Before the completion of construction on the bridge, a tractor-trailer collided with a portion of the guard rail, tearing out a large segment of it and leaving the bridge abutment unprotected. When construction was completed, the temporary guardrail and barricades were removed. However, because removal of the white traffic control line had proven difficult in the past, defendant decided to let it wear away by traffic. When it did not wear away as anticipated, defendant attempted to cover the line with a black liquid. This did not work either. The following month, in the early evening, plaintiff passenger was riding in an automobile driven by his friend, heading toward the bridge. Both plaintiff and his friend had been drinking and smoking marijuana. As they approached the bridge, plaintiff saw the white traffic control line and mentioned it to his friend. When his friend cut sharply to the left to conform with the traffic control line, the rear of the car slid and the car struck the unprotected abutment. Both plaintiff and the driver were seriously injured.
APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
510 N.E.2d 1022, 157 Ill. App. 3d 822, 109 Ill. Dec. 954 1987.IL.861
Appeal from the Circuit Court of Cook County; the Hon. William A. Kelly, Judge, presiding.
JUSTICE CAMPBELL delivered the opinion of the court. QUINLAN, P.J., and BUCKLEY, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL
This interlocutory appeal arises out of an action brought by plaintiff, Wayne Eggers, against defendants, H. W. Lochner, Inc. (Lochner), and Peabody Midwest Construction, Inc. , seeking to recover damages for injuries sustained when the automobile which he was driving collided with a motor vehicle owned by Lochner, parked on the shoulder of Tri-State Tollway I-294. Lochner had been hired by the Illinois Tollway Authority (the Authority) to inspect the work being performed by other contractors hired by the Authority, including PMC. Just prior to the collision, a Lochner employee had parked his vehicle on the shoulder of I-294 and left the vehicle unattended while he inspected the drains and
The pleadings set forth the following facts pertinent to this appeal. In his deposition, plaintiff explained that on November 16, 1982, approximately 10:30 a.m., he was approaching the toll booth at the Touhy Avenue Toll Plaza, travelling in the extreme right-hand lane, when a vehicle cut in front of him and slammed on its brakes. In an effort to avoid colliding with the vehicle in front of him and to avoid being hit by the vehicle behind him, plaintiff turned onto the shoulder. Within seconds of turning onto the shoulder, plaintiff hit the rear end of the parked Lochner vehicle. Plaintiff stated that between the point at which he could see the tollgate (approximately 2 miles away) and the tollgate itself, he did not see any construction on either the pavement or the shoulder. Further, all lanes of traffic as well as the right-hand shoulder were open and unobstructed for at least one to two miles before the impact.
On April 29, 1983, plaintiff filed a two-count negligence action solely against Lochner, alleging that Lochner's act of parking its unattended vehicle on the shoulder of the tollway breached its duty to keep a proper lookout; violated various statutory provisions; and created a hazard on the highway. On July 25, 1984, plaintiff added PMC as a party-defendant, alleging that PMC had violated the Road Construction Injuries Act. PMC moved for summary judgment on the grounds that there was no genuine issue or question of material fact that: (1) PMC did not have any construction equipment, construction vehicles, or any vehicles parked on the northbound shoulder or any part of I-294 in the vicinity of the accident site on the date of the accident; and (2) PMC did not in any way obstruct, interrupt, or close off any portion of the normal flow of two-way traffic on I-294 in the vicinity of the accident site on the date of the accident. On February 16, 1986, the trial court granted PMC's motion with prejudice. Thereafter, on March 17, 1986, the trial court granted plaintiff's emergency motion to amend his complaint to add a count sounding in negligence against PMC. Plaintiff's timely appeal of the February 16, 1986, order followed. The negligence counts against Lochner and PMC remain pending below.
On appeal, plaintiff first contends that the Road Construction Injuries Act is applicable to the circumstances at bar. It is well-established that the purpose of the Road Construction Injuries Act is to protect workers and the general public from injury or death during construction or repair of bridges and highways within the State of Illinois. (Vegich v. McDougal Hartmann Co. (1981), 84 Ill. 2d 461, 419 N.E.2d 918; Dodson v. Shaw (1983), 113 Ill. App. 3d 1063, 448 N.E.2d 188.) Section 1 of the Act states:
"All construction work upon bridges or highways within the State of Illinois shall be so performed and conducted that two-way traffic will be maintained when such is safe and practical, and when not safe and practical, or when any portion of the highway is obstructed, one-way traffic shall be maintained, unless the authorized agency in charge of said construction directs the road be closed to all traffic." (Ill. Rev. Stat. 1985, ch. 121, par. 314.1.)
Other sections of the Act require the contractor to provide flagmen or traffic signals at construction sites where one-way traffic is utilized (Ill. Rev. Stat. 1985, ch. 121, par. 314.2); impose a duty on drivers to obey flagmen (Ill. Rev. Stat. 1985, ch. 121, par. 314.3); require proper signs or barricades when highways or bridges are closed to all traffic (Ill. Rev. Stat. 1985, ch. 121, par. 314.4); and impose liability on contractors, subcontractors or authorized agents for knowingly or wilfully violating the Act (Ill. Rev. Stat. 1985, ch. 121, pars. 314.5, 314.6).
Applicability of the Act to a situation similar to the one at bar, where two-way traffic was maintained and no portion of the highway had been entirely closed, was addressed by this court in Dodson v. Shaw (1983), 113 Ill. App. 3d 1063, 448 N.E.2d 188. In Dodson, defendant had been hired by the State to improve a bridge located on the eastbound lanes of an interstate highway. During construction, traffic was directed to the north lane of the eastbound lanes by the use of temporary traffic control devices. As a result of the change in traffic flow, it was necessary for defendant to paint a solid white traffic control line in the south lane to divide the two-way traffic. The temporary traffic control line merged with the original center line approximately 100 feet west of the bridge. Barricades and a temporary guard rail were also erected.
Following a jury trial, plaintiff appealed the jury's verdict in favor of defendant on the Road Construction Injuries Act count, alleging that the verdict was against the manifest weight of the evidence. Rather than rule on the manifest weight issue, the Dodson court ruled on the applicability of the Act. Although the court acknowledged that as a safety statute, the Act was to be liberally construed, it held that the Act applies only to "the unusually dangerous situation where a highway is closed altogether ...