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Road Management & Engineering Journal
Copyright © 1997 by TranSafety, Inc.
June 1, 1997
TranSafety, Inc.
(360) 683-6276
Fax: (360) 335-6402

Strategic Highway Research Program Reports on Pothole Repair Survey
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AASHTO Metrication Clearinghouse is On-Line
City of Chicago May Be Negligent for Placement of Cones in Work Zone...

City of Chicago May Be Negligent for Placement of Cones in Work Zone: Passenger Injured When Bus Forced Too Close to Pillar

Cones directing traffic at the site where crews were painting pavement markings for a pedestrian crossing in Chicago forced a city bus to drive as far as possible to the right to avoid being hit by a passing truck. Mark Jefferson, a passenger on the bus, had his arm out the window. The arm was partially severed when the bus brushed a steel pillar. Jefferson sued the City of Chicago (City) for negligence in placing the cones, and the City filed for summary judgment. The Circuit Court of Cook County granted the summary judgment. On appeal, the Appellate Court of Illinois, First District, First Division, affirmed the trial court's decision in part and reversed in part. The appellate court found:
  1. conduct of bus driver as matter of law was not independent intervening cause of accident and did not preclude finding of liability on part of city;
  2. failure to initially provide traffic cones between moving lanes or to place flagman at intersection was failure to take initial safety precautions for which city was immune under statute; but
  3. alleged negligence of city in placing traffic cones after city decided to do so was not initial safety precaution and could be basis of liability.

The Incident

City maintenance crews were painting pedestrian-crosswalk lines at the southeast corner of the intersection of Halsted and Lake on May 7, 1987. Crews had closed the east half of Halsted Street and were using one lane of the west half for northbound traffic and one for southbound.

Traveling southbound, the driver of a CTA bus was moving very slowly when he saw a truck coming toward him. The bus driver testified that he was forced to move the bus as far as possible to the right to avoid the truck's hitting the bus. The bus stopped at the far right side of the road as the truck squeezed between it and the line of cones in the middle of Halsted.

The bus driver had stopped immediately in front of a dumpster. A vertical steel pillar that supported elevated train tracks was two or three feet in front of the bus' right rear wheel. Avoiding the dumpster, the driver pulled away from the curb and steered the bus to the left. He testified that he then heard screaming from the back of the bus where Mark Jefferson (15 years of age) had been sitting with his right arm out the open window. Jefferson's arm had hit the pillar, resulting in severe injury to the arm.

Trial Court Decision

Jefferson sued the City and the CTA. The CTA settled out of court. The plaintiff argued the City was negligent in its placement of the orange cones used to direct traffic in the work zone. Specifically, the plaintiff's expert witness claimed placing the cones at a 35-degree angle over a distance of only 80 feet violated provisions of the Illinois Manual on Uniform Traffic Control Devices. Given the lack of proper cone taper, the expert contended the City should have foreseen that northbound traffic would encroach into the southbound lane of Halsted. Moreover, the expert was critical of the City's failure to separate northbound and southbound traffic with a line of cones.

Despite the plaintiff's arguments, the trial court granted the City summary judgment. The trial court concluded that (1) the bus driver's actions were intervening causes of Jefferson's injuries and broke the chain of connection between the City's actions and the injuries, and (2) the Illinois' Tort Immunity Act (Local Governmental and Governmental Employees Tort Immunity Act) provided the City immunity from liability for its decisions in placing the cones.

Appellate Court Decision

The appellate court reviewed the evidence to decide if the City had established there was no genuine issue of material fact concerning the proximate cause of Jefferson's injuries or the City's statutory immunity.

Proximate Cause

In finding the bus driver's actions an intervening cause, the trial court relied on Quintana v. City of Chicago ((1992) 230 Ill.App.3d 1032, 1035, 172 Ill.Dec. 849, 596 N.E.2d 128). Quintana restated an established principle of law that if the alleged negligence merely created a condition under which an injury could happen but a third party's action broke the causal connection between the original negligence and the injury, then the third party's action was the proximate cause. Here negligent placement of the cones may have caused the bus to move to the right and stop; however, the City claimed it was the bus driver's decision to turn the wheels to the left when he started moving again that caused the injury. The City argued the driver's actions irretrievably broke the causal connection between its placement of the cones and Jefferson's injury.

To decide whether summary judgment was appropriate, the appellate court investigated the legal cause of Jefferson's injuries. Determining legal cause requires determining foreseeability, and the City's actions would be negligent only if a reasonable person could have seen that an injury of this type was likely to result from such actions.

Given the placement of the cones, the appellate court felt the City could have foreseen the conflict between the bus and the truck. The court pointed out that the bus driver drove where he had to drive and where the City directed him to drive. Michalak v. County of La Salle ((1984), 121 Ill.App.3d 574, 576, 77 Ill. Dec. 35, 459 N.E.2d 1131) defined unforeseeable actions as those that were "highly extraordinary," "tragically bizarre," or "unique." The bus driver's actions were none of these. The court found that the City's duty to "maintain its public highways in a reasonably safe condition" might include conforming with the Illinois Manual on Uniform Traffic Control Devices. That manual says cones are "to guide and direct drivers safely past the hazards." There remained a genuine issue of material fact as to whether the City violated that duty by not guiding the bus driver safely past the construction zone. Therefore, the appellate court felt the City might be negligent and found the trial court erred in granting the City summary judgment based on the claim that the driver's actions broke the causal connection between the City's actions and Jefferson's injuries.

Statutory Immunity

The trial court agreed with the City's contention that Section 3-104 of the Tort Immunity Act prohibited the plaintiff's claims. That section reads:

Neither a public entity nor a public employee is liable under this Act for an injury caused by the failure to initially 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 1992)

Recognizing that the legislature intended to provide absolute immunity from liability for the City's decisions not to install traffic control devices, the appellate court agreed that the City had immunity for its decision not to place cones between the two moving lanes of traffic on the west side of Halsted. That immunity also applied to the City's determination not to have flaggers controlling the scene. On these two issues, the appellate court affirmed the trial court's judgment.

However, the appellate court referred to Parsons v. Carbondale Township ((1991), 217 Ill. App.3d 637, 160 Ill.Dec. 454, 577 N.E.2d 779) when considering the issue of immunity for the unsafe angle and taper of the placement of the cones. In Parsons, the township was held liable when it made an initial decision to install a road sign but then failed to comply with State specifications on how the sign was to be installed. The court viewed not complying with specifications as failure to use reasonable care, and the township did not have immunity from that negligence. Finding that the City's decisions on cone placement might also represent failure to use reasonable care in carrying out an initial decision, the appellate court concluded that the Tort Immunity Act did not protect the City here. The appeals court, therefore, reversed the grant of summary judgment on the issue of improper placement of the cones.

Affirming in part and reversing in part, the appellate court remanded the case for further proceedings.

[Jefferson v. City of Chicago (Ill.App. 1 Dist. 1995) can be found in West Publishing Vol. 646 North Eastern Reporter, 2d Series, 1035]

Copyright © 1997 by TranSafety, Inc.

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