Andrews v. Marshall's of Oak Lawn, Illinois, Inc.

JUSTICE FREEMAN,

dissenting:

I respectfully dissent from the majority opinion. In affirming the grant of summary judgment for defendant on count I of plaintiff’s complaint, alleging a violation of the Road Construction Injuries Act (Act), the majority has merely followed the misconstruction of the Act first rendered in Dodson v. Shaw (1983), 113 Ill. App. 3d 1063, 448 N.E.2d 188.

The Dodson court concluded that the Act did not apply to the facts of that case because two-way traffic was maintained on the highway where the accident at issue occurred. In so concluding, the court reasoned that the Act is “obviously concerned with the unusually dangerous situation where a highway is closed altogether (Ill. Rev. Stat. 1981, ch. 121, pars. 314.2, 314.3) or there is only one lane of traffic for use by vehicles traveling in opposite directions (Ill. Rev. Stat. 1981, ch. 121, pars. 314.2, 314.3).” (Emphasis added.) (Dodson, 113 Ill. App. 3d at 1067.) It is manifest that in construing the purpose of the Act, the Dodson court did not even consider section 4 of the Act. Moreover, there was no indication in Dodson as to the specific section, if any, of the Act under which the plaintiff therein was proceeding. It does not at all appear that he was proceeding, as plaintiff herein is, under section 4 of the Act. The Dodson court’s reliance only on sections 2 and 3 of the Act, in determining its applicability and its failure to indicate whether the plaintiff was proceeding under section 4, renders its holding of little value to the proper resolution of the issue here.

The misconstruction of the Act by the Dodson court was first followed in Filipetto, on which the majority also relies. Therein, a different panel of this division of the Appellate Court, First District, merely repeated the Dodson holding regarding the situations in which the Act applies. It likewise concluded that the Act did not apply therein because neither situation, viz., closure of a highway altogether or one traffic lane for vehicles travelling in opposite directions, was present. The Filipetto court, like the Dodson court, failed to consider the effect of section 4 on the applicability of the Act. Filipetto, 135 Ill. App. 3d at 786.

The third case cited by the majority as supporting its construction of the Act, Eggers, does reflect that the plaintiff therein was specifically relying on section 4 of the Act. Notwithstanding that fact, the Eggers court relied on Dodson and Filipetto in concluding that the Act was not applicable to the facts of that case. (Eggers, 157 Ill. App. 3d at 827.) I believe that reliance on those cases was error, given that the Eggers plaintiff was specifically proceeding under section 4. However, I also believe the Eggers court reached the correct result to the extent that it based its conclusion “on the facts that no work was being done on the roadway when the accident occurred, no lanes of traffic were closed, and the normal flow of traffic had not been interrupted.” (157 Ill. App. 3d at 827.) Nonetheless, I believe the Eggers court and the majority here construe the Vegieh and Koches cases incorrectly in order to find them supportive of their construction of the Act rather than the construction asserted by the Eggers plaintiff and plaintiff here.

The Eggers court first found that Vegieh and Koches did not address the issue facing it and that they were factually distinguishable. It then noted that in Vegieh the entire southbound lane, in which the accident at issue there had occurred, was completely closed. In Koches, it also noted, the excavated pit, in front of which were the barricades with which the plaintiff motorcyclist had collided, covered the entire surface of the road. The Eggers court thus reasoned that the road conditions present in Vegieh and Koches actually rendered those cases “consistent with the restrictions on the Act’s coverage” set forth in Dodson and Filipetto. (157 Ill. App. 3d at 827.) The majority, like the Eggers court, first finds that Vegieh and Koches did not address the issue involved here and then cites the Eggers court’s reasoning that they in fact were consistent with Dodson and Filipetto. In contrast to the majority, I believe that Vegieh and Koches support plaintiff’s right to proceed against defendant under section 4 of the Act without regard to the purported limitations placed on the applicability of the Act by its other sections.

