Wader v. Macon County, Illinois and Illinois Dept. of Transportation

2025 IL App (5th) 240852-U

• Court: Appellate Court of Illinois
• Decided: October 17, 2025
• Docket: 5-24-0852
• Status: Unpublished

Opinion

NOTICE 2025 IL App (5th) 240852-U NOTICE Decision filed 10/17/25. The This order was filed under text of this decision may be NO. 5-24-0852 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

TRAVIS WADER, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Macon County. ) v. ) No. 23-LA-85 ) MACON COUNTY, ILLINOIS and ILLINOIS ) DEPARMENT OF TRANSPORTATION, ) Honorable ) Robert C. Bollinger, Defendants-Appellees. ) Judge, presiding. ______________________________________________________________________________

JUSTICE CATES delivered the judgment of the court. Justice Sholar concurred in the judgment. Justice Vaughan dissented.

ORDER

¶1 Held: The trial court erred in granting Macon County’s motion to dismiss count I of the plaintiff’s complaint with prejudice where Macon County failed to meet its initial burden to show that an affirmative matter barred or defeated the plaintiff’s claim. The order dismissing count I of the complaint is reversed and the cause is remanded.

¶2 The plaintiff, Travis Wader, appeals from the circuit court’s order granting defendant

Macon County’s motion to dismiss count I of his complaint with prejudice pursuant to section 2-

619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2022)). For

reasons that follow, we reverse and remand.

1 ¶3 I. BACKGROUND

¶4 On October 12, 2020, at approximately 9:30 a.m., the plaintiff was a passenger in a vehicle

traveling east on County Highway 30 approaching its intersection with U.S. Highway 51. As the

plaintiff’s vehicle entered the intersection of County Highway 30 and U.S. Highway 51, it was hit

by a large truck traveling south on U.S. Highway 51. The plaintiff sustained serious injuries as a

result of the collision.

¶5 On September 20, 2023, the plaintiff filed a complaint against the defendants, Macon

County and the Illinois Department of Transportation (IDOT), in the circuit court of Macon

County. 1 In count I, the plaintiff alleged that Macon County breached its duty to the plaintiff to

maintain its property in a reasonably safe condition pursuant to section 3-102 of the Local

Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS

10/3-102 (West 2022)). More specifically, the plaintiff alleged that Macon County breached its

duty to maintain the approach to U.S. Highway 51, along eastbound County Highway 30 (Elwin

Road), 2 in a reasonably safe manner in that (a) the approach was inadequately signed to warn

travelers of the upcoming stop sign at the intersection, (b) the approach contained foliage and other

road signs that obstructed the stop sign at the intersection, and (c) Macon County failed to maintain

the light on the stop sign at the intersection of County Highway 30 and U.S. Highway 51. The

plaintiff further alleged that Macon County had actual or constructive notice of the aforementioned

1 The plaintiff filed a prior negligence complaint against Macon County, regarding this same accident. Pursuant to the agreement of the parties, the action was voluntarily dismissed without prejudice on September 30, 2022, after Macon County provided information indicating IDOT was responsible for the intersection. Plaintiff then filed an action against IDOT in the Illinois Court of Claims. During the pendency of those proceedings, IDOT produced documents showing Macon County was responsible for maintaining the intersection and the stop sign at issue. Plaintiff obtained a stay of the proceedings in the Court of Claims and filed the pending action in the circuit court of Macon County. 2 County Highway 30 is also referred to as Elwin Road in the pleadings. For consistency and to avoid confusion, we will refer to Elwin Road as County Highway 30 in this order. 2 conditions within a reasonable time prior to the accident to have remedied or protected against

those conditions. The plaintiff claimed he sustained serious injuries as a direct and proximate result

of Macon County’s breach of its duty, including a skull fracture, a subarachnoid hemorrhage, a

traumatic brain injury, respiratory failure secondary to trauma, and pulmonary contusions. He

sought compensatory damages for medical expenses, pain and suffering, and posttraumatic stress.

¶6 The complaint included a second count against Macon County and IDOT. In count II, the

plaintiff sought a declaratory judgment seeking resolution of which entity was responsible for the

care, control, and maintenance of the flashing light on the stop sign at issue and the eastbound

approach to U.S. Highway 51 along County Highway 30 on the date of the accident.

¶7 On March 25, 2024, Macon County filed a motion to dismiss the plaintiff’s complaint with

prejudice pursuant to section 2-619(a)(9) of the Code. As to count I, Macon County alleged the

plaintiff’s claim was barred by an affirmative matter—the Tort Immunity Act (745 ILCS 10/1-

101-210 (West 2022)). Macon County asserted that it did not own or control the subject

intersection, that it was not responsible for the location or installation of the stop signs on County

Highway 30, and that the “stop ahead signs” on County Highway 30 in advance of the stop sign at

issue had been in place for more than 50 years. Citing section 2-105 of the Tort Immunity Act (745

ILCS 10/2-105 (West 2022)), Macon County claimed that because it did not own or control the

intersection or place the signage, it could not be liable for an inadequate or a negligent inspection

of any property other than its own. Macon County also claimed there was no evidence that the

flashing beacon on top of the stop sign at issue was not operational at the time of the accident. In

addition, Macon County argued that the plaintiff offered no facts or evidence to show it had actual

or constructive notice of a condition that was not reasonably safe, and that without any facts or

evidence of actual or constructive notice, the plaintiff’s negligence claim was barred under the

3 Tort Immunity Act. Macon County also sought dismissal of count II of the complaint, arguing that

the plaintiff lacked standing to pursue a declaratory judgment because there was no actual

controversy between Macon County and IDOT.

¶8 In support of the motion to dismiss, Macon County filed a declaration from its county

engineer, Bruce Bird. Therein, Bird averred that IDOT was responsible for the placement of signs

on all state highways and their intersecting roadways, including the intersection of U.S. Route 51

and County Highway 30, and that Macon County had no responsibility for the installation and

location of the stop signs on County Highway 30. In addition, Bird stated that in 1995, IDOT and

Macon County entered into a “Letter of Understanding” regarding the installation of a flashing

beacon system at the intersection of U.S. Route 51 and County Highway 30. The installation of

the flashing beacon system was a part of the improvements to U.S. Route 51 and County Highway

30. According to Bird’s declaration, the “Letter of Understanding” indicated that Macon County

agreed to accept responsibility for the maintenance of the flashing beacon system. Bird stated that

Macon County “regularly maintains” the flashing beacon system at U.S. Route 51 and County

Highway 30, and that it “has no records of maintenance or repair requests that suggest the flashing

beacons were not operational at the time of the accident.” Bird further stated that “stop ahead signs

are placed on County Highway 30 in advance of the U.S. Highway 51 stop sign and have been

installed for more than 50 years.”

