Herman v. Will Township
State: Illinois
Court: 3rd District Appellate
Docket No: 3-96-0017
Case Date: 10/03/1996
No. 3--96--0017
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D. 1996
_________________________________________________________________
VINCENT L. HERMAN, ) Appeal from the Circuit Court
) of the 12th Judicial Circuit,
Plaintiff-Appellee, ) Will County, Illinois
)
v. ) No. 91--L--18465
)
WILL TOWNSHIP, a municipal )
corporation, ) Honorable
) Edwin B. Grabiec,
Defendant-Appellant. ) Judge Presiding
_________________________________________________________________
JUSTICE McCUSKEY delivered the opinion of the court:
_________________________________________________________________
The defendant, Will Township (Township), appeals from a
judgment entered in favor of the plaintiff, Vincent Herman. A jury
awarded the plaintiff damages for injuries he suffered in an
accident on a gravel road which had recently been improved by the
Township.
On appeal, the Township first argues that the judgment should
be reversed. The Township contends that it was immune from
liability pursuant to sections 2-109, 2-201 and 3-103(a) of the
Local Government and Governmental Employees Tort Immunity Act (Tort
Immunity Act) (745 ILCS 10/2-109, 2-201, 3-103(a) (West 1994)). In
the alternative, the Township argues that it is entitled to a new
trial because: (1) the plaintiff was allowed to introduce evidence
that the Township did not post warning signs; (2) the plaintiff was
allowed to introduce a photograph of a different gravel road; (3)
the trial court erroneously gave a missing witness instruction; and
(4) the trial court allowed the plaintiff's expert, Paul Box, to
render an opinion concerning the condition of the gravel road.
After carefully reviewing the record, we conclude that the
Township was not immune from liability pursuant to the Tort
Immunity Act. We further conclude that the Township is not
entitled to a new trial. As a result, we affirm.
FACTS
On July 25, 1991, the 65-year-old plaintiff was driving his
Honda Elite 250 (moped) west on Eagle Lake Road. He had never
driven on Eagle Lake Road before, and, when he started driving on
the road, it was paved. Because it was an unposted rural road, the
speed limit was 55 miles per hour. The plaintiff was traveling
about 45 miles per hour when he saw a rise in the road and slowed
down to 42 or 43 miles per hour. The plaintiff saw a color change
in the road but could not tell whether the pavement turned into a
gravel road until he was about 150 feet from where the pavement
changed to gravel. After he crossed Crawford Road, the plaintiff
drove onto the north lane of the gravel road. He tried braking,
but his front wheel sunk into the gravel and his moped went down.
As a consequence, the plaintiff suffered five broken ribs, a
punctured lung, a fractured collar bone, a fractured scapula and a
herniated disc in his neck. Moreover, he had to have exploratory
surgery because of internal bleeding, and his spleen was removed.
On December 31, 1991, the plaintiff filed a complaint against
Will Township. The plaintiff alleged that the Township made
improvements to Eagle Lake Road and caused the road to become
unsafe by "leaving up to four (4) inches of uncompacted, coarse,
loose gravel on the roadway." The Township attempted to have the
complaint dismissed based upon its claim of tort immunity. The
trial court denied the motion. The Township also filed affirmative
defenses, again claiming tort immunity and also claiming the
plaintiff was guilty of contributory or comparative negligence
because he failed to keep a proper lookout and failed to reduce
speed to avoid the accident.
A trial took place in October 1994. On October 19, 1994, the
jury returned a verdict in which it found for the plaintiff but
awarded no damages. The trial court later granted the plaintiff's
motion for a new trial. Will Township filed a petition for leave
to appeal the new trial order. This court denied the petition.
The second trial began on July 24, 1995. Ronald Werner, the
Township's road commissioner, testified that Eagle Lake Road was
paved east of Crawford Road and was gravel west of Crawford Road.
During the spring of 1991, Township employees began improving a
one-mile section of the gravel road west of Crawford Road and east
of Will Center Road. The project was approved by the Illinois
Department of Transportation (IDOT) and was completed in accordance
with IDOT specifications. The specifications did not include any
requirements for compaction of the gravel.
The Township improved the road by widening it from 17 feet to
20 feet and putting on a new 10-inch layer of gravel. Township
employees laid the new gravel in 3 to 3
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