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Burnett v. Donath





Appeal from the Circuit Court of Champaign County; the Hon. Creed D. Tucker, Judge, presiding. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Plaintiff appeals from an order of the circuit court of Champaign County which dismissed her amended complaint against the defendants, the city of Champaign and the city of Urbana. The trial court made the requisite finding under Supreme Court Rule 304(a) (87 Ill.2d R. 304(a)).

The lawsuit arises out of an automobile accident which occurred at the intersection of Green and Wright Streets in Champaign-Urbana at about 11:10 p.m. on March 14, 1981. Plaintiff was a passenger in a car driven by the defendant Head. Head was eastbound on Green Street and was attempting a left turn onto Wright Street. Her vehicle was struck in the intersection by one driven by the defendant Donath, who was westbound on Green. It is unquestioned that plaintiff suffered severe and permanent injuries which left her a quadriplegic.

The record contains indications that the case was settled with defendants Head and Donath. Donath filed counterclaims against Head, the city of Champaign and the city of Urbana for contribution; these are apparently still pending but are not part of this appeal.

The city of Champaign answered the original complaint; the city of Urbana filed a motion to dismiss. Thereafter, Champaign moved to withdraw its answer and file a motion to dismiss. Plaintiff objected, but ultimately the motion was allowed. Plaintiff then sought and was granted leave to file an amended complaint against the cities, both of which filed motions to dismiss the amended complaint. Urbana's motion was lengthy and was adopted by Champaign. It did not specify, other than mentioning section 2-603(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-603(b)), precisely what type of motion it was. However, its prayer was for dismissal with prejudice, and we therefore interpret it as a motion under section 2-615 of the Code (Ill. Rev. Stat. 1983, ch. 110, par. 2-615) claiming legal insufficiency of the amended complaint.

The amended complaint's allegations were largely parallel as to the two cities. The operative facts of the accident were alleged and, in addition thereto, it was alleged that the State high school basketball tournament was occurring on the same date and had ended shortly before the accident; that the tournament was attended by thousands of people, many of whom were teen-age students. A further allegation was that the intersection was in the heart of "Campus Town" and that on the date of the tournament was one of the most highly traveled intersections in the cities.

The gist of plaintiff's allegations of negligence against the cities is contained in two paragraphs of the amended complaint. These state:

"That defendant then and there negligently permitted a condition to exist, namely the improper design and construction of said intersection in light of its use on the date in question, which endangered the safe movement of traffic and made no provision for turning lanes or other means, including but not limited to traffic control devices, to allow the eastbound Green Street traffic to turn left unencumbered by the westbound lane of Green Street traffic and gave no warning of said dangerous condition.

Further, defendant negligently failed to provide properly functioning traffic control devices and a properly functioning intersection in that neither was reasonably fit for the use to which they were put on the date in question."

In its ruling dismissing the amended complaint, the trial court cited Boylan v. Martindale (1982), 103 Ill. App.3d 335, 431 N.E.2d 62, and reiterated language from that opinion which the trial court had used in dismissing the original complaint:

"[I]t would be entirely reasonable for the city to have believed that it fulfilled its duty to maintain a safe intersection by providing the clearly visible and functioning traffic lights. In this regard we must note that the city is only under a duty of ordinary care to maintain its streets in a reasonably safe condition. (Ill. Rev. Stat. 1979, ch. 85, par. 3-102(a).) By no means is the city to be considered an insurer against all accidents occurring on the public way. * * * [W]e conclude that, as a matter of law, the trial court could have correctly determined that the city fully discharged its duty by maintaining an unobstructed, properly working traffic signal at the intersection." 103 Ill. App.3d 335, 341, 431 N.E.2d 62, 67.

• 1, 2 It is thus apparent that the trial court held in substance that the cities had not violated any duty owed to plaintiff. In considering only the element of duty, the trial court was acting properly. The question of duty in a negligence case is a matter of law for the court. (Cunis v. Brennan (1974), 56 Ill.2d 372, 308 N.E.2d 617; Mieher v. Brown (1973), 54 Ill.2d 539, 301 N.E.2d 307.) The questions of breach of duty and proximate cause are questions for the jury. Too often, at the pleading stage, these distinctions become blurred. For a scholarly review of the problem and summation of the authorities, see Justice Jones' concurrence in Lemings v. Collinsville School District Number Ten (1983), 118 Ill. App.3d 363, 367-84, 454 N.E.2d 1139, 1141-52.

Grappling with the concept of duty much resembles juggling of quicksilver. The supreme court in Mieher stated:

"Professor Leon Green discusses foreseeability in distinguishing between the judge's role in determining the duty owed and the jury's role in determining the violation of the duty by stating:

`[H]owever valuable the foreseeability formula may be in aiding a jury or judge to reach a decision on the negligence issue, it is altogether inadequate for use by the judge as a basis of determining the duty issue and its scope. The duty issue, being one of law, is broad in its implication; the negligence issue is confined to the particular case and has no implications for other cases. There are many factors other than foreseeability that may condition a judge's imposing or not imposing a duty in the particular case, but the only factors for the jury to consider in ...

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