Case Information
*1 I LLINOIS O FFICIAL R EPORTS Appellate Court
Rommel v. Illinois State Toll Highway Authority
,
ILLINOIS STATE TOLL HIGHWAY AUTHORITY, Defendant- Appellee (Caritina Moncada-Jaime, Defendant).–ANTONIO LEWIS, Individually and as Special Administrator of the Estate of Shayula Lewis, Deceased, and on Behalf of, for the Benefit of, and as Father and Next Friend of Kierra Lewis, a Minor, Plaintiff-Appellant, v. THE ILLINOIS STATE TOLL HIGHWAY AUTHORITY, Defendant-Appellee.–JAMES NEUKIRCH, as Special Administrator of the Estate of Mark E. Neukirch, Deceased, STEPHEN KUGELMAN, as Special Administrator of the Estate of Mathew Kugelman, Deceased, and JEANINE DOMBROW, as Independent Executor of the Estate of Matthew Dombrow, Deceased, Plaintiffs-Appellants, v. THE ILLINOIS STATE TOLL HIGHWAY AUTHORITY, Defendant-Appellee.–RUTH SMITH and DONALD SMITH, Individually and as Parents and Next Friends of Hannah Smith, a Minor, Issac Smith, a Minor, and Zofia Smith, a Minor, Plaintiffs- Appellants, v. THE ILLINOIS STATE TOLL HIGHWAY AUTHORITY, Defendant-Appellee.–MARIA VILLALOBOS, as Special Administrator of the Estate of Leopoldo Villalobos, Jr., Deceased, and MANAR M. DAHLEH, as Special Administrator of the Estate of Mohammed M. Dahleh, Deceased, Plaintiffs-Appellants, v. THE ILLINOIS STATE TOLL HIGHWAY AUTHORITY, Defendant- Appellee.
District & No. Second District
Docket Nos. 2-12-0273, 2-12-0274, 2-12-0275, 2-12-0276, 2-12-0277 cons.
Filed September 9, 2013
Held In five consolidated cases arising from two-car head-on collisions on a tollway, the trial court properly dismissed complaints against the tollway ( Note: This syllabus authority alleging negligent maintenance and voluntary undertaking in constitutes no part of the opinion of the court connection with the median separating traffic, since there is no liability but has been prepared in Illinois, even when crossover collisions are facilitated by the way a by the Reporter of median is maintained, and held that no duty was owed by the Decisions for the tollway authority with regard to the median. convenience of the reader. )
Decision Under Appeal from the Circuit Court of Du Page County, Nos. 05-L-1301, 10-L- 51, 06-L-163, 09-L-508, 07-L-527; the Hon. Dorothy French Mallen, Review
Judge, presiding.
Judgment Affirmed.
Counsel on Robert A. Clifford, Robert P. Walsh, and Craig J. Squillace, all of Clifford Law Offices, P.C., and J. Timothy Eaton and Patricia S. Spratt, Appeal
both of Shefsky & Froelich, Ltd., both of Chicago, for appellants. Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, and Christopher M.R. Turner, Assistant Attorney General, оf counsel), for appellee.
Panel JUSTICE BIRKETT delivered the judgment of the court, with opinion.
Justices Hutchinson and Spence concurred in the judgment and opinion. OPINION
Five separate cases were consolidated due to the similarity of the issues. In each case, a
two-car head-on collision leading to injury or death provided the factual backdrop of the
cоmplaint. Defendant, the Illinois State Toll Highway Authority (Authority), moved to
dismiss each complaint on the basis that defendant owed no duty regarding the median
separating traffic. The trial court certified two questions for permissive interlocutory appeal
pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010). This court answered the
*3
questions and held that defendant owed no duty regarding the median.
