dissenting in part and specially concurring in part:
I believe the majority’s approach unduly expands the duty owed by landowners to travelers on adjacent highways. The majority finds that defendants, Eugene and Elizabeth Bauer, owed a duty of ordinary care to plaintiff, Michael Hutchings, who was driving his motorcycle along the highway adjacent to defendants’ property. In reaching this conclusion, the majority places its primary reliance on section 368 of the Restatement (Second) of Torts (hereinafter Restatement). Restatement (Second) of Torts §368, at 268 (1965).
Assuming that the horizontal log with which plaintiff collided was located entirely on defendants’ property, I do not believe that section 368, as interpreted by Illinois courts, places a duty of ordinary care on defendants. Although never adopted as the rule in Illinois, section 368 has been viewed as a persuasive presentation of the common-law rule regarding the duty of landowners to travelers on adjacent highways. (Ziemba v. Mierzwa (1991), 142 Ill. 2d 42, 48. But see Cross v. Moehring (1989), 188 Ill. App. 3d 830, 832 (declining to follow section 368).) However, the duty of care embodied by section 368 applies only to foreseeable deviations from the roadway occurring in the ordinary course of travel. (Battisfore v. Moraites (1989), 186 Ill. App. 3d 180, 189.) The Restatement’s illustrations of the rule refer to artificial conditions “immediately adjacent to” or “within a few inches of” the highway. Restatement (Second) of Torts §368, Illustrations 1, 2, at 270-71 (1965).
Here, the point of impact was at least 21 feet from the edge of the roadway and at least 150 feet from the point plaintiff first left the road. Other Illinois Appellate Court cases have found artificial conditions on private property closer to the road to be outside the scope of the duty imposed under section 368. (Hoffman v. Vernon Township (1981), 97 Ill. App. 3d 721, 723 (utility pole placed 12 to 16 feet from the roadway); West v. Faurbo (1978), 66 Ill. App. 3d 815, 818 (striking concrete block four or five feet off public sidewalk when swerving to avoid a moving automobile is neither an incidental deviation from the sidewalk nor an ordinary incident of travel).) Although a landowner’s duty of care to those traveling on an adjacent highway can be extended to “those who stray a few feet from it inadvertently” (W. Keeton, Prosser & Keeton on Torts §57, at 389 (5th ed. 1984)), plaintiff’s significant departure from the roadway while traveling 10 miles per hour over the advised speed limit cannot be construed as an incidental deviation or an ordinary incident of travel.
The majority finds this case distinguishable from prior cases based on two factors: (1) the fact that plaintiff was travelling at the legal speed limit; and (2) the foreseeability of deviations from the road based on prior occurrences. I find neither factor determinative here.
First, plaintiff admits he was traveling at 10 miles per hour over the advisory speed limit of 25 miles per hour. The majority’s attention to the fact that 25 miles per hour speed limit was only advisory and not mandatory might be appropriate if this case were a prosecution for speeding. However, the speed at which plaintiff was advised he could safely travel is even more relevant than the actual speed limit. The advisory speed limit, which warned plaintiff not to drive faster than 25 miles per hour, is more directly related to the question of whether plaintiff was “traveling with reasonable care upon the highway.” Restatement (Second) of Torts §368, at 268 (1965).
Second, I find foreseeability based on prior occurrences to be of deceptively little importance in the instant scenario. Defendants placed the protective barrier on their property precisely because they foresaw that cars straying from the roadway could enter their property at a point along which defendants trained their horses almost every day. In fact, defendants asked the township to install a guardrail to protect them and their property, but the township declined to do so. Ironically, the foreseeability of cars leaving the roadway could also give rise to a duty on the part of defendants to erect a barrier in order to protect persons lawfully on their property. (See Ray v. Cock Robin, Inc. (1974), 57 Ill. 2d 19, 23.) The foreseeability of cars leaving the roadway cannot operate to impose a duty on defendants both to erect and not to erect a protective barrier.
The majority does not cite, nor has my own research discovered, a case applying section 368 of the Restatement wherein the obstruction complained of was explicitly designed in response to foreseeable deviations from the roadway. However, it is well established that the existence of a duty is not bottomed on foreseeability alone. (Cunis v. Brennan (1974), 56 Ill. 2d 372, 375.) Courts must also consider the burden to the defendant of imposing a duty and the consequences of imposing this burden. (Ziemba, 142 Ill. 2d at 47.) The majority underestimates the burden its approach will place upon landowners. I fail to see, for example, the utility of suggesting that defendants should have imposed a break-away fence when the purpose of the fence was to stop cars from careening onto the horse track. I also find it inappropriate to suggest that landowners such as defendants should place protective fences farther back from the roadway. While the majority may find it easy to make such a suggestion to defendants, whose rural property comprises approximately 80 acres, we must be wary of adopting a rule which could also apply to urban landowners who have built to the very edge of their lot lines. See Cross, 188 Ill. App. 3d at 832.
Moreover, I feel that it is unwise to expand the very limited duty of abutting landowners into a more far-reaching duty to assure the general safety of travelers whenever they leave the roadway. The words of the Court of Appeals for the State of New York are instructive on this point:
“Carried to its logical conclusion, this rule would require a landowner to remove every tree, fence, post, mailbox or name sign located on his property in the vicinity of the highway, or permit them to remain, subject to possible liability. This, in our opinion, would impose an intolerable burden upon a property owner.
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It is the continuing duty of the State or the municipality, not the abutting landowners, to maintain the highways and streets in a reasonably safe condition for ordinary use by the public. *** If the public right of way is too narrow, because of objects on the abutting land, the burden should fall upon the State to acquire additional property for its right of way ***.” Hayes v. Malkan (1970), 26 N.Y.2d 295, 299-300, 258 N.E.2d 695, 696-97 (refusing to extend a duty where the condition is on private property and not within the right-of-way).
The approach followed by the majority slights these concerns and, ironically, requires landowners to act in disregard of their own safety in order to protect the safety of others. I find that this would be an unduly burdensome responsibility to place upon landowners. I therefore dissent from the opinion of the majority insofar as it reverses summary judgment for defendants and holds that defendants owed a duty to plaintiff even if the collision occurred on their property.
In the present case, however, there are also- allegations that the obstruction with which plaintiff collided was within the right-of-way on Callahan Road. Plaintiff raised the issue on appeal and, in the trial court, supported this assertion by deposition testimony that two of the vertical posts erected by defendants extended into the right-of-way. Thus, a factual question has been raised as to whether the portion of the line of posts erected by defendants with which plaintiff either collided or attempted to avoid is located on the right-of-way. I believe that, if plaintiff collided with an obstruction placed in the right-of-way by defendants, then it would be for the jury to determine whether the placement of the object was such as to create an unreasonable danger for travelers on the highway. (See Kinsch v. Di Vito Construction Co. (1964), 54 Ill. App. 2d 149, 155 (concrete block placed on shoulder of the road); Hayes, 26 N.Y.2d at 298, 258 N.E.2d at 696.) Because there remains a material question of fact in this regard, I agree with the majority that the entry of summary judgment in favor of defendants must-be reversed, in part, as to the allegations based on this theory.