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First Nat'l Bank v. City of Aurora

OPINION FILED JANUARY 20, 1978.

FIRST NATIONAL BANK IN DE KALB, CONSERVATOR, ET AL., APPELLANTS,

v.

THE CITY OF AURORA ET AL., APPELLEES.



Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 30, 1978.

This is an action for personal injuries, resulting from a collision of two cars at an uncontrolled intersection in Aurora and suffered by Allen Jardine, the driver of one of the automobiles. The suit was brought by Jardine and his wife, Susanne Jardine, in the circuit court of Kane County. The plaintiffs' amended complaint was ordered dismissed by that court. A subsequent motion to vacate that order with leave to file another amended complaint, which the parties refer to as the "Second Amended Complaint," was denied. The appellate court affirmed (41 Ill. App.3d 326), and we granted leave to appeal (58 Ill.2d R. 315).

On November 12, 1971, Jardine was driving west on Marsellaise Avenue. His 1971 Capri collided with a car owned by Calvin Shempert and driven by Clayton Shempert and traveling south on Evanslawn Avenue, at the intersection of the two streets. A year later, Jardine and his wife filed a complaint against the city of Aurora. (A separate complaint was filed in 1973 by Jardine alone against Ford Motor Company, the manufacturer of his car; the dealership; and Clayton and Calvin Shempert.) The complaint against Aurora alleged that Aurora owed Jardine a duty to maintain the intersection in a reasonably safe manner and to provide traffic controls but that Aurora instead negligently allowed the intersection to remain uncontrolled, negligently allowed obstructions near the intersection, and "negligently permitted a large tree to obstruct the view of drivers such as plaintiff and others so as to create a dangerous condition" at or near the intersection. Plaintiffs also alleged Aurora "knew or should have known" of the condition. In its motion to strike and dismiss, Aurora replied that the complaint failed to state a cause of action and failed to locate the tree or obstructions; and that the defendant has no duty to provide traffic control devices. The circuit court, in June 1973, ordered the complaint stricken with leave given to file an amended complaint. Mr. and Mrs. Jardine filed an amended complaint in July 1973, but a month later the court continued consideration of the amended complaint to allow for the addition of parties.

On May 23, 1974, the court ordered the consolidation of the two cases initiated by Jardine. That same day another amended complaint was filed. That amended complaint differed from the previous amended complaint and the original complaint in several ways. Counts I and II focused on the defendants other than Aurora, while counts III (relating to Jardine) and IV (relating to Mrs. Jardine) dealt with Aurora, the only defendant this appeal is concerned with. First National Bank in De Kalb, as conservator for Jardine, took over prosecution of the case for Jardine. And, the most significant difference, the amended complaint set out its allegations in more detail and alleged the violation of State statutes and city ordinances. Repeating the allegation of a duty owed to Jardine, the amended complaint then alleged that "a large, dense evergreen tree" with "a line of dense bushes" was at and near the intersection so as to constitute a public nuisance in violation of State law (Ill. Rev. Stat. 1971, ch. 100 1/2, par. 26) and city ordinance (sections 42-16 and 42-19 of the Aurora Municipal Code); that the tree and bushes obscured "the vision of motorists" on approaching the intersection; and that Aurora had notice or should have known of the condition. Further allegations were specified in paragraph 7:

"(c) Failed to give adequate or any notice or warning to motorists lawfully upon the public way that said intersection was made dangerous by virtue of the existence of obstructions;

(d) Negligently and carelessly permitted said intersection to be obstructed in a manner violative of the provisions of chapter 100 1/2, section 26, Illinois Revised Statutes, 1971, and in so doing violated the provisions of section 42-20 of the Municipal Code of the City of Aurora;

(e) Negligently and carelessly failed to erect traffic control or warning signs or devices when such action should have been taken in view of the particular hazards in existence at said intersection, all in violation of the provisions of section 27-212 of the Municipal Code of the City of Aurora;

(f) Negligently and carelessly failed to exercise due care to maintain its property in a reasonably safe condition in violation of the provisions of chapter 85, section 3-102, Illinois Revised Statutes, 1971;

(g) Negligently and carelessly failed to provide regulatory traffic control devices, stop signs, yield right-of-way signs, or other regulatory devices, when such devices were necessary to warn of a condition which endangered the safe movement of traffic within the meaning of and violative of the provisions of chapter 85, section 3-104 of the Illinois Revised Statutes, 1971;

(h) Failed to remove or take any action whatsoever, to cause the repair or alleviation of the unreasonably dangerous condition of said intersection;

(j) Carelessly and negligently permitted large bushes and a tree to obstruct the view of drivers such as plaintiff and others so as to create a dangerous condition likely to cause injury and damage to plaintiff and others lawfully upon said public way."

Finally, the amended complaint charged that Aurora's acts or omissions were the proximate cause of Jardine's injuries.

By order of the circuit court on December 3, 1974, the amended complaint was dismissed and Aurora was dismissed as a defendant, but the cause of action was to continue against the other defendants. The court also found "no just reason to delay the appeal or enforcement of this order." The plaintiffs filed a motion, not contained in the record, to vacate the order of dismissal of December 3, and for leave to file a second amended complaint. This complaint was essentially the same as the previous amended complaint with two notable additions: an affidavit of a land surveyor that the "tree and its entire spread are located on property within right of way * * * under the jurisdiction" of Aurora, on the northeast corner; and further allegations of a violation of Aurora's municipal code (section 46-4, prohibition of the "planting and by implication, the maintenance" of a tree within 20 feet of an intersection). On January 2, 1975, after a fairly lengthy recitation or review of the reasons for doing so, the circuit court, finding no reason to ...


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