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Mark Twain Illinois Bank v. Clinton County

January 28, 1999


Appeal from the Circuit Court of Clinton County. No. 95-L-16 Honorable James R. Harvey, Judge, presiding.

The opinion of the court was delivered by: Justice Kuehn


This appeal involves a negligence action seeking damages for injuries sustained by Jennifer Schroeder in an automobile collision. Specifically, plaintiff, Mark Twain Illinois Bank, guardian of Jennifer's estate, appeals the Clinton County Circuit Court's summary judgment in favor of defendant, Breese Township Road District (the District). We partially affirm and partially reverse.

On the evening of April 15, 1994, Jennifer was a passenger in a vehicle travelling eastbound on Highline Road in Breese Township, Clinton County, Illinois. While traversing a hill crest approximately 0.2 miles west of South Walnut Road, the vehicle carrying Jennifer collided head-on with a car travelling westbound on Highline Road. As a result of the collision, Jennifer suffered severe injuries, rendering her disabled.

On September 6, 1994, the Clinton County Circuit Court appointed Mark Twain Illinois Bank as guardian of Jennifer's estate. On February 28, 1995, plaintiff instituted this negligence action against various defendants. *fn1 On September 27, 1995, plaintiff filed a motion seeking to amend its complaint to add the District as an additional defendant. On October 26, 1995, the circuit court granted this motion, and plaintiff filed its amended complaint, directing counts V and VI against the District. Specifically, count V alleged that the District negligently planned or designed that part of Highline Road where the collision occurred, while count VI sounded in negligent maintenance. On April 17, 1996, plaintiff amended count VI to more clearly allege negligent maintenance.

On May 7, 1997, the District filed a summary judgment motion. On June 26, 1997, after a hearing, the circuit court granted summary judgment in the District's favor. It seemingly reasoned that both counts against the District alleged negligence based upon its failure to improve the road and the District was under no duty to undertake such action.

On July 24, 1997, plaintiff filed a motion to reconsider, attaching additional evidence: an affidavit and report of plaintiff's expert, Dr. William Berg; an accident reconstruction report prepared by Illinois State Trooper Ralph Timmins, a certified accident reconstructionist; and witness testimony from the Clinton County coroner's inquest concerning the death of the driver of the westbound vehicle. On September 26, 1997, the circuit court denied plaintiff's reconsideration motion. Plaintiff now appeals.

While plaintiff generally claims that the circuit court erred in granting summary judgment, we note that it makes no argument with regard to count V; rather, its argument centers exclusively on count VI. An appellant cannot sufficiently raise a contention for review absent argument in support of it, accompanied by citation to authorities and page references appropriate to the issue. In re Marriage of Blackston, 258 Ill. App. 3d 401, 408, 630 N.E.2d 541, 546 (1994). Therefore, our review is limited to the circuit court's summary judgment on count VI.

Summary judgment "shall be rendered without delay if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005 (West 1994). However, it is a drastic remedy and "must be granted with caution in order to avoid preempting a litigant's right to trial by jury or his right to fully present the factual basis of a case where a material dispute may exist." Lamkin v. Towner, 246 Ill. App. 3d 201, 204, 615 N.E.2d 1208, 1210 (1993). In determining the appropriateness of summary judgment, the trial court construes all evidence in the record strictly against the movant and liberally in favor of the opponent. Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871 (1986). "A triable issue of fact exists where there is a dispute as to material facts or where the material facts are undisputed but reasonable persons might draw different inferences from those facts." In re Estate of Hoover, 155 Ill. 2d 402, 411, 615 N.E.2d 736, 740 (1993). "If facts permit more than one Conclusion, including one unfavorable to the movant, a summary judgment should be denied." Jones v. Petrolane- Cirgas, Inc., 186 Ill. App. 3d 1030, 1034, 542 N.E.2d 1186, 1188 (1989). On appeal, courts review summary judgment orders de novo. Myers v. Health Specialists, S.C., 225 Ill. App. 3d 68, 72, 587 N.E.2d 494, 497 (1992).

"In a cause of action alleging negligence, the plaintiff must establish the existence of a duty, a breach of that duty, and an injury proximately resulting from the breach of that duty." Parsons v. Carbondale Township, 217 Ill. App. 3d 637, 643, 577 N.E.2d 779, 783 (1991). While the existence of a duty is a question of law for the court to decide, the issues of breach and proximate cause are questions of fact for the jury, provided that there is a genuine issue of material fact regarding those issues. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 114, 649 N.E.2d 1323, 1326 (1995).

Count VI invokes the common law duty codified in section 3-102(a) of the Local Governmental and Governmental Employees Tort Immunity Act: "(a) 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, and [it] shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition." 745 ILCS 10/3-102(a) (West 1992). Specifically, plaintiff alleges that the District's conduct breached its duty to maintain the subject portion of Highline Road in a reasonably safe condition:

"7. The defendant, Breese Township Road District, had a duty to be free from negligence in the maintenance of the above mentioned roadway, but that duty notwithstanding, they committed one or more of the following acts or omissions which alone or in combination constitutes negligence: a.[the District] failed to maintain adequate signage to warn of the dangerous condition of the roadway; b.[the District] failed to maintain the roadway so that the sight distance was adequate to see oncoming traffic; c.[the District] failed to maintain the roadway with striping and markings with reflectorized paint; d.[the District] failed to maintain the roadway surface in such a manner that it would allow a road surface wide enough for the passage of two vehicles; e.[the District] failed to maintain the hard surface of the roadway to its full available width; f.[the District] failed to maintain the shoulder area adjacent to the accident scene so as to keep it available for evasive actions by drivers on the roadway; [and] g.[the District] failed to inform its maintenance crew of the hazards to be addressed when maintaining a narrow hill crest section of roadway."

After examining each of these allegations in light of the record, we agree with the circuit court's summary judgment with respect to many of plaintiff's claims. Indeed, although guised under a negligent- maintenance theory, subparagraphs (a), (b), (c), and (f) do champion a negligent-design theory. The record demonstrates that the subject stretch of Highline Road had limited sight distance and no warning signs, road markings, or shoulder area. Plaintiff does not argue that the sight distance had changed since the road's construction, nor does it contend that warning signs, road markings, and/or a road shoulder area formerly existed at the collision site. In essence, these allegations assail the District's failure to make improvements at the collision site, not its failure to properly maintain the area. Improvement means a change for the better, while maintenance connotes preserving sameness. This difference is fatal to these four allegations.

Our supreme court has explained that a public entity's duty to maintain its public property under section 3-102(a) does not extend to improvements: "It is `otherwise provided' in section 3-104 [now 745 ILCS 10/3-104 (West 1992)], which is located in article III with section 3-102(a), that a municipality does not have a duty to provide traffic control devices. Thus, the obligation to provide traffic control devices is expressly excluded from the purview of the general duty to maintain found in section 3-102(a). This limitation on the scope of the duty in section 3-102(a) is in keeping with the scope of that duty as it existed at common law. The Tort Immunity Act creates no new duties but merely codifies those existing at common law. [Citations]. At common law, a municipality had a duty to maintain its property in a safe condition, but this duty did not extend to creating or erecting public improvements. [Citations]. Once a public improvement was actually constructed, the municipality ...

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