NO. 4-96-0168
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
DEANNA CORNING, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Coles County
EAST OAKLAND TOWNSHIP, ) No. 95L77
RANDY STRADER, and COLES COUNTY, )
Defendants-Appellees. ) Honorable
) Paul C. Komada,
) Judge Presiding.
_________________________________________________________________
PRESIDING JUSTICE COOK delivered the opinion of the
court:
Plaintiff Deanna Corning was injured when she drove her
automobile through a rural "T" intersection and into a ditch.
Plaintiff filed a complaint against defendants East Oakland
Township, Randy Strader (the township's road supervisor), and
Coles County, alleging that her injuries resulted from defen-
dants' failure to maintain the intersection in a reasonably safe
condition. Specifically, plaintiff alleged that the intersection
had become unreasonably dangerous because a stop sign erected by
defendants had been removed by persons unknown and not replaced.
Defendants moved to dismiss the complaint, contending that they
were shielded from liability under sections 2-201 and 3-104 of
the Local Governmental and Governmental Employees Tort Immunity
Act (Act) (745 ILCS 10/2-201, 3-104 (West 1994)). The trial
court dismissed the complaint with prejudice. We reverse and
remand.
For purposes of review of the complaint's legal suffi-
ciency, we take all well-pleaded facts as true. Straub v. City
of Mt. Olive, 240 Ill. App. 3d 967, 973, 607 N.E.2d 672, 676
(1993). The accident occurred at approximately 1:47 a.m. on
August 4, 1994, at the intersection of county roads 2050 North
and 2400 East. County Road 2050 North runs north-south for a
short distance, then curves to the west for northbound traffic
approximately 200 yards to the east of its intersection with 2400
East. Defendants erected an arrow sign to indicate that the road
curves. At the point of intersection, 2400 East runs north-south
and 2050 North runs east-west. The roads come together as a "T,"
with 2050 North temporarily ending at the intersection. A
drainage ditch runs parallel to 2400 East on the road's west
side. At the time of the accident, the intersection was unlit
and obscured from motorists' view by tall corn growing in the
surrounding fields.
Defendants had erected a stop sign at the intersection
for westbound travelers on 2050 North, but it had been removed by
persons unknown. The sign post was left standing. Plaintiff
does not know how long the sign was missing, but she alleges that
it was missing a sufficient period of time that defendants should
have discovered its absence during the normal course of road
maintenance. Without a stop sign, the intersection became
dangerous because motorists were likely to drive straight
through. Plaintiff, who was unfamiliar with the roads, drove
through the intersection and into the drainage ditch parallel to
2400 East.
Plaintiff alleged, inter alia, that defendants breached
the following duties: (1) they failed to exercise ordinary care
to maintain the intersection, (2) they failed to have a reason-
able inspection system of signs and traffic control devices, (3)
they failed to maintain the stop sign in a legible manner, (4)
they failed to discover that the sign was missing, (5) they
failed to replace the stop sign, (6) they failed to erect the
stop sign in such a manner to make its removal by vandals or acts
of nature unlikely, and (7) they failed to warn plaintiff of the
dangerous condition caused by the missing sign by posting barri-
cades or other traffic control devices. The complaint contained
two counts against each defendant, one premised on negligence,
the other premised on wilful and wanton misconduct.
The trial court found that the Act afforded defendants
immunity, and it dismissed the complaint. It is unclear whether
the court believed the defendants immune under section 2-201,
section 3-104, or both. 745 ILCS 10/2-201, 3-104 (West 1994).
We hold that section 2-201 is inapplicable, and section 3-104
provides defendant with only a partial shield.
The Act governs the tort liability of local government
entities and their employees. The Act confers no new duties;
rather, it delineates certain immunities. West v. Kirkham, 147
Ill. 2d 1, 14, 588 N.E.2d 1104, 1110 (1992). Not all common law
duties are abrogated by the Act. Section 3-102 codifies the
common law duty of local public entities to maintain their
property in reasonably safe condition. Swett v. Village of
Algonquin, 169 Ill. App. 3d 78, 92, 523 N.E.2d 594, 604 (1988).
The common law duty to maintain did not extend to creating or
erecting public improvements. West, 147 Ill. 2d at 14, 588
N.E.2d at 1110. However, once having undertaken the construction
of public highways and traffic control devices, public entities
have a duty to install and maintain them with reasonable care.
Ellison v. Village of Northbrook, 272 Ill. App. 3d 559, 563, 650
N.E.2d 1059, 1062 (1995).
Plaintiff has adequately alleged that she was injured
as a proximate result of defendants' failure to maintain their
stop sign. Defendants contend, however, that their failure to
maintain and replace the missing sign was a discretionary act,
and such exercises of discretion are afforded immunity under the
Act.
