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02/10/94 JEFFREY ROBINSON v. ATCHISON

February 10, 1994

JEFFREY ROBINSON, INDIVIDUALLY AND AS NEXT FRIEND OF BRANDI ROBINSON, A MINOR, AND PHYLLIS ROBINSON, ADMINISTRATRIX OF THE ESTATE OF BERNARD ROBINSON, DECEASED, PLAINTIFF-APPELLANTS,
v.
ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, DEFENDANT, AND ALLEN TOWNSHIP, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of the 13th Judicial Circuit, LaSalle County, Illinois. No. 89-L-303. Honorable Robert L. Carter, Judge Presiding

Rehearing Denied and Released for Publication March 14, 1994. Petition for Leave to Appeal Denied June 2, 1994.

Present - Honorable Allan L. Stouder, Justice, Honorable Peg Breslin, Justice, Honorable Tobias Barry, Justice

The opinion of the court was delivered by: Stouder

JUSTICE STOUDER delivered the opinion of the court:

This action arose out of a collision between an automobile and a train at a railroad crossing in Allen Township in La Salle County. The plaintiffs, Jeffrey Robinson, individually and as next friend of Brandi Robinson, a minor, and Phyllis Robinson, Administratrix of the estate of Bernard Robinson, deceased, appeal from the dismissal with prejudice of paragraphs 13(e) through 13(i) of their second amended complaint against the defendant, Allen Township, and also from the granting of summary judgment in favor of the township on the remaining counts of the complaint. The plaintiffs have reached a settlement with defendant Atchison, Topeka & Santa Fe Railway company and the allegations of the complaint against that defendant are not involved in this appeal. The plaintiffs raise four issues for our consideration: (1) whether the defendant township had a duty to place railroad advance warning signs on North 15th Road, south of the Railroad crossing; (2) whether the township had a duty to maintain the advance warning sign that was present on North 15th Road ten years prior to the accident; (3) whether the township had a duty to place a stop sign in the vicinity of the railroad crossbucks; and (4) whether there is a genuine issue of fact as to whether the illegal grade of the crossing proximately caused the collision in question. We affirm.

The accident out of which this action arose occurred on December 2, 1988 at approximately 7:55 p.m. According to the plaintiffs' second amended complaint, Pamela Robinson was driving a 1974 Cadillac in which Bernard Robinson and Brandi Robinson were passengers. They were proceeding westbound on North 15th Road and then turned north on 24th Road. After turning on to 24th Road they crossed the railroad tracks of Atchison, Topeka & Santa Fe Railway Company. Their vehicle was struck by a westbound train. Bernard Robinson was killed and Brandi Robinson suffered serious injuries.

The plaintiffs filed a second amended complaint in which counts nine trough twelve were directed at this defendant. The plaintiffs alleged numerous acts of negligence on the part of the defendant. Specifically, the plaintiffs alleged violations of various provisions of the Illinois Manual on Uniform Traffic Control Devices for Streets and Highways and also various Rules of the Illinois Commerce Commission (ICC). The defendants filed a motion to dismiss. The court granted the motion with respect to paragraphs 13(e) through 13(i) of counts IX, X, and XI. Those paragraphs contained the following allegations of negligence:

e) Allen Township failed to properly install a stop sign in the vicinity of the crossbucks.

f) Allen Township failed to place a stop sign as directed by the Illinois Manual on Uniform Traffic Control Devices for Streets and Highways "at the point where the vehicle is to stop or as near thereto as possible" which is in the position where the motorist would be at right angles with the railroad tracks immediately before the Railroad Tracks.

g) Allen Township violated the mandatory condition "shall" in not placing a Railroad Advance Warning Sign on the roadway in advance of the grade crossing in violation of the "Manual" 8B-3.

h) Allen Township violated the mandatory condition "shall" in not replacing the Railroad Advance Warning sign on the roadway in advance of the grade crossing in violation of the "Manual" 8B-3 when said advance warning was present on March 11, 1978, but was absent at the time of this collision.

i) Allen Township violated the duty to apply for and obtain flashers and gates at this crossing after the 1978 collision and before the 1988 collision.

On appeal, the plaintiffs first argue that the court erred in dismissing the above paragraphs of their complaint because the defendant had a duty to place railroad advance warning signs on North 15th Road, south of the railroad crossing. The defendant responds that it has immunity pursuant to section 3-104 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/3-104 (West 1992)). That section provides as follows:

"Neither a local public entity nor a public employee is liable under this Act for an injury caused by the failure to initially provide regulatory traffic control devices, stop signs, yield right-of-way signs, speed restriction signs, distinctive roadway markings or any other traffic regulating or warning sign, device or ...


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