NO. 4-03-0347

JUSTICE STEIGMANN, delivered the opinion of the court:

In July 1999, plaintiff, Deanne M. Miller, sued defendants, the Highway Commissioner of North Otter Township RoadDistrict, North Otter Township Road District, North Otter Township, and Rural Electric Convenience Cooperative Company (RuralElectric), for injuries Miller sustained when her minivan skiddedoff a roadway and struck a utility pole owned by Rural Electric.

In October 2002, Rural Electric filed a motion, pursuant to section 2-619 of the Code of Civil Procedure (Code) (735ILCS 5/2-619 (West 2002)), to dismiss count IV of Miller'scomplaint, which alleged, in pertinent part, that Rural Electrichad negligently placed the utility pole. Following a February2003 hearing, the trial court granted the motion to dismiss, upondetermining that Rural Electric owed Miller no duty of care. InMarch 2003, the court entered a finding that no just reasonexisted for delaying enforcement or appeal of its order (155 Ill.2d R. 304(a)).

Miller appeals the trial court's granting of RuralElectric's October 2002 motion to dismiss count IV, and weaffirm.

Around 10:20 p.m. on July 18, 1998, Miller was drivingher minivan east on Hays Road in Macoupin County. (The townshipmaintained that portion of Hays Road by spreading oil and thenplacing gravel on it.) As Miller approached the unmarked andunlighted intersection of Hays Road and Jones Road, she thoughtthat Hays Road either ended or veered sharply to the right. Asshe attempted to negotiate the right-hand turn onto Jones Road,her minivan skidded through the intersection and struck RuralElectric's utility pole, which was located approximately 10 feetfrom the southeast corner of the intersection. As a result ofthe collision, Miller sustained serious injuries, including theloss of one eye.

In July 1999, Miller filed a complaint against RuralElectric and the other defendants. Count IV of the complaintalleged, in pertinent part, that Rural Electric acted negligentlyby (1) placing the utility pole "in a location closely behind andslightly to the right" of the intersection of Hays and JonesRoads, and (2) failing to (a) warn motorists about the utilitypole, (b) place lighting or reflective tape on the utility pole,and (c) provide a cushion barrier or a "breakaway" utility pole.

In August 1999, Rural Electric filed a motion, pursuantto section 2-615 of the Code (735 ILCS 5/2-615 (West 1998)), todismiss count IV of Miller's complaint, alleging that the complaint failed to state a cause of action because it failed toallege that Rural Electric owed Miller a duty. Following aSeptember 1999 hearing on Rural Electric's motion, the trialcourt dismissed count IV's allegations that Rural Electric actednegligently by failing to (1) warn motorists about the utilitypole, (2) place lighting or reflective tape on the utility pole,and (3) provide a cushion barrier or a "breakaway" utility pole. As to the remaining allegation set forth in count IV, the courtrequested that Rural Electric resubmit its motion to dismissafter the parties completed discovery.

In October 2002, Rural Electric filed a motion, pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2002)),to dismiss the remaining allegation set forth in count IV ofMiller's complaint--namely, that Rural Electric had negligentlyplaced the utility pole "in a location closely behind andslightly to the right" of the intersection of Hays and JonesRoads. In the motion, Rural Electric argued that it owed no dutyto Miller because (1) "the utility pole was off the traveledsurface of the roadway"; and (2) Miller "was not in the ordinarycourse of travel as she deviated from the road and struck theutility pole." Rural Electric also filed a memorandum of law insupport of its motion to dismiss. Attached to the memorandumwere the following: (1) the discovery depositions of Sharon Haysand Dara Drake, both of whom lived on Hays Road at the time ofthe accident; and (2) the affidavit of Louis DeLaby, RuralElectric's manager of operations and maintenance.

In January 2003, Miller filed a response to RuralElectric's motion to dismiss. Attached to the response were thefollowing: (1) nine photographs of the accident site and thenearby roadway, which were taken shortly after the accident(Miller's exhibit Nos. 1 through 9); (2) DeLaby's discoverydeposition; and (3) Miller's discovery deposition.

Because the parties are familiar with the facts setforth in the depositions and affidavit, we discuss them only tothe extent necessary to put Miller's argument in context. Haystestified that since 1977, she had lived on Hays Road about ahalf-mile from the intersection of Hays and Jones Roads. Haysidentified Miller's exhibit Nos. 1 through 9 as photographsaccurately depicting Hays Road and its intersection with JonesRoad at the time of the accident. As a driver approaches theintersection, there are a series of rises and dips, and thecrossroads are difficult to see "until you get up there." If adriver is not familiar with Hays Road, she would think that it isa "regular road" east of the intersection. However, east of theintersection Hays Road is "mostly dirt," although it is maintained by North Otter Township. The intersection "pretty muchalways" contains loose gravel on top of the oiled surface. Onoccasions when Hays drove 40 to 45 miles per hour as she turnedfrom Hays Road south onto Jones Road, her car "sort of" losttraction on the loose gravel. However, her car did not slide orswerve. Hays was not personally aware of any prior accidents atthe intersection involving the utility pole. She had heard of a"couple" of accidents on Hays Road, including a fender bender, acar hitting a roadway mile marker, and drunk drivers sliding intoditches. Hays had never contacted Rural Electric about itsplacement of the utility pole.

