{ "id": 3750049, "name": "GOVERNMENTAL INTERINSURANCE EXCHANGE, on Its Behalf and as Subrogee of Kendall County, Illinois, et al., Plaintiffs-Appellants and Cross-Appellees, v. JAY S. JUDGE, Indiv., et al., Defendants-Appellees and Cross-Appellants", "name_abbreviation": "Governmental Interinsurance Exchange v. Judge", "decision_date": "2005-03-16", "docket_number": "No. 4-04-0331", "first_page": "264", "last_page": "279", "citations": [ { "type": "official", "cite": "356 Ill. App. 3d 264" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "657 N.E.2d 988", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "993" } ], "opinion_index": 0 }, { "cite": "167 Ill. 2d 466", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 222800 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "474-75" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/167/0466-01" ] }, { "cite": "588 N.E.2d 1104", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 7, "year": 1992, "pin_cites": [ { "page": "1105" }, { "page": "1105" }, { "page": "1106" }, { "page": "1109" }, { "page": "1108" }, { "page": "1109" } ], "opinion_index": 0 }, { "cite": "147 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3278377 ], "weight": 7, "year": 1992, "pin_cites": [ { "page": "3" }, { "page": "3-4" }, { "page": "6" }, { "page": "11-12" }, { "page": "10" }, { "page": "11" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/147/0001-01" ] }, { "cite": "607 N.E.2d 1204", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "1209" } ], "opinion_index": 0 }, { "cite": "154 Ill. 2d 90", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4820940 ], "year": 1992, "pin_cites": [ { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0090-01" ] }, { "cite": "772 N.E.2d 215", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "218" }, { "page": "218" } ], "opinion_index": 0 }, { "cite": "201 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1477033 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "6-7" }, { "page": "6" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/201/0001-01" ] }, { "cite": "792 N.E.2d 1149", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "1158" } ], "opinion_index": 0 }, { "cite": "205 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1302614 ], "year": 2001, "pin_cites": [ { "page": "17" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/205/0001-01" ] }, { "cite": "105 N.E.2d 713", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1952, "pin_cites": [ { "page": "715" } ], "opinion_index": 0 }, { "cite": "412 Ill. 145", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2665388 ], "year": 1952, "pin_cites": [ { "page": "149" } ], "opinion_index": 0, "case_paths": [ "/ill/412/0145-01" ] }, { "cite": "175 N.E. 400", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1931, "pin_cites": [ { "page": "405" } ], "opinion_index": 0 }, { "cite": "343 Ill. 146", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5255595 ], "year": 1931, "pin_cites": [ { "page": "158" } ], "opinion_index": 0, "case_paths": [ "/ill/343/0146-01" ] }, { "cite": "556 N.E.2d 873", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1990, "pin_cites": [ { "page": "882" }, { "page": "882" }, { "page": "882" } ], "opinion_index": 0 }, { "cite": "199 Ill. App. 3d 296", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2468388 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "308" }, { "page": "308" }, { "page": "308" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/199/0296-01" ] }, { "cite": "701 N.E.2d 553", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "557" } ], "opinion_index": 0 }, { "cite": "299 Ill. App. 3d 412", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 221468 ], "year": 1998, "pin_cites": [ { "page": "417-18" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/299/0412-01" ] }, { "cite": "502 N.E.2d 264", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "pin_cites": [ { "page": "268" } ], "opinion_index": 0 }, { "cite": "149 Ill. App. 3d 809", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3458992 ], "year": 1986, "pin_cites": [ { "page": "815" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/149/0809-01" ] }, { "cite": "500 N.E.2d 510", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "pin_cites": [ { "page": "513" } ], "opinion_index": 0 }, { "cite": "148 Ill. App. 3d 1026", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3644389 ], "year": 1986, "pin_cites": [ { "page": "1031" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/148/1026-01" ] }, { "cite": "513 N.W.2d 773", "category": "reporters:state_regional", "reporter": "N.W.2d", "weight": 2, "year": 1994, "opinion_index": 0 }, { "cite": "444 Mich. 579", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 2007977 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/mich/444/0579-01" ] }, { "cite": "703 N.E.2d 1001", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1998, "pin_cites": [ { "page": "1008" } ], "opinion_index": 0 }, { "cite": "301 Ill. App. 3d 612", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 257229 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "621" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/301/0612-01" ] }, { "cite": "731 N.E.2d 773", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "189 Ill. 2d 683", "category": "reporters:state", "reporter": "Ill. 2d", "year": 2000, "opinion_index": 0 }, { "cite": "758 N.E.2d 483", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "487", "parenthetical": "not a breach of duty to supply electricity; benefits outweigh disadvantages" } ], "opinion_index": 1 }, { "cite": "325 Ill. App. 3d 606", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 569809 ], "year": 2001, "pin_cites": [ { "page": "610", "parenthetical": "not a breach of duty to supply electricity; benefits outweigh disadvantages" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/325/0606-01" ] }, { "cite": "670 N.E.2d 350", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "353-54" } ], "opinion_index": 