                           No. 3-04-0794
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                           Filed May 11, 2006
                     APPELLATE COURT OF ILLINOIS

                                       THIRD DISTRICT

                               A.D., 2006
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                               ________
LAUREN KIRSCHBAUM                      )   Appeal from the Circuit Court
                                       )   for the 12th Judicial Circuit,
      Plaintiff-Appellant,             )   Will County, Illinois
                                       )
v.                                     )
                                       )
THE VILLAGE OF HOMER GLEN,             )
HOMER TOWNSHIP, HOMER TOWNSHIP         )
HIGHWAY DEPARTMENT, HOMER              )   No. 03 L 544
TOWNSHIP ROAD COMMISSIONER             )
FRANKLIN E. DUNN, WILL COUNTY,         )
WILL COUNTY DEPARTMENT OF              )
HIGHWAYS and WILL COUNTY               )
ENGINEER SHELDON C. LATZ,              )
                                       )   Honorable Richard J. Siegel
      Defendants -Appellees.           )   Judge, Presiding.

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JUSTICE McDADE delivered the opinion of the court:
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       On appeal, plaintiff driver attempts to show the order of the Will County circuit court

granting defendants= motion to dismiss was improper because defendants owed plaintiff a duty to

prevent trees and brush from obstructing her view of oncoming traffic. The resolution of

plaintiff=s claim requires the examination of three issues: (1) whether section 3-102(a) of the

Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/3-

102(a)(West 2002)) imposes a duty upon defendants to trim or remove obstructive trees,
shrubbery and foliage from defendants= street intersections; (2) whether the holding in First

National Bank in DeKalb v. City of Aurora, 71 Ill. 2d 1, 12, 373 N.E.2d 1326, 1331 (1978),

requires a finding that defendants were under such a duty; and (3) whether such a duty exists

under any applicable statute or the common law. Upon review, we not only find defendants did

not owe plaintiff a duty to remove such obstacles from the intersection, but also that plaintiff=s

negligence claim would fail because of her inability to show that if such a duty existed,

defendants= breach was the proximate cause of her injuries. We affirm the trial court=s dismissal

of plaintiff=s claim.

                                              FACTS

        The incident in question occurred at the intersection of Parker Road and Chicago Road,

in Homer Township, a township of Will County, Illinois. Parker Road runs north and south.

Chicago Road runs east and west. The intersection of the two is controlled by stop signs at each

corner. Plaintiff alleges that property adjacent to the northeast corner of the intersection has

trees, shrubbery and other foliage that prevent southbound motorists from seeing westbound

vehicles.

        On September 5, 2002, at about 5:45 p.m., plaintiff was driving her car south on Parker

Road. Also at that time, a car driven by Sam Blatt was heading westbound on Chicago Road.

When plaintiff reached the intersection, she made a complete stop for the stop sign located on the

northwest corner and then continued to drive south into the westbound lane of the intersection.

Plaintiff claims she was unable to see Blatt=s approaching vehicle because her view was blocked

by the obstacles on the northeast corner. Plaintiff does admit, however, to being able to see the

stop sign at the northwest corner of the intersection that controlled her progress.


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       As plaintiff=s car entered the intersection, Blatt=s car also entered from the east and struck

plaintiff=s driver-side door at about 45 miles per hour. Blatt admitted disobeying the stop sign on

the northeast corner of the intersection, claiming that the sun blinded him and he could not see

the stop sign. There was no contention that Blatt=s vision of the stop sign was obscured by

brush. As a result of injuries sustained in the accident, plaintiff=s left leg is deformed and an inch

shorter than her right leg.

       Subsequently, plaintiff filed a one-count complaint against defendants, Village of Homer

Glen, Homer Township, Homer Township Highway Deptartment, the Homer Township Road

Commissioner, Will County, Will County department of highways and the Will County

engineer. In her complaint, plaintiff alleged the collision would not have occurred if the

defendants had removed the obstructions which blocked her view. She claimed the defendants

breached their duty of care to maintain their property in a reasonably safe condition by failing to

keep the northeast corner free from obstacles. Plaintiff concludes that this created an

unreasonable risk of harm and violated section 3-102(a) of the Tort Immunity Act. In response,

defendants filed motions to dismiss pursuant to section 2-619 and 2-615 of the Illinois Code of

Civil Procedure. (735 ILCS 5/2-619, 2-615(West 2002)). Defendants asserted plaintiff failed to

properly plead a cause of action and that they were immune from liability because they owed no

duty to remove brush and trees pursuant to the Act. After hearing argument, the trial court

granted defendants= 2-619 motion to dismiss. Plaintiff appeals this order.

