Billman v. Frenzel Construction Co.

635 N.E.2d 435, 262 Ill. App. 3d 681, 200 Ill. Dec. 96, 1993 WL 524543, 1993 Ill. App. LEXIS 1873
CourtAppellate Court of Illinois
DecidedDecember 20, 1993
DocketNo. 1—91—3574
StatusPublished
Cited by17 cases

This text of 635 N.E.2d 435 (Billman v. Frenzel Construction Co.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Billman v. Frenzel Construction Co., 635 N.E.2d 435, 262 Ill. App. 3d 681, 200 Ill. Dec. 96, 1993 WL 524543, 1993 Ill. App. LEXIS 1873 (Ill. Ct. App. 1993).

Opinion

PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiffs, Pauline Billman and Estel LeRoy Billman, as co-guardians of the estate and person of Thomas Austin McDonald, an incompetent, appeal an order of the circuit court of Cook County granting summary judgment in favor of defendant Frenzel Construction Co. (Frenzel) on count III of plaintiffs’ third amended complaint, which alleged that Frenzel had been negligent in the reconstruction and modification of the intersection at Joliet Road and Route 53 in Romeoville, Illinois (the intersection). For the following reasons, we affirm.

The basic circumstances giving rise to this appeal are largely those recounted in this court’s prior decision of Billman v. Crown-Trygg Corp. (1990), 205 Ill. App. 3d 916, 563 N.E.2d 903. During 1978 and 1979, Frenzel was a general contractor that performed certain construction work in connection with the widening of the portion of Route 53 leading to the intersection. Route 53 intersects Joliet Road at a 60-degree angle from the north and then runs parallel to the west side of Joliet Road as it continues south. Subsequently, on August 22, 1984, plaintiff McDonald, while stopped in his automobile at a stop line in the northbound left-turn lane at the intersection, was struck by an automobile traveling southbound which had crossed over the median strip. The driver of the southbound car, Timothy Bowler, was allegedly intoxicated. McDonald suffered serious head injuries which rendered him comatose and resulted in his being adjudicated incompetent.

On August 22, 1986, plaintiffs filed suit against a number of defendants, alleging negligence. However, this appeal involves only the claim made against Frenzel. Plaintiffs allege that as a general contractor, Frenzel had a duty to refrain from performing work or participating in a construction project when the specifications of that project would make the intersection dangerous and likely to cause or exacerbate personal injuries. Plaintiffs allege that Frenzel breached this duty by leaving the intersection with the following specific conditions: (1) a median strip on southbound Route 53 that was not high enough to prevent the accident, yet high enough to raise the point of impact and increase the damage caused by impact; (2) a circular green traffic signal that may have confused southbound drivers as to whether they could drive straight through the intersection; (3) a lack of left- and right-turn-only designations for southbound Route 53; (4) the extension of the median strip into the intersection; (5) the channelization of traffic on southbound Route 53 directly at northbound cars legally stopped to turn left onto northbound Route 53; (6) the presence of a private road intersecting from the east, creating confusion as to whether traffic on southbound Route 53 could proceed straight through the intersection; (7) the presence of a "T-intersection” sign facing southbound traffic on Route 53; (8) the failure to place the stop line for northbound traffic at least four feet from the nearest edge of the intersecting highway; (9) inadequate night lighting; and (10) improper placement of improper traffic signal lights.

Frenzel moved for summary judgment, contending that the intoxicated driving of Timothy Bowler was the sole proximate cause of McDonald’s injuries and that Frenzel owed no duty to McDonald because Frenzel’s work complied with plans and specifications prepared and approved by the Illinois Department of Transportation (IDOT) and the Federal government.

The parties marshalled evidence in support of their respective positions. On appeal, the parties focus upon evidence taken from Robert Lippman and Lawrence Kory. The record contains the affidavit of Robert Lippman, who indicated that he was a civil engineer and registered land surveyor who had specialized in road building and design since 1952. Lippman indicated that he could testify as to conclusions he drew in a letter to plaintiff’s attorney, based on a review of the intersection and other materials upon which experts would rely in determining the circumstances of a road accident. The record contains this letter, which discusses and criticizes the design of the intersection. In the letter, Lippman opines that Frenzel was responsible for the repaving and remarking of the portion of southbound Route 53 northwest of the intersection. Lippman opines that while defects in the design and geometry of the intersection were not apparent when the project was bid, a contractor of Frenzel’s experience knew or should have known once the work started that it would not be sufficient to make the intersection reasonably safe and that the proposed work was dangerous and likely to cause injury. Lippman opined that Frenzel should have notified the State of observable defects such as the lack of redundant left- and right-turn markings. Lippman indicated that it was obvious that the median would be inside the intersection and not only foreseeable but inevitable that a driver would strike and travel over the median. Lippman also indicated that his analysis of traffic reports and statistics showed that the frequency of similar accidents decreased after right-turn-only marking signs were added in 1985.

The record also contains the deposition of Lawrence Kory, who was then president of Frenzel. Kory indicated that he had visited the intersection weekly during the period that Frenzel was working on the site. Kory also indicated that he was observing the general progress of the job; Kory was not an engineer and IDOT had an engineer on site to inspect the work. Kory stated that any change in specifications required the approval of the State or governing body. Kory indicated that while most of Frenzel’s work involved widening Route 53 from two to four lanes northwest of the intersection, Frenzel did work in the intersection, particularly to tie the new work into existing conditions. Frenzel repaved a northwestern portion of the intersection, did work on drainage, ditch regrading, curb and gutter work on the northwest side of the intersection and relocated the foundation for a traffic light. Kory further indicated the area in which Frenzel worked on a diagram of the intersection; this diagram appears in the record.

The record further contains the deposition of Timothy Bowler, the driver of the car that struck McDonald’s car. Bowler admitted that he was drunk at the time of the accident. Bowler also indicated that he had pleaded guilty to driving while intoxicated in connection with this incident.

Bowler initially indicated that he had been in the right-hand lane of Route 53 as he approached Joliet Road, but then indicated that he was not sure that he was in the right-hand lane. Bowler assumed from the way the accident happened that he must have been making a right turn. Bowler did not remember whether he intended to make a turn. Bowler did not have a recollection of where his car was with reference to the intersection when he attempted to turn at the last minute. Bowler did not remember whether there were traffic signals at the intersection. Bowler did not recall seeing any signs regarding the intersection. Bowler also did not remember where he was coming from at the time of the accident. Bowler did not recall whether he attempted to apply his brakes before his car struck the median strip. Bowler did not recall seeing McDonald’s car at any time before impact.

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Bluebook (online)
635 N.E.2d 435, 262 Ill. App. 3d 681, 200 Ill. Dec. 96, 1993 WL 524543, 1993 Ill. App. LEXIS 1873, Counsel Stack Legal Research, https://law.counselstack.com/opinion/billman-v-frenzel-construction-co-illappct-1993.