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07/17/89 James Battisfore, Indiv. v. Flora Moraites Et Al.

July 17, 1989

JAMES BATTISFORE, INDI

v.

AND AS SPECIAL ADM'R OF THE ESTATE OF JOHN BATTISFORE, DECEASED, PLAINTIFF-APPELLANT,

v.

FLORA MORAITES ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

541 N.E.2d 1376, 186 Ill. App. 3d 180, 133 Ill. Dec. 938 1989.IL.1110

Appeal from the Circuit Court of Lake County; the Hon. Bernard E. Drew, Jr., Judge, presiding.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. DUNN, J., concurs. JUSTICE McLAREN, specially Concurring.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Plaintiff, James Battisfore, individually and as special administrator of the estate of John Battisfore, deceased, appeals from orders of the circuit court of Lake County entered on April 18, 1988, July 28, 1988, and September 29, 1988. The order of April 18 granted the motion of defendant Outboard Marine Corporation for summary judgment directed at count III of plaintiff's third amended complaint. The order of July 28 granted OMC's motion to dismiss count II of plaintiff's fourth amended complaint. The order of September 29 granted the motion of defendant City of Waukegan (Waukegan) for summary judgment directed at count I of plaintiff's fourth amended complaint.

The issues presented on review are: (1) whether OMC owed plaintiff a duty under section 368 of the Restatement (Second) of Torts; (2) whether the circuit court erred in dismissing the wilful and wanton count in the fourth amended complaint against OMC; (3) whether Waukegan had a duty to warn of the hazard adjacent to the roadway even though on property not owned or controlled by Waukegan; and (4) whether this court lacks jurisdiction over plaintiff's appeal against OMC, as maintained in a motion to dismiss filed in this court by OMC.

Plaintiff's third amended complaint is in three counts. Count I is against Flora Moraites, the driver of the vehicle in which the deceased was riding as a passenger at the time of the occurrence, and was apparently settled during the course of the proceedings below. Count II is against Waukegan and alleges that on June 16, 1986, at 11:35 p.m., deceased was a passenger in a vehicle driven by Moraites on Sea Horse Drive, a roadway under Waukegan's jurisdiction. The complaint further alleges that at or near the 500 block of Sea Horse Drive the roadway curves sharply and turns abruptly, that there are immovable cement-filled barricade pillars located immediately adjacent to the roadway at various points along the curve, that on prior occasions vehicles have left the roadway at this location and struck the pillars, causing property damage and personal injury to occupants of vehicles that Waukegan had notice of, and that Waukegan had a duty to keep Sea Horse Drive in a safe condition for travel and to warn motorists of hazards adjacent to the roadway, which Waukegan failed to do. Plaintiff alleges that Waukegan was negligent in failing to warn of the sharp turn and of the hazards immediately adjacent to the roadway and to illuminate the roadway to disclose the sharp turn and adjacent hazards.

Count III is against OMC and alleges, inter alia, that OMC operated a factory adjacent to the 500 block of Sea Horse Drive, that OMC placed the barricade pillars adjacent to the roadway, that OMC had notice of prior collisions with the pillars, and that OMC violated its duty to keep its property free from artificial conditions which create a substantial risk of harm to those who foreseeably deviate from the roadway. Plaintiff alleged that OMC was negligent in placing the immovable type of barricades immediately adjacent to the roadway and in failing to warn of the existence of these barricades.

Following the filing of its answer and discovery by the parties, OMC filed a motion for summary judgment contending that plaintiff's decedent was a trespasser to whom no duty was owed. OMC argued further that there was no duty to guard against the type of injury sustained by plaintiff's decedent. Attached to the motion was the deposition of David Hoffman.

Hoffman testified that at the time of the occurrence he was employed by Pinkerton Security as a security guard at the OMC facility on Sea Horse Drive. He had arrived early for work that night and was seated in his automobile putting his work shoes on. He was parked in an OMC parking area off the roadway and outside a fenced-in parking lot for employees. The parking area he was in was just to the east of the curve where the accident occurred. He heard the engine of a vehicle which he believed to be coming at a high rate of acceleration, about 45 to 50 miles per hour, and saw the car go past him, enter the curve, put on its brake lights, and collide with a cement pillar. He could see well as there was fluorescent lighting for the parking lot and the area. He believed the speed limit on Sea Horse Drive was 30 to 35 miles per hour. The parties agree the speed limit was 30 miles per hour except at the curve, where it was 20 miles per hour.

Hoffman's testimony, and photographs of the scene identified by Hoffman and later included with Waukegan's motion for summary judgment, indicate that two yellow signs on a light pole located just to the east of where Hoffman was parked depict a sharp-turn warning arrow and a 20-miles-per-hour speed limit. On the other side of the parking area from where Hoffman was parked is the curve, which is further marked by another yellow sign with an arrow. The photographs also show that the roadway and the adjacent parking area are one continuous paved area in what appears to be a commercial and industrial complex. At the curve, there are several concrete pillars two or three feet in height spaced apart from each other and from which a guard rail stretches. The guard rail contains strips of illuminating or reflective materials, as shown in the pictures which were taken on the evening of the accident by Waukegan police. The pillars and the guard rail are about two feet off the road surface. Just behind the guard rail and the pillars is a fence on OMC's property where there is a parking lot and a loading area. The road is two lanes separated by an intermittent yellow line and, at the curve, by an additional solid yellow line.

