delivered the opinion of the court:
Plaintiff sued defendants Grace Martindale, the City of Elmhurst, Illinois Bell Telephone Company, and Commonwealth Edison Company for injuries suffered by his incompetent in an automobile accident at the intersection of North and Myrtle Avenues in the City of Elmhurst. The trial court dismissed counts III and VI of plaintiffs fourth amended complaint against the city of Elmhurst, counts IV and VII against Illinois Bell Telephone Company, and counts V and VIII against Commonwealth Edison Company, all for failure to state a cause of action. The court also granted Elmhurst’s motion for summary judgment on count II of the complaint. The trial court made the necessary finding that there was no just reason for delaying enforcement or appeal of his order. (Ill. Rev. Stat. 1979, ch. 110A, par. 304(a).) Plaintiff now appeals and alleges that the orders of dismissal and summary judgment were erroneously granted. The essential facts as alleged in plaintiff’s fourth amended complaint are as follows.
On June 12, 1976, plaintiff’s incompetent was a passenger in an automobile being driven by Ronald Camire in an easterly direction on North Avenue in the city of Elmhurst, Illinois. On the same date, Grace Martindale was operating her motor vehicle in a southerly direction on Myrtle Avenue approaching an intersection with North Avenue. The cars collided at the intersection of North and Myrtle Avenues and the car in which plaintiff’s incompetent was a passenger had a secondary impact with a wooden utility pole that was located near the intersection.
The basic allegations contained in the relevant counts of plaintiff’s fourth amended complaint can be summarized as follows:
Counts II, III, and VI of the complaint were against the city of Elmhurst. Count II alleged that the city had breached its duty in failing to remove certain trees and bushes near the intersection which obstructed the view of approaching drivers. Count III alleged that the city carelessly and negligently permitted the placement of a certain wooden utility pole and other wooden utility poles in a dangerous position along the lateral edge of North Avenue within six to 12 inches from the traveled portion of the highway “knowing that said placement violated standards of design and engineering of highways and their appurtenances and knowingly permitted those wooden utility poles to be continually subjected to collisions with automobiles and collision damage from automobiles traveling to the aforesaid North Avenue.” Count VI made essentially identical allegations against the city as in count III but inserted the words wilfully and wantonly for the words carelessly and negligently.
Counts IV and VII of plaintiff’s fourth amended complaint were against Illinois Bell Telephone Company. Count IV alleged that the company breached its duty to operate, manage, maintain, and control a certain wooden utility pole located near the intersection of North and Myrtle Avenues by negligently and carelessly placing this pole and other utility poles in a dangerous position along the lateral edge of North Avenue within six to 12 inches from the traveled portion of the highway “knowing that said placement violated standards of design and engineering if [sic] highways and their appurtenances and knowingly permitted those wooden utility poles to be continually subjected to collisions and collision damage from vehicles traveling on the aforesaid North Avenue.” Count VII made nearly identical allegations but inserted the words wilfully and wantonly for carelessly and negligently.
Counts V and VIII of the complaint were against Commonwealth Edison Company and contained the same allegations contained in counts IV and VII respectively.
Attached to the city of Elmhurst’s motion for summary judgment are certain portions of the transcripts of the depositions of Ronald Camire and Grace Martindale and four photographs of the intersection. No counteraffidavits were filed by plaintiff although five additional pages of Camire’s deposition were attached to plaintiff’s memorandum in opposition, to the summary judgment motion.
Ronald Camire stated in his deposition that the highest speed he was traveling down North Avenue prior to the impact with the Martindale vehicle was 65 miles per hour. He was traveling “just as fast as [he] could” in order to reach a hospital. As he was approximately a block away from the intersection at Myrtle, he began to slow down gradually since the traffic light facing him at the intersection had turned from green to yellow. Camire stated that he had a clear view of the traffic light, but he did not stop because he did not notice any cars on Myrtle Avenue at or near the intersection. Camire looked to see if any cars were “going to jump out.” He stated that he “just didn’t see” the car with which he collided. Camire approximated his speed at over 40 miles per hour at the time he arrived at the west curb of Myrtle Avenue. He stated that North Avenue is a tree-lined street with trees and bushes on the corners. Trees and bushes on the northwest corner of Myrtle “could be” the reason he didn’t see the other car. When he was a block away from Myrtle he could see 20 feet north of North Avenue on Myrtle. Camire testified that he knew he was going to go through the traffic light regardless of what color it was, and he was honking his horn.
