Boub v. Township of Wayne
Annotate this Case
No. 2--96--1249
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
JON P. BOUB, ) Appeal from the Circuit Court
) of Du Page County.
Plaintiff-Appellant and )
Cross-Appellee, ) No. 93--L--1912
)
v. )
)
THE TOWNSHIP OF WAYNE, and JOHN )
RYVOLD, Wayne Township Highway )
Commissioner, )
)
Defendants-Appellees and )
Cross-Appellants )
)
(Karl Fry, Du Page County ) Honorable
Engineer of Highways, ) Paul Noland,
Defendant). ) Judge, Presiding.
_________________________________________________________________
JUSTICE DOYLE delivered the opinion of the court:
Plaintiff, Jon P. Boub, appeals from an order of the circuit
court of Du Page County which granted summary judgment in favor of
defendants, the Township of Wayne and John Ryvold, Wayne Township
Highway Commissioner. Defendant Karl Fry was voluntarily dismissed
by plaintiff and is not a party to the appeal. Plaintiff contends
that the trial court erred when it ruled that, under the Local
Governmental and Governmental Employees Tort Immunity Act (Tort
Immunity Act or Act) (745 ILCS 10/1--101 et seq. (West 1996)),
defendants owed no duty to plaintiff and/or were immunized from any
liability which might arise from their alleged conduct.
Plaintiff's third amended complaint alleged that on September
8, 1992, plaintiff rode a bicycle onto a one-lane bridge on St.
Charles Road in Wayne Township; defendants knew that bicyclists
used the bridge; the bridge surface previously consisted of wooden
planks with asphalt between the planks; because vandals often
removed the planks, defendants had begun a construction project to
install steel plates on the bridge on top of the planks; as part of
the project, defendants removed the asphalt from between the planks
and left the bridge in that condition until the project was
completed several days later; the wheel of the bicycle plaintiff
was riding caught in a groove between the planks created by the
removal of the asphalt; and, as a result, plaintiff lost control of
the bicycle and was thrown over the handlebars onto the railing and
support structure of the bridge suffering severe injuries.
Counts I and IV of the plaintiff's third amended complaint
sounded in negligence and wilful and wanton misconduct respectively
and alleged that defendants violated a duty imposed on them by
section 3--102(a) of the Act (745 ILCS 10/3--102(a) (West 1996)) to
maintain the bridge in a reasonably safe condition for plaintiff's
use. Counts II and V of plaintiff's third amended complaint
sounded in negligence and wilful and wanton misconduct respectively
and alleged that section 3--103 of the Act (745 ILCS 10/3--103
(West 1996)) did not immunize defendants' conduct regarding the
bridge project. Counts III and VI of plaintiff's third amended
complaint sounded in negligence and wilful and wanton misconduct
respectively and alleged that defendants violated a duty which
arose under certain provisions of the Illinois Vehicle Code
(Vehicle Code) (625 ILCS 5/1--100 et seq. (West 1996)) when they
failed to provide signs warning of the bridge condition or warning
that the road was closed.
The trial court entered an order granting defendants' motion
for summary judgment as to all six counts of plaintiff's third
amended complaint. In its order, the trial court stated that
defendants were entitled to summary judgment on the following
grounds:
"(a) The plaintiff, a bicyclist on a township road and
bridge, was not an intended and permitted user of that bridge;
therefore, no duty was owed to plaintiff under Section 3--102
of the Tort Immunity Act;
(b) Section 3--103 of the Tort Immunity Act does not
impose a property-related tort duty and, even if it did,
Section 3--103 can have no application in this case because
the bridge repair project was not completed at the time of the
occurrence; and
(c) Pursuant to Section 3--104 of the Tort Immunity Act,
the defendants are absolutely immune from liability for any
failure to provide traffic control devices, signs, signals,
warnings, barriers or barricades."
Plaintiff's timely appeal followed. Defendants subsequently
filed a cross-appeal from an order which denied their motion to
dismiss plaintiff's first amended complaint.
Summary judgment is appropriate where "the pleadings,
depositions, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of
law." 735 ILCS 5/2--1005(c) (West 1996). In all cases involving
summary judgment, a reviewing court conducts a de novo review of
the evidence in the record. Espinoza v. Elgin, Joliet & Eastern
Ry. Co., 165 Ill. 2d 107, 113 (1995).
On appeal, plaintiff contests only the granting of summary
judgment as to the negligence counts of his third amended
complaint, counts I, II, and III. Plaintiff first contends that
the trial court erred when, in relation to count I, the court
determined that a bicyclist was not an intended and permitted user
of the road and bridge and that defendants therefore did not owe
plaintiff a duty under section 3--102 of the Act.
Section 3--102(a) of the Act provides, in relevant part, as
follows:
"[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 ***." 745 ILCS
10/3--102(a) (West 1996).
The Act does not impose any new duties on local government
entities or their employees; rather, the Act simply restates and
codifies common-law principles. Wagner v. City of Chicago, 166 Ill. 2d 144, 150 (1995). Section 3--102(a) of the Act therefore
codifies a local governmental entity's general duty at common law
to maintain its property in a reasonably safe condition. Wagner,
166 Ill. 2d at 150. However, the duty is not absolute and extends
only to persons whom the entity "intended and permitted to use the
property." (Emphasis added.) 745 ILCS 10/3--102(a) (West 1996);
see Sisk v. Williamson, 167 Ill. 2d 343, 347 (1995).
In this case, defendants do not dispute that plaintiff was a
"permitted" user of the road and bridge. Rather, defendants
contend that plaintiff was not an "intended" user as required by
section 3--102(a). Thus, the first issue before us is whether
plaintiff was an "intended" user of the road and bridge. If
plaintiff was an "intended" user of the road and bridge, then under
section 3--102(a) defendants owed plaintiff a duty to maintain the
bridge in a reasonably safe condition for the use of bicycles.
In plaintiff's view, a bicyclist is an intended user of a
public road or bridge. In support of his position, plaintiff
primarily relies on certain sections of the Vehicle Code and
certain policies of the Illinois Department of Transportation.
Plaintiff also notes that the Illinois Secretary of State publishes
an official pamphlet setting forth rules of the road for bicycles.
More specifically, plaintiff argues that certain sections of
the Vehicle Code show that the legislature explicitly regards
bicyclists as intended users of streets, roads, and highways.
