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07/13/88 Gary E. Finley Et Al., v. Mercer County

July 13, 1988

GARY E. FINLEY ET AL., PLAINTIFFS-APPELLANTS

v.

MERCER COUNTY, DEFENDANT-APPELLEE (THE VILLAGE OF REYNOLDS, DEFENDANT)



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

526 N.E.2d 635, 172 Ill. App. 3d 30, 122 Ill. Dec. 376 1988.IL.1094

Appeal from the Circuit Court of Mercer County; the Hon. L. E. Ellison, Judge, presiding.

APPELLATE Judges:

JUSTICE HEIPLE delivered the opinion of the court. WOMBACHER, J., concurs. JUSTICE SCOTT, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HEIPLE

The plaintiffs appeal from a trial court order granting defendant Mercer County's motion for summary judgment. The trial court correctly determined that there were no genuine issues of material fact and we therefore affirm.

Plaintiffs Gary Finley and Joyce Meisinger brought this action to recover damages for injuries sustained in a motorcycle accident. They named Mercer County (County) and the Village of Reynolds (Village) as defendants. The complaint alleged that Finley, the driver of the motorcycle, and Meisinger, his passenger, were traveling north on County Highway 1, which is also known as West Front Street. They were approaching a "Y" intersection where Highway 1 curves to the northwest and a narrow gravel road joins it from the north. A stop sign facing north was posted at the intersection and requires traffic traveling south on the gravel road to stop before proceeding onto Highway 1.

In the complaint, the plaintiffs alleged that on the date of the accident, the stop sign was twisted so that it faced the northwest-bound traffic on Highway 1. They further alleged that when Finley observed the stop sign facing his lane of traffic, he attempted to stop and lost control of the motorcycle. They charged the County and Village with negligence because they knew or should have known that the sign was twisted and created an unsafe condition for motorists traveling north on Highway 1.

The Village of Reynolds filed a motion for summary judgment, which was allowed. That order is not an issue in this appeal.

Mercer County filed a motion for summary judgment and alleged that, if the sign was improperly turned on the date of the accident, the County did not have actual or constructive notice of the condition and that there was no genuine issue of material fact with respect to the County's lack of notice. In its memorandum in support of its motion, the County noted that in his deposition, Finley testified that when he traveled through the intersection a week or two before the accident, the sign was not improperly turned. Similarly, in her deposition, Meisinger testified that she last traveled north through the intersection less than three months prior to the accident and the sign was not twisted at that time.

The plaintiffs filed a response in resistance to the motion for summary judgment and attached a copy of the deposition of Brian Neff, a friend of the plaintiffs', who was deposed after the County filed its motion for summary judgment. Neff testified that he was familiar with the road where the accident took place because he traveled the road with some frequency during the 12- to 18-month period prior to the accident. He stated that for as long as he could remember, that is, for the entire 12- to 18-month period before the accident, the stop sign which was intended for traffic traveling south on the gravel road was twisted so that it faced traffic traveling north on Highway 1. Neff further testified that he last traveled through the intersection within one month prior to the accident and the sign was twisted at that time. From Neff's testimony, the plaintiffs argued that the stop sign was improperly turned for up to a year and a half prior to the accident and that considering the length of time and the conspicuity of the defect, a jury could find that the County had constructive notice of the improperly positioned sign.

The court acknowledged that Neff's statement standing alone would have furnished a disputed issue of fact because one could infer that if the sign was twisted for a year before the accident, it remained in that position until the accident. However, the court noted also that Neff's statements conflicted with those of the plaintiffs which indicated that the stop sign was properly positioned during all of their previous trips on the road. After determining that the plaintiffs cannot establish a fact issue by relying on testimony which directly contradicts their own, the court found that no genuine issue of material fact existed and granted the County's summary judgment motion. On appeal, the plaintiffs argue that the trial court erred in granting summary judgment because the evidence presented a genuine issue of material fact regarding whether Mercer County had notice of the allegedly improperly positioned stop sign.

Summary judgment is properly granted when the pleadings, depositions, and admissions on file, together with any affidavits submitted, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2-1005(c).) The law is well settled that evidence is to be construed strictly against the moving party and liberally in favor of the opponent. To hold the County liable for the injuries sustained, the plaintiffs must prove that the County had actual or constructive notice of the existence of the twisted sign in a reasonably adequate amount of time prior to the accident to have taken measures to remedy the condition. Ill. Rev. Stat. 1987, ch. 85, par. 3-102(a).

The plaintiffs concede that the issue of actual notice was not raised in the trial court. Accordingly, our only consideration is whether the County had constructive notice of the defective stop sign. The burden of proving notice is on the party charging it and constructive notice under section 3 -- 102(a) is established where a condition has existed for such a length of time, or was so conspicuous, that authorities exercising reasonable care and diligence might have known of it. (Buford v. Chicago Housing Authority (1985), 131 Ill. App. ...


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