Grace Martindale, in her deposition, stated that on the day of the accident, she was stopped at a red traffic light for southbound traffic on Myrtle Avenue at its intersection with North Avenue. She stopped her car approximately at the white line painted on the street. From that position she had visibility to see eastbound traffic on North Avenue. Nothing obstructed her vision. She looked to her right in a westerly direction and although she could see “a good half block,” she did not see any cars approaching. The light turned green, and she looked to the left and right and began to proceed slowly through the intersection. She did not hear anything unusual prior to her collision.
Plaintiff first contends that the trial court’s granting of the city’s motion for summary judgment on count II of plaintiff’s fourth amended complaint was error. Count II alleged, inter alia, that the city had breached its duty to properly maintain the intersection of North and Myrtle Avenues by negligently failing to remove trees and bushes obstructing the view of drivers approaching the intersection. A motion for summary judgment should only be granted if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1979, ch. 110, par. 57(3); Carruthers v. B. C. Christopher & Co. (1974),
‘It may be stated generally that if what is contained in the pleadings and affidavits would have constituted all of the evidence before the court and upon such evidence there would be nothing left to go to a jury, and the court would be required to direct a verdict, then a summary judgment should be entered.’ (Fooden v. Board of Governors,48 Ill. 2d 580 , at 587.) This court has also held that the entry of a summary judgment is proper when only a question of law is involved. (Allen v. Meyer,14 Ill. 2d 284 .) Thus, if under the pleadings and affidavits it appears that the defendant owed no duty to the incompetent) the granting of the motion for summary judgment was proper.”
Applying the above principles to the facts in this case, we find that the trial court correctly granted summary judgment for the city of Elmhurst on count II of the plaintiffs fourth amended complaint.
In attempting to argue that a material issue of fact exists, much of plaintiff’s argument attempts to demonstrate that the view of the two drivers of other traffic approaching the intersection involved was obstructed by the city’s failure to remove certain trees and bushes. Although an issue of fact may arguably exist as to whether the diagonal sight lines of motorists approaching the intersection was restricted, we find this to be unrelated to the material issues involved and not a proper basis for denial of summary judgment. The factual issues in dispute must be material to the essential elements of the cause of action or defense and those which are unrelated, regardless of how sharply controverted, do not warrant the denial of summary judgment. (Schultz v. American National Bank & Trust Co. (1976),
The city does not dispute the fact that it is under a duty to exercise ordinary care to maintain its streets, sidewalks, and adjacent areas in a reasonably safe condition. (Ill. Rev. Stat. 1979, ch. 85, par. 3—102; Janssen v. City of Springfield (1980),
The duty imposed on the city is that of ordinary care “to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reásonably foreseeable that it would be used * ° (Ill. Rev. Stat. 1979, ch. 85, par. 3—102(a).) A municipality or other public entity may incur liability for failure to maintain the visibility of a traffic control device (Bentley v. Saunemin Township (1980),
However, even assuming the existence of a duty on the part of the city under the circumstances before the trial court on the summary judgment motion, it is clear the trial court also could have concluded, as a matter of law, that the failure to remove the trees and bushes near the intersection furnished merely a condition of the plaintiff’s incompetent’s injuries and not the proximate cause.
The question of proximate cause is ordinarily one of fact for the jury. (Felty v. New Berlin Transit, Inc. (1978),
“The cause of an injury is that which actually produces it, while the occasion is that which provides an opportunity for the causal agencies to act. (Briske v. Village of Burnham,379 Ill. 193 .) The test that should be applied in all cases in determining the question of proximate cause is whether the first wrongdoer might have reasonably anticipated the intervening cause as a natural and probable result of the first party’s own negligence. (Seith v. Commonwealth Electric Co.,241 Ill. 252 .) If the act of a third party is the immediate cause of the injury and is such as in the exercise of reasonable diligence would not be anticipated and the third person is not under the control of the one guilty of the original wrong, the connection is broken and the first act or omission is not the proximate cause of the injury. There may be more than one proximate cause of an injury. But if two wholly independent acts, by independent parties, neither bearing to the other any relation or control, cause an injury by one creating the occasion or condition upon which the other operates, the act or omission which places the dangerous agency in operation is the efficient intervening cause that breaks the causal connection and makes the other act or omission the remote and not the proximate cause of the injury.” (381 Ill. 300 , 316-17,45 N.E.2d 665 .)
