                       ILLINOIS OFFICIAL REPORTS
                                    Appellate Court




        Rommel v. Illinois State Toll Highway Authority, 2013 IL App (2d) 120273




Appellate Court        BARBARA ROMMEL, Individually and as Special Administrator of the
Caption                Estate of Timothy Rommel, Deceased, Plaintiff-Appellant, v. THE
                       ILLINOIS STATE TOLL HIGHWAY AUTHORITY, Defendant-
                       Appellee (Caritina Moncada-Jaime, Defendant).–ANTONIO LEWIS,
                       Individually and as Special Administrator of the Estate of Shayula Lewis,
                       Deceased, and on Behalf of, for the Benefit of, and as Father and Next
                       Friend of Kierra Lewis, a Minor, Plaintiff-Appellant, v. THE ILLINOIS
                       STATE TOLL HIGHWAY AUTHORITY, Defendant-Appellee.–JAMES
                       NEUKIRCH, as Special Administrator of the Estate of Mark E. Neukirch,
                       Deceased, STEPHEN KUGELMAN, as Special Administrator of the
                       Estate of Mathew Kugelman, Deceased, and JEANINE DOMBROW, as
                       Independent Executor of the Estate of Matthew Dombrow, Deceased,
                       Plaintiffs-Appellants, v. THE ILLINOIS STATE TOLL HIGHWAY
                       AUTHORITY, Defendant-Appellee.–RUTH SMITH and DONALD
                       SMITH, Individually and as Parents and Next Friends of Hannah Smith,
                       a Minor, Issac Smith, a Minor, and Zofia Smith, a Minor, Plaintiffs-
                       Appellants, v. THE ILLINOIS STATE TOLL HIGHWAY
                       AUTHORITY, Defendant-Appellee.–MARIA VILLALOBOS, as Special
                       Administrator of the Estate of Leopoldo Villalobos, Jr., Deceased, and
                       MANAR M. DAHLEH, as Special Administrator of the Estate of
                       Mohammed M. Dahleh, Deceased, Plaintiffs-Appellants, v. THE
                       ILLINOIS STATE TOLL HIGHWAY AUTHORITY, Defendant-
                       Appellee.



District & No.         Second District
                       Docket Nos. 2-12-0273, 2-12-0274, 2-12-0275, 2-12-0276, 2-12-0277
                       cons.


Filed                  September 9, 2013
Held                       In five consolidated cases arising from two-car head-on collisions on a
(Note: This syllabus       tollway, the trial court properly dismissed complaints against the tollway
constitutes no part of     authority alleging negligent maintenance and voluntary undertaking in
the opinion of the court   connection with the median separating traffic, since there is no liability
but has been prepared      in Illinois, even when crossover collisions are facilitated by the way a
by the Reporter of         median is maintained, and Rommel I held that no duty was owed by the
Decisions for the          tollway authority with regard to the median.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Du Page County, Nos. 05-L-1301, 10-L-
Review                     51, 06-L-163, 09-L-508, 07-L-527; the Hon. Dorothy French Mallen,
                           Judge, presiding.



Judgment                   Affirmed.


Counsel on                 Robert A. Clifford, Robert P. Walsh, and Craig J. Squillace, all of
Appeal                     Clifford Law Offices, P.C., and J. Timothy Eaton and Patricia S. Spratt,
                           both of Shefsky & Froelich, Ltd., both of Chicago, for appellants.

                           Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
                           Solicitor General, and Christopher M.R. Turner, Assistant Attorney
                           General, of counsel), for appellee.


Panel                      JUSTICE BIRKETT delivered the judgment of the court, with opinion.
                           Justices Hutchinson and Spence concurred in the judgment and opinion.




                                             OPINION

¶1         Five separate cases were consolidated due to the similarity of the issues. In each case, a
        two-car head-on collision leading to injury or death provided the factual backdrop of the
        complaint. Defendant, the Illinois State Toll Highway Authority (Authority), moved to
        dismiss each complaint on the basis that defendant owed no duty regarding the median
        separating traffic. The trial court certified two questions for permissive interlocutory appeal
        pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010). This court answered the

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     questions and held that defendant owed no duty regarding the median. Rommel v. Illinois
     State Toll Highway Authority, 405 Ill. App. 3d 1124 (2010) (Rommel I). We remanded the
     cause to the trial court for further proceedings. Upon remand, the trial court dismissed each
     action, holding that Rommel I compelled the dismissals. Plaintiffs appealed, arguing,
     effectively, that we should revisit our determinations on the certified questions in Rommel
     I and that, in any event, plaintiffs had stated a claim for negligent maintenance and voluntary
     undertaking regarding the median. We affirm the trial court’s judgment.

