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Dibenedetto v. County of Du Page

OPINION FILED FEBRUARY 27, 1986.

CELESTE DIBENEDETTO, ADM'R OF THE ESTATE OF GUERINO DIBENEDETTO, ET AL., PLAINTIFFS-APPELLANTS,

v.

THE COUNTY OF DU PAGE ET AL., DEFENDANTS-APPELLEES (THE COUNTY OF DU PAGE, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLEE,

v.

LEININGER MID-STATE PAVING COMPANY, THIRD-PARTY DEFENDANT).



Appeal from the Circuit Court of Du Page County; the Hon. John J. Nelligan, Judge, presiding.

PRESIDING JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 15, 1986.

Plaintiff, Celeste DiBenedetto, brought this survival and wrongful death action against defendants, county of Du Page; Ronald Dold, as county superintendent of highways; and Anthony Grzemski, who was the county resident engineer of the road construction project in which decedent, Guerino DiBenedetto, was killed. Plaintiff alleged in her complaint that defendants were negligent by failing to adequately supervise and control traffic at the construction site. The jury returned a verdict for defendants and found, in response to a special interrogatory, that the conduct of a motorist, Susan Daugaard, was the sole proximate cause of the death. The trial court entered judgment on the verdict and denied plaintiff's motion for judgment n.o.v.

Plaintiff appeals, contending (1) she is entitled to judgment notwithstanding the verdict as defendants were negligent as a matter of law and, alternatively, the verdict and special finding were against the manifest weight of the evidence requiring reversal and a new trial; and (2) that errors in rulings of the trial court and in its instructions require reversal for a new trial.

Plaintiff's decedent was fatally injured on April 10, 1979, while working in a crew installing storm sewers on the west side of Washington Street in Du Page County. He was employed by third-party defendant, Leininger Mid-State Paving Company, with which the county had contracted to perform the road construction. Leininger Paving was severed from this trial. An automobile driven by Susan Daugaard, who was intoxicated, approached the construction area on Washington Street from the south at speeds estimated to be from 50 to 85 miles per hour and lost control of her vehicle, striking a pipe which crushed decedent. At the place of the accident, the southbound traffic lane of the street was blocked by piles of dirt and pipe and by a backhoe at which decedent and others were working; Daugaard drove in the northbound lane but swerved from it into the adjoining construction area. That area was protected by a tapering row of Type 1 (sawhorse) barricades along the west and center portions of the road between the construction area and the north lane of traffic. The car was driven through the barricades and into the construction area.

The essential controverted question presented in trial was whether defendants negligently failed to cause proper barricades to be erected to protect the construction site workers from traffic. Resolution of that issue turned primarily upon whether the roadway was closed, or closed to through traffic, and whether defendants complied with applicable safety standards relating to barricades to protect the construction site. Plaintiff urged in trial that the road was closed to through traffic at the time of the accident and defendants failed to provide the requisite Type III barricades blocking the road then necessary under the safety standards. Defendants, however, argued in trial that the road was not closed to through traffic and, in any event, engineering discretion permitted use of the smaller Type I barricades present at the site. Defendants also argued that the negligence of the operator of the vehicle which drove into the construction site was the sole proximate cause of the death.

The road project from which this case arose consisted of the widening of Washington Street to four traffic lanes from Gartner Road on the north to the Du Page-Will County line on the south, a distance of approximately 15,150 feet running, in part, through Naperville. Du Page County retained consulting engineers to prepare plans and specifications, but determined the county would supervise the construction. Subsequently, the county entered into a contract with Leininger Mid-State Paving Company to do the work and assigned the county's resident engineer, defendant Anthony Grzemski, to the project to supervise and inspect it. Defendant Ronald Dold, superintendent of highways, and Fred Bowen, chief highway engineer for the county, were in charge for the county.

The construction contract provided that all work was to conform with the "Standard Specifications for Road and Bridge Construction" published by the Illinois Department of Transportation. Those standards, and also the contract, required that construction zone traffic control devices conform to the "Illinois Manual on Uniform Traffic Control Devices" (the Manual), which sets forth minimum standards for design and installation of such devices to protect motorists and workers from injury. The Manual states that its recommendations are subject to engineering judgment and discretion in application and are not legal requirements, but that installations shall adhere to its general standards. The Manual provides that when a road is closed, or closed to through traffic, the large Type III road barricades shall be erected at the point of closure, either across the road or staggered so that a vehicle must weave between and around them. The construction contract between Du Page County and Leininger Paving provided that when any section of the road is closed to traffic, the contractor shall protect the workers and motorists by erecting traffic control devices in accordance with the Manual.

