*1 rule relating sentencing cases, to the in criminal orders we elect sentencing not to address issue this time because the prin- in Wallace remand. ciples may possibly applied set forth judgment County denying circuit court Lake defend- ant’s guilty motion to withdraw the and vacate the plea judgment is reversed, and the cause is remanded for con- proceedings further sistent this opinion.
Reversed remanded. RJ.,
REINHARD, DUNN, J., concur. HUTCHINGS, al., Plaintiff-Appellant, MICHAEL EUGENE BAUER et
Defendants-Appellees. District No. 2 — 90—0689 Second 17, 1991. Opinion April filed *2 REINHARD, P.J., concurring part dissenting part. specially Jr., Gurnee, E Magna, appellant. Rudolph Amundsen, Martin, Resis, Querrey & Glen E. Ellen S. Michael Ltd., Harrow, Chicago, for appellees. opinion
JUSTICE BOWMANdelivered the court: Plaintiff, Hutchings, brought against Michael an action defend ants, of a acci Bauer, motorcycle as a result Elizabeth complaint Plaintiff’s two-count Township, dent Wauconda Illinois. conduct on the alleged negligence part and wanton willful that, for summary judgment, arguing defendants. Defendants moved Torts, no under section 368 of the owed Restatement mo granted The trial court duty to in this case. fact tion, present, issue of material finding genuine that no *3 authority that the of v. Moraites under Battisfore acci roadway “the was plaintiff’s deviation of as a normal incident travel.” dental from the roadway deviation enforcement or also no reason delay court found R. 304(a).) Ill. 2d (134 Court Supreme 304(a). order Rule pursuant granting court erred alleges Plaintiff and that trial appeals now and remand. reverse summary judgment. defendants’ motion for We on for our consideration following raises the contentions Plaintiff plaintiff to the be- that owed a of care (1) review: defendants reason- traveling that those with reasonably cause it foreseeable was it from in would deviate highway able care erected into barrier course travel and come contact defendants; statutory duty (2) that defendants violated had that obtained (3) and roadway; not to a public obstruct whereupon defend- defendants’ property, of a licensee upon status not to injure plaintiff. reasonable care ants then owed a depositions case, from the pleadings, of this adduced The facts May as follows. On file, can summarized and exhibits his when allegedly injured p.m., plaintiff 3:05 approximately of Cal- paved portion off the loose and went gravel slid on motorcycle constructed lahan and struck a barrier Township Road Wauconda that alleged complaint alternatively defendants. Plaintiff’s or and negligently carelessly willfully wantonly defendants and in an where knew or should post log horizontal area defendants have Road. known that vehicles leave northbound Callahan north and township running generally
Callahan Road road left prior south. Just to the location plaintiff’s motorcycle where pavement, runs in an east to west direction and then lane curves to the north. Plaintiff was in the northbound sharply Callahan Road at the time his entered the curve. South motorcycle there signs marking west the curve are several chevron There speed sign. curve. is also a limit 25-miles-per-hour “advisory” limit legal speed through the curve is 35 miles hour. Plaintiff per road, was familiar with the having traveled 5 to times in the accident, month to the he that knew there was sharp curve in road. Plaintiff had seen the posts upright had installed at least a half times dozen before and knew that there know, however, was a fenced-in pasture nearby. Plaintiff did not at the posts, grass, base the vertical and concealed by knee-high were posts. two horizontal logs or
On the accident, date plaintiff and several his friends were home from work returning and were riding motorcycles northbound Callahan Road. Plaintiff third a line of four motorcyclists with Brad Davis Ralph Galster in front and Carlos Nicoli behind. Plaintiff was riding near the outside or eastern-most portion of northbound Callahan Road. He hit some gravel loose he entered curve and east slid to the across the graveled feet, shoulder 10 or 15 grass then onto the to the east of the shoulder of the road. Plaintiff was between 35 to 37 miles per immediately hour he the highway before and approximately miles hour at time highway. left the Plaintiff actually then along traveled the grass parallel to and six approximately eight gravel feet from the for a shoulder distance of 150 to 300 feet before encountering defendants’ barrier. As traveled across the grass, he attempted reduce his speed regain control the time he motorcycle. By regained control his motorcycle, plain- tiff was 15 feet approximately from defendants’ barrier and was able *4 to reduce his speed At approximately to miles hour. per point, however, felt that he was still too going fast and was too close to the upright posts fence to be able turn his motorcycle to the to get order the back onto road. Plaintiff then decided to pass the