Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

10/19/95 CARL M. HERZOG v. LEXINGTON TOWNSHIP

October 19, 1995

CARL M. HERZOG, APPELLEE,
v.
LEXINGTON TOWNSHIP, APPELLANT.



Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of McLean County, the Hon. Luther Dearborn, Judge, presiding.

The Honorable Justice Nickels delivered the opinion of the court: Justice Harrison, dissenting:

The opinion of the court was delivered by: Nickels

JUSTICE NICKELS delivered the opinion of the court:

This is an appeal from an appellate court judgment granting plaintiff a new trial on the issue of whether defendant was negligent in posting signs on a roadway. Three issues are presented for review: (1) whether plaintiff may utilize the doctrine of collateral estoppel to prevent defendant from relitigating issues regarding the adequacy of the signs on this roadway; (2) whether plaintiff may impeach defendant's witnesses with evidence of subsequent remedial measures taken on the roadway; and (3) whether section 3-104 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1985, ch. 85, par. 3-104) provides defendant with immunity. We reverse the appellate court judgment (254 Ill. App. 3d 337, 627 N.E.2d 666, 194 Ill. Dec. 329), which granted plaintiff a new trial.

Background

On November 23, 1985, plaintiff, Carl Herzog, was injured when a car he was driving was involved in a single-car accident. The accident occurred on the Pine Street extension, which is a county road maintained by defendant, Lexington Township. At the time of the accident, the road contained a series of curves preceded by a single, winding road sign. There was no posted speed limit. Plaintiff filed a complaint in the circuit court of McLean County alleging that the defendant was negligent in failing to warn drivers of the number and severity of the curves and the speed at which they could be safely traveled.

Plaintiff filed a pretrial motion for collateral estoppel, seeking to bar defendant from relitigating its negligence in regard to this series of curves. Plaintiff contended that defendant's negligence regarding this series of curves was determined in Johnson v. O'Neal (1991), 216 Ill. App. 3d 975, 159 Ill. Dec. 817, 576 N.E.2d 486. In Johnson, defendant was found negligent in another single-car accident allegedly occurring at the same point in the Pine Tree extension some three weeks after the instant action. The trial court denied plaintiff's motion, finding that substantial differences between the cases prevented application of estoppel.

Defendant also filed a number of pretrial motions. First, defendant filed a motion for summary judgment, arguing that it was under no duty to post additional signs and that it was immune from liability under the Tort Immunity Act. (See Ill. Rev. Stat. 1985, ch. 85, pars. 3-104(a), (b).) The trial court denied this motion, finding that once the defendant undertook a duty to place a sign, it must place proper ones to warn of the conditions on the road. Second, defendant filed a motion in limine to exclude evidence of additional signs that were placed on the roadway after the accident. The trial court granted this motion.

At trial, plaintiff presented expert testimony that the single, winding road sign was inadequate. Plaintiff's expert further testified that he would have placed eight signs on this series of turns, including a curve sign, a reverse-turn sign, two advisory speed plates, a large arrow sign, and three chevrons. Plaintiff's expert expressed no criticism as to the placement of the single, winding road sign present at the time of the accident.

Defendant presented testimony from Randall Patton, the Lexington Township road commissioner, and Herbert Bekermeier, a former McLean County highway superintendent. Both stated that the single, winding road sign in existence at the time of the accident was adequate. At no time during this testimony did plaintiff indicate to the court a desire to impeach this testimony with evidence of subsequent signs these witnesses were responsible for placing on the roadway.

The jury returned a verdict in favor of the defendant. In response to a special interrogatory, the jury found that plaintiff's negligence was the sole proximate cause of his injuries. Plaintiff appealed from this jury verdict, arguing that the trial court erred in denying his motion for collateral estoppel. Plaintiff also argued that because defendant's witnesses testified that the single sign was adequate, he should have been permitted to impeach this testimony with evidence that they placed five additional signs along the roadway after the accidents.

The appellate court, with one justice dissenting, agreed with the plaintiff that certain issues determined in Johnson should be given collateral estoppel effect. (254 Ill. App. 3d 337, 627 N.E.2d 666, 194 Ill. Dec. 329.) Specifically, the appellate court ruled that defendant should be prevented from relitigating "issues regarding the failure to warn of the number and severity of the changes in alignment in the road and the speed at which they could safely be travelled." (254 Ill. App. 3d at 348-49.) The appellate court rejected further application of collateral estoppel on the ultimate issues of causation and negligence. (254 Ill. App. 3d at 348-49.) The appellate court also rejected defendant's argument that estoppel should not apply because it should be found immune from liability pursuant to the Tort Immunity Act. 254 Ill. App. 3d at 347.

The appellate court next addressed plaintiff's desire to introduce evidence of subsequent remedial measures. The appellate court held that plaintiff should be permitted on retrial to impeach defendant's witnesses with evidence that they placed additional signs at this series of curves after the accident. (254 Ill. App. 3d at 350.) The appellate court reasoned that defendant invited this impeachment by eliciting opinions on the adequacy of the original sign from those responsible for erecting additional signs after the accident. 254 Ill. App. 3d at 350.

The dissenting justice argued that defendant was immune from liability pursuant to the Tort Immunity Act. (254 Ill. App. 3d at 351 (McCullough, J., dissenting).) The dissenting justice further argued that the trial court properly denied plaintiff's motion for estoppel. (254 Ill. App. 3d at 351 (McCullough, J., dissenting).) The dissenting justice reasoned that estoppel was inappropriate because Johnson involved different issues and defendant was in essence a "prevailing party" due to a setoff in that case. (254 Ill. App. 3d at 351-52 (McCullough, J., dissenting).) The dissenting justice also argued that defendant's witnesses should not be impeached with evidence they placed additional signs on the roadway because the prejudice of such evidence outweighs its probative value. 254 Ill. App. 3d at 352 (McCullough, J., dissenting).

We granted defendant's petition for leave to appeal. (145 Ill. 2d R. 315(a).) We also allowed the Illinois Trial Lawyers Association and the Illinois Governmental Association of Pools to file amicus curiae briefs. First, we address whether the trial court erred in denying plaintiff's motion for collateral estoppel. Second, we address whether plaintiff should have been permitted to impeach defendant's witnesses with evidence of subsequent remedial measures taken on the roadway. We do not find it necessary to address whether defendant is immune from liability pursuant to the Tort Immunity Act.

I

The appellate court granted plaintiff a new trial, finding that the trial court erred in denying plaintiff's motion for collateral estoppel. Collateral estoppel is an equitable doctrine that precludes a party from relitigating an issue decided in a prior proceeding. The doctrine is grounded on considerations of efficiency and fairness. The threshold requirements for application of collateral estoppel are: (1) that the issue decided in the prior adjudication is identical with the one presented in the suit in question; (2) that there was a final judgment on the merits in the prior adjudication; and (3) that the party against whom estoppel is asserted was a party or ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.