Sections 2-109 and 2-201 of the Act provide:
"A local public entity is not liable for
an injury resulting from an act or omission of
its employee where the employee is not liable."
745 ILCS 10/2-109 (West 1994).
"Except as otherwise provided by Statute,
a public employee serving in a position in-
volving the determination of policy or the
exercise of discretion is not liable for an
injury resulting from his act or omission in
determining policy when acting in the exer-
cise of such discretion even though abused."
745 ILCS 10/2-201 (West 1994).
The common law recognized a distinction between discre-
tionary duties, the negligent performance of which does not
subject a government entity to tort liability, and ministerial
duties, the negligent performance of which can subject a munici-
pality to tort liability. Snyder v. Curran Township, 167 Ill. 2d
466, 473, 657 N.E.2d 988, 992 (1995). Section 2-201 of the Act
has been interpreted to be a codification of this common law
distinction. Snyder, 167 Ill. 2d at 473, 657 N.E.2d at 992.
Discretionary acts are those which are unique to the particular
public office and involve the exercise of judgment, while minis-
terial acts are those performed in a prescribed manner, in
obedience to the mandate of legal authority, without regard to
the exercise of discretion as to the propriety of the acts being
done. Kennell v. Clayton Township, 239 Ill. App. 3d 634, 639,
606 N.E.2d 812, 816 (1992).
In Snyder, the supreme court held that the Illinois
Manual on Uniform Traffic Control Devices (92 Ill. Adm. Code
§546.100 et seq. (Supp. 1986)) mandated placement of a warning
sign in a certain location, and thus the defendant township was
without discretion to place the sign elsewhere. Snyder, 167 Ill.
2d at 475, 657 N.E.2d at 993. Defendants maintain that because
no regulations govern the maintenance and replacement of stop
signs, their failure to maintain and replace the missing sign was
an act of discretion.
Defendants' argument contains a fatal flaw. Here,
plaintiff has alleged that the intersection became unreasonably
dangerous when the sign was stolen without defendants' knowledge
or authority. "Discretion" connotes a conscious decision.
Defendants exercised discretion in deciding to erect a stop sign;
nothing indicates they decided to remove it. Arguably, the
decision not to maintain or inspect their property was an act of
discretion, but this is "an impermissibly expansive definition of
discretionary immunity." Snyder, 167 Ill. 2d at 472, 657 N.E.2d
at 992. Every failure to maintain property could be described as
an exercise of discretion under defendants' expansive approach.
We do not believe that the legislature intended such a result,
otherwise it would not have codified the common law duty to main-
tain property under section 3-102 of the Act. 745 ILCS 10/3-102
(West 1994).
This does not mean that once a public entity erects a
sign it may never exercise its discretion to remove it. In
Robinson v. Atchison, Topeka & Santa Fe Ry. Co., 257 Ill. App. 3d
772, 629 N.E.2d 209 (1994), the third district upheld summary
judgment in favor of the defendant township because it had
exercised its discretion in removing a sign. The plaintiffs were
injured in a collision at a railroad crossing. The evidence
established that the defendant had posted a warning sign 10 years
earlier but no sign was in place for at least three years prior
to the accident. Under these facts, the court concluded that
plaintiff failed to establish that defendants were maintaining a
warning sign in proper repair. The court wrote:
"What the plaintiffs are essentially arguing
is that, because the township once had a warning
sign on 15th Road, it is now forever required
to have one there. As previously noted, the
decision whether to place a railroad advance
warning sign on a parallel road is discretion-
ary. Likewise, the decision to remove such a
sign would also be discretionary. This is not
a case in which a warning sign had fallen into
a state of disrepair or had fallen over."
Robinson, 257 Ill. App. 3d at 776, 629 N.E.2d
at 212.
Robinson suggests that in a case where a sign has fallen into
disrepair, discretionary immunity would not apply. That is
essentially what plaintiffs have alleged here: the stop sign
fell into disrepair because of vandalism. As we take the well-
pleaded facts as true, there is no basis to conclude that defen-
dants exercised their discretion in removing the stop sign. This
does not mean that defendants cannot establish discretionary
immunity under any set of facts. We simply hold that dismissal
on the pleadings pursuant to section 2-201 of the Act was improp-
er.
Defendants next contend that because under section 3-
104 of the Act they had no duty to erect a stop sign, they cannot
be held liable for injuries resulting from a sign's absence.
Plaintiff maintains that once defendants have undertaken to erect
a sign, they may be liable for inadequate maintenance of that
sign.
Section 3-104 of the Act provides:
"Neither a local public entity nor a pub-
lic employee is liable under this Act for an
injury caused by the failure to initially pro-
vide regulatory traffic control devices, stop
signs, yield right-of-way signs, speed restric-
tion 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." (Emphasis added.) 745 ILCS
10/3-104 (West 1994).
