BERNADETTE SEXTON, Individually and as Independent Executrix of the Estate of Gerald S. Sexton, Deceased, Plaintiff-Appellant, v. THE CITY OF CHICAGO, a Municipal Corporation, Defendant-Appellee.
No. 1-10-0010
Appellate Court of Illinois, First District, Fourth Division
August 16, 2012
2012 IL App (1st) 100010
Held
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
In an action for the death of plaintiff‘s husband when the vehicle he was driving was struck by a train at a dangerous intersection, the grant of defendant city‘s motion for judgment notwithstanding the $5 million verdict for plaintiff was upheld on the ground that section 104 of the Tort Immunity Act immunized the city from liability for failing to install special traffic control devices.
Decision Under Review
Appeal from the Circuit Court of Cook County, No. 05-L-917; the Hon. Donald J. Suriano, Judge, presiding.
Judgment
Affirmed.
Larry R. Rogers, Jr., of Power Rogers & Smith, P.C., of Chicago, for appellant.
Mara S. Georges, Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and Jennifer M. Erickson Baak, Assistant Corporation Counsel, of counsel), for appellee.
Panel
JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion.
Justice Quinn1 concurred in the judgment and opinion.
Justice Howse dissented, with opinion.
OPINION
¶ 1 This case arises out of a collision between a commuter Metra2 train and a passenger vehicle (a Ford Escort station wagon), which occurred on February 10, 2004, at the intersection of 111th and Marshfield Streets in Chicago, and which resulted in the death of the vehicle driver, Gerald Sexton. Gerald‘s wife, Bernadette Sexton, the plaintiff in this cause, both individually and as the independent executrix of Gerald‘s estate, filed a complaint at law alleging negligence and willful and wanton misconduct against several defendants, including, pertinent to this appeal, the City of Chicago (City). The plaintiff alleged that the City, which operated and maintained the preemption traffic control system at the intersection of 111th and Marshfield Streets, negligently failed to include in that preemption system a blank-out sign or a warning signal, which would alert drivers that they would be crossing a train track immediately after making a westbound right turn onto 111th Street.
¶ 2 After a jury trial, the jury returned a verdict in favor of the plaintiff in the amount of $5 million. The City filed a motion for judgment notwithstanding the verdict, arguing that it was entitled to judgment as a matter of law on several grounds. First, the City argued that it was immune from suit pursuant to section 3-104 of the Local Governmental and Governmental
¶ 3 The plaintiff now appeals, contending that the judgment n.o.v. was improper under any of the City‘s three claims and that we should reverse that finding and reinstate the jury verdict. In the alternative, the plaintiff asserts that we should reverse and remand for a new trial because the trial court abused its discretion in denying her request to instruct the jury with a far more comprehensive version of Illinois Pattern Jury Instructions, Civil, No. 20.01 (Illinois Pattern Jury Instructions, Civil, No. 20.01 (3d ed. 1989) (hereinafter, IPI Civil 3d No. 20.01)), which would have included over a dozen specific alleged acts of negligence against the City. In the very least, the plaintiff contends that we should reverse the trial court‘s decision to deny her leave to file her third amended complaint, so as to permit her to address any shortcomings in her pleadings and to proceed further with this case. Specifically, the plaintiff asks that we permit her to amend her complaint to include the dozen additional alleged acts of negligence against the City that she attempted to include in her jury instructions, but failed to specify in her second amended complaint. For the reasons that follow, we affirm.
¶ 4 I. BACKGROUND
¶ 5 The following facts are undisputed. Interstate Route 57 (hereinafter, I-57) runs north-south and parallel to Marshfield Street. For vehicles traveling southbound on I-57 there is an exit onto Marshfield Street, which continues to run parallel to I-57 on the east and parallel to the Metra train tracks on the west. The first intersection encountered by a southbound vehicle traveling on Marshfield is the 111th Street crossing. At the 111th Street crossing, Marshfield Street is comprised of three lanes: (1) a left lane for left (east) turning traffic; (2) a center lane for traffic continuing straight ahead on Marshfield Street and (3) a right lane, from which traffic can either continue straight onto Marshfield Street or turn right (west) onto 111th Street. A vehicle turning right (west) onto 111th Street encounters the Metra train tracks within 200 feet of that turn. Metra owns and operates the crossing gates and the cantilever lights located immediately in front of the train tracks. The City, however, owns and operates all of the traffic lights at the intersection of 111th and Marshfield Streets. On February 10, 2004, the plaintiff‘s husband, Gerald, was killed by a Metra train, which struck his vehicle after it made a right (west) turn from Marshfield Street onto 111th Street and attempted to cross the train tracks.
¶ 7 Discovery continued for the next several years, during which the following relevant pleadings were filed by the parties. On February 2, 2007, Metra filed a contribution claim against the City repeating the allegations contained in the plaintiff‘s second amended complaint against the City, but adding that the City was also negligent because it failed to heed to the advice and the directives from the Illinois Department of Transportation (hereinafter, IDOT) to install a “no right turn” sign or arrow for southbound Marshfield Street drivers advising them that the railroad warning signals had engaged and that they should not make a right turn and proceed into the railroad right of way.
¶ 8 On June 25, 2008, the City filed its first motion for summary judgment against both the plaintiff and Metra, arguing that it was immune from liability4 for failing to install warning devices at the 111th Street railroad crossing pursuant to section 3-104 of the Tort Immunity Act (
¶ 9 On March 5, 2009, the City filed its second motion for summary judgment against the plaintiff (and Metra) alleging that the plaintiff‘s claim was barred by the exclusivity
¶ 10 In support of this contention, the City filed an offer of proof regarding an agreement reached by the City and the plaintiff regarding Gerald‘s workers’ compensation death benefit claim. That offer of proof included uncertified copies of: (1) an application for adjustment of claim form filed by the plaintiff pursuant to the Workers’ Compensation Act on April 1, 2004, and (2) the plaintiff‘s request for a hearing on that matter. The hearing request form reveals that the City and the plaintiff were prepared to try the matter to its completion on February 27, 2009, unless the arbitrator approved other arrangements. The request further reveals that the plaintiff and the City specifically stipulated to the following relevant facts: (1) that Gerald and the City were operating under the Illinois Workers’ Compensation Act and that their relationship was one of employee and employer; (2) that Gerald sustained accidental injuries that arose out of and in the course of employment; (3) that his death was causally connected to this injury; (4) that the City was given notice of the accident within the time limits set forth in the Act; (5) that Gerald‘s yearly earnings were $70,441.28; (6) that at the time of the injury Gerald was 60 years old; and (7) that the City paid $237,858.34 in death benefits to the plaintiff as executrix of Gerald‘s estate.
