specially concurring:
I concur with the court’s opinion as to all matters other than its opinion on counts III and IY.
Contrary to the trial court’s determination and the majority opinion, I believe a duty existed as set forth in the Restatement (Second) of Torts §368 (1965). However, I believe that, as a matter of law, there was no breach of duty based upon the established facts in this case.
Just as the majority, I believe the facts establish an unreasonably foreseeable deviation from the highway in the ordinary course of travel. However, I believe plaintiff could not and did not present sufficient material facts to establish liability.
The general rule regarding the duty owed by an owner or occupant of land to the occupant of a motor vehicle to protect against injury resulting from the vehicle leaving the roadway and coming in contact with an artificial condition adjacent to the roadway is:
“A possessor of land who creates or permits to remain thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact with such condition while traveling with reasonable care upon the highway, is subject to liability for physical harm thereby caused to persons who
(a) are traveling on the highway, or
(b) foreseeably deviate from it in the ordinary course of travel.” (Restatement (Second) of Torts §368 (1965).)
(See Hoffman v. Vernon Township (1981), 97 Ill. App. 3d 721, 725.) For a duty to exist, the person to whom that duty is owed must foreseeably deviate from the roadway in the ordinary course of travel. (Kavanaugh v. Midwest Club, Inc. (1987), 164 Ill. App. 3d 213, 218, citing Boylan v. Martindale (1982), 103 Ill. App. 3d 335, 344.) The condition of the roadway must be such that a vehicle is likely to deviate from it in the ordinary course of travel and come in contact with the artificial condition. (Kavanaugh, 164 Ill. App. 3d at 218, citing Boylan, 103 Ill. App. 3d at 345.) To determine foreseeability, “we consider what was apparent to the defendant at the time of his now complained of conduct, not what may appear through exercise of hindsight.” Cunis v. Brennan (1974), 56 Ill. 2d 372, 376.
In the instant case, OMC argues that a duty pursuant to section 368 of the Restatement (Second) of Torts did not arise because Moraites was not exercising reasonable care while travelling upon the highway and travellers will not foreseeably deviate from the highway in the ordinary course of travel. OMC’s first contention is misplaced. The fact that a third party, Moraites, was or was not exercising reasonable care has no bearing on whether a duty is owed to plaintiff’s decedent under section 368. The record and briefs are replete with facts pertaining to the conduct of Moraites. There is no evidence that plaintiff’s decedent was not in the exercise of reasonable care while traveling upon the highway.
In Kubala v. Dudlow (1958), 17 Ill. App. 2d 463, plaintiff’s decedent was killed when a car in which he was a passenger left the roadway at a sharp curve and struck a concrete abutment located on a defendant’s property. The plaintiff alleged that the defendant erected and maintained a row of concrete posts at a point where the roadway made a sharp turn. The plaintiff also alleged that the defendant constructed these posts with the knowledge that they were so close to the highway that users would necessarily strike them if unintentionally deviating from the road. Additionally, the plaintiff alleged that the defendant permitted a dangerous condition to remain after actual knowledge that it had caused injuries. The plaintiff argued that by placing and maintaining these abutments on its land close to the highway without proper warning devices, the defendant exhibited willful and wanton misconduct. The court, upon reviewing the grant of the defendant’s motion to dismiss and citing section 368 of the Restatement (Second) of Torts, reversed the trial court and found that a cause of action did exist under this factual setting. Kubala, 17 Ill. App. 2d at 469-70.
This court has also had an opportunity to consider section 368 of the Restatement (Second) of Torts in the case of Kavanaugh (164 Ill. App. 3d 213). In that case, the plaintiff’s decedent died when the car he was driving left the roadway and became submerged in a retention pond located on the defendant’s property. The trial court found that the defendant owed no duty to the plaintiff’s decedent and granted defendant’s motion to dismiss. On appeal, the plaintiff contended that the defendant owed the decedent a duty of reasonable care to maintain and guard the retention pond because it was foreseeable that a motor vehicle, in its ordinary course of travel, could leave the roadway and enter the pond.
This court affirmed the trial court’s order dismissing the claim, finding the complaint deficient in several respects. We stated:
“The complaint, however, sets forth no allegations as to why the location of the retention pond involves an unreasonable risk ***. There are no allegations, for example, that the pond was located near a sharp curve in the roadway [citation] or opposite a T’ intersection in the roadway [citation], which might make it likely that the vehicle would deviate from the roadway in the ordinary course of travel and come into contact with the pond. The bare allegation that Midwest Club happened to locate its retention pond ‘in the vicinity of’ this particular stretch of roadway, by itself, without an allegation of a condition peculiar to the roadway, does not create a duty to protect the occupants of vehicles which *** leaves [sic] the roadway and enters the pond.
*** In addition to plaintiff’s failure to allege any condition of the roadway that is likely to cause a vehicle to deviate therefrom *** there are no allegations of where the retention pond was in relation to 31st Street.” Kavanaugh, 164 Ill. App. 3d at 218-19.
The case at bar is similar to Kubala and also contains the facts that were missing in Kavanaugh. In this case, there is a sharp curve in the roadway. The location of the concrete pillars is such that if a motorist travelling in either direction failed to negotiate the curve, he/she would come in contact with the pillars. In addition, it is uncontroverted that the pillars are immediately adjacent to the curve. A motorist would not have to veer off the roadway by more than a few feet to strike the pillars. “Distance from the highway is frequently decisive, since those who deviate in any normal manner in the ordinary course of travel cannot reasonably be expected to stray very far.” (Restatement (Second) of Torts §368, comment h (1965).) I am of the opinion that this case is similar to Kubala, in which a cause of action was found to exist, and also supplies the facts that were missing in Kavanaugh. I find that a duty to plaintiff’s decedent did attach pursuant to section 368 of the Restatement, and the trial court erred in holding otherwise.
The main difference between my opinion and the majority’s opinion is that their opinion ascribes the negligent acts of the driver to the plaintiff. No case has been found or cited which considers the existence or nonexistence of a duty based upon the acts of a third party, absent some knowledge or activity of plaintiff that could be deemed negligent. Rather than protecting OMC’s fence with concrete abutments two feet from the roadway, the fence should have been moved back or some less hazardous alternative taken.
Since I determine that there was a duty which was not breached, I specially concur.