No. 3--96--0017
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D. 1996
_________________________________________________________________
VINCENT L. HERMAN, ) Appeal from the Circuit Court
) of the 12th Judicial Circuit,
Plaintiff-Appellee, ) Will County, Illinois
)
v. ) No. 91--L--18465
WILL TOWNSHIP, a municipal )
corporation, ) Honorable
) Edwin B. Grabiec,
Defendant-Appellant. ) Judge Presiding
_________________________________________________________________
JUSTICE McCUSKEY delivered the opinion of the court:
_________________________________________________________________
The defendant, Will Township (Township), appeals from a
judgment entered in favor of the plaintiff, Vincent Herman. A jury
awarded the plaintiff damages for injuries he suffered in an
accident on a gravel road which had recently been improved by the
Township.
On appeal, the Township first argues that the judgment should
be reversed. The Township contends that it was immune from
liability pursuant to sections 2-109, 2-201 and 3-103(a) of the
Local Government and Governmental Employees Tort Immunity Act (Tort
Immunity Act) (745 ILCS 10/2-109, 2-201, 3-103(a) (West 1994)). In
the alternative, the Township argues that it is entitled to a new
trial because: (1) the plaintiff was allowed to introduce evidence
that the Township did not post warning signs; (2) the plaintiff was
allowed to introduce a photograph of a different gravel road; (3)
the trial court erroneously gave a missing witness instruction; and
(4) the trial court allowed the plaintiff's expert, Paul Box, to
render an opinion concerning the condition of the gravel road.
After carefully reviewing the record, we conclude that the
Township was not immune from liability pursuant to the Tort
Immunity Act. We further conclude that the Township is not
entitled to a new trial. As a result, we affirm.
FACTS
On July 25, 1991, the 65-year-old plaintiff was driving his
Honda Elite 250 (moped) west on Eagle Lake Road. He had never
driven on Eagle Lake Road before, and, when he started driving on
the road, it was paved. Because it was an unposted rural road, the
speed limit was 55 miles per hour. The plaintiff was traveling
about 45 miles per hour when he saw a rise in the road and slowed
down to 42 or 43 miles per hour. The plaintiff saw a color change
in the road but could not tell whether the pavement turned into a
gravel road until he was about 150 feet from where the pavement
changed to gravel. After he crossed Crawford Road, the plaintiff
drove onto the north lane of the gravel road. He tried braking,
but his front wheel sunk into the gravel and his moped went down.
As a consequence, the plaintiff suffered five broken ribs, a
punctured lung, a fractured collar bone, a fractured scapula and a
herniated disc in his neck. Moreover, he had to have exploratory
surgery because of internal bleeding, and his spleen was removed.
On December 31, 1991, the plaintiff filed a complaint against
Will Township. The plaintiff alleged that the Township made
improvements to Eagle Lake Road and caused the road to become
unsafe by "leaving up to four (4) inches of uncompacted, coarse,
loose gravel on the roadway." The Township attempted to have the
complaint dismissed based upon its claim of tort immunity. The
trial court denied the motion. The Township also filed affirmative
defenses, again claiming tort immunity and also claiming the
plaintiff was guilty of contributory or comparative negligence
because he failed to keep a proper lookout and failed to reduce
speed to avoid the accident.
A trial took place in October 1994. On October 19, 1994, the
jury returned a verdict in which it found for the plaintiff but
awarded no damages. The trial court later granted the plaintiff's
motion for a new trial. Will Township filed a petition for leave
to appeal the new trial order. This court denied the petition.
The second trial began on July 24, 1995. Ronald Werner, the
Township's road commissioner, testified that Eagle Lake Road was
paved east of Crawford Road and was gravel west of Crawford Road.
During the spring of 1991, Township employees began improving a
one-mile section of the gravel road west of Crawford Road and east
of Will Center Road. The project was approved by the Illinois
Department of Transportation (IDOT) and was completed in accordance
with IDOT specifications. The specifications did not include any
requirements for compaction of the gravel.