¶2                                      I. BACKGROUND
¶3       We first recapitulate the factual background and procedural history that placed these
     cases before us. This appeal arises from five separate actions, each alleging injuries arising
     from a two-car head-on collision on Interstate 90 (northwest tollway), a portion of the Illinois
     tollway system. In each action, a vehicle lost control and left the roadway, crossed a 50-foot
     median, and encountered oncoming traffic, striking a vehicle and injuring or killing plaintiffs
     or their decedents.
¶4       Plaintiffs in the five actions–Barbara Rommel, individually and as special administrator
     of the estate of Timothy Rommel, deceased; Antonio Lewis, individually and as special
     administrator of the estate of Shayula Lewis, deceased, and on behalf of, for the benefit of,
     and as father and next friend of Kierra Lewis, a minor; James Neukirch, as special
     administrator of the estate of Mark E. Neukirch, deceased; Stephen Kugelman, as special
     administrator of the estate of Mathew Kugelman, deceased; Jeanine Dombrow, as
     independent executor of the estate of Matthew Dombrow, deceased; Ruth and Donald Smith,
     individually and as parents and next friends of Hannah Smith, a minor, Issac Smith, a minor,
     and Zofia Smith, a minor; Maria Villalobos, as special administrator of the estate of Leopold
     Villalobos, Jr., deceased; and Manar M. Dahleh, as special administrator of the estate of
     Mohammed M. Dahleh, deceased–filed suit against defendant alleging, in each case, that
     defendant should have (1) added guardrails or other barriers to the medians; (2) maintained
     the slope or shape of the medians differently to render them safer to drive over; and (3)
     erected signs warning motorists of the danger of crossover accidents due to the slope or
     condition of the medians. The cases were consolidated.
¶5       After many iterations of amended complaints, the trial court granted plaintiffs’ motion
     to allow them to plead “that there was something that was done maintenance-wise that
     caused this median to be not reasonably safe.” Plaintiffs then moved to certify two questions
     for interlocutory appeal under Illinois Supreme Court Rule 308 (eff. Feb 26, 2010).
¶6       This court allowed plaintiffs leave to appeal and addressed two certified questions in
     Rommel I, 405 Ill. App. 3d 1124. The questions concerned the Authority’s duty to prevent
     crossover vehicle collisions:
             “ ‘[1.] Does [defendant] have a common law duty to its users to correct, repair and/or
         improve its tollway system to prevent against “crossover” vehicle collisions when it was
         on notice that crossover vehicle collisions had occurred under the facts alleged by the
         Plaintiffs?
             [2.] Does the Illinois Road and Bridges Tollway Highway Act [(Act) (605 ILCS 10/1

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            et seq. (West 2008))] impose upon [defendant] a statutory duty to its users to correct,
            maintain, repair or improve its tollway system as is alleged by the Plaintiffs to prevent
            against crossover vehicle collisions?’ ” Id. at 1125.
¶7          We answered both questions in the negative. Id. Concerning the first question, after
       reviewing the relevant factors regarding the question of duty (reasonable foreseeability of
       injury, likelihood of such injury, magnitude of guarding against the injury, and consequences
       of placing that burden on the defendant), we determined that, in DiBenedetto v. Flora
       Township, 153 Ill. 2d 66 (1992), the Illinois Supreme Court had already resolved the
       question:
                “In DiBenedetto ***, the supreme court considered a township’s duty to a driver who
            died after his car veered out of his lane, crossed over the shoulder, and landed in a steeply
            pitched drainage ditch parallel to the road. [Citation.] The driver’s estate argued that the
            township should be held liable for its failure to remedy the dangerous condition created
            by the ditch, but the supreme court affirmed the trial court’s decision to dismiss the case
            on the ground that the township owed no duty to make the drainage ditch safe for
            motorists.” Rommel I, 405 Ill. App. 3d at 1126.
¶8          We reasoned that, under DiBenedetto, the entity maintaining a road has a duty to
       maintain only the traveled way in a reasonably safe condition, regardless of the foreseeability
       of a driver veering from the road. Id. at 1127. We concluded that, like the drainage ditch in
       DiBenedetto, the grassy median at issue here need not be maintained as a safe way for
       driving. Id.
¶9          Plaintiffs argued that, notwithstanding DiBenedetto, defendant should not be held to the
       duty imposed on government overseers of public roads, but to the higher duty a business
       owner owes to its invitees, which requires the owner to maintain its property in a reasonably
       safe condition. Id. at 1127-28. However, because the DiBenedetto analysis was not premised
       on the defendant’s status as a government entity, but on the notion that an entity that
       maintains roads owes a duty only to keep those roads reasonably traversable, DiBenedetto
       foreclosed plaintiffs’ argument. Id. at 1128. Thus, we answered the first certified question
       in the negative.
¶ 10        As to the second certified question, we examined the language of the Act and noted that
       it did not explicitly impose a duty on defendant, it was not designed to protect human life or
       property, and it only authorized, rather than mandated, defendant to undertake certain acts
       and did not specify the manner. Id. We also rejected out-of-state authority cited by plaintiff,
       as we were bound to follow the precedent of the Illinois Supreme Court. Id. Accordingly, we
       answered the second certified question in the negative. The matter was remanded to the trial
       court for further proceedings.
¶ 11        On remand, defendant again moved to dismiss each of plaintiffs’ complaints arguing that,
       under the law of the case per Rommel I, plaintiffs could not sufficiently plead the essential
       element of duty, and so they could not maintain a claim on which relief could be granted.
       Plaintiffs responded that Rommel I did not foreclose each of their claims that defendant
       created a dangerous condition on the median by failing to properly maintain it. Plaintiffs
       asserted that each of their maintenance claims was not included in the certified questions, as