¶9 A copy of the 1995 Letter of Understanding was attached to the Bird declaration. The Letter

of Understanding provided, in pertinent part, that the State of Illinois, through IDOT, would install

a flashing beacon system at the intersection of U.S. Route 51 and County Highway 30. The flashing

beacon system consisted of flashing yellow beacons on the post mounted advance warning signs

on U.S. Route 51 and flashing red beacons on the stop signs at County Highway 30. In exchange

4 for the installation of the flashing beacon system, Macon County agreed to accept 100%

responsibility for the maintenance and the electrical energy of the system. The Letter of

Understanding also provided:

“It is mutually agreed that the actual maintenance will be performed by the

COUNTY, either with its own forces or through an ongoing contractual agreement.

It is further agreed that the flashing beacons shall be maintained to at least the Levels of

Maintenance shown above and in the attached Exhibit A made a part hereof.”

¶ 10 Exhibit A, entitled “Flashing Beacon Maintenance Provisions,” was also attached to the

Bird declaration. This document provided that the maintaining agency, Macon County, agreed to:

“1. Patrol the flashing beacon system on a regular basis and replace burned out

lamps or damaged sockets as may be required. All lamps should be replaced as

frequently as experience proves necessary to prevent undue failures. The reflector and

lens should be cleaned each time a lamp is replaced. All replacement lamps shall equal

the wattage and type of the existing lamps.

2. Keep signal heads properly adjusted and in alignment.

3. Replace burned out fuses.

4. Clean reflectors, lenses, and lamps once every six (6) months.

5. Repaint all signal components exposed to weather on a regular basis.

6. Repair or replace any and all equipment damaged by any cause whatsoever.

7. Be responsible to make recovery for damage to any part of the systems from

the party causing the damage.

8. Provide skilled maintenance personnel who will be available to respond

without delay to emergency calls. This may be provided by agency forces, contract,

5 or maintenance agreement. Lights out, or knockdowns at an intersection are

considered emergencies.

9. Provide the DEPARTMENT the names, addresses, and telephone numbers of

at least two persons who will be available for emergency repair of the flashing beacon

system and keep the DEPARTMENT informed of any changes of same.”

¶ 11 A copy of the resolution of the Macon County Board approving the Letter of Understanding

was also included with the Bird declaration. The resolution provided in part:

“WHEREAS Macon County now desires to enter into a new letter of understanding

with the State of Illinois Department of Transportation for the installation of a flashing

beacon system at the intersection of US Route 51 with County Highway 30 in Elwin to

replace the old system that was removed due to the US Route 51 improvements; and

WHEREAS in compliance with the aforementioned letter of understanding it is

necessary for the County to agree to maintain the system installed by the State.

NOW, THEREFORE, BE IT RESOLVED BY THE MACON COUNTY BOARD

THAT it hereby approves said letter of understanding with respective costs.”

The resolution was unanimously passed by the Macon County Board on August 20, 1995.

¶ 12 The plaintiff filed a response in opposition to Macon County’s section 2-619(a)(9) motion

to dismiss. The plaintiff argued that his complaint sufficiently alleged that Macon County was

responsible for maintaining the approach to the subject intersection and the flashing light above

the stop sign at that intersection and that the flashing light above the stop sign at issue was not

functioning at the time of the accident. The plaintiff also argued that while Macon County claimed

it had no actual notice that the flashing light above the stop sign was not working, Macon County

did not address constructive notice in its motion. In addition, the plaintiff reminded the trial court

6 that a section 2-619 motion to dismiss “admits all well-pleaded facts and the legal sufficiency of

the complaint as true.” The plaintiff claimed that Macon County, through its pleadings and

supporting documents, was attempting to introduce facts to refute the factual allegations in the

complaint, rather than establish an affirmative matter that barred plaintiff’s complaint under

section 2-619(a)(9). The plaintiff concluded that Macon County was seeking a summary judgment

“under the guise” of a 2-619(a)(9) motion to dismiss.

¶ 13 The plaintiff attached an affidavit from his attorney in support of his motion in opposition

to Macon County’s motion to dismiss. Therein, plaintiff’s attorney attested to an email he received

from an IDOT claims manager on April 26, 2023. In the email, the IDOT claims manager stated

that he was advised that “the intersection in question is under the maintenance responsibility of

the Macon County Highway Department.” The plaintiff also attached a copy of the Illinois Traffic

Crash Report of the incident. In the crash report, the responding officer documented his

observation that when he arrived on scene, “the red flashing beacon above the stop sign facing

eastbound traffic was not functioning.”

¶ 14 In reply, Macon County argued that the plaintiff failed to offer admissible evidence to show

that Macon County controlled the intersection of County Road 30 and U.S. Route 51. Macon

County also argued that the plaintiff failed to plead any facts regarding actual or constructive notice

of a condition at the intersection that was not reasonably safe. Macon County referenced the traffic

crash report offered by the plaintiff and argued that the responding police officer’s observation

that the flashing beacon system was not working at the time of the accident was hearsay. Macon

County claimed that the plaintiff relied upon inadmissible hearsay in the traffic crash report to

support its negligence claim. However, later in its reply, Macon County also referred to and relied

upon other inadmissible hearsay statements in the traffic crash report. Macon County noted that

7 the responding officer indicated he called IDOT while at the crash site. During the call, an

unidentified IDOT employee informed the officer that the flashing beacon system was inspected

weekly, and that “the dysfunctional red flashing beacon system would have been functioning on

the last inspection date of 10/12/2020.”

¶ 15 On March 28, 2024, IDOT also filed a motion to dismiss count II pursuant to section 2-

619(a)(1) of the Code (735 ILCS 5/2-619(a)(1) (West 2022)). IDOT argued that count II was

barred by sovereign immunity under the State Lawsuit Immunity Act (745 ILCS 5/0.01 et seq.

(West 2022)). IDOT also argued that under section 8 of the Court of Claims Act (705 ILCS 505/8

(West 2022)), the Court of Claims had exclusive jurisdiction over the plaintiff’s claim against

IDOT.

¶ 16 After considering the parties’ pleadings and arguments, the trial court granted Macon

County’s motion to dismiss count I of the plaintiff’s complaint with prejudice. In a written order,

the trial court found that the plaintiff’s complaint did not include “any well-pled factual allegations

to establish that Macon County owned or controlled the intersection where the accident occurred

or had any notice that the lights on the stop sign were in need of any type of maintenance.” The

court also found that the Bird declaration asserted that Macon County “neither maintained nor

controlled the intersection” and established that Macon County had “no records of any

maintenance or repair requests suggesting that the flashing beacons were not operational at the

time of the accident.” The court determined that the affirmative matter raised by Macon County

negated the plaintiff’s cause of action completely and that no affirmative matter raised by the

plaintiff created a factual dispute for the trier of fact. The court concluded as a matter of law that

“Macon County established that it did not own or control the intersection at issue which defeats

Plaintiff’s negligence action against Macon County.” Having found there was no factual dispute

8 to preclude “summary adjudication,” the court dismissed count I of the plaintiff’s complaint with

prejudice.