The Township improved the road by widening it from 17 feet to
20 feet and putting on a new 10-inch layer of gravel. Township
employees laid the new gravel in 3 to 3½ inch layers using two
gravel trucks. The project specifications required the Township to
work from the end closest to the gravel quarry, so the employees
started laying down gravel at Will Center Road. They began at the
south lane of the road. Each layer was compacted by driving the
gravel trucks over it. Also, a grader was used to level and
compact each layer. The project was completed on July 21, 1991,
four days prior to the plaintiff's accident. The north lane just
west of Crawford Road was completed last. Werner admitted the
trucks did not drive over the final layers as many times as the
first layers. He said that it was possible there was as much as 3½
inches of loose gravel on the north lane of the road. However, he
testified that when he drove over the road on July 21, 1991, he
thought it was sufficiently compacted.
Three experts testified for the plaintiff. Ronald Palmieri is
a licensed engineer who specialized in pavement evaluation, design
and construction. He examined the road on August 8, 1991.
Palmieri tested a spot on the north side of the road which he
stated was representative of the first 50 feet west of Crawford
Road. He testified that most of this section of the road had four
inches of loose gravel, although the loose gravel ranged from one
to four inches. Palmieri testified that a gravel road must be
adequately compacted so that drivers can have a stable surface to
drive over smoothly. He testified that, in his opinion, the road
in question was not adequately compacted. As a consequence,
Palmieri found the road to be unstable and unsafe.
Paul Box, a traffic engineering consultant, went to the scene
on August 16, 1991. He testified that he saw several inches of
loose gravel on the road. He said the road had a "very treacherous
surface." He testified that it would be very easy to skid out of
control because of the loose gravel on the road.
Gerald Dresselhouse, a civil engineer, testified that he was
a consultant and had previously been a county road commissioner in
Michigan. He went to observe the scene of the accident in April
1994. He testified that, based upon his review of various
documents and photographs, the surface by the intersection with
Crawford Road had essentially zero compaction at the top one to
four inches of the road. In his opinion, he found the road to be
unreasonably dangerous.
A photograph taken by Dresselhouse in April 1994 was shown to
the jury over the Township's objection. Dresselhouse testified it
was "an enlargement of a photograph that [he] had taken of a gravel
road in the area of our accident site here that depicts what an
adequately compacted and adequately maintained surface should look
like." He said the photograph showed a different portion of Eagle
Lake Road.
All three experts were allowed to testify that there were no
warning signs posted at the site of the accident. They all
testified that, without any warning signs, a driver unfamiliar with
the road could not observe that the pavement turned into gravel
until it was too late to react to avoid an accident. Each time
this type of testimony was presented by the plaintiff, the trial
court gave a limiting instruction that the evidence was only being
admitted on the issue of the plaintiff's own negligence and not on
the issue of the Township's negligence.
On August 1, 1995, the jury returned a verdict in favor of the
plaintiff, set damages at $509,000, and determined that the
plaintiff was 40% negligent. Judgment was entered on the verdict
in the sum of $305,400. Following the denial of its post-trial
motion, the Township filed a timely notice of appeal.
TORT IMMUNITY
The Township points out that "no statute, code, rule,
regulation or standard in Illinois required a specific level of
compaction" on the road at issue. The Township contends that it
had no duty to compact the gravel and the amount of compaction was
a discretionary act on the part of Werner, the road commissioner.
The Township claims it is entitled to immunity for Werner's
discretionary actions under sections 2-109 and 2-201 of the Tort
Immunity Act. It also argues that it is entitled to immunity under
section 3-103 of the Tort Immunity Act because the plan for
improving the road was approved by IDOT. We disagree with the
Township's position.
Section 3-102(a) of the Tort Immunity Act codifies the common
law duty of a local public body to maintain its property, including
roads, in a reasonably safe condition. (745 ILCS 3-102(a) (West
1994); Wagner v. City of Chicago, 166 Ill. 2d 144, 152, 651 N.E.2d
1120, 1124 (1995). Numerous cases, many of which have been cited
and relied upon by the Township, hold that this common law duty to
maintain does not include a duty to undertake improvements to
public property. See, e.g., Kennell v. Clayton Township, 239 Ill.