Among the sections of the Vehicle Code plaintiff relies on are
section 11--1502, which provides that "[e]very person riding a
bicycle upon a highway shall be granted all of the rights and shall
be subject to all of the duties applicable to the driver of a
vehicle by this Code" (625 ILCS 5/11--1502 (West 1996)); sections
11--1505, 11--1505.1, and 11--1510, which establish parameters for
persons operating bicycles on public roads such as a requirement
that bicycles traveling on a roadway at less than the normal speed
of traffic must ride as close to the right-hand curb or edge of the
road as possible (625 ILCS 5/11--1505 (West 1996)); and section 11-
-1509, which provides that, under certain circumstances, a
uniformed officer may stop a bicyclist and inspect the bicycle for
safety and other required equipment (625 ILCS 5/11--1509 (West
1996)).
As to the policies of the Illinois Department of
Transportation (Department), plaintiff first posits that the
Department's policy is that all new highways, except those where
bicyclists are legally prohibited, should be designed and
constructed under the assumption that they will be used by
bicyclists. Plaintiff also states that the Department's policies
require that highway projects provide adequate accommodations for
bicycle travel when the route encompasses unique access across a
natural or manmade barrier such as a bridge over a river.
Defendants respond that bicyclists are, at most, permitted
users of the road and bridge, but are not "intended and permitted"
users as required by section 3--102(a) of the Act. Defendants take
the position that the road and bridge were "intended" for use by
motor vehicles only. Although bicyclists are permitted users,
defendants disclaim any burden to design and construct the road and
bridge in such a way as to be reasonably free from defects which
might present a special danger to bicyclists, such as narrow
grooves, ruts, loose gravel, etcetera. Defendants rely on certain
sections of the Vehicle Code and the Illinois Highway Code (Highway
Code) (605 ILCS 5/2--101 et seq. (West 1996)) that distinguish
between bicycles and vehicles.
More specifically, defendants point to the following
definitions found in the Vehicle Code:
"1--106. Bicycle. Every device propelled by human
power upon which any person may ride, having two tandem
wheels except scooters and similar devices." 625 ILCS 5/1--
106 (West 1996).
"1--217. Vehicle. Every device, in, upon or by which
any person or property is or may be transported or drawn
upon a highway, except devices moved by human power, devices
used exclusively upon stationary rails or tracks and
snowmobiles as defined in the Snowmobile Registration and
Safety Act." 625 ILCS 5/1--217 (West 1996).
"1--126. Highway. The entire width between the
boundary lines of every way publicly maintained when any
part thereof is open to the use of the public for purposes
of vehicular travel." 625 ILCS 5/1--126 (West 1996).
"1--179. Roadway. That portion of a highway improved,
designed or ordinarily used for vehicular travel, exclusive
of the berm or shoulder." 625 ILCS 5/1--179 (West 1996).
"1--201. Street. The entire width between boundary
lines of every way publicly maintained when any part thereof
is open to the use of the public for purposes of vehicular
travel." 625 ILCS 5/1--201 (West 1996).
Defendants also cite section 2--202 of the Highway Code, which
provides, in relevant part:
"Highway--any public way for vehicular travel ***. The
term 'highway' includes rights of way, bridges, drainage
structures, signs, guard rails, protective structures and all
other structures and appurtenances necessary or convenient for
vehicular traffic." 605 ILCS 5/2--202 (West 1996).
Defendants contend that the cited definitions explicitly
distinguish a "bicycle" from a "vehicle." Defendants further
contend that the cited definitions show that highways, roadways,
and streets, including the subject road and bridge, are "intended"
for use by vehicles but not bicycles. Based on the cited
definitions, defendants argue that bicyclists were not intended
users of the subject road and bridge under section 3--102(a) of the
Act and therefore defendants did not have a duty to maintain the
road and bridge in a reasonably safe condition for plaintiff's
particular use.
Illinois case law has clearly established that, under section
3--102(a) of the Act, vehicles, as defined by the Vehicle Code, are
intended users of public streets, roadways, and highways and that,
with narrow exceptions, pedestrians are generally not intended
users of public streets, roadways, and highways. See, e.g., Sisk,
167 Ill. 2d at 349; Vaughn v. City of West Frankfort, 166 Ill. 2d 155 (1995); Wojdyla v. City of Park Ridge, 148 Ill. 2d 417 (1992)
(and cases cited therein). Recognizing that the legislature has
established a clear public policy to immunize government from the
financial burdens of preventing injuries that occur as a result of
unintended uses of roadways, our supreme court has stated:
"We are mindful that the costs of making all rural
country roadways reasonably safe for pedestrian use may place
an extreme financial burden on small rural municipalities with
limited resources. It is unreasonable to expect government
entities to make all their country roads reasonably safe for
pedestrians ***." Sisk, 167 Ill. 2d at 352.
However, we are not aware of any case that has definitively
determined whether bicyclists are intended users of streets,
roadways, and highways under section 3--102(a). Neither party
cites a case on point. Our research has revealed an Illinois case
which held that, under section 3--102(a), bicyclists were intended
and permitted users of a four-foot strip in a road which was
demarcated by striping on the roadway for use by bicyclists. Cole
v. City of East Peoria, 201 Ill. App. 3d 756, 762 (1990). However,
in the present case there is no such striping or demarcated lane
for bicycle use. Therefore, Cole is not controlling here.
In the absence of a case on point, our supreme court's
analysis in Wojdyla, Vaughn, and Sisk guides us in resolving this
issue. We realize that those cases involved pedestrians and not
bicyclists. We also realize that bicyclists are not the same as
pedestrians. See Bekele v. Ngo, 236 Ill. App. 3d 330, 332 (1992).
Nonetheless, we conclude that the principles established in those
cases are applicable here.
In Wojdyla, plaintiff's decedent, a pedestrian, was struck and
killed by a car when he attempted to cross a highway in a city
between two intersections at a point about one-half mile from the
nearest painted crosswalk. Wojdyla, 148 Ill. 2d at 420. In
Vaughn, the plaintiff, a pedestrian, was injured when she fell
after stepping in a hole in a city street while crossing the street
mid-block, outside of the crosswalks. Vaughn, 166 Ill. 2d at 157.
In Sisk, the plaintiff alleged that he was injured when his car
struck a concrete bridge, which crossed a creek on a rural road; he
stepped out of the car to examine it for damage; and, because of
weeds that obscured the edge of the roadway, he fell from the
bridge to the creek below and was injured. Sisk, 167 Ill. 2d at
346. In each of these cases, the court addressed the question of
whether, under section 3--102(a) of the Act, the plaintiff was an
intended and permitted user of the road in question.