¶ 17 Regarding count II, the trial court found that given the dismissal of count I, there was no

actual controversy and therefore the plaintiff lacked standing to pursue the declaratory judgment

action. The court also found that the plaintiff’s claim against IDOT could proceed in the Court of

Claims. The court granted Macon County’s motion to dismiss count II with prejudice and

determined that IDOT’s motion to dismiss was rendered moot by the ruling.

¶ 18 II. ANALYSIS

¶ 19 On appeal, the plaintiff contends the trial court erred in granting Macon County’s motion

to dismiss count I of the complaint with prejudice pursuant to section 2-619(a)(9) of the Code. The

plaintiff claims that his complaint contained well-pled factual allegations of negligence against

Macon County, and that Macon County did not establish an affirmative matter that barred the

plaintiff’s claim but instead presented arguments more appropriate for summary judgment. The

plaintiff asks this court to vacate the order dismissing his negligence claim against Macon County

and to remand the case for further proceedings. The plaintiff did not appeal from that portion of

the trial court’s order dismissing count II of the complaint, and so we will not consider that ruling.

¶ 20 Section 2-619(a)(9) provides that a defendant may file, within the time for pleading, a

motion to dismiss a cause of action on the ground that the claim is “barred by other affirmative

matter avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2022).

The purpose of section 2-619(a)(9) is to dispose of issues of law and easily proved issues of fact

at the outset of the litigation. Van Meter v. Darien Park District, 207 Ill. 2d 359, 367 (2003);

Reynolds v. Jimmy John’s Enterprises, LLC, 2013 IL App (4th) 120139, ¶ 31.

9 ¶ 21 A motion to dismiss under section 2-619(a)(9) admits the legal sufficiency of the complaint

and asserts that an affirmative matter outside the complaint bars or defeats the cause of action

against the defendant. Van Meter, 207 Ill. 2d at 367; Reynolds, 2013 IL App (4th) 120139, ¶ 31.

An affirmative matter is a type of defense that negates a cause of action completely or refutes

critical conclusions of law or conclusions of material fact that are unsupported by allegations of

specific facts contained in or inferred from the complaint. Reynolds, 2013 IL App (4th) 120139,

¶ 33. An affirmative matter is not simply evidence upon which the defendant expects to contest

essential elements of the plaintiff’s cause of action. Smith v. Waukegan Park District, 231 Ill. 2d

111, 121 (2008). The affirmative matter must be either apparent on the face of the complaint or

supported by affidavits or other evidentiary materials, and it must do more than refute a well-

pleaded fact in the complaint. Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 383 (1997).

Section 2-619(a)(9) does not authorize a defendant to submit affidavits or other evidentiary matters

for the purpose of contesting the plaintiff’s factual allegations and presenting its own version of

the facts. Reynolds, 2013 IL App (4th) 120139, ¶ 34.

¶ 22 The defendant has the initial burden to establish that an affirmative matter bars or defeats

the plaintiff’s claim. Epstein, 178 Ill. 2d at 383. If the defendant satisfies the initial burden of going

forward on the section 2-619(a)(9) motion to dismiss, then the burden shifts to the plaintiff to

demonstrate that the proffered affirmative matter is either “unfounded or requires the resolution of

an essential element of material fact before it is proven.” Epstein, 178 Ill. 2d at 383 (quoting Kedzie

& 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116 (1993)). The plaintiff may satisfy

the shifted burden by presenting affidavits or other proof. 735 ILCS 5/2-619(c) (West 2022).

¶ 23 When ruling on a section 2-619(a)(9) motion, the trial court must accept as true all well-

pleaded facts in the plaintiff’s complaint and all reasonable inferences that may be drawn

10 therefrom, and the court must construe the pleadings and supporting documents in a light most

favorable to the nonmoving party. Reynolds, 2013 IL App (4th) 120139, ¶ 31 (citing Sandholm v.

Kuecker, 2012 IL 111443, ¶ 55). The motion should be granted only if the plaintiff can present no

set of facts that would support his cause of action. Reynolds, 2013 IL App (4th) 120139, ¶ 31

(citing Synder v. Heidelberger, 2011 IL 111052, ¶ 8). A motion to dismiss under section 2-

619(a)(9) presents a question of law that is reviewed de novo. Van Meter, 207 Ill. 2d at 368. De

novo review means that the reviewing court performs the same analysis that the trial court

performed, without deference to the trial court. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564,

578 (2011).

¶ 24 In its written order, the trial court recited the procedural rules for a section 2-619(a)(9)

motion but then failed to follow them. Rather than considering whether Macon County satisfied

its initial burden to show that the plaintiff’s claim was barred under the Tort Immunity Act, the

trial court first considered the legal sufficiency of the plaintiff’s complaint, effectively

transforming the section 2-619(a)(9) motion into a motion to dismiss for failure to plead sufficient

facts to state a cause of action under section 2-615 of the Code (735 ILCS 5/2-615 (West 2022)). 3

¶ 25 Illinois requires fact pleading and a plaintiff must allege sufficient facts to state a legally

recognized cause of action. Marshall v. Burger King Corp., 222 Ill. 2d 422, 429-30 (2006). To

state a cause of action for negligence, the complaint must allege sufficient facts to establish the

existence of a duty owed by the defendant, a breach of that duty, and an injury proximately caused

by the breach. Marshall, 222 Ill. 2d at 430. Whether a duty exists in a particular case is a question

of law for the court to decide. Marshall, 222 Ill. 2d at 430. Whether the defendant breached the

3 A motion to dismiss under section 2-615 questions whether “the facts alleged in the complaint, viewed in the light most favorable to the plaintiff, and taking all well-pleaded facts and all reasonable inferences that may be drawn from those facts as true, are sufficient to state a cause of action upon which relief may be granted.” Reynolds, 2013 IL App (4th) 120139, ¶ 25. 11 duty and whether the breach proximately caused the plaintiff’s injuries are factual matters for a

jury to decide, provided there is a genuine issue of material fact regarding those issues. Marshall,

222 Ill. 2d at 430.

¶ 26 In count I of the complaint, the plaintiff specifically alleged that under section 3-102 of the

Tort Immunity Act, Macon County had a duty to maintain the approach to the intersection of

