{ "id": 5217375, "name": "DONALD E. GRESHAM, Adm'r of the Estate of Carol Gresham, Deceased, Plaintiff-Appellant, v. LLOYD A. KIRBY et al., Defendants-Appellees", "name_abbreviation": "Gresham v. Kirby", "decision_date": "1992-06-11", "docket_number": "No. 4\u201491\u20140212", "first_page": "952", "last_page": "960", "citations": [ { "type": "official", "cite": "229 Ill. App. 3d 952" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "413 N.E.2d 1242", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "83 Ill. 2d 10", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5473221 ], "opinion_index": 0, "case_paths": [ "/ill-2d/83/0010-01" ] }, { "cite": "339 N.E.2d 779", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "782" } ], "opinion_index": 0 }, { "cite": "34 Ill. App. 3d 425", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2961160 ], "pin_cites": [ { "page": "428-29" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/34/0425-01" ] }, { "cite": "495 N.E.2d 1259", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1262" }, { "page": "1262" } ], "opinion_index": 0 }, { "cite": "145 Ill. 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App. 3d", "case_ids": [ 3563658 ], "year": 1987, "pin_cites": [ { "page": "101" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/127/0095-01" ] }, { "cite": "477 U.S. 317", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6207800 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "325" }, { "page": "275" }, { "page": "2554" } ], "opinion_index": 0, "case_paths": [ "/us/477/0317-01" ] }, { "cite": "456 N.E.2d 958", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "961-62" } ], "opinion_index": 0 }, { "cite": "119 Ill. App. 3d 601", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 5294967 ], "weight": 5, "pin_cites": [ { "page": "479" }, { "page": "479" }, { "page": "480" }, { "page": "480" }, { "page": "481" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/215/0472-01" ] }, { "cite": "148 Ill. 2d 417", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3283128 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "420-21" }, { "page": "417" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/148/0417-01" ] } ], "analysis": { "cardinality": 858, "char_count": 18558, "ocr_confidence": 0.772, "pagerank": { "raw": 1.5215507097229087e-07, "percentile": 0.6693728089938834 }, "sha256": "9420df35cff5645ddd54a850d2eb376a75c309195729596b84eba8dee2cb9c0d", "simhash": "1:206455d486e074fc", "word_count": 3159 }, "last_updated": "2023-07-14T21:04:36.221708+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DONALD E. GRESHAM, Adm\u2019r of the Estate of Carol Gresham, Deceased, Plaintiff-Appellant, v. LLOYD A. KIRBY et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE COOK\ndelivered the opinion of the court:\nPlaintiff Donald E. Gresham, administrator of the estate of Carol Gresham, deceased, filed this wrongful death action against defendants, the Town of Normal (Town) and Lloyd Kirby. The Town\u2019s motion for summary judgment was granted. A jury found in Kirby\u2019s favor. Plaintiff appeals the grant of summary judgment. We affirm.\nOn July 5, 1988, Carol Gresham died in an automobile accident at the intersection of College Avenue and U.S. Route 150 in Normal, Illinois. Decedent approached the intersection from the southwest on College Avenue, a two-lane road owned and maintained by the Town; the road had a posted speed limit of 30 miles per hour. Kirby approached the intersection from the southeast on Route 150, a two-lane highway owned and maintained by the State of Illinois Department of Transportation (IDOT); the highway had a posted speed limit of 55 miles per hour. There were stop signs on both College Avenue approaches to the intersection, and no stop signs or other traffic devices on either Route 150 approach. Route 150 traffic accordingly had the right of way. Upon entering the intersection, decedent\u2019s step van was struck by Kirby\u2019s automobile, resulting in decedent\u2019s death. The intersection was first opened in November 1987. There had been at least eight accidents at the intersection before this one, including a fatality in April 1988. After this accident, the Town added two more stop signs for traffic on College Avenue, to the two already present, and placed red flags on top of all four stop signs.