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Tunk v. Village of Willow

OPINION FILED DECEMBER 30, 1983.

CAROL K. TUNK, PLAINTIFF-APPELLANT,

v.

THE VILLAGE OF WILLOW SPRINGS, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Lester Foreman, Judge, presiding.

PRESIDING JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

This appeal is from an action for personal injuries whereby defendants were charged with negligently maintaining an intersection at Willow Springs and German Church Roads in the village of Willow Springs, Illinois. The trial court entered summary judgment based on the pleadings in favor of defendants and this appeal followed. We affirm.

On August 9, 1977, plaintiff was riding as a passenger in her car, proceeding northbound in the right-hand curb lane on Willow Springs Road. When the vehicle entered the intersection of this roadway with German Church Road, it swerved on loose gravel, careened off the road and overturned into an open field.

At the point of the accident, Willow Springs Road divides into two directions in the shape of a "Y." The northeastern direction is a continuation of Willow Springs Road; German Church Road begins at the northwestern point.

Plaintiff's complaint, filed August 10, 1978, alleged that defendants controlled, maintained, owned and designed the intersection; that they had not posted a hazard sign at the curve on Willow Springs Road; that they had allowed loose gravel to accumulate on the intersection and that it was improperly illuminated.

Defendant Cook County answered that it maintained and controlled only German Church Road and that it was not responsible for the control, ownership, inspection or maintenance of either Willow Springs Road or the intersection. It further alleged that although Willow Springs Road was constructed by the county in 1927 the State had accepted and assumed exclusive jurisdiction in either 1928 or 1929. The county and village subsequently filed motions for summary judgment which both alleged that the State was responsible for the maintenance of the road.

Arguments on defendants' motions were held June 24, 1982. After reviewing the evidence, which included a certified copy of the county's highway map, the trial court expressed concern over the exact location of the termination of the county's jurisdiction on German Church Road as well as the configuration of the intersection and whether the photographs of the intersection established that the accumulated gravel had originated from German Church Road. Plaintiff argued that the county was negligent regardless of where the road terminated for it had allowed gravel to accumulate and, further, that because the State had not erected the double arrow sign at the intersection on Willow Springs road which had previously fallen or had been knocked down, the county must have done so but negligently failed to re-erect it.

In response to plaintiff's argument the county stated that it had no duty to warn vehicles which were not travelling on German Church Road. Plaintiff then offered into evidence a photograph of the intersection, but the court stated that it could not tell where the loose gravel emanated from by looking at the picture, nor was it the county's obligation to prove that the gravel did not emanate from German Church Road.

A supplemental affidavit of Michael Griffin, engineer at the county department of highways, was filed on July 6, 1982, along with Griffin's pictures of the intersection and the roads leading thereto. In his affidavit Griffin stated that Willow Springs Road is exclusively maintained and controlled by the State, that the gravel in the intersection emanated from Willow Springs Road but that the Cook County Highway Department did not install signs on Willow Springs Road. All such signs were directed at drivers on that roadway. On July 7, 1982, the trial court granted plaintiff leave to take Griffin's deposition and the cause was continued to October 6, 1982.

On October 4, 1982, plaintiff filed the affidavits of Joseph Kostur, safety and claims manager for the State Department of Transportation and Lester Kolom, a registered professional engineer with special expertise in traffic safety engineering and traffic accident reconstruction. Kostur stated that Willow Springs Road was designed and constructed by the county but that the road is not and never has been part of the State highway system. He stated further that the State maintained the travel lanes of Willow Springs Road. The duty to install street lights, crosswalks and sidewalks, however, rests with the village.

Kolom's affidavit stated that based on his review and site survey of the accident, the major contributing cause of the accident was the county's failure to correct the design, construction and maintenance defects in the intersection and its approaches and that a key factor in the accident in this case was the presence of gravel and dirt in the intersection "reducing the coefficient of friction and reducing traction between tires and roadway."

Plaintiff and defendants again appeared before the trial court on October 6, 1982. First, the county denied any liability for the accident and argued that, based on certified copies of maps, the State's assumption of the highway after construction, coupled with the fact that Kostur stated in his affidavit that the State maintains the travel lanes of Willow Springs Road, jurisdiction of Willow Springs Road lies with the State. Plaintiff countered that even though the State maintained the roadway it was voluntary in nature.

In response, the court stated that it was concerned with the restrictive nature of Kostur's affidavit in light of his previous deposition and that this created an uncertainty as to what Kostur meant when he said that the State maintains only the travel lanes of the road. Plaintiff contended that the county maintained the edges along Willow Springs Road and in rebuttal the county pointed out that Kostur also stated that the village had the duty to install and maintain crosswalks and street lights but that his affidavit did not mention that the county had any responsibility for the highway.

Regarding Kolom's affidavit, the court observed that it made "a pretty broad statement" that the intersection was hazardous and an unacceptable risk to road users "because he doesn't know what the duty or obligation of Cook County are [sic] with regard to highways. So how can he talk about their failure to correctly design the construction and maintenance? How does he know that they even have an obligation to do that?" The county then made an oral motion to strike Kolom's ...


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