1 }, { "cite": "283 Ill. App. 3d 765", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 182717 ], "year": 1996, "pin_cites": [ { "page": "769-71" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/283/0765-01" ] }, { "cite": "641 N.E.2d 3", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 1 }, { "cite": "267 Ill. App. 3d 174", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 333079 ], "year": 1994, "opinion_index": 1, "case_paths": [ "/ill-app-3d/267/0174-01" ] }, { "cite": "657 N.E.2d 988", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "994", "parenthetical": "\"strictly the province of the General Assembly\"" } ], "opinion_index": 1 }, { "cite": "167 Ill. 2d 466", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 222800 ], "year": 1995, "pin_cites": [ { "page": "477" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/167/0466-01" ] }, { "cite": "588 N.E.2d 1104", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1992, "pin_cites": [ { "page": "1108" }, { "page": "1108" }, { "page": "1109" }, { "page": "1109" } ], "opinion_index": 1 }, { "cite": "147 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3278377 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "10" }, { "page": "10" }, { "page": "12" }, { "page": "11" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/147/0001-01" ] } ], "analysis": { "cardinality": 1318, "char_count": 38960, "ocr_confidence": 0.738, "pagerank": { "raw": 5.67683038770863e-08, "percentile": 0.35332870758102114 }, "sha256": "e3b890b26d2c65eb98aab28e4e9952ee217a9e2aa2aa92d8d3c97a7970cc8356", "simhash": "1:96b6fc88b56fc49d", "word_count": 6314 }, "last_updated": "2023-07-14T16:18:02.423948+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GOVERNMENTAL INTERINSURANCE EXCHANGE, on Its Behalf and as Subrogee of Kendall County, Illinois, et al., Plaintiffs-Appellants and Cross-Appellees, v. JAY S. JUDGE, Indiv., et al., Defendants-Appellees and Cross-Appellants." ], "opinions": [ { "text": "JUSTICE MYERSCOUGH\ndelivered the opinion of the court:\nPlaintiff Governmental Interinsurance Exchange (GIE) is an Illinois reciprocal insurance corporation with its principal place of business in Bloomington, McLean County, Illinois. Plaintiff Kendall County (County), Illinois, is an Illinois municipal entity. In November 1995, GIE retained defendant Mary E. Dickson to represent its insured, the County, in an auto accident case. In May 1996, GIE hired defendants Jay S. Judge (Judge) and Judge, James & Dutton, Ltd. (Judge firm), and in June 1997, GIE retained defendant Bond, Mork & Dickson, PC. (Dickson firm), to represent the County.\nIn April 2001, plaintiffs filed this legal malpractice action against defendants, claiming defendants\u2019 failure to perfect the appeal caused plaintiffs\u2019 loss of a meritorious appeal in the auto accident case. In March 2003, the trial court entered partial summary judgment for plaintiffs, finding defendants breached their duty to perfect the appeal.\nIn June 2003, defendants moved for partial summary judgment on the proximate cause issue, arguing that regardless of whether defendants had perfected the appeal, the appeal in the auto accident case would not have been successful. In so contending, defendants claimed the question of whether the appeal would have been successful was a question of law and should be decided by the trial court. In October 2003, the court ruled that the question of proximate cause in this appellate malpractice case is a question of law that should be decided by the court. In March 2004, the court granted defendants\u2019 partial summary judgment motion, finding plaintiffs\u2019 malpractice action lacked the proximate cause element. Plaintiffs appeal, arguing (1) the court erred in its ruling that the issue of proximate cause in appellate malpractice cases was a question of law; and (2) assuming that the proximate cause issue was a question of law, the court erred in its finding that the element of proximate cause was lacking in this case. We affirm.\nI. BACKGROUND\nThe case underlying this legal malpractice appeal arose out of an auto accident on Galena Road in the County. Galena Road is a two-lane road that runs generally east to west. In 1978, the County assumed the ownership of Galena Road from Little Rock Township. At that time, the County commissioned a preconstruction profile of the road and developed an improvement plan. The County then resurfaced the road and striped the center of the road with a skip-dash yellow line that permitted passing.\nExpert testimony established that the Manual of Uniform Traffic Control Devices (MUTCD) provides guidelines on adequate sight distances. Under the MUTCD guideline, passing is only permissible where sight distances are adequate. If an engineering study has been performed and if sight distances are inadequate, a no-passing zone must be installed. In 1984, the MUTCD guideline lowered the minimal adequate sight distance. As a result of the reduction, the sight distance on Galena Road where the accident later occurred was inadequate. In 1993, the County resurfaced Galena Road and restriped the center of the road with the same skip-dashing yellow line that it had placed in 1978.\nOn the evening of November 1, 1994, Aaron Gesell was involved in a head-on collision with a car driven by Sandra Wittenmyer as he was traveling eastbound on Galena Road. As a result of the collision, Sandra Wittenmyer suffered severe and permanent injuries. The collision occurred entirely in the westbound line as Gesell was passing another vehicle traveling in the eastbound line. The two cars collided at the apex of a rise in Galena Road. According to several witnesses, Gesell was traveling at a speed significantly higher than the posted 55-mile-per-hour speed limit. Gesell stated the reason that he passed the other vehicle in the westbound line was because he knew a skip-dash yellow line permitted vehicles to pass and he was not aware the rise in Galena Road would have obstructed his view of oncoming traffic.