Appeal from Circuit Court of Macoupin County No. 99L30 Honorable Thomas P. Carmody, Judge Presiding.
The opinion of the court was delivered by: Justice Steigmann,
In July 1999, plaintiff, Deanne M. Miller, sued defendants, the Highway Commissioner of North Otter Township Road District, North Otter Township Road District, North Otter Township, and Rural Electric Convenience Cooperative Company (Rural Electric), for injuries Miller sustained when her minivan skidded off a roadway and struck a utility pole owned by Rural Electric.
In October 2002, Rural Electric filed a motion, pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2002)), to dismiss count IV of Miller's complaint, which alleged, in pertinent part, that Rural Electric had negligently placed the utility pole. Following a February 2003 hearing, the trial court granted the motion to dismiss, upon determining that Rural Electric owed Miller no duty of care. In March 2003, the court entered a finding that no just reason existed for delaying enforcement or appeal of its order (155 Ill. 2d R. 304(a)).
Miller appeals the trial court's granting of Rural Electric's October 2002 motion to dismiss count IV, and we affirm.
Around 10:20 p.m. on July 18, 1998, Miller was driving her minivan east on Hays Road in Macoupin County. (The township maintained that portion of Hays Road by spreading oil and then placing gravel on it.) As Miller approached the unmarked and unlighted intersection of Hays Road and Jones Road, she thought that Hays Road either ended or veered sharply to the right. As she attempted to negotiate the right-hand turn onto Jones Road, her minivan skidded through the intersection and struck Rural Electric's utility pole, which was located approximately 10 feet from the southeast corner of the intersection. As a result of the collision, Miller sustained serious injuries, including the loss of one eye.
In July 1999, Miller filed a complaint against Rural Electric and the other defendants. Count IV of the complaint alleged, in pertinent part, that Rural Electric acted negligently by (1) placing the utility pole "in a location closely behind and slightly to the right" of the intersection of Hays and Jones Roads, and (2) failing to (a) warn motorists about the utility pole, (b) place lighting or reflective tape on the utility pole, and (c) provide a cushion barrier or a "breakaway" utility pole.
In August 1999, Rural Electric filed a motion, pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 1998)), to dismiss count IV of Miller's complaint, alleging that the complaint failed to state a cause of action because it failed to allege that Rural Electric owed Miller a duty. Following a September 1999 hearing on Rural Electric's motion, the trial court dismissed count IV's allegations that Rural Electric acted negligently by failing to (1) warn motorists about the utility pole, (2) place lighting or reflective tape on the utility pole, and (3) provide a cushion barrier or a "breakaway" utility pole. As to the remaining allegation set forth in count IV, the court requested that Rural Electric resubmit its motion to dismiss after the parties completed discovery.
In October 2002, Rural Electric filed a motion, pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2002)), to dismiss the remaining allegation set forth in count IV of Miller's complaint-- namely, that Rural Electric had negligently placed the utility pole "in a location closely behind and slightly to the right" of the intersection of Hays and Jones Roads. In the motion, Rural Electric argued that it owed no duty to Miller because (1) "the utility pole was off the traveled surface of the roadway"; and (2) Miller "was not in the ordinary course of travel as she deviated from the road and struck the utility pole." Rural Electric also filed a memorandum of law in support of its motion to dismiss. Attached to the memorandum were the following: (1) the discovery depositions of Sharon Hays and Dara Drake, both of whom lived on Hays Road at the time of the accident; and (2) the affidavit of Louis DeLaby, Rural Electric's manager of operations and maintenance.
In January 2003, Miller filed a response to Rural Electric's motion to dismiss. Attached to the response were the following: (1) nine photographs of the accident site and the nearby roadway, which were taken shortly after the accident (Miller's exhibit Nos. 1 through 9); (2) DeLaby's discovery deposition; and (3) Miller's discovery deposition.
Because the parties are familiar with the facts set forth in the depositions and affidavit, we discuss them only to the extent necessary to put Miller's argument in context. Hays testified that since 1977, she had lived on Hays Road about a half-mile from the intersection of Hays and Jones Roads. Hays identified Miller's exhibit Nos. 1 through 9 as photographs accurately depicting Hays Road and its intersection with Jones Road at the time of the accident. As a driver approaches the intersection, there are a series of rises and dips, and the crossroads are difficult to see "until you get up there." If a driver is not familiar with Hays Road, she would think that it is a "regular road" east of the intersection. However, east of the intersection Hays Road is "mostly dirt," although it is maintained by North Otter Township. The intersection "pretty much always" contains loose gravel on top of the oiled surface. On occasions when Hays drove 40 to 45 miles per hour as she turned from Hays Road south onto Jones Road, her car "sort of" lost traction on the loose gravel. However, her car did not slide or swerve. Hays was not personally aware of any prior accidents at the intersection involving the utility pole. She had heard of a "couple" of accidents on Hays Road, including a fender bender, a car hitting a roadway mile marker, and drunk drivers sliding into ditches. Hays had never contacted Rural Electric about its placement of the utility pole.
