Appeal from the Circuit Court of Cook County; the Hon. William
R. Quinlan, Judge, presiding.
JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 25, 1984.
Plaintiff Donna Jean Langford and her minor children (Langford) brought an action in the circuit court of Cook County against defendant Advance Transportation Company (Advance) to recover damages for the death of Robert E. Langford, plaintiff's husband, who was killed when his automobile was struck by an automobile driven by Sergio Cortez at the intersection of South Milwaukee Avenue and an asphalt-paved roadway leading to the 94th Aero Squadron Restaurant in Wheeling, Cook County.
This appeal is concerned only with counts III and VII of plaintiffs' amended complaint which contain the allegations against Advance. Count III seeks damages for the wrongful death of plaintiffs' decedent, alleging that Advance "owned a portion of the intersection" of the paved roadway leading from Milwaukee Avenue to the 94th Aero Squadron Restaurant; that Advance had "control and jurisdiction" over the aforesaid intersection; and that Advance was negligent in one or more of the following respects:
"a. Failed to adequately light said intersection.
b. Failed to warn motorists of the inadequate lighting.
c. Failed to design, construct and maintain said roadway so that motorists entering S. Milwaukee Road could have a reasonably clear view of traffic proceeding south on S. Milwaukee Avenue.
d. Designed, constructed and maintained an unreasonably hazardous intersection.
e. Failed to warn motorists proceeding south on S. Milwaukee Road of the aforesaid unreasonably hazardous intersection.
f. Failed to warn motorists proceeding east onto S. Milwaukee Road of the aforesaid unreasonably hazardous intersection."
Count VII seeks damages for a "survival action," under section 339 of the Probate Act (Ill. Rev. Stat. 1975, ch. 3, par. 339, now Ill. Rev. Stat. 1983, ch. 110 1/2, par. 27-6), alleging the same facts as in count III.
Although Advance in its brief claimed that, "unknown to Advance, a portion of the driveway pavement encroaches upon its property," Advance conceded that it, in fact, owned a small segment of land underlying the intersection. In an affidavit attached to Advance's motion for summary judgment, Michael J. Mattis, a registered Illinois land surveyor, verified Advance's ownership of "a small triangular area at the driveway's intersection with Milwaukee Avenue."
In response to interrogatories, the 94th Aero Squadron Restaurant acknowledged that the roadway in question was an easement granted to the 94th Aero Squadron by its landlord, George Priester, and that the 94th Aero Squadron has control over the roadway leading to its premises.
The trial court, relying on section 349 of the Restatement (Second) of Torts (1965), granted Advance's motion for summary judgment. The trial court held that mere ownership of a small portion of land underlying the intersection did not, as contended ...