Plaintiff's response to OMC's summary judgment motion included a document which indicated that the pillars were installed in 1976 by OMC to protect OMC's fence from damage resulting from previous accidents where cars hit the fence. Thereafter, on April 18, 1988, the circuit court granted OMC's motion for summary judgment finding no duty was owed to plaintiff pursuant to section 368 of the Restatement (Second) of Torts. The court also found no reason to delay enforcement or appeal of the order pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). Subsequently, on May 16, 1988, the court denied plaintiff's motion to reconsider but vacated the Rule 304(a) finding and allowed plaintiff leave to file a fourth amended complaint alleging a wilful and wanton misconduct count against OMC. The wilful and wanton count later filed against OMC was substantially the same as count III of the third amended complaint which had been decided on summary judgment except that it contained the allegations of wilful and wanton misconduct. The motion to reconsider also had attached documentary and deposition evidence of other accidents at the location of the curve.

OMC filed a motion to dismiss the wilful and wanton count pursuant to section 2-619 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2-619) contending that there was no duty owed to plaintiff as previously decided in the summary judgment proceeding. The circuit court granted OMC's motion to dismiss and again made a Rule 304(a) finding. Plaintiff immediately filed a notice of appeal from the order of summary judgment granted on April 18, 1988, and the dismissal order of July 28, 1988.

On August 29, 1988, Waukegan filed a motion for summary judgment contending that it owed no duty to plaintiff's decedent to provide adequate illumination and to warn of conditions off the roadway not caused by it and, even if there was a duty to warn, it had done so and was not negligent. Waukegan attached photographs of the accident scene taken on the night in question and photographs taken at a later date. Depositions of Flora Moraites and several passengers in her car were also submitted to the court. All the depositions indicated that Moraites was travelling at a speed between 40 and 50 miles per hour. The court granted summary judgment in favor of Waukegan, finding that no duty was owed to plaintiff's decedent under section 3-102(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 3-102(a)). Plaintiff has appealed this order as well, and this appeal has been consolidated in this court with plaintiff's appeal from the orders in favor of OMC.

On December 12, 1988, OMC filed a motion to dismiss the appeal pursuant to Supreme Court Rule 361 (107 Ill. 2d R. 361). OMC contends that the court lacked jurisdiction because the notice of appeal was not timely filed. We ordered that this motion and plaintiff's response be taken along with the other issues presented on appeal.

The initial issue to be decided is whether this court has jurisdiction to consider plaintiff's appeal of the two orders relating to OMC. Relying on Parrish v. Lee (1988), 167 Ill. App. 3d 443, 521 N.E.2d 1188, OMC contends that the circuit court lost jurisdiction once it made the Rule 304(a) finding on April 18, 1988, in the order granting OMC's motion for summary judgment on count III of the third amended complaint. Thus, OMC maintains that the circuit court was without jurisdiction to entertain the subsequent motion to reconsider and to enter any other orders thereafter. According to OMC, the notice of appeal by plaintiff filed on June 28, 1988, from both orders against it was untimely as not filed within 30 days of the April 18, 1988, order in which the Rule 304(a) finding was recited.

In Parrish v. Lee (1988), 167 Ill. App. 3d 443, 521 N.E.2d 1188, the Appellate Court for the Third District held that the trial court divested itself of jurisdiction over a claim for relief where multiple claims for relief are involved once a Rule 304(a) finding was made as to a judgment on that claim. This comports with OMC's position. On the other hand, the Dissenting opinion in Parrish (Parrish, 167 Ill. App. 3d at 447-49, 521 N.E.2d at 1190-91 (Heiple, J., Dissenting)), the Appellate Court for the Fourth District, in Cain v. Sukkar (1988), 167 Ill. App. 3d 941, 521 N.E.2d 1292, and the Appellate Court for the First District, Third Division, in Lake County Trust Co. v. Two Bar B, Inc. (1989), 182 Ill. App. 3d 186, 537 N.E.2d 1015, take the position that the entry of a Rule 304(a) finding does not divest the circuit court of jurisdiction. This court has implicitly taken the latter position in Schmall v. Village of Addison (1988), 171 Ill. App. 3d 344, 350, 525 N.E.2d 258, and Lewis v. Royal Globe Insurance Co. (1988), 170 Ill. App. 3d 516, 519, 524 N.E.2d 1126. We do not agree with Parrish as it incorrectly applies Elg v. Whittington (1986), 149 Ill. App. 3d 307, 500 N.E.2d 568, aff'd (1987), 119 Ill. 2d 344, 518 N.E.2d 1232, to the issue before it, as pointed out in Justice Heiple's Dissent in Parrish. Nor does our supreme court's decision in Elg (Elg v. Whittington (1987), 119 Ill. 2d 344, 518 N.E.2d 1232) address the issue before us.

Accordingly, as the part of the order of April 18, 1988, reciting the Rule 304(a) finding was vacated within 30 days of May 16, 1988, the trial court retained jurisdiction to entertain further motions and enter further ...


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