Dara Drake testified that she had lived on Hays Road near its intersection with Jones Road for five years. Around 10:20 p.m. on July 18, 1998, Drake was in her house when she and her husband heard a crash. After dialing 9-1-1, she joined her husband at the accident site and saw that the front driver's side of Miller's minivan had struck the utility pole. Drake stated that Hays Road continues on east of the intersection, although it becomes a dirt road. A driver traveling east on Hays Road may go through the intersection and then either continue straight on the dirt road or turn left into the Drakes' driveway. Drake knew of other people who commonly used that section of Hays Road "as a means of travel." Drake was aware of other accidents in which drivers drove into the Drakes' field on the northwest side of the intersection (diagonally across the intersection from the utility pole). She did not know whether those drivers lost control in the intersection or simply drove off the road into the field. Drake never contacted Rural Electric regarding any accidents, and she was not aware of any accidents (other than Miller's) that had occurred at the intersection involving the utility pole. Drake previously had telephoned the township road commissioner and requested that the township install stop signs at the intersection because drivers go too fast as they approach it. If drivers traveled at a "reasonable speed," the loose gravel at the inter-section was not dangerous.
DeLaby averred that he had been employed by Rural Electric since 1972 and was familiar with the location of the utility pole near the intersection of Hays and Jones Roads. Prior to placing the utility pole at its current location, Rural Electric was not "aware of any dangerous propensity of the intersection," and did not know of any accidents in which vehicles left the roadway because of a failed right-hand turn onto Jones Road while traveling east on Hays Road. In addition, Rural Electric was not aware of any accident (other than Miller's) in which a vehicle left the roadway at the intersection and struck the utility pole. Rural Electric had never received any com-plaints from residents regarding the safety of the utility pole's location.
DeLaby testified that in September 1947, Rural Electric first installed utility poles along Jones Road. In September 1975, Rural Electric completed an improvement project by installing utility poles along Hays Road. As part of that project, Rural Electric moved the utility pole in question from a location along Jones Road to its current location near the southeast corner of the intersection of Hays and Jones Roads. No guidelines or specifications existed regarding the distance utility poles should be placed from intersections. However, when Rural Electric placed the utility pole at its current location, Rural Electric's "ruling span" guidelines suggested a distance of 326 feet between utility poles, allowing a divergence of 10%. Thus, utility poles could be placed between 294 feet and 358 feet apart and still fall within the guidelines. In 1978, Rural Electric adopted a specification that suggested a 300-foot ruling span for additional protection of the poles from ice storms. The distance between the utility pole in question and the next utility pole along Hays Road was 224 feet. DeLaby opined that it would cost approximately $1,000 to move the utility pole in question farther from the intersection.
DeLaby also testified that prior to the July 19, 1998, accident, Rural Electric did not know of any accidents that (1) involved the utility pole in question or (2) occurred at or near the intersection. He acknowledged that at the time of the accident, Rural Electric was aware that (1) no streetlights existed near the intersection of Hays and Jones Roads; (2) east of the intersection, the surface of Hays Road changed; and (3) no posted speed limit signs existed on Hays Road, which meant that the speed limit was 55 miles per hour. DeLaby also acknowledged that Miller's exhibit Nos. 1 through 9 were photographs that accurately depicted Hays Road and its intersection with Jones Road as they existed in July 1998.
Miller testified that on the night of the accident, she turned onto Hays Road about one mile before its intersection with Jones Road. Although Miller had never driven on Hays Road before that night, she had driven on country roads for many years. Just prior to the accident, Miller was traveling between 45 and 50 miles per hour. She described the accident as follows:
"[Hays Road] looked like it went straight
ahead. I was under the impression that it went
straight ahead, that's why I continued to drive
straight ahead, until right when I came up on that,
came up on that little, that rise, *** that's right
then is when I realized it made a turn to the right.
So of course the first, my first reaction was
to turn to the right, and because of the rocks on
the road I just kept going straight, and I hit the
Had it not been for the loose gravel in the intersection, Miller "would have had control" of her minivan.
Following a January 2003 hearing on Rural Electric's motion to dismiss, the trial court took the matter under advisement and instructed the parties to submit additional written briefs, which the parties later did.
Later in January 2003, Rural Electric filed a supplemental section 2-619 motion to dismiss the remaining allegation set forth in count IV on the ground that Miller's claim was barred by the statute of repose (735 ILCS 5/13-214(b) (West 2002)). In February 2003, Miller filed a motion for leave to file an amended complaint. Count IV of the amended complaint alleged that Rural Electric acted negligently by keeping, maintaining, and continuing to use a utility pole that had been placed in a dangerous location. ...