In Vegieh, the supreme court looked no further than section 4 and section 6, dealing with a contractor’s liability under the Act, to decide whether contributory negligence was a bar to the plaintiff’s action. To the extent that the supreme court did not question the right of the plaintiff to maintain the action under the Act other than to address the contributory negligence issue, and to the extent that it merely looked to sections 4 and 6 of the Act to decide that question, I believe that it implicitly approved the right of a plaintiff to proceed under section 4 of the Act alone. It is as reasonable to so construe Vegieh as it is to construe it was consistent with Dodson and Filipetto on the basis of facts which were apparently of no moment to the court, i.e., the road conditions involved.

Koches, like this case and Eggers, involved the grant of a summary judgment for the defendant. The Koches plaintiff, like the Eggers plaintiff and plaintiff here, relied on section 4 of the Act. Contrary to the statements of the Eggers court and the majority here, the applicability of the Act was directly in issue in Koches. Rejecting the defendant’s argument that the Illinois Highway Code was controlling in that case, the court concluded that the Act “could” apply to the case. (Koches, 112 Ill. App. 3d at 855.) Significantly, the court looked to no other provision of the Act in deciding that issue. Rather, it noted the general purpose of the Act, that, as a safety statute, it was subject to a liberal construction and, most importantly, the purpose of section 4 as stated in Kreke v. Caldwell Engineering Co. (1982), 105 Ill. App. 3d 213, 433 N.E.2d 1337, which plaintiff here cites but the majority ignores. Based upon its findings that the Act could apply and that the defendant had not proved that it was not a contractor for purposes of liability under the Act, the Koches court determined that the defendant was not entitled to summary judgment as a matter of law. (Koches, 112 Ill. App. 3d at 855-56.) Because Koches specifically concluded that section 4 of the Act could apply to the facts of that case without looking to the exact road conditions at issue therein, I believe the majority, like the Eggers court did, stretches the proper reading of that case to find that it actually supports its decision.

If the majority were to accept the reasoning of the Koches and Kreke courts rather than emphasize facts irrelevant under section 4 of the Act, I believe it would have to conclude that plaintiff can proceed thereunder regardless of whether there was two-way traffic on Cicero Avenue at the time of his accident or not. In determining whether the Act applied to the facts presented therein, the Kreke court looked to no other provision than the pertinent section, section 4. It then stated:

“As noted, the purpose of the act is to protect motorists from injury or death where construction is occurring on a State highway. The purpose and intent of section 4, and the rules of the Manual to which it refers, are to insure that motorists approaching construction areas or obstructions due to construction are given adequate and sufficient advance warning of those conditions. Section 4 mandates advance warning when ‘any portion of highway *** is closed to all traffic.’ The obvious purpose and value of such advance warning is to alert motorists that normal traffic flow and normal traffic conditions may have been changed. It alerts traffic, in advance, to take special caution and pay special attention in proceeding onward.” (Emphasis in original.) Kreke, 105 Ill. App. 3d at 222.

Admittedly, Kreke involved an accident on a rural highway leading to a portion closed to all traffic. However, to hold that the broad and salutary purposes of the Act in general, and section 4 in specific as construed in Kreke, are only effectuated where a road is closed to all traffic or there is only one lane open for vehicles travelling in opposite directions requires that judges blind themselves to the realities of modern-day traffic speed and congestion. The Kreke court not having so qualified the purpose of section 4, it ill-serves the workers and the general public, which the Act is intended to protect, for the majority to do so. Moreover, “the Road Construction Injuries Act embodies a policy that, absent sufficiently clear advance warnings or personal knowledge of conditions of a road, motorists using it are entitled to believe that it presents no extraordinary hazards that would not normally be associated with a road.” Doyle v. Rhodes (1984), 101 Ill. 2d 1, 18, 461 N.E.2d 382.

I believe that excavation and the barriers surrounding it which the plaintiff encountered on Cicero Avenue constituted “obstructions due to construction” on a State highway. Therefore, I believe it serves the purposes of the Act and, specifically, section 4, to find that plaintiff may proceed thereunder. I do not believe that the purported limitations upon claims under the Act relied upon by the majority legitimately bar plaintiff’s right to proceed under section 4 and entitle defendant to judgment as a matter of law. As such, I would reverse the grant of summary judgment for defendant on count I of plaintiff’s complaint.