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03/14/94 JEFFREY D. BERNABEI v. COUNTY LASALLE

March 14, 1994

JEFFREY D. BERNABEI, PLAINTIFF-APPELLANT,
v.
COUNTY OF LASALLE, ILLINOIS, A BODY POLITIC AND CORPORATE, BILL KEITH, LASALLE CO. SUPERINTENDENT OF HIGHWAYS, DEFENDANTS, AND TOWNSHIP OF TROY GROVE, ILLINOIS, A BODY POLITIC AND CORPORATE, AND GALEN EICH, TROY GROVE TOWNSHIP ROAD COMMISSIONER, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of the 13th Judicial Circuit, LaSalle County, Illinois. No. 91-L-204. Honorable Robert L. Carter, Judge Presiding.

Petition for Leave to Appeal Denied October 6, 1994.

Present - Honorable Kent Slater, Presiding Justice, Honorable Allan L. Stouder, Justice, Honorable Peg Breslin, Justice

The opinion of the court was delivered by: Stouder

JUSTICE STOUDER delivered the opinion of the court:

The plaintiff, Jeffery D. Bernabei, appeals from a summary judgment entered in favor of the defendants, the Township of Troy Grove and the Troy Grove Township Road Commissioner, Galen Eich. We affirm.

The record shows Bernabei was injured on August 18, 1990, when the vehicle he was driving went off a road in Troy Grove Township in La Salle County and hit a guardrail.

Bernabei filed a four count complaint. Counts I and II, respectively, alleged numerous acts of negligence on the part of La Salle County and Bill Keith, the La Salle County Superintendent of Highways. Counts III and IV alleged the same acts of negligence on the part of Troy Grove Township and Galen Eich. In sum, Bernabei alleged the defendants were negligent in installing, constructing and maintaining the guardrail his vehicle collided with, and the roadway near the site.

La Salle County and Keith moved to dismiss counts I and II for failure to state a cause of action. After the trial court granted the motion, Bernabei filed an amended complaint as to counts I and II only, alleging La Salle County and Keith breached certain statutory provisions of the Illinois Highway Code (605 ILCS 5/1-101 et seq. (West 1992)). La Salle County and Keith again filed a motion to dismiss contending they had no statutory duty toward Bernabei. The trial court granted the motion and found there was no just reason for delaying appeal. Thereafter, Bernabei filed an appeal in this court. The trial court stayed proceedings on counts III and IV pending the outcome of Bernabei's appeal.

In Bernabei v. County of La Salle (1992), 236 Ill. App. 3d 958, 602 N.E.2d 842, 176 Ill. Dec. 896 (Bernabei I), we affirmed the dismissal of counts I and II, finding the statutory provisions relied on by Bernabei did not impose a duty on La Salle County and Keith, vis-a-vis, Bernabei. Although not argued before the trial court, we also found the record supported upholding the dismissal on the grounds the defendants' conduct was not the proximate cause of Bernabei's injuries, and that section 3-104 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/3-104 (West 1992)) immunized the defendants from liability. Bernabei did not seek rehearing, nor did he appeal our decision.

Relying in part on our decision, the Township and Eich filed amotion for summary judgment on counts III and IV. Following a hearing, the trial court granted the motion. Bernabei again appeals to this court.

On appeal, Bernabei argues the trial court erred in relying on our opinion in Bernabei I because the only issue raised on appeal was whether La Salle County and Keith breached a statutory duty. He contends our findings on proximate cause and tort immunity were obiter dictum, and thus not binding in his action against the Township and Eich. Along these lines, Bernabei argues the trial court erred in concluding the Bernabei I opinion was binding as the law of the case. Bernabei also contends the trial court erred in granting summary judgment prior to sufficient discovery.

We find Bernabei is bound by this court's findings in his earlier appeal, that he is precluded from relitigating the issues decided in that appeal, and that as a result, the trial court correctly granted the defendants' motion for summary judgment.

We find no merit to Bernabei argument that our findings on proximate cause and tort immunity were orbiter dictum.

Comments by this court not directly connected with our holding are dicta, and thus lack the authoritative force of precedent. (See Union Electric Co. v. Illinois Commerce Comm'n (1978), 64 Ill. App. 3d 700, 381 N.E.2d 1002, 21 Ill. Dec. 555, rev'd on other grounds (1979), 77 Ill. 2d 364, 396 N.E.2d 510, 33 Ill. Dec. 121, Sexton v. Brach (1984), 124 Ill. App. 3d 202, 464 N.E.2d 284, 79 Ill. Dec. 686.) However, the expression of an opinion on a point in a case deliberately passed upon by this court is not orbitor dictum, but rather is judicial dictum and nonetheless binding precedent. ( In re Marriage of Drews (1985), 139 Ill. App. 3d 763, 487 N.E.2d 1005, 94 Ill. Dec. 128.) ...


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