¶ 11 The plaintiff responded to the City‘s second motion for summary judgment by arguing that she could proceed with her negligence claim because the dual capacity doctrine applied as an exception to the exclusive remedy provision of section 5(a) of the Workers’ Compensation Act (
¶ 12 At the hearing on the City‘s second motion for summary judgment, the circuit court first noted that, although not argued by the plaintiff in her response to the City‘s second motion for summary judgment, it was apparent to the court that the City had failed to raise the exclusivity provision of the Workers’ Compensation Act as an affirmative defense in any of its prior pleadings (particularly its answer and first motion for summary judgment).6 The
¶ 13 The circuit court denied the City‘s second motion for summary judgment. It is unclear from the record whether the circuit court denied the motion on the merits or on waiver grounds. The record reveals that the court first found that the City had acted in a dual capacity with legal obligations independent of those imposed upon it as an employer, namely, its duty to the public as a whole to maintain safe roads. The court specifically stated:
“The court is denying the City‘s motion for summary judgment. The exclusive remedy provision of section [5(a)] *** of the Workers’ Comp Act includes several exceptions, and the Court has focused on the dual capacity doctrine, or as some courts have called it, the dual persona doctrine.
In this case, the City operated as an employer and it operated in a second capacity that *** confers upon it obligations independent of those imposed upon it as an employer.
The court has relied on a variety of cases, Smith, Sobczak *** and Ocasek.
Plaintiff and Metra have clearly shown that the City had a dual capacity in the instant case, and that in its second capacity *** ‘generates obligations unrelated to those flowing from the first, that of employer.’
***
The City of Chicago clearly owed a duty to the public in general to maintain and operate traffic control systems, and this duty is wholly independent of any duty owed to Mr. Sexton as employer.
Finally, in the most recent case, Sobczak *** points out that section 5(a) immunity exists if there is a significant legal relationship between the plaintiff and defendant separate and apart from the employer-employee relationship.”
¶ 14 However, in a subsequent colloquy between the circuit court and the City‘s counsel, the court also made the following comments:
“THE COURT: Secondly, the Court doesn‘t need to get there, but the Court accepts the arguments of Metra and [defense counsel] in regard to the City‘s waiver. The City failed to plead in its answers immunity under section 5(a) of the Workman‘s Comp Act and the statute of limitations, and the City should have pled that.
Sir, can I ask why the City didn‘t plead it after five years?
MR. GLOCKNER: Judge, the workers‘-
THE COURT: It wasn‘t very hard to plead-
MR. GLOCKNER: The workers‘-
THE COURT: -was it?
MR. GLOCKNER: The workers’ compensation case was pending until very recently. It was resolved very shortly ago; actually, February 27th of 2009.
THE COURT: Well, you still–the City still should have pled that.”
¶ 15 After the circuit court‘s denial of its second motion for summary judgment, the City moved for leave to raise the exclusivity provision of the Workers’ Compensation Act (
¶ 16 The case finally proceeded to trial on July 24, 2009. The plaintiff presented 10 witnesses: (1) Dr. Susanne Botana, who witnessed the accident from her vehicle, which was immediately behind Gerald‘s vehicle as it drove from Marshfield Street onto 111th Street and then the train tracks; (2) Chicago‘s department of transportation field service director, George Black II; (3) Robert Houghton, the City‘s former supervisor of traffic signal repairmen; (4) James R. Loumiet, an expert witness in accident reconstruction and highway safety; (5) Dr. Eupil Choi, the medical examiner; and (6) Gerald‘s surviving family members, including the plaintiff (his wife), and his four sons, Thomas, James, Tim and Joseph Sexton. The City, in turn, presented the testimony of: (1) Edward J. Dolenak, the Metra engineer who conducted the train that hit Gerald‘s vehicle on February 10, 2004, and (2) Metra‘s signal engineering director, William P. Komenski.
¶ 17 For purposes of brevity, we summarize only that evidence presented at trial which is relevant to the issues raised on appeal. Susanne Botana testified that she was present at the intersection of 111th and Marshfield Streets at the time the Metra train struck Gerald‘s vehicle. She described the intersection by pointing out that southbound traffic arrives at the intersection via an off-ramp from I-57. She explained that where the ramp off meets the intersection, the ramp comprises three lanes, a left lane for left-turning traffic, a center lane for traffic continuing straight ahead on Marshfield Street, and a right lane from which traffic could go either straight or turn right onto 111th Street. According to Botana, southbound traffic at the intersection was controlled by a “straight red, yellow and green light.” Botana testified that there were no signs for southbound traffic advising them that there is a railroad crossing immediately after turning right onto 111th Street. There was also no indication drivers could not make right turns onto 111th Street under certain conditions.
¶ 18 Botana next testified as to what she observed on February 10, 2004. She stated that she was driving behind Gerald on the off-ramp approaching 111th and Marshfield Streets when she observed him stop at the intersection, and then turn right. Botana did not see what color the light was when Gerald turned right. She testified, however, that when she arrived at the intersection, the light was green and she therefore also proceeded to turn right onto 111th Street. As she rounded the corner, she saw the railroad gate lowering as Gerald was crossing the intersection. Botana stopped before the gate and heard a train whistle. She saw Gerald stop, with the railroad gate lowered behind him, look both ways, and put his car into reverse.