                                    STANDARD OF REVIEW

       A motion to dismiss pursuant to section 2-619 admits the legal sufficiency of the

plaintiff=s claim but asserts certain defects or defenses outside the pleading which defeat the

claim. Wallace v. Smyth, 203 Ill. 2d 441, 447, 786 N.E.2d 980, 984 (2002). The standard of

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review on appeal from an order granting a 2-619 motion to dismiss is de novo. Wallace, 203 Ill.

2d at 447, 786 N.E.2d at 984. The reviewing court must determine whether the allegations of

plaintiff=s complaint, when construed in the light most favorable to plaintiffs, are sufficient to

establish a cause of action upon which relief may be granted. Weatherman v. Gary-Wheaton

Bank of Fox Valley, N.A., 186 Ill. 2d 472, 491, 713 N.E.2d 543, 552 (1999).

                                             ANALYSIS

       We begin our analysis by considering whether section 3-102(a) of the Local Government

and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/3-102(a)(West 2002))

imposes a duty upon defendants to trim or remove obstructive trees, shrubbery and foliage from

defendants= street intersections. Section 3-102(a) of the Act provides:

               AA 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, and

       shall not be liable for injury unless it is proven that it has actual or constructive

       notice of the existence of such a condition that is not reasonably safe in reasonably

       adequate time prior to an injury to have taken measures to remedy or protect against

       such condition.@ 745 ILCS 10/3-102(a) (West 2002).

Plaintiff claims there is a split of authority amongst Illinois appellate districts as to whether

section 3-102(a) of the Act imposes such a duty. The alleged split of authority is between the

Third and Fifth Districts. The Third District holds the Tort Immunity Act does not impose

duties, but confers immunities. Havens v. Harris Township, 175 Ill. App. 3d 768, 771, 530

N.E.2d 284, 285 (3rd Dist. 1988); Bainter v. Chalmers Township, 198 Ill. App. 3d 540, 541, 555

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N.E.2d 1195, 1196 (3rd Dist. 1990). The Fifth District, relying on the common-law doctrine of

public immunity, holds that a local government entity may be liable for failure to trim trees and

brush encroaching into a public road. Long v. Friesland, 178 Ill. App. 3d 42, 52, 532 N.E.2d 914,

927 (5th Dist. 1988). Plaintiff urges us to adopt the Fifth District=s analysis in Long. Three

relevant cases that frame our examination are Havens v. Harris Township, Long v. Friesland,

and Bainter v. Chalmers Township.

       In Havens, this court examined a case where plaintiff sustained serious injuries as a result

of an automobile accident. The plaintiff claimed that the township breached its duty to maintain

the roadway in a safe condition. Specifically, plaintiff relied upon section 3-102(a) of the Act in

claiming that defendants= duty to maintain public roads in a reasonably safe condition entailed

mowing the weeds and brush alongside the intersection. The court disagreed with plaintiff=s

claim, stating that the Act A >is not a catalog of duties or a source of rights; it does not create new

liabilities where none already exist.= @ Havens, 175 Ill. App. 3d at 771, quoting Hannon v.

Counihan, 54 Ill. App. 3d 509, 512 (l977), 369 N.E.2d 917, 921 (1977). The court reasoned that

the proper analysis to determining whether a duty exists requires examining the common law and

other applicable statutes. Havens, 175 Ill. App. 3d at 771, 530 N.E.2d at 285. In affirming the

dismissal of plaintiff=s complaint, the court stated, A[a]bsent a statutory or common law duty, it is

up to the township=s discretion to decide whether such road improvements were necessary.@

Havens, 175 Ill. App. 3d at 771, 530 N.E.2d at 285.

