concurring:
I agree with the court that the trial judge properly dismissed the instant complaint. Because the basis for my concurrence is different from the majority’s reasoning, however, I write separately to express my views.
The majority provides two separate grounds in support of its holding. First, the majority concludes that the drainage ditch could not have been a proximate cause of the decedent’s injury because the decedent’s vehicle “would have likely struck something else” if the ditch had not been there. (153 Ill. 2d at 70.) Second, without expressly relying on the provisions of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, pars. 1 — 101 through 9— 107), the majority believes that the township did not violate the duty of care it owes to the public, apparently because motorists “are not expected to drive in [ditches] and the public cannot be an insurer of those who do.” (153 Ill. 2d at 71.) Although I agree with the majority’s ultimate holding, my agreement is premised on grounds different from those contained in the majority opinion.
As a preliminary matter, it must be said that, contrary to the majority’s view, the plaintiff’s amended complaint does not allege simply that “the ditch along the road was not safe to be driven in,” and the issue in this case is not merely whether the township has a duty to make drainage ditches “safe for vehicular traffic.” (153 Ill. 2d at 70.) Those characterizations ignore the gravamen of the plaintiff’s amended complaint, which asserts that the township breached its duty of due care to motorists using Wheeler Road by maintaining a ditch of this slope and depth so close to the roadway. According to the complaint, the ditch lies five to seven feet from the edge of the pavement, is five to six feet deep, and slopes downward at an angle of 45 to 90 degrees. The plaintiff alleges that the vehicle being driven by the decedent entered the ditch and then flipped over, causing his death.
Section 3 — 102(a) of the Tort Immunity Act states:
“Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used ***.” (Ill. Rev. Stat. 1989, ch. 85, par. 3-102(a).)
This provision codifies, for the benefit of “intended and permitted” users, the common law duty of a public body with respect to maintaining its roads and highways. Janssen v. City of Springfield (1980), 79 Ill. 2d 435, 450; see Curtis v. County of Cook (1983), 98 Ill. 2d 158, 164-65.
I do not agree with the majority’s initial conclusion that the decedent’s vehicle was bound to collide with something once it left the roadway and therefore the condition of the roadside ditch could not have been a proximate cause of the decedent’s injuries. First, the premise of this argument is incorrect. It is not uncommon for vehicles that leave the road to come to a stop in an open field or other cleared area, without colliding with any obstacle. Second, and more important, this logic seemingly eliminates all public liability for roadside conditions, a result that I believe is contrary to both section 3 — 102 of the Tort Immunity Act and relevant case law (see Janssen v. City of Springfield (1980), 79 Ill. 2d 435; Michalak v. County of La Salle (1984), 121 Ill. App. 3d 574). Similarly, I am unable to agree with the majority’s further holding that, because motorists are not expected to drive in ditches and the public cannot be an insurer of those who do, the township could not have violated the duty of care it owed the plaintiff’s decedent. Again, this reasoning threatens to eliminate all public liability for accidents or injuries attributable to roadside conditions, a result that cannot be squared with the requirements imposed on public entities by both statute and case law.
I concur, however, in the majority’s judgment in the present case, which upholds the dismissal of the plaintiff’s complaint. The scope of a party’s duty of care is shaped in large measure by matters of public policy, and these concerns strongly militate against recognizing a cause of action in the circumstances shown here.
“In considering whether a duty exists in a particular case, a court must weigh the foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of guarding against it and the consequences of placing that burden on the defendant. [Citations.]” (Gouge v. Central Illinois Public Service Co. (1991), 144 Ill. 2d 535, 542.) The last two criteria are particularly significant in this case. There is nothing unusual or unique about the ditch in question, and it appears to be similar in configuration to the drainage ditches that run for miles along thousands of roads throughout the State. Imposing on the public authorities the burden of eliminating the type of hazard alleged to exist here would be an unduly oppressive obligation, as the trial judge found. For these reasons, I concur in the court’s judgment upholding the dismissal of the plaintiff’s amended complaint.
Finally, I would note that the plaintiff’s cause of action can find no assistance here in the failure of the township to provide any pavement markings, warning signs, or guardrails in the area where the accident occurred. The plaintiff’s complaint originally contained allegations to that effect, charging the township with negligence because of the complete absence of any warnings or barriers. The plaintiff later withdrew those allegations, however, apparently in light of section 3 — 104 of the Tort Immunity Act. That provision immunizes a local public entity for its failure “to initially provide *** distinctive roadway markings or any other traffic regulating or warning sign, device or marking, *** traffic separating or restraining devices or barriers.” Ill. Rev. Stat. 1989, ch. 85, par. 3 — 104; see West v. Kirkham (1992), 147 Ill. 2d 1.
We need not decide in this case whether the township may be required to undertake the more onerous step of eliminating the alleged hazard when section 3 — 104 specifically absolves the township of the less onerous task of providing warnings or barriers in its vicinity. It is enough to say that the duty owed by the township to the plaintiff’s decedent did not extend to the harm that occurred here.
For the reasons stated, I concur in the court’s judgment.
JUSTICE FREEMAN joins in this concurrence.