APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
Motor Company, Defendant)
Nos. 87-0389, 87-0509 cons.
522 N.E.2d 215, 168 Ill. App. 3d 83, 118 Ill. Dec. 760 1988.IL.349
Appeal from the Circuit Court of Cook County; the Hon. Edwin M. Berman, Judge, presiding.
PRESIDING JUSTICE LORENZ delivered the opinion of the court. SULLIVAN and MURRAY, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ
Plaintiffs Janice Ross (Ross) and Virginia Clements (Clements), in a consolidated action, filed separate complaints against defendants Ford Motor Company and the City of Chicago (City) following the deaths of plaintiffs' decedents in an automobile collision. Plaintiffs appeal the dismissal below, as to defendant City, of both complaints under section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-615) pursuant to a finding by the trial court under Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)).
On September 3, 1984, an automobile containing plaintiff Clements' decedent, traveling south at approximately 1800 North Lake Shore Drive, crossed over the roadway into oncoming traffic and collided head-on with an automobile containing plaintiff Ross' decedents. Both plaintiffs filed complaints, as amended, against defendant City alleging wrongful death and survival actions in counts I and II, respectively, arising out of the accident. The gravamen of each count being that, although with notice of numerous "crossover" collisions at the site of the accident, defendant City failed to erect a median barrier of adequate dimensions, as it had provided elsewhere on Lake Shore Drive, to prevent vehicles from crossing over the roadway into oncoming traffic. Collectively, the counts alleged that such duty arose either in accordance with common law or contractually pursuant to a written agreement with the State of Illinois to "operate and maintain" portions of Lake Shore Drive, including the location where the accident occurred.
In addition to the above, plaintiff Clements also brought wrongful death and survival counts against defendant City based on provisions of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 1-100 et seq.). Counts III and IV of Clements' complaint alleged that various acts and omissions of defendant City constituted violations of the Code with respect to the maintenance of adequate traffic control devices, including the failure to erect a barrier as outlined above. We note here that the parties, in both the motion and hearing thereon below, and now on appeal, concede that the disputed allegations concern only the failure to erect a median barrier.
In lieu of answers, defendant City filed a motion to dismiss both complaints pursuant to section 2-615 of the Code of Civil Procedure. (Ill. Rev. Stat. 1985, ch. 110, par. 2-615.) The motion asserted that no duty existed to provide median barriers and that the failure to erect such a barrier was a discretionary governmental decision protected under provisions of the Local Governmental and Governmental Employees Tort Immunity Act. (Ill. Rev. Stat. 1985, ch. 85, par. 1-101 et seq.) On January 13, 1987, the trial court entered an order granting defendant City's motion. This appeal followed.
On review of dismissal of an action under section 2 -- 615 of the Code of Civil Procedure, the appellate court applies the same standards with respect to the pleadings as the court below which initially heard the motion. The court must determine whether, interpreting the allegations of the complaint in a light most favorable to the plaintiff, it appears that no set of facts could be proven under the pleadings which would entitle the plaintiff to relief. (Village of Wheeling v. Stavros (1980), 89 Ill. App. 3d 450, 411 N.E.2d 1067.) The court is to be concerned only with questions of law. (Jones v. Eagle II (1981), 99 Ill. App. 3d 64, 424 N.E.2d 1253.) The court tests the sufficiency of the complaint by ascertaining whether the essential elements of a cause of action exist. Beese v. National Bank (1980), 82 Ill. App. 3d 932, 403 N.E.2d 595.
Plaintiff, in a case involving negligence, such as the case at bar, must set forth the existence of a duty, a breach of that duty, and an injury proximately resulting from the breach of the duty. (Horrell v. City of Chicago (1986), 145 Ill. App. 3d 428, 495 N.E.2d 1259.) The question of duty is one of law. (Curtis v. County of Cook (1983), 98 Ill. 2d 158, 456 N.E.2d 116.) Thus, the issue before the court is whether defendant City had a duty arising either by operation of common law, under contract, or by statute, as alleged in the collective counts of plaintiffs' complaints, to provide an adequate ...