In Wojdyla, the plaintiff argued that his decedent was an
intended user of the highway because he was crossing the highway to
get to his car which was parked on the other side. Wojdyla, 148 Ill. 2d at 425. The court rejected the plaintiff's argument on the
ground that the intent of the user was not the proper determinant
of whether he was an intended user under section 3--102(a). The
court then stated:
"To determine the intended use of the property involved
here, we need look no further than the property itself. The
roads are paved, marked and regulated by traffic signs and
signals for the benefit of automobiles. Parking lanes are set
out according to painted blocks on the pavement, signs or
meters on the sidewalk or parkway, or painted markings on the
curb. Pedestrian walkways are designated by painted
crosswalks by design, and by intersections by custom. These
are the indications of intended use. That pedestrians may be
permitted to cross the street mid-block does not mean they
should have unfettered access to cross the street at whatever
time and under whatever circumstances they should so choose.
Marked or unmarked crosswalks are intended for the protection
of pedestrians crossing streets, and municipalities are
charged with liability for those areas. Those areas do not,
however, include a highway in mid-block." Wojdyla, 148 Ill. 2d at 426.
In both Vaughn and Sisk, the court cited and followed the rule
stated in Wojdyla that a court should look to the property itself
to determine its intended use. Vaughn, 166 Ill. 2d at 160; Sisk,
167 Ill. 2d at 351. In Sisk, the court also noted that there were
no manifestations such as crosswalks or walkways to indicate that
the defendant, a rural county, intended pedestrians to walk on its
country roads. Sisk, 167 Ill. 2d at 351. The court then stated:
"We believe that the inference to be drawn from these facts,
if any, is that municipalities do not intend that pedestrians
walk on rural country roads. Although it may become necessary
at times for pedestrians to walk on country roads, such use is
not a manifestation of the local municipality's intent that
pedestrians walk on its country roads or an undertaking by the
municipality to make country roads free from defects that
might injure pedestrians." Sisk, 167 Ill. 2d at 352.
We further note that in both Sisk, 167 Ill. 2d at 350-51, and
Wojdyla, 148 Ill. 2d at 423, the supreme court discarded as
outmoded its earlier position in Molway v. City of Chicago, 239 Ill. 486 (1909), that a city would owe a duty of reasonable care to
persons riding bicycles on city streets, explaining that Molway was
decided before the advent of modern highways which carry high-speed
vehicular traffic. While we recognize that Sisk and Wojdyla were
concerned with pedestrian use, we nonetheless find instructive the
court's comments concerning Molway's treatment of bicyclists.
Following Wojdyla, Vaughn, and Sisk, we look to the property
itself to determine its intended use. We look for manifestations
in or on the subject property signifying that defendants intended
that the road and bridge be used by bicyclists.
In his third amended complaint, plaintiff alleged that as a
bicyclist he was an intended and permitted user of defendants'
streets and bridges. In support of this allegation, plaintiff
further alleged that prior to the date of his accident defendants
had erected a "slippery when wet" sign and a "bike symbol for
bicyclists" in front of the bridge. In addition, plaintiff's third
amended complaint alleged that Ryvold, the township highway
commissioner, had admitted that "bicyclists have been foreseeable,
intended, and permitted users of the bridge."
On appeal, however, plaintiff does not contend that there was
a symbol for bicyclists in front of the bridge on and before the
date of his accident. Nor does he contend that Ryvold admitted
that bicyclists were intended users of the road and bridge. This
may be because Ryvold made it clear in his deposition that
defendants did not put up any signs at the bridge relating to
bicyclists until after the installation of the steel plates.
Moreover, in his deposition, Ryvold did not admit that bicyclists
were intended users of the road and bridge.
With these clarifications of plaintiff's third amended
complaint in mind, our review of the record did not reveal
anything, based on the property itself, that manifested an intent
by defendants that bicyclists use the subject road and bridge on
and before the day of plaintiff's accident. Ryvold's deposition
testimony established that any sign related to bicyclists that
defendants put up near the bridge was put up only after plaintiff's
accident, not before the accident.
Defendants had the power and authority to put up signs and
establish other manifestations of an intent that bicyclists use
their roads and bridges. For example, section 6--701.7 of the
Highway Code provides that township authorities may use motor fuel
tax funds to place, erect, and maintain "signs or surface markings
or both to indicate officially designated bicycle routes along
township or district roads." 605 ILCS 5/6--701.7 (West 1996). If
defendants had put such signs or markings on or near the road and
bridge, then these could have manifested an intent that bicyclists
use the road and bridge. See Cole, 201 Ill. App. 3d at 762.
However, no such signs or markings appear in the record.
In the absence of any manifestation in the property itself
that defendants intended bicyclists to be users of the road and
bridge, we conclude that they were not intended users. Because
bicyclists were not intended users, defendants did not owe
plaintiff, as a bicyclist, a duty under section 3--102(a) of the
Act to maintain the road and bridge in a reasonably safe condition.
Plaintiff's arguments, which rely on the Vehicle Code,
Department of Transportation policies, and the Secretary of State's
pamphlet setting out rules of the road for bicyclists, do not
change our conclusion. We agree with defendants that these sources
provide support for no more than a conclusion that bicyclists are
permitted users of highways, streets, and roadways. Because we
must assume that many of the safety-related reasons for regulating
the activities of intended users apply equally to permitted users,
the fact that such rules have been established sheds no light on
the issue before us.
If a plaintiff fails to establish an element of his cause of
action, such as the duty element in a negligence action, summary
judgment for the defendant is proper. Espinoza, 165 Ill. 2d at
114. Here, plaintiff has failed to establish a duty owed to him by
defendants under section 3--102(a) of the Act. Accordingly, the
trial court did not err when it entered summary judgment in favor
of defendants as to count I of plaintiff's third amended complaint.
Plaintiff next contends that count II of his third amended
complaint stated a valid cause of action because a local
governmental entity may not claim immunity from liability under
section 3--103(a) of the Act if the entity did not obtain proper
approval for a road improvement project and, if when implementing
the project, the entity created an unreasonably dangerous
condition. Section 3--103(a) of the Act provides:
"(a) A local public entity is not liable under this
Article for an injury caused by the adoption of a plan or
design of a construction of, or an improvement to public
property where the plan or design has been approved in advance
of the construction or improvement by the legislative body of
such entity or by some other body or employee exercising
discretionary authority to give such approval or where such
plan or design is prepared in conformity with standards
previously so approved. The local public entity is liable,
however, if after the execution of such plan or design it
appears from its use that it has created a condition that it
is not reasonably safe." 745 ILCS 10/3--103(a) (West 1996).
Defendants respond that count II of plaintiff's third amended
complaint attempts to impose a duty of care on defendants when
section 3--103(a) imposes no such duty. As they did in their
motion for summary judgment, defendants contend that any duty under
section 3--103(a) is necessarily derived from a duty which arose
under section 3--102. Defendants argue that if, as here, no duty
arose under section 3--102(a) there could not be a duty under
section 3--103(a) and therefore count II of plaintiff's third
amended complaint could not have stated a cause of action.
