APPEAL from the Circuit Court of McLean County; the Hon.
WILLIAM T. CAISLEY, Judge, presiding.
MR. JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 14, 1977.
This is an appeal from a judgment of the circuit court of McLean County dismissing plaintiffs' complaints in actions for wrongful death and personal injuries arising from an automobile accident. In their complaints, plaintiffs allege that the defendants were negligent in failing to remove accumulated ice from a State aid highway and in failing to post signs warning of the alleged danger. Plaintiffs allege that these failures breached defendants' statutory duties to supervise, construct, maintain and repair the highway pursuant to sections 5-205.5 and 5-401 of the Illinois Highway Code (Ill. Rev. Stat. 1971, ch. 121, pars. 5-205.5, 5-401). Plaintiffs further allege that this breach proximately caused the death of Helen Lansing and the personal injuries sustained by Charles Lansing even though both were exercising ordinary care for their own safety at the time of the accident. The order dismissing the complaints recited that "common law recognizes no duty [on the part of defendants] to remove natural accumulations of ice and snow" from the highway on which the accident occurred.
On December 14, 1972, Helen Lansing, the wife and mother of plaintiffs herein, was a passenger in an automobile driven by her son Charles which was proceeding in an easterly direction along State aid route 24, a part of the county road system of Tazewell and McLean counties. Although the snowfall had apparently been uniform in both counties prior to that date, the Tazewell County highway was clear and free of ice and snow while the McLean County highway was not clear. Upon entering McLean County, the vehicle encountered a sheet of ice which allegedly covered the highway to a depth of one inch. The automobile allegedly swerved out of control on the ice and crashed into a culvert, killing Mrs. Lansing and severely injuring her son Charles.
Donald Lansing, husband of the deceased and executor of her estate, filed this action against the County of McLean and its superintendent of highways, alleging that his wife's death resulted from the defendants' negligence. Plaintiff also sought reimbursement for the decedent's funeral and burial expenses. The decedent's son, Charles Lansing, sued both defendants for damages arising from the personal injuries he suffered in the accident.
The defendants moved to dismiss the action on two grounds: (1) that they were immune from the suit; and (2) that they had no duty to remove accumulated ice and snow from State aid route 24.
Sovereign immunity is of judicial origin and is a contemporary, although disfavored doctrine founded on the ancient principle that "the King can do no wrong." An early explanation of the doctrine emphasized that permitting suit to be brought against the King was offensive to the concept of royal sovereignty. Later, allowance of suits against the government was recognized as inconsistent with the concept of the "supreme executive power." (Prosser, Handbook of the Law of Torts 970 (4th ed. 1971).) Even later, as the King was replaced by the modern State, the theory was attacked in its entirety. Prosser, at 984 et seq.
A constitutional form of sovereign immunity is embodied in the eleventh amendment of the United States Constitution and in section 26 of article IV of the 1870 Illinois Constitution. In recent years, however, the trend of thought has been turning against the doctrine. In this regard, section 4 of article XIII of the 1970 Illinois Constitution abolishes the doctrine except as the General Assembly shall provide.
Our supreme court has abolished the sovereign immunity of local governments (Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill.2d 11, 163 N.E.2d 89; Harvey v. Clyde Park District (1964), 32 Ill.2d 60, 203 N.E.2d 573; Lorton v. Brown County Community Unit School District No. 1 (1966), 35 Ill.2d 362, 220 N.E.2d 161; Sullivan v. Midlothian Park District (1972), 51 Ill.2d 274, 281 N.E.2d 659; Housewright v. City of LaHarpe (1972), 51 Ill.2d 357, 282 N.E.2d 437) although our general assembly thereafter attempted to reinstate the tort immunity of local governments by passing the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1971, ch. 85, par. 1-101 et seq.). Recently, however, our supreme and appellate courts have again chipped the edifice of local governmental immunity by liberally interpreting section 9-103 of the Act which concerns waiver of immunity by insurance. (See West, "Immunity" from the Tort Immunity Act, 62 Ill. B.J. 496 (1974), and the authorities cited therein.) We do not exaggerate when we say that the field of immunity is in a topsy-turvy state.
Section 5-401 of the Illinois Highway Code (Ill. Rev. Stat. 1971, ch. 121, par. 5-401) provides:
"Subject to the general supervisory powers of the Department under this Code, all highways in the county highway system shall be under the direct control and supervision of the county board of the county in which such county highways are located, and the county board shall repair, maintain and construct such county highways by contract or with its own forces."
A county highway system includes State aid roads (section 2-102 of the Code (Ill. Rev. Stat. 1971, ch. 121, par. 2-102)), and the duty to maintain these roads is extended to the county and its superintendent of highways by section 5-205.5 and 5-401 of the Code (Ill. Rev. Stat. 1971, ch. 121, pars. 5-205.5, 5-401).
On the other hand, section 3-105 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1971, ch. 85, par. 3-105) shields counties and their employees from liability for injuries sustained during use of county highways. Section 3-104(a) of the Act (Ill. Rev. Stat. 1971, ch. 85, par. 3-104(a)) also shields counties and their employees from liability for injuries caused by the failure to provide highway signs warning of dangerous conditions on the roadway. Section 9-103 of the Act, however, contains a waiver provision providing, in pertinent part, that:
"(a) A local public entity may contract for insurance against any loss or liability which may be imposed ...