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06/30/89 Constantina Macrito, v. Anthony Zaverdas Et Al.

June 30, 1989





CONSTANTINA MACRITO, Special Adm'r of the Estate of Bruno

541 N.E.2d 1353, 186 Ill. App. 3d 562, 133 Ill. Dec. 915 1989.IL.1054

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


JUSTICE LORENZ delivered the opinion of the court. MURRAY, P.J., concurs. JUSTICE PINCHAM, Dissenting.


Plaintiff appeals from an order granting summary judgment in favor of defendants dismissing counts III and IV of her complaint. The sole issue presented is whether the circuit court correctly ruled that the provisions of "An Act to protect workers and the general public from injury or death during construction or repair of bridges and highways within the State of Illinois" (Act) (Ill. Rev. Stat. 1985, ch. 121, pars. 314.1 through 314.8) do not apply where two-way flow of traffic has been maintained through a highway construction site.

We affirm.

On September 13, 1984, at approximately 10 a.m., plaintiff's decedent, Bruno Macrito, while working as a laborer on a highway construction project on the Roselle Road bridge over the Northwest Tollway in the Village of Schaumburg, was struck by an automobile driven by Anthony Zaverdas. Roselle Road is a six-lane highway with three lanes for northbound traffic and three lanes for southbound traffic. The record indicates that due to the construction, travel on the easternmost southbound lane was precluded by a series of tapering barricades forcing traffic to merge west into the center southbound lane. The center southbound lane and the westernmost southbound lane remained open for traffic. Macrito was struck when he stepped into the center southbound lane and into the path of Zaverdas' automobile. He later died from injuries sustained.

Constantina Macrito, plaintiff's wife, filed a 10-count complaint, as amended, arising out of the accident naming the following parties as defendants: Zaverdas; the Illinois Toll Highway Authority; Christian-Roge & Associates, Incorporated (Christian-Roge), consulting engineers on the construction project; Plote, Incorporated, and Plote-Milburn Joint Venture, construction contractors; and Warning Lites of Illinois, Incorporated (Warning Lites), a subcontractor engaged to provide traffic-control devices. Eight of the counts sounded in common law negligence against the defendants and are not in issue in this appeal.

Pertinent here, counts III and IV of the complaint sought to establish liability against all named defendants based on statutorily imposed duties under the Act. Specifically, plaintiff alleged defendants wilfully violated the Act in the following respects:

"(a) failed to place and erect safe and suitable signs along Roselle Road warning traffic that portions of the road were closed to all traffic and were unsafe for travel;

(b) failed to place and erect safe and suitable barricades upon Roselle Road so as to properly close those portions of Roselle Road to all traffic;

(c) improperly positioned barricades along Roselle Road so as to permit two lane traffic along and upon Roselle Road at the overpass;

(d) failed to place and erect concrete barriers upon Roselle Road at the overpass so as to prevent vehicles from entering the working zone;

(e) failed to station a flagman at the construction site so as to slow traffic approaching the work zone and to warn the construction workers of immediate hazards;

(f) failed to place and erect signs warning traffic of the presence of flagmen; [and, as against defendant Zaverdas,]

(g) . . . failed to obey warning signs at or near the site."

Subparagraphs (a) through (d), above, relate to requirements imposed under section 4 of the Act, which plaintiff cited and which provides:

"Any portion of highway or bridge which is closed to all traffic shall be marked at each place where vehicles have accessible approach to such portion of highway or bridge, and at a sufficient distance from the closed portion of such highway or bridge shall be marked with an adequate number of safe, suitable, and proper warning signs, signals or barricades as set forth in the Manual of Uniform Traffic Control Devices for Streets and Highways published by the Department of Transportation so as to give warning to approaching motorists that such portion of bridge or highway is closed and unsafe for travel." (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 121, par. 314.4.)

We note subparagraphs (e), (f), and (g) relate to sections 2 and 3 of the Act, which plaintiff did not cite in the complaint. Section 2 provides:

"At all times during which men are working where one-way traffic is utilized, the contractor or his authorized agent in charge of such construction will be required to furnish no fewer than two flagmen, one at each end of the portion of highway or bridge on which only one-way traffic is permitted, and at least 100 feet away from the nearest point of the highway or bridge on which only one-way traffic is safe and permitted. The flagmen shall be equipped with safe, suitable, and proper signal devices as prescribed in the Manual on Uniform Traffic Control Devices for Streets and Highways published by the Department of Transportation, and shall so use such devices as to inform approaching motorists to stop or proceed. In addition, safe, suitable, and proper signals and signs as prescribed in the Manual shall be so placed as to warn approaching persons of the existence of any portion of highway or bridge upon which only one-way traffic is safe and permitted. At bridge construction or bridge repair sites, where one-way traffic is utilized, traffic control signals conforming to the Manual may be installed and operated in lieu of, or in addition to, flagmen. [The following two sentences were added by Public Act 82-408, § 1, effective January 1, 1982.] Whenever the Department of Transportation or local authorities determine that a bridge or highway construction site requires the closing of a road to through traffic, the contract documents relating to such construction may specify alternate procedures for flagging and controlling traffic, when such procedures have been approved by the Department. When alternate procedures are not included, traffic control and flagging will be as prescribed in the first paragraph of this Section." (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 121, par. 314.2.)