The Merlo case has been cited frequently in support of the critical distinction between a condition and proximate cause in situations somewhat analogous to the case here. See, e.g., Jeanguenat v. Zibert (1979),
Illinois cases cited by the plaintiff are distinguishable from the instant case. In Thorsen v. City of Chicago (1979),
In contrast, the alleged failure of the city to clear trees and bushes from the areas adjacent to the intersection controlled by a traffic signal was not a contributing factor to the injury. We conclude that, as a matter of law, the city could not have reasonably foreseen the intervening cause as a natural and probable result of its own alleged negligent omission of failing to keep the areas adjacent to the intersection free of trees and bushes.
Count III of the plaintiff’s fourth amended complaint was against the city of Elmhurst for negligently and carelessly permitting the placement of a certain wooden utility pole in a dangerous location along the lateral edge of North Avenue within 6 to 12 inches from the traveled portion of the highway. Count IV was against Illinois Bell Telephone Company for negligently installing and maintaining the utility pole in such a location. Count V made the identical allegations against Commonwealth Edison Company. These counts also allege that the respective defendants knew that the placement of the pole in such a location “violated standards of design and engineering of highways and their appurtenances and knowingly permitted those wooden poles to be continually subjected to collisions and collision damage from vehicles traveling on the aforesaid North Avenue.” All these counts also allege that as a result of these negligent and careless acts, plaintiff’s incompetent was caused to be injured when the vehicle in which he was a passenger collided with a wooden utility pole at the intersection of North and Myrtle Avenues after being struck by another vehicle being driven by Grace Martindale. The trial court’s dismissal of these three counts will be discussed together since the analysis centers on liability for placement of utility poles.
In reviewing a trial court’s order granting a defendant’s motion to dismiss a complaint, a court must determine whether the allegations of the complaint, when interpreted in a light most favorable to the plaintiff, are sufficient to set forth a cause of action upon which relief may be granted. (Brooks v. Village of Wilmette (1979),
an obligation of reasonable conduct for the plaintiffs benefit, is one of law for determination by the court. (Cunis v. Brennan (1974),
“While the existence of a legal duty is ordinarily considered in terms of foreseeability, the duty is not bottomed on foreseeability alone. (Cunis v. Brennan (1974),56 Ill. 2d 372 , 375,308 N.E.2d 617 , 618.) Other factors to be taken into consideration, besides the foreseeability of the possible harm, are the likelihood of injury from the existence of a condition, the magnitude of guarding against it, and the consequences of placing the burden upon the defendant. Barnes v. Washington (1973),56 Ill. 2d 22 , 29,305 N.E.2d 535 , 539.”
Applying these standards to the trial court’s dismissal of the aforementioned counts, we find that there was no error.
Regarding the liability of owners or occupiers of land for artificial conditions created thereon which cause injury to travelers on an adjacent highway, this court has recently cited with favor section 368 of the Restatement (Second) of Torts as being applicable to situations of this kind. (Hoffman v. Vernon Township (1981),
. “A possessor of land who creates or permits to remain thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact with such condition while traveling with reasonable care upon the highway, is subject to liability for physical harm thereby caused to persons who
(a) are traveling on the highway, or
(b) foreseeably deviate from it in the ordinary course of travel.” Restatement (Second) of Torts §368 (1965).
In Hoffman we stated that “[f]or a duty to attach the person must foreseeably deviate in the ordinary course of travel * * (
“The question of whether a legal duty exists must also be analyzed in view of the public policy favoring placement of utility poles along highway right-of-ways, and the State practice of regulation and approval of such placement. Electric poles are erected and maintained along most roads and streets in this state for a necessary public benefit. Generally, location of these poles in medians or on public right-of-ways adjacent to a road does not impose liability upon a utility company unless the placement creates a hazard for vehicular travel in the ordinary course of travel. (See Shapiro v. Toyota Motor Co. (1978),38 N.C. App. 658 ,248 S.E.2d 868 ; Simpson v. City of Montgomery (1968),282 Ala. 268 ,211 So. 2d 498 .) Aware of the undesirable consequences that would flow from imposing a duty upon Edison under the facts of this case, we decline to do so.”97 Ill. App. 3d 721 , 727,423 N.E.2d 519 .
