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October 3, 1996


Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois. No. 91--L--18465. Honorable Edwin B. Grabiec, Judge Presiding.

Released for Publication November 12, 1996.

Honorable Tom M. Lytton, Justice, Honorable Michael P. Mccuskey, Justice, Honorable John F. Michela, Justice. Justice McCUSKEY delivered the opinion of the court: Lytton and Michela, JJ., concur.

The opinion of the court was delivered by: Mccuskey

JUSTICE McCUSKEY delivered the opinion of the court:

The defendant, Will Township (Township), appeals from a judgment entered in favor of the plaintiff, Vincent Herman. A jury awarded the plaintiff damages for injuries he suffered in an accident on a gravel road which had recently been improved by the Township.

On appeal, the Township first argues that the judgment should be reversed. The Township contends that it was immune from liability pursuant to sections 2-109, 2-201 and 3-103(a) of the Local Government and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2-109, 2-201, 3-103(a) (West 1994)). In the alternative, the Township argues that it is entitled to a new trial because: (1) the plaintiff was allowed to introduce evidence that the Township did not post warning signs; (2) the plaintiff was allowedto introduce a photograph of a different gravel road; (3) the trial court erroneously gave a missing witness instruction; and (4) the trial court allowed the plaintiff's expert, Paul Box, to render an opinion concerning the condition of the gravel road.

After carefully reviewing the record, we conclude that the Township was not immune from liability pursuant to the Tort Immunity Act. We further conclude that the Township is not entitled to a new trial. As a result, we affirm.


On July 25, 1991, the 65-year-old plaintiff was driving his Honda Elite 250 (moped) west on Eagle Lake Road. He had never driven on Eagle Lake Road before, and, when he started driving on the road, it was paved. Because it was an unposted rural road, the speed limit was 55 miles per hour. The plaintiff was traveling about 45 miles per hour when he saw a rise in the road and slowed down to 42 or 43 miles per hour. The plaintiff saw a color change in the road but could not tell whether the pavement turned into a gravel road until he was about 150 feet from where the pavement changed to gravel. After he crossed Crawford Road, the plaintiff drove onto the north lane of the gravel road. He tried braking, but his front wheel sunk into the gravel and his moped went down. As a consequence, the plaintiff suffered five broken ribs, a punctured lung, a fractured collar bone, a fractured scapula and a herniated disc in his neck. Moreover, he had to have exploratory surgery because of internal bleeding, and his spleen was removed.

On December 31, 1991, the plaintiff filed a complaint against Will Township. The plaintiff alleged that the Township made improvements to Eagle Lake Road and caused the road to become unsafe by "leaving up to four (4) inches of uncompacted, coarse, loose gravel on the roadway." The Township attempted to have the complaint dismissed based upon its claim of tort immunity. The trial court denied the motion. The Township also filed affirmative defenses, again claiming tort immunity and also claiming the plaintiff was guilty of contributory or comparative negligence because he failed to keep a proper lookout and failed to reduce speed to avoid the accident.

A trial took place in October 1994. On October 19, 1994, the jury returned a verdict in which it found for the plaintiff but awarded no damages. The trial court later granted the plaintiff's motion for a new trial. Will Township filed a petition for leave to appeal the new trial order. This court denied the petition.

The second trial began on July 24, 1995. Ronald Werner, the Township's road commissioner, testified that Eagle Lake Road waspaved east of Crawford Road and was gravel west of Crawford Road. During the spring of 1991, Township employees began improving a one-mile section of the gravel road west of Crawford Road and east of Will Center Road. The project was approved by the Illinois Department of Transportation (IDOT) and was completed in accordance with IDOT specifications. The specifications did not include any requirements for compaction of the gravel.

The Township improved the road by widening it from 17 feet to 20 feet and putting on a new 10-inch layer of gravel. Township employees laid the new gravel in 3 to 3 1/2 inch layers using two gravel trucks. The project specifications required the Township to work from the end closest to the gravel quarry, so the employees started laying down gravel at Will Center Road. They began at the south lane of the road. Each layer was compacted by driving the gravel trucks over it. Also, a grader was used to level and compact each layer. The project was completed on July 21, 1991, four days prior to the plaintiff's accident. The north lane just west of Crawford Road was completed last. Werner admitted the trucks did not drive over the final layers as many times as the first layers. He said that it was possible there was as much as 3 1/2 inches of loose gravel on the north lane of the road. However, he testified that when he drove over the road on July 21, 1991, he thought it was sufficiently compacted.

Three experts testified for the plaintiff. Ronald Palmieri is a licensed engineer who specialized in pavement evaluation, design and construction. He examined the road on August 8, 1991. Palmieri tested a spot on the north side of the road which he stated was representative of the first 50 feet west of Crawford Road. He testified that most of this section of the road had four inches of loose gravel, although the loose gravel ranged from one to four inches. Palmieri testified that a gravel road must be adequately compacted so that drivers can have a stable surface to drive over smoothly. He testified that, in his opinion, the road in question was not adequately compacted. As a consequence, Palmieri found the road to be unstable and unsafe.

Paul Box, a traffic engineering consultant, went to the scene on August 16, 1991. He testified that he saw several inches of loose gravel on the road. He said the road had a "very treacherous surface." He testified that it would be very easy ...

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