Rommel v. Illinois
State Toll Highway Authority
,
cases before us. This appeal arises from five separate actions, each alleging injuries arising from a two-car head-on collision on Interstate 90 (northwest tollway), a portion of the Illinois tollway system. In each action, a vehicle lost control and left the roadway, crossed a 50-foot median, and encountered oncoming traffic, striking a vehicle and injuring or killing plaintiffs or their decedents. Plaintiffs in the five actions–Barbara Rommel, individually and as special administrator
of the estate of Timothy Rommel, deceased; Antonio Lewis, individually and as special administrator of the estate of Shayula Lewis, deceased, and on behalf of, for the benefit of, and as father and next friend of Kierra Lewis, a minor; James Neukirch, as special administrator of the estate of Mark E. Neukirch, deceased; Stephen Kugelman, as special administrator of the estate of Mathew Kugelman, deceased; Jeanine Dombrow, as independent executor of the estate of Matthew Dombrow, deсeased; Ruth and Donald Smith, individually and as parents and next friends of Hannah Smith, a minor, Issac Smith, a minor, and Zofia Smith, a minor; Maria Villalobos, as special administrator of the estate of Leopold Villalobos, Jr., deceased; and Manar M. Dahleh, as special administrator of the estate of Mohammed M. Dahleh, deceased–filed suit against defendant alleging, in each case, that defendant should have (1) added guardrails or other barriers to the medians; (2) maintained the slope or shape of the medians differently to render them safer to drive over; and (3) erected signs warning motorists of the danger of crossover accidents due to the slope or condition of the medians. The cases were consolidated. After many iterations of amended сomplaints, the trial court granted plaintiffs’ motion
to allow them to plead “that there was something that was done maintenance-wise that
caused this median to be not reasonably safe.” Plaintiffs then moved to certify two questions
for interlocutory appeal under Illinois Supreme Court Rule 308 (eff. Feb 26, 2010).
This court allowed plaintiffs leave to appeal and addressed two certified questions in
,
“ ‘[1.] Does [defendant] have a common law duty to its users to correct, repair and/or improve its tollway system to prevent against “crossover” vehicle collisions when it was on notice that crossover vehicle collisions had occurred under the facts alleged by the Plaintiffs?
[2.] Does the Illinois Road and Bridges Tollway Highway Act [(Act) (605 ILCS 10/1 *4 et seq. (West 2008))] impose upon [defendant] a statutory duty to its users to correct, maintain, repair or improve its tollway system as is alleged by the Plaintiffs to prevent against crossover vehicle collisions?’ ” Id. at 1125. We answered both questions in the negative. Id. Concerning the first question, after
reviewing the relevant factors regarding the question of duty (reasonable foreseeability of injury, likelihood of such injury, magnitude of guаrding against the injury, and consequences of placing that burden on the defendant), we determined that, in DiBenedetto v. Flora Township , 153 Ill. 2d 66 (1992), the Illinois Supreme Court had already resolved the question:
“In DiBenedetto ***, the supreme court considered a township’s duty to a driver who died after his car veered out of his lane, crossed over the shoulder, and landed in a steeply pitched drainage ditch parallel to the road. [Citation.] The driver’s estate argued that the township should be held liable for its failure to remedy the dangerous condition created by the ditch, but the supreme court affirmed the trial court’s decision to dismiss the case on the ground that the township owed no duty to make the drainage ditch safe for motorists.” ,405 Ill. App. 3d at 1126 . We reasoned that, under DiBenedetto , the entity maintaining a road has a duty to
maintain only the traveled way in a reasonably safe condition, regardless of the foreseeability of a driver veering from the road. Id. at 1127. We concluded that, like the drainage ditch in DiBenedetto , the grassy median at issue here need not be maintained as a safe way for driving. Id. Plaintiffs argued that, notwithstanding DiBenedetto , defendant should not be held to the
duty imposed on government overseers of public roads, but to the higher duty a business owner owes to its invitees, which requires the owner to maintain its property in a reasonably safe condition. Id. at 1127-28. However, because the DiBenedetto analysis was not premised on the defendant’s status as a government entity, but on the notion that an entity that maintains roads owes a duty only to keep those roads reasonably traversable, DiBenedetto foreclosed plaintiffs’ argument. Id. at 1128. Thus, we answered the first certified question in the negative. As to the second certified question, we examined the language of the Act and noted that
it did not explicitly impose a duty on defendant, it was not designed to protect human life or property, and it only authorized, rather than mandated, defendant to undertake certain acts and did not specify the manner. Id. We also rejected out-of-state authority cited by plaintiff, as we were bound to follow the precedent of the Illinois Supreme Court. Id. Accordingly, we answered the second certified question in the negative. The matter was remanded to the trial court for further proсeedings. On remand, defendant again moved to dismiss each of plaintiffs’ complaints arguing that,
under the law of the case per , plaintiffs could not sufficiently plead the essential element of duty, and so they could not maintain a claim on which relief could be granted. Plaintiffs responded that did not foreclose each of their claims that defendant created a dangerоus condition on the median by failing to properly maintain it. Plaintiffs asserted that each of their maintenance claims was not included in the certified questions, as *5 they had deliberately excluded the term “maintain” from the first certified question to avoid review of that specific issue. In addition, plaintiffs argued that the trial court had previously permitted them to proceed on the maintenance claim and could revisit the issue because there was no final judgment.