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       they had deliberately excluded the term “maintain” from the first certified question to avoid
       review of that specific issue. In addition, plaintiffs argued that the trial court had previously
       permitted them to proceed on the maintenance claim and could revisit the issue because there
       was no final judgment.
¶ 12       The trial court applied Rommel I to each claim and concluded that defendant had no duty
       to maintain the median to prevent crossover collisions, even though it performed
       maintenance on the median that decreased a driver’s ability to recover. Referencing the
       answers to the certified questions, the trial court stated, “I think the answer to the question
       is broad enough that it tells me, as the trial judge, that there is no duty on the part of
       [defendant] to correct or repair any maintenance that [it] did on the median strip which may
       have resulted in a defect which could be a proximate cause of the injuries sustained by the
       plaintiffs.” The trial court, therefore, granted defendant’s motions to dismiss plaintiffs’
       complaints. Plaintiffs timely appeal.

¶ 13                                       II. ANALYSIS
¶ 14       Plaintiffs make a number of arguments that appear only to rehash their arguments in
       Rommel I and to ignore Rommel I’s conclusion that defendant did not owe a duty to correct,
       repair, and/or improve the median to prevent crossover collisions. Indeed, plaintiffs proceed
       through the four duty factors and argue that defendant did owe a duty to guard against
       crossover accidents. We need not consider the standard of review on the issue of duty, as
       plaintiffs argue, because we apply the law-of-the-case doctrine. As the application of the law-
       of-the-case doctrine is a question of law, our standard of review is de novo. In re Christopher
       K., 217 Ill. 2d 348, 363-64 (2005).
¶ 15       The law-of-the-case doctrine limits relitigation of a previously decided issue in the same
       case (Village of Ringwood v. Foster, 2013 IL App (2d) 111221, ¶ 33 (citing Krautsack v.
       Anderson, 223 Ill. 2d 541, 552 (2006))), and encompasses not only the court’s explicit
       decisions, but those issues decided by necessary implication (Reich v. Gendreau, 308 Ill.
       App. 3d 825, 829 (1999)). The doctrine applies to questions of law on remand to the trial
       court, as well as on subsequent appeals to the appellate court. Radwill v. Manor Care of
       Westmont, IL, LLC, 2013 IL App (2d) 120957, ¶ 8.
¶ 16       Plaintiffs suggest that the law-of-the-case doctrine does not apply to questions decided
       in a Rule 308 interlocutory appeal, citing People v. Patterson, 154 Ill. 2d 414, 469 (1992),
       because there must be a final judgment in order for the law-of-the-case doctrine to apply.
       Plaintiffs are misguided; by permitting a Rule 308 appeal and answering the certified
       questions, an appellate court renders a final judgment, as we did in Rommel I. See Schrock
       v. Shoemaker, 159 Ill. 2d 533, 537 (1994) (discussing the procedure for appeal to the Illinois
       Supreme Court after an appellate court’s final judgment under Rule 308). Furthermore, the
       application of the law-of-the-case doctrine to a decision in an interlocutory appeal is hardly
       novel. See, e.g., McNamee v. Sandore, 373 Ill. App. 3d 636, 649 (2007) (refusing to revisit
       a prior ruling pursuant to Rule 308 as law of the case).
¶ 17       That said, there are two exceptions to the law-of-the-case doctrine: (1) when, after a
       reviewing court’s original decision, a higher reviewing court makes a contrary ruling on the