We agree with defendants. Referring to the Act, our supreme
court has stated that "the duty of care described in section 3--103
derives from the more basic delineation of governmental duty found
in section 3--102." Curtis v. County of Cook, 98 Ill. 2d 158, 165
(1983). In Curtis, the court concluded that, if a defendant owed
no duty to a plaintiff under section 3--102, then no duty existed
under section 3--103. Curtis, 98 Ill. 2d at 165.
In this case, we have previously established that defendants
did not owe plaintiff a duty of care under section 3--102.
Following the rule enunciated in Curtis, because no duty arose
under section 3--102, no duty existed under section 3--103. In the
absence of a duty owed to plaintiff under section 3--103(a), we
need not further address count II of plaintiff's third amended
complaint. Accordingly, we conclude that the trial court did not
err when it granted summary judgment in favor of defendants with
respect to count II of plaintiff's third amended complaint.
Plaintiff next contends that count III of his third amended
complaint stated a valid cause of action in that defendants
breached a duty to place various warning signs at the bridge.
Plaintiff further contends that defendants are not immune from
liability for their failure to place warning signs under section 3-
-104 of the Act (745 ILCS 10/3--104 (West 1996)) because the duty
defendants breached was a ministerial duty and section 3--104
provides immunity only for discretionary acts.
In plaintiff's view, defendant's duty to put up warning signs
arose under section 11--304 of the Vehicle Code (625 ILCS 5/11--304
(West 1996)). Section 11--304 of the Vehicle Code requires a local
governmental entity to, inter alia, "place and maintain" traffic
control devices, including those necessary to "regulate, warn, or
guide traffic." 625 ILCS 5/11--304 (West 1996). Section 11--304
also requires that such traffic control devices "shall conform to
the State Manual." 625 ILCS 5/11--304 (West 1996).
Count III of plaintiff's third amended complaint cited certain
sections said to be in the appropriate state manual and alleged
that these sections required defendants to implement warnings signs
at the bridge. Plaintiff maintains that section 11--304 of the
Vehicle Code, together with the cited manual sections, constituted
a statutorily imposed ministerial duty to post signs to regulate,
warn, or guide traffic. Plaintiff argues that section 3--104 of
the Act immunizes local governmental entities only from
discretionary acts and, because this alleged duty was ministerial,
section 3--104 of the Act did not immunize defendants from their
failure to post the requisite signs.
Defendants respond that section 3--104 of the Act absolutely
immunizes them from liability for any failure to provide warning
signs as alleged by plaintiff. Section 3--104 provides:
"Neither a local public entity nor a public employee is
liable under this Act for an injury caused by the failure
initially to provide regulatory traffic control devices, stop
signs, yield right-of-way signs, speed restriction signs,
distinctive roadway markings or any other traffic regulating
or warning sign, device or marking, signs, overhead lights,
traffic separating or restraining devices or barriers." 745
ILCS 10/3--104 (West 1996).
In support of his position, plaintiff relies primarily on
Snyder v. Curran Township, 167 Ill. 2d 466 (1995). In Snyder, the
plaintiff was injured in an automobile accident when she failed
successfully to negotiate a sharp curve while driving on a narrow
township road. The township had placed a sign warning of the sharp
curve near the curve. The plaintiff alleged that the township's
negligence in failing to place the sign in conformity with a state
manual was the proximate cause of her accident and injuries.
Snyder, 167 Ill. 2d at 467. The court rejected the township's
contention that it was immune from liability under section 2--201
of the Act (745 ILCS 10/2--201 (West 1992)), which grants immunity
to public entities for the performance of discretionary functions.
The court determined that, once it decided to put up a warning
sign, the township had a ministerial duty to erect the sign in
conformity with the manual. Snyder, 167 Ill. 2d at 474-75.
Plaintiff asserts that Snyder stands for the proposition that
the immunity of section 3--104 does not apply if the relevant state
manual is violated. However, plaintiff's reliance on Snyder for
this proposition is misplaced. In fact, citing West v. Kirkham,
147 Ill. 2d 1 (1992), with approval, the Snyder court noted that a
local governmental entity has absolute immunity under section 3--
104 for an "initial failure to erect a traffic warning device."
Snyder, 167 Ill. 2d at 477.
In this case, count III of plaintiff's third amended complaint
alleges that defendants initially failed to place signs warning of
the unpaved condition of the bridge and that the road was closed to
vehicular traffic. Count III does not allege that defendants had
placed warning signs and that, as in Snyder, their placement was
not in conformity with a manual. Thus, the question presented by
count III of plaintiff's third amended complaint was whether
defendants were immune from liability for a failure to initially
erect warning signs. Section 3--104 therefore applies to the
allegations of count III of plaintiff's third amended complaint and
provides absolute immunity to defendants for any failure initially
to place warning signs at the bridge as alleged in count III. See
West, 147 Ill. 2d at 6-7.
Finally, plaintiff contends that defendants lost any immunity
otherwise available to them under section 3--104 because they
initially provided some warnings regarding the dangerous condition
of the bridge. As plaintiff notes, Ryvold testified in his
deposition that defendants placed trucks in front of the bridge
entrances while work on the project was actually being performed.
Ryvold further testified that the trucks were removed when the work
stopped each day. Plaintiff asserts that this testimony shows that
defendants initially provided barricades, in the form of the
trucks, as a warning to motorists and then removed them leaving an
unsafe condition without warnings. Plaintiff argues that section
3--104 does not apply to immunize defendants because defendants
initially provided these warnings.
We note that plaintiff raises this issue on appeal for the
first time in his reply brief. In addition, plaintiff did not
allege in his third amended complaint that defendants had provided
any barricades or other traffic control devices at the project.
Arguments not raised in an initial brief are deemed waived for
purposes of review. AXIA, Inc. v. I.C. Harbour Construction Co.,
150 Ill. App. 3d 645, 650 (1986). Because plaintiff did not raise
this issue in his initial brief, it is deemed waived for purposes
of appeal.
Moreover, defects in a party's pleadings cannot be cured by
argument. West, 147 Ill. 2d at 13. Plaintiff did not plead this
issue in his third amended complaint, and he cannot cure this
defect by arguing it on appeal.
For these reasons, we will not further consider this issue.
Accordingly, the trial court did not err when it granted summary
judgment in favor of defendants as to count III of plaintiff's
third amended complaint.
Based on the foregoing, we have concluded that the trial court
did not err when it granted summary judgment in favor of
defendants. Consequently, we need not consider defendants' cross-
appeal.
The judgment of the circuit court of Du Page County is
affirmed.
Affirmed.
