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04/23/87 Janet Morrison, v. the Forest Preserve

April 23, 1987

JANET MORRISON, PLAINTIFF-APPELLANT

v.

THE FOREST PRESERVE DISTRICT OF COOK COUNTY, DEFENDANT-APPELLEE (JOHN A. CAROLLO ET AL., DEFENDANTS)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

508 N.E.2d 312, 155 Ill. App. 3d 687, 108 Ill. Dec. 151 1987.IL.536

Appeal from the Circuit Court of Cook County; the Hon. William A. Kelly, Judge, presiding.

APPELLATE Judges:

JUSTICE JIGANTI delivered the opinion of the court. McMORROW, P.J., concurs. JUSTICE LINN, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JIGANTI

The plaintiff, Janet Morrison, brought this lawsuit to recover damages for injuries she sustained when the motorcycle on which she was a passenger collided with an automobile on a road under the control of defendant, the Forest Preserve District of Cook County (District). Count IV of the plaintiff's five-count amended complaint, the only count

According to the allegations of the plaintiff's complaint, the road on which she was injured was a paved road under the control of the District which the District had a duty to maintain in a safe condition for ordinary public travel. The plaintiff alleged that on the portion of the road entering the forest preserve in which the collision occurred, the District painted a white center line indicating the presence of two-way traffic. The center line "extended for a distance then abruptly ended without warning" as to the continued existence of two-way traffic. The plaintiff alleged that by discontinuing the center line and failing to post warning signs, the District created a dangerous and unsafe condition which caused motorists to be unsure as to whether the road remained open to two-way traffic. The plaintiff's complaint states that at some point after the white center line ended, the motorcycle on which she was a passenger collided head on with an automobile.

The sole issue before us is whether the trial court properly dismissed count IV of the plaintiff's amended complaint.

The Tort Immunity Act serves to immunize public entities from liability for negligence in certain specified situations. (Plesnicar v. Kovach (1981), 102 Ill. App. 3d 867, 870, 430 N.E.2d 648, 650.) If the plaintiff's complaint fails to state a cause of action for negligence, it is unnecessary to reach the issue of whether the immunity afforded by the Act is applicable. (102 Ill. App. 3d 867, 870, 430 N.E.2d 648.) It is well established that a cause of action should be dismissed on the pleadings only where it clearly appears that no set of facts could be proved which would entitle the plaintiff to recover. (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 187, 380 N.E.2d 790, 794.) For purposes of a motion to dismiss, all facts properly pleaded in the complaint must be taken as true. (72 Ill. 2d 179, 187, 380 N.E.2d 790.) The failure of a complaint to state a cause of action is a fundamental defect which may be raised at any time by any means and cannot be waived. Knox College v. Celotex Corp. (1983), 117 Ill. App. 3d 304, 306, 453 N.E.2d 8, 10; People ex rel. Difanis v. Futia (1978), 56 Ill. App. 3d 920, 925, 373 N.E.2d 530, 535.

In order to state a cause of action for negligence, the allegations of the complaint must establish the existence of a duty of due care, a breach of that duty, and an injury proximately resulting from that breach. (Durr v. Stille (1985), 139 Ill. App. 3d 226, 228-29, 487 N.E.2d 382, 383.) Although the degree of care exercised by the defendant is generally a question of fact, it becomes a matter of law where reasonable men of fair understanding could not disagree as to the Conclusions resulting from the facts. Agnello v. Puzzo (1982), 110 Ill. App. 3d 913, 917-19, 443 N.E.2d 648, 651-52.

The facts alleged in the plaintiff's complaint reveal that the District painted a white center line at the entrance to the road which would indicate to drivers entering the road that it contained two-way traffic. The plaintiff claims that by discontinuing that line, the District created a dangerous condition which would cause a motorist to believe that the road had suddenly become one way and that he could therefore drive in the middle or on the left side of the road. We do not believe that reasonable men of fair understanding could reach this Conclusion.

First, the Rules of the Road, contained in the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, pars. 11-701(a)(4), 11-708(a)), provide that vehicles must be driven on the right side of the road unless the road has been designated as one way by a governmental authority. There is no allegation as to the existence of a sign indicating that the road on which the collision occurred was designated one way. In our view, the mere discontinuance of a line painted to initially guide drivers into the appropriate lane cannot be reasonably interpreted as the designation of a one-way road. (See generally Consolino v. Thompson (1984), 127 Ill. App. 3d 31, 34-35, 468 N.E.2d 422, 425 (discussing evaluation to be made in determining whether a particular inference is unreasonable as a matter of law).) Second, the plaintiff's amended complaint does not allege the existence of any side road or separate entrance for oncoming traffic at the point where the center line ended. As a matter of logic, the only possible source of the oncoming traffic would have to be the single road on which the plaintiff was traveling. Under these circumstances, we believe that the trial court properly dismissed count IV of the amended complaint.

Accordingly, the judgment of the circuit court ...


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