Dara Drake testified that she had lived on Hays Roadnear its intersection with Jones Road for five years. Around10:20 p.m. on July 18, 1998, Drake was in her house when she andher husband heard a crash. After dialing 9-1-1, she joined herhusband at the accident site and saw that the front driver's sideof Miller's minivan had struck the utility pole. Drake statedthat Hays Road continues on east of the intersection, although itbecomes a dirt road. A driver traveling east on Hays Road may gothrough the intersection and then either continue straight on thedirt road or turn left into the Drakes' driveway. Drake knew ofother people who commonly used that section of Hays Road "as ameans of travel." Drake was aware of other accidents in whichdrivers drove into the Drakes' field on the northwest side of theintersection (diagonally across the intersection from the utilitypole). She did not know whether those drivers lost control inthe intersection or simply drove off the road into the field. Drake never contacted Rural Electric regarding any accidents, andshe was not aware of any accidents (other than Miller's) that hadoccurred at the intersection involving the utility pole. Drakepreviously had telephoned the township road commissioner andrequested that the township install stop signs at the intersection because drivers go too fast as they approach it. If driverstraveled at a "reasonable speed," the loose gravel at the intersection was not dangerous.

DeLaby averred that he had been employed by RuralElectric since 1972 and was familiar with the location of theutility pole near the intersection of Hays and Jones Roads. Prior to placing the utility pole at its current location, RuralElectric was not "aware of any dangerous propensity of theintersection," and did not know of any accidents in which vehicles left the roadway because of a failed right-hand turn ontoJones Road while traveling east on Hays Road. In addition, RuralElectric was not aware of any accident (other than Miller's) inwhich a vehicle left the roadway at the intersection and struckthe utility pole. Rural Electric had never received any complaints from residents regarding the safety of the utility pole'slocation.

DeLaby testified that in September 1947, Rural Electricfirst installed utility poles along Jones Road. In September1975, Rural Electric completed an improvement project by installing utility poles along Hays Road. As part of that project,Rural Electric moved the utility pole in question from a locationalong Jones Road to its current location near the southeastcorner of the intersection of Hays and Jones Roads. No guidelines or specifications existed regarding the distance utilitypoles should be placed from intersections. However, when RuralElectric placed the utility pole at its current location, RuralElectric's "ruling span" guidelines suggested a distance of 326feet between utility poles, allowing a divergence of 10%. Thus,utility poles could be placed between 294 feet and 358 feet apartand still fall within the guidelines. In 1978, Rural Electricadopted a specification that suggested a 300-foot ruling span foradditional protection of the poles from ice storms. The distancebetween the utility pole in question and the next utility polealong Hays Road was 224 feet. DeLaby opined that it would costapproximately $1,000 to move the utility pole in question fartherfrom the intersection.

DeLaby also testified that prior to the July 19, 1998,accident, Rural Electric did not know of any accidents that (1)involved the utility pole in question or (2) occurred at or nearthe intersection. He acknowledged that at the time of theaccident, Rural Electric was aware that (1) no streetlightsexisted near the intersection of Hays and Jones Roads; (2) eastof the intersection, the surface of Hays Road changed; and (3) noposted speed limit signs existed on Hays Road, which meant thatthe speed limit was 55 miles per hour. DeLaby also acknowledgedthat Miller's exhibit Nos. 1 through 9 were photographs thataccurately depicted Hays Road and its intersection with JonesRoad as they existed in July 1998.

Miller testified that on the night of the accident, sheturned onto Hays Road about one mile before its intersection withJones Road. Although Miller had never driven on Hays Road beforethat night, she had driven on country roads for many years. Justprior to the accident, Miller was traveling between 45 and 50miles per hour. She described the accident as follows:

"[Hays Road] looked like it wentstraight ahead. I was under the impressionthat it went straight ahead, that's why Icontinued to drive straight ahead, untilright when I came up on that, came up on thatlittle, that rise, *** that's right then iswhen I realized it made a turn to the right.

So of course the first, my first reaction was to turn to the right, and because ofthe rocks on the road I just kept goingstraight, and I hit the [utility] pole."

Had it not been for the loose gravel in the intersection, Miller"would have had control" of her minivan.

