dissenting:
I respectfully disagree with the majority as to the issues of the effect of West, collateral estoppel, and evidence of impeachment of Bekermeier and Patton.
West effectively disposes of any right to recovery. In discussing signage, the supreme court stated:
“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 12, 588 N.E.2d at 1109.)
That Lexington had “initially” placed a sign does not require a different result. In reviewing the appellate court decision in Smith v. County of White (1989), 191 Ill. App. 3d 569, 548 N.E.2d 19, the supreme court also said:
“The court determined that the plaintiff’s claim therefore was not premised on an ‘initial’ failure to provide. (Smith, 191 Ill. App. 3d at 577.) As noted, we disagree with the conclusion that section 3 — 104 may be circumvented by such reasoning. Thus, to the extent that the holding in Smith conflicts with this opinion, it is overruled.” West, 147 Ill. 2d at 11, 588 N.E.2d at 1109.
Any agreement that section 3 — 104(b) of the Act requires a different decision is likewise "without merit. (Ill. Rev. Stat. 1985, ch. 85, par. 3 — 104(b).) Section 3 — 104(b) does not apply. That section deals with immunity for failure to provide warning signals, etc., necessary to warn of a “condition” of the road. Plaintiff did not allege any condition of the road itself, i.e., flooding, road repair.
As to collateral estoppel, plaintiff’s motion concerned matters alleged to have been determined by the court in Johnson. It was not feasible for the defendant to appeal in Johnson. The trial court in Johnson allowed the township’s post-trial motion for setoff against the verdict returned against it. It also ruled the township’s motion requesting a setoff against any additur was moot. The ruling in favor of Lexington on its motion for setoff puts it in the position of a prevailing party. In reviewing our decision in Johnson, any appeal by Lexington would have been added expense, fruitless, and could very well have been considered moot. There was no reason to further litigate and I agree with defendant it should not be bound by the Johnson court’s determination of negligence.
In Johnson, the plaintiff was a passenger, while here the plaintiff was the driver. This presents entirely different issues as to negligence of the respective plaintiffs and certainly proximate cause.
The majority assumes that in Johnson the jury verdict determined defendant (1) failed to correctly identify the number of curves in the road, (2) failed to post a safe speed or reduce the speed on the road in the area where the accident occurred, and (3) failed to advise motorists of the severity of the curves in the road and the speed at which the curves could be safely travelled. The verdict in Johnson did not necessarily find for plaintiff in all of these matters. The majority does find the trial court was correct in denying collateral estoppel as to negligence and proximate cause. This determination is reason in itself to affirm the trial court’s ruling on plaintiff’s motion. The issues decided in Johnson are not necessarily a judgment on the merits on issues in this case.
Plaintiff alleged negligence. The evidence of the subsequent remedial measures was not admissible. In Schaffner, the evidence found to be inadmissible in a wilful and wanton" count concerned defendant’s post-accident replacement of the Central Avenue crossing. The supreme court said, “The same policy considerations that militate against admission of that evidence as proof of negligence, discussed earlier, counsel against its admission as proof of willful and wanton misconduct.” (Schaffner, 129 Ill. 2d at 17, 541 N.E.2d at 649.) The Lewis case involved a factual background not present in this case. The Lewis court found the impeachment evidence was admissible to show “defendant was straying from its usual and customary practice.” Lewis, 217 Ill. App. 3d at 108, 576 N.E.2d at 930.
The evidence sought to be presented violates the same policy considerations referred to in Schaffner. The prejudice outweighs the probative value. To allow the evidence on the basis of impeachment will effectively eliminate subsequent remedial repairs as well as rationale set forth in Schaffner, “ ‘later carefulness does not necessarily imply prior neglect.’ ” Schaffner, 129 Ill. 2d at 14, 541 N.E.2d at 648, quoting Lundy v. Whiting Corp. (1981), 93 Ill. App. 3d 244, 252, 417 N.E.2d 154, 161.
The trial court’s order should be affirmed.