App. 3d 634, 640-42, 606 N.E.2d 812, 816-18 (1992); Havens v.
Harris Township, 175 Ill. App. 3d 768, 771, 530 N.E.2d 284, 285
(1988); Ross v. City of Chicago, 168 Ill. App. 3d 83, 89, 522
N.E.2d 215, 218 (1988). The decision to make these improvements is
discretionary (Snyder v. Curran Township, 167 Ill. 2d 466, 474-75,
657 N.E.2d 988, 993 (1995)), and local public entities are not
liable for failing to undertake public improvements of the roadways
(Hull v. City of Chicago, 236 Ill. App. 3d 405, 406, 602 N.E.2d
1300, 1301 (1992)). Accordingly, this court, in Havens, stated
that a "township has no common law duty to widen roads, smooth
gravel, erect signs, or mow weeds." Havens, 175 Ill. App. 3d at
771, 530 N.E.2d at 285.
However, it is well settled that the local public body's
general duty to maintain its property in a reasonably safe manner
encompasses a specific duty to make public improvements, once
undertaken, in a reasonably safe manner. Wagner v. City of
Chicago, 254 Ill. App. 3d 842, 851, 626 N.E.2d 1227, 1234 (1993),
aff'd, 166 Ill. 2d 144, 651 N.E.2d 1120 (1995); Havens, 175 Ill.
App. 3d at 771, 530 N.E.2d at 285. Our supreme court recently
stated in Snyder that "once the decision to perform the work is
made, it must be done with reasonable care and in a nonnegligent
manner." (Emphasis added.) Snyder, 167 Ill. 2d at 474-75, 657
N.E.2d at 993. A local public body is liable in tort when it
undertakes a public improvement and the improvement creates an
unreasonably dangerous condition. Hull, 236 Ill. App. 3d at 406,
602 N.E.2d at 130; Santelli v. City of Chicago, 222 Ill. App. 3d
862, 867, 584 N.E.2d 456, 459 (1991); see also Snyder, 167 Ill. 2d
at 475, 657 N.E.2d at 993.
Based upon this well-settled case law, we summarily reject the
Township's contention that it had "no duty." Because the Township
undertook to improve a portion of Eagle Lake Road, it had a duty to
proceed with reasonable care. In addition, it is well settled that
as soon as a local public entity begins to carry out its plan to
make a public improvement, it acts ministerially. Bonnell v.
Regional Board of School Trustees, 258 Ill. App. 3d 485, 490, 630
N.E.2d 547, 550 (1994); Eck v. McHenry County Public Building
Comm'n, 237 Ill. App. 3d 755, 762-63, 604 N.E.2d 1109, 1115 (1992);
see also Snyder, 167 Ill. 2d at 474, 657 N.E.2d at 993. A local
public entity does not have discretionary immunity for ministerial
acts. See Snyder, 167 Ill. 2d at 473, 657 N.E.2d at 992. For this
reason, the Township is not entitled to discretionary immunity
pursuant to sections 2-109 and 2-201 of the Tort Immunity Act.
We also conclude that the Township is not entitled to immunity
under section 3-103(a) of the Act. This section of the Act states
that a local public entity is immune from liability "for an injury
caused by the adoption of a plan or design of a construction of, or
an improvement to public property where the plan or design has been
approved in advance of the construction or improvement." (Emphasis
added.) 745 ILCS 10/3-103(a) (West 1994). The section also
provides that the "local public entity is liable, however, if after
the execution of such plan or design it appears from its use that
it has created a condition that is not reasonably safe." (Emphasis
added.) 745 ILCS 10/3-103(a) (West 1994).
The Township claims immunity because the gravel road was
constructed based upon specifications approved by IDOT. However,
section 3-103(a) immunity has been held inapplicable unless the
injuries result from the adoption of a plan or design. Eck, 237
Ill. App. 3d at 764, 604 N.E.2d at 1117. Here, the plaintiff's
claim was that his injuries were caused by the unsafe condition of
the road after the work was done. The plaintiff has never claimed
that his injuries were caused by any defect in the plan or design
of the road. In addition, by its own terms, section 3-103(a) does
not provide immunity where "it appears from it use" that a local
public entity has created a condition that is not reasonably safe.