¶ 19 On cross-examination, Botana admitted that there are lights in front of the train tracks next to the ramp, which flashed red before the gate started coming down. Botana also admitted that she definitely observed Gerald stop at the intersection of 111th and Marshfield Streets before turning right. She also acknowledged that Gerald stopped at the railroad tracks and that the red lights were flashing when he did so.
¶ 20 Chicago‘s department of transportation field service director, George Black II, next testified that in February 2004, he was responsible for all of the City‘s day-to-day operations related to traffic signal installations. Black testified that he is familiar with the Manual on Uniform Traffic Control Devices (MUTCD) and that it is a national standard for what types of advanced warning signs should be placed at certain intersections. Black explained that in 2004, the City of Chicago had not officially adopted the MUTCD as its mandated guidelines but rather that it used it only as a reference tool. Black acknowledged that the MUTCD addresses the types of traffic devices that should be utilized when traffic signals are preempted.
¶ 21 Black next acknowledged that on the day of the accident, the City had a traffic control device regulating southbound traffic at the intersection of 111th and Marshfield Streets, namely, a basic red, yellow, and green traffic light. Black admitted that southbound traffic at this intersection was permitted to make right (west) turns onto 111th Street either on a green or a red light. Black also acknowledged that there was a preemption sequence in place at 111th and Marshfield Streets on the date of the accident. He explained that preemption occurs when some other device, such as a railroad, sends a signal to a traffic control device, in this case traffic lights owned by the City, altering its regulation of the intersection. According to Black, when preemption occurs at 111th and Marshfield Streets, the traffic signals change to clear traffic off the tracks. In other words, when a train is approaching the train tracks, a signal is sent to the preemption device to change the lights on the traffic signal and prevent cars from crossing the tracks.
¶ 22 Black further admitted that in 1999 the Illinois Department of Transportation (IDOT) provided the City with a report concerning the regulation of the intersection at 111th and Marshfield Streets. The report recommended that the City install certain signs at the intersection, including: (1) an “advance warning” sign for southbound Marshfield Street traffic that would advise drivers that a railroad crossing was nearby; (2) a “do not stop on track” sign; (3) a “do not turn on red” sign; and (4) a fiber-optic preemption “blank-out” sign. Black explained that a “blank-out” sign is a black sign with a message that can be illuminated at certain times, for example, to prohibit right turns only when a train is approaching. Black conceded that none of these signs was present at the intersection in 2004. He also admitted that long before 2004, the City had used blank-out signs with traffic control signs to work in preemption mode at various other locations throughout the City.
¶ 23 Black also testified that in 1996 the City made improvements to the intersection of 111th and Marshfield Streets. Black explained that the City placed a “Stop Here on Red” sign for eastbound traffic on 111th Street in the intersection, and painted a white line four feet from
¶ 24 Robert Houghton next testified that in February 2004, he worked for the City‘s bureau of electricity and supervised all traffic signal repairmen, including those responsible for maintaining the traffic control device at the intersection of 111th and Marshfield Streets.
¶ 25 Houghton acknowledged that in 2004 the City recognized the MUTCD as a reference tool for setting up traffic signals. According to Houghton, both the 2000 and 2003 versions of the MUTCD recommended that all turning movements toward railroad tracks be prohibited during signal preemption. He further acknowledged that the MUTCD provides options for ways to prohibit such turns during signal preemption, including, among other things, a “blank-out” or “changeable message” sign. Houghton agreed that a no-right turn sign placed at the corner of 111th Street and Marshfield Streets could have prohibited drivers from making right turns toward the tracks when the train was approaching.
¶ 26 Houghton next explained that the preemption sequence at 111th and Marshfield Streets was designed in 1993, that it was implement in 1994, and that the design of the traffic control device had not changed since then. Houghton agreed that under the existing traffic control system in place in 2004, southbound Marshfield traffic was permitted to turn right on both the red and green lights, and that this was true even when the traffic signal was in preemption mode. When asked if it was true that “there is no distinction in the signal, from a driver‘s perspective when the system is in preemption and when it is under normal operation,” Houghton agreed, stating, “It‘s just a traffic corner with lights. That‘s it.”
¶ 27 Houghton further explained, however, that this was how the preemption system was designed to work. Specifically, Houghton pointed out that under the preemption system in place in 2004, when a train approached the intersection of 111th and Marshfield Streets, a call would come into the traffic control box, which was linked to the stop lights at the intersection. During the entire railroad call, when the system would go into preemption mode, the system was designed to provide all motorists coming from the I-57 ramp with a green light, so as to permit southward traffic on Marshfield Street, which is parallel to the tracks, to continue forward and not back up traffic on the highway. The system was further designed to provide all other traffic, namely, traffic going westbound on 111th Street, with a red light, so as to keep any vehicles off the track. Houghton explained that if a vehicle traveling west on 111th Street was close to the track when the preemption system was triggered, the stop light for westbound traffic would turn amber before it turned red to permit the driver to clear the track. Otherwise, it would turn into a solid red and remain such until the train cleared the tracks. Houghton also stated that traffic going westbound on 111th Street is stopped before Marshfield Street.
¶ 28 The plaintiff next proceeded by reading several of the City‘s stipulated admissions to the jury. The first was the City‘s admission with respect to its September 17, 1999, letter. This letter acknowledged the City‘s receipt of a June 22, 1999, report prepared by IDOT7 recommending the following modifications to the intersection at 111th and Marshfield
¶ 29 The plaintiff next called James R. Loumiet, who was qualified as an expert witness on accident reconstruction and highway safety. Loumiet testified that the MUTCD is a national standard for traffic devices, which has been adopted by the federal government and the state of Illinois.8
¶ 30 According to Loumiet, in 2004 the MUTCD would have required a blank-out sign at the intersection of 111th and Marshfield Streets. In particular, he stated that the MUTCD recommended prohibiting turns from intersections within 200 feet of railroad crossings and provided options for accomplishing this, including, among other things, a blank-out or changeable message sign. Loumiet explained that he examined the intersection at 111th and Marshfield Streets and discovered that the distance between the stop line for southbound traffic and the railroad gate was 76 feet and 7 inches, and that it therefore fell well within the MUTCD‘s requirement for a blank-out sign.