and posts between second third rather than attempt lay ground. pass the As motorcycle attempted his down on between hour, hit the 15 miles an obstruc- upright posts about barrier, hit instru- plaintiff’s he hit head the tion. When he fell the side. motorcycle, ment on his and panel a business of accident, operated At the time of the the defendants consisting approxi- the raising Norwegian Fjord ponies acres, fencing and the mately grazing ponies required the of these the of the Along perimeter of the the immediate outside property. lane which traversed around defend- pasture fencing training trained their for a distance of 5.4 miles. Defendants ants’ property the includ- ponies training every year lane along practically day first recollec- Eugene 1985 and 1986. Defendant Bauer’s ing years prop- Road leaving entering tion of a vehicle Callahan 1973 after he his wife moved onto was in erty cars, came off motorcycles knew that trucks and Defendants these occurrences posts; at Callahan Road and broke fence curve At accident. plaintiff’s took to and after date of place prior both deposition time of his December defendant leaving of “far more than 50” incidents of vehicles Bauer aware A letter dated Novem- entering upon Callahan his property. Road Streed, superintendent ber from defendant to Edward dur- was introduced as exhibit Highway Department, Lake County fol- letter, defendant makes the deposition. defendant’s ing lowing statements: field, most of cars end some- up that
“Unfortunately another, gone damage out are can be get how or before them, know is on the short end of you who assessed *** stick. *** very band of Having having no alternative and sizable in this field month Norwegian past valuable horses This two, large posts.’ I have erected a barricade ‘barricade the ‘rollovers stop line and in such my position fence going to their fail to make the curve and/or others’ who to expand I to know that I intend fence. want through my you very, the use of additional through size this barricade me, are, ground). well into the posts (that believe very sizable again time until someone It is probably being ‘stopped’ curve and ends up road comes off by our barricade.” commissioner, testi- Gossell, Township
Frank the Wauconda right- was outside in his point impact fied licensed testified Degen, surveyor, Road. Robert of-way Callahan *5 point in his that he could not determine whether the of im- of for Callahan Road. De- pact right-of-way was inside outside the state, however, did that of two gen posts the vertical at- between, tempted post, to drive the was 21 western-most which feet from the of edge the would be within the while roadway, right-of-way, the which 26 feet post, edge eastern-most of the road- way, would be outside of right-of-way. in mind,
With these facts we turn now to of analysis our lower court erred in defendants’ motion for granting of summary judgment. Summary judgment is a drastic means dispos ing of litigation and therefore should be allowed only right when v. Hess (Purtill moving party is clear and free from doubt. 229, (1986), 240.) 111 Ill. 2d motion if granted only The shall be file, pleadings, depositions, admissions on together with affi davits, if any, genuine show that there is no issue any as to material fact moving and that entitled a party judgment is to a matter Purtill, of law. (Ill. Rev. Stat. par. 1005(c); ch. 111 Ill. 2 — 2d at must 240.) against court construe the evidence strictly Purtill, movant liberally in favor of the opponent. 2d at 240.
Necessary any recovery to based on is the negligence exist ence of a duty conform to a certain standard of conduct for the (Puttman v. May Co. Excavating protection of the plaintiff. (1987), i.e., 118 Ill. is 116.) 2d It well of question settled that duty, whether the defendant and stood such a relationship one another law defendant of imposed upon obligation reasonable conduct for the benefit is plaintiff, one law to be the court. (Kirk v. Michael Hospital Reese & Medical determined Center Ill. 2d foreseeability Reasonable injury ais (Kirk, 117 Ill. concern in key determining whether a exists. duty 2d at 526.) The court should also consider the likelihood injury, magnitude guarding against burden of it and the consequences (Kirk, of placing the burden on the defendant. at 526.) 2d law applicable motions for summary judgment which involve the is Washington in Barnes v. sue of has been set forth duty (1973), 56 Ill. 2d 22: “ may ‘It be stated if what generally that is contained in the
