to recover damages for personal injuries which the plaintiff received when one of the team of horses which he was driving became frightened and crowded the other horse off the side of a bridge which was fourteen feet wide and eighteen feet long. The floor of the bridge consisted of floor joists covered with planking and was three or four feet above the stream beneath. There was no railing at the sides of the bridge. The wagon turned over and plaintiff went over the side of the bridge with the wagon and sustained a broken leg. In the trial court the plaintiff recovered. The Appellate Court reversed the judgment of the trial court and held that the plaintiff had no right of action.

The Supreme Court adopted the opinion of the Appellate Court and affirmed its judgment. In the course of its opinion the Appellate Court stated that whether an action would lie against the commissioners of highways, for damages resulting to an individual from the manner in which the commissioners have discharged their official duty to the public, on the ground that it had not been discharged with reasonable prudence and skill, had not been settled by any previous decision of the Supreme Court of this State. The court observed that it had often been decided that an action for such damages could not be maintained by an individual against the Town, citing, among other cases, Town of Waltham v. Kemper, 55 Ill. 346, supra. The court stated that the reasons always given for exempting towns from such actions, are that they were established as local subdivisions and agencies of the state for governmental purposes and that duties are imposed upon them without their assent, exclusively for public purposes. The court then went on to say that the same reasons apply to commissioners of highways as such commissioners are an agency through which a town performs a public duty.

In Molitor v. Kaneland Community Unit District No. 302, 18 Ill.2d 11, 163 N.E.2d 89, our Supreme Court very recently held that a school district is liable in tort for the negligence of its employee. As stated by the Supreme Court the question which the court answered in the negative was: "Should a school district be immune from liability for tortiously inflicted personal injury to a pupil thereof arising out of the operation of a school bus owned and operated by said district?"

The court stated that the rule established by it in 1898 was that a school district is immune from tort liability. In reconsidering the question of such immunity the court, in an exhaustive opinion, pointed out that the doctrine of the sovereign immunity of the state was first extended to a sub-division of the state in 1788 in the English case of Russell v. Men of Devon, 2 Term Rep. 671, 100 Eng. Rep. 359, and adopted in Illinois with reference to towns and counties, in Town of Waltham v. Kemper, 55 Ill. 346, supra. The court said that there were no logical distinctions between a community unit school district and any other type of school district insofar as the question of tort liability is concerned as all are quasi-municipal corporations created for the purpose of performing certain duties necessary for the maintenance of a system of free schools.

The court in the Molitor case surveyed the whole picture of governmental tort law and stated: "It is a basic concept underlying the whole law of torts today that liability follows negligence and that individuals and corporations are responsible for the negligence of their agents and employees acting in the course of their employment. The doctrine of governmental immunity runs directly counter to that basic concept. What reasons, then," inquired the court, "are so impelling as to allow a school district, as a quasi-municipal corporation, to commit ...


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