JUSTICE HEIPLE
delivered the opinion of the court:
Scott DiBenedetto died as a result of a one-car accident which occurred on or about January 25, 1989. Plaintiff, Sandra DiBenedetto, as special administrator of Scott DiBenedetto’s estate, filed a complaint against defendant, Flora Township, to recover damages for Scott’s death.
Plaintiff alleges in her amended complaint, inter alia: that Scott DiBenedetto, decedent, was southbound on Wheeler Road in Flora Township on or about January 25, 1989; his car crossed over the northbound lane, entered the 5- to 7-foot wide shoulder area on the east edge of the paved roadway, crossed over the shoulder, landed in the drainage ditch and immediately overturned killing decedent; the driving conditions were wet, dense fog and complete darkness with no street lighting; the drainage ditch runs parallel to the road, is 5 to 6 feet deep, slopes at a 45- to 90-degree angle off the shoulder of the road, and is within the Wheeler Road right-of-way.
The complaint further alleged that defendant was negligent in that it:
“a. Maintained its right-of-way on Wheeler Road in such a manner as to place or permit to be placed a ditch on its said right-of-way which ditch is a danger to traffic using Wheeler Road by reason of its severe dropoff [sic\ and extreme close proximity to the east edge of the pavement of Wheeler Road.
b. Failed to remedy or correct the condition created in its right-of-way along said Wheeler Road by the existence of said ditch.”
Defendant filed a motion to dismiss the complaint pursuant to section 2 — 615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615). The trial court concluded that the burden which would be imposed upon defendant to make roadside drainage ditches safe for motorists who stray from the traveled way was of such a great magnitude that no duty was owed to plaintiff. The appellate court reversed, with Justice Geiger dissenting, holding that, given the public policy concerns for safe roadways and that it is foreseeable that a motorist will deviate from the roadway, a duty was owed to plaintiff by the defendant township. Additionally, the majority stated that the proximate cause of the accident was a jury question. The Local Governmental and Governmental Employees Tort Immunity Act insulates local public entities from liability arising from injuries caused by the effect of weather conditions on streets, highways, and other public ways. (Ill. Rev. Stat. 1989, ch. 85, par. 3 — 105(a).) The majority noted that in the present case the Tort Immunity Act does not insulate defendant from liability since the complaint does not allege that adverse weather conditions were the sole cause of the accident. (219 Ill. App. 3d 1091.) Justice Geiger, dissenting, concluded that given that decedent’s automobile crossed over the oncoming lane of traffic and a 5- to 7-foot wide shoulder before coming into contact with the drainage ditch, as a matter of law the ditch was not a proximate cause of the accident and the automobile was out of control before reaching the ditch. (219 Ill. App. 3d at 1102 (Geiger, J., dissenting).) We reverse the appellate court and affirm the trial court.
When the legal sufficiency of all or part of a complaint is challenged by a section 2 — 615 motion to strike or dismiss, all well-pleaded facts in the challenged portions of the complaint are to be taken as true and a reviewing court must determine whether the allegations of the complaint, when interpreted in the light most favorable to the plaintiff, are sufficient to set forth a cause of action upon which relief may be granted. A complaint based upon negligence must set forth 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. Whether or not a duty exists is a question of law which will be determined by the courts.
The gist of the complaint in this case was that the ditch along the road was not safe to be driven in. Few would dispute that allegation. The question is, Does the defendant township have a duty to the motoring public to make its drainage ditches which run parallel to the traveled way to be safe for vehicular traffic? We hold not. There is no claim here that the traveled portion of the road, including the shoulder, was anything but safe. The drainage ditch was there for the purpose of receiving surface water and thereby protecting the traveled way from flooding. It was not designed to carry vehicular traffic. The right-of-way had three component parts, namely, the traveled way, the shoulder and the drainage ditch. Each of the parts was fulfilling its intended function. What happened in this case was that decedent, for whatever reason, lost control of his car, drove across an oncoming lane of the roadway, on across the shoulder and into the ditch where his car overturned and he was killed.
It is axiomatic that a driver who leaves the traveled way and continues with his automobile across country is bound to strike something sooner or later. In this case, as there were no oncoming vehicles when he crossed over the opposite lane, the driver plunged into a roadside ditch and tipped over. Had the ditch not been there, the car would have likely struck something else, be it a utility pole, a fence, a tree or whatever. When an out of control automobile is brought to an abrupt stop by an immovable object, damage, injury or even death may be the result. That is what happened in this case. The proximate cause of the accident in this case was not the ditch. The proximate cause of the accident was the loss of control of the vehicle and its being driven off the traveled way.
