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Rommel v. Illinois State Toll Highway Authority

Court of Appeals of Illinois, Second District

September 9, 2013

BARBARA ROMMEL, Individually and as Special Administrator of the Estate of Timothy Rommel, Deceased, Plaintiff-Appellant,
v.
THE ILLINOIS STATE TOLL HIGHWAY AUTHORITY, Defendant-Appellee Caritina Moncada-Jaime, Defendant ANTONIO LEWIS, Individually and as Special Administrator of the Estate of Shayula Lewis, Deceased, and on Behalf of, for the Benefit of, and as Father and Next Friend of Kierra Lewis, a Minor, Plaintiff-Appellant,
v.
THE ILLINOIS STATE TOLL HIGHWAY AUTHORITY, Defendant-Appellee. JAMES NEUKIRCH, as Special Administrator of the Estate of Mark E. Neukirch, Deceased, STEPHEN KUGELMAN, as Special Administrator of the Estate of Mathew Kugelman, Deceased, and JEANINE DOMBROW, as Independent Executor of the Estate of Matthew Dombrow, Deceased, Plaintiffs-Appellants,
v.
THE ILLINOIS STATE TOLL HIGHWAY AUTHORITY, Defendant-Appellee. RUTH SMITH and DONALD SMITH, Individually and as Parents and Next Friends of Hannah Smith, a Minor, Issac Smith, a Minor, and Zofia Smith, a Minor, Plaintiffs-Appellants,
v.
THE ILLINOIS STATE TOLL HIGHWAY AUTHORITY, Defendant-Appellee. MARIA VILLALOBOS, as Special Administrator of the Estate of Leopoldo Villalobos, Jr., Deceased, and MANAR M. DAHLEH, as Special Administrator of the Estate of Mohammed M. Dahleh, Deceased, Plaintiffs-Appellants,
v.
THE ILLINOIS STATE TOLL HIGHWAY AUTHORITY, Defendant-Appellee.

Appeal from the Circuit Court of Du Page County Nos. 05-L-1301, 10-L-51, 06-L-163, 09-L-508, 07-L-527 Honorable Dorothy French Mallen, Judge, Presiding.

Justices Hutchinson and Spence concurred in the judgment and opinion.

OPINION

BIRKETT JUSTICE

¶ 1 Five separate cases were consolidated due to the similarity of the issues. In each case, a two- car head-on collision leading to injury or death provided the factual backdrop of the complaint. Defendant, the Illinois State Toll Highway Authority, moved to dismiss each complaint on the basis that defendant owed no duty regarding the median separating traffic. The trial court certified two questions for permissive interlocutory appeal pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010). This court answered the questions and held that defendant owed no duty regarding the median. Rommel v. Illinois State Toll Highway Authority, 405 Ill.App.3d 1124 (2010) (Rommel I). We remanded the cause to the trial court for further proceedings. Upon remand, the trial court dismissed each action, holding that Rommel I compelled the dismissals. Plaintiffs appealed, arguing, effectively, that we should revisit our determinations on the certified questions in Rommel I and that, in any event, plaintiffs had stated a claim for negligent maintenance and voluntary undertaking regarding the median. We affirm the trial court's judgment.

¶ 2 I. BACKGROUND

¶ 3 We first recapitulate the factual background and procedural history that placed these cases before us. This appeal arises from five separate actions, each alleging injuries arising from a two-car head-on collision on Interstate 90 (northwest tollway), a portion of the Illinois tollway system. In each action, a vehicle lost control and left the roadway, crossed a 50-foot median, and encountered oncoming traffic, striking a vehicle and injuring or killing plaintiffs or their decedents.

¶ 4 Plaintiffs in the five actions—Barbara Rommel, individually and as special administrator of the estate of Timothy Rommel, deceased; Antonio Lewis, individually and as special administrator of the estate of Shayula Lewis, deceased, and on behalf of, for the benefit of, and as father and next friend of Kierra Lewis, a minor; James Neukirch, as special administrator of the estate of Mark E. Neukirch, deceased; Stephen Kugelman, as special administrator of the estate of Mathew Kugelman, deceased; Jeanine Dombrow, as independent executor of the estate of Matthew Dombrow, deceased; Ruth and Donald Smith, individually and as parents and next friends of Hannah Smith, a minor, Issac Smith, a minor, and Zofia Smith, a minor; Maria Villalobos, as special administrator of the estate of Leopold Villalobos, Jr., deceased; and Manar M. Dahleh, as special administrator of the estate of Mohammed M. Dahleh, deceased—filed suit against defendant alleging, in each case, that defendant should have (1) added guardrails or other barriers to the medians; (2) maintained the slope or shape of the medians differently to render them safer to drive over; and (3) erected signs warning motorists of the danger of crossover accidents due to the slope or condition of the medians. The cases were consolidated.

¶ 5 After many iterations of amended complaints, the trial court granted plaintiffs' motion to allow them to plead "that there was something that was done maintenance-wise that caused this median to be not reasonably safe." Plaintiffs then moved to certify two questions for interlocutory appeal under Illinois Supreme Court Rule 308 (eff. Feb 26, 2010).

¶ 6 This court allowed plaintiffs leave to appeal and addressed two certified questions in Rommel I, 405 Ill.App.3d 1124. The questions concerned the Authority's duty to prevent crossover vehicle collisions:

" '[1.] Does [defendant] have a common law duty to its users to correct, repair and/or improve its tollway system to prevent against "crossover" vehicle collisions when it was on notice that crossover vehicle collisions had occurred under the facts alleged by the Plaintiffs?
[2.] Does the Illinois Road and Bridges Tollway Highway Act [(Act) (605 ILCS 10/1 et seq. (West 2008))] impose upon [defendant] a statutory duty to its users to correct, maintain, repair or improve its tollway system as is alleged by the Plaintiffs to prevent against crossover vehicle collisions?' " Id. at 1125.

¶ 7 We answered both questions in the negative. Id. Concerning the first question, after reviewing the relevant factors regarding the question of duty (reasonable foreseeability of injury, likelihood of such injury, magnitude of guarding against the injury, and consequences of placing that burden on the defendant), we determined that, in DiBenedetto v. Flora Township, 153 Ill.2d 66 (1992), the Illinois Supreme Court had already resolved the question:

"In DiBenedetto , the supreme court considered a township's duty to a driver who died after his car veered out of his lane, crossed over the shoulder, and landed in a steeply pitched drainage ditch parallel to the road. [Citation.] The driver's estate argued that the township should be held liable for its failure to remedy the dangerous condition created by the ditch, but the supreme court affirmed the trial court's decision to dismiss the case on the ground that the township owed no duty to make the drainage ditch safe for motorists." Rommel I, 405 Ill.App.3d at 1126.

¶ 8 We reasoned that, under DiBenedetto, the entity maintaining a road has a duty to maintain only the traveled way in a reasonably safe condition, regardless of the foreseeability of a driver veering from the road. Id. at 1127. We concluded that, like the drainage ditch in DiBenedetto, the ...


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