APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
Commissioner of Ottawa Township, et al., Defendants). --
(Vincent A. Dettore, Highway Commissioner of Ottawa
Township, et al., Defendants-Appellants)
Nos. 3-86-0063, 3-86-0126 cons.
505 N.E.2d 776, 153 Ill. App. 3d 390, 106 Ill. Dec. 229 1987.IL.348
Appeal from the Circuit Court of La Salle County; the Hon. William P. Denny, Judge, presiding.
Presiding Justice Scott delivered the opinion of the court. Heiple and Wombacher, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCOTT
This case involves two separate appeals which have been consolidated. The first concerns plaintiff-appellant's (Mark Highland) appeal of the trial court's summary judgment dismissal of one of the defendants. The second concerns the remaining defendants-appellants' (Vincent Detorre, highway commissioner of the township of Ottawa and the township of Ottawa) appeal of the trial court's decision to allow plaintiff to voluntarily dismiss the cause of action and refile within one year under section 2-1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1009).
On May 8, 1979, the plaintiff, Mark Highland, sustained serious injuries in a collision on North 2803 RD road in the township of Ottawa when the motorcycle he was driving collided with a pickup truck. The accident occurred at an approach to a bridge, which, in a study of alternatives performed in 1974, it was determined that the most feasible solution to the danger posed by this particular spot in the roadway was to construct a new viaduct to replace the bridge.
The main source of controversy in plaintiff's appeal (the first appeal) concerns a joint petition presented by the county of La Salle and the township of Ottawa to the Illinois Commerce Commission to solicit funds for the proposed new viaduct and the order handed down by the ICC in response to the joint petition. On January 19, 1976, the then county superintendent of highways, Eugene Stevenson, attended a hearing on the petition and gave testimony under oath on the substandard qualities of the bridge and approaches to the bridge on North 2803 RD road. On March 10, 1976, the Illinois Commerce Commission issued an order regarding the proposed viaduct. The order stated, among other things, that:
"IT IS FURTHER ORDERED that the joint Petitioners shall proceed immediately with the necessary plans for construction of said viaduct; this structure is to be completed within three (3) years from the date of this order. IT IS FURTHER ORDERED that the existing grade separation be and it is
hereby closed and abolished and joint Petitioners shall barricade or otherwise remove approaches to the old structure so as to prohibit its use by the public, said closure to be coincident with the opening of the new viaduct structure. IT IS ...