\nIn January 1995, Sandra Wittenmyer and her husband Rex Wittenmyer filed a lawsuit against Gesell. In October 1995, the Wittenmyers added the County as a defendant, and Gesell filed a third-party contribution complaint against the County.\nIn February 1998, the County, through its attorneys, Judge, the Judge firm, Dickson, and the Dickson firm, moved for summary judgment in the auto accident case, claiming that \u201cpursuant to section 3 \u2014 104 of the [Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/3 \u2014 104 (West 1994))], [the] County was absolutely immune from liability.\u201d On September 24, 1998, the trial court denied the County\u2019s motion for summary judgment, and the case proceeded to a jury trial. On October 30, 1998, the jury returned a verdict in favor of the Wittenmyers. Specifically, the jury awarded $4.5 million in damages to Sandra against Gesell and the County, apportioning 20% of the fault to Gesell and 80% of the fault to the County. The jury also awarded $500,000 in damages to Rex. On Gesell\u2019s counterclaim against the County, the jury found the County 50% at fault.\nOn November 25, 1998, the County filed a posttrial motion and a motion to file a supplemental posttrial motion, alleging its attorneys did not receive the proceedings report until November 24, 1998. On December 1, 1998, the Wittenmyers objected to the County\u2019s request to file the supplemental motion, stating the County was represented by two law firms and had sufficient time to file a complete posttrial motion. On December 3, 1998, the trial court denied both of the County\u2019s motions.\nOn December 31, 1998, the County filed a notice of appeal from the judgment entered on the jury verdict and from the trial court\u2019s December 3, 1998, denial of its posttrial motions. On the same day, the County filed an emergency motion for leave to file a supplement posttrial motion, stating that, \u201cin light of the impending [January 4, 1999,] appeal deadline, it was necessary for the County to seek, by way of an emergency motion, leave to file its supplemental post[ ]trial motion, which contained five additional grounds for reversal based upon error committed during the trial.\u201d The trial court granted the motion and set a briefing schedule on the supplemental posttrial motion. The last paragraph of the order stated: \u201cFinal orders not having been entered in this cause, the time for filing notice of appeal in this matter is hereby extended until a final order is entered.\u201d\nOn January 12, 1999, the County filed an amended supplemental posttrial motion. On February 16, 1999, the trial court denied the amended supplemental posttrial motion, stating: \u201cA. Court has no jurisdiction to hear cause, and alternatively B. Said motion is denied as a matter of substance.\u201d\nOn March 15, 1999, the County filed a motion with the Illinois Appellate Court, Second District, seeking leave to amend its notice of appeal to include the trial court\u2019s February 16, 1999, order which denied the County\u2019s supplemental postttrial motion. On April 12, 1999, the Second District Appellate Court granted the motion. On May 7, 1999, the Second District Appellate Court vacated its April 12, 1999, order and struck the County\u2019s March 15, 1999, amended notice of appeal, stating the grounds raised in the second posttrial motion were untimely. The Second District Appellate Court also denied Gesell and Wittenmyer\u2019s motions to dismiss the appeal, finding the County\u2019s December 31, 1998, notice of appeal preserved the grounds raised in the County\u2019s first posttrial motion.\nOn July 16, 1999, Gesell filed a motion in the Second District Appellate Court, arguing the County\u2019s December 31, 1998, notice of appeal was prematurely filed and the County never filed a new notice of appeal. On December 14, 1999, the Second District Appellate Court issued an unpublished order that reversed its prior ruling that the December 31, 1998, notice of appeal was timely. Wittenmyer v. Gesell, No. 2\u201499\u20140041 (December 14, 1999) (unpublished order under Supreme Court Rule 23). In its order, the Second District Appellate Court stated that the County was required to withdraw its notice of appeal when it filed its December 31, 1998, supplemental posttrial motion. Further, after the trial court denied the County\u2019s posttrial motion on February 16, 1998, the County failed to file a timely notice of appeal. Therefore, the Second District Appellate Court held the County\u2019s original notice of appeal was premature and ineffectual, and as a result, the County\u2019s March 15, 1999, motion to amend its notice of appeal was also without effect. After the Second District Appellate Court denied the County\u2019s request for reconsideration, the County filed a petition for leave to appeal with the Supreme Court of Illinois. On May 31, 2000, the supreme court denied the County\u2019s petition. Wittenmyer v. Gesell, 189 Ill. 2d 683, 731 N.E.2d 773 (2000).\nOn April 27, 2001, the County and GIE brought the malpractice suit against defendant attorneys and law firms. Plaintiffs claimed that defendants\u2019 failure \u201cto preserve the County\u2019s appeal right was a breach of [defendants\u2019] duty to exercise reasonable care, skill[,] and diligence on behalf of plaintiffs, and but for [defendants\u2019] negligence, the appeal would have been successful, and the judgment against the County would have been overturned.\u201d\nOn August 5, 2002, plaintiffs moved for partial summary judgment on the issues of whether defendants owed a duty to plaintiffs and whether defendants breached such a duty. Specifically, plaintiffs argued that the trial court could determine defendants\u2019 duty as a matter of law based solely upon the Second District Appellate Court\u2019s order in Wittenmyer v. Gesell, No. 2\u201499\u20140041 (December 14, 1999) (unpublished order under Supreme Court Rule 23). Defendants responded and filed a cross-motion for summary judgment, contending that the issue of duty was one of fact for the jury and could not be proved without expert testimony. On March 20, 2003, after a hearing on the parties\u2019 cross-motions for summary judgment, the trial court granted plaintiffs\u2019 motion for partial summary judgment, finding defendants owed plaintiffs a duty to perfect the appeal and defendants\u2019 failure to do so breached such a duty. The court then set the case for further proceedings on proximate cause and damages issues.