745 ILCS 10/3-103(a) (West 1994); see Cole v. City of East Peoria,
201 Ill. App. 3d 756, 758, 761, 559 N.E.2d 769, 771, 773 (1990).
The Township strenuously argues that this exception to
immunity does not apply in this case. The Township notes that it
received no complaints or notification of other accidents in the
four days between the completion of the project and the plaintiff's
accident. The Township concludes that this lack of notice means
that it is entitled to immunity. We do not agree.
Here, Werner observed the road after the improvement was
completed. He admitted that it was possible there was 3½ inches of
loose gravel left on the road. The plaintiff's experts testified
that the road was not adequately compacted and was unsafe. Because
the evidence showed that the Township created a condition that was
not reasonably safe, and had notice of the condition, the Township
was not entitled to immunity under section 3-103(a) of the Tort
Immunity Act.
TRIAL ERRORS
The Township next contends that it is entitled to a new trial
because of four specified trial errors. We do not agree.
The Township initially claims that the trial court abused its
discretion when it allowed witnesses to testify there were no
warning signs posted on the road. The Township insists the
testimony was improper because it cannot be held liable for failing
to post warning signs under section 3-104 of the Tort Immunity Act.
We agree with the Township's claim that section 3-104 of the Tort
Immunity Act provides absolute immunity for a local public entity's
failure to initially provide traffic signals and signs. 745 ILCS
10/3-104 (West 1994); West v. Kirkham, 147 Ill. 2d 1, 6-8, 588
N.E.2d 1104, 1106-08 (1992).
In this case, however, the trial court allowed the evidence to
be presented only as it pertained to the Township's affirmative
defenses that the plaintiff was negligent. Each time a witness
testified regarding the fact there were no warning signs to alert
the plaintiff, the trial court gave a limiting instruction that the
testimony could not be considered on the issue of the Township's
negligence.
Evidentiary rulings properly rest within the sound discretion
of the trial court. Smith v. Black & Decker (U.S.), Inc., 272 Ill.
App. 3d 451, 455, 650 N.E.2d 1108, 1112-13 (1995). Absent an abuse
of discretion resulting in prejudice to the party objecting, those
rulings will not be disturbed on appeal. Smith, 272 Ill. App. 3d
at 455, 650 N.E.2d at 1112-13. Evidence is relevant when it tends
to prove a fact in controversy or renders a matter in dispute more
or less probable. Smith, 272 Ill. App. 3d at 458, 650 N.E.2d at
1114-15.
In the instant case, the challenged testimony was relevant to
the issue of whether the plaintiff should have been alerted to the
change from the solid pavement to gravel and whether the plaintiff
should have been able to slow down to avoid the accident. Also,
the Township was not prejudiced by the admission of the evidence
because the trial court gave an appropriate limiting instruction.
Accordingly, we find no abuse of the trial court's discretion.
Second, the Township argues that the trial court abused its
discretion when it allowed the photograph of a different portion of
Eagle Lake Road to be introduced into evidence. This photograph
was shown to the jury during the testimony of the plaintiff's
expert witnesses. It was not admitted into evidence and was not
published to the jury. Furthermore, the photograph did not go into
the jury room during deliberations. The trial court stated that it
was allowing the photograph to be shown to the jury only for
demonstrative purposes.
Demonstrative evidence has no probative value in itself, but
serves as a visual aid to the jury in comprehending the verbal
testimony of a witness. Cisarik v. Palos Community Hospital, 144
Ill. 2d 339, 341-42, 579 N.E.2d 873, 874 (1991). It is within the
trial court's discretion to determine whether a party may present
demonstrative evidence to clarify an expert's testimony.