       In Long, the Fifth District reviewed a case where an automobile accident occurred as a

result of a township=s failure to remove or trim trees and brush actually encroaching into a public

road, thereby forcing motorists to drive into the middle of the road. There were two relevant

issues before the court: (1) whether defendants breached a duty by not trimming the trees and

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brush encroaching on the road; and (2) whether the defendants were immune from liability as

public officials. In finding that a duty did exist and the township was liable, the Long court

relied on the common-law doctrine of public immunity. Long, 178 Ill. App. 3d at 52, 532 N.E.2d

at 920. Under that doctrine, liability will not be imposed upon public officials for the negligent

performance of discretionary acts, whereas it will be imposed for negligent performance of

ministerial acts. Long, 178 Ill. App. 3d at 52, 532 N.E.2d at 920. AMinisterial acts are those

which a person performs on a given state of facts in a prescribed manner, in obedience to the

mandate of legal authority and without reference to the official=s discretion as to the propriety of

the act.@ Long, 178 Ill. App. 3d at 52, 532 N.E.2d at 921. AThe performance of a ministerial act

does not require the exercise of judgment or discretion by the public official.@ Long, 178 Ill.

App. 3d at 53, 532 N.E.2d at 921. The Long court found that because the act of maintaining the

township roadways free of encroaching brush is purely ministerial, the township enjoys no

immunity from suit for the negligent performance of that act. Long, 178 Ill. App. 3d at 53, 532

N.E.2d at 921.

       In Bainter, the Third District was urged by defendant township to reverse our holding in

Havens and follow the reasoning set out in Long. In responding to this request, the Bainter court

stated, A[w]e will continue to adhere to our decision in Havens. A township has no common- law

duty to widen roads, smooth gravel, erect signs, or mow weeds.@ Bainter, 198 Ill. App. 3d at 541,

555 N.E.2d at 1196.

       In light of the above three cases, plaintiff=s claim that there is a split of authority among

appellate districts as to whether section 3-102(a) creates a duty upon local government entities to

trim or remove trees, brush and foliage from alongside roadways is simply incorrect. Our court

has been very clear in stating that the Act does not impose duties but, instead, only confers

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immunities and defenses. Bainter, 198 Ill. App. 3d at 541, 555 N.E.2d at 1196; Havens, 175 Ill.

App. 3d at 770, 530 N.E.2d at 285. Plaintiff=s argument that the Fifth District=s holding in Long

contradicts this precedent is misguided. Long did not even examine section 3-102(a). In fact,

the opinion in Long did not contain discussion of any immunity provision found in the Act.

Instead, the Fifth District found the existence of a duty under the common-law doctrine of public

immunity. Long, 178 Ill. App. 3d at 53, 532 N.E.2d at 921.

       Long is not only legally distinguishable from Havens and Bainter but also factually

distinguishable. Unlike the situations in Havens and Bainter, the trees in Long were so

overgrown they were physically encroaching the street. In fact, the plaintiff in Long testified

that the brush physically struck the side of her car and tore her blouse. Clearly, courts have held

that public entities can be held liable for injuries incurred as a result of objects being located on a

public road. See O=Connell v. Chicago & North Western R.R. Co., 305 Ill. App. 430, 442, 27

N.E.2d 644, 650 (1940) (holding a city liable for personal injuries caused by a driver colliding

with a girder in the center of a city street where the city did not give a warning). The duty to

remove known encroachments actually impeding traffic is ministerial. By contrast, the trees and

brush in the instant case were not growing into the intersection and a determination of whether

they need to be trimmed clearly invokes the making of a judgment and the exercise of discretion.

       Because we find Long both legally and factually distinguishable from both Havens and

Bainter, we reject plaintiff=s assertion that there is a split of authority between the Third and

Fifth Districts. In turn, we uphold our earlier findings that section 3-102(a) of the Act does not

impose a duty upon public entities to trim or remove obstructing trees, shrubbery and foliage

from their street intersections. Therefore, absent a statutory or common law duty, it is up to a

public entity=s discretion to decide whether or when certain road improvements are necessary.

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       We now turn our attention to plaintiff=s claim that the Illinois Supreme Court=s holding in

First National Bank in DeKalb v. City of Aurora, 71 Ill. 2d 1, 12, 373 N.E.2d 1326, 1331

(1978), requires a finding that defendants were under a duty to trim the trees, shrubbery and

foliage alongside the intersection in question. In First National Bank, the court found that the

city of Aurora was liable for negligently permitting a large tree to obstruct the view of plaintiff

driver, who was injured as a result of her inability to see an oncoming automobile. First National

Bank, 71 Il. 2d at 10-11, 373 N.E.2d at 1331. Plaintiff, however, misconstrues the reasoning

behind the court=s finding that a duty did exist. The court never held that pursuant to section 3-

102(a) of the Tort Immunity Act, a municipal corporation must keep its roadways in reasonably

safe condition by virtue of trimming or removing trees, shrubbery, or foliage alongside its

roadways. Instead, the court held that the alleged violations of the city=s own two ordinances

were prima facie evidence of negligence, and therefore, the injured plaintiff had a cause of

action. First National Bank, 71 Il. 2d at 11, 373 N.E.2d at 1331.

