Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of McLean County,
the Hon. William T. Caisley, Judge, presiding.
MR. CHIEF JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
The plaintiffs, Donald J. Lansing, individually and as executor of the estate of Helen Lansing, and Charles Lansing, brought an action against the County of McLean for the wrongful death of Helen Lansing, the wife of Donald and the mother of Charles, and to recover damages for personal injuries to Charles Lansing. The complaint also named as a defendant the McLean County superintendent of highways, who was alleged to be and was sued as a governmental entity. No person holding that office was named as a party.
The amended complaint alleged that at 4:30 p.m. on December 14, 1972, Mrs. Lansing was a passenger in an automobile driven by her son. The car was proceeding in an easterly direction on a highway in Tazewell County, which is immediately to the west of McLean County. A snowfall had occurred on December 11 and 12. It was alleged that while the highway in Tazewell County was free of snow and ice, upon entering McLean County the vehicle encountered a sheet of ice some one inch thick, which had accumulated by precipitation. The vehicle swerved out of control and crashed into a culvert, killing Mrs. Lansing and injuring her son.
The complaint alleged negligence on the part of the defendants in failing to remove the ice and slush which had accumulated on December 11 and 12, either as it fell or within a reasonable time thereafter; in failing to cover the highway with sand or other abrasive material; and in failing to warn approaching motorists of the icy condition of the highway. The trial court dismissed the complaint, the appellate court reversed and remanded (45 Ill. App.3d 91), and we allowed the defendants' petition for leave to appeal.
The basis of the appellate court's reversal was that while the defendants had no duty to remove or neutralize snow or ice accumulating from natural conditions, they did have a duty to warn motorists of the existence of the snow and ice, assuming that these created a dangerous condition not reasonably apparent to the plaintiffs, and assuming also that the defendants were shown to have had actual or constructive notice of the condition in sufficient time to give such a warning. In addition to the defendants' appeal, the plaintiffs have cross-appealed from that part of the appellate court's opinion which held that there was no duty imposed upon the defendants with respect to the charges of negligence other than that of failing to give warning.
We affirm the decision of the appellate court so far as it holds that the defendants had no duty to remove the snow and ice. We reverse that decision insofar as it holds that the complaint stated a cause of action against the defendants for failure to provide warning of the icy condition of the highway.
So far as the county is concerned, it is a local public entity as defined in section 1-206 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1975, ch. 85, par. 1-206). There is no question but that the county was the governmental entity responsible for the maintenance of that portion of the highway where the accident took place. Section 3-105 of that act (Ill. Rev. Stat. 1975, ch. 85, par. 3-105) provides, however:
"Neither a local public entity nor a public employee is liable for an injury caused by the effect on the use of streets, highways, alleys, sidewalks or other public ways, or places of weather conditions as such. For the purpose of this section, the effect on the use of streets, highways, alleys, sidewalks or other public ways of weather conditions includes the effect of wind, rain, flood, ice or snow but does not include physical damage to or deterioration of streets, highways, alleys, sidewalks, or other public ways and place resulting from weather conditions."
The complaint alleged, however, that on the date of the accident there was in effect a policy of public liability insurance protecting the county against the claims asserted by the plaintiffs. Section 9-103 of the Act (Ill. Rev. Stat. 1975, ch. 85, par. 9-103) provides:
"(a) A local public entity may contract for insurance against any loss or liability which may be imposed upon it under this Act. Such insurance shall be carried with a company authorized by the Department of Insurance to write such coverage in Illinois. The expenditure of funds of the local public entity to purchase such insurance is proper for any local public entity.
(b) Every policy for insurance coverage issued to a local public entity shall provide or be endorsed to provide that the company issuing such policy waives any right to refuse payment or to deny liability thereto within the limits of said policy by reason of the non-liability of the insured public entity for the wrongful or negligent acts of itself or its employees and its immunity from suit by reason of the defenses and immunities provided in this Act." (Emphasis added.)
The appellate court held that by securing insurance the county had waived any immunity from liability by virtue of section 9-103.
This court has held that if a public entity is insured then section 9-103(b) effects a waiver of an immunity from liability for negligence which would otherwise be conferred by a provision of the Act. (Sullivan v. Midlothian Park District (1972), 51 Ill.2d 274.) We have also held that section 9-103(b) precludes an insured public entity from making the defense that a plaintiff has failed to give timely notice of its claim as required by section 8-102, or has failed to bring suit within the special one-year limitation period which was formerly imposed by section 8-101 (Ill. ...