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03/09/88 Anthony D. Bellino, v. the Village of Lake In the

March 9, 1988

ANTHONY D. BELLINO, PLAINTIFF-APPELLANT

v.

THE VILLAGE OF LAKE IN THE HILLS, DEFENDANT-APPELLEE (DAVID P. KUEHN ET AL., DEFENDANTS)



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

520 N.E.2d 1196, 166 Ill. App. 3d 702, 117 Ill. Dec. 845 1988.IL.339

Appeal from the Circuit Court of McHenry County; the Hon. Henry L. Cowlin, Judge, presiding.

APPELLATE Judges:

JUSTICE HOPF delivered the opinion of the court. DUNN and UNVERZAGT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOPF

The plaintiff, Anthony Bellino, appeals from the order of the circuit court which dismissed his negligence claim, as a matter of law, against the defendant, Village of Lake in the Hills (village), based on sections 3-102 and 3-105 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (Ill. Rev. Stat. 1985, ch. 85, pars. 3-102, 3-105). On appeal, the plaintiff contends that the circuit court erred when it concluded that those sections applied as a matter of law to preclude his claim against the village. For the reasons set forth below we affirm.

The following facts form the basis for this appeal. On August 21, 1986, the plaintiff filed a two-count complaint seeking monetary relief for property damage and injuries sustained in an automobile collision. In count I, against the village, the plaintiff alleged that on January 22, 1985, while operating his automobile southbound along Pine Street, he stopped his vehicle at an intersection, checked for traffic, and then slowly negotiated a left-hand turn. The complaint then alleged that as he turned, his line of vision became partially obstructed by snow mounds which the village had plowed on adjacent street corners. Finally, the complaint alleged that during the course of this left turn, the plaintiff's vehicle was struck by another vehicle driven by the defendant David Kuehn and owned by the defendant Kimberly Hembrey. (Subsequently, the plaintiff resolved count II, his claim against Kuehn and Hembrey, and entered a voluntary dismissal as to both on June 23, 1987.)

On December 16, 1986, the village filed a motion to dismiss which stated that sections 3 -- 102 and 3 -- 105 of the Act applied, as a matter of law, to bar its liability to the plaintiff as to allegations made in the complaint. On March 20, 1987, the court entered an order which found that the Act applied and dismissed the complaint, later issuing a letter opinion which set forth the legal basis of its order. On April 16, 1987, the plaintiff filed a notice of appeal. This court initially dismissed that appeal; because Kuehn and Hembrey remained as defendants in the litigation, all issues and controversies had not yet been resolved, and the trial court had not made the necessary finding pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). Subsequently, after a compromise with Kuehn and Hembrey resulted in the resolution of the previously unresolved controversies, the plaintiff filed a timely notice of appeal on June 23, 1987.

On appeal, the plaintiff maintains that the circuit court erred when it found that as a matter of law sections 3 -- 102 and 3 -- 105 of the Act precluded the village's liability. Specifically, the plaintiff maintains that the village negligently plowed and mounded snow at or near the intersection in such a way that its inordinate height and shape obstructed his view and otherwise created an unreasonably dangerous condition. It is the plaintiff's position that the trial court improperly dismissed his complaint as a matter of law, since not only is the village under an obligation to maintain its property in a reasonably safe condition pursuant to section 3 -- 102 of the Act, but, in addition, a municipality may become liable for the unnatural accumulations of ice and snow, such as the snowbanks in the present case. We disagree.

Section 3 -- 102(a) of the Act provides:

"Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in sufficient time prior to an injury to have taken measures to remedy or protect against such condition." Ill. Rev. Stat. 1985, ch. 85, par. 3-102.

With respect to the "[except] as otherwise provided" language in the previous section, section 3 -- 105 of the Act provides in pertinent part:

"Neither a local public entity nor a public employee is liable for an injury caused by the effect on the use of streets, highways, alleys, sidewalks or other public ways, or places of weather conditions as such. For the purpose of this section, the effect on the use of streets, highways, alleys, sidewalks or other public ways of weather conditions includes the effect of wind, rain, flood, ice or snow but does not include physical damage to or deterioration of streets, highways, alleys, sidewalks, or other public ways and place resulting from weather conditions." Ill. Rev. Stat. 1985, ch. 85, par. 3-105.

The issue presented in this appeal is whether piles of snow which result in obstructed vision are considered: (1) an "effect of weather conditions;" (2) physical damage to or deterioration resulting therefrom; or (3) not a condition which is covered by the Act at all. We agree with the trial court that the statute ...


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