Appeal from the Circuit Court of Kane County; the Hon. Richard
Weiler, Judge, presiding.
JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
Plaintiffs, Michael Eddings, a minor, by his mother and father, and his parents individually filed suit against defendant, Cindy Holtz (later dismissed as a party upon settlement), and in subsequent amended complaints against defendants the Dundee township highway commissioner and the township of Dundee (hereinafter township), Crichton's, Inc., alleged as Holtz' employer (also dismissed as a party upon settlement), and the county of Kane (hereinafter county) for injuries sustained by Michael, who, the parties agree, was jogging along Sleepy Hollow Road, Dundee, when he was struck by an automobile driven by Holtz. Plaintiffs appeal from orders granting the county's amended motion to strike and dismiss the amended complaint against it and the granting of the township's motion for summary judgment.
On appeal, plaintiffs contend that the pleadings and depositions submitted show a duty owed and genuine issues of material fact as to the counts against the township, and that the motion to dismiss the county was improperly granted.
Plaintiffs' fourth amended complaint, in essence, alleged in counts I through VI that the township, having jurisdiction over Sleepy Hollow Road, failed to properly construct, repair, and maintain the road and its shoulders for vehicular and pedestrian traffic. Specifically, plaintiffs alleged that the road and its shoulders had widths too narrow for the safe passage of vehicles and pedestrians; that the township allowed an overgrowth of foliage along the roadway which prevented a clear view of the road by the driver of the vehicle, Cindy Holtz, and which obstructed passage on the shoulder of the road by pedestrians; and that the township failed to post signs warning motorists of the condition of the road and the presence of pedestrians along the road. Counts X through XII against the county alleged, inter alia, that the county had undertaken the duty of advising the township regarding the best methods of construction, maintenance and repair of township roads and the duty of approving or disapproving the placement of traffic control devices by the township, and thereby was liable to plaintiffs for the same failure to maintain the road as alleged against the township. Counts VII through IX were against Crichton's, Inc., alleged to be Cindy Holtz' employer, and were later dismissed upon settlement.
The township filed its motion for summary judgment which contained arguments of law and fact, and attached excerpts from several depositions. Plaintiffs filed a memorandum of law in opposition to the township's motion. Numerous depositions were subsequently filed by plaintiffs which appear to have been argued by the parties and considered by the court on the motion for summary judgment. Briefly summarized, the depositions submitted were as follows.
Cindy Holtz, the operator of the automobile, stated in her deposition that Sleepy Hollow Road is very narrow and that the overhanging branches from the trees alongside the roadway cast shadows obscuring visibility. Holtz related that on the day of the incident, it was very sunny and she was not wearing sunglasses. After she had driven from a sunny part to five or 10 feet within a shaded portion of the roadway, she heard a thump and briefly saw the back of Michael's head on the passenger's side of her vehicle. Holtz also noted that she did not see Michael until she had hit him and that the right headlight and windshield of her car were damaged as a result of the accident. Finally, Holtz stated that while driving along the road she, at all times, remained one foot from the edge of the pavement surface.
Illinois State Trooper James Griffith investigated the August 21, 1980, incident and stated in his deposition that Michael was lying on the pavement approximately 135 feet north of the I-90 overpass when he arrived at the scene. Griffith noticed that there was no definite roadway shoulder next to the portion of the pavement where Michael was lying and the pavement edge is jagged blacktop which turns into gravel and dirt. His inspection of the area did not disclose the presence of foliage that would have impeded the progress of a pedestrian along the shoulder. Officer Griffith also related that intermittent areas of shade and sun frequently occur on Kane County roads and that this causes glare on vehicle windshields, making visibility very poor.
Former Dundee highway commissioner David Baresel stated in his deposition that his duties as highway commissioner included maintaining, upgrading, trimming overgrown foliage away from, and placing traffic control devices on, the local roads depending on the traffic count and money available. Baresel indicated that, while he was commissioner, only existing road signs within the township were replaced and no new signs were erected. The former highway commissioner noted that approximately 100 pedestrians walked along Sleepy Hollow Road on a given day. Normally, the replacement of traffic signals and signs within the township was performed by Kane County at Baresel's request. However, Baresel related that he never requested Kane County to repair or improve that particular portion of the road, and he was not sure whether the county could erect signs without his approval. Baresel assumed it could, since many signs were erected without his approval, although he did not know whether the county had erected them. In describing the designated function of Sleepy Hollow Road, Baresel stated that it did not have sidewalks and was not designed for pedestrian traffic.
