Carr v. Shirland Township

384 N.E.2d 449, 66 Ill. App. 3d 1033, 23 Ill. Dec. 655, 1978 Ill. App. LEXIS 3768
CourtAppellate Court of Illinois
DecidedDecember 13, 1978
Docket77-404
StatusPublished
Cited by19 cases

This text of 384 N.E.2d 449 (Carr v. Shirland Township) 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
Carr v. Shirland Township, 384 N.E.2d 449, 66 Ill. App. 3d 1033, 23 Ill. Dec. 655, 1978 Ill. App. LEXIS 3768 (Ill. Ct. App. 1978).

Opinion

Mr. JUSTICE WOODWARD

delivered the opinion of the court:

Plaintiff, Thomas J. Carr, brought this four-count complaint against John A. Roessell (Roessell), Winnebago County and Shirland Township (Shirland), for personal injuries suffered in an automobile collision. Counts I and II alleged that Roessell was guilty of negligence and willful and wanton conduct respectively; count III alleged that Winnebago County was guilty of negligence; and count IV alleged that Shirland was guilty of negligence. After Shirland filed an answer to the complaint, plaintiff, with leave of court, amended count IV to include the allegation that Shirland was covered by liability insurance at the time of the collision; Shirland, in answer to plaintiff’s amended count IV, admitted same. Shirland then filed a motion for judgment on the pleadings. The trial court held that count IV failed to allege a cause of action against Shirland and granted the motion. Plaintiff appeals.

All counts of plaintiff’s complaint alleged that he was a passenger in a car driven by Roessell; that Roessell was proceeding in a southerly direction on Hauley Road just north of its intersection with Yale Bridge Road; that at the same time one James C. Jacobson was driving a pickup truck in an easterly direction on Yale Bridge Road just west of its intersection with Hauley Road; that Yale Bridge Road was a through street at said intersection since there was a stop sign on Hauley Road for traffic proceeding in a southerly direction; that Roessell drove his car into said intersection without stopping and collided with Jacobson’s pickup truck. Count I of the complaint then alleged that Roessell was guilty of the following acts of negligence:

“a. That he drove said car at a speed that was greater than was reasonable and proper in violation of Chapter 95M, Section 11— 601, Illinois Revised Statutes, 1975.
b. That he drove said car at a speed greater than 55 m.p.h., in violation of Chapter 95/2, Section 11 — 601, Illinois Revised Statutes, 1975.
c. That he failed to decrease his speed as he approached said intersection.
d. That he failed to stop and yield the right-of-way to the Jacobson pickup truck in violation of Chapter 95%, Section 11— 904(b), Illinois Revised Statutes, 1975.
e. That he failed to decrease the speed of his vehicle to avoid colliding with the Jacobson pickup truck.
f. That he failed and omitted to keep a proper lookout.
g. That he failed and omitted to have and keep his vehicle under due and proper control.”

Count I went on to allege that plaintiff’s injuries were the proximate result of Roessell’s acts of negligence. Count II alleged the same facts but alleged that Roessell was guilty of willful and wanton conduct.

In count IV of the amended complaint plaintiff alleged that Shirland was guilty of one or more of the following acts of negligence:

“a. Allowed the ‘Stop Ahead’ sign on Hauley Road just north of its intersection with Yale Bridge Road to remain down even though it knew, or should have known, it was down.
b. Failed to place or maintain the ‘Stop’ sign on Hauley Road at its intersection with Yale Bridge Road at a proper height.
c. Failed to use a reflectorized ‘Stop’ sign on Hauley Road at its intersection with Yale Bridge Road.
d. Failed to light the intersection in question.
e. Failed to properly patrol or periodically police the intersection in question.
f. Failed to inform the defendant, WINNEBAGO COUNTY, of the problems referred to in Subparagraphs a. through d. above.”

Count IV goes on to allege that as a direct and proximate result of one or more of these acts of negligence on the part of Shirland, plaintiff was injured.

It is plaintiff’s position that under the Tort Immunity Act (Ill. Rev. Stat. 1975, ch. 85, par. 1 — 101 et seq.), the allegations of negligence contained in count IV describe ministerial acts to which liability on the part of the local public entity attaches as opposed to discretionary acts which carry no liability (Ill. Rev. Stat. 1975, ch. 85, par. 2 — 201). Further, however, that even if the alleged acts are held to be discretionary, the immunity furnished by the statute would be waived in this case because Shirland was covered by liability insurance at the time of the collision. Ill. Rev. Stat. 1975, ch. 85, par. 9 — 103.

It is well settled that in order to establish a negligence case against a person or entity, four elements must be alleged and proved; namely, a duty owed to the injured party; conduct which breaches that duty; proximate cause between the conduct and the injury; and damage resulting from that conduct. Given the validity of either or any one of plaintiff’s theories as stated above, we are of the opinion that count IV of plaintiff’s complaint does not allege sufficient facts to establish that Shirland’s allegedly negligent acts were the proximate cause of plaintiff’s injuries.

In his complaint, plaintiff alleged that Roessell proceeded into the intersection of Yale Bridge Road and Hauley Road at an excessive speed and without stopping, and thereupon collided with Jacobson’s pickup truck. Further, that Roessell’s failure to stop and yield the right-of-way was in violation of section 11 — 904(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95%, par. 11 — 904(b)) which provides that vehicles entering a stop or yield intersection must stop, ascertain whether there is any approaching traffic, and yield the right-of-way if there is traffic approaching so closely as to constitute a hazardous situation.

However, even accepting as true plaintiff’s allegations that the “Stop Ahead” was down and that the “Stop” sign was not clearly visible due to its height and lack of reflectorization, the facts alleged by plaintiff make it clear that Roessell was also in violation of section 11 — 901(a) (Ill. Rev. Stat. 1975, ch. 95%, par. 11 — 901). Section 11 — 901(a) provides:

“(a) When 2 vehicles approach or enter an intersection from different roadways at approximately the same time, the driver of the vehicle on the left must yield the right-of-way to the vehicle on the right.”

The complaint alleged that Roessell was proceeding in a southerly direction while Jacobson was proceeding east, placing him on Roessell’s right, and therefore even without the presence of the “Stop Ahead” signs or the “Stop” sign, Roessell had a duty to yield the right-of-way to Jacobson’s truck.

“What constitutes proximate cause has been defined in numerous decisions, and there is practically no difference of opinion as to what the rule is.

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Bluebook (online)
384 N.E.2d 449, 66 Ill. App. 3d 1033, 23 Ill. Dec. 655, 1978 Ill. App. LEXIS 3768, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carr-v-shirland-township-illappct-1978.