Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Sangamon County, the Hon. Richard J. Cadagin, Judge, presiding.
The Honorable Justice Heiple delivered the opinion of the court: Justice Miller took no part in the consideration or decision of this case. Chief Justice Bilandic, dissenting:
The opinion of the court was delivered by: Heiple
JUSTICE HEIPLE delivered the opinion of the court:
Following a trial in the circuit court of Sangamon County, the jury returned a verdict in favor of plaintiff Norma L. Snyder for personal injuries she sustained in an automobile accident. Defendant, Curran Township, filed a post-trial motion for a judgment n.o.v. or, in the alternative, for a new trial, which the circuit court denied. The appellate court reversed the trial court's denial of defendant's motion, finding that the defendant owed no duty to the plaintiffs as a matter of law. (267 Ill. App. 3d 174, 641 N.E.2d 3, 204 Ill. Dec. 44.) We granted plaintiffs' petition for leave to appeal (145 Ill. 2d R. 315) to address whether the doctrine of discretionary immunity provides absolute immunity to municipalities for the negligent placement of traffic warning devices. We conclude that it does not and, accordingly, we reverse.
In the afternoon of March of 1987, Norma L. Snyder was driving cast on Route 7 South, a narrow township road in rural Sangamon County. After failing to successfully negotiate a sharp right bend in the road at the top of a hill, she lost control of her van. She sustained severe injuries, including her permanent loss of sight. In their subsequent action against defendant, Curran Township, plaintiffs, Norma L. Snyder and her husband, Dean L. Snyder, alleged that its failure to place a sign warning of the curve in conformity with the State manual was the proximate cause of her accident.
At trial, plaintiffs' expert testified that, although the State manual required defendant to place the warning sign on the right side of the road and 425 feet in advance of the curve, the defendant placed the sign on the left side of the roadway, approximately 67 to 120 feet before the curve. (This range is set forth due to the parties' disagreement over the true distance: plaintiffs contend that the sign was placed 67 feet before the curve, while defendant contends that the sign was placed 120 feet before the curve.) The Curran Township highway commissioner testified that he posted the right reverse turn sign because the curve was dangerous. He also testified that he did not consult the State manual prior to posting the warning sign; rather, he placed the sign where he thought it would be most obvious to motorists.
After trial, 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 that she was 46% contributorily negligent. The jury awarded plaintiff Dean L. Snyder nothing for his loss of consortium claim. Curran Township appealed.
The appellate court, with one justice dissenting, concluded that defendant's sign placement was protected by discretionary immunity and that, as a result, defendant owed no duty to plaintiffs as a matter of law. The appellate court reversed the trial court's denial of defendant's motion for judgment n.o.v. 267 Ill. App. 3d at 176.
Sections 2-109 and 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (Immunity Act) grant immunity to public entities for the performance of discretionary functions. These sections provide:
"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." 745 ILCS 10/2-109 (West 1992).
"Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused." 745 ILCS 10/2-201 (West 1992).
Defendant's chief contention is that its decision as to where to place the warning sign at issue is wholly discretionary and therefore within the ambit of these immunity provisions.
Plaintiffs counter, however, that the decision where to place a sign is not discretionary because section 11-304 of the Illinois Vehicle Code mandates compliance with the State manual in erecting warning devices. Section 11-304 of the Vehicle Code provides:
"Local traffic-control devices. Local authorities and road district highway commissioners in their respective maintenance jurisdiction shall place and maintain such traffic-control devices upon highways under their maintenance jurisdiction as are required to indicate and carry out the provisions of this Chapter, and local traffic ordinances or to regulate, warn, or guide traffic. All such traffic control devices shall conform to the State Manual and Specifications and shall be justified by traffic warrants stated in the Manual. Placement of traffic-control devices on township or road district roads also shall be subject to the written approval of the county engineer or superintendent of highways." (Emphasis added.) 625 ILCS 5/11-304 (West 1992).
Defendant acknowledges that section 11-304 mandates compliance with the State manual. *fn1 However, defendant contends that the language of the Illinois Manual itself suggests that a governmental official may use his discretion in erecting these warning devices. Defendant points to the introductory section of the Illinois Manual, in which the 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.) With respect to the placement of the warning sign at issue here, the Illinois Manual provides, in pertinent part:
"§ 2A-21 Standardization of Location
Standardization of position cannot always be attained in practice; however, the general rule is to locate signs on the right-hand side of the roadway, where the driver is looking for them. On wide expressways, or where some degree of lane-use control is desirable, or where space is not available at the roadside, overhead signs are often necessary. Signs in any other locations ordinarily should be considered only as supplementary to signs in the normal locations. Under some circumstances signs may be placed on channelizing islands or (as on sharp curves to the right) on the left-hand shoulder of the road, directly in front of approaching vehicles. A supplementary sign ...