\nOn May 16, 2003, the trial court entered a detailed case-management order governing discovery, dispositive motion practice, and trial dates. On June 22, 2003, defendants moved for partial summary judgment on the issue of proximate cause, arguing that regardless of whether defendants had perfected the appeal, the appeal in the auto accident case would not have been successful. Specifically, defendants claimed that, had the Second District Appellate Court reviewed the County\u2019s appeal on the merits, it would not have overturned the Wittenmyer judgment on section 3 \u2014 104 of the Tort Immunity Act grounds. See 745 ILCS 10/1 \u2014 101 through 10 \u2014 101 (West 1994). Defendants also claimed that the trial court should decide the question of whether the appeal would have been successful. On July 16, 2003, plaintiffs filed their response, claiming that they retained Judge for \u201chis expertise in Illinois tort immunity law and road and signage cases\u201d and defendants \u201cknew the tort immunity defense was and is meritorious.\u201d Plaintiffs argued that the court should deny defendants\u2019 motion for partial summary judgment because the question of the hypothetical outcome of the County\u2019s dismissed appeal was a question of fact for the jury.\nOn October 17, 2003, after a hearing, the trial court ruled that the question of proximate cause in the instant appellate malpractice case is a question of law that should be decided by the court. Specifically, the court stated \u201cit is my view after reading everything here and relying in part on the [Environmental Control Systems, Inc. v. Long, 301 Ill. App. 3d 612, 703 N.E.2d 1001 (1998),] case and on the Michigan [Charles Reinhart Co. v. Winiemko, 444 Mich. 579, 513 N.W.2d 773 (1994),] case, that [a]ppellate malpractice is a law issue which inherently deprives a plaintiff of a jury trial, as plaintiff suggests, because juries should not be deciding whether or not a party has established it is more likely than not that an [a]ppellate [c]ourt would do something.\u201d Following the ruling, the parties agreed that the trial court would set the case for an oral argument consistent with an appellate oral argument and that the court would confine its review to the written briefs that were filed during the dismissed appeal.\nOn January 16, 2004, the trial court held a hearing, and the parties advocated the immunity arguments that had been presented in the appellate briefs to the Second District Appellate Court. On March 17, 2004, the trial court issued a written opinion granting defendants\u2019 partial summary judgment motion, finding plaintiffs\u2019 malpractice action lacked the proximate cause element. The court in its order stated as follows: \u201cthis court agrees with the defendant[s]\u2019 argument that *** plaintiffs are asking this court [to] ignore the language in [section] 3 \u2014 104 [of the Tort Immunity Act] which protects municipalities only from the failure to initially provide traffic[-]control devices. The protection in [section] 3 \u2014 104 [of the Tort Immunity Act] refers [sic] to a lack of traffic[-]control devices at the particular intersection or roadwayt,] not the incorrect placement of those devices.\u201d The court concluded that \u201cif [the] County failed to stripe at all [it] would have an immunity under [section] 3 \u2014 104 [of the Tort Immunity Act], but when [it] acted by striping the road[,] [it] had an obligation to do so in compliance with MUTCD and [it] did not. Therefore, the trial court was correct in denying the *** County [the section] 3 \u2014 104 immunity. Further, the Second District Appellate Court, in reviewing *** [the trial court\u2019s] ruling de novo, would have affirmed [the trial court\u2019s] decision on immunity.\u201d This appeal followed.\nII. ANALYSIS\nOn appeal, plaintiffs argue that (1) the trial court erred in its ruling that the issue of proximate cause in appellate malpractice cases was a question of law; and (2) assuming the proximate cause issue was a question of law, the court erred in its finding that the proximate cause element was lacking.\nA. Proximate Cause Issue Was an Issue of Law\nIn contending that the trial court erroneously determined that the proximate cause issue in appellate malpractice cases was a question of law, plaintiffs argue that such an issue presented a \u201chypothetical factual inquiry\u201d and was not, as the trial court determined, \u201ca law issue which inherently deprives a plaintiff of a jury trial.\u201d\nAs plaintiff correctly points out, Illinois courts have established that in legal malpractice actions, the issue of proximate causation is generally a question of fact to be decided by the trier of fact. See Shehade v. Gerson, 148 Ill. App. 3d 1026, 1031, 500 N.E.2d 510, 513 (1986); Gelsomino v. Gorov, 149 Ill. App. 3d 809, 815, 502 N.E.2d 264, 268 (1986); Renshaw v. Black, 299 Ill. App. 3d 412, 417-18, 701 N.E.2d 553, 557 (1998); Environmental Control Systems, 301 Ill. App. 3d at 621, 703 N.E.2d at 1008. Plaintiffs argue that in this case, the question of whether the alleged appellate malpractice proximately caused plaintiffs\u2019 damage was also an issue of fact, and as such, it should have been resolved by the jury. Defendants, however, contend that the proximate cause issue was a question of law because the underlying issue in this case was a question of law and the application of principles of law is inherently a judicial function. We agree with defendants.