Present Dundee highway commissioner Charles Behm stated in his deposition that Sleepy Hollow Road is located within the Dundee township district and the township has maintenance authority over the road. Behm related that the county must approve all road signing. A sign, however, must first be requested by a local township commissioner, although he was unsure whether the county could erect a sign without the township commissioner's approval, but he thought it probably could. Behm stated that he did not consider Sleepy Hollow Road dangerous and, accordingly, he did not request a sign. During Behm's term in office, the only accident occurring at that particular area was the one in the instant case. Behm also recognized that the roadway in question was regularly used by joggers. Finally, Behm commented that decisions to trim roadway foliage are based upon his observations.
Kane County highway superintendent William Carter stated in his deposition that Sleepy Hollow Road is under the jurisdiction of the Dundee township highway department and that the only role of the county is to obtain funding for projects and to supervise construction. Carter indicated that before any signs could be placed on a township roadway by the county, a request must first come from the township highway commissioner and that he never received any oral or written requests from the Dundee highway commissioners concerning the construction and/or general maintenance of Sleepy Hollow Road. Carter also noted that the county never made any suggestions as to the signing or reconstruction of Sleepy Hollow Road.
Kane County highway department traffic engineer Richard Dencer stated in his deposition that before any traffic control devices could be placed within Kane County, permission must first be obtained from superintendent Carter. In most instances, Carter sends him out to perform a study on a particular area and make a recommendation. Dencer indicated that 99% of the time he bases his recommendations on the State Manual on Uniform Traffic Control Devices. The studies he performs, however, would only be undertaken by the county upon a township request, and the township has the initial responsibility of determining whether a sign should be erected. Dencer stated that he was not aware of any situations where Kane County had initially requested the signing or reconstruction of a township road.
Plaintiffs' expert witness, Joseph Kostur, stated in his deposition that he is currently employed as the safety and claims manager for the Illinois Department of Transportation. Kostur indicated that he viewed the accident site on four occasions and found it to be hazardous in several respects. He noted that the roadway lacked a clear recovery area; that the foliage along the roadway should have been removed to provide better visibility; and that signs should have been posted warning motorists of pedestrians, low shoulders, a no-passing zone, and the speed limit. Kostur related that many children use Sleepy Hollow Road as an accessway to the Elgin parks. Kostur further explained that in his opinion Michael was facing away from traffic and jogging in a southerly direction, on the pavement surface, when he was struck by the automobile. Kostur admitted that in his experience he was not aware of any standards or regulations requiring the removal of tree branches overhanging a roadway and that he would classify Sleepy Hollow Road as a rural service road.
Finally, defendants' expert Robert Seyfried stated in his deposition that he is the associate director of Northwestern University's transportation engineering division of traffic institute and is also a road design and reconstruction consultant. Seyfried examined Sleepy Hollow Road on two occasions and found the pavement in poor condition. However, Seyfried explained that in his opinion there was no causal relationship between the design of the road and the resulting accident and that the road was adequate for the traffic it served. He also noted the current trend in road construction is that if a road is functioning adequately it need not be upgraded to conform to Illinois Design Manual standards. Based upon his examination, he concluded that the width of the shoulder had nothing to do with the accident because it was certainly wide enough for a jogger. Seyfried agreed with plaintiffs' expert that there is absolutely no need to trim overhanging foliage to prevent it from casting shadows on the roadway. Seyfried also explained that the mere fact of pedestrian activity along the side of the roadway would not necessarily mean the roadway should be widened or that signs should be erected. Instead, the presence of pedestrians would only influence a decision to install sidewalks. Seyfried also concluded that no such roadway modifications or warning signs were necessary at that area of Sleepy Hollow Road.
The county filed an amended motion to dismiss, it having not become a defendant until the filing of plaintiffs' fourth amended complaint. The motion to dismiss does not specify whether it is brought under section 2-615 or section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, pars. 2-615, 2-619). In its motion, the county requested dismissal on the basis that it was self-insured, and that, under certain provisions of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1983, ch. 85, par. 1-101 et seq.), it was immune from liability. The motion also requested dismissal, because Sleepy Hollow Road was under the jurisdiction of the township and the county had no obligation to maintain it. The county filed an excerpt from the deposition of the former Dundee township highway commissioner, David Baresel, in which he states that he never made any request to the county to repair and improve Sleepy Hollow Road. Later the county filed the affidavit of William E. Carter, ...