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December 20, 1996


Appeal from the Circuit Court of Cook County. Honorable Edward R. Burr, Judge Presiding.

Released for Publication January 29, 1997.

Presiding Justice Hartman delivered the opinion of the court: DiVITO and Burke, JJ., concur.

The opinion of the court was delivered by: Hartman

PRESIDING JUSTICE HARTMAN delivered the opinion of the court:

Plaintiffs Edward and Lisa O'Brien filed a wrongful death action against defendant, City of Chicago (City), after an auto accident on Lake Shore Drive (the Drive) killed their mother, Maria O'Brien. Plaintiffs claim the City negligently failed to install median guard rails on the Drive, proximately causing the accident. Lisa O'Brien appeals from the circuit court's orders dismissing her sixth amended complaint and denying her leave to file a seventh and eighth amended complaints. Edward O'Brien appeals the circuit court's dismissal of his second amended complaint, which had adopted Lisa's proposed allegations.

On November 11, 1986, Maria O'Brien was driving north on the Drive, with Lisa in the passenger seat. James Glenn, the other driver, was driving southbound on the Drive. Near 2700 north, Glenn attempted to pass another car, but lost control, swerved to the right side of the road, bounced off a guard rail, swerved to the left across four lanes of southbound traffic, and hit a six-to-eight-inch high grassy median. The impact lifted Glenn's car into the air and it landed on top of the O'Brien car, killing Maria and injuring Lisa. Glenn was found to have been driving while under the influence of alcohol and speeding at the time of the accident. The cause of Maria O'Brien's death was found to be vehicular homicide, of which Glenn subsequently was convicted.

Lisa and Edward O'Brien filed suit against Glenn and the City. *fn1 Count one of their consolidated five-count complaint alleged the City acted willfully and wantonly in failing to install a median barrier, causing serious injuries to Marie and Lisa O'Brien. Count two claimed negligence against Glenn. Count three asserted a claim against both defendants under the Survival Statute. 755 ILCS 5/27-6 (West 1994). Count four alleged that the City's willful and wanton conduct and Glenn's negligence proximately caused Marie O'Brien's death, and plaintiffs' loss of society. Count five pled that Lisa O'Brien suffered emotional distress. Three months later, the O'Briens filed an amended complaint, which restated counts one and four to allege negligent rather than willful and wanton conduct by the City. The City moved for summary judgment, but later withdrew the motion without prejudice and filed an answer to plaintiffs' complaint.

Lisa O'Brien next filed a second amended complaint, adding three counts. Counts six and seven alleged the City owed plaintiffs a duty to install median barriers under sections 3-102(a) and 3-103(a) of the Local Governmental and Governmental Employees Tort Immunity Act ("Tort Immunity Act"). 745 ILCS 10/3-102(a), 3-103(a) (West 1994). Count eight alleged the City's conduct was willful and wanton.

The City thereafter filed a second motion for summary judgment, arguing that a statute of repose barred the O'Brien claims, and that it owed plaintiffs no duty, under either the common law or the Tort Immunity Act. In response, O'Brien offered evidence that showed the City produced designs for and engineered a Lake Shore Drive reconstruction project. This evidence included two 1967 letters by city officials stating the need for median guard rails on North Lake Shore Drive; a 1979 agreement between the City and the State obligating the City to maintain City streets; a 1966 agreement, which stated that improvements to the Drive would be made according to "plans, specifications, and special provisions, prepared by and under the direction of the City"; and the affidavit of a former State transportation official explaining that the City operated and maintained the area around 2700 north on the Drive before 1986.

The circuit court denied the City's motion for summary judgment. After O'Brien filed a third amended complaint, which deleted count eight, the City again unsuccessfully moved for summary judgment. During this time, O'Brien filed a fourth amended complaint, which no longer contained allegations against Glenn because O'Brien voluntarily dismissed him from the suit. O'Brien next filed a fifth amended complaint, which restated some of the allegations and emphasized the City's knowledge of the dangerous condition of the road and the need for its correction.

Less than one month later, Lisa O'Brien filed a sixth amended complaint, which omitted several references to the City's design of the reconstruction project and added other allegations.

The City moved to dismiss O'Brien's sixth amended complaint pursuant to section 2-619 of the Code of Civil Procedure, 735 ILCS 5/2-619 (West 1994). In addition to restating its statute of repose argument, the City contended that the Tort Immunity Act did not create new causes of action, and that the portion of O'Brien's complaint based upon the Act should be dismissed. The City further asserted that O'Brien failed to allege facts establishing the elements of a common law negligence claim. At a hearing on the motion to dismiss, the circuit court expressed its belief that O'Brien could state a claim that the City should have upgraded the safety features on the Drive because it knew or should have known that the area was unreasonably dangerous. The court explained, however, that the sixth amended complaint did not allege enough facts to support this argument and suggested that O'Brien submit a proposed seventh amended complaint, together with authority to support the cause of action.

At a hearing on the motion for leave to file the seventh amended complaint, O'Brien maintained that the complaint sufficiently alleged the City designed, maintained and exerted complete control over the Drive. O'Brien explained that once plaintiffs proved these facts at trial, the City would be held liable for voluntarily undertaking to assume responsibility for the road.

The circuit court found that plaintiffs failed to show the existence of a duty. The court first examined the 1966 maintenance agreement, which plaintiffs offered as proof that the City owed a duty. The court interpreted the agreement to give the City authority to fix potholes and repair the road's surface, but not to perform major improvements such as erecting median barriers. The agreement therefore did not impose a duty to erect the barriers.

In addition, the court examined count one of plaintiffs' seventh amended complaint to determine if it sufficiently alleged the City owed a duty under the theory of voluntary undertaking. The court found that the allegations established only that the City had notice of unsafe conditions on the Drive, but failed to show the existence of a duty to install median barriers. The court concluded that plaintiffs failed to state a cognizable ...

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