\nAs this court stated in Nika v. Danz, 199 Ill. App. 3d 296, 308, 556 N.E.2d 873, 882 (1990), to succeed in a cause of action for legal malpractice, a plaintiff must prove that but for the defendant\u2019s attorney\u2019s negligence, he would have been successful in the prosecution or defense of a cause of action involving a third party. The accepted procedure for presenting evidence regarding the underlying action in a legal malpractice action is known as a \u201c \u2018suit within a suit\u2019 \u201d or \u201c \u2018trial-within-a-trial.\u2019 \u201d Danz, 199 Ill. App. 3d at 308, 556 N.E.2d at 882, quoting 2 R Hallen & J. Smith, Legal Malpractice \u00a7 27.7, at 641 (3d ed. 1989). The objective of such a procedure is to \u201cestablish what the result should have been, had the case been filed.\u201d (Emphasis in original.) Danz, 199 Ill. App. 3d at 308, 556 N.E.2d at 882.\nIn this case, the alleged malpractice involves defendants\u2019 attorneys\u2019 failure to perfect an appeal. For plaintiffs to succeed, they must demonstrate that but for defendants\u2019 failure, the Second District Appellate Court would have found the Tort Immunity Act protected the County from the verdict. As such, the success of plaintiffs\u2019 claim rests upon the question of how the Second District Appellate Court would have interpreted the Tort Immunity Act. Such a determination must be based on the premise that the Second District Appellate Court would have correctly applied the Tort Immunity Act. Therefore, the determination of what the Second District Appellate Court would have done can only be based on an analysis of what it should have done.\nThis question, how the Second District Appellate Court should have interpreted the Tort Immunity Act, is a question of law for the court because the Illinois Constitution places the exclusive and entire judicial power in the Illinois court system and the application and construction of state laws is inherently a judicial function. See Ill. Const. 1970, art. VI, \u00a7 1; People v. Bruner, 343 Ill. 146, 158, 175 N.E. 400, 405 (1931); Agran v. Checker Taxi Co., 412 Ill. 145, 149, 105 N.E.2d 713, 715 (1952). In the instant case, the trial court\u2019s determination of the correct interpretation of the Tort Immunity Act and whether the County should be immune does not turn on questions of fact. For example, whether defendants told plaintiffs prior to the appeal of the underlying traffic accident case that the appellate court was likely to reverse based upon tort immunity and whether such statement was truthful does not affect the proper application of the Tort Immunity Act. Therefore, the conclusion that the court correctly determined that the proximate cause issue was an issue of law does not deprive the jurors of their role as fact finders. See People v. Blue, 205 Ill. 2d 1, 17, 792 N.E.2d 1149, 1158 (2001).\nMoreover, the question determined by the trial court was not, as plaintiffs contend, \u201cwhether it is more likely than not that an appellate court would rule in Kendall County\u2019s favor.\u201d As discussed above, the correct answer to the question of what the Second District Appellate Court would have done had defendants perfected the appeal lies in the correct application of the relevant law. If the County should not have been afforded protection from the verdict under the Tort Immunity Act, then defendants\u2019 failure to perfect the appeal was not the proximate cause of the County\u2019s damages. Therefore, the question faced by the trial court was not a \u201chypothetical factual question\u201d for the jury as plaintiffs claim; rather, it was a legal question for the court.\nThis conclusion is consistent with the Fifth District Appellate Court\u2019s holding in Environmental Control Systems, 301 Ill. App. 3d 612, 703 N.E.2d 1001, and the Michigan Supreme Court\u2019s holding in Charles Reinhart Co., 444 Mich. 579, 513 N.W.2d 773. In both cases, the courts, in determining whether the defendants\u2019 attorneys\u2019 alleged failure in the appeals of the underlying actions proximately caused the plaintiffs\u2019 damages, concluded that whether the underlying appeals would have been successful involves legal analysis, and such analysis is reserved for the courts.\nThis holding is limited to appellate malpractice actions where the success of the underlying actions rests upon a question of law. The trial court stated in its October 17, 2003, ruling that \u201cappellate malpractice is a law issue which inherently deprives a plaintiff of a jury trial.\u201d That issue is not before this court today, and our affirmation of the court\u2019s order does not extend to that conclusion.\nB. Section 3 \u2014 104 Immunity Does Not Apply to the County\nHaving determined that the proximate cause issue was a question of law, we review de novo whether the trial court correctly awarded summary judgment to defendants on the proximate cause issue. See Sollami v. Eaton, 201 Ill. 2d 1, 6-7, 772 N.E.2d 215, 218 (2002). Specifically, based on the evidence, did the court correctly determine that section 3 \u2014 104 of the Tort Immunity Act did not immunize the County from the jury verdicts?\nSummary judgment is appropriate when \u201cthe pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.\u201d 735 ILCS 5/2 \u2014 1005(c) (West 2002); Sollami, 201 Ill. 2d at 6, 772 N.E.2d at 218. Because summary judgment is a drastic means of disposing of litigation, it should be allowed only when \u201cthe movant\u2019s right to judgment is clear and free from doubt.\u201d Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204, 1209 (1992).\nSection 3 \u2014 104 of the Tort Immunity Act provides as follows:\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 745 ILCS 10/3 \u2014 104 (West 1994).\nIn arguing the trial court erroneously determined that the element of proximate cause was lacking in this case, plaintiffs claim that the above section provided absolute immunity to the County. Plaintiffs acknowledge that the statutory language \u201cinsulates a public body in the initial placement of markings\u201d but not \u201cimproper placement of markings.