pleadings and affidavits would have constituted all the evi- dence before the court upon such evidence there would be nothing left togo and the jury, required court would be a verdict, direct then a summary judgment should be entered.’ This court has held that the entry summary also [Citation.] is when of law involved. judgment proper [Ci Thus, if and affidavits it pleadings appears under the tation.] incompetent, grant that the no to the defendant owed Barnes, judgment of the motion for ing summary proper.” at 26-27. Torts, of the Restatement (Second) Section 368 owner land abut general regarding states the rule of an highway may travelers who ting public highway protect land, long guided in contact with artificial conditions on the come (Re similar the instant case. Illinois courts in factual situations Torts (1965); statement Moraites §368 Battisfore Club, *6 164 Ill. 180; (1987), Ill. v. Midwest Inc. App. Kavanaugh 3d 213; 335; (1982), App. 103 Ill. 3d Boylan 3d Martindale App. Hoff 721; 3d West v. Faurbo Township (1981), App. man v. Vernon 815; 2d App. v. Dudlow Kubala Section 368 provides: thereon “A land creates or to remain possessor permits who existing so near an an excavation or other artificial condition that an highway that he realizes or should realize it involves brought to others into contact accidentally unreasonable risk care traveling upon with reasonable such condition while subject liability thereby harm physical is highway, caused to who persons
(a) highway, are on the tra- ordinary from it in course of (b) foreseeably deviate (Restatement (Second) §368, (1965).) of Torts at 268 vel.” the appli- The official comments to the Restatement further illustrate rule: cability reasonably expectably to those who applies also rule]
“[The abutting enter land upon deviate from the highway to an- is possessor required course of travel. ordinary realize, where deviations and possibility of such ticipate so, deviating that the traveler so man would do reasonable car- highway to use danger. public right may encounter against reasonable care right protection by ries with it the re- may in the of deviations which be harm course suffered normal incidents of travel. garded as
* * * the condition is one which creates determining whether on the travelling persons lawfully risk of harm to unreasonable is it, the essential deviating highway to come expected travelers be may it is so it in the course of a deviation to be reasonably contact with ordinary in the course travel. Distance from the anticipated deviate in decisive, any is since those who highway frequently cannot normal manner in the course of reasona- travel *** expected stray important, far. Distance is bly very however, risk; it and other fac- recognizable affects the tors, itself, accessibility, as the of the such nature condition extent highway, and the and character of the use of the must (Restatement §368, be taken into of Torts (Second) account.” e, h, (1965).) Comments at 269-71 Finally, provides Restatement an illustration of a factual situation involving a foreseeable deviation in the ordinary course travel: digs adjacent “1. A a ditch immediately highway upon cars, which his land at a point though carefully abuts where driven, are likely carefully to skid. B’s driven car skids off the and into ditch. A subject liability to B.” Re- highway §368, statement of Torts Illustration (1965). Reviewing the record in light guidelines, above we con clude that trial court erred in granting summary judgment defendants. believe was reasonably We foreseeable defendants under facts present would deviate from the road as he did as a normal incident travel. Defendants well were aware the fact that left the vehicles curve and entered From the time first considered purchasing in 1973 to property 4, 1980, Bauer’s November letter to the superintendent of the Lake County Highway Department, defend ants had knowledge actual at least 28 vehicles leaving the curve *7 Moreover, entering upon and at property. the time of his deposi in 1988, tion Eugene defendant Bauer “far was aware of more than 50” incidents leaving of vehicles Callahan Road his entering upon property. Defendant’s statement at his demonstrates the reasonable foreseeability that would leave road in the manner in barrier, which did and come in contact with defendants’ wit, only is time until someone probably again “[I]t comes off at that curve ends up being ‘stopped’ by our barricade.” in
Defendants their brief make much of the that plaintiff fact hit their barrier some 21 to 26 feet edge from road and some 100 to 300 feet from the point where first lost control distance, it With is that motorcycle. respect true “[distance decisive, from the is highway since those who in frequently deviate any normal manner in the reasonably course travel cannot of Torts expected stray very (Restatement (Second) §368, far.” h, at 271 this the time that a (1965).) comment Were first vehicle had onto we might Road entered defendants’ Callahan agree dispositive. distance in this case was be more inclined that however, However, it is also true is important, that “[distance risk; factors, it and other such as nature recognizable affects the itself, of the condition and the extent and character of accessibility, the use into highway, (Restatement of the must be taken account.” §368, h, (1965).) of Torts comment at Under facts of case, this where defendants had actual notice of numerous inci- dents, weigh these other factors