Gapinske v. Town of Condit

619 N.E.2d 1383, 250 Ill. App. 3d 1045, 189 Ill. Dec. 334
CourtAppellate Court of Illinois
DecidedSeptember 16, 1993
Docket4-92-0840
StatusPublished
Cited by6 cases

This text of 619 N.E.2d 1383 (Gapinske v. Town of Condit) 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
Gapinske v. Town of Condit, 619 N.E.2d 1383, 250 Ill. App. 3d 1045, 189 Ill. Dec. 334 (Ill. Ct. App. 1993).

Opinions

PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

On the night of December 29, 1990, plaintiffs Gary and Jane Gapinske drove south on a township road, which was a borderline between the Town of Condit and the Town of Newcomb, both in Champaign County. As they crossed a bridge over the Sangamon River, they drove into floodwater on the roadway. The floodwater swept their car into the river, but both plaintiffs escaped from the car and grabbed onto some tree limbs to keep from being swept away. At the time of this incident, Jane Gapinske was 7½ months pregnant. Both she and Gary survived, but both suffered from hypothermia, which caused the death of Jane’s unborn child.

When plaintiffs drove into the floodwater, a yellow flashing light had been placed at the side of the road just ahead of the floodwater. In August 1991, plaintiffs brought this action against the two towns and both of the towns’ road commissioners, alleging inter alia that defendants’ conduct constituted negligence or wilful and wanton behavior for the following reasons:

(a) defendants failed to put the warning device far enough in advance of the flooding river to enable southbound drivers approaching the bridge from the north to stop in time to avoid driving into the river;

(b) defendants permitted the warning device or barricade on the northerly approach to the bridge to be moved (or removed) and to remain in the wrong location (or to remain absent) when they knew (or should have known) that the absence of such warning signs created a dangerous condition for motorists going south on the road at the bridge;

(c) defendants failed to properly maintain, replace, or position the warning device or barricades immediately north of the flooding river;

(d) defendants failed to provide a warning sign or barricade on the northerly approach to the bridge, in addition to the flashing light, to alert drivers of the flooding, when flooding would not be reasonably apparent to motorists;

(e) defendants failed to provide barricades or warning signs on the northerly approach to the bridge far enough in advance of the flooding river, when similar warnings had earlier been placed on the southerly approach to the bridge;

(f) defendants failed to close the road in the area of the bridge, when defendants had closed the road to northbound traffic;

(g) defendants failed to warn southbound traffic that the road was closed, when defendants had posted such warnings at the intersection for northbound motorists;

(h) defendants failed to post a warning device conforming to the Manual on Uniform Traffic Control Devices (1988) (Uniform Manual) for southbound motorists;

(i) defendants failed to give an adequate warning of the flooded road to southbound motorists, in that the flashing light was located off the roadway, low to the ground, and was a device customarily used to mark holes in highways or lateral boundaries of roadways and was therefore ambiguous as to its intent and purpose; and

(j) defendants failed to give adequate warning to southbound motorists, in that the flashing light failed to conform to section 6B — 3 of the Uniform Manual (Uniform Manual §6B — 3, at 6B — 2 (warning devices should be placed in a position where they will convey their message most effectively and drivers will have adequate time for a response)) and failed to accompany the light with a sign warning of the flooded roadway as required by section 2C — 40 of the Uniform Manual (Uniform Manual §2C — 40, at 2C — 22).

Defendants moved to dismiss, based in part upon a claim of immunity under the Local Governmental and Governmental Employees Tort Immunity Act (Act) (Ill. Rev. Stat. 1991, ch. 85, par. 1 — 101 et seq.). In September 1992, the trial court dismissed plaintiffs’ complaints with prejudice. However, the court stated that it believed the allegations of the complaint, taken as true, avoided the immunity granted defendants under section 3 — 104 of the Act (Ill. Rev. Stat. 1991, ch. 85, par. 3 — 104). The court granted defendants' motion to dismiss anyway, holding that the Uniform Manual did not impose any mandatory requirements because compliance therewith constitutes discretionary acts by defendants. The court also found that section 3 — 105 of the Act (Ill. Rev. Stat. 1991, ch. 85, par. 3 — 105) provided immunity to defendants because the duty to maintain did not include the duty to warn because of weather conditions. The court also ruled that the flood itself, and not the yellow flashing light, was the proximate cause of the accident. Last, the court found plaintiffs’ complaint did not rely upon their observing any signs or warning devices.

On appeal, defendants renew all of their previously stated grounds for dismissal. Because we agree with defendants’ claim that section 3 — 104 of the Act grants them immunity, we affirm the dismissal of plaintiffs’ complaint and need not discuss the other issues addressed by the trial court.

Throughout this litigation, defendants have maintained that the supreme court’s decision in West v. Kirkham (1992), 147 Ill. 2d 1, 588 N.E.2d 1104, construing section 3 — 104 of the Act, disposes of this case because defendants are immune from any legal cause of action based upon their alleged failure to provide regulatory devices. To put defendants’ argument and plaintiffs’ response in context, we must discuss the legislative history of section 3 — 104 of the Act, as did the supreme court in West.

Section 3 — 104 of the Act was last amended in 1986, and prior to that amendment, it read as follows:

“(a) Neither 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 signs.
(b) Neither a local public entity nor a public employee is liable under this Act for an injury caused by the failure to provide traffic warning signals, signs, markings or other devices unless such a signal, sign, marking or device was necessary to warn of a condition which endangered the safe movement of traffic, and which would not be reasonably apparent to or anticipated by a person in the exercise of due care.” (Ill. Rev. Stat. 1985, ch. 85, par. 3 — 104.)

The 1986 amendment deleted subsection (b) in its entirety and added “warning sign, device or marking,” among others, to the list of traffic devices a municipality was immunized for failing to provide. (See Pub. Act 84-1431, art. 1, §2, eff. November 25, 1986 (1986 Ill. Laws 3740, 3744).) The supreme court in West spoke of this 1986 amendment as follows: “The legislature thus clearly intended to enlarge the scope of section 3 — 104’s immunity and to immunize absolutely the failure to initially provide a traffic control device, even where such failure might ‘endanger the safe movement of traffic.’ ” (Emphasis in original.) West, 147 Ill. 2d at 8, 588 N.E.2d at 1108.

As a result of the 1986 amendment (Pub. Act 84 — 1431), section 3 — 104 of the Act now reads as follows:

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Gapinske v. Town of Condit
619 N.E.2d 1383 (Appellate Court of Illinois, 1993)

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Bluebook (online)
619 N.E.2d 1383, 250 Ill. App. 3d 1045, 189 Ill. Dec. 334, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gapinske-v-town-of-condit-illappct-1993.