Section 3 provides:

"Drivers of any motor vehicle approaching any section of highway or bridge which is limited to only one-way traffic shall obey warning signs and shall stop their vehicles if signaled to do so by a flagman or a traffic control signal." (Emphasis added.) Ill. Rev. Stat. 1985, ch. 121, par. 314.3.

On December 4, 1985, Christian-Roge moved for summary judgment as to counts III and IV, arguing, generally, no liability could be stated under the Act because, where the accident occurred, two-way traffic had been maintained and the Act did not apply under that circumstance. Deposition statements of Edmund P. Doone, a Village of Schaumburg police officer who investigated the accident, and Larry Newby, an eyewitness, were attached for purposes of establishing that traffic was maintained both southbound and northbound on Roselle Road despite the construction.

Doone's deposition afforded the better description of how traffic was maintained through the construction prior to the accident. He related that two traffic lanes were open for southbound traffic. The easternmost southbound lane had been closed off to traffic about 60 feet south of the Roselle Road bridge over the tollway. Doone stated that two northbound lanes were also open for northbound traffic. One northbound lane had been closed. He was uncertain, however, whether the closed northbound lane was the westernmost or easternmost northbound lane.

In his deposition, Newby related his observations of the accident from the vantage of his pickup truck, which had been stopped momentarily in traffic in the westernmost southbound lane on Roselle Road. Although he was shown photographs of the site of the accident indicating, consistent with Doone's description, that Roselle Road had three northbound and three southbound lanes, Newby recalled only two northbound and two southbound lanes existed in total. Newby's deposition is consistent with Doone's, however, in establishing that northbound traffic was permitted over the northbound lanes of Roselle Road as Newby stated that he returned to the scene of the accident via northbound Roselle Road after exiting southbound to telephone police.

On December 31, 1985, Warning Lites also filed a motion for summary judgment based on grounds similar to the motion of Christian-Roge.

After a hearing on February 21, 1986, the trial court granted defendants' motions and entered an order dismissing counts III and IV of the complaint as to all defendants. This appeal followed.

We observe at the outset that plaintiff's contentions on appeal address only whether the grant of summary judgment was proper considering the language of section 4 of the Act. As we have noted, however, the allegations under subparagraphs (e), (f), and (g) of counts III and IV sound in violation of sections 2 and 3 of the Act, not section 4. We therefore also consider, below, whether summary judgment was properly entered in consideration of liability under those sections of the Act, as well.

It is plaintiff's position that preclusion of traffic in one or more regular southbound lanes on Roselle Road due to construction constituted a closure of "[a] portion of a bridge or highway" as contemplated under section 4 of the Act. (Ill. Rev. Stat. 1985, ch. 121, par. 314.4.) Defendants, on the other hand, contend the language "any portion of" contained in section 4 is properly equated only with length or stretch of highway such that a closure of a portion of the highway occurs only where no through traffic is permitted whatsoever. Defendants rely on Dodson v. Shaw (1983), 113 Ill. App. 3d 1063, 448 N.E.2d 188, and Filipetto v. Village of Wilmette (1985), 135 Ill. App. 3d 781, 482 N.E.2d 358, which hold that the mandates of the Act apply only where construction allows one lane for use by vehicles traveling in opposite directions, or where the highway is closed to all through traffic, not where two-way traffic has been maintained. Plaintiff does not dispute two-way traffic was maintained on Roselle Road where the accident occurred. Instead, plaintiff submits Dodson and Filipetto were wrongly decided, arguing the restrictive interpretation given the Act in those cases is contrary to the statute's language and objectives of the legislature.

We disagree. Similar arguments were advanced unsuccessfully in Eggers v. H.W. Lochner, Inc. (1987), 157 Ill. App. 3d 822, 510 N.E.2d 1022, and Andrews v. Marshall's of Oak Lawn, Illinois, Inc. (1988), 173 Ill. App. 3d 162, 527 N.E.2d 430. In each case, the appellate court affirmed the interpretation of the scope of the Act as contained in Dodson and Filipetto, specifically addressing requirements under section 4. (Eggers, 157 Ill. App. 3d at 824-27, 510 N.E.2d at 1024-26; Andrews, 173 Ill. App. 3d at 163-66, 527 N.E.2d at 934-35.) We agree with each decision's Conclusion that interpretations of the Act as contained in Dodson and Filipetto are consistent with language of the Act. We direct attention to the court's analysis in those cases in lieu of presenting a repetitious Discussion of that matter here.