County Highway 30 and U.S. Route 51 as well as the light on the stop sign at that intersection,

that Macon County breached its duty, and as a result, the plaintiff was seriously injured in an

accident at the intersection. The plaintiff further alleged that Macon County had actual or

constructive notice of the conditions within a reasonable time prior to the accident to have

remedied or protected against those conditions. As will be discussed in more detail below, the

plaintiff’s theory of liability was not based on whether Macon County owned or installed the stop

sign and “stop ahead” signs at the approach to the intersection, as alleged by Macon County, but

rather, whether Macon County properly maintained the flashing light on the stop sign and the

approach to the intersection. The record shows that the plaintiff alleged a specific duty under

section 3-102 of the Tort Immunity Act, a breach of that duty, notice, and injuries proximately

caused by the breach of duty. The plaintiff’s complaint is not a model pleading. Nevertheless, the

factual allegations in the complaint were sufficient to state a cause of action and to inform Macon

County of the claim it was called upon to defend. Indeed, by filing its motion to dismiss pursuant

to section 2-619(a)(9) of the Code, Macon County admitted the legal sufficiency of the plaintiff’s

complaint, and the trial court erred in finding otherwise.

¶ 27 The central question in this case was framed by Macon County when it filed its motion to

dismiss under section 2-619(a)(9) of the Code. That question is whether Macon County met its

initial burden to show that an affirmative matter barred the plaintiff’s claim. Immunity under the

12 Tort Immunity Act is an affirmative matter that may be raised in a section 2-619 motion to dismiss.

Van Meter, 207 Ill. 2d at 367. The Tort Immunity Act protects local public entities and their

employees from liability arising out of governmental operations. Van Meter, 207 Ill. 2d at 368.

The Tort Immunity Act is in derogation of the common law and is construed strictly against the

public entity seeking immunity. Van Meter, 207 Ill. 2d at 368. Unless an immunity provision

applies, a public entity is liable in tort to the same extent as a private party. Van Meter, 207 Ill. 2d

at 368.

¶ 28 Section 3-102 of the Tort Immunity Act provides that a local public entity has a duty to

exercise ordinary care to maintain its property in a reasonably safe condition for intended users

and for reasonably foreseeable uses. 745 ILCS 10/3-102(a) (West 2022). However, a local public

entity is not liable for injury “unless it is proven that it has actual or constructive notice of the

existence of such a condition that is not reasonably safe in reasonably adequate time prior to an

injury to have taken measures to remedy or protect against such condition.” 745 ILCS 10/3-102(a)

(West 2022). Section 3-102(b) provides that a public entity does not have constructive notice of a

dangerous condition if it establishes either:

“(1) The existence of the condition and its character of not being reasonably safe

would not have been discovered by an inspection system that was reasonably adequate ***;

or

(2) The public entity maintained or operated such an inspection system with due

care and did not discover the condition.” 745 ILCS 10/3-102(b) (West 2022).

¶ 29 Here, the plaintiff alleged that pursuant to section 3-102(a) of the Tort Immunity Act,

Macon County had a duty to maintain the light on the stop sign at the intersection of County

Highway 30 and U.S. Route 51 as well as the approach to that intersection. In its section 2-

13 619(a)(9) motion to dismiss, Macon County asserted that it had immunity from liability under the

Tort Immunity Act for three reasons: (1) Macon County did not own and was not responsible for

the installation and location of the stop signs on County Highway 30, (2) the stop ahead signs were

placed in advance of the U.S. Highway 51 stop sign and had been installed for more than 50 years,

and (3) there was no evidence that the flashing beacons located on top of the stop signs were not

operating at the time of the accident. Macon County also argued that there were no facts or

evidence to place it on actual or constructive notice of an unsafe condition to prevent the

application of the Tort Immunity Act. We consider each in turn.

¶ 30 Initially, Macon County asserted that the stop sign at issue was not the property of Macon

County and that it was not responsible for the installation and location of that stop sign. Macon

County argued that since it did not own or control the intersection or place the stop sign, it was

immune from liability for an inadequate or a negligent inspection of any property other than its

own, citing section 2-105 of the Tort Immunity Act. Here, however, the plaintiff did not allege that

Macon County owned the stop sign at issue or that Macon County was responsible for the location

and installation of the stop sign. Nor did the plaintiff allege that Macon County breached a duty

owed under section 2-105 of the Tort Immunity Act. The plaintiff’s theory of liability was based

upon Macon County’s duty to properly maintain the flashing light on the stop sign at issue under

section 3-102 of the Tort Immunity Act. The Bird declaration and attached documents filed by

Macon County supported the plaintiff’s theory. The plaintiff’s theory of liability was not based

upon the ownership or the location of the stop sign. Thus, Macon County’s assertion that it neither

owned nor installed the stop sign had nothing to do with the plaintiff’s claim that Macon County

breached a duty to maintain the stop sign under section 3-102 of the Tort Immunity Act. Likewise,

section 2-105 of the Tort Immunity Act, relied on by Macon County, was not relevant to the

14 plaintiff’s claim. Accordingly, Macon County failed to establish a basis for the dismissal of the

plaintiff’s cause of action under section 2-619(a)(9).

¶ 31 The same reasoning applies to Macon County’s assertion that it was entitled to immunity

because the “stop ahead” signs located in advance of the U.S. Highway 51 stop sign had been

installed for more than 50 years. Once again, the plaintiff’s theory of liability was based upon

Macon County’s duty to properly maintain the approach to the intersection under section 3-102 of

the Tort Immunity Act, and not on the location or installation of the “stop ahead” signs. Once

again, Macon County’s assertion of immunity under section 2-105 of the Tort Immunity Act—a

section different than that pled by the plaintiff—was not relevant. Thus, Macon County’s assertion

that it was not responsible for the location and installation of the signage does not constitute an

affirmative matter that would negate the plaintiff’s cause of action against Macon County.

Accordingly, Macon County failed to establish a basis for the dismissal of the plaintiff’s claim

under section 2-619(a)(9).

¶ 32 Finally, we consider the notice issue. The question of actual or constructive notice is

ordinarily one of fact and becomes a question of law only if all of the evidence, when viewed in a

light most favorable to the plaintiff, so overwhelmingly favors the public entity that no contrary

verdict could ever stand. See generally, Zameer v. City of Chicago, 2013 IL App (1st) 120198,

¶ 12.