\u201d Plaintiffs, however, argue that by failing to paint a no-passing line, the County committed a failure of initial placement. Defendants argue that, by painting Galena Road with a skip-dash yellow line that permitted passing, the County committed improper placement of markings. We agree with defendants.\nSection 11 \u2014 304 of the Illinois Vehicle Code (Vehicle Code) provided that when placing local traffic-control devices, local authorities \u201cshall\u201d follow the state manual adopted by the Illinois Department of Transportation (IDOT). 625 ILCS 5/11 \u2014 304 (West 1994). The Illinois Manual on Uniform Control Devices (IMUTCD) consists of the MUTCD and the Illinois Supplement to the MUTCD. The MUTCD states that a normal broken yellow line indicates a two-direction passing zone, and passing is permitted for traffic traveling in either direction. A one-direction no-passing zone indication, on the other hand, includes a normal broken yellow line and a normal solid yellow line, and passing is only permitted for the traffic traveling adjacent to the broken line.\nThe above description is consistent with the Illinois Rules of the Road. Chapter eight of the Illinois Rules of the Road, which covers traffic signals and pavement markings, states as follows: \u201cBROKEN YELLOW LINES separate single lanes of traffic moving in opposite directions. Passing is allowed.\u201d Further, \u201c[w]hen there is a solid and a broken yellow line separating two lanes of traffic moving in opposite directions, you may pass only when the broken yellow line is nearest [to] your lane.\u201d http://www.library.sos.state.il.us/publications/rr/ rr_chap08.html (visited January 13, 2005). The above regulations clearly establish that, contrary to the dissent\u2019s statement that \u201c[i]t is incorrect to say that a broken yellow line is a passing zone\u201d (356 Ill. App. 3d at 277), a broken yellow line does indicate a passing zone. Such an indication exists regardless of whether a driver can pass on a roadway without a centerline. See 356 Ill. App. 3d at 277. Therefore, a broken yellow line, by itself, is a traffic-control device. On the other hand, a solid yellow line, by itself, is not a traffic device, as both the IMUTCD and the Illinois Rules of the Road have established that a one-way no-passing-allowed signal must include both a broken yellow line and a solid yellow line, and a two-way no-passing-allowed signal has two solid yellow lines.\nAs Gesell testified at trial, he passed another vehicle in the westbound lane based on the passing-permitted signal then existing on Galena Road and collided head-on with Sandra Wittenmyer\u2019s vehicle. As a result of the collision, Sandra Wittenmyer suffered severe and permanent injuries, and a jury later found the County 80% at fault. These facts demonstrate that, despite the dissent\u2019s assertion that \u201c[t]he absence of the solid yellow line does not interfere with the integrity of the broken yellow line\u201d (356 Ill. App. 3d at 277-78), such an absence gave the erroneous traffic indication on Galena Road and caused the accident. Further, the markings on the road indicated that passing was allowed, and therefore the County\u2019s underlying liability did not result from its failure to indicate whether passing was allowed. On the contrary, the County\u2019s liability stemmed from its placement of an erroneous traffic signal indicating passing was allowed. Such an error was an \u201cimproper placement\u201d and not an \u201cinitial failure to place.\u201d\nPlaintiffs also argue the Supreme Court of Illinois\u2019s decisions in West v. Kirkham, 147 Ill. 2d 1, 588 N.E.2d 1104 (1992), support its position that the County was protected by the Tort Immunity Act. In West, the plaintiff suffered an injury when, in the process of making a left turn, her vehicle collided with another vehicle. West, 147 Ill. 2d at 3, 588 N.E.2d at 1105. The plaintiff sued the city of Urbana, Illinois, claiming the city had a statutory duty to provide a left-turn arrow for her direction of traffic. Specifically, the plaintiff argued that because the city had installed a left-turn arrow for traffic traveling in the opposite direction at the intersection where the accident occurred, the city\u2019s error was an \u201cimproper placement.\u201d West, 147 Ill. 2d at 3-4, 588 N.E.2d at 1105. The Supreme Court of Illinois disagreed, finding the plaintiff\u2019s claim fits squarely within the immunity granted by section 3 \u2014 104 of the Tort Immunity Act and the city is not liable for its failure to \u201cprovide a particular traffic device.\u201d West, 147 Ill. 2d at 6, 588 N.E.2d at 1106. Further, the supreme court stated as follows:\n\u201cSection 1 \u2014 101.1 of the Act states the expressed purpose of the Act. According to that section, the Act is intended to \u2018protect local public entities and public employees from liability arising from the operation of government.\u2019 (111. Rev. Stat. 1987, ch. 85, par. 1 \u2014 101.1(a).) The \u2018operation of government\u2019 necessarily encompasses the policy decisions made by a municipality; that is, those decisions which require the municipality to balance competing interests and to make a judgment call as to what solution will best serve each of those interests. The decision whether to install a traffic signal requires the municipal traffic planner to balance a host of competing interests, among them, safety, convenience!],] and cost. *** [T]his is not the sort of decision that should be second-guessed by the courts. Were such second-guessing permitted, the traffic planner would be more concerned with avoiding possible litigation than with using his best judgment to properly balance the competing interests. Thus, instead of seeking the best balance of safety, convenience!],] and cost, the traffic planner would concern himself only with whether it could later be argued that the regulation provided could have possibly been safer. Excessive regulation, with no corresponding gain in safety, convenience!],] or cost efficiency, would be the natural result. The legislature recognized this by enacting section 3 \u2014 104 and expressly immunizing the failure to provide a traffic[-]control device or sign.