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       same issue; and (2) when a reviewing court finds that its prior decision was palpably
       erroneous. Bjork v. Draper, 404 Ill. App. 3d 493, 501 (2010). Neither exception is applicable
       here.
¶ 18        As to the first exception, plaintiffs argue that, after Rommel I was decided, the Illinois
       Supreme Court in Simpkins v. CSX Transportation, Inc., 2012 IL 110662, rejected the
       “formulaic approach to duty” advanced by defendant and, apparently, used by this court in
       determining the duty issue in Rommel I. However, as defendant points out, Simpkins is not
       a contrary ruling and does not address the same issue as Rommel I.
¶ 19        The “contrary ruling” exception applies where the higher court “decides the precise
       question contrary to the rule announced in the appellate court.” (Emphasis added.) In re
       Application of Kane County Collector, 135 Ill. App. 3d 796, 800 (1985). Simpkins addressed
       whether a company owed a duty of care to its employee’s relatives to protect them from
       second-hand asbestos exposure and thus focused on a defendant’s duty to a third party.
       Simpkins, 2012 IL 110662, ¶¶ 22, 27-30. Rommel I, by contrast, involved a duty allegedly
       owed to first parties and did not address the issue of third-party harm. Thus, the precise
       question involved in Simpkins is not present here, and the “contrary ruling exception” does
       not apply.
¶ 20        Nonetheless, plaintiffs argue that Simpkins represents a change in the duty analysis
       requiring us to revisit the question of duty posed in both of the certified questions addressed
       in Rommel I. We disagree. Simpkins applied the same general duty principles that we
       outlined in Rommel I and that our supreme court considered in DiBenedetto. See id. ¶ 18
       (duty analysis includes “(1) the reasonable foreseeability of the injury, (2) the likelihood of
       the injury, (3) the magnitude of the burden of guarding against the injury, and (4) the
       consequences of placing that burden on the defendant”); DiBenedetto, 153 Ill. 2d at 72
       (discussing foreseeability, likelihood of injury, and burdens and consequences in determining
       the defendant’s duty); Rommel I, 405 Ill. App. 3d at 1126 (the court considers whether a duty
       exists by considering the “ ‘reasonable foreseeability of injury, the likelihood of such injury,
       the magnitude of guarding against the injury, and the consequences of placing that burden
       on the defendant’ ” (quoting Washington v. City of Chicago, 188 Ill. 2d 235, 239 (1999))).
       Thus, Simpkins does not represent a change in the duty analysis, and we conclude that the
       first exception to the law-of-the-case doctrine does not apply here. Furthermore, to the extent
       that plaintiffs argue that DiBenedetto is not sufficiently factually similar to Rommel I to have
       guided our duty analysis here, we disagree. As mentioned above, both DiBenedetto and
       Rommel I focus on the maintenance of an area adjacent to the roadway, where vehicular
       traffic is not expected, and it was appropriate in Rommel I to follow the precedent established
       by our supreme court.
¶ 21        As to plaintiffs’ contention that Rommel I was palpably erroneous, we see nothing
       compelling in plaintiffs’ arguments to merit reconsideration of our holding there. The
       palpably erroneous exception applies only where the court’s prior decision was obviously or
       plainly wrong. Radwill, 2013 IL App (2d) 120957, ¶ 12. Even our own disagreement with
       Rommel I’s result would not warrant deeming it palpably erroneous. See id. (“[t]he fact that
       a court might reach a different conclusion if it had to consider the issue anew does not mean
       that the court’s prior decision was palpably erroneous”).