do not defendants’ favor. Even substantial, though distance involved is defendants’ relatively bar- recognizable upon rier involved a hazard to travelers Callahan clearly account, it that the Taking recogniz- Road. these factors into is clear from the able risk is that vehicles which deviate curve Callahan Road will travel toward defendants’ in the area where property Moreover, (the the barrier. condition constructed nature barrier) moving that vehicles designed stop is such which might further onto defendants’ proceeding leave Callahan Road of the roadway The extent character of use is such property. left the previous that numerous occasions vehicles have conclude that entered We upon curve and this case does take accidental plaintiff’s distance traveled of the course of travel.” “ordinary deviation out ex deciding factor courts review when second harm occurring ists is likelihood of created injury Center Hospital v. Michael Reese & Medical (Kirk defendant. hard, Here, chose to 526.) put well-sup defendants oncoming might leave the path vehicles ported barrier to defendant According curved of Callahan Road. portion posts” used sizable deposition, “very Bauer in his the barricade circumstances, we these believe ground.” into the Under were “well is injury the likelihoodof obvious. magnitude on the issue of bur bearing
Also placing against consequence injury den guarding case, Ill. 2d In this we (Kirk, defendants. burden min consequences are relatively and the attendant believe the burden portion a small most, to move required imal. defendants could be At alternative, less As somewhat burdensome fence. pasture type. of a At the break-away could use softer barriers warning some form of least, posted defendants could have very of its existence to mo- barrier, give so as to notice near the horizontal
181 Thus, plight torists. we with the defendants’ sympathize while feelings have a such agree right protect case, that, not fact of this do vitiate the under circumstances a adjacent defendants also owed travelers on road- protect way. court, we note that the trial in defendants’ mo
Finally, granting for judgment, tion summary specifically relied v. Mo Battisfore App. raites the driver of a car in Battisfore, 180. plaintiff’s curve, which negotiate decedent was a failed to a passenger left road and struck a pillar cement erected Outboard Marine Corporation (OMC) protect Plaintiff, administrator of the estate of the deceased claimed passenger, that OMC was negligent or willful in and wanton the cement placing pillar immediately next at curve failing and in to warn travelers of its exist ence. This court affirmed the trial court’s granting summary judg ment, holding that defendant landowner no duty owed to plaintiff. Battisfore, 3d at 190. distinguishable We believe is instant case Battisfore First, respects.
two there is a great difference between the speed the vehicles in relation to the limits. The applicable speed Battisfore court found speed especially important, stating as follows: decedent road and collided with ce-
“[PJlaintiff’s ment pillars OMC’s land while in a car traveling 40 between per and 50 miles hour around a clearly marked and illuminated sharp area curve commercial for the general which 30- miles-per-hour speed along limit was reduced to 20 miles hour. Such per deviation was not in the ordinary course *** of travel. *** We do believe that should be OMC guard under the against injury circumstances here to plain tiff’s decedent who is while a injured passenger in a vehicle off the goes roadway striking pillar barricade while 50 traveling speed 40 to miles hour per around a curve in a marked clearly 20-miles-per-hour zone.” speed (Battisfore, 3d at Ill. App. 189-90.) Here, traveling at approximately per 35 miles hour when he lost his control of motorcycle. “advisory” speed While limit per hour, legal curve is 25 miles speed limit the area miles we per hour. As noted previously, Township highway Wauconda commissioner Gossell Frank testified that a person Thus, cannot be a ticket for given violating speed limit. advisory plaintiff’s traveling while decedent in in a car that was Battisfore hour, exceeding limit 20 to miles in the speed legal limit most present speed case was either or at *9 exceeding advisory limit miles hour.
Second, some mention of fact that cars while there was other of inci- Battisfore, prior had left the road the curve the evidence clear case dents was not as in that is here. Defendants here were leaving aware well over incidents vehicles Callahan Road Bauer entering accurately Defendant just that it was a matter of time before someone else predicted To the exist- stopped the road and was his barrier. the extent that foreseeability, ence of incidents affects reasonable evidence case more appears compelling us in the instant be much before than it was in Battisfore. did owe a
Accordingly, plaintiff we find in fact in this and that therefore the court erred in care case lower granting summary judgment.