\nPlaintiff filed a wrongful death action against Kirby, then an amended four-count complaint adding the Town as a defendant. This appeal concerns counts II, III and IV directed against the Town.\nThe Town averred it was entitled to summary judgment because (1) on the date of the accident, it had no authority to place any traffic regulatory devices on Route 150, which was under the jurisdiction of the State; (2) it did not owe the decedent any duty to warn her as to the condition of the intersection; (3) it was immune from liability under section 3 \u2014 104 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (Ill. Rev. Stat. 1989, ch. 85, par. 3\u2014 104); and (4) none of its alleged acts were the proximate cause of decedent\u2019s death. The court granted the Town\u2019s motion for summary judgment.\nSummary judgments are desirable where the pleadings, affidavits, and depositions show that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 1005(c); Wojdyla v. City of Park Ridge (1992), 148 Ill. 2d 417, 420-21; Fitt v. City of Mattoon (1991), 215 Ill. App. 3d 472, 479, 574 N.E.2d 1275, 1279.) It was formerly held that when a defendant moved for summary judgment defendant was required to show it was not possible that plaintiff could prove his case, that is, defendant was required to negate plaintiff\u2019s case, even though plaintiff had the burden of proof at trial. (See, e.g., Motz v. Central National Bank (1983), 119 Ill. App. 3d 601, 605, 456 N.E.2d 958, 961-62.) More recent cases make it easier for defendants to obtain summary judgment, holding it sufficient for defendant to point out an absence of some element of evidence to support plaintiff\u2019s case. (Celotex Corp. v. Catrett (1986), 477 U.S. 317, 325, 91 L. Ed. 2d 265, 275, 106 S. Ct. 2548, 2554; Koukoulomatis v. Disco Wheels, Inc. (1984), 127 Ill. App. 3d 95, 101, 468 N.E.2d 477, 481-82; Lindenmier v. City of Rockford (1987) 156 Ill. App. 3d 76, 85, 508 N.E.2d 1201, 1207 (\u201cWhen a defendant files a motion for summary judgment, the plaintiff must come forward with evidence of negligence on the part of the defendant and with evidence that defendant\u2019s negligence was a proximate cause of the plaintiff\u2019s injuries\u201d); see Schwarzer, Hirsch & Barrans, The Analysis and Decision of Summary Judgment Motions, 139 F.R.D. 441, 449-51, 478 (1991).) In this case, defendant attempts to negate plaintiff\u2019s case by showing there was no duty on its part. The entry of summary judgment is not a matter within the discretion of the trial court. In reviewing a trial court\u2019s ruling on a motion for summary judgment, the appellate court should consider anew the facts and law related to the case to determine whether the trial court was correct. Shull v. Harristown Township (1992), 223 Ill. App. 3d 819, 824, 585 N.E.2d 1164, 1167.\nIn order to recover in tort for negligence, a plaintiff must establish the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting from that breach. (Wojdyla, 148 Ill. 2d at 417; Ross v. City of Chicago (1988), 168 Ill. App. 3d 83, 86, 522 N.E.2d 215, 217; Dinges v. Gabardi (1990), 202 Ill. App. 3d 732, 735, 560 N.E.2d 21, 23.) The existence of a duty must be determined by the courts as a matter of law. (Curtis v. County of Cook (1983), 98 Ill. 2d 158, 162, 456 N.E.2d 116, 118; Fitt, 215 Ill. App. 3d at 479, 574 N.E.2d at 1279.) If no duty exists, no recovery is possible as a matter of law, and summary judgment for defendant is proper. Beal v. Kuptchian (1987), 164 Ill. App. 3d 191, 193, 517 N.E.2d 712, 714.\nCount II of plaintiff\u2019s amended complaint was based on section 3 \u2014 103(a) of the Act (Ill. Rev. Stat. 1989, ch. 85, par. 3 \u2014 103(a)), which makes a local public entity liable for the creation of a condition that is not reasonably safe. Plaintiff alleged that the Town had agreed with the State to reconstruct the intersection and to build it in accordance with the plans and specifications approved by the State. According to the plans, College Avenue would be a through street and traffic on Route 150 would stop at the intersection. Nevertheless, the Town built the intersection with Route 150 as the through street, with traffic on College Avenue to stop. Plaintiff asserted this failure created a \u201ccondition that was not reasonably safe for motorists\u201d and was the proximate cause of decedent\u2019s death. However, regardless of whether the Town had a duty not to deviate from the approved plans, plaintiff could not establish that the Town breached such a duty because the Town had no duty or authority to place stop signs on Route 150.