¶ 31 Loumiet further testified that in 2004 there was no other prohibition against southbound traffic making a right turn on Marshfield Street toward the railroad crossing. He explained that although the City owned and operated a preemption system at that crossing, when the traffic signal for southbound Marshfield traffic was in preemption mode, southbound motorists would see either a red or a green light, both of which authorized them to make a turn onto the train tracks. Similarly, Loumiet noted that there was no advance warning sign on Marshfield Street notifying motorists that there was a railroad track running parallel to them or that they were about to approach a railroad crossing. Loumiet concluded that “had the City placed the advance warning sign and/or a blank-out sign prohibiting right turns, this collision more likely than not would not have occurred.”
¶ 32 Loumiet next opined about the City‘s maintenance of the intersection at 111th and Marshfield Streets. He stated that the City‘s preemption system at this intersection was designed in 1993 and activated in 1994. Furthermore, Loumiet discovered that in 1996, the City issued work orders to install a new stop-here-on red sign and stop line for eastbound traffic on 111th Street. According to Loumiet, despite a 1999 IDOT report evaluating this
¶ 33 After the plaintiff rested, on July 28, 2009, the City moved for a directed verdict, again arguing that it had absolute immunity pursuant to section 3-104 of the Tort Immunity Act (
¶ 34 The first witness, William P. Komenski, the director of signal engineering at Metra, testified that he was responsible for the installation of Metra‘s signals at the intersection of 111th and Marshfield Streets. According to Komenski, at that railroad crossing, Metra had cantilevered lights and bells on either side of the tracks, and gates behind the cantilevers. Each of the gates also had lights on it, a couple that flashed and one that steadily stayed on, while the train was approaching. Komenski testified that the gates were not designed or intended to be physical barriers that could stop traffic but rather that they were intended merely as warning devices. According to Komenski, the gate was counterweighted and was not designed with a downward force. Therefore, if a gate were hit by a car at slow to moderate speed, it would be pushed up and ride over the windshield of the car. According to Komenski, it was possible for a gate to come up the windshield of a car and then come back down.9
¶ 35 Komenski next testified that in 2004 Metra had a “constant warning time system” in place at the intersection of 111th and Marshfield Streets. This system is a computer-controlled system attached to the rails, which takes into account the speed of an approaching train to ensure that the warning signals at the railroad crossing are activated in such a manner that motorists receive the same amount of warning time for all approaching trains. Komenski testified that although the state requires a constant warning time of 25 seconds, Metra added an additional 10 seconds to its system, so that motorists were given a total of 35 seconds warning time before every train. Komenski explained that when a train is approaching, the first thing the system does is to active the warning lights and bells at the railroad crossing. After three to five seconds, the gates begin to come down. Komenski stated that it takes the gates 8 to 10 seconds to reach a fully lowered position. Up to 20 seconds would then pass between the time the gates are fully lowered to the time of the arrival of the train.
¶ 36 Komenski next averred that after Gerald‘s death he tested the “constant warning time system” at the intersection of 111th and Marshfield Streets to determine whether it was functioning properly. Based on the maintenance records taken immediately after the accident
¶ 37 The City next called Edward J. Dolenak, the Metra engineer who conducted the train that hit Gerald‘s vehicle on February 10, 2004. Dolenak testified that as he was driving the Metra train on that day, heading southbound parallel to Marshfield Street, he saw Metra‘s cantilever lights at the 111th Street crossing flashing as far away as the crossing at 107th Street. Dolenak stated that as he approached the 111th Street crossing, he saw Gerald‘s car rounding the corner from Marshfield Street, and he blew the train‘s horn to warn Gerald. According to Dolenak the gates at the 111th Street crossing were in the fully lowered position when the train was still four to six train car lengths away from the 111th Street crossing. Dolenak saw Gerald‘s car start to go underneath the crossing gate, so he hit the train‘s emergency break. The train collided with Gerald‘s car.
¶ 38 After Dolenak‘s testimony the City rested, and counsel proceeded with closing arguments. The jury was subsequently instructed that it could find the City negligent on the following three theories, namely, that the City had: (1) failed to provide adequate warning signs at the intersection of 111th and Marshfield Streets; (2) failed to provide a traffic control system that prohibited a vehicle from turning right from Marshfield Street to 111th Street, including, but not limited to, a blank-out sign; and (3) allowed motorists to turn right from Marshfield onto 111th Street during the approach of a train.10 After deliberations, the jury returned a verdict in favor of the plaintiff in the amount of $5 million.
¶ 39 On August 28, 2009, the City filed a posttrial motion for judgment n.o.v. again arguing that: (1) the plaintiff‘s claims were barred by section 3-104 of the Tort Immunity Act (
¶ 40 In addition to responding to the City‘s judgment n.o.v. motion, on December 7, 2009, the plaintiff requested leave of court to file her third amended complaint seeking to add a dozen more specific alleged acts of negligence by the City (the same acts of negligence she had sought to include in her more comprehensive jury instruction).12
¶ 41 On August 26, 2011, this court affirmed the circuit court‘s judgment on the basis of the exclusivity provision of the Illinois Workers’ Compensation Act (see
¶ 42 II. ANALYSIS
¶ 43 We begin by noting that we review orders granting judgment n.o.v. under a de novo standard of review. Harris v. Thompson, 2012 IL 112525, ¶ 4 (citing Evans v. Shannon, 201 Ill. 2d 424, 427 (2002)); see also Ries v. City of Chicago, 242 Ill. 2d 205, 215 (2011). In doing so, we ask the same questions the circuit court asked in the first instance in
¶ 44 On appeal, the plaintiff first contends that the circuit court erred when it found as a matter of law that the City was immunized from any negligence claim by section 3-104 of the Tort Immunity Act (
¶ 45 It is well accepted that the tort liability of municipalities is governed by the Tort Immunity Act (
¶ 46 The Tort Immunity Act “adopted the general principle that local governmental units are liable in tort.” Judge, 221 Ill. 2d at 215. Under the current Act, a governmental unit must “exercise ordinary care to maintain its property in a reasonably safe condition.”