Plaintiff contends that defendants violated a statutory also Here, a public highway. not to obstruct the basic issue becomes to the location of whether a issue of material fact exists as genuine In relative to the right-of-way. Callahan Road barrier however, has inconsistent and in- regard, plaintiff’s position been both complete. alia, plaintiff alleges,
In his inter that defendants were complaint, Highway in that violated section 9—117 of Illinois negligent 1987, 121, 117), prohibits Stat. ch. which (Ill. par. Code Rev. 9 — or of certain In his obstructing highways. appellate initial injuring brief, however, for argues the first time that defendants’ bar plaintiff “An a nuisance in of section public 221(5) rier constitutes violation Rev. jurisprudence” (Ill. Act to the law in relation to criminal revise 1989, 100½, he cites cases for 26(5)). Although ch. par. Stat. several held may that violation of certain statutes be general proposition Dini Naiditch (see, e.g., v. prima negligence evidence be facie no au 406), pertinent us with (1960), provided 20 Ill. 2d argument, in the relative viola way little thority, precious not the al statute. Plaintiff does address tions of the nuisance public brief, than make a in his initial other Code violation leged Highway complaint in his where the violation reference to paragraph bare He no or provides argument as an act of alleged negligence. was first Highway violations of the authority regarding citation to pertinent brief, In continues violation reply argue Code. cites, time, statute, first support nuisance but in thereof Code. See v. concerning violation of Swett authority Highway Village (1988), App. 169 Ill. 3d 78. Algonquin not in the course, it is well settled that raised questions Of the first are appeal trial court cannot be raised for time Kennedy Co. v. Chi (George City deemed waived. W. Construction 2d Ill. cago (1986), 77; Burys (1989), 112 Ill. v. First Bank 3d 384, 387-88.) addition, argued sup raised not App. points but ported authority with brief are also deemed waived party’s (134 v. purposes 341(e)(7);People Dinger (1990), review. 2d R. 254;
136 Ill. 2d Burys, App. 387-88.) reviewing 187 Ill. 3d at A clearly court entitled to have issues defined pertinent author cited and ade ity arguments arguments cohesive presented, presented on quately waived. v. Immanuel may (Spinelli Evangelical 389, 401; Lutheran Inc. 118 Ill. Congregation, (1987), 2d v. 1087; Vincent Doebert App. 3d Pecora Szabo 825-26.) This court is not simply depository may dump argument burden *10 Pecora, research. 109 Ill. 826. App. 3d at Here, plaintiff’s argument violation of regarding the a statu duty consists of tory gives two us little assistance in pages our this light consideration of issue. In the above we principles, that, conclude the while location of the defendants’ barrier relative to Callahan Road right-of-way constitutes a factual the dispute, material effectively argument waived relevant to al any leged violations of the Code the nuisance statute. Highway
For the foregoing reasons, we conclude that not defendants were entitled to as judgment a matter of law and that the trial im- court granted properly defendants’ judgment. motion summary Having concluded, so we need not plaintiff’s remaining consider contention appeal. judgment court reversed, circuit of Lake County and the cause is remanded for further with proceedings consistent this opinion.
Reversed and remanded.
McLAREN, J., concurs. REINHARD,
PRESIDING JUSTICE dissenting in part spe- concurring in cially part:
I believe majority’s approach unduly expands duty by owed landowners to on adjacent highways. travelers majority finds defendants, Bauer, Elizabeth duty owed a care ordinary 184 driving motorcycle along
to Michael who was plaintiff, Hutchings, highway adjacent reaching conclu- sion, the reliance on section 368 of the Re- majority places primary statement Restatement (Second) (hereinafter Restatement). Torts §368, at 268 (Second) (1965). Torts
Assuming log that the horizontal collided was on defendants’ I do believe section entirely located courts, 368, interpreted places duty ordinary care on as Illinois Illinois, never rule in section Although adopted defendants. 368 as a of the common-law rule persuasive presentation has been viewed adjacent highways. regarding of landowners travelers duty (Ziemba 42, 48. But Cross v. (1991), Mierzwa 2d see Moehring (1989), (declining 3d 832 to follow section App. However, applies only of care embodied section 368 368).) occurring foreseeable roadway ordinary deviations 186 3d App. of travel. v. Moraites Ill. (Battisfore course rule refer The Restatement’s illustrations to artificial con to” or “within a few inches of” the “immediately adjacent ditions §368, 2,1, of Torts Illustrations highway. Restatement 270- 71 (1965).