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¶ 22        Plaintiffs aver that this court overlooked the fact that, in DiBenedetto, the “traveled way,
       shoulders, and drainage ditches” were to be maintained only for their intended uses, whereas
       here the normal and intended use of the median is to facilitate safe travel. We disagree with
       plaintiffs’ characterization. While DiBenedetto does note the “normal and intended use” of
       the drainage ditch, the focus is not on its specific purpose, but rather on what the “normal and
       intended use” was not. That is, the court focused on the lack of expectation of vehicular
       traffic in the ditch. See DiBenedetto,153 Ill. 2d at 71 (“[p]eople are not expected to drive in
       [drainage ditches along streets and highways] and the public cannot be an insurer of those
       who do”). Regardless of their specific intended purposes, neither the drainage ditch nor the
       median is intended to be driven on. Because plaintiffs’ attack on Rommel I in no way
       demonstrates that it was obviously or plainly wrong, the second exception to the law-of-the-
       case doctrine does not apply.
¶ 23        In applying the law-of-the-case doctrine here, we decline to address plaintiffs’ arguments
       insofar as they attempt to relitigate Rommel I, including the factors evaluated in determining
       whether a duty exists, the relationship between defendant as a business owner and plaintiffs
       as invitees, a statutory duty imposed by the Act, and out-of-state authority supporting liability
       for toll authorities in similar situations.
¶ 24        Thus, we are left with plaintiffs’ argument that the trial court, in dismissing plaintiffs’
       complaints, improperly applied Rommel I to their claim that defendant’s negligent
       maintenance created dangerous conditions by changing the slope or the surface of the median
       so that an out-of-control car was less likely to regain control. We review the dismissal of
       plaintiffs’ complaints de novo (Lacey v. Village of Palatine, 232 Ill. 2d 349, 359 (2009)),
       accepting all well-pleaded facts in the complaint as true and drawing all reasonable
       inferences in favor of plaintiffs (Edelman, Combs & Latturner v. Hinshaw & Culbertson, 338
       Ill. App. 3d 156, 164 (2003)). We may affirm the trial court on any basis, regardless of the
       trial court’s reasoning, if the record supports a proper ground for dismissal. Midway Park
       Saver v. Sarco Putty Co., 2012 IL App (1st) 110849, ¶ 22.
¶ 25        In their original response to defendant’s motions to dismiss, plaintiffs argued that,
       although defendant was not obligated to “install” the grassy median, it voluntarily undertook
       to do so, thereby assuming a duty to ensure that the median was properly maintained.
       Plaintiffs now contend that this question was not addressed in Rommel I. While we did not
       explicitly decide in Rommel I whether defendant had a duty to “maintain” the median so as
       to prevent crossover collisions, it was decided by necessary implication. See Reich, 308 Ill.
       App. 3d at 829. As noted by the First District, “ ‘maintenance’ ” concerns “ ‘[t]he
       performance of all things necessary to keep a highway in serviceable condition for vehicular
       traffic,’ ” while “improvement” “involves the expenditure of labor or money and is designed
       to make the property more useful or valuable as distinguished from ordinary repairs.”
       Anderson v. Alberto-Culver USA, Inc., 317 Ill. App. 3d 1104, 1112 (2000). Certainly, if
       defendant had no duty to spend labor or money on the median to prevent crossover collisions,
       it had no duty under the lesser obligation to make ordinary repairs to prevent crossover
       collisions.
¶ 26        Even if the issue of defendant’s lack of duty to “maintain” were not subsumed by
       Rommel I, Illinois courts have concluded that, even where a median is maintained in such a

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       manner that facilitates crossover collisions, there is no liability. See, e.g., Knight v. City of
       Chicago, 298 Ill. App. 3d 797, 800-01 (1998) (city had no duty to maintain medians such that
       they were safe for vehicles when they left the roadway), aff’d sub nom. Washington v. City
       of Chicago, 188 Ill. 2d 235 (1999). Rather, liability attaches only where the improvements
       are made that directly render the street defective, such that travel on the street becomes
       unreasonably dangerous. See Ross v. City of Chicago, 168 Ill. App. 3d 83, 89 (1988) (holding
       that city had no common-law duty to erect a median barrier to prevent crossover collisions).
       Here, plaintiffs argue that, by virtue of creating a highway divided by a grassy median,
       defendant has voluntarily undertaken to prevent crossover collisions. Even if we were to
       consider the creation of the median a voluntary undertaking, plaintiffs do not argue that the
       median directly rendered the highway defective, such that travel upon it was unreasonably
       dangerous. Rather, plaintiffs maintain that the median itself was not reasonably safe. This
       issue was decided adversely to plaintiffs in Rommel I. Accordingly, because plaintiffs’
       complaints failed to sufficiently allege the duty element of a negligence claim, we hold that
       the trial court did not err in dismissing plaintiffs’ complaints.

¶ 27                                  III. CONCLUSION
¶ 28       For the foregoing reasons, the judgments of the circuit court of Du Page County are
       affirmed.

¶ 29       Affirmed.




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