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Porter v. City of Decatur

FEBRUARY 14, 1974.

DUDLEY PORTER, ADM'R OF THE ESTATE OF BENJAMIN R. PORTER, DECEASED, ET AL., PLAINTIFFS-APPELLANTS,

v.

THE CITY OF DECATUR, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Macon County; the Hon. A.G. WEBBER, III, Judge, presiding.

MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Plaintiffs appeal from the order of the trial court dismissing their amended complaint with prejudice and entering judgment upon the pleadings for defendant.

The plaintiffs in this action are Dudley Porter, as administrator of the the estate of his son, Benjamin R. Porter, and Dudley Porter, as an individual. Plaintiff, as administrator, seeks recovery for the wrongful death of his son. Plaintiff, as an individual, seeks to recover funeral expenses and an inquest fee pursuant to his liability under the Family Expense Act (Ill. Rev. Stat. 1969, ch. 68, par. 15); he also seeks damages for the loss of his truck which the decedent was driving at the time of the occurrence.

Plaintiffs allege a cause of action arising from the following facts: On April 4, 1970, at approximately 9:25 A.M., the decedent was driving a Chevrolet truck south upon North 22nd in Decatur, approaching U.S. Route No. 36. The intersection of the two thoroughfares was controlled by electric traffic signals and decedent entered the intersection upon a green light for south bound traffic. At the same time and place a convoy of Illinois National Guard trucks was proceeding west on U.S. Route No. 36 against the red traffic signal at the intersection. Such convoy was being escorted by officers of the Police Department upon an alleged arrangement that the convoy led by the police officers should disregard the signal lights controlling the traffic. Decedent's truck was struck by a unit of the National Guard convoy.

The amended complaint alleged that defendant was guilty of one or more of the following acts or omissions (which were alleged to be negligent in counts I through III, and alleged to be wilful and wanton in counts IV through VI), in that through its agents, servants, and/or employees it:

"(a) allowed the traffic signals at said intersection to operate on an alternating green, yellow, red sequence, knowing, or in the exercise of due care and caution should have known that the Illinois National Guard convey would proceed against the red light traffic signal.

(b) directed the Decatur Police Department to direct traffic at said intersection, but failed to have a police officer or other agent at said intersection directing traffic at the time said collision occurred.

(c) failed to maintain reasonable traffic precautions at said intersection, warning Plaintiff's decedent of the presence of said Illinois National Guard convoy entering said intersection against operating traffic control signals."

The amended complaint also alleged violation of a statute:

"(d) Through its agents, servants, and/or employees, failed to provide traffic warning signals, signs, markings or other devices when said signals, signs, markings or other devices were necessary to warn of a condition which endangered the safe movement of traffic, in violation of Chapter 85, Section 3-104 of the Illinois Revised Statutes, 1969."

The complaint alleged that as a direct and proximate result of one or more of the specified acts or omissions of the city, the collision occurred and decedent sustained the injuries of which he died.

Defendant's motion to dismiss the original complaint stated that the complaint failed to state a cause of action against the defendant. The motion stated that the complaint failed to allege facts showing the defendant had a duty toward plaintiff, that defendant was negligent, or that defendant had any control over the operation of the vehicle with which decedent collided. The defendant's motion to dismiss the first amended complaint contained statements similar to those in the previous motion to dismiss, and stated for the first time that "the defendant is immune from liability for acts or omissions described in the First Amended Complaint".

The colloquy of the court at the conclusion of the hearing upon the motion to dismiss reflects a conclusion that the city had no duty to the decedent under the circumstances pleaded.

• 1, 2 We find substantial authority to the contrary. The statutory duty of a city *fn1 is defined in Ill. Rev. ...


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