¶ 47 The relevant immunity provision here is section 3-104 of the Act, which states in pertinent part:
“Neither a local public entity nor a public employee is liable under this Act for an injury caused by the failure to initially provide regulatory traffic control devices, stop signs, yield right-of-way signs, speed restriction signs, distinctive roadway markings or any other traffic regulating or warning sign, device or marking, signs, overhead lights, traffic separating or restraining devices or barriers.” (Emphasis added.)
745 ILCS 10/3-104 (West 2006) .
¶ 48 In the present case, the City does not contest that it owed the plaintiff a duty of care. Rather, it contends that section 3-104 of the Tort Immunity Act (
¶ 49 The plaintiff, on the other hand, argues that section 3-104 of the Tort Immunity Act (
¶ 50 We begin by noting that in two decisions, West, 147 Ill. 2d at 10-12 and Judge, 221 Ill. 2d at 217-18, our supreme court has thoroughly addressed the scope of a municipality‘s immunity pursuant to section 3-104 of the Tort Immunity Act.
¶ 51 In West, 147 Ill. 2d at 3-4, the plaintiff collided with another vehicle in the process of making a left turn. Id. at 10. The plaintiff sued the city of Urbana, claiming that the city had a duty to provide a left-turn arrow for her direction of traffic. Id. at 10. The plaintiff argued, inter alia, that section 3-104‘s immunity for the failure to initially provide road markings did not apply in that case because the city had previously installed a left-turn arrow for traffic traveling in the opposite direction at the intersection where the accident occurred. Id. at 10. Thus, the plaintiff argued that the city, having undertaken to provide left-turn devices for the intersection, had a duty to provide them symmetrically, and that its failure to do so constituted a nonimmunized improper placement. Id. at 10. The appellate court agreed with the plaintiff, finding that “the City‘s ‘partial regulation’ of the intersection precluded the City from enjoying immunity under section 3-104.” Id. at 10.
“We find that the exception to section 3-104 urged by plaintiff and accepted by the appellate court is unwarranted and would effectively swallow the section‘s immunity entirely. The creative plaintiff, seeking to premise an action on the failure to provide a particular traffic device, could always circumvent section 3-104 by finding and pointing out some other traffic device that was provided. We do not believe that the legislature intended such a narrow construction of section 3-104 ***.” (Emphasis in original.) West, 147 Ill. 2d at 10.
¶ 53 Our supreme court further explained that this interpretation of section 3-104 of the Tort Immunity Act “better serves” the expressed policy behind the Act, which is to protect local governmental units and employees from liability arising from “the operation of government.”
“The ‘operation of government’ necessarily encompasses the policy decisions made by a municipality; that is, those decisions which require the municipality to balance competing interests and to make a judgment call as to what solution will best serve each of those interests. The decision whether to install a traffic signal requires the municipal traffic planner to balance a host of competing interests, among them, safety, convenience and cost. *** [T]his is not the sort of decision that should be second-guessed by the courts. Were such second-guessing permitted, the traffic planner would be more concerned with avoiding possible litigation than with using his best judgment to properly balance the competing interests. Thus, instead of seeking the best balance of safety, convenience and cost, the traffic planner would concern himself only with whether it could later be argued that the regulation provided could have possibly been safer. Excessive regulation, with no corresponding gain in safety, convenience or cost efficiency, would be the natural result. The legislature recognized this by enacting section 3-104 and expressly immunizing the failure to provide a traffic control device or sign.” West, 147 Ill. 2d at 11-12.
¶ 54 Subsequent to West, our supreme court revisited the scope of section 3-104 immunity in Judge. In that case, the plaintiff was injured as she was driving westbound on Galena Road, when she was struck head-on by a vehicle traveling eastbound and attempting to pass another vehicle by using the eastbound lane. Judge, 221 Ill. 2d at 201. At the time of the accident, the two-lane Galena Road had a broken yellow line dividing eastbound from westbound traffic. Id. at 201. The driver of the vehicle that struck the plaintiff testified that he passed the eastbound vehicle ahead of him because he knew that a broken yellow line indicated that passing vehicles was permissible. Id. at 201.
¶ 55 The record in Judge reflected that in 1978, the county assumed control over Galena Road, commissioning a preconstruction profile of the road and developing an improvement plan. Id. at 201. That year, the county resurfaced the road and striped the center of the road with a broken yellow line, indicating that passing was permissible. Id. at 201. The record further revealed that in 1978, the placement of the broken yellow line conformed with guidelines for adequate sight distances mandated by the MUTCD. Id. at 201. This minimal sight distance standard, however, was changed and lowered
¶ 56 Accordingly, after the accident, the plaintiff in Judge sued the county for negligence in maintaining the broken yellow line on Galena Road in contravention of the MUTCD requirements. The county argued that it was absolutely immune pursuant to section 3-104 of the Tort Immunity Act because by failing to paint a no-passing line on Galena Road, it essentially committed an immunized failure of initial placement.
¶ 57 The supreme court in Judge disagreed and held that section 3-104 immunity did not apply. In coming to this decision, the court in Judge first found that according to the MUTCD a broken yellow line is a “traffic control device,” while a solid yellow line, by itself, is not, since “a one-direction no-passing zone requires both a broken yellow line and a solid yellow line, and a two-direction no-passing zone requires two solid yellow lines.” Id. at 217. Applying these definitions to the facts of that case, the court in Judge concluded that the 1993 restriping of Galena Road did not constitute an immunized failure to initially place a solid yellow line. Id. at 217. Rather, the court found that the initial placement was made in 1978, when the county developed an improvement plan for Galena Road and resurfaced it, i.e., improving the road with a traffic control marking, the two-direction passing zone. The court specifically held that pursuant to section 3-102(a) of the Tort Immunity Act (
“The question [here] is not whether the County initially installed the correct traffic control marking. Rather, the question is whether the County made any improvement to Galena Road, thereby undertaking the duty to maintain that improvement in a reasonably safe condition.” (Emphasis omitted and added.) Id. at 217.