Here, impact edge at least 21 feet from the point of 150 feet from first point at least found condi Court cases have artificial Appellate road. Other Illinois scope outside the private property tions on closer v. Vernon (Hoffman Township under section 368. duty imposed 16 feet from (utility pole placed Ill. (1981), 97 3d App. (striking roadway); West v. Faurbo swerving to public block four or five feet off sidewalk when concrete neither an incidental deviation from the avoid a automobile is moving Although nor an a landowner’s travel).) sidewalk incident on an can be ex adjacent highway of care to those (W. it inadvertently” a few feet from stray tended “those who *11 §57, (5th 1984)), plain 389 Keeton, Keeton on Torts at ed. Prosser & traveling 10 miles while significant departure roadway tiff’s from as an inci limit cannot construed hour over the advised be per speed of travel. incident dental deviation or based prior from cases distinguishable this case The finds majority the legal plaintiff travelling the fact that (1) on two factors: of from the based limit; foreseeability deviations (2) speed I find factor determinative here. neither occurrences. prior hour at 10 miles over First, per admits he was The attention per majority’s limit of 25 miles hour. advisory speed
185 speed only advisory to the fact that 25 limit was per miles hour not a might prosecution if this case were mandatory appropriate However, speeding. at which was advised could speed travel limit. The safely speed is even more relevant than the actual limit, which not to drive faster than advisory speed warned hour, miles is more related to the of directly plaintiff was “traveling highway.” with reasonable care Re- §368, statement of Torts at 268 (1965).
Second, I foreseeability find occurrences to be of based deceptively importance little in the instant scenario. Defendants the protective barrier on their because property precisely they foresaw that cars straying roadway could enter property their a point along which defendants their horses day. trained almost every fact, defendants asked township protect to install a guardrail them and their township but declined to do so. Ironically, of foreseeability leaving roadway cars could also rise to give on the duty part to erect a in order protect barrier persons Robin, lawfully property. (See v. Cock Ray Inc. 23.) Ill. 2d The foreseeability leaving cars cannot operate to impose duty on defendants both to erect and erect a protective barrier. cite, does not majority discovered, nor own my research
case applying section 368 the Restatement wherein the obstruction complained explicitly designed in response to foreseeable devia tions However, it is roadway. well established that the exist ence of a is not duty (Cunis bottomed on alone. foreseeability v. Bren nan (1974), 372, 375.) 56 Ill. 2d Courts must also consider the burden the defendant imposing and the consequences imposing (Ziemba, this burden. 2d at The majority underestimates I approach place upon see, burden will landowners. fail to example, utility suggesting that imposed defendants should have a break-away fence when the purpose stop the fence was to cars from careening onto the I it horse track. also find inappropriate sug gest that landowners such as place defendants should protective fences farther find roadway. back from the majority may While easy defendants, make suggestion such a comprises whose rural property approximately acres, we must be a rule which wary adopting could also to urban apply very landowners who have built to the edge Cross, of their lot lines. See 832. 3d at Moreover, I feel that it unwise to limited expand very of abutting landowners into a far-reaching duty more to assure the general leave safety roadway. travelers whenever *12 instruc- of New York are for the State Appeals of the Court of words this point: tive on conclusion, require this rule would logical to its
“Carried tree, fence, mailbox or name every post, landowner remove highway, in the property vicinity on his sign located This, in our remain, liability. subject possible them to permit upon property intolerable burden opinion, impose would owner.
* * * municipality, the State or the continuing duty It is the and streets landowners, highways maintain the abutting *** by public. use safe condition reasonably narrow, objects is too because right way If the public ac- the State to land, upon should fall the burden abutting Hayes ***.” right way for its quire property additional 299-300, N.E.2d 696-97 26 N.Y.2d Malkan on private the condition is extend a where (refusing right-of-way). and not within the property and, these concerns slights the majority followed by The approach safety their own disregard landowners to act requires ironically, this be an I find that would of others. protect safety in order to landowners. I there- place responsibility unduly burdensome insofar as it reverses majority of the opinion fore dissent owed a holds that defendants for defendants summary judgment on their property. occurred if the collision even plaintiff that the however, allegations there are also- case, In the present right-of-way within collided was with which obstruction and, in the trial the issue on Plaintiff raised Callahan Road. that two of the testimony assertion court, by supported right-of-way. into the defendants extended erected posts by vertical portion as to whether raised Thus, been question a factual col either with which line of erected posts I believe right-of-way. on the is located to avoid attempted lided or right-of-way in the placed obstruction with an that, if collided to determine jury for the defendants, then it would be danger an unreasonable as to create was such object placement Co. v. Di Vito Construction (See Kinsch the highway. travelers on shoulder block (concrete there Because N.E.2d at 26 N.Y.2d road); Hayes, I agree in this regard, of fact remains a material of defendants in favor judgment summary entry majority theory. on this based reversed, allegations as to the in part, must-be