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06/29/95 KAREN I. RECTOR v. STACE R. MATTINGLY

June 29, 1995

KAREN I. RECTOR, SPECIAL ADMINISTRATOR OF THE ESTATES OF BOBBY FORD, DECEASED, AND MATTHEW RECTOR, DECEASED, PLAINTIFF-APPELLANT,
v.
STACE R. MATTINGLY, DEFENDANT, AND THE COUNTY OF WILLIAMSON, A PUBLIC BODY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Williamson County. No. 88-L-104. Honorable William Wilson, Judge, presiding.

The Honorable Justice Chapman delivered the opinion of the court: Goldenhersh, J., and Welch, J., concur.

The opinion of the court was delivered by: Chapman

JUSTICE CHAPMAN delivered the opinion of the court:

Bobby Ford and Matthew Rector were riding in a car driven by Stace Mattingly, when the car dropped off the road's edge, travelled for some distance, and collided with a concrete culvert near the north edge of the county road. Ford and Rector were killed. Karen Rector, as special administrator, filed a complaint to recover damages for the wrongful deaths of the boys. The complaint alleged that the County of Williamson (County) was negligent in that it knowingly created and permitted a dangerous condition to exist. The claimed dangerous condition was a highway surface 10 to 12 inches higher than the abutting shoulder and a shoulder that concealed and obscured a concrete abutment. The County denied that the alleged dropoff constituted negligence, and the County pled the affirmative defense of comparative negligence. The County subsequently filed a motion for summary judgment, which the trial court allowed. We reverse.

Plaintiff appeals from the court's order which entered summary judgment for the County and from the court's order of April 12, 1994, denying plaintiff's motion to reconsider the court's ruling. The court's summary judgment ruling provides in pertinent part:

"As a matter of law, the conduct of the defendant driver was the sole proximate cause of the occurrence[,] and the persons in the vehicle, including plaintiff's decedents, were not intended or permitted users of the highway, under the facts presented here."

The court further stated:

"The vehicle, here, went off the paved portion of the roadway; travelled approximately 160 feet, while off the paved roadway, in a straight path, and not in an erratic manner, until it impacted with an abutment; *** no problem, or defect, with the paved portion of the roadway caused the vehicle to deviate from the paved portion of the roadway; and, *** the driver was intoxicated."

Plaintiff argues that Williamson County owed decedents a duty of care pursuant to section 3-102(a) of the Local Government and Governmental Employees Tort Immunity Act (the Act) (745 ILCS 10/3-102 (a) (West 1992)), for the following reasons. Plaintiff contends that decedents were using the county road as it was intended to be used because they were passengers in a car on that road. Plaintiff argues that the driver's violation of a State law prohibiting driving under the influence (625 ILCS 5/11-501(a) (West 1992)), without proof that the violation was the sole proximate cause of the injury, should not prevent plaintiff from seeking compensation for the injury caused by Williamson County's negligence in maintaining the roadway.

The County first argues that it owed no duty to the decedents because they were not exercising ordinary care at the time of the accident as passengers in a speeding car driven by an intoxicated motorist. The County contends that section 3-102(a) of the Act provides that local governments have a duty to maintain their property for the benefit of only those persons who are exercising ordinary care for their own safety.

The duty of a local governmental entity to maintain its property is limited by section 3-102(a) of the Act, which states in pertinent part:

"Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used. *** (Emphasis added.) (745 ILCS 10/3-102(a) (West 1992).)

The Illinois Supreme Court recently interpreted the emphasized language:

"In this context, the language in section 3-102(a) is clear: the city has a duty to maintain its property in a reasonably safe condition so that persons using ordinary care are not harmed. Rather than limiting the city's duty to only those individuals exercising ordinary care, as the city suggests, the language 'in the use of ordinary care' limits the amount of care the city need exercise in maintaining its property. This ensures that the city does not become an insurer for the traveling public's safety and that the ...


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