BOWMAN and HUTCHINSON, JJ., concur.
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
JON P. BOUB, ) Appeal from the Circuit Court
) of Du Page County.
Plaintiff-Appellant and )
Cross-Appellee, ) No. 93--L--1912
)
v. )
)
THE TOWNSHIP OF WAYNE, and JOHN )
RYVOLD, Wayne Township Highway )
Commissioner, )
)
Defendants-Appellees and )
Cross-Appellants )
)
(Karl Fry, Du Page County ) Honorable
Engineer of Highways, ) Paul Noland,
Defendant). ) Judge, Presiding.
_________________________________________________________________
JUSTICE DOYLE delivered the opinion of the court:
Plaintiff, Jon P. Boub, appeals from an order of the circuit
court of Du Page County which granted summary judgment in favor of
defendants, the Township of Wayne and John Ryvold, Wayne Township
Highway Commissioner. Defendant Karl Fry was voluntarily dismissed
by plaintiff and is not a party to the appeal. Plaintiff contends
that the trial court erred when it ruled that, under the Local
Governmental and Governmental Employees Tort Immunity Act (Tort
Immunity Act or Act) (745 ILCS 10/1--101 et seq. (West 1996)),
defendants owed no duty to plaintiff and/or were immunized from any
liability which might arise from their alleged conduct.
Plaintiff's third amended complaint alleged that on September
8, 1992, plaintiff rode a bicycle onto a one-lane bridge on St.
Charles Road in Wayne Township; defendants knew that bicyclists
used the bridge; the bridge surface previously consisted of wooden
planks with asphalt between the planks; because vandals often
removed the planks, defendants had begun a construction project to
install steel plates on the bridge on top of the planks; as part of
the project, defendants removed the asphalt from between the planks
and left the bridge in that condition until the project was
completed several days later; the wheel of the bicycle plaintiff
was riding caught in a groove between the planks created by the
removal of the asphalt; and, as a result, plaintiff lost control of
the bicycle and was thrown over the handlebars onto the railing and
support structure of the bridge suffering severe injuries.
Counts I and IV of the plaintiff's third amended complaint
sounded in negligence and wilful and wanton misconduct respectively
and alleged that defendants violated a duty imposed on them by
section 3--102(a) of the Act (745 ILCS 10/3--102(a) (West 1996)) to
maintain the bridge in a reasonably safe condition for plaintiff's
use. Counts II and V of plaintiff's third amended complaint
sounded in negligence and wilful and wanton misconduct respectively
and alleged that section 3--103 of the Act (745 ILCS 10/3--103
(West 1996)) did not immunize defendants' conduct regarding the
bridge project. Counts III and VI of plaintiff's third amended
complaint sounded in negligence and wilful and wanton misconduct
respectively and alleged that defendants violated a duty which
arose under certain provisions of the Illinois Vehicle Code
(Vehicle Code) (625 ILCS 5/1--100 et seq. (West 1996)) when they
failed to provide signs warning of the bridge condition or warning
that the road was closed.
The trial court entered an order granting defendants' motion
for summary judgment as to all six counts of plaintiff's third
amended complaint. In its order, the trial court stated that
defendants were entitled to summary judgment on the following
grounds:
"(a) The plaintiff, a bicyclist on a township road and
bridge, was not an intended and permitted user of that bridge;
therefore, no duty was owed to plaintiff under Section 3--102
of the Tort Immunity Act;
(b) Section 3--103 of the Tort Immunity Act does not
impose a property-related tort duty and, even if it did,
Section 3--103 can have no application in this case because
the bridge repair project was not completed at the time of the
occurrence; and
(c) Pursuant to Section 3--104 of the Tort Immunity Act,
the defendants are absolutely immune from liability for any
failure to provide traffic control devices, signs, signals,
warnings, barriers or barricades."
Plaintiff's timely appeal followed. Defendants subsequently
filed a cross-appeal from an order which denied their motion to
dismiss plaintiff's first amended complaint.
Summary judgment is appropriate where "the pleadings,
depositions, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of
law." 735 ILCS 5/2--1005(c) (West 1996). In all cases involving
summary judgment, a reviewing court conducts a de novo review of
the evidence in the record. Espinoza v. Elgin, Joliet & Eastern
Ry. Co., 165 Ill. 2d 107, 113 (1995).
On appeal, plaintiff contests only the granting of summary
judgment as to the negligence counts of his third amended
complaint, counts I, II, and III. Plaintiff first contends that
the trial court erred when, in relation to count I, the court
determined that a bicyclist was not an intended and permitted user
of the road and bridge and that defendants therefore did not owe
plaintiff a duty under section 3--102 of the Act.
Section 3--102(a) of the Act provides, in relevant part, as
follows:
"[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 ***." 745 ILCS
10/3--102(a) (West 1996).
The Act does not impose any new duties on local government
entities or their employees; rather, the Act simply restates and
codifies common-law principles. Wagner v. City of Chicago, 166 Ill. 2d 144, 150 (1995). Section 3--102(a) of the Act therefore
codifies a local governmental entity's general duty at common law
to maintain its property in a reasonably safe condition. Wagner,
166 Ill. 2d at 150. However, the duty is not absolute and extends
only to persons whom the entity "intended and permitted to use the
property." (Emphasis added.) 745 ILCS 10/3--102(a) (West 1996);
see Sisk v. Williamson, 167 Ill. 2d 343, 347 (1995).
In this case, defendants do not dispute that plaintiff was a
"permitted" user of the road and bridge. Rather, defendants
contend that plaintiff was not an "intended" user as required by
section 3--102(a). Thus, the first issue before us is whether
plaintiff was an "intended" user of the road and bridge. If
plaintiff was an "intended" user of the road and bridge, then under
section 3--102(a) defendants owed plaintiff a duty to maintain the
bridge in a reasonably safe condition for the use of bicycles.
In plaintiff's view, a bicyclist is an intended user of a
public road or bridge. In support of his position, plaintiff
primarily relies on certain sections of the Vehicle Code and
certain policies of the Illinois Department of Transportation.
Plaintiff also notes that the Illinois Secretary of State publishes
an official pamphlet setting forth rules of the road for bicycles.
More specifically, plaintiff argues that certain sections of
the Vehicle Code show that the legislature explicitly regards
bicyclists as intended users of streets, roads, and highways.
