dissenting:
I must respectfully disagree with my learned colleagues that count III withstands dismissal upon the plaintiff’s duty-to-warn theory.
In the Tort Immunity Act (the Act), the legislature has concretely formulated the local government duty upon which the majority relies — the duty to maintain roadways in a safe condition. (Janssen v. City of Springfield, (1980), 79 Ill. 2d 435; Ill. Rev. Stat. 1989, ch. 85 par. 3—102.) It has also, however, created local governments’ immunities from liability. I do not agree with the majority’s reasoning that section 3 — 104 of the Tort Immunity Act, which creates an immunity for the government’s failure to initially provide warning signals and signs, does not control this case.
Unlike the majority, I would not rely upon Janssen or cases based partly thereon. (Battisfore v. Moraites (1989), 186 Ill. App. 3d 180; Smith v. County of White (1989), 191 Ill. App. 3d 569, 577; DiOrio v. City of Chicago (1981), 99 Ill. App. 3d 1047, 1051-52.) Those cases suggest a limitation on section 3—104 immunity when a signal or sign was necessary to warn of danger to safe traffic movement. However, I question whether those cases are viable under the facts of this case since the amendment of section 3—104.
In 1986, shortly before this accident, but after the accidents in the above-cited cases, the legislature modified and merged prior subsections 3—104(a) and 3—104(b) of the Act to create the current section 3—104. The new section 3—104 includes the same basic governmental immunity for failure to provide signals and signs. However, the amendment eliminated former subsection 3—104(b)’s provision that immunity was available “unless such a signal, sign, marking or device was necessary to warn of a condition which endangered the safe movement of traffic.” Ill. Rev. Stat. 1985, ch. 85, par. 3—104(b).
The deletion of the cited portion of former subsection 3—104(b) was the most significant aspect of the 1986 amendment. Thus, it is immaterial, as the majority nonetheless accurately observes, that the prior subsection 3—104(a) is virtually identical to the amended section 3—104. Because the Janssen court’s reasoning relied at least in part upon the now deleted exception of section 3—104(b) (Janssen, 79 Ill. 2d at 450-51, 453), its precedential value is, in my opinion, limited following the 1986 amendment. Even assuming that Janssen was not affected by the 1986 amendment of section 3—104, I would find no duty for the County.
As this court has noted, the Act creates no new duties; it simply articulates the common law duty to which the subsequently delineated immunities apply. (Swett v. Village of Algonquin (1988), 169 Ill. App. 3d 78, 95.) I would not find that the common-law duty to maintain a roadway in a safe condition includes the duty effectively established by the majority, that a local government must warn of a disabled State warning marker that it did not erect, maintain, or own, and that was not located on its property. Such a duty could lead to senseless consequences, such as the one in this case where a County might be obligated to seek State permission to use a State right-of-way to place some warning notice that a State-initiated and controlled stop sign was disabled.
Under the Act, the County may determine not to erect a traffic control device. The State could not by its neglect give rise to some otherwise nonexistent County duty to maintain, inspect, or repair a State-controlled sign. (See Ill. Rev. Stat. 1989, ch. 85, pars. 2—105, 3 —102(a); Thorsen v. City of Chicago (1979), 74 Ill. App. 3d 98, 107.) Likewise, the State could not by its neglect give rise to a County duty to warn of a failure to maintain, inspect, or repair. See Charpentier v. City of Chicago (1986), 150 Ill. App. 3d 988, 996.
I would affirm the court’s dismissal of count III of the complaint. Consequently, I respectfully dissent from the contrary portion of the majority decision.