¶ 12 The trial court applied Rommel I to each claim and concluded that defendant had no duty
to maintain the median to prevent crossover collisions, even though it performed maintenance on the median that decreased a driver’s ability to recover. Referencing the answers to the certified questions, the trial court stated, “I think the answer to the question is broad enough that it tells me, as the trial judge, that there is no duty on the part of [defendant] to correct or repair any maintenance that [it] did on the median strip which may have resulted in a defect which could be a proximate cause of the injuries sustained by the plaintiffs.” The trial court, therefore, granted defendant’s motions to dismiss plaintiffs’ complaints. Plaintiffs timely appeal. II. ANALYSIS Plaintiffs make a number of arguments that appear only to rehash their arguments in and to ignore ’s conclusion that defendant did not owe a duty to correct,
repair, and/or improve the median to prevent crossover collisions. Indeed, plaintiffs proceed
through the four duty factors and argue that defendant did owe a duty to guard against
crossover accidents. We need not consider the stаndard of review on the issue of duty, as
plaintiffs argue, because we apply the law-of-the-case doctrine. As the application of the law-
of-the-case doctrine is a question of law, our standard of review is
de novo
.
In re Christopher
K.
,
case (
Village of Ringwood v. Foster
,
in a Rule 308 interlocutory appeal, citing
People v. Patterson
,
reviewing court’s original decision, a higher reviewing court makes a contrary ruling on the
*6
same issue; and (2) when a reviewing court finds that its prior decision was рalpably
erroneous.
Bjork v. Draper
,
Supreme Court in Simpkins v. CSX Transportation, Inc. , 2012 IL 110662, rejected the “formulaic approach to duty” advanced by defendant and, apparently, used by this court in determining the duty issue in Rommel I . However, as defendant points out, Simpkins is not a contrary ruling and does not address the same issue as Rommel I . The “contrary ruling” exception applies where thе higher court “decides the precise
question contrary to the rule announced in the appellate court.” (Emphasis added.)
In re
Application of Kane County Collector
,
requiring us to revisit the question of duty posed in both of the certified questions addressed
in
Rommel I
. We disagree.
Simpkins
applied the same general duty principles that we
outlined in
Rommel I
and that our supreme court considered in
DiBenedetto
. See
id.
¶ 18
(duty analysis includes “(1) the reasonable foreseeability of the injury, (2) the likelihood of
the injury, (3) the magnitude of the burden of guarding against the injury, and (4) the
consequences of placing that burden on the defendant”);
DiBenedetto
, 153 Ill. 2d at 72
(discussing foreseeability, likelihood of injury, and burdens and consequences in determining
the defendant’s duty);
Rommel I
,
compelling in plaintiffs’ arguments to merit reconsideration of our holding thеre. The
palpably erroneous exception applies only where the court’s prior decision was obviously or
plainly wrong.
Radwill
,
shoulders, and drainage ditches” were to be maintained only for their intended uses, whereas
here the normal and intended use of the median is to facilitate safe travel. We disagree with
plaintiffs’ characterization. While
DiBenedetto
does note the “normal and intended use” of
the drainage ditch, the focus is not on its specific purpose, but rather on what the “normal and
intended use” was
not
. That is, the court focused on the lack of expectation of vehicular
traffic in the ditch. See
DiBenedetto
,
insofar as they attempt to relitigate Rommel I , including the factors evaluated in determining whether a duty exists, the relationship between defendant as a business owner and plaintiffs as invitees, a statutory duty imposed by the Act, and out-of-state authority supporting liability for toll authorities in similar situations. Thus, we are left with plaintiffs’ argument that the trial court, in dismissing plaintiffs’
complaints, improperly applied to their claim that defendant’s negligent
maintenance created dangerous conditions by changing the slope or the surface of the median
so that an out-of-control car was less likely to regain control. We review the dismissal of
plaintiffs’ complaints
de novo
(
Lacey v. Village of Palatine
,
although defendant was not obligated to “install” the grassy median, it voluntarily undertook
to do so, thereby assuming a duty to ensure that the median was properly maintained.
Plaintiffs now contend that this question was not addressed in . While we did not
exрlicitly decide in whether defendant had a duty to “maintain” the median so as
to prevent crossover collisions, it was decided by necessary implication. See
Reich
, 308 Ill.
App. 3d at 829. As noted by the First District, “ ‘maintenance’ ” concerns “ ‘[t]he
performance of all things necessary to keep a highway in serviceable condition for vehicular
traffic,’ ” while “improvement” “involves the exрenditure of labor or money and is designed
to make the property more useful or valuable as distinguished from ordinary repairs.”
Anderson v. Alberto-Culver USA, Inc.
,
manner that facilitates crossover collisions, there is no liability. See,
e.g.
,
Knight v. City of
Chicago
,
affirmed. Affirmed.