¶ 33 In this case, Macon County asserted that no evidence was offered to show that the flashing

light on top of the stop sign was not operational at the time of the accident and that no facts or

evidence showed that it had either actual or constructive notice of the conditions alleged in the

plaintiff’s complaint. Macon County offered the Bird declaration in support of this contention. In

his declaration, Bird asserted that Macon County “has no records of maintenance or repair

15 requests that suggest the flashing beacons were not operational at the time of the accident”

(emphasis added). It is important to recognize here that Macon County’s own pleadings and

supporting documents established that Macon County agreed to do more than simply await

“requests” for repairs.

¶ 34 Macon County, through the Bird declaration and the documents attached thereto, admitted

that it undertook a duty to maintain the flashing beacon above the stop sign at issue. The duty

undertaken by Macon County was consistent with its statutory duty under the Tort Immunity Act

“to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the

exercise of ordinary care of people” who were intended and permitted users. 745 ILCS 10/3-102(a)

(West 2022).

¶ 35 The Bird declaration, the Letter of Understanding, and the Flashing Beacon Maintenance

Provisions show Macon County undertook very specific duties as part of its agreement to maintain

the flashing beacon system. In his declaration, Bird admitted that Macon County “regularly

maintains the flashing beacon system at U.S. Route 51 and County Highway 30 (Elwin Street).”

The Letter of Understanding shows that Macon County agreed that it would be “100% responsible”

for maintenance of the flashing beacon system and that the system would be maintained to “at least

the Levels of Maintenance” specified in the Letter of Understanding and the Flashing Beacon

Maintenance Provisions. The duties specified in the Flashing Beacon Maintenance Provisions

were set forth verbatim earlier in this order. Significantly, the first provision in that document

required Macon County to “[p]atrol the flashing beacon system on a regular basis and replace

burned out lamps or damaged sockets as may be required.” It also required that “[a]ll lamps

should be replaced as frequently as experience proves necessary to prevent undue failures.”

Macon County’s maintenance duties included inspecting and maintaining the flashing beacon

16 system, replacing lamps and fuses, and repairing and replacing equipment damaged by any cause.

“Lights out, knockdowns at an intersection” were considered emergencies. Thus, Macon County

agreed to patrol the flashing beacon system on a regular basis, to undertake proactive and

preemptive maintenance to prevent failures, and to provide skilled maintenance personnel to

respond to emergency calls without delay. Macon County also accepted the duty to designate, in

advance, the name of the person to be contacted if a light went out, as that was deemed an

emergency. Despite all of the responsibilities that Macon County accepted as part of its duty to

maintain the flashing beacon system and stop sign at issue, Macon County did not identify or

produce its standards and protocols for “patrolling” and “inspecting” the flashing beacon system

and stop sign. Nor did it produce any patrol, inspection or preventative maintenance logs. These

types of documents would have been in the possession and control of Macon County, yet Macon

County did not produce any such documents in support of its section 2-619(a)(9) motion to

dismiss. As noted previously, the initial burden was on Macon County to allege an affirmative

matter that would have defeated the plaintiff’s claim, accepting the plaintiff’s complaint as legally

sufficient and true.

¶ 36 Whether the flashing beacon on the stop sign was working at the time of the accident is a

question of fact raised in the plaintiff’s complaint. The fact that Macon County had no records of

“requests” for repairs is not an affirmative matter within the meaning of section 2-619(a)(9). An

affirmative matter is something more than evidence offered to contest the factual allegations in the

plaintiff’s complaint. Reynolds, 2013 IL App (4th) 120139, ¶ 34. Here, the lack of requests for

repairs is merely evidence offered to support Macon County’s version of the facts and to refute the

plaintiff’s version of the facts. Reynolds, 2013 IL App (4th) 120139, ¶ 34. When a defendant seeks

to attack the factual allegations in a complaint, the proper procedural tool is a motion for summary

17 judgment. Reynolds, 2013 IL App (4th) 120139, ¶ 34; Barber-Colman Co. v. A and K Midwest

Insulation Co., 236 Ill. App. 3d 1065, 1072 (1992).

¶ 37 It is worth noting here that both parties referred to portions of the traffic crash report in

their pleadings. In that report, the responding officer noted that he personally observed that the

flashing light was not operational, and that when he called IDOT, he was advised that the red

flashing beacons used at this intersection were “inspected weekly” and that “the dysfunctional red

flashing beacon would have been functioning on the last inspection date 10/12/2020.” While the

traffic accident report contains hearsay and double hearsay, both parties relied upon the parts of

the report that supported their respective arguments about whether the flashing light was operating

at the time of the accident and whether Macon County had actual or constructive notice that the

light was not operating. Again, this illustrates the parties were arguing over genuine issues of fact.

Those types of disputes are not the focus of a section 2-619(a)(9) motion to dismiss and are more

properly made in a motion for summary judgment.

¶ 38 Finally, we pause to address the dissent. At the outset, the dissent asserts that the majority

“strays from” and “fails to address” the arguments that were presented in this appeal. The dissent

then repeatedly claims that the majority addresses issues that were “neither raised nor argued by

the parties.” The contentions of the dissent are spurious, and the tone is lacking in civility and

discernment. Once stripped of the coarse rhetoric and cut to the core, ironically, the dissent exposes

more areas of alignment than disagreement with the majority’s analysis.

¶ 39 For example, the dissent finds that the plaintiff’s first argument on appeal, i.e., that the trial

court erred in dismissing the plaintiff’s complaint with prejudice because the complaint was well-

pled, was a “non-issue” under section 2-619(a)(9) of the Code. (Infra ¶ 50). Thus, the dissent

agrees that the argument over whether the plaintiff pled sufficient facts to allege a cause of action

18 should have been irrelevant because the legal sufficiency of the complaint is admitted in section

2-619(a)(9) motion to dismiss. Given that the legal sufficiency of the complaint was admitted, the

trial court erred in finding otherwise. The dissent further agrees that the Bird declaration admitted

that Macon County had a duty to maintain the flashing light on the stop sign at issue and that the

declaration did not negate the actual facts alleged in the plaintiff’s complaint. (Infra ¶¶ 51, 52).

¶ 40 The dissent then chastises the majority for failing to address Macon County’s contention

that it was immune from liability because it did not own the stop sign, the “stop ahead” signage,

or the intersection and because it was not responsible for the location and placement of the signage

at issue. As noted earlier in our order, Macon County asserted that it was immune from liability

under section 2-105 of the Tort Immunity Act—a section different than that pled by the plaintiff.

