Appeal from the Circuit Court of Marion County. No. 06-L-46 Honorable Michael D. McHaney, Judge, presiding.
The opinion of the court was delivered by: Justice Wexstten
Rule 23 order filed January 28, 2013; Motion to publish granted
JUSTICE WEXSTTEN delivered the judgment of the court, with opinion. Justices Welch and Goldenhersh concurred in the judgment and opinion.
¶ 1 The plaintiff, Roy Perfetti, filed an action in the circuit court of Marion County against the defendants, Marion County, Illinois, Marion County Highway Department, and Kinmundy Township, alleging that the defendants' negligence and willful and wanton misconduct with regard to an unsafe roadway caused a one-vehicle collision that resulted in his injury. The circuit court dismissed the plaintiff's cause against Kinmundy Township, and the plaintiff elected to proceed solely against Marion County. At the close of the plaintiff's evidence before the jury, the circuit court granted Marion County's motion for a directed verdict.
¶ 2 On appeal, the plaintiff argues that the circuit court's directed verdict was not based on the evidence, that Marion County did not plead or argue an affirmative defense for which a directed verdict could be granted, that it prematurely moved for directed verdict, and that it was not immune pursuant to section 2-201 of the Illinois Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act) (745 ILCS 10/2-201 (West 2006)). We affirm.
¶ 4 On June 30, 2006, the plaintiff filed a complaint alleging that despite its actual and/or constructive knowledge of the unsafe roadway construction of Kinoka Road, Marion County negligently and willfully and wantonly constructed, designed, failed to maintain, and failed to repair the allegedly defective roadway. The plaintiff further alleged that Marion County negligently and willfully and wantonly allowed the roadway to remain in a defective condition, failed to warn of the defective condition of the roadway, failed to protect the plaintiff from the hazardous condition in the roadway, and improperly permitted the plaintiff and other users to use the roadway. The plaintiff alleged that the unsafe construction, maintenance, and condition of Kinoka Road caused him to lose control of his vehicle and suffer extensive injuries. The plaintiff alleged that as a direct and proximate result of Marion County's acts or omissions, he suffered injuries to his neck, shoulder, and back.
¶ 5 In response to the plaintiff's complaint, Marion County asserted as affirmative defenses contributory negligence, immunity under section 3-102 of the Tort Immunity Act (745 ILCS 10/3-102 (West 2006)), and immunity under section 2-201 of the Tort Immunity Act (745 ILCS 10/2-201 (West 2006)). Citing section 3-102 of the Tort Immunity Act (745 ILCS 10/3-102 (West 2006)), Marion County argued that it had neither actual nor constructive notice of the existence of the allegedly unsafe condition at a reasonably adequate time prior to the plaintiff's accident to take measures to remedy or protect against such conditions. In asserting immunity pursuant to section 2-201 of the Tort Immunity Act (745 ILCS 10/2-201 (West 2006)), Marion County asserted that it was not liable for injuries resulting from the Marion County highway engineer's act or omission in determining policy and exercising his discretion.
¶ 6 At the jury trial on October 11, 2011, the plaintiff presented the following pertinent evidence, viewed for our purposes in the light most favorable to the plaintiff.
¶ 7 In September 7, 2005, the plaintiff was driving eastbound on Kinoka Road in Marion County, Illinois. As he descended a hill, his truck abruptly shook, flipped, and rolled into a ditch. The plaintiff suffered injuries and was transported by ambulance to the hospital. After the accident, the plaintiff continued to experience sharp pains in his right shoulder and was unable to raise his arm.
¶ 8 On the day of the accident, the plaintiff returned to the accident scene with his son Donald. The plaintiff witnessed what he described as "nothing but bubbles" in the road. The plaintiff further described the road as "all ripples and spongy." The plaintiff testified that when he stood on the road and moved his feet, the road moved three feet in front, "like standing on a bowl of Jello." The plaintiff testified that the ripples were evident completely across the road and 50 to 75 feet going downhill. On cross-examination, the plaintiff acknowledged that he had to exit his vehicle to view the road's condition.
¶ 9 Donald also described the road as "wavy," "spongy," and "mushy." Donald testified that when he stood on the roadway, it sank. Donald photographed the road, evidencing the ripples. The plaintiff returned the following day with his son Paul and took additional photographs, which were offered into evidence along with Donald's photos. Paul described the road as a "[w]ashboard [with] a ripple effect in the road." Paul testified that the road moved when stepped upon and that the defect in the roadway covered a 70-yard area.
¶ 10 Jerry Cunningham, the Marion County highway engineer, testified that he was not aware of the plaintiff's accident until the following year. Jerry testified that Marion County was responsible for the condition of Kinoka Road, which experienced heavy semitruck traffic at the time of the plaintiff's accident. Jerry acknowledged that there were sections of the highway at issue, including the first mile of the accident location, that Marion County had been monitoring. Jerry testified that he was aware that the road condition described by the plaintiff may occur from "bleeding," which he had knowledge of in that area. Jerry testified that he would drive through the area and inspect it visually, stopping to look at anything unusual. Jerry testified that he last inspected the section of the area where the accident occurred by driving the roadway two days before the accident and that he did not observe anything unsafe. Jerry ...