Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Sangamon
County, the Hon. Eugene O. Duban, Judge, presiding.
MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
The plaintiff, Charles Janssen, obtained a personal injury judgment for $250,000 against the defendant, the city of Springfield, in the circuit court of Sangamon County. The appellate court reversed (69 Ill. App.3d 986), and we granted leave to appeal.
The accident which underlies this litigation occurred at about 1:30 a.m. on August 26, 1973, as the plaintiff was proceeding southward on Fifth Street in Springfield. Fifth Street is a one-way three-lane highway which gradually curves to the east at the point where it intersects Stanford Avenue, an east-west route. The middle lane is 12 feet wide, and each of the outside lanes is 20 feet wide. On the east side of the intersection is a traffic island which projects 5 1/2 feet into the east lane of Fifth Street. The plaintiff, who was driving southward in the eastern most lane on his motorcycle, struck this projection and was thrown from his motorcycle, sustaining serious injuries. At the time of the accident no warning signs or other road markings indicated that the roadway narrowed at the intersection. The following diagram shows the intersection.
Plaintiff's complaint alleged that the city had been negligent in failing to remove the projecting portion of the traffic island, failing to warn motorists of the hazard of the intersection, and failing to adequately light the area. Evidence concerning the last allegation is not germane to this appeal because the jury, in response to a special interrogatory, found that the lighting was adequate, and the plaintiff does not now argue that this finding is against the manifest weight of the evidence. Nor does the defendant now contend that the condition of the intersection was not hazardous. The sole question is whether the city had a duty to remove the hazard or to warn of its existence. The city contends that this responsibility rested exclusively with the State of Illinois.
Evidence adduced at trial indicated that in 1958 the southern boundary of the city was the northern edge of Stanford Avenue, the intersection itself thus being outside the city limits. In that year the city and the State of Illinois entered into an agreement which, as subsequently amended, provided for the joint construction by the city and State of a 52-foot-wide pavement surface on Fifth Street from Broad Street on the north to the southern boundary of the city at Stanford Avenue. The agreement further provided that the State would pay the costs of the improvement except for preliminary design and engineering, traffic signals, 5% of the cost of an underpass below certain railroad tracks, and the outside 7 feet of pavement on each side of the road, which was to be used for parking. The city would pay these specified costs. The city and State further agreed that so long as Fifth Street was used as a State highway the State would maintain the center 24 feet of the pavement and the city would maintain the remainder. The joint construction plan did not extend beyond the northern line of Stanford Avenue and did not include the traffic island involved in this litigation. Other plans, approved and implemented exclusively by the State, continued the improvement south of the city limits, and these plans did include the traffic island.
After the construction was completed the city and State each year executed a maintenance contract under which the city agreed to provide necessary repairs, and cleaning and snow removal for the center 24 feet of the highway, and the State agreed to meet the expenses. In 1972 the city annexed an area south of the north line of Stanford Avenue, including the intersection.
Various State and city officials testified concerning their understanding of the powers and duties of the city and State under the agreements. This testimony revealed an additional oral understanding that the city would maintain the lane striping north of Stanford Avenue. Other evidence indicated the absence of a lane stripe separating the parking lanes from the traffic lanes. The officials further testified that the city could initiate the placement of signs or the marking of the pavement north of Stanford but needed the approval of the State to actually make any change. Other testimony indicated that the hazard could be reduced by posting warning signs on the traffic island itself and painting its curbing yellow, by painting parking stalls on the parking lane as it approached the intersection and covering the last few stalls with "hash marks," and by posting "keep right" signs before the intersection.
A letter from a city official to a State official indicated that the city had notice of the dangers posed by the traffic island in 1964 and had requested the State to remedy it. The city did not produce any evidence of any subsequent attempts to remedy the situation. Shortly after the plaintiff's accident the State removed the projecting portion of the island. The engineer whose department removed the projection testified that he did not know of any communication with the city before the repair, but that the immediate supervisor of the crew might have talked to city officials.
During the trial the plaintiff moved to amend his complaint to allege that the city had been negligent in failing to "cause" the projecting portion of the island to be removed, but the trial judge refused the amendment. The trial judge also refused the defendant's motions for directed verdicts at the close of the plaintiff's case and at the close of all the evidence. The theory of the motions for directed verdict had been that there was no proof that the city had jurisdiction and control over Fifth Street. The defendant also proposed special interrogatories requiring the jury to state whether it found that the city had jurisdiction and control over the intersection or over Fifth Street north of the intersection. The trial judge, however, refused to give the jury these special interrogatories. He also refused to instruct the jurors that the city had a statutory immunity from liability for failure to initially post regulatory traffic signs, but did give an instruction that the city had a statutory duty to warn motorists of dangerous conditions.
The jury returned a verdict of $250,000 in favor of the plaintiff. The defendant's post-trial motion renewed its arguments for a directed verdict. In the alternative, the motion prayed for a new trial, citing numerous errors, among them the failure to give the special interrogatories and the instruction concerning immunity for failure to initially install regulatory signs.
Before the appellate court the city argued that the trial court had erred in not granting its motions for directed verdict and for judgment notwithstanding the verdict because the evidence failed to establish that the city had jurisdiction and control over either the intersection or the approach to the intersection. Defendant also argued alternatively for a new trial, citing the trial court's failure to give the defendant's instruction concerning regulatory signs. The appellate court did not reach the instructions question because it decided that the city did not have a duty either to alter the traffic island or to warn of its existence. The court concluded that the city had no duty to alter the traffic island because the island was not within the jurisdiction and control of the city. The court further concluded that the city had no duty to warn, even if it did have some jurisdiction and control over Fifth Street north of the intersection, because the court construed the relevant statutes to vest the responsibility for posting signs on Fifth Street exclusively with the State.
On appeal to this court the plaintiff argues that the city had a duty both to remove the projecting portion of the traffic island and to warn motorists of the hazard it presented. Plaintiff's argument that the city had a duty to alter the traffic island rests upon section 3-102(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1973, ch. 85, par. 3-102(a)), which provides:
"(a) Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that ...