Similar to the dissent’s finding that the plaintiff’s argument regarding the legal sufficiency of the

complaint should have been a “non-issue,” we find that Macon County’s claim of immunity under

section 2-105 should also have been a “non-issue.” The plaintiff’s theory of liability was based

upon Macon County’s breach of its duty to maintain the light on the stop sign and to maintain the

approach to the intersection in a reasonably safe condition under section 3-102 of the Tort

Immunity Act. Indeed, the dissent recognizes that the plaintiff’s theory of the case was not based

upon Macon County’s ownership or placement of the signage, but then states: “It is exactly due to

the fact that plaintiff did not make those allegations that Macon County’s affidavit could not negate

the alleged facts.” (Emphasis in original.) While the dissent’s logic is difficult to decipher, it

suggests that Macon County’s affidavit did not refute the actual facts pled in the plaintiff’s

complaint. On that we can agree. Accordingly, Macon County did not satisfy its burden to establish

an affirmative matter that defeated the plaintiff’s claim.

19 ¶ 41 Finally, the dissent repeatedly claims that the majority “supplies” two “factual issues” not

presented on appeal. Specifically, the dissent claims that the issue of constructive notice and the

issue of whether the flashing light on the stop sign was working were not issues argued on appeal.

The dissent’s assertions are both incredible and concerning because the issues were clearly

addressed in the briefs on appeal. In the appellant’s brief, the plaintiff claimed that Macon

County’s affidavit did not establish an affirmative matter and that an affidavit may not be used to

simply refute allegations of negligence and notice. In the appellee’s brief, Macon County argued

that there was “no evidence of actual or constructive notice” of an issue with the flashing beacon

system or the stop ahead signs” and no evidence that the flashing light was not operational at the

time of the accident. The arguments were presented to the trial court, and they were raised on

appeal.

¶ 42 The majority and the dissent interpret the same record differently. The majority’s approach

reflects an objective analysis of the issues and arguments presented in this appeal after a thorough

review of the record.

¶ 43 In sum, Macon County chose to file its motion to dismiss pursuant to section 2-619(a)(9).

Therefore, Macon County assumed the initial burden to establish some affirmative matter that

barred the plaintiff’s negligence claim under section 2-619(a)(9), and it failed to meet that burden.

Macon County’s own pleadings, including the Bird declaration and attached documents,

established its duty of care to maintain the property under section 3-102 of the Tort Immunity Act.

Macon County’s pleadings and supporting documents do not assert an affirmative matter that

would negate the plaintiff’s negligence claim completely or refute crucial conclusions of law or

fact.

20 ¶ 44 III. CONCLUSION

¶ 45 After thoroughly reviewing the record—accepting as true all well-pleaded facts in the

plaintiff’s complaint and all reasonable inferences therefrom and construing the pleadings and

supporting documents in a light most favorable to the nonmoving party—we find that Macon

County failed to meet its initial burden to show that it was entitled to immunity under the Tort

Immunity Act. For the reasons stated, the trial court’s order granting Macon County’s motion to

dismiss count I of the plaintiff’s complaint with prejudice under section 2-619(a)(9) of the Code

is reversed and the cause is remanded for further proceedings.

¶ 46 Reversed and remanded.

¶ 47 JUSTICE VAUGHAN, dissenting:

¶ 48 I respectfully dissent from my colleague’s decision. The majority’s decision fails to address

the arguments that were presented in this appeal and instead addresses issues that were neither

raised nor argued by the parties. Further, the majority presents issues of fact that would allegedly

preclude summary judgment that were not raised by plaintiff; however, even if properly raised by

plaintiff, the issues were resolved by the evidence submitted, and relied on, by both parties.

¶ 49 Because the majority strays from the issues presented in this appeal, I first address the

actual errors contended by plaintiff. Plaintiff’s brief stated that the

“trial court erred as a matter of law in dismissing Plaintiff’s complaint with

prejudice because Plaintiff’s complaint was well-pled, because Defendant could not use an

affidavit to attack Plaintiff’s allegations, and because Plaintiff relied on a counter affidavit

showing the possibility of relief under the pled cause of action.”

Plaintiff also presented one issue of fact that he claimed would preclude summary judgment.

21 ¶ 50 Plaintiff’s first issue contended that his complaint was well-pled. The majority addresses

this argument and ultimately finds that while the complaint was not a “model pleading” it was

“sufficient to state a cause of action.” While I find the majority’s classification generous, at best,

in reality the argument is irrelevant because the legal sufficiency of the complaint is admitted. See

Van Meter v. Darien Park District, 207 Ill. 2d 359, 367 (2003). Therefore, this is a non-issue.

¶ 51 The second issue raised by plaintiff on appeal argued that Macon County was precluded

from relying on an affidavit that negated allegations set forth in the complaint. In support, plaintiff

cited In re Estate of Kirk, 2017 IL App (4th) 160416, Smith v. Waukegan Park District, 231 Ill. 2d

111 (2008), O’Connell v. County of Cook, 2022 IL 127527, and Reynold v. Jimmy John’s

Enterprises, LLC, 2013 IL App (4th) 120139, all of which prohibited a party from using an

affidavit to negate issues of fact arising from the complaint. While I do not dispute the conclusions

reached in plaintiff’s cited cases, Macon County’s affidavit did not negate the facts alleged in

plaintiff’s complaint.

¶ 52 As noted by the majority, a portion of Macon County’s affidavit admitted that Macon

County had a duty to maintain the flashing lights on the stop sign. Indubitably, such allegation

does not negate plaintiff’s claim that defendant had a duty to maintain the flashing lights on the

stop sign and instead admits it. As such, plaintiff’s argument as to this portion of the affidavit must

fail.

¶ 53 The second portion of Macon County’s affidavit contended that Macon County was not

the owner of the “stop ahead” sign, the stop sign, or the intersection. The affidavit further alleged

that Macon County did not place any of the signage on the highway. The majority finds that this

portion of the affidavit “does not provide a basis for the dismissal of the plaintiff’s claim under

22 section 2-619(a)(9)” because it is not an “affirmative matter.” Critically, the majority fails to

address the argument presented by Macon County with regard to this evidence.

¶ 54 “Immunity from suit under the Tort Immunity Act is an ‘affirmative matter’ properly raised

under section 2-619(a)(9).” Van Meter, 207 Ill. 2d at 377 (citing Bubb v. Springfield School District

186, 167 Ill. 2d 372, 378 (1995)). “The ‘affirmative matter’ asserted by the defendant must be

apparent on the face of the complaint; otherwise, the motion must be supported by affidavits or

certain other evidentiary materials.” Van Meter, 207 Ill. 2d at 377. “The phrase ‘affirmative matter’

refers to a defense that negates the cause of action completely or refutes crucial conclusions of law

or conclusions of material fact contained in or inferred from the complaint.” McIntosh v.

Walgreens Boots Alliance, Inc., 2019 IL 123626, ¶ 16 (citing Glisson v. City of Marion, 188 Ill.

2d 211, 220 (1999)).