Plaintiff, however, cites Kubala v. Dudlow (1958),
We must also note, however, that although plaintiff’s complaint additionally alleges that the utility poles lining North Avenue have been “continually subjected to collisions with automobiles,” we are unable to ascertain from this conclusory pleading what, if any, particular dangerous roadway condition may have caused automobiles to leave the roadway and collide with the utility poles. No facts are pleaded which indicate thát the prior accidents were foreseeable deviations from the roadway in the ordinary course of travel to give reasonable notice that the positioning of the utility poles presented an unreasonable risk. In addition, the complaint does not allege that the particular pole in question was ever struck before, nor does it correlate the condition, if any, which may have caused other utility poles along North Avenue to be struck by automobiles with any similar condition at the location of this occurrence. It is common knowledge that vehicles collide in roadways and on occasion leave the roadway and strike a utility pole or tree adjacent to the roadway. However, for a duty to third persons to be imposed upon those who erect and maintain such utility poles, there must be a reasonable anticipation of such deviation from the roadway as a normal incident of travel. (Restatement (Second) of Torts §368 (1965); Hoffman v. Vernon Township (1981),
“[The rule] applies also to those who reasonably and expectably deviate from the highway and enter upon the abutting land in the ordinary course of travel. The possessor is required to anticipate the possibility of such deviations and to realize, where a reasonable man would do so, that the traveler so deviating may encounter danger. The public right to use the highway carries with it the right to protection by reasonable care against harm suffered in the course of deviations which may be regarded as the normal incidents of travel.” (Emphasis added.) Restatement (Second) of Torts §368, comment e, at 269-70 (1965).
“In determining whether the condition is one which creates an unreasonable risk of harm to persons lawfully traveling on the highway and deviating from it, the essential question is whether it is so placed that travelers may be expected to come in contact with it in the course of a deviation reasonably to be anticipated in the ordinary course of travel. Distance from the highway is frequently decisive, since those who deviate in any normal manner in the ordinary course of travel cannot reasonably be expected to stray very far. c ° * Distance is important, however, only as it affects the recognizable risk; and other factors, such as the nature of the condition itself, its accessibility, and the extent and character of the use of the highway, must be taken into account.” (Restatement (Second) of Torts §368, comment h, at 271 (1965).)
The pleadings here fail to allege sufficient facts to create such a duty.
Our supreme court has recently addressed the question of the sufficiency of pleadings in Knox College v. Celotex Corp. (1981),
“Notice pleading, as known in some jurisdictions, is not sufficient under our practice act. (First National Bank v. City of Aurora (1978),71 Ill. 2d 1 , 8.) Although both sections 42(2) and 33(3) of our practice act contain provisions concerning liberal construction, such provisions do not remedy the failure of a complaint to state a cause of action. In People ex rel. Kucharski v. Loop Mortgage Co. (1969),43 Ill. 2d 150 , 152, this court stated:
‘This court has repeatedly held that a complaint which does not allege facts, the existence of which are necessary to enable a plaintiff to recover does not state a cause of action and that such deficiency may not be cured by liberal construction or argument.’ (Emphasis added.)”88 Ill. 2d 407 , 426-27.
Plaintiff further argues that the allegation that “said placement violated standards of design and engineering of highways and their appurtenances,” coupled with its allegation that utility poles were continually subjected to collisions, is a sufficient pleading to state a duty upon the defendants. Again, however, the failure to particularize or specify the “standards of design and engineering” as they relate to the particular utility pole's placement in question makes this allegation merely conclusory and insufficient to withstand a motion to dismiss. (See Richardson v. Eichhorn (1958),
Plaintiff’s allegation of wilful and wanton acts in counts VI, VII, and VIII is essentially identical to that made in the negligence counts except that the words wilful and wanton are substituted for careless and negligent. The mere substitution of the words wilful and wanton for the words careless and negligent before the essentially identical facts alleged in the negligence count does not constitute a sufficient averment of the ■requisite wilful and wanton state of mind. (Pendowski v. Patent Scaffolding Co. (1980),
Having concluded that these counts do not state a cause of action for failure to sufficiently plead the existence of a duty owed plaintiff, we need not reach the issue whether the allegations were sufficient to plead proximate cause.
Accordingly, the judgment of the circuit court of Du Page County is affirmed in all respects.
Affirmed.
LINDBERG and NASH, JJ., concur.