¶ 58 In coming to its decision, the court in Judge recognized its prior holding in West, but then went on to distinguish that case on several grounds. Id. at 220-21. First, the Judge court noted that unlike in West, where the plaintiff complained of the city‘s failure to install a no-left-turn-arrow where the intersection contained a no-right-turn arrow, this was not a case where a “creative plaintiff circumvents section 3-104 by pointing to some other traffic control device.” (Emphasis in original.) Id. at 220. Rather, as the Judge court noted, the County‘s mistake there “involve[d] the erroneous placement of one traffic signal, the centerline of Galena Road.” (Emphasis added.) Id. at 220.
¶ 59 In addition, the Judge court noted that unlike in West, the county‘s failure to correct the erroneous traffic control marking was not a result of the county‘s balancing ” ‘a host of competing interests, among them, safety, convenience and cost.’ ” Id. at 220 (quoting West, 147 Ill. 2d at 11). Rather, the county‘s failure to correct the erroneous traffic control marking was simply a negligent oversight and not the sort of decision immunized by
¶ 60 Applying the decisions in West and Judge to the present case, for the reasons that follow, we are compelled to find that the City is immune pursuant to section 3-104 of the Tort Immunity Act (
¶ 61 It is important to remember here that contrary to the plaintiff‘s repeated assertions of negligence in the City‘s maintenance of the “traffic control preemption system” at the intersection, the three theories of negligence under which this case actually proceeded to the jury were: (1) that the City failed to provide an “advance warning” sign near the intersection to warn traffic of the railroad crossing; (2) that the City failed to provide a traffic control system that prohibited a vehicle from turning right, including, but not limited to, a blank out sign; and (3) that the City‘s existing traffic control device created a hazard by “allowing” southbound motorists to make right turns when a train was approaching.
¶ 62 None of these three theories allege negligent maintenance, and all three fall squarely within the immunity of section 3-104. See
¶ 63 The plaintiff attempts to argue that just as in Judge, the issue here is one of negligent maintenance because the City made improvements to the intersection when in 1996 it installed a new stop-here-on-red sign and stop line for eastbound traffic on 111th Street. The plaintiff, however, misconstrues Judge. In Judge, the court found that the county failed to maintain Galena Road in a reasonably safe condition when, by sheer oversight, it restriped the road with the same broken yellow line it had used before despite the new MUTCD standard, requiring a full yellow line to indicate a no-passing zone. Judge, 221 Ill. 2d at 217. The court in Judge distinguished West by noting that the public policy behind section 3-104 was not intended to protect such negligent oversights. As the Judge court explained:
“First, this is not a case where a creative plaintiff circumvents section 3-104 by pointing to some other traffic control device. Rather, the County‘s mistake in the present case involves the erroneous placement of one traffic signal, the centerline of Galena Road. Second, in the present case, the County‘s failure to correct the erroneous traffic control marking was not a result of the County‘s balancing ‘a host of competing interests, among them, safety, convenience and cost.’ West, 147 Ill. 2d at 11. Rather, the Illinois Manual states: ’ “markings that are no longer applicable for roadway conditions or restrictions and that might cause confusion for the road user shall be removed or obliterated to be unidentifiable as a marking as soon as practical.” ’ [Citation.] Thus, the County‘s failure to correct the erroneous traffic control marking was simply a negligent oversight and not the sort of decision immunized by section 3-104. ‘Because of the above distinctions, to hold the County liable in the instant case does not reflect the type of second-guessing that West prohibits.’ [Citation.].” (Emphases omitted.) Judge, 221 Ill. 2d at 220-21.
¶ 64 Unlike in Judge, however, in the present case, there was no oversight on the part of the City when it installed signs on 111th Street but not on Marshfield Street. The record reveals that the City made a conscious decision not to add the blank-out sign on Marshfield Street because the City engineers concluded that such signs are never followed by drivers but merely act to confuse them. Specifically, in its June 22, 1999, letter, the City acknowledged its receipt of the IDOT report recommending modifications to the intersection, including the
¶ 65 Moreover, contrary to the plaintiff‘s assertion, Judge nowhere held that improvements to one traffic device necessarily require proper maintenance of another nearby traffic device. Rather, Judge only held that once an improvement is made that same improvement must be maintained in a reasonably safe condition. See Judge, 221 Ill. 2d at 217 (holding that “[t]he question [was] not whether the County initially installed the correct traffic control marking,” but whether it “made any improvement to Galena Road, thereby undertaking the duty to maintain that improvement in a reasonably safe condition” (emphasis omitted and added)). Nothing, in Judge, however, suggests that once an improvement to one part of a road is made, the entire road, rather than the improvement itself, must be kept in a reasonably safe condition. In the present case, the City made no improvements to any of the traffic lights at the intersection. Nor did the City ever make any improvements at all to Marshfield Street. The only improvement the City ever made was to install a stop-here-on-red sign and stop line for eastbound traffic approaching the rail tracks on 111th Street. The presence of this sign (together with the stop line) does not trigger a duty to add a sign on Marshfield Street recommending no right turns. West makes this plainly clear. As our supreme court there explained:
“The creative plaintiff, seeking to premise an action on the failure to provide a particular traffic device, could always circumvent section 3-104 by finding and pointing out some other traffic device that was provided. We do not believe that the legislature intended such a narrow construction of section 3-104 ***.” (Emphases in original.) West, 147 Ill. 2d at 10.