¶ 55 Macon County’s argument was based on section 2-105 of the Tort Immunity Act (745

ILCS 10/2-105 (West 2022)) which states that “[a] local public entity is not liable for injury caused

by its failure to make an inspection, or by reason of making an inadequate or negligent inspection,

or any property, other than its own, ***.” (Emphasis added.) Plaintiff failed to allege that Macon

County owned any of the alleged obstructions. Therefore, Macon County’s affidavit, that

affirmatively stated that it did not own any of the signage could not negate a fact that was never

alleged. Similarly, plaintiff never alleged that Macon County placed the signage forewarning of

the upcoming stop or any other signs that obstructed the stop sign. As such, the affidavit was an

absolute defense to plaintiff’s claim that Macon County was remiss in failing to maintain the

eastbound approach to U.S. Highway 51 because the approach “was inadequately signed to warn

[travelers] of the upcoming stop sign at the intersection” and that “other signs obstruct[ed] a stop

sign located at the intersection” because it did not own or place on the highway.

23 ¶ 56 The majority’s claim that “plaintiff did not allege that Macon County owned the stop sign

at issue or that Macon County was responsible for the placement and installation of the stop sign

at issue,” and therefore the affidavit was irrelevant completely ignores the import of Macon

County’s section 2-105 affirmative defense. It is exactly due to the fact that plaintiff did not make

those allegations that Macon County’s affidavit could not negate the alleged facts. Instead, the

affidavit supported the affirmative defense that precluded liability based on a lack of ownership.

The majority also fails to explain why Macon County would have liability for the alleged negligent

placement of signage that allegedly impeded the driver’s view if the entity did not place any signs

on the road. As such, I wholeheartedly disagree with the majority’s finding that the affidavit did

“not provide a basis for the dismissal of plaintiff’s claim under section 2-619(a)(9)” and would

find the opposite.

¶ 57 Plaintiff’s argument contended that Macon County’s affidavit was precluded because

affidavits could not be used to negate facts alleged by plaintiff. However, Macon County’s

affidavit actually supported one of plaintiff’s claims and the other denied liability based on a lack

of allegations pursuant to section 2-105. Therefore, I would find that plaintiff’s reliance on In re

Estate of Kirk, 2017 IL App (4th) 160416, Smith, 231 Ill. 2d 111 (2008), O’Connell, 2022 IL

127527, and Reynolds, 2013 IL App (4th) 120139, was misplaced. The argument has no merit

because Macon County’s affidavit could not negate facts that were never alleged by plaintiff.

¶ 58 Plaintiff’s third argument on appeal contended that his counter affidavit showed the

possibility of relief under the pled cause of action. More specifically, he contended that a factual

issue existed that precluded dismissal. He stated that the factual issue was whether Macon County

or IDOT was required to maintain the intersection. In response, Macon County argued that the

counter affidavit was based on hearsay and therefore was inadmissible.

24 ¶ 59 It is undeniable that the counter affidavit by plaintiff’s attorney was uncompelling. An

Illinois Supreme Court Rule 191(a) affidavit is required for dismissals under section 2-619 of the

Code, if the grounds are not apparent based on the face of the pleading. 735 ILCS 5/2-619 (West

2022); Ill. S. Ct. R. 191(a) (eff. Jan. 4, 2013). The Rule 191(a) affidavit must include the facts

upon which the affiant relied and may not rely on mere conclusions. Landeros v. Equity Property

and Development, 321 Ill. App. 3d 57, 63 (2001). “The affidavit is actually a substitute for

testimony taken in open court and should meet the same requisites as competent testimony.” Harris

Bank Hinsdale v. Caliendo, 235 Ill. App. 3d 1013, 1025 (1992).

¶ 60 Here, plaintiff’s affidavit addressed an email from an IDOT employee to plaintiff’s

attorney, which stated “that the intersection at issue in the above-captioned matter is under the

maintenance and responsibility of Macon County Highway Department.” Macon County correctly

classified the communication as hearsay. The only other “fact” produced by plaintiff in response

to the motion to dismiss was a police report from the accident; however, “police reports are

generally inadmissible hearsay.” People v. Long, 316 Ill. App. 3d 919, 928 (2000) (citing People

v. Smith, 141 Ill. 2d 40, 72 (1990)); see Kociscak v. Kelly, 2011 IL App (1st) 102811, ¶ 25. As

such, plaintiff’s affidavit did not meet the requirements of Rule 191(a). It was based on hearsay,

no exception to the hearsay rule was pled or argued, and the witness listed could not competently

attest to the information in the documents attached to the affidavit.

¶ 61 However, even if Rule 191 was not at issue, the email from IDOT did not create a factual

issue as to whether Macon County or IDOT was the entity required to maintain the flashing lights

on the stop sign. Plaintiff alleged that Macon County was the responsible party and Macon County

admitted that it was. The IDOT email denied responsibility for maintenance of the sign and placed

the responsibility on Macon County. Accordingly, no question of fact arises from the IDOT email

25 and therefore, it is my position that the trial court’s dismissal of plaintiff’s complaint, with

prejudice, was proper.

¶ 62 Finally, I address the unpalatable portions of the majority’s decision. First, it does not

address the arguments presented on appeal. Further, the majority claims that the issue in this appeal

is whether Macon County’s affidavit was sufficient to dismiss plaintiff’s complaint. However, that

argument was never raised by plaintiff. The majority also supplies additional “factual issues” that

it contends preclude dismissal of the complaint. As noted above, only one factual issue was

presented by plaintiff.

¶ 63 “A section 2-619 dismissal resembles the grant of a motion for summary judgment[,]

[therefore, on appeal] we must [also] determine whether a genuine issue of material fact should

have precluded the dismissal or, absent such an issue of fact, whether the dismissal was proper as

a matter of law. Shirley v. Harmon, 405 Ill. App. 3d 86, 90 (2010). Although the majority claims

three issues of fact preclude dismissal, the plaintiff only claimed one issue on appeal. That issue

was whether IDOT or Macon County was responsible for the flashing beacons and that issue was

resolved when Macon County admitted responsibility.

¶ 64 The majority adds two additional factual issues. The first issue raised by the majority was

“whether Macon County had constructive notice of the alleged dangerous condition of the

property.” Notably, while plaintiff raised this issue before the trial court, it was not raised on appeal

and therefore was forfeited. Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (“Points not argued are

forfeited ***.”).