\u201d West, 147 Ill. 2d at 11-12, 588 N.E.2d at 1109.\nHowever, plaintiffs\u2019 reliance on West is misplaced.\nFirst, unlike the defendant\u2019s alleged failure to install a left-turn signal in West, the County here placed the wrong traffic signal on the road, one that had the opposite traffic-directing function. Since section 3 \u2014 104 of the Tort Immunity Act only protects a municipality\u2019s \u201cfailure to initially provide\u201d a particular traffic device (745 ILCS 10/ 3 \u2014 104 (West 1994)), the County\u2019s mistake here is not protected by this immunity. Second, unlike the West case where the \u201ccreative\u201d plaintiff \u20181 circumvent[ed] section 3 \u2014 104 [of the Tort Immunity Act] by finding *** some other traffic device that was provided,\u201d the County\u2019s mistake in the instant case involved the erroneous painting of one traffic signal, i.e., the centerline of the road. (Emphases in original.) West, 147 Ill. 2d at 10, 588 N.E.2d at 1108. Third, the MUTCD guideline states: \u201cmarkings that are no longer applicable for roadway conditions or restrictions and that might cause confusion for the road user shall be removed or obliterated to be unidentifiable as a marking as soon as practical.\u201d As the record indicates, the County\u2019s failure to correct the passing-permitted indication was not a result of its traffic planner\u2019s balancing \u201ca host of competing interests, among them, safety, convenience^] and cost,\u201d and the County\u2019s liability did not stem from its \u201coperation of government.\u201d West, 147 Ill. 2d at 11, 588 N.E.2d at 1109. Instead, the County\u2019s failure to correct was simply a negligent oversight, and such a failure is not \u201cin itself!,] a decision.\u201d 356 Ill. App. 3d at 278. Because of the above distinctions, to hold the County liable in the instant case does not reflect the type of second-guessing that West prohibits.\nThe above conclusion is further supported by the Supreme Court of Illinois\u2019s holding in Snyder v. Curran Township, 167 Ill. 2d 466, 657 N.E.2d 988 (1995). In Snyder, the supreme court stated that it is the long-standing common-law principle that, \u201calthough a governmental agency has discretion in determining whether to perform a public work or make an improvement, once the decision to perform the work is made, it must be done with reasonable care and in a nonnegligent manner.\u201d Snyder, 167 Ill. 2d at 474-75, 657 N.E.2d at 993. In the instant case, once the decision to repaint the highway following an engineering study was made, the repainting must be done in a non-negligent manner. We agree with the dissent that \u201c[e]very roadway could be made safer.\u201d 356 Ill. App. 3d at 278. However, contrary to the dissent\u2019s interpretation, the County\u2019s liability did not result from its \u201cfailure to build the best possible roadway\u201d (356 Ill. App. 3d at 278) but rather from its failure to paint the road nonnegligently. Such a failure rendered the initial-failure-to-place immunity inapplicable.\nTo conclude, the County improperly placed an erroneous passing-permitted signal on Galena Road. Because the clear language of section 3 \u2014 104 of the Tort Immunity Act only protects the County from its initial failure of placement, the County is not immune from its improper-placement liability. The trial court, therefore, correctly granted summary judgment to defendants on the proximate cause issue.\nIII. CONCLUSION\nFor the reasons stated, we affirm the trial court\u2019s judgment.\nAffirmed\nKNECHT, J., concurs.", "type": "majority", "author": "JUSTICE MYERSCOUGH" }, { "text": "PRESIDING JUSTICE COOK,\ndissenting:\nI respectfully dissent. I disagree that the County\u2019s actions were not covered by section 3 \u2014 104 immunity.\nStandard roadways in Kendall County have broken yellow center-lines. A no-passing zone is created by the addition of a solid yellow line. There was never a solid yellow line at the scene of this accident. It is clear that the County\u2019s failure to designate this area as a no-passing zone, its failure to paint a solid yellow line, was \u201cthe failure to initially provide\u201d a regulatory traffic-control device, for which section 3 \u2014 104 affords immunity.\nThe majority seeks to avoid section 3 \u2014 104 by semantics, the argument being that the County did not initially fail to place a no-passing zone, it \u201cimproperly placed\u201d a passing zone (the standard broken yellow centerline). (Emphasis added.) 356 Ill. App. 3d at 276. Under similar logic, the failure to place a reduced-speed sign is actually the placement of a continued-speed sign. That logic is contrary to the express language of section 3 \u2014 104. See 745 ILCS 10/3 \u2014 104 (West 1994) (\u201cspeed restriction signs\u201d). The majority\u2019s decision is contrary to West. \u201cThe creative plaintiff, seeking to premise an action on the failure to provide a particular traffic device, could always circumvent section 3 \u2014 104 by finding and pointing out some other traffic device that was provided.\u201d (Emphases in original.) West, 147 Ill. 2d at 10, 588 N.E.2d at 1108.