Following a January 2003 hearing on Rural Electric'smotion to dismiss, the trial court took the matter under advisement and instructed the parties to submit additional writtenbriefs, which the parties later did.

Later in January 2003, Rural Electric filed a supplemental section 2-619 motion to dismiss the remaining allegationset forth in count IV on the ground that Miller's claim wasbarred by the statute of repose (735 ILCS 5/13-214(b) (West2002)). In February 2003, Miller filed a motion for leave tofile an amended complaint. Count IV of the amended complaintalleged that Rural Electric acted negligently by keeping, maintaining, and continuing to use a utility pole that had beenplaced in a dangerous location. Later in February 2003, thetrial court granted Rural Electric's motion to dismiss theremaining allegation set forth in count IV.

In March 2003, the trial court entered an order (1)denying Miller's motion for leave to file an amended complaint,upon determining that nothing in the amended complaint established that Rural Electric owed a duty to Miller, and (2) findingthat no just reason existed for delaying enforcement or appeal ofits September 1999 and February 2003 orders dismissing count IV(155 Ill. 2d R. 304(a)). Based on its ruling, the court did notaddress Rural Electric's statute of repose argument. This appealof the court's February 2003 order dismissing the remainingallegation set forth in count IV followed.

Section 2-619 motions to dismiss provide a means fordisposing of issues of law or easily proved issues of fact. People v. Philip Morris, Inc., 198 Ill. 2d 87, 94, 759 N.E.2d906, 911 (2001). In this case, the ground advanced for dismissing the remaining allegation set forth in count IV of Miller'scomplaint is that the claim asserted therein is barred becauseRural Electric owed no duty to Miller. See Lang v. Silva, 306Ill. App. 3d 960, 970, 715 N.E.2d 708, 715 (1999) (the lack of aduty is an appropriate basis for a section 2-619 motion todismiss); see also 735 ILCS 5/2-619(a)(9) (West 2002) (permittinginvoluntary dismissal when "the claim asserted against defendantis barred by other affirmative matter avoiding the legal effectof or defeating the claim"). The trial court should grant themotion and dismiss the complaint if, after construing the allegations in the light most favorable to the plaintiff, no set offacts can be proved that would entitle the plaintiff to recover. We review de novo the trial court's granting of a defendant'ssection 2-619 motion. Towne Realty, Inc. v. Shaffer, 331 Ill.App. 3d 531, 535, 773 N.E.2d 47, 51 (2002)).

Miller argues that the trial court erred by grantingRural Electric's October 2002 motion to dismiss the remainingallegation of count IV because under the circumstances of thiscase, Rural Electric owed her a duty to place the utility pole a"reasonably safe" distance from the intersection of Hays andJones Roads. We disagree.

The existence of a duty is essential to a claim sounding in negligence (LaFever v. Kemlite Co., 185 Ill. 2d 380, 388,706 N.E.2d 441, 446 (1998)), and whether a duty exists is aquestion of law (Happel v. Wal-Mart Stores, Inc., 199 Ill. 2d179, 186, 766 N.E.2d 1118, 1123 (2002)). In determining whethera duty exists, a court should consider the following factors: (1) the reasonable foreseeability of injury; (2) the reasonablelikelihood of injury; (3) the magnitude of the burden thatguarding against injury places on the defendant; and (4) theconsequences of placing that burden on the defendant. Happel,199 Ill. 2d at 186-87, 766 N.E.2d at 1123-24.

In Gouge v. Central Illinois Public Service Co., 144Ill. 2d 535, 538-39, 582 N.E.2d 108, 110 (1991), the plaintifflost control of his car as he approached a sharp right-handcurve, skidded 65 feet, left the paved roadway, crossed a gravelshoulder, and struck a utility pole owned by the defendantutility company. The plaintiff sued the utility company for theinjuries he sustained when he struck the utility pole, which waslocated 15 feet from the paved roadway. The trial court dismissed the plaintiff's complaint for failing to state a cause ofaction, and the appellate court reversed, upon concluding thatthe complaint stated a cause of action for "negligent installation" of the utility pole. Gouge, 144 Ill. 2d at 539, 582 N.E.2dat 110. The supreme court reversed, upon concluding that it wasnot reasonably foreseeable that the plaintiff would deviate fromthe roadway and strike the utility pole. Gouge, 144 Ill. 2d at545, 582 N.E.2d at 113. In so concluding, the supreme courtrelied on section 368 of the Restatement (Second) of Torts, whichprovides as follows:

"A possessor of land who creates orpermits to remain thereon an excavation orother artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk toothers accidentally brought into contact withsuch condition while traveling with reasonable care upon the highway, is subject toliability for physical harm thereby caused topersons who

(a) are traveling on the highway, or

(b) foreseeably deviate from it in theordinary course of travel." (Emphasisadded.) Restatement (Second) of Torts