Among the sections of the Vehicle Code plaintiff relies on are
section 11--1502, which provides that "[e]very person riding a
bicycle upon a highway shall be granted all of the rights and shall
be subject to all of the duties applicable to the driver of a
vehicle by this Code" (625 ILCS 5/11--1502 (West 1996)); sections
11--1505, 11--1505.1, and 11--1510, which establish parameters for
persons operating bicycles on public roads such as a requirement
that bicycles traveling on a roadway at less than the normal speed
of traffic must ride as close to the right-hand curb or edge of the
road as possible (625 ILCS 5/11--1505 (West 1996)); and section 11-
-1509, which provides that, under certain circumstances, a
uniformed officer may stop a bicyclist and inspect the bicycle for
safety and other required equipment (625 ILCS 5/11--1509 (West
1996)).
As to the policies of the Illinois Department of
Transportation (Department), plaintiff first posits that the
Department's policy is that all new highways, except those where
bicyclists are legally prohibited, should be designed and
constructed under the assumption that they will be used by
bicyclists. Plaintiff also states that the Department's policies
require that highway projects provide adequate accommodations for
bicycle travel when the route encompasses unique access across a
natural or manmade barrier such as a bridge over a river.
Defendants respond that bicyclists are, at most, permitted
users of the road and bridge, but are not "intended and permitted"
users as required by section 3--102(a) of the Act. Defendants take
the position that the road and bridge were "intended" for use by
motor vehicles only. Although bicyclists are permitted users,
defendants disclaim any burden to design and construct the road and
bridge in such a way as to be reasonably free from defects which
might present a special danger to bicyclists, such as narrow
grooves, ruts, loose gravel, etcetera. Defendants rely on certain
sections of the Vehicle Code and the Illinois Highway Code (Highway
Code) (605 ILCS 5/2--101 et seq. (West 1996)) that distinguish
between bicycles and vehicles.
More specifically, defendants point to the following
definitions found in the Vehicle Code:
"1--106. Bicycle. Every device propelled by human
power upon which any person may ride, having two tandem
wheels except scooters and similar devices." 625 ILCS 5/1--
106 (West 1996).
"1--217. Vehicle. Every device, in, upon or by which
any person or property is or may be transported or drawn
upon a highway, except devices moved by human power, devices
used exclusively upon stationary rails or tracks and
snowmobiles as defined in the Snowmobile Registration and
Safety Act." 625 ILCS 5/1--217 (West 1996).
"1--126. Highway. The entire width between the
boundary lines of every way publicly maintained when any
part thereof is open to the use of the public for purposes
of vehicular travel." 625 ILCS 5/1--126 (West 1996).
"1--179. Roadway. That portion of a highway improved,
designed or ordinarily used for vehicular travel, exclusive
of the berm or shoulder." 625 ILCS 5/1--179 (West 1996).
"1--201. Street. The entire width between boundary
lines of every way publicly maintained when any part thereof
is open to the use of the public for purposes of vehicular
travel." 625 ILCS 5/1--201 (West 1996).
Defendants also cite section 2--202 of the Highway Code, which
provides, in relevant part:
"Highway--any public way for vehicular travel ***. The
term 'highway' includes rights of way, bridges, drainage
structures, signs, guard rails, protective structures and all
other structures and appurtenances necessary or convenient for
vehicular traffic." 605 ILCS 5/2--202 (West 1996).
Defendants contend that the cited definitions explicitly
distinguish a "bicycle" from a "vehicle." Defendants further
contend that the cited definitions show that highways, roadways,
and streets, including the subject road and bridge, are "intended"
for use by vehicles but not bicycles. Based on the cited
definitions, defendants argue that bicyclists were not intended
users of the subject road and bridge under section 3--102(a) of the
Act and therefore defendants did not have a duty to maintain the
road and bridge in a reasonably safe condition for plaintiff's
particular use.
Illinois case law has clearly established that, under section
3--102(a) of the Act, vehicles, as defined by the Vehicle Code, are
intended users of public streets, roadways, and highways and that,
with narrow exceptions, pedestrians are generally not intended
users of public streets, roadways, and highways. See, e.g., Sisk,
167 Ill. 2d at 349; Vaughn v. City of West Frankfort, 166 Ill. 2d 155 (1995); Wojdyla v. City of Park Ridge, 148 Ill. 2d 417 (1992)
(and cases cited therein). Recognizing that the legislature has
established a clear public policy to immunize government from the
financial burdens of preventing injuries that occur as a result of
unintended uses of roadways, our supreme court has stated:
"We are mindful that the costs of making all rural
country roadways reasonably safe for pedestrian use may place
an extreme financial burden on small rural municipalities with
limited resources. It is unreasonable to expect government
entities to make all their country roads reasonably safe for
pedestrians ***." Sisk, 167 Ill. 2d at 352.
However, we are not aware of any case that has definitively
determined whether bicyclists are intended users of streets,
roadways, and highways under section 3--102(a). Neither party
cites a case on point. Our research has revealed an Illinois case
which held that, under section 3--102(a), bicyclists were intended
and permitted users of a four-foot strip in a road which was
demarcated by striping on the roadway for use by bicyclists. Cole
v. City of East Peoria, 201 Ill. App. 3d 756, 762 (1990). However,
in the present case there is no such striping or demarcated lane
for bicycle use. Therefore, Cole is not controlling here.
In the absence of a case on point, our supreme court's
analysis in Wojdyla, Vaughn, and Sisk guides us in resolving this
issue. We realize that those cases involved pedestrians and not
bicyclists. We also realize that bicyclists are not the same as
pedestrians. See Bekele v. Ngo, 236 Ill. App. 3d 330, 332 (1992).
Nonetheless, we conclude that the principles established in those
cases are applicable here.
In Wojdyla, plaintiff's decedent, a pedestrian, was struck and
killed by a car when he attempted to cross a highway in a city
between two intersections at a point about one-half mile from the
nearest painted crosswalk. Wojdyla, 148 Ill. 2d at 420. In
Vaughn, the plaintiff, a pedestrian, was injured when she fell
after stepping in a hole in a city street while crossing the street
mid-block, outside of the crosswalks. Vaughn, 166 Ill. 2d at 157.
In Sisk, the plaintiff alleged that he was injured when his car
struck a concrete bridge, which crossed a creek on a rural road; he
stepped out of the car to examine it for damage; and, because of
weeds that obscured the edge of the roadway, he fell from the
bridge to the creek below and was injured. Sisk, 167 Ill. 2d at
346. In each of these cases, the court addressed the question of
whether, under section 3--102(a) of the Act, the plaintiff was an
intended and permitted user of the road in question.