The crux of the dispute is what effect, if any, should
be given the word "initially" in section 3-104 of the Act. 745
ILCS 10/3-104 (West 1994). In West, the plaintiff sued a munici-
pality after being injured in a collision at an intersection.
The municipality had installed a left-turn traffic signal for
northbound traffic, but it had not installed such a signal for
southbound traffic. The plaintiff alleged she was injured as a
result of the municipality's failure to provide a turn signal for
southbound traffic, and that the municipality was no longer
immune under section 3-104 of the Act once it had initially
undertaken to provide a signal for northbound traffic. The
supreme court disagreed and held that the municipality was immune
under section 3-104 for its failure to install another traffic
signal. The court reasoned, "[t]he creative plaintiff, seeking
to premise an action on the failure to provide a particular
traffic device, could always circumvent section 3-104 by finding
and pointing out some other traffic device that was provided."
(Emphasis in original.) West, 147 Ill. 2d at 10, 588 N.E.2d at
1108.
Relying in part upon West, Presiding Justice Steigmann
concluded that a proper construction of section 3-104 of the Act
requires that the word "initially" simply be read out of the
statute. Gapinske v. Town of Condit, 250 Ill. App. 3d 1045,
1049, 619 N.E.2d 1383, 1386 (1993). Under the broad reading of
section 3-104 announced in Gapinske, a sign's absence could never
form the basis of liability for a public entity, regardless of
whether that public entity had ever undertaken to provide a sign.
Justice Lund dissented, arguing that once a government body
decided to provide a sign, it had a duty to install and maintain
it in a reasonably safe condition. Gapinske, 250 Ill. App. 3d at
1051-53, 619 N.E.2d 1387-89 (Lund, J., dissenting). See also
Gapinske, 250 Ill. App. 3d at 1050-51, 619 N.E.2d at 1387 (Cook,
J., specially concurring) ("The word [initially] may be used to
distinguish between the failure to initially provide a sign, for
which there is immunity, and the failure to replace a damaged or
stolen sign, for which there may be liability under the town's
duty to maintain its property").
We conclude the broad reading of section 3-104 an-
nounced in Gapinske is no longer viable because the supreme court
has indicated in Snyder that the word "initially" is to be given
effect. The court wrote:
"[T]he crux of defendant's oral argument was
that it is illogical for the Immunity Act to
absolutely immunize a public entity's initial
failure to erect a traffic warning device (see
745 ILCS 10/3-104 (West 1992); West[, (147
Ill. 2d 1, 588 N.E.2d 1104)]), but fail to
extend this absolute immunity once the traffic
warning device is erected. What defendant
and the appellate court failed to recognize,
however, is that it is not for the courts to
extend this statutory immunity or to fill the
perceived interstices of the Immunity Act:
that is strictly the province of the General
Assembly." Snyder, 167 Ill. 2d at 477, 657
N.E.2d at 994.
See also Jefferson v. City of Chicago, 269 Ill. App. 3d 672, 678,
646 N.E.2d 1305, 1310 (1995) (holding that nothing in the West
decision justifies Gapinske's excision of the word "initially"
from section 3-104).
Defendants cite Culver v. Velcor, 247 Ill. App. 3d 589,
616 N.E.2d 1013 (1993), for the proposition that section 3-104 of
the Act immunizes a public entity's decision not to maintain and
replace a sign that it had erected. Properly understood, Culver
stands for the opposite proposition. In Culver, the State of
Illinois erected and maintained a stop sign at an intersection.
The sign was knocked down or removed. As a result, plaintiff
drove through the intersection and collided with another vehicle.
Plaintiff sued the county, alleging that the county failed to
erect another sign or warning devices. The second district held
that the county was immune under section 3-104 because it never
initially erected the sign. That decision was made by the State.
The Culver decision suggests that had the county initially
provided the sign, it could be liable for its failure to maintain
it. Culver, 247 Ill. App. 3d at 596, 676 N.E.2d at 1017-18.
Here, defendants initially provided a stop sign. Had
they not done so, they could not be held liable for not posting a
sign at a dangerous intersection. Once the decision to post a
sign was made, they had a duty to maintain the sign with reason-
able care. Under West, however, they had no duty to erect addi-
tional warning devices simply because they erected the stop sign.
The trial court properly struck those counts of the complaint
which allege defendants failed to warn plaintiff of the missing
sign by posting barricades or other traffic control devices, but
those counts premised on a failure to maintain the stop sign
should not have been dismissed.
Reversed and remanded for further proceedings in
accordance with this opinion.
STEIGMANN and KNECHT, JJ., concur.