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Heintz v. Vorwerk





Appeal from the Circuit Court of Kankakee County; the Hon. Patrick M. Burns, Judge, presiding.


Rehearing denied August 2, 1983.

This appeal arises out of an automobile collision at the intersection of River Street and Indiana Avenue in Kankakee, Illinois. The trial court granted the city of Kankakee's motion for summary judgment, and the plaintiff appeals. The plaintiffs and the city are the only parties to this appeal.

The plaintiff was driving east on River Street, a four-lane street with traffic flowing in both directions. Plaintiff was in the inside lane of the eastbound traffic. As he passed the intersection, the defendant Vorwerk, traveling southbound in the left lane of Indiana Avenue, collided with the plaintiff as he made a left turn onto River Street. The intersection of Indiana Avenue and River Street is controlled by three-way stop signs: traffic in all directions except River Street eastbound must stop. Indiana Avenue is a one-way street directed southbound. Although it continues south of River Street, it quickly becomes a dead end.

The plaintiffs' allegation against the city focuses upon the control of the intersection. Although the plaintiffs alleged a violation of the city's duty to use due care in the construction, maintenance and operation of the intersection, this appeal concerns only the city's duty to warn approaching motorists of the dangerous intersection ahead. Specifically, the plaintiff contends the city had a duty to warn southbound motorists on Indiana Avenue that eastbound traffic on River Street does not stop.

The city moved for summary judgment in its favor. Relying upon two agreements between the State of Illinois and the city of Kankakee, the city argued that it had no maintenance jurisdiction over the intersection. In particular, the city argues it had no authority or responsibility for traffic warning or control signs.

The two agreements concern the construction and maintenance of the intersection and Indiana Avenue. In 1970, the State and the city contracted for the reconstruction of Indiana Avenue and River Street, including the intersection in which the collision occurred. Under the terms of the agreement, the State was to widen and improve both of these streets. On Indiana Avenue, the State undertook to construct two traffic lanes and two parking lanes. The city agreed to reimburse the State for the costs of constructing the parking lanes. The agreement specifically required the State to "maintain or cause to be maintained" the two through lanes of Indiana Avenue and all four lanes of River Street. The city agreed to maintain the parking lanes of Indiana Avenue.

In 1977, the State and the city executed another agreement. In this agreement, in force at the time of the collision, the city agreed to "operate and maintain" River Street and Indiana Avenue. The agreement states that "operation and maintenance includes but is not limited to all routine surface and pothole repairs, temporary full-depth patches, expansion bump removal on all bituminous surfaces, crack and joint sealing, cleaning and litter pickup, snow and ice control and all other routine operational services." The State agreed to pay the city $14,390.04 in consideration for satisfactory performance of the services. This is a form contract of one-year duration and, apparently, was renewed annually by the parties.

In its motion for summary judgment, the city argued the State is responsible for warning motorists that eastbound traffic on River Street does not stop, because the State has maintenance jurisdiction over the intersection. The plaintiff argued the 1977 agreement vested maintenance jurisdiction in the city. Furthermore, relying upon Janssen v. City of Springfield (1980), 79 Ill.2d 435, 404 N.E.2d 213, the plaintiff contended the city still had a duty to warn motorists traveling south on Indiana Avenue that the approaching intersection was hazardous, even if the intersection itself was in the State's maintenance jurisdiction. The plaintiff based his argument on the jurisdiction the city has over a portion of Indiana Avenue under the 1970 agreement. The city contends, however, that, not only does it not have jurisdiction over the intersection, it does not have jurisdiction over the traveled portion of Indiana Avenue. After reviewing the agreements by the city and the State, the trial court agreed with the city and ordered a summary judgment in its favor.

A party is entitled to summary judgment when there is no genuine issue of material fact and when the movant is entitled to judgment as a matter of law. (Kubik v. CNA Financial Corp. (1981), 96 Ill. App.3d 715, 422 N.E.2d 1.) At the outset, we note there is no dispute that the intersection is hazardous. The sole controversy concerns the city's maintenance jurisdiction over the streets and the intersection.

The plaintiff first complains that the trial court improperly addressed the question of jurisdiction over Indiana Avenue. As the plaintiff notes, the motion for summary judgment asks the court to determine the city's jurisdiction over the intersection, not Indiana Avenue. More generally, however, the motion asks the court to award summary judgment in its favor. In their briefs and arguments to the trial court, both parties addressed the issue of maintenance jurisdiction over Indiana Avenue. The trial court, therefore, could properly consider this issue in its determination of the motion for summary judgment.

Turning to the merits, we note there are two questions here, though they are interrelated: Does the city have maintenance jurisdiction over the intersection? If not, does the city have maintenance jurisdiction over Indiana Avenue, directly north of the intersection? If the answer to the former question is in the negative, an affirmative answer to the latter question may still impose a duty upon the city to warn drivers of the danger. The duty is articulated in Janssen, which held that section 11-304 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11-304), imposed a duty "on local authorities to warn motorists of those hazards which are incident to that portion of a highway which remains under local maintenance jurisdiction." Janssen v. City of Springfield (1980), 79 Ill.2d 435, 448.

Resolution of both of these questions requires an interpretation of the agreements between the city and the State. The plaintiff strenuously argues that Janssen is directly on point and controls this appeal. The city cites no authority in support of its arguments, but seeks to distinguish Janssen.

In Janssen, the city of Springfield and the State agreed to construct a 52-foot paved north-south road — Fifth Street — up to the southern boundary — Stanford Avenue, an east-west street — of the city. The northern edge of Stanford Avenue constituted the city's boundary. The intersection of these two roads, therefore, was outside the city. The city and the State also agreed that, as long as Fifth Street was a State highway, the State would maintain the center 24 feet of the road and the city would maintain the remaining 28 feet of roadway. The State, on its own, continued the construction and paving of Fifth Street south of Stanford Avenue. The State also constructed the intersection of Fifth Street and Stanford Avenue. Unfortunately, the road narrowed at the intersection, producing a traffic island which, in effect, protruded into the left lane of traffic traveling ...

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