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08/05/94 NORMA L. SNYDER AND TOMMY DEAN SNYDER v.

August 5, 1994

NORMA L. SNYDER AND TOMMY DEAN SNYDER, PLAINTIFFS-APPELLEES,
v.
CURRAN TOWNSHIP, ILLINOIS, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Sangamon County. No. 88L59. Honorable Richard J. Cadagin, Judge Presiding.

Petition for Rehearing Denied November 9, 1994. Petition for Leave to Appeal Allowed February 1, 1995.

Honorable Robert J. Steigmann, J., Honorable John T. McCULLOUGH, P.j., Concurring, Honorable Carl A. Lund, J., Dissenting

The opinion of the court was delivered by: Steigmann

JUSTICE STEIGMANN delivered the opinion of the court:

Defendant, Curran Township (Township), appeals from the denial of its post-trial motion for a judgment n.o.v. or a new trial in an action for personal injuries. In March 1993, a jury had awarded damages based on a verdict in favor of plaintiff Norma Snyder. For the reasons that follow, we reverse.

I. BACKGROUND

In March 1987, Norma L. Snyder was driving east in the afternoon on Route 7 South, a narrow township road in rural Sangamon County. She failed to negotiate a sharp right bend in the road at the top of a hill, lost control of her van, and sustained severe injuries, including loss of her sight. On the left side of the roadway approximately 67 to 120 feet before the bend, defendant had erected a sign indicating a right "reverse turn." Plaintiffs alleged that this placement did not conform with the State manual advising placement of warning signs on the right side of the road and 425 feet in advance of a curve. The jury returned a verdict for plaintiff Norma L. Snyder for $1,077,000, which was reduced to $581,580 based on the jury's finding she was 46% contributorily negligent. The jury awarded plaintiff Dean Snyder nothing on his loss of consortium claim.

On appeal, defendant argues that (1) its decision regarding placement of the roadway warning sign was protected by discretionary immunity; (2) placement of the sign was not a proximate cause of Mrs. Snyder's injuries; and (3) the trial court erred by (a) admitting evidence of a prior accident; (b) refusing defendant's special interrogatory and jury instruction; and (c) submitting plaintiffs' instructions to the jury.

We conclude that defendant's sign placement was protected by discretionary immunity. Accordingly, we reverse the trial court's denial of defendant's motion for judgment n.o.v.

II. ANALYSIS

In this negligence action, plaintiffs were required to prove that (1) defendant owed a duty of care, (2) the duty was breached, and (3) an injury resulted proximately caused by breach of that duty. ( Wojdyla v. City of Park Ridge (1992), 148 Ill. 2d 417, 420, 592 N.E.2d 1098, 1100, 170 Ill. Dec. 418.) Whether a duty exists must be determined as a matter of law. ( Thompson v. County of Cook (1993), 154 Ill. 2d 374, 382, 609 N.E.2d 290, 293, 181 Ill. Dec. 922.) In this case, if the evidence failed to disclose a duty owed to Mrs. Snyder under which liability could be imposed against defendant, then plaintiffs did not establish an essential element of their cause of action, and defendant is entitled to judgment in its favor as a matter of law. See Nastasi v. United Mine Workers of America Union Hospital (1991), 209 Ill. App. 3d 830, 837, 567 N.E.2d 1358, 1363, 153 Ill. Dec. 900.

Section 11-304 of the Illinois Vehicle Code (Vehicle Code) authorizes local authorities and road district highway commissioners to place and maintain traffic control devices to regulate, warn, or guide traffic in conformity with the State manual. (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-304.) Pursuant to authority conferred under section 11-301 of the Vehicle Code (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-301), the Department of Transportation adopted the Illinois Manual on Uniform Traffic Control Devices (Illinois Manual). (See 92 Ill. Adm. Code § 546.100 et seq. (Supp. 1986).) Requirements for the design, installation, or use of traffic control devices are indicated by the terms "shall," "should," or "may." The Illinois Manual defines these terms as "mandatory condition," "advisory condition," or "permissive condition," respectively. Illinois Manual § 1A-5, at 1A-4.

Sections 2-109 and 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (Immunity Act) extend immunity to municipalities for the performance of discretionary functions. (Ill. Rev. Stat. 1987, ch. 85, pars. 2-109, 2-201.) These functions are those unique to a particular public office requiring personal judgment, as distinguished from ministerial functions, which require obedience to legal orders in a prescribed manner, without regard to the propriety of the acts performed, and without the exercise of discretion. (See Kennell v. Clayton Township (1992), 239 Ill. App. 3d 634, 639, 606 N.E.2d 812, 816, 179 Ill. Dec. 980.) These sections of the Immunity Act provide as follows:

"A local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable." Ill. ...


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