\nIt is incorrect to say that a broken yellow line is a passing zone. Rather, the absence of a solid yellow line is a passing zone. Even a roadway without a centerline is a passing zone. All sorts of conduct is allowed on roadways with broken yellow lines: driving the maximum speed is allowed, nighttime driving is allowed, and truck traffic is allowed, to give just a few examples. But we would not say that a broken yellow line is a maximum-speed-permitted line, or a nighttime-driving-permitted line, or a truck-traffic-permitted line. It is true that a municipality is not allowed to put up half a sign. For example, a municipality is not allowed to provide a green light for east-west traffic at an intersection without providing a red light for north-south traffic. This case involves nothing like that, however. The absence of the solid yellow line does not interfere with the integrity of the broken yellow line. In like manner, the installation of a left-turn signal for northbound traffic does not require the installation of a left-turn signal for southbound traffic. See West, 147 Ill. 2d at 10, 588 N.E.2d at 1108. A northbound left-turn signal can be operated without the installation of a southbound left-turn signal.\nThe MUTCD guidelines do note that passing is permitted where there is a broken yellow centerline, but that reference seems to be one of emphasis, in a section designed to clarify passing and nonpassing situations. Even if the drafters of the guidelines intended their language to control this case in the manner suggested by the majority, I am unaware of any authority that allows the MUTCD guidelines to overrule the statutory tort immunity of section 3 \u2014 104. The majority asserts that once the roadway was repainted after the MUTCD guidelines were changed in 1984, \u201cthe repainting must be done in a nonnegligent manner.\u201d 356 Ill. App. 3d at 276. The change in guidelines suggests that the length of no-passing zones is a matter of debate. In any event, this is not a case where the County installed the wrong no-passing zone. This is a case where the County did not put in a no-passing zone at all. The majority assumes that the County did not engage in any decision-making in determining not to install a no-passing zone at this location. I suggest the majority has it backward; the failure to religiously keep up with the most recent MUTCD guidelines is in itself a decision. Informal decisions are still decisions; decision-making does not require a committee hearing and vote.\nThis court has previously attempted to read the words \u201cfailure to initially provide regulatory traffic[-]control devices\u201d out of section 3 \u2014 104 (745 ILCS 10/3 \u2014 104 (West 1994)). Snyder v. Curran Township, 267 Ill. App. 3d 174, 641 N.E.2d 3 (1994). The supreme court told us we were wrong. See Snyder, 167 Ill. 2d at 477, 657 N.E.2d at 994 (\u201cstrictly the province of the General Assembly\u201d); Corning v. East Oakland Township, 283 Ill. App. 3d 765, 769-71, 670 N.E.2d 350, 353-54 (1996). Immunity for failure to act is essential to the operation of government. Every roadway could be made safer. Two-lane roadways could be made four-lane. Four-lane roadways could be divided. Stop signs could be replaced with stoplights. If there is liability for failure to build the best possible roadway, the municipality\u2019s only choice may be not to build the roadway. That decision, of course, carries its own consequences. See Tinder v. Illinois Power Co., 325 Ill. App. 3d 606, 610, 758 N.E.2d 483, 487 (2001) (not a breach of duty to supply electricity; benefits outweigh disadvantages). Is the community better served by a two-lane unlighted roadway or no roadway at all? Allowing the imposition of liability because something more could have been added creates a staggering burden for municipalities.\nOne way for the County to avoid liability for the failure to establish no-passing zones is to put them everywhere. As West points out, that is exactly what section 3 \u2014 104 was designed to prevent. \u201cWere such second-guessing permitted, the traffic planner would be more concerned with avoiding possible litigation than with using his best judgment to properly balance the competing interests.\u201d West, 147 Ill. 2d at 12, 588 N.E.2d at 1109. \u201cThe decision whether to install a traffic signal requires the municipal traffic planner to balance a host of competing interests, among them, safety, convenience^] and cost.\u201d West, 147 Ill. 2d at 11, 588 N.E.2d at 1109. Safety is only one of the factors that may be considered. It should not make any difference that a municipality could have laid out a road better; the question is whether there was something wrong in what it did. Once a municipality has provided a traffic-regulating device, it has a duty to maintain that device in a reasonably safe condition. The failure to initially provide a device, however, cannot be the basis for liability.", "type": "dissent", "author": "PRESIDING JUSTICE COOK," } ], "attorneys": [ "Steven D. Pearson (argued), Peter Petrakis, and Omar S. Odland, all of Meckler, Bulger & Tilson, L.L.E, of Chicago, and Brian E Thielen, of Thielen Law Offices, of Bloomington, for appellants.", "Robert Marc Chemers and David S. Osborne (argued), both of Pretzel & Stouffer, Chtrd., of Chicago, for appellees Mary E. Dickson and Bond, Mork & Dickson, EC.", "Feter A. Monahan (argued) and Patricia M. Noonan, both of Alholm, Monahan, Klauke, Hay & Oldenburg, of Chicago, for other appellees." ], "corrections": "", "head_matter": "GOVERNMENTAL INTERINSURANCE EXCHANGE, on Its Behalf and as Subrogee of Kendall County, Illinois, et al., Plaintiffs-Appellants and Cross-Appellees, v. JAY S. JUDGE, Indiv., et al., Defendants-Appellees and Cross-Appellants.\nFourth District\nNo. 4\u201404\u20140331\nArgued December 14, 2004.\nOpinion filed March 16, 2005.\nRehearing denied April 21, 2005.\nCOOK, EJ., dissenting.\nSteven D. Pearson (argued), Peter Petrakis, and Omar S. Odland, all of Meckler, Bulger & Tilson, L.L.E, of Chicago, and Brian E Thielen, of Thielen Law Offices, of Bloomington, for appellants.\nRobert Marc Chemers and David S. Osborne (argued), both of Pretzel & Stouffer, Chtrd., of Chicago, for appellees Mary E. Dickson and Bond, Mork & Dickson, EC.\nFeter A. Monahan (argued) and Patricia M. Noonan, both of Alholm, Monahan, Klauke, Hay & Oldenburg, of Chicago, for other appellees." }, "file_name": "0264-01", "first_page_order": 282, "last_page_order": 297 }