Drainage ditches along streets and highways are both commonplace and necessary. People are not expected to drive in them and the public cannot be an insurer of those who do. Although there is a paucity of cases on this issue, we interpret that lack to the fact that the conclusion is obvious and that the opposite result would be contrary to normal expectations and experience in the affairs of life.
In 1932, the Kansas Supreme Court determined that the duty of a township to maintain its rural roads and highways in a condition reasonably safe for travel extends only to the improved or traveled portions of such roads and highways. (Arnold v. Board of Commissioners (1932), 135 Kan. 551, 11 P.2d 729.) As the Kansas court noted, it is not incumbent upon a county to keep the full width of its roads open and fit for travel. If a road is open and improved for a sufficient width as to make it reasonably safe and convenient for ordinary travel there is no duty to keep the sides of the traveled way free from obstructions. As long as a sufficient portion of the right-of-way is maintained in a safe and passable condition to serve the reasonable needs of the public in that locality, the fact that outlying and unused portions of the road are impassable or dangerous does not constitute the sort of defect for which a local governmental unit is liable.
Neither a township nor a municipality is an insurer against all accidents occurring on the public way.
Free access — add to your briefcase to read the full text and ask questions with AI
JUSTICE HEIPLE
delivered the opinion of the court:
Scott DiBenedetto died as a result of a one-car accident which occurred on or about January 25, 1989. Plaintiff, Sandra DiBenedetto, as special administrator of Scott DiBenedetto’s estate, filed a complaint against defendant, Flora Township, to recover damages for Scott’s death.
Plaintiff alleges in her amended complaint, inter alia: that Scott DiBenedetto, decedent, was southbound on Wheeler Road in Flora Township on or about January 25, 1989; his car crossed over the northbound lane, entered the 5- to 7-foot wide shoulder area on the east edge of the paved roadway, crossed over the shoulder, landed in the drainage ditch and immediately overturned killing decedent; the driving conditions were wet, dense fog and complete darkness with no street lighting; the drainage ditch runs parallel to the road, is 5 to 6 feet deep, slopes at a 45- to 90-degree angle off the shoulder of the road, and is within the Wheeler Road right-of-way.
The complaint further alleged that defendant was negligent in that it:
“a. Maintained its right-of-way on Wheeler Road in such a manner as to place or permit to be placed a ditch on its said right-of-way which ditch is a danger to traffic using Wheeler Road by reason of its severe dropoff [sic\ and extreme close proximity to the east edge of the pavement of Wheeler Road.
b. Failed to remedy or correct the condition created in its right-of-way along said Wheeler Road by the existence of said ditch.”
Defendant filed a motion to dismiss the complaint pursuant to section 2 — 615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615). The trial court concluded that the burden which would be imposed upon defendant to make roadside drainage ditches safe for motorists who stray from the traveled way was of such a great magnitude that no duty was owed to plaintiff. The appellate court reversed, with Justice Geiger dissenting, holding that, given the public policy concerns for safe roadways and that it is foreseeable that a motorist will deviate from the roadway, a duty was owed to plaintiff by the defendant township. Additionally, the majority stated that the proximate cause of the accident was a jury question. The Local Governmental and Governmental Employees Tort Immunity Act insulates local public entities from liability arising from injuries caused by the effect of weather conditions on streets, highways, and other public ways. (Ill. Rev. Stat. 1989, ch. 85, par. 3 — 105(a).) The majority noted that in the present case the Tort Immunity Act does not insulate defendant from liability since the complaint does not allege that adverse weather conditions were the sole cause of the accident. (219 Ill. App. 3d 1091.) Justice Geiger, dissenting, concluded that given that decedent’s automobile crossed over the oncoming lane of traffic and a 5- to 7-foot wide shoulder before coming into contact with the drainage ditch, as a matter of law the ditch was not a proximate cause of the accident and the automobile was out of control before reaching the ditch. (219 Ill. App. 3d at 1102 (Geiger, J., dissenting).) We reverse the appellate court and affirm the trial court.