In Wojdyla, the plaintiff argued that his decedent was an
intended user of the highway because he was crossing the highway to
get to his car which was parked on the other side. Wojdyla, 148 Ill. 2d at 425. The court rejected the plaintiff's argument on the
ground that the intent of the user was not the proper determinant
of whether he was an intended user under section 3--102(a). The
court then stated:
"To determine the intended use of the property involved
here, we need look no further than the property itself. The
roads are paved, marked and regulated by traffic signs and
signals for the benefit of automobiles. Parking lanes are set
out according to painted blocks on the pavement, signs or
meters on the sidewalk or parkway, or painted markings on the
curb. Pedestrian walkways are designated by painted
crosswalks by design, and by intersections by custom. These
are the indications of intended use. That pedestrians may be
permitted to cross the street mid-block does not mean they
should have unfettered access to cross the street at whatever
time and under whatever circumstances they should so choose.
Marked or unmarked crosswalks are intended for the protection
of pedestrians crossing streets, and municipalities are
charged with liability for those areas. Those areas do not,
however, include a highway in mid-block." Wojdyla, 148 Ill. 2d at 426.
In both Vaughn and Sisk, the court cited and followed the rule
stated in Wojdyla that a court should look to the property itself
to determine its intended use. Vaughn, 166 Ill. 2d at 160; Sisk,
167 Ill. 2d at 351. In Sisk, the court also noted that there were
no manifestations such as crosswalks or walkways to indicate that
the defendant, a rural county, intended pedestrians to walk on its
country roads. Sisk, 167 Ill. 2d at 351. The court then stated:
"We believe that the inference to be drawn from these facts,
if any, is that municipalities do not intend that pedestrians
walk on rural country roads. Although it may become necessary
at times for pedestrians to walk on country roads, such use is
not a manifestation of the local municipality's intent that
pedestrians walk on its country roads or an undertaking by the
municipality to make country roads free from defects that
might injure pedestrians." Sisk, 167 Ill. 2d at 352.
We further note that in both Sisk, 167 Ill. 2d at 350-51, and
Wojdyla, 148 Ill. 2d at 423, the supreme court discarded as
outmoded its earlier position in Molway v. City of Chicago, 239 Ill. 486 (1909), that a city would owe a duty of reasonable care to
persons riding bicycles on city streets, explaining that Molway was
decided before the advent of modern highways which carry high-speed
vehicular traffic. While we recognize that Sisk and Wojdyla were
concerned with pedestrian use, we nonetheless find instructive the
court's comments concerning Molway's treatment of bicyclists.
Following Wojdyla, Vaughn, and Sisk, we look to the property
itself to determine its intended use. We look for manifestations
in or on the subject property signifying that defendants intended
that the road and bridge be used by bicyclists.
In his third amended complaint, plaintiff alleged that as a
bicyclist he was an intended and permitted user of defendants'
streets and bridges. In support of this allegation, plaintiff
further alleged that prior to the date of his accident defendants
had erected a "slippery when wet" sign and a "bike symbol for
bicyclists" in front of the bridge. In addition, plaintiff's third
amended complaint alleged that Ryvold, the township highway
commissioner, had admitted that "bicyclists have been foreseeable,
intended, and permitted users of the bridge."
On appeal, however, plaintiff does not contend that there was
a symbol for bicyclists in front of the bridge on and before the
date of his accident. Nor does he contend that Ryvold admitted
that bicyclists were intended users of the road and bridge. This
may be because Ryvold made it clear in his deposition that
defendants did not put up any signs at the bridge relating to
bicyclists until after the installation of the steel plates.
Moreover, in his deposition, Ryvold did not admit that bicyclists
were intended users of the road and bridge.
With these clarifications of plaintiff's third amended
complaint in mind, our review of the record did not reveal
anything, based on the property itself, that manifested an intent
by defendants that bicyclists use the subject road and bridge on
and before the day of plaintiff's accident. Ryvold's deposition
testimony established that any sign related to bicyclists that
defendants put up near the bridge was put up only after plaintiff's
accident, not before the accident.
Defendants had the power and authority to put up signs and
establish other manifestations of an intent that bicyclists use
their roads and bridges. For example, section 6--701.7 of the
Highway Code provides that township authorities may use motor fuel
tax funds to place, erect, and maintain "signs or surface markings
or both to indicate officially designated bicycle routes along
township or district roads." 605 ILCS 5/6--701.7 (West 1996). If
defendants had put such signs or markings on or near the road and
bridge, then these could have manifested an intent that bicyclists
use the road and bridge. See Cole, 201 Ill. App. 3d at 762.
However, no such signs or markings appear in the record.
In the absence of any manifestation in the property itself
that defendants intended bicyclists to be users of the road and
bridge, we conclude that they were not intended users. Because
bicyclists were not intended users, defendants did not owe
plaintiff, as a bicyclist, a duty under section 3--102(a) of the
Act to maintain the road and bridge in a reasonably safe condition.
Plaintiff's arguments, which rely on the Vehicle Code,
Department of Transportation policies, and the Secretary of State's
pamphlet setting out rules of the road for bicyclists, do not
change our conclusion. We agree with defendants that these sources
provide support for no more than a conclusion that bicyclists are
permitted users of highways, streets, and roadways. Because we
must assume that many of the safety-related reasons for regulating
the activities of intended users apply equally to permitted users,
the fact that such rules have been established sheds no light on
the issue before us.
If a plaintiff fails to establish an element of his cause of
action, such as the duty element in a negligence action, summary
judgment for the defendant is proper. Espinoza, 165 Ill. 2d at
114. Here, plaintiff has failed to establish a duty owed to him by
defendants under section 3--102(a) of the Act. Accordingly, the
trial court did not err when it entered summary judgment in favor
of defendants as to count I of plaintiff's third amended complaint.
Plaintiff next contends that count II of his third amended
complaint stated a valid cause of action because a local
governmental entity may not claim immunity from liability under
section 3--103(a) of the Act if the entity did not obtain proper
approval for a road improvement project and, if when implementing
the project, the entity created an unreasonably dangerous
condition. Section 3--103(a) of the Act provides:
"(a) A local public entity is not liable under this
Article for an injury caused by the adoption of a plan or
design of a construction of, or an improvement to public
property where the plan or design has been approved in advance
of the construction or improvement by the legislative body of
such entity or by some other body or employee exercising
discretionary authority to give such approval or where such
plan or design is prepared in conformity with standards
previously so approved. The local public entity is liable,
however, if after the execution of such plan or design it
appears from its use that it has created a condition that it
is not reasonably safe." 745 ILCS 10/3--103(a) (West 1996).
Defendants respond that count II of plaintiff's third amended
complaint attempts to impose a duty of care on defendants when
section 3--103(a) imposes no such duty. As they did in their
motion for summary judgment, defendants contend that any duty under
section 3--103(a) is necessarily derived from a duty which arose
under section 3--102. Defendants argue that if, as here, no duty
arose under section 3--102(a) there could not be a duty under
section 3--103(a) and therefore count II of plaintiff's third
amended complaint could not have stated a cause of action.