¶ 66 The plaintiff also argues that section 3-104 of the Tort Immunity Act (
¶ 67 A very similar argument was raised and expressly rejected by our supreme court in West. There, just like here, the plaintiff argued that the “initial” failure to provide a device meant only that no liability should attach if the municipality was without notice that the lack of the device created a dangerous condition. West, 147 Ill. 2d at 7. The plaintiff in West specifically asserted that because the municipality in that case was aware of a prior injury at the same intersection, section 3-104 did not apply. Id. at 7. The plaintiff contended that once a municipality was aware that the failure to provide a particular device had caused an injury, immunity no longer attached. Id. at 7.
¶ 68 The supreme court outright rejected this contention. In doing so, the court looked to the plain language of the Tort Immunity Act as well as its legislative history, and concluded that the language of section 3-104 is “unconditional” and makes no reference to notice or lack of notice on the part of the governmental entity. West, 147 Ill. 2d at 7. As the court explained:
“[I]t is instructive to compare the language of section 3-104 to that of two other provisions in the Tort Immunity Act. Section 3-102(a) of the Act, which imposes a duty on municipalities to maintain public property in a safe condition, specifically states that the municipality will be immune from liability unless it had actual or constructive notice of the unsafe condition. [Citation.] Section 3-103(a) grants immunity for injury caused by a municipality‘s adoption of a plan or design for a public improvement where that plan or design is approved by the proper authority. That section goes on to specifically exclude from the scope of that immunity, those situations in which it appears from the use of the plan or design that an unsafe condition has been created. [Citation.] Thus, in those sections, the legislature, in clear and deliberate language, expressed its intent to limit those sections’ immunity to situations where the municipality was without notice that it had created an unsafe condition. To the contrary, section 3-104 contains no language which expresses an intent to limit that section‘s immunity to situations in which the municipality was without notice that the lack of a particular device was unsafe. Furthermore, section 3-104 contains no language which indicates an intent to impose a duty on municipalities to provide a particular traffic control device where the municipality has notice that the failure to so provide has proved to be unsafe. Rather, section 3-104 clearly and unequivocally states that the municipality is immune from all liability arising out of the failure to provide a particular traffic control device.” (Emphases in original and omitted.) West, 147 Ill. 2d at 7.
¶ 69 The court in West further looked to the legislative history of section 3-104, particularly the 1986 amendments to that section. West, 147 Ill. 2d at 8. The court specifically noted that the pre-1986 version of the statute permitted liability to attach to a governmental unit for failure to provide a traffic warning sign or device if such was “necessary to warn of a condition which endangered the safe movement of traffic.” (Internal quotation marks omitted.) Id. at 8. The court noted that when this section was amended in 1986,
¶ 70 Based on our supreme court‘s rationale in West, we too reject the plaintiff‘s contention here, that the City‘s section 3-104 immunity did not attach because the City was placed on notice about the hazard by the 1999 IDOT report. See West, 147 Ill. 2d at 8; Wood, 229 Ill. App. 3d at 354.
¶ 71 The plaintiff finally argues that the City cannot shield behind section 3-104 immunity because its failure to use advance warning or blank-out signs at the intersection of Marshfield and 111th Streets violated the requirements of the MUTCD and section 11-304 of the Illinois Vehicle Code (
¶ 72 We begin by pointing out that both Snyder and LoCoco involved governmental units asserting immunity pursuant to section 2-201 of the Tort Immunity Act, which specifically makes a distinction between discretionary and ministerial acts. See
¶ 73 In Snyder, the township installed a “curve” warning sign, but placed it on the wrong side of the road and only a short distance from the curve in contravention of the MUTCD‘s requirements. Snyder, 167 Ill. 2d at 468. The township asserted immunity pursuant to section 2-201 of the Tort Immunity Act (
¶ 74 In LoCoco, a city, county, and township entered into an agreement to install certain improvements at an intersection, including stop signs and corresponding painted stop bar lines. LoCoco, 307 Ill. App. 3d at 687. The township painted the stop bar lines for all four directions of traffic and had stop signs in place for traffic traveling along one of the streets (111th Street), but delayed in installing the stop signs on the busier route (Route 59). Id. at 687. The location of the new stop bar lines on 111th Street also obstructed motorists’ view of cross-traffic. Id. at 697. The intersection had remained in this half-finished condition for about two weeks when the plaintiff was involved in a fatal accident there. Id. at 697. The township asserted discretionary immunity.17 LoCoco, 307 Ill. App. 3d at 697-98. The court in LoCoco explained that the installation of the stop signs was not discretionary because “once the parties established the intergovernmental agreement as a plan for the intersections’ improvements and began the performance of the improvements, [the township‘s] discretionary function ended and its ministerial function began.” Id. at 698.
¶ 75 Unlike in Snyder and LoCoco, here the City never attempted to defend its actions pursuant to section 2-201 of the Tort Immunity Act (
“[C]ourts must not read conditions into the Tort Immunity Act that conflict with its plain language. [Citation.] Such an approach wrongly results in court-made limitations on what the legislature has prescribed in an area constitutionally designed as the legislature‘s own.” Epstein, 178 Ill. 2d at 381.