       This ruling is fully consistent with the decision in Havens and Bainter. The courts in

Havens and Bainter both held that the Act does not impose duties, but confers immunities.

Havens, 175 Ill. App. 3d at 770, 530 N.E.2d at 285; Bainter, 198 Ill. App. 3d at 541, 555 N.E.2d

at 1196. Therefore, courts must look to the common law and other statutes to determine whether

a local government entity owes a duty to a private individual. Havens, 175 Ill. App. 3d at 771,

530 N.E.2d at 285; Bainter, 198 Ill. App. 3d at 541, 555 N.E.2d at 1196. The Illinois Supreme

Court in First National Bank did exactly that, finding that it was the city of Aurora=s own

statutory code that placed a duty upon the defendant city to remove the large tree that obstructed

plaintiff=s view. As a result, plaintiff=s argument that the holding in First National Bank requires

a finding in this case that defendants were under a duty to trim the trees, shrubbery and foliage

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alongside the intersection in question is incorrect.

        Following the reasoning laid out in Havens, Bainter and First National Bank, we must

now examine whether the defendants in the instant case owed a duty to the plaintiff in light of

the common law or any other applicable statute. Courts in Illinois have long recognized that a

local government has a common law duty to maintain public roads in a safe condition. Boylan v.

Martindale, 103 Ill. App. 3d 335, 340-41, 431 N.E.2d 62, 67 (1982). However, a public entity

satisfies its duty to maintain the streets in a reasonably safe condition by placing a stop sign at

the intersection. Manning v Hazekamp, 211 Ill. App. 3d 119, 129, 569 N.E.2d 1168, 1175

(1991). Courts have held it is entirely reasonable for a city to believe it fulfills its duty to

maintain a safe intersection by providing clearly visible and functioning traffic lights. Boylan,

103 Ill. App. 3d at 341, 431 N.E.2d at 67; Manning, 211 Ill. App. 3d at 129, 569 N.E.2d at 1175.

Our court has held that a township has no common-law duty to widen roads, smooth gravel,

erect signs, or mow weeds. Havens, 175 Ill. App. 3d at 771, 530 N.E.2d at 285; Bainter, 198 Ill.

App. 3d at 541, 555 N.E.2d at 1196.

        In Boylan, plaintiff was injured in an automobile accident and alleged that the defendant

city breached its duty in failing to remove certain trees and bushes near an intersection which

obstructed her view of approaching drivers. In granting summary judgment for the defendant

city, the court stated, Aregardless of whether or not the drivers= view of the *** intersection was

restricted, we believe that, under the circumstances, the city successfully discharged its duty by

the maintenance of properly working stoplights at the intersection.@ Boylan, 103 Ill. App. 3d at

341, 431 N.E.2d at 67. The court went on to say, A[a] city is only under a duty of ordinary care

to maintain its streets in a reasonably safe condition.@ (Emphasis omitted.) Boylan, 103 Ill. App.

3d at 341, 431 N.E.2d at 67. Therefore, a public entity may incur liability for failure to maintain

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the visibility of a traffic control device. Boylan, 103 Ill. App. 3d at 341, 431 N.E.2d at 67.

However, where the traffic device is visible, the entity successfully discharges its common-law

duty to maintain public roads in a reasonably safe condition. Boylan, 103 Ill. App. 3d at 341, 431

N.E.2d at 67.

        In Manning, plaintiff was involved in a car accident and argued that the defendant city=s

duty to maintain its roads in a reasonably safe condition included the duty to maintain adequate

sight distances at intersections such that drivers have a sufficient view of oncoming traffic. The

city argued that it fulfilled its duty to maintain its roads in a reasonably safe condition by placing

a stop sign at the corner of the intersection where the accident occurred. In finding the city not

liable the court stated, A <there is no duty owed in Illinois for trees obstructing visibility of

motorists on an adjoining highway by either a municipal landowner or a private one at a

controlled intersection and the visibility of the traffic controls has not been obstructed.= @

Manning, 211 Ill. App. 3d at 127, 569 N.E.2d at 1173 quoting Esworthy v. Norfold & Western

Ry. Co., 166 Ill. App. 3d 876, 879, 520 N.E.2d 1044, 1046 (l988).