\nAt the time of the accident the State had jurisdiction of Route 150; jurisdiction was eventually transferred to McLean County after the accident. Sections 11 \u2014 303(a) and (b) of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1989, ch. 95\u00bd, pars. 11 \u2014 303(a), (b)) provide the State is responsible for placing and maintaining traffic control devices on all highways under its jurisdiction, and local authorities shall not erect any traffic control devices on any State highway except by the State\u2019s permission. (Fitt, 215 Ill. App. 3d at 480, 574 N.E.2d at 1279.) Moreover, when roads and highways of larger and lesser governmental entities intersect, section 11 \u2014 302 of the Code places the responsibility for the erection and maintenance of stop signs and the designation of through highways at the intersections upon the larger governmental entity. (Ill. Rev. Stat. 1989, ch. 95\u00bd, par. 11 \u2014 302; Griglione v. Town of Long Point (1989), 184 Ill. App. 3d 20, 28, 539 N.E.2d 1348, 1353, citing Burris v. Madison County (1987), 154 Ill. App. 3d 1064, 1073, 507 N.E.2d 1267, 1273.) The Town could not place stop signs on Route 150 because that power was exclusively vested in the State.\nThe agreement between the Town and the State contains no specific authorization giving the Town authority to erect traffic control devices, other than an at-grade signalized crossing at the Norfolk & Southern railroad. The agreement clearly obligated the Town to construct the improvements according to the plans, but nothing in the language gave the Town the authority to erect traffic control devices at the intersection of College Avenue and Route 150. This contention is supported by the testimony of Edmund R. Wallens, IDOT bureau of traffic chief, that the joint agreement only made the Town responsible for the traffic control devices on College Avenue, and is reinforced by letters Wallens received from Town officials asking IDOT to act with regard to the intersection. Under the Code, the Town could not place stop signs on Route 150 because that power was reserved to the State, unless specific permission was given to the Town. Contrary to plaintiff\u2019s argument, the agreement did not authorize the Town to erect traffic control devices on Route 150. Summary judgment on count II was appropriate.\nAs plaintiff states in his brief, the only difference between count II and count III \u201cis that count III suggests the action which the Town failed to take once the dangerous condition became known.\u201d The measures the Town failed to take were (1) to close the intersection to traffic on College Avenue, (2) to provide a four-way stop as recommended by a Town official\u2019s letter to Wallens, (3) to condition motorists on Route 150 or College Avenue to the changes at the intersection as recommended by the Town official\u2019s letter, and (4) to warn traffic on College Avenue of the dangerous condition. Again, the allegations that the Town was negligent in failing to take some action regarding Route 150 must fail because Route 150 was under the jurisdiction of the State, and the Town had no duty or authority to place signs on it or close it.\nA different analysis must be applied to the allegations that the Town failed to close or place adequate signs on College Avenue. Under section 11 \u2014 304 of the Code (Ill. Rev. Stat. 1989, ch. 951k, par. 11 \u2014 304), local authorities are required to post signs to regulate, warn, and guide traffic on highways under their maintenance jurisdiction. Section 11 \u2014 304 \u201c \u2018imposes an obligation on local authorities to warn motorists of those hazards which are incident to that portion of the highway which remains under local maintenance jurisdiction.\u2019 \u201d (Fitt, 215 Ill. App. 3d at 480, 574 N.E.2d at 1280, quoting Janssen v. City of Springfield (1980), 79 Ill. 2d 435, 448, 404 N.E.2d 213, 219.) The Town had authority to post signs to warn traffic on College Avenue of the changes to the intersection and that College Avenue traffic stopped but Route 150 traffic did not.