APPEAL from the Circuit Court of Lake County; the Hon. THOMAS
R. DORAN, Judge, presiding.
MR. JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
Plaintiff, William Hoffman, Sr., administrator of the estate of William Hoffman, Jr., deceased, brought an action against defendant Commonwealth Edison Company (Edison) and other defendants as a result of a one-car accident which occurred on August 12, 1976, at approximately 11:20 p.m., and which ultimately led to the death of the operator of that car, William Hoffman, Jr. (decedent), on August 25, 1976. Plaintiff's multicount complaint alleged in count VII an action against Edison for wrongful death and in count VIII an action for pain and suffering from the date of the occurrence until decedent's death. Upon Edison's motion for summary judgment on the pleadings and exhibits attached to the motion, and on plaintiff's response and exhibit attached thereto, the trial court granted summary judgment for Edison, finding that, on the undisputed facts and circumstances submitted to him, the accident was not reasonably foreseeable on the part of Edison and it therefore breached no duty. The trial court found no just cause to delay enforcement or appeal of its judgment, and plaintiff appeals.
Plaintiff's complaint alleges that decedent was operating a motor vehicle in a northerly direction on Port Clinton Road, at or about a point 112 feet south of Route 45 in Vernon Township, Lake County. He further alleges that Edison maintained a utility pole near Port Clinton Road which decedent's automobile struck when it went out of control off the road. The complaint alleges generally a duty of Edison to exercise reasonable care and caution in the ownership, operation, management, maintenance and control of the utility pole so as not to cause harm and injury to persons legally and lawfully in the area.
The exhibits attached to the motion and response reveal that, shortly before the accident, Port Clinton Road was partially relocated in such a fashion that its new intersection with Route 45 became more perpendicular than the original road, which was abandoned at that point. Port Clinton Road was a two-lane road, between 22 feet and 24 feet wide at the point immediately adjacent to the utility pole in question, and the general speed limit was 45 m.p.h. with a 25 m.p.h. speed limit at the curve. The parties are in agreement that at the time of the accident there was a warning sign approximately 460 feet from the curve, which indicated a curve in the road and a 25 m.p.h. speed limit. A "STOP AHEAD" sign was located approximately 300 feet south of the beginning of the curve, and the two lanes were divided by two solid yellow lines indicating a no passing zone. The utility pole in question was located some 27 feet from the center line of the road at a distance of from 12 to 16 feet from the easterly boundary line of the road as delineated by a concrete curb. Decedent's vehicle left the roadway where Port Clinton Road turns northward, striking the curb in an easterly direction toward the old road bed. The car then proceeded out of control for approximately 60 feet after striking the utility pole. The utility pole had been relocated at least one year prior to the accident pursuant to a permit issued by the State Department of Transportation. The concrete curb was six inches high and six inches wide and extended at least 300 feet south of the pole. No skid marks were found in the area where the vehicle left the road or elsewhere.
Plaintiff attached as an exhibit a report of Packer Engineering Associates, Inc., which states that responsibility for the accident rests, in part, with "[t]he illusory effect of the clearing beyond the actual curve which would lead a driver to believe the road continued in a straight line for a considerable additional distance." The other possible causes listed are the driver's "inattention to observe, ignoring or misinterpreting the curve sign approximately 460 feet ahead of the curve," "[t]he insufficiency of warning provided for this situation including a failure to prove a sign on the curve itself * * *," or a combination of all of these. Although the complaint averred that Edison positioned the pole in a manner which created an illusory effect of a clearing at the curve, counsel for plaintiff admitted at oral argument that the pole didn't create the illusory effect, but instead was relying on the Packer report conclusion that the old road bed caused this effect.
There were no depositions attached to the motion and response, the supporting evidence consisting solely of a police report, diagrams and photographs of the area, the permit issued to relocate the pole, excerpts from the Department of Transportation Policy on Accommodation of Utilities on Rights-of-Way and the Packer report. No issue is raised before us relative to the competency of this supporting evidence. On appeal, plaintiff contends that Edison has a duty to exercise reasonable care in the placement and maintenance of its utility poles and that, where it is reasonably foreseeable that the existence of the old right-of-way with a clearing without trees would create the illusion of the road continuing on so as to delude drivers into driving straight into the pole, Edison has a duty not to so position the pole. In its brief, plaintiff has not contended that there is any dispute of material fact, but instead sets out the legal issue of whether "the positioning, installation and maintenance of the pole constitute(s) a reasonably foreseeable risk to travelers that could and should have been avoided by the defendant."
• 1-3 The determination of the question of duty, i.e., whether the defendant and the decedent stood in such a relationship to one another that the law imposed upon defendant an obligation of reasonable conduct for the benefit of the decedent, is an issue of law for the determination of the court. (Mieher v. Brown (1973), 54 Ill.2d 539, 541, 301 N.E.2d 307, 308.) While the existence of a legal duty is ordinarily considered in terms of foreseeability, the duty is not bottomed on foreseeability alone. (Cunis v. Brennan (1974), 56 Ill.2d 372, 375, 308 N.E.2d 617, 618.) Other factors to be taken into consideration, besides the foreseeability of the possible harm, are the likelihood of injury from the existence of a condition, the magnitude of guarding against it, and the consequences of placing the burden upon the defendant. Barnes v. Washington (1973), 56 Ill.2d 22, 29, 305 N.E.2d 535, 539.
With respect to foreseeability, our supreme court stated in Cunis v. Brennan:
"[I]n determining whether there was a legal duty, the occurrence involved must not have been simply foreseeable * * *; it must have been reasonably foreseeable. The creation of a legal duty requires more than a mere possibility of occurrence. * * * Prosser (Handbook of the Law of Torts (4th ed. 1971), sec. 31, at 146) comments: `No man can be expected to guard against harm from events which are not reasonably to be anticipated at all, or are so unlikely to occur that the risk, although recognizable, would commonly be disregarded.' In judging whether harm was legally foreseeable we consider what was apparent to the defendant at the time of his now complained of conduct, not what may appear through exercise of hindsight." (56 Ill.2d 372, 375-76, 308 N.E.2d 617, 619.)
Upon its analysis of the duty question, the court in Cunis concluded that no such duty arose as to the plaintiff, who had been thrown some 30 feet from an automobile following a collision, and whose leg was then impaled upon a drain pipe protruding from the ground on a parkway maintained by the defendant municipality. We believe these facts are sufficiently similar to those in our case for that decision to give us guidance in assessing whether Edison owes a duty as a matter of law to the decedent.
Also pertinent is section 368 of the Restatement (Second) of Torts, which states the general rule of law applicable to factual situations similar to this one, involving artificial conditions near a highway:
"A possessor of land who creates or permits to remain thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact with such condition while traveling with reasonable care upon the highway, is subject to liability for physical harm thereby caused to persons who
(a) are traveling on the highway, or
(b) foreseeably deviate from it in the ordinary course of travel." (Restatement (Second) of ...