        In the case at bar, plaintiff does not contend and the record does not show that the trees

and bushes in the area obstructed or obscured either plaintiff=s view or Blatt=s view of the stop

signs at the intersection. The plaintiff herself admitted that she came to a complete stop for the

stop sign located on the northwest corner of the intersection. Defendant blamed his failure to see

the sign on blinding sunlight, not the trees and brush. Under the applicable case law, the

defendants successfully discharged their duty by placing visible stop signs at each corner of the

intersection. Plaintiff has cited no authority, nor has our research found any, that supports a

proposition that a public entity breaches its common-law duty by allowing trees and brush in an

area adjacent to an intersection to pose visual obstructions of oncoming traffic where there are

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clearly visible stop signs observable to all drivers. Neither does the plaintiff cite to any of the

defendants= own ordinances, as the plaintiff in First National Bank did, to show that the

defendants were under a statutory duty to maintain the intersection so that it is free of visual

obstructions. Consequently, the trial court ruled correctly in finding that plaintiff=s negligence

count failed to sufficiently plead the existence of a duty owed to plaintiff.

       Even assuming the existence of a duty to remove the trees and brush near the

intersection, the failure to do so was merely a condition of the plaintiff=s injuries, not the

proximate cause. "The question of proximate cause is ordinarily one of fact for the jury."

Boylan, 103 Ill. App. 3d at 341, 431 N.E.2d at 67. AYet it is well established that if an alleged

negligent act does nothing more than furnish a condition making the injury possible, and such

condition, by the subsequent independent act of a third party, causes the injury, the two acts are

not concurrent and the condition will not be the proximate cause of the injury.@ Boylan, 103 Ill.

App. 3d at 341, 431 N.E.2d at 67. The Illinois Supreme Court in Merlo v. Public Service Co. of

Northern Illinois, 381 Ill. 300, 45 N.E.2d 665 (1942) articulated the test for distinguishing

between proximate cause and a condition. The court stated:

       AThe test that should be applied in all cases in determining the question of proximate

       cause is whether the first wrongdoer might have reasonably anticipated the

       intervening cause as a natural and probable result of the first party=s own negligence.

        [citation.] If the act of a third party is the immediate cause of the injury and is such

       as in the exercise of reasonable diligence would not be anticipated and the third

       person is not under the control of the one guilty of the original wrong, the connection

       is broken and the first act or omission is not the proximate cause of the injury.

       [citation.] [Therefore,] if two wholly independent acts, by independent parties,

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       neither bearing to the other any relation or control, cause an injury by one creating

       the occasion or condition upon which the other operates, the act or omission which

       places the dangerous agency in operation is the efficient intervening cause that

       breaks the causal connection and makes the other act or omission the remote and not

       the proximate cause of the injury.@ Merlo, 381 Ill. at 317, 45 N.E.2d at 675.

       In the case at bar, plaintiff alleges that Sam Blatt=s vehicle collided with her car. The

complaint further alleges that Blatt failed to obey a traffic control device, a stop sign. It seems

clear that defendants could not have reasonably anticipated that Blatt, an independent party,

would fail to obey a plainly visible traffic control device and that plaintiff would be precluded

from reacting defensively because her vision was obstructed by trees and bushes on the northeast

corner of the intersection. In fact, the only behavior defendants can reasonably be held to have

foreseen is that Blatt would have obeyed his statutory obligation to stop at the stop sign located

at the northeast corner of the intersection. Therefore, Blatt=s negligence in the instant case broke

the causal connection and made the defendants= alleged negligence merely a condition and not

the proximate cause of plaintiff=s injury. Consequently, even assuming a duty did exist,

plaintiff=s negligence claim would fail because of her inability to show defendants= breach was

the proximate cause of her injuries.

                                          CONCLUSION

       Because we find that section 3-102 of the Tort Immunity Act does not create a duty for

defendants to clear brush from an intersection where there are clearly visible traffic control

devices at each corner and that the brush constitutes a condition rather than a proximate cause of

the accident and plaintiff=s resulting injuries, the judgment of the circuit court of Will County is

affirmed.

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Affirmed.

LYTTON and BARRY, JJ., concur.




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