When the legal sufficiency of all or part of a complaint is challenged by a section 2 — 615 motion to strike or dismiss, all well-pleaded facts in the challenged portions of the complaint are to be taken as true and a reviewing court must determine whether the allegations of the complaint, when interpreted in the light most favorable to the plaintiff, are sufficient to set forth a cause of action upon which relief may be granted. A complaint based upon negligence must set forth 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. Whether or not a duty exists is a question of law which will be determined by the courts.
The gist of the complaint in this case was that the ditch along the road was not safe to be driven in. Few would dispute that allegation. The question is, Does the defendant township have a duty to the motoring public to make its drainage ditches which run parallel to the traveled way to be safe for vehicular traffic? We hold not. There is no claim here that the traveled portion of the road, including the shoulder, was anything but safe. The drainage ditch was there for the purpose of receiving surface water and thereby protecting the traveled way from flooding. It was not designed to carry vehicular traffic. The right-of-way had three component parts, namely, the traveled way, the shoulder and the drainage ditch. Each of the parts was fulfilling its intended function. What happened in this case was that decedent, for whatever reason, lost control of his car, drove across an oncoming lane of the roadway, on across the shoulder and into the ditch where his car overturned and he was killed.
It is axiomatic that a driver who leaves the traveled way and continues with his automobile across country is bound to strike something sooner or later. In this case, as there were no oncoming vehicles when he crossed over the opposite lane, the driver plunged into a roadside ditch and tipped over. Had the ditch not been there, the car would have likely struck something else, be it a utility pole, a fence, a tree or whatever. When an out of control automobile is brought to an abrupt stop by an immovable object, damage, injury or even death may be the result. That is what happened in this case. The proximate cause of the accident in this case was not the ditch. The proximate cause of the accident was the loss of control of the vehicle and its being driven off the traveled way.
Drainage ditches along streets and highways are both commonplace and necessary. People are not expected to drive in them and the public cannot be an insurer of those who do. Although there is a paucity of cases on this issue, we interpret that lack to the fact that the conclusion is obvious and that the opposite result would be contrary to normal expectations and experience in the affairs of life.
In 1932, the Kansas Supreme Court determined that the duty of a township to maintain its rural roads and highways in a condition reasonably safe for travel extends only to the improved or traveled portions of such roads and highways. (Arnold v. Board of Commissioners (1932), 135 Kan. 551, 11 P.2d 729.) As the Kansas court noted, it is not incumbent upon a county to keep the full width of its roads open and fit for travel. If a road is open and improved for a sufficient width as to make it reasonably safe and convenient for ordinary travel there is no duty to keep the sides of the traveled way free from obstructions. As long as a sufficient portion of the right-of-way is maintained in a safe and passable condition to serve the reasonable needs of the public in that locality, the fact that outlying and unused portions of the road are impassable or dangerous does not constitute the sort of defect for which a local governmental unit is liable.
Neither a township nor a municipality is an insurer against all accidents occurring on the public way. Just as a municipality is only required to maintain its streets and sidewalks for their normal and intended uses, a township is only required to maintain the traveled way, shoulders, and drainage ditches according to their normal and intended uses. Warchol v. City of Chicago (1979), 75 Ill. App. 3d 289, 294.
Foreseeability is but one of the factors to be weighed in determining the existence of a duty. Even if an accident is foreseeable, the resulting burdens and consequences must also be considered before a legal duty will be recognized. While this accident was foreseeable to the extent that, in retrospect, all accidents are foreseeable, this is not sufficient to enlarge the township’s duty. It is, of course, both foreseeable and commonplace that cars will occasionally run into ditches. The instant case, however, is not the type of accident one would expect to occur under normal driving circumstances. (Ross v. City of Chicago (1988), 168 Ill. App. 3d 83, 89-90.) The fact that it was a dark, wet, and foggy night is immaterial. Even in considering foreseeability, the relevant inquiry focuses on the likelihood that an injury will result from a condition upon the land and not the likelihood that an injury will result from a particular set of circumstances. (Ziemba v. Mierzwa (1991), 142 Ill. 2d 42, 49.) This case, however, turns not on the question of foreseeability but, rather, whether the drainage ditch posed an unreasonable hazard to the motoring public and whether the defendant thereby violated a duty it owed to the motoring public. We hold that it did not.
Accordingly, we reverse the appellate court and affirm the circuit court.
Appellate court reversed; circuit court affirmed.