author: JUSTICE GREEN

text:
    BOARD OF EDUCATION OF WAPELLA COMMUNITY UNIT SCHOOL DISTRICT No. 5, DE WITT COUNTY, et al., Plaintiffs-Appellants, v. REGIONAL BOARD OF SCHOOL TRUSTEES OF McLEAN-DE WITT COUNTIES et al., Defendants-Appellees.
    Fourth District
    No. 4—93—0163
    Argued June 17, 1993.
    Opinion filed July 20, 1993.

      Everett E. Nicholas, Jr., and Merry C. Rhoades (argued), both of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., of Carbondale, for appellants.
    Gregory C. Knapp (argued), of Saint & Ambrose, P.C., of Bloomington, for appellee Committee of Ten Petitioners.
    Bruce Gammage, State’s Attorney, of Clinton (Norbert J. Goetten, Robert J. Biderman, and David E. Mannchen (argued), all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for other appellees.
   JUSTICE GREEN

delivered the opinion of the court:

On September 1, 1992, a petition was filed with the Regional Board of School Trustees of McLean-De Witt Counties (Regional Board) seeking dissolution of School District No. 5 of Wapella (Wapella District) under the provisions of section 7 — 2a(b) of the School Code (Code) (105 ILCS 5/7—2a(b) (West 1992)). Some petitioners filed requests to withdraw and other persons filed objections to the sufficiency of the petition. On November 13, 1992, the Regional Board entered an order finding that the petition was sufficient and the academic interest of the Wapella pupils would best be served by annexation of the Wapella territory to Clinton Community Unit School District No. 15, De Witt, Macon and Logan Counties. Administrative review was taken to the circuit court of De Witt County, which affirmed by order of February 11,1993.

Appeal was taken to this court. After hearing oral arguments, we issued an opinion on June 24, 1993 (Board of Education Wapella Community Unit School District No. 5 v. Regional Board of School Trustees of McLean-De Witt Counties (1993), 245 Ill. App. 3d 776). This opinion neither affirmed, reversed, nor modified the order on appeal. However, the opinion indicated approval of all of the actions of the Regional Board except for its ruling prohibiting the request of the objectors to be heard on the question of the sufficiency of the petition to dissolve. Accordingly, we remanded to the Regional Board with directions to hold an evidentiary hearing on those objections and to certify its ruling to us on an expedited basis.

The Regional Board held an evidentiary hearing on July 6, 1993, and found that a few of the signatures on the petition were invalid but the petition still contained enough valid signatures to constitute a majority of the registered voters of the district. It also found the petition was in proper form. Its findings were certified to this court together with a report of the proceedings. After reviewing those documents we now affirm the order of the Regional Board entered November 13, 1992, and that of the circuit court of De Witt County affirming the Regional Board.

Before we discuss the findings concerning the sufficiency of the petition, we must consider a precedential issue raised by the objectors both at the latest hearing before the Regional Board and by motion before this court. Objectors maintain that the Regional Board lacked jurisdiction to hold the July 6, 1993, hearing because no mandate had issued or could issue from this court at the time that hearing was held. They point out that Supreme Court Rule 368(a) states that “[t]he timely filing of a petition for rehearing will stay the mandate until disposition of the petition unless otherwise ordered by the court.” (134 Ill. 2d R. 368(a).) On July 2, 1993, four days before the Regional Board’s hearing, objectors filed a petition for rehearing of our June 24, 1993, decision. We did not deny that petition until July 7, 1993, and, in any event, no mandate has issued pursuant to our June 24,1993, decision.

The objectors’ theory in regard to the Regional Board’s jurisdiction is based upon the premise that it could not act without a mandate. However, as we have indicated, our previous opinion in this case neither affirmed, reversed, nor modified any part of the order on appeal. We remanded for an evidentiary hearing on a single point, but we did not abdicate any part of our general jurisdiction of the matter. (See People v. Garrett (1990), 139 Ill. 2d 189, 194-95, 564 N.E.2d 784, 787.) Thus we did not enter a judgment and no mandate was appropriate. No new notice of appeal was necessary for this court to obtain jurisdiction to rule on the case because this court never lost jurisdiction of the appeal. We hold that our opinion was sufficient to vest the Regional Board with authority to hold the July 6, 1993, hearing and that board properly proceeded in the face of the objectors’ assertion of lack of jurisdiction. We also deny the objectors’ motion attacking, in this court, the Regional Board’s power to hold the July 6, 1993, hearing.

The objectors contend that the petition was invalid because (1) 54 signers did not make a proper statement of their address on the petition; (2) 14 pages of the petition were invalid because the circulator did not execute a proper certificate; (3) five signatures were forged; (4) two persons signing were not registered voters; (5) one person signed the petition six months before it was filed; and (6) the petition was not properly bound and numbered. The record indicates that 876 registered voters resided in the Wapella District at the time the petition was filed. Thus, 439 valid signatures were needed to sustain the petition. The petition purported to be signed by 464 registered voters. Accordingly, the petition was invalid if more than 25 signatures were invalid.

