dissenting:
I respectfully disagree with the majority’s conclusion that defendant had a duty to warn motorists, bicyclists, and pedestrians of the existence of his driveway, or to remove foliage blocking their view of the driveway. As a preliminary matter, while I share the majority’s respect for section 368 of the Restatement (Second) of Torts, it is not applicable to this case. By its own terms, section 368 subjects a landowner to liability if he or she creates or allows to remain thereon an excavation or other artificial condition so close to a highway that he or she “realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact with such conditions while traveling with reasonable care upon the highway.” (Emphasis added.) Restatement (Second) of Torts §368, at 268 (1965).
In light of the above language, it is not surprising that each Illinois case applying section 368 cited by the majority involved a situation in which the plaintiff accidentally came into contact with the complained-of condition on the defendant’s property, such as a utility pole (Boylan v. Martindale (1982), 103 Ill. App. 3d 335; Hoffman v. Vernon Township (1981), 97 Ill. App. 3d 721), cement pillars (Battisfore v. Moraites (1989), 186 Ill. App. 3d 180), a retention pond (Kavanaugh v. Midwest Club, Inc. (1987), 164 Ill. App. 3d 213), a concrete block (West v. Faurbo (1978), 66 Ill. App. 3d 815), and concrete abutments (Kubala v. Dudlow (1958), 17 Ill. App. 2d 463). In the case at bar, plaintiff complains of the hidden driveway and the foliage which allegedly prevented him from seeing the driveway. Plaintiff did not come into contact with either of these conditions; he collided with a truck pulling out of the driveway. Section 368 is therefore inapplicable, and the majority’s reliance upon this provision is clearly misplaced.
Furthermore, in my opinion, the majority’s attempt to distinguish Pyne v. Witmer (1987), 159 Ill. App. 3d 254, is not persuasive. In Pyne, this court stated as follows:
“Based on the foregoing, we conclude, in the absence of a statutory directive to the contrary, that there is no duty in Illinois on a landowner to remove foliage on his property so that motorists approaching an intersection can see other intersecting motorists. Considering the burden such a duty would impose on private property owners, we leave the imposition of such duty to the legislature.” (Pyne, 159 Ill. App. 3d at 262.)
Similarly, in McLaughlin v. Alton R.R. (1935), 278 Ill. App. 551, the court concluded defendant had no duty to users of an adjoining road to clear its land of weeds and brush allegedly obstructing their view of an intersecting road. McLaughlin, 278 Ill. App. at 557.
The majority, in imposing a duty under the circumstances of this case, relies largely upon the danger of serious injury when vehicles pulling out of driveways are involved in collisions. The majority apparently feels that the danger under these circumstances is more serious than in Pyne because the intersection was visible in Pyne, although the hedges obstructed the motorist’s view of cars coming through the intersection. In the instant case, according to the allegations of the complaint, the foliage blocked plaintiff’s view of the driveway itself.
I believe, however, that the danger of collisions in intersections is a more serious danger because vehicles generally proceed through intersections at much greater speeds than vehicles pulling out of driveways. Therefore, I do not feel the factual distinctions between this case and Pyne justify the imposition of a duty upon defendant in this case, when no such duty was imposed in Pyne. The courts in Pyne and McLaughlin concluded that the duty to use due care to prevent accidents at intersections rests with the motorists passing through the intersections, not with adjoining landowners. Similarly, in the present case, the duty to use due care to prevent accidents should rest with the driver pulling out of the driveway, not with the owner of the land containing the driveway.
The majority believes “there is a policy against allowing private landowners to create and/or maintain hidden hazards along the roadway so as to transform the road into an obstacle path for persons lawfully using it.” (193 Ill. App. 3d at 668.) Under circumstances such as those present in this case, however, I believe that drivers who carelessly pull out of driveways create the hazards, not landowners who merely allow foliage to grow near their driveways. Since I believe the trial court correctly determined that defendant had no duty to warn plaintiff of the existence of his driveway or to remove the foliage allegedly obstructing plaintiff’s view of the driveway, I respectfully dissent from the majority’s conclusion to the contrary.