¶ 65 Plaintiff’s complaint on the issue of notice alleged, “Defendant Macon County had actual

or constructive notice of the conditions mentioned herein with reasonably adequate time prior to

Plaintiff’s injury to have taken measures to remedy or protect against such conditions but failed to

26 do so.” Clearly, this “allegation” is a legal conclusion as it contains no factual information to

support the conclusion. Regardless, this “revived” factual issue was actually resolved by Exhibit

B attached to plaintiff’s counter affidavit. Exhibit B was a police report that stated that the officer

contacted IDOT while he was at the scene and the agency advised the officer that the sign was

inspected every Friday and was functioning on the last inspection date of October 12, 2020. That

information reveals that the sign was on a weekly inspection rotation and was inspected prior to

and on the same date as the accident.

¶ 66 Section 3-102 of the Tort Immunity Act (745 ILCS 10/3-102(b) (West 2022)) states,

“A public entity does not have constructive notice of a condition of its property that

is not reasonably safe within the meaning of Section 3-102(a) if it establishes either:

(1) The existence of the condition and its character of not being reasonably

safe would not have been discovered by an inspection system that was reasonably

adequate considering the practicability and cost of inspection weighed against the

likelihood and magnitude of the potential danger to which failure to inspect would

give rise to inform the public entity whether the property was safe for the use or

uses for which the public entity used or intended others to use the public property

and for uses that the public entity actually knew others were making of the public

property or adjacent property; or

(2) The public entity maintained and operated such an inspection system

with due care and did not discover the condition.”

Here, plaintiff’s own evidence precludes a finding of constructive notice. As such, the majority

first claim of a factual issue precluding summary judgment fails.

27 ¶ 67 The majority’s second claim of a factual issue not claimed by the plaintiff, was whether

the flashing beacon on the stop sign was working at the time of the accident. However, this is not

even a relevant factual issue. Even if the lights were not functioning at the time of the accident,

which is an inference afforded to plaintiff, plaintiff’s own evidence revealed that the flashing

beacons were not working immediately after the accident. The evidence also revealed that the

flashing beacon was inspected on the same day of the accident pursuant to the weekly Friday

inspection. Therefore, again, even if the flashing beacons were not working, plaintiff’s own

evidence precludes liability. See 745 ILCS 10/3-102(b) (West 2022).

¶ 68 This leaves only the issue of whether dismissal was proper as a matter of law. The majority

contends that Macon County’s affidavit—which supplied the factual information regarding the

intersection—was insufficient as a matter of law. I cannot agree with the conclusion, nor can I

condone the majority’s failure to address the issues as framed by the appellant. The majority claims

the trial court “bypassed” the procedural rules for a section 2-619(a)(9) motion and effectively

transformed the section 2-619(a)(9) motion into a motion to dismiss for failure to plead sufficient

facts to state a cause of action. The majority then writes a decision as if it were the trial court,

despite the fact that the major issues addressed in the majority decision were either never presented,

or only vaguely presented, by the plaintiff. While Macon County addressed the vaguely presented

arguments, it was never given any opportunity to present argument on the issues addressed in the

majority decision that were not raised by the appellant.

¶ 69 When new issues are first raised on appeal, they are subject to forfeiture. Mabry v. Boler,

2012 IL App (1st) 111464, ¶ 15 (“Generally, arguments not raised before the circuit court are

forfeited and cannot be raised for the first time on appeal.”). While forfeiture is a limitation on the

parties and not the reviewing court, overlooking forfeiture should only occur to obtain a just result

28 or maintain a sound and uniform body of precedent. Village of New Athens v. Smith, 2021 IL App

(5th) 200257, ¶ 22.

¶ 70 Here, the action is unjustified especially when, (1) neither party presented argument on

appeal for the issues addressed by the majority, (2) the record is devoid of argument on the issue

before the trial court, (3) sound, uniform precedent exists on the issue of affirmative defenses

raised under the Tort Immunity Act (see i.e., Van Meter, 207 Ill. 2d 359, 366-78 (2003); Prough

v. Madison County, 2013 IL App (5th) 110146, ¶¶ 19-33; People ex rel. Birkett v. City of Chicago,

325 Ill. App. 3d 196, 200-06 (2001); Monson v. City of Danville, 2018 IL 122486, ¶¶ 14-39), and

(4) no novel argument was presented to supplant the previously issued decisions. While it is

undisputed that new issues raised for the first time on appeal may be considered, consideration is

only allowed if the issue is one of law, was fully briefed and argued by the parties, and public

interest favors consideration of the issue. See Forest Preserve District v. First National Bank of

Franklin Park, 2011 IL 110759, ¶ 28 (citing Unzicker v. Kraft Food Ingredients Corp., 203 Ill. 2d

64, 73 (2002)). None of those criteria are met and therefore, it is my belief that the majority goes

well beyond the scope of this appeal by considering issues that were never presented to either the

trial court or this court especially when such action deprived Macon County of the ability to present

its position on those issues.

¶ 71 As shown above, Plaintiff never alleged that Macon County owned the alleged obstructive

signs on the highway. Macon County’s affidavit affirmatively stated that it did not own any of the

obstructions claimed by plaintiff. It then argued that because there was no ownership, liability was

precluded pursuant to section 2-105 of the Tort Immunity Act which precludes liability for a failure

to inspect, or inadequate or negligent inspection of property which the entity does not own. The

affidavit also affirmatively stated that it did not place any of the obstructive signs on the highway.

29 The plaintiff provides no information to the contrary. The majority finds this portion of the

affidavit irrelevant and completely ignores Macon County’s argument pursuant to section 2-105

that removed liability under the Tort Immunity Act for everything but maintenance of the flashing

beacons.

¶ 72 The second portion of Macon County’s affidavit admitted that it was responsible for

maintenance of the flashing lights on the stop sign. The affidavit further stated that it regularly

maintained the flashing beacon system and had no record of any maintenance or repair requests

that suggested the beacons were not operational at the time of the accident. While the majority

found this insufficient to defeat plaintiff’s legal conclusion related to notice under section 3-102(a)

of the Tort Immunity Act, because it did not provide log books related to maintenance or

inspection, the majority ignores Exhibit B of plaintiff’s counter affidavit that revealed the flashing

beacons on that stop sign were inspected every Friday, were inspected on the same day of the

accident, and were functioning properly at the time of the inspection. This evidence revealed that

Macon County “maintained and operated such an inspection system with due care and did not

discover the condition” (see 745 ILCS 10/3-102(b) (West 2022)) which statutorily rebutted

constructive notice.

¶ 73 Therefore, based on the arguments presented here and before the trial court, I would hold

that Macon County’s affidavit in support of its section 2-619(a)(9) dismissal motion was proper in

that it did not negate plaintiff’s fact, and that plaintiff’s counter-affidavit did not create any factual

issues that precluded summary judgment and instead supported dismissal of the complaint.

Accordingly, I would affirm the trial court’s dismissal of count I of plaintiff’s complaint.

¶ 74 For the foregoing reasons, I dissent.