We agree with defendants. Referring to the Act, our supreme
court has stated that "the duty of care described in section 3--103
derives from the more basic delineation of governmental duty found
in section 3--102." Curtis v. County of Cook, 98 Ill. 2d 158, 165
(1983). In Curtis, the court concluded that, if a defendant owed
no duty to a plaintiff under section 3--102, then no duty existed
under section 3--103. Curtis, 98 Ill. 2d at 165.
In this case, we have previously established that defendants
did not owe plaintiff a duty of care under section 3--102.
Following the rule enunciated in Curtis, because no duty arose
under section 3--102, no duty existed under section 3--103. In the
absence of a duty owed to plaintiff under section 3--103(a), we
need not further address count II of plaintiff's third amended
complaint. Accordingly, we conclude that the trial court did not
err when it granted summary judgment in favor of defendants with
respect to count II of plaintiff's third amended complaint.
Plaintiff next contends that count III of his third amended
complaint stated a valid cause of action in that defendants
breached a duty to place various warning signs at the bridge.
Plaintiff further contends that defendants are not immune from
liability for their failure to place warning signs under section 3-
-104 of the Act (745 ILCS 10/3--104 (West 1996)) because the duty
defendants breached was a ministerial duty and section 3--104
provides immunity only for discretionary acts.
In plaintiff's view, defendant's duty to put up warning signs
arose under section 11--304 of the Vehicle Code (625 ILCS 5/11--304
(West 1996)). Section 11--304 of the Vehicle Code requires a local
governmental entity to, inter alia, "place and maintain" traffic
control devices, including those necessary to "regulate, warn, or
guide traffic." 625 ILCS 5/11--304 (West 1996). Section 11--304
also requires that such traffic control devices "shall conform to
the State Manual." 625 ILCS 5/11--304 (West 1996).
Count III of plaintiff's third amended complaint cited certain
sections said to be in the appropriate state manual and alleged
that these sections required defendants to implement warnings signs
at the bridge. Plaintiff maintains that section 11--304 of the
Vehicle Code, together with the cited manual sections, constituted
a statutorily imposed ministerial duty to post signs to regulate,
warn, or guide traffic. Plaintiff argues that section 3--104 of
the Act immunizes local governmental entities only from
discretionary acts and, because this alleged duty was ministerial,
section 3--104 of the Act did not immunize defendants from their
failure to post the requisite signs.
Defendants respond that section 3--104 of the Act absolutely
immunizes them from liability for any failure to provide warning
signs as alleged by plaintiff. Section 3--104 provides:
"Neither a local public entity nor a public employee is
liable under this Act for an injury caused by the failure
initially to provide regulatory traffic control devices, stop
signs, yield right-of-way signs, speed restriction signs,
distinctive roadway markings or any other traffic regulating
or warning sign, device or marking, signs, overhead lights,
traffic separating or restraining devices or barriers." 745
ILCS 10/3--104 (West 1996).
In support of his position, plaintiff relies primarily on
Snyder v. Curran Township, 167 Ill. 2d 466 (1995). In Snyder, the
plaintiff was injured in an automobile accident when she failed
successfully to negotiate a sharp curve while driving on a narrow
township road. The township had placed a sign warning of the sharp
curve near the curve. The plaintiff alleged that the township's
negligence in failing to place the sign in conformity with a state
manual was the proximate cause of her accident and injuries.
Snyder, 167 Ill. 2d at 467. The court rejected the township's
contention that it was immune from liability under section 2--201
of the Act (745 ILCS 10/2--201 (West 1992)), which grants immunity
to public entities for the performance of discretionary functions.
The court determined that, once it decided to put up a warning
sign, the township had a ministerial duty to erect the sign in
conformity with the manual. Snyder, 167 Ill. 2d at 474-75.
Plaintiff asserts that Snyder stands for the proposition that
the immunity of section 3--104 does not apply if the relevant state
manual is violated. However, plaintiff's reliance on Snyder for
this proposition is misplaced. In fact, citing West v. Kirkham,
147 Ill. 2d 1 (1992), with approval, the Snyder court noted that a
local governmental entity has absolute immunity under section 3--
104 for an "initial failure to erect a traffic warning device."
Snyder, 167 Ill. 2d at 477.
In this case, count III of plaintiff's third amended complaint
alleges that defendants initially failed to place signs warning of
the unpaved condition of the bridge and that the road was closed to
vehicular traffic. Count III does not allege that defendants had
placed warning signs and that, as in Snyder, their placement was
not in conformity with a manual. Thus, the question presented by
count III of plaintiff's third amended complaint was whether
defendants were immune from liability for a failure to initially
erect warning signs. Section 3--104 therefore applies to the
allegations of count III of plaintiff's third amended complaint and
provides absolute immunity to defendants for any failure initially
to place warning signs at the bridge as alleged in count III. See
West, 147 Ill. 2d at 6-7.
Finally, plaintiff contends that defendants lost any immunity
otherwise available to them under section 3--104 because they
initially provided some warnings regarding the dangerous condition
of the bridge. As plaintiff notes, Ryvold testified in his
deposition that defendants placed trucks in front of the bridge
entrances while work on the project was actually being performed.
Ryvold further testified that the trucks were removed when the work
stopped each day. Plaintiff asserts that this testimony shows that
defendants initially provided barricades, in the form of the
trucks, as a warning to motorists and then removed them leaving an
unsafe condition without warnings. Plaintiff argues that section
3--104 does not apply to immunize defendants because defendants
initially provided these warnings.
We note that plaintiff raises this issue on appeal for the
first time in his reply brief. In addition, plaintiff did not
allege in his third amended complaint that defendants had provided
any barricades or other traffic control devices at the project.
Arguments not raised in an initial brief are deemed waived for
purposes of review. AXIA, Inc. v. I.C. Harbour Construction Co.,
150 Ill. App. 3d 645, 650 (1986). Because plaintiff did not raise
this issue in his initial brief, it is deemed waived for purposes
of appeal.
Moreover, defects in a party's pleadings cannot be cured by
argument. West, 147 Ill. 2d at 13. Plaintiff did not plead this
issue in his third amended complaint, and he cannot cure this
defect by arguing it on appeal.
For these reasons, we will not further consider this issue.
Accordingly, the trial court did not err when it granted summary
judgment in favor of defendants as to count III of plaintiff's
third amended complaint.
Based on the foregoing, we have concluded that the trial court
did not err when it granted summary judgment in favor of
defendants. Consequently, we need not consider defendants' cross-
appeal.
The judgment of the circuit court of Du Page County is
affirmed.
Affirmed.
BOWMAN and HUTCHINSON, JJ., concur.
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