While the court in neither Dodson, Filipetto, Eggers, nor Andrews was concerned with interpretation of the language "any portion of the highway or bridge" contained in section 4, we find no reason to conclude that that language evinces an intended less restrictive interpretation of the Act than is set out in those cases. Other language in section 4, requiring demarcation "where vehicles have accessible approach" to the portion of highway closed to all traffic and placement of suitable signs "at a sufficient distance from the closed portion" of the highway, suggests section 4 was not intended to apply to situations such as the instant case. (Ill. Rev. Stat. 1985, ch. 121, par. 314.4.) We do not believe that the area of a lane on which travel is permitted before traffic in that lane is merged into an adjacent lane constitutes the type of "accessible approach" reasonably contemplated under the Act. Rather, that language is befitting of situations such as where traffic must detour from the regular course of travel due to complete closing off of a thoroughfare (see, e.g., Kreke v. Caldwell Engineering Co. (1982), 105 Ill. App. 3d 213, 433 N.E.2d 1337), or, possibly, where a highway access ramp permits approach to a length of highway completely closed off for construction.

Beyond the statutory language itself, plaintiff argues the Manual of Uniform Traffic Control Devices for Streets and Highways prepared by the Department of Transportation, incorporated by reference in section 4, and/or the Federal Manual on Uniform Traffic Control Devices, adopted as the official manual in Illinois in 1979, indicates a less restrictive interpretation of the Act was intended by the legislature. Specifically, plaintiff points to considerations cited in the introductory section of each manual relating to the need for standard controls to protect workers when traffic must accommodate highway construction.

After reviewing the provisions in each manual, we cannot agree with plaintiff that either lends support to one interpretation of the Act over another. The manuals are intended only to provide a comprehensive guide on the types and specifications of traffic control devices, including flagmen, as well as their placement and use, considering the nature of the construction activity and particular roadway. While the recognized concern for safety during road construction is not limited to situations where one-way traffic is maintained or where a highway or bridge is completely closed to traffic, we fail to find how that concern assists us in interpreting the Act. Determination in a manual adopted by the Department of Transportation of the type, specification, and placement of devices to achieve uniformity in control of traffic around or through highway construction cannot be determinative of when the legislature mandated their use for purpose of liability under the Act.

Plaintiff also argues evidence of an intended less restrictive reading of the Act is found in the 1982 amendment adding the last two sentences to section 2 of the Act, set out in full above. Plaintiff notes that in its original form, the bill to amend section 2 would have made it possible to avoid the flagmen requirement on road construction projects where the average number of vehicles passing through the site was 600 or less, as well as where a road was closed to through traffic. The proposed amendment was intended as a cost or tax savings measure for State and local governments involved in road construction. After considerable debate in the House of Representatives, that portion of the bill relating to removal of flagmen on less traveled roads was removed. Elimination of that language in the amendment was based on concern that relaxation of the requirement for flagmen on less traveled roads would still compromise worker safety on those roads, albeit more infrequently than on other roads.

Typical of the concern voiced about the amendment were the comments of Representative McPike:

"he purpose of the original legislation was, as the Sponsor of this Bill just said, . . . common sense. It is common sense to put someone out there with a flag to tell automobiles and the drivers of those cars to slow down that there is [ sic ] men and women working there, and if they don't slow down they're going to kill somebody. . . . e believe that [workers'] safety takes preference over whatever . . . notion [there is that] . . . 600 vehicles a day doesn't constitute a real danger to the men working there. I think it is a good Amendment. I think it is necessary if we're going to avoid accidents to highway construction people. I support the Amendment." 82d Ill. Gen. Assem., House Proceedings, May 5, 1981, at 29 (statements of Representative McPike).

Plaintiff concludes the amendment, in its adopted form, establishes that flagmen are required at every road construction site, under section 2, unless the road has been closed to all through traffic. Plaintiff argues that Conclusion is evidenced by legislative commentary, such as that above, in which limitation of the flagmen requirement contained in the amendment was rejected. Apparently by way of extended interpretation, plaintiff reasons section 4 is to be read equally broadly to apply regardless of whether two-way traffic is maintained.

After reviewing the legislative comments within the context of the language of section 2 as it existed prior to amendment, we are only able to conclude that the language of the section was not generally considered and that the amendment's effect was unintended.

Prior to amendment, the unambiguous language of section 2 required flagmen only in connection with construction where men were working " where one-way traffic [was] utilized." (Emphasis added.) (See Ill. Rev. Stat. 1981, ch. 121, par. 314.2.) Before addition of the last two sentences in 1982, the operative language in every sentence in section 2, excepting the one sentence referring to types of signals to be held by flagmen, pertained to situations where one-way traffic was utilized or permitted. The Act simply did not require the presence of flagmen under any other circumstances of highway construction prior to the 1982 amendment. Representative Pullen appeared to have some understanding of the effect of the amendment on section 2. In explaining her vote against the amendment, she stated:

"Mr. Speaker, Ladies and Gentlemen of the House, if you read Amendment No. 2 you'll find that actually it is taking out flagmen on a permissive basis on all road projects whether or not [roads] have a 600 count or less. So those who have been saying that flagmen are needed and this is very important, really ought to be voting 'no' because the Amendment is eliminating them on all road projects rather than just those with a low traffic count. The point of the Amendment obviously is to try to gut the Bill before it ever gets to Third Reading, and I think that it would be more responsible to take a look at the Bill on Third Reading and decide how you want to vote on flagmen at that time. But those who are voting 'yes' in order to protect construction crews are voting exactly opposite to ...

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