¶ 76 What is more, our appellate courts have already considered and expressly rejected the same argument about Snyder that the plaintiff advances here in an attempt to avoid section 3-104. See Boub v. Township of Wayne, 291 Ill. App. 3d 713, 725 (1997) (“Plaintiff asserts that Snyder stands for the proposition that the immunity of section 3-104 does not apply if
¶ 77 Our courts have repeatedly held that “[w]hile section 11-304 of the Illinois Vehicle Code *** impose[s] [an] obligation[ ] upon municipalities to post various warning signs, section 3-104 of the Tort Immunity Act absolutely immunizes local public entities from any tort liability for failing to fulfill those duties.” Ramirez v. Village of River Grove, 266 Ill. App. 3d 930, 933 (1994); accord Robinson v. Atchison, Topeka & Santa Fe Ry. Co., 257 Ill. App. 3d 722, 775 (1994) (“The plaintiffs argue that the township is not immune because the [MUTCD] provides that railroad advance warning signs are mandatory on roadways in advance of every grade crossing. Neither the express language of section 3-104 nor the supreme court‘s interpretation of that section *** provides for an exception for mandatory warning signs.“); Gresham v. Kirby, 229 Ill. App. 3d 952, 957 (1992) (“While section 11-304 of the Code imposes an obligation on local authorities to post warning signs *** section 3-104 of the Act immunizes local authorities from any tort liability for failing to fulfill this duty.“); Wood, 229 Ill. App. 3d at 351 (“While [section 11-304] imposes an obligation on local authorities to warn motorists of those hazards incident to the portion of a highway remaining under local maintenance jurisdiction [citation], section 3-104 of the Tort Immunity Act immunizes a local public entity from any tort liability for failing to fulfill this duty.“); Fitt v. City of Mattoon, 215 Ill. App. 3d 472, 481 (1991) (“While section 11-304 of the Code imposes an obligation on local authorities to post warning signs, section 3-104 of the Immunity Act immunizes local authorities from any tort liability for failing to fulfill this duty.“); Newsome v. Thompson, 202 Ill. App. 3d 1074, 1079 (1990) (“Even assuming that *** the City‘s ordinances imposed a duty upon it to post barriers at its street reconstruction sites *** the Tort Immunity Act immunizes the City from liability for that negligence.“). Accordingly, we reject the application of Snyder and LoCoco to the facts of this case.
¶ 78 For all of the aforementioned reasons, we conclude that under the present circumstances the City is absolutely immune pursuant to section 3-104 of the Act (
¶ 79 We further reject any attempt by the plaintiff to argue in the alternative that we should permit her to proceed with another trial because the circuit court erred in rejecting her request to modify her jury instructions or to allow her to file a third amended complaint “to conform to the proofs.” In that respect, we first note that the plaintiff has waived this issue for purposes of appeal by failing to develop her argument properly. It is axiomatic that “[a] reviewing court is entitled to have the issues clearly defined and supported by pertinent authority and cohesive arguments” (U.S. Bank v. Lindsey, 397 Ill. App. 3d 437, 459 (2009) (citing
¶ 80 What is more, even if we were to review this issue, our review of the circuit court‘s determinations with respect to both jury instructions and leave to file an amended complaint is for abuse of discretion. See, e.g., Cetera v. DiFilippo, 404 Ill. App. 3d 20, 44 (2010) (jury instructions); O‘Brien v. City of Chicago, 285 Ill. App. 3d 864, 872 (1996) (amended complaint). Nothing in the record below suggests that the circuit court abused its discretion in limiting the jury instructions or denying the plaintiff‘s request to amend her complaint. See, e.g., Cetera, 404 Ill. App. 3d at 44; see also Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260, 274 (2002) (even where a jury instruction was incorrect a court will not order a new trial absent evidence of prejudice); see also Harding v. Amsted Industries, Inc., 276 Ill. App. 3d 483, 494 (1995) (“in order to allow the amendment of a pleading to conform to proof, the proof already produced must support the amendment“); Canning v. Barton, 264 Ill. App. 3d 952, 957 (1994) (holding that “[i]n the absence of any *** specific references to evidence in the record, [the reviewing court could] only conclude that the trial judge did not abuse his discretion in denying this motion [to amend the pleading]“).
¶ 81 III. CONCLUSION
¶ 83 Affirmed.
¶ 84 JUSTICE HOWSE, dissenting.
¶ 85 I respectfully dissent.
¶ 86 The majority concluded that the City is immune from suit for the initial installation of the traffic control system pursuant to section 3-104 of the Tort Immunity Act (
¶ 87 The record establishes that a preemption traffic control system was installed in 1994 and was improved in 1996 with signage and placement of white lines near the railroad tracks. The record further reveals, as the majority noted, that in 1999 IDOT provided the City with a report concerning the regulation of the intersection where the decedent was killed, specifically recommending the installation of certain additional signs at the intersection. The City acknowledged receipt of the IDOT report, but consciously chose not to take the acts described and recommended by the report. Moreover, the MUTCD in 2000 and 2003 recommended that all turning movements toward railroad tracks be prohibited during signal preemption and plaintiff‘s expert testified that the MUTCD is a national standard for traffic devices, adopted by both the federal government and the state of Illinois. Section 11-304 of the Illinois Vehicle Code (
¶ 88 “The traditional common law duty of local governments concerning public property is a duty to maintain that property in a reasonably safe condition.” Horrell v. City of Chicago, 145 Ill. App. 3d 428, 432 (1986). “The duty is only to ‘maintain’ the property and does not require the creation of public improvements.” Horrell, 145 Ill. App. 3d at 432. This is codified in section 3-102 of the Act.
¶ 89 While a city is not liable for its failure initially to provide improvements such as lights or traffic control devices, once having adopted and embarked upon a plan of public improvements, a city has a duty to maintain those improvements in a condition conducive to the safety of the traveling public. Santelli v. City of Chicago, 222 Ill. App. 3d 862, 867 (1991). Moreover, section 11-304 of the Vehicle Code (
¶ 91 Further, in the case at bar, the evidence established that the MUTCD regulations required the installation of traffic control devices that would prevent turns toward railroad tracks. The majority found that the City is immune for its noncompliance with the MUTCD and failure to install because of its discretionary determination that such signage would be ignored by drivers and confuse them. However, our supreme court has determined that the placement of traffic control devices outside of the statutory requirements is a ministerial act. Snyder, 167 Ill. 2d at 474.
¶ 92 The common law recognized the distinction between discretionary duties, the negligent performance of which does not subject a municipality to tort liability, and ministerial duties, the negligent performance of which can subject a municipality to tort liability. Snyder, 167 Ill. 2d at 473. Although discretionary immunity has been codified in section 2-201 of the Immunity Act (
¶ 93 Accordingly, I would reverse the circuit court‘s grant of judgment n.o.v. and reinstate the jury‘s verdict.