\nWhile section 11 \u2014 304 of the Code imposes an obligation on local authorities to post warning signs (see also section 3 \u2014 102(a) of the Act (Ill. Rev. Stat. 1989, ch. 85, par. 3 \u2014 102(a)), discussed below), section 3 \u2014 104 of the Act immunizes local authorities from any tort liability for failing to fulfill this duty. Section 3 \u2014 104 of the Act provides:\n\u201cNeither a local public entity nor a public employee is liable under this Act for an injury caused by the failure to initially provide regulatory traffic control devices, stop signs, yield right-of-way signs, speed restriction signs, distinctive roadway markings or any other traffic regulating or warning sign, device or marking, signs, overhead lights, traffic separating or restraining devices or barriers.\u201d Ill. Rev. Stat. 1989, ch. 85, par. 3-104.\nThe Town cannot be liable for the failure to post warning signs even if such failure was negligent and was a cause of plaintiff\u2019s injury. This section provides the Town with complete immunity from liability for the failure to warn traffic traveling on College Avenue of the alleged dangerous intersection. (West v. Kirkham (1992), 147 Ill. 2d 1, 5-12, 588 N.E.2d 1104, 1106-09; Fitt, 215 Ill. App. 3d at 481, 574 N.E.2d at 1280.) Summary judgment was properly entered on count III. Section 3 \u2014 104 immunity is also a justification for the grant of summary judgment on count II, assuming the Town had the duty or authority to place signs on Route 150. The trial court did not discuss immunity in its order granting summary judgment, but we may affirm for any reason or ground appearing in the record, irrespective of the reasons assigned by the trial court. Farmers State Bank v. Webel (1983), 113 Ill. App. 3d 87, 92, 446 N.E.2d 525, 528, citing Harrison v. Kamp (1946), 395 Ill. 11, 21, 69 N.E.2d 261, 267.\nPlaintiff's argument that the Town should have closed the road is designed to avoid the language of section 3 \u2014 104. That section speaks of \u201cwarning sign[s]\u201d and \u201ctraffic control devices,\u201d but says nothing of closing a road. Plaintiff\u2019s argument, if accepted, would change the result in most of the cases finding immunity under section 3 \u2014 104. In West, for example, plaintiff would have argued, not that the city should have provided a left-turn arrow, but that the city should have closed Lincoln Avenue. We reject the idea that the policy considerations underlying West and the other cases in this area could be so easily overcome. In any event, a municipality would close a street by \u201crestraining devices\u201d or \u201cbarriers,\u201d and a Town\u2019s failure to provide those devices is completely immune from liability under section 3\u2014 104.\nFinally, plaintiff alleged that count IV was based on section 3\u2014 102(a) of the Act, which requires a local public entity to maintain its property in a reasonably safe condition for the benefit of intended users when it has notice of an unsafe condition. Plaintiff alleged that notwithstanding its duty to maintain its property, the Town was guilty of one or more of the following acts: (1) allowing traffic on College Avenue when it knew that it was not built according to the plans; (2) failing to warn motorists on College Avenue of the hazard created by the intersection; (3) failing to build the intersection in accordance with the plans; (4) failing to build the intersection, taking into account the safe movement of the traffic, in accordance with the plans; (5) placing the stop sign on College Avenue so it would not reasonably be seen in time to stop at the intersection; (6) placing stop signs on College Avenue without conducting an engineering study; (7) failing to close the intersection; (8) failing to provide a four-way stop; (9) failing to condition motorists traveling on Route 150 or College Avenue to the changes at the intersection; and (10) failing to install intersection control beacons.\nThe Act creates no new duties but merely codifies those existing at common law. (West, 147 Ill. 2d at 14, 588 N.E.2d at 1110; Swett v. Village of Algonquin (1988), 169 Ill. App. 3d 78, 92, 523 N.E.2d 594, 603.) The traditional common law duty of local governments concerning public property was one to maintain that property in a reasonably safe condition. (Curtis, 98 Ill. 2d at 163, 456 N.E.2d at 119; Horrell v. City of Chicago (1986), 145 Ill. App. 3d 428, 432, 495 N.E.2d 1259, 1262.) Once a public improvement was actually constructed, the municipality had a duty to maintain it in a reasonably safe condition; however, no liability could be imposed for the failure to undertake the improvement in the first place. Swett, 169 Ill. App. 3d at 92, 532 N.E.2d at 603; see also Horrell, 145 Ill. App. 3d at 432, 495 N.E.2d at 1262; Ross, 168 Ill. App. 3d at 87, 522 N.E.2d at 218.