Continental Concrete Pipe Corp. v. Century Road Builders, Inc., 195
Ill. App. 3d 1, 13, 552 N.E.2d 1032, 1040 (1990). The trial
court's determination regarding the admissibility of demonstrative
evidence will not be disturbed by a reviewing court absent a clear
abuse of discretion. Elder v. Finney, 256 Ill. App. 3d 424, 427,
628 N.E.2d 393, 395 (1993).
Here, the trial court decided that the photograph could be
used as demonstrative evidence and should be shown to the jury to
illustrate the experts' testimony regarding the adequate compaction
of a gravel road. We conclude that the trial court did not abuse
its discretion in allowing the photograph to be used for this
limited purpose.
We additionally note that the Township has supplemented the
record on appeal with the original, unenlarged photograph. We have
carefully studied the photograph and find that it does not
illustrate much of anything and certainly could not be viewed as
prejudicial. From our review of the photograph and the record on
appeal, we conclude that the showing of the photograph to the jury
did not prejudice the Township in any way.
Third, the Township argues that reversible error occurred when
the trial court gave a "missing witness" instruction. The Township
used an expert witness, Mel Larsen, who testified at the first
trial. Larsen was listed by the Township as a witness for the
second trial. Prior to the second trial, the Township was allowed
a continuance based upon Larsen's unavailability. However, during
the second trial, the Township did not call Larsen as a witness.
The Township did not notify the plaintiff prior to trial that
Larsen would not be testifying, and the plaintiff's attorney
referred to Larsen's expected expert testimony in his opening
statement to the jury.
When Larsen did not testify, the plaintiff requested a
"missing witness" instruction. The plaintiff argued that Larsen's
credibility was impeached during the first trial when it was shown
there was no basis for Larsen's opinions. The trial court gave the
plaintiff's instruction over the Township's objection.
The Township argues that it made the decision not to call
Larsen as an expert witness at the second trial because the main
points sought to be established by his testimony were already
presented to the jury during its cross-examination of the
plaintiff's three experts. The Township contends that the
instruction was improperly given because it had a valid reason not
to call Larsen and because Larsen's opinions were not adverse to
the Township.
The "missing witness" instruction tells the jury that it may
infer that the testimony of the witness would be adverse to the
party failing to offer it when: (1) the witness was under the
control of the party; (2) the witness was not equally available to
the other party; (3) a reasonably prudent person under the same or
similar circumstances would have produced the witness ; and (4) no
reasonable excuse for the failure to call the witness has been
shown. Illinois Pattern Jury Instructions, Civil, No. 5.01 (3d ed.
1995); Taylor v. Kohli, 162 Ill. 2d 91, 97, 642 N.E.2d 467, 469
(1994). It is true that a missing witness instruction is not
warranted where the witness's testimony would merely have been
cumulative. See Wilkerson v. Pittsburgh Corning Corp., 276 Ill.
App. 3d 1023, 1029, 659 N.E.2d 979, 983 (1995). However, in
Wilkerson, the court found the instruction should not have been
given because the testimony of the expert witnesses the defendants
failed to call would have been cumulative of the favorable
testimony given by the defendants' other expert. Wilkerson, 276
Ill. App. 3d at 1028-30, 659 N.E.2d at 983-84. Here, the Township
is arguing that it did not call Larsen as a witness because his
testimony would have been cumulative of the generally adverse
testimony of the plaintiff's experts. Based on our review, we do
not find the defendant's argument to be persuasive.
A missing witness instruction was held properly given when the
expert who did not testify at trial was listed as the defendants'
expert and was deposed and where the defendants had previously
obtained a continuance of the trial to enable the expert to
testify. Ryan v. E.A.I. Construction Corp., 158 Ill. App. 3d 449,
462-63, 511 N.E.2d 1244, 1253 (1987). In addition, a missing
witness instruction may be appropriate if no notice is given to the
opposing side that the expert will not be called. See Taylor, 162
Ill. 2d at 97-98, 642 N.E.2d at 469-70. The decision to instruct
the jury as to the adverse inference of missing witnesses is within
the sound discretion of the trial court. Simmons v. Univ