It is undisputed that Washington Street was closed with Type III barricades from the northern end of the construction project at Gartner Street to 87th Street on the south. All major cross streets in this area were also closed by Type III barricades. From 87th Street south to the Du Page-Will County line, which was the south end of the construction project and a distance of approximately 1,000 feet, Type III barricades were not present. 87th Street is a "T" intersection running only west from Washington Street; the construction area at which the accident occurred was on the west side of Washington Street directly south of 87th. This construction area was protected by Type I (sawhorse) barricades surrounding the work, as earlier described, and no barricades were erected in 87th Street or on Washington Street at the south end of the project at the county line. Between the county line and the construction area in which the accident occurred there were four "road construction" signs on the east side of Washington Street facing a northbound driver spaced 1,500, 1,000 and 500 feet from the place of the accident. The intoxicated motorist drove north on Washington Street and, after seeing the 500-foot sign, lost control of her vehicle and drove into the work site.

In paragraph 7 of her amended complaint, plaintiff had alleged that at the time and place of the accident, Washington Street was closed to traffic and all vehicles were required to use the northbound lane as the south lane was obstructed. For their answer to paragraph 7, defendants admitted that Washington Street was closed to all but local traffic at the time of the occurrence. In response to pretrial interrogatories propounded by plaintiff, defendants also admitted that Washington Street was closed to all but local traffic from the county line on the south to 75th Street on the north. It was also established that the construction plans and contract between the county and Leininger Paving required that the road was to be closed to all but local traffic pursuant to the State Manual.

In trial, defendant, Anthony Grzemski, the county resident engineer on the project, was called by plaintiff as an adverse witness and shown to have supervisory and inspection authority of the project and traffic control devices. He initially testified that Washington Street was closed to through traffic from the county line to 87th Street and the Manual required Type III barricades be erected at points of closure. The witness also testified he had not checked the requirements of the Manual at the time as to traffic control devices, but considered the Type I devices used to be adequate and Type III unnecessary. Fred Bowen, chief highway engineer for the county also testified, inter alia, that Washington Street was closed to through traffic and such a condition should have Type III staggered barriers under the terms of the Manual; however, he considered that as resident engineer, he could in the exercise of discretion decide the requirements of the Manual would not be implemented. Robert Dunn, an officer of the contractor and project superintendent, initially testified, inter alia, that the road was closed and Type III barricades were thus required. He later testified, however, that Type III barricades were not necessary, but was impeached by his deposition testimony that the barricades should be erected as the road was closed. This witness stated the road was open because the city of Naperville had so requested.

Defendant Ronald Dold, the county superintendent of highways, when called by plaintiff as an adverse witness, initially testified the road was not closed south of 87th Street to through traffic, but was open to traffic. Plaintiff sought to impeach the witness with defendant's answer, which was to the contrary. Defendants objected, arguing the admission in the answer was a mistake by the lawyer preparing it and, as the answer was not verified, it could not be used for impeachment. Defendants then also sought to amend their answer. The trial court ruled the answer was a judicial admission that the road was closed to all but local traffic, which the plaintiff had relied upon, and defendants' motion to amend was untimely. While the trial court declined to permit plaintiff to use the unverified answer for impeachment purposes, it permitted plaintiff to read it to the jury. Plaintiff confronted witness Dold with his answers to interrogatories, and the witness then testified the standards contained in the Manual for barricades of a road closed except to local traffic were mandatory, but could be overridden by engineering judgment.

Plaintiff's final witness was Dr. John Baerwald, a traffic engineer from the University of Illinois, who responded to hypothetical questions relating to the adequacy of the traffic control devices in place at the time of the accident. Plaintiff's questions asked the witness to assume defendants had admitted the road was closed to traffic and that road closure barricades had not been erected. When defendants objected to this form of the question on grounds defendant Dold had testified the road was open, the court overruled the objection, as it had been determined that fact was settled by defendants' judicial admission in their answer.

The expert witness testified that road closure barricades and signs are mandatory and there is no discretion to be exercised where an installation is described as mandatory in the Manual. On cross-examination, the witness, over plaintiff's objection, was asked to assume the road was open to traffic and for his opinion as to the adequacy of the traffic control devices used in this case as they relate to a one-lane road. He responded that the standards of the Manual for a one-lane road have no application ...


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