\nMost of the allegations of count IV do not apply to any duty of maintenance. Plaintiff does not allege that the death of the decedent was caused by a state of disrepair or deterioration of the intersection, or for any other failure of maintenance. (See Harding v. Chicago Park District (1975), 34 Ill. App. 3d 425, 428-29, 339 N.E.2d 779, 782; Ross, 168 Ill. App. 3d at 87-89, 522 N.E.2d at 218-19.) Rather, plaintiff argues that the Town had a duty to build the intersection in accordance with the plans, to warn or condition motorists on Route 150 and College Avenue, to close the intersection, to provide a four-way intersection, and to install intersection control beacons \u2014 all as part of its duty to maintain its property under this section. The duty of maintenance does not include such activities. The State had placed stop signs on College Avenue, which was under the jurisdiction and control of the Town. The Town did have a duty to maintain these stop signs. (See Griglione, 184 Ill. App. 3d at 28, 539 N.E.2d at 1348; Bentley v. Saunemin Township (1980), 83 Ill. 2d 10, 413 N.E.2d 1242.) As the trial court found, there was no evidence to show that the Town had breached this duty.\nFinally, section 3 \u2014 102(a) of the Act requires a local entity to maintain its property in a reasonably safe condition, \u201c[ejxcept as otherwise provided\u201d (Ill. Rev. Stat. 1989, ch. 85, par. 3 \u2014 102(a)), but section 3 \u2014 104, granting immunity for the initial failure to provide traffic control devices, is a section which \u201cotherwise provides.\u201d The obligation to provide traffic control devices is expressly excluded from the purview of the general duty to maintain found in section 3 \u2014 102(a). (West, 147 Ill. 2d at 14, 488 N.E.2d at 1110.) Section 3-102(a) of the Act does not provide a basis for the Town\u2019s duty to decedent, and summary judgment was appropriate on this count.\nBecause we find that summary judgment was appropriate as to each of the three counts, there is no need for us to address the Town\u2019s contention that summary judgment could have been granted on the basis that plaintiff failed to establish that the Town\u2019s acts or omissions were the proximate cause of decedent\u2019s death.\nSimilarly, we need not address plaintiff\u2019s argument that if this court finds error in the grant of summary judgment, the case should be remanded for a new trial against both defendants. Plaintiff originally took an appeal both as to the Town and as to Kirby, the driver of the other vehicle. After plaintiff filed his brief, plaintiff and defendant Kirby filed a motion to dismiss the appeal against Kirby, contending they had entered into a good-faith settlement relating to that cause of action. (See Ill. Rev. Stat. 1989, ch. 70, pars. 302(c), (d).) The Town objected, arguing it might be entitled to contribution from Kirby in the event we reversed the summary judgment. We grant the motion to dismiss the appeal as to Kirby.\nThe judgment of the trial court is affirmed.\nAffirmed.\nKNECHT and STEIGMANN, JJ., concur.", "type": "majority", "author": "JUSTICE COOK" } ], "attorneys": [ "William A. Allison, of Allison & Kelly, of Bloomington, for appellant.", "Ancel, Glink, Diamond & Cope, P.C., of Chicago (David Lincoln Ader and Jennifer A. Pritz, of counsel), for appellee Town of Normal.", "William F. Costigan and Robert S. White, both of Costigan & Wollrab, P.C., of Bloomington, for appellee Lloyd A. Kirby." ], "corrections": "", "head_matter": "DONALD E. GRESHAM, Adm\u2019r of the Estate of Carol Gresham, Deceased, Plaintiff-Appellant, v. LLOYD A. KIRBY et al., Defendants-Appellees.\nFourth District\nNo. 4\u201491\u20140212\nOpinion filed June 11, 1992.\nWilliam A. Allison, of Allison & Kelly, of Bloomington, for appellant.\nAncel, Glink, Diamond & Cope, P.C., of Chicago (David Lincoln Ader and Jennifer A. Pritz, of counsel), for appellee Town of Normal.\nWilliam F. Costigan and Robert S. White, both of Costigan & Wollrab, P.C., of Bloomington, for appellee Lloyd A. Kirby." }, "file_name": "0952-01", "first_page_order": 974, "last_page_order": 982 }