Section 7 — 2a(b) of the Code makes no statement in regard to whether petitioners need set forth their address upon the petition. In our previous opinion we stated that section 28 — 3 of the Election Code (10 ILCS 5/28—3 (West 1992)) was not binding in regard to the form of petitions tmder section 7 — 2a(b) of the Code and, while it may give reasonable guidelines, addresses of petitioners were sufficiently set forth “if the identity of the registered voter can readily be determined from the address provided notwithstanding technical noncompliance with the Election Code.” (Wapella, 245 Ill. App. 3d at 785.) Here, some petitioners gave their street address within Wapella. Others set forth their rural route designation either with or without the number of an individual mail receiving box. Some stated that they lived in Wapella but gave no street address, while 13 merely stated a Wapella post office box number. No petitioner purported to live in any municipality other than Wapella.

Clearly, the address given for Charles A. Phillip on page 30 of the petition, which listed a street and number but did not state the municipality of that address, was inadequate. Just as clearly, those who listed their street address within Wapella, Blinois, fully complied with any requirement for petitioners to set forth their residential address. Similarly, we hold that addresses of petitioners which are stated in terms of a particular rural route are sufficient regardless of whether the designated mail box number for the residence of that petitioner is given. The use of numbered rural route mailboxes is of comparatively recent origin. The number of customers on a designated rural route is small enough that the identity of a resident on the route can readily be determined.

Objectors point out that the record shows that various rural post routes involved here are partly within and partly outside the Wapella District. They maintain that petitioners should be required to set forth addresses which show on the face of the petition that the petitioner resides within the district. We conclude that such a requirement would be too technical and burdensome to impose absent a statutory requirement which would have advised petitioners in advance of the need to give such specific addresses. In order to find sufficient valid signatures to the petition here, we need not find valid the signatures of Florence M. Dyer and Richard R. Thasher, whose addresses appearing respectively on pages 93 and 105 of the petition are listed as being a rural route without giving the number of that route.

The question of whether an address listed as “Wapella, 111.,” is sufficient is somewhat more difficult. When called as a witness by the objectors, Nelson Thorp, president of the board of the Wapella District, and himself an objector, testified that the municipality of Wapella had street addresses but “[m]ost of the time, the people living there didn’t know them.” The population of Wapella was not set forth in the record but the record does contain information that all of Wapella is in the Wapella District and that district includes a substantial rural area. As only 876 registered voters reside in the Wapella District, the municipality of Wapella is clearly not a very large place and identification of the street address where a petitioner lives is not necessary to readily ascertain the identity of that petitioner. Because of the small size of Wapella and the admittedly limited use of street addresses, we also hold that listing of street addresses was not required to validate the signature of those petitioners who merely identified themselves as living in Wapella.

We hold that the 13 people who listed their address as a Wapella post office box did not properly set forth their residence. A resident of any community could have a box at the Wapella post office as a place for receiving mail. These 13 signatures added to the three we have previously rejected bring the total rejected signatures to 16 and reduce the margin of valid signatures over that necessary for the petition to be valid to nine.

The main thrust of objectors’ allegation that the circulators of the various sheets of the petition did not execute proper certificates begins with their assertion that section 28 — 3 of the Election Code, concerning petitions for holding of referenda, controls the procedure to be used here. Section 7 — 2a(b) of the Code is also silent on this point. However, each of the sheets to the petition here does contain a form which would meet the requirements of section 28 — 3 of the Election Code. The objectors’ main complaint is that several of the circulators gave as an address a particular rural route. Just as we have found that to be adequate as a statement of address for a petitioner, we hold that it is a proper statement of address for a circulator of a petition.

The other complaint of objectors concerning the execution of certificates by circulators concerns a person whose full name was Margaret Marlene Spray and who was registered to vote as M. Marlene Spray. She signed a petition for dissolution circulated by another as Marlene M. Spray and signed the certificate on three sheets she had circulated as M. Marlene Spray. The evidence was undisputed that she was one and the same person who performed all of the acts involved. The name she used to sign the circulator’s certificate was the name on her voter’s registration card. Moreover, presumption of identity of a person has been held to exist when two used surnames are identical but one. of the initials in the given name is transposed. (65 C.J.S. Names § 15(b)(2), at 47 (1966).) No signature to the petition was invalidated by Spray’s use of slightly different names.

The Regional Board found that no forgery occurred in regard to any name on the petition. As to each questioned signature, substantial evidence of the validity of the signature was produced fully supporting the factual determination. Of the two people whose registration was questioned, the Regional Board found that Michael Roy was, in fact, registered at the time he signed the petition and Tonja M. Barber was not. Joye Floyd, the county clerk, testified that Roy registered the day before the petition was signed and Barber registered the same day she signed the petition. The Regional Board concluded Roy’s signature was valid but that Barber’s was not because there was some question as to whether she signed the petition before or after she registered. No evidence contested that testimony.

The signature of petitioner Margaret M. Gaherity was the sole signature on one of the sheets of the petition and that signature was dated “1/9/92,” which would have been more than six months before the filing of the petition and violative of section 7 — 2a(b) of the Code in that respect. Patrick Toohill, Jr., the circulator of that sheet testified that Gaherity’s signature was actually executed on September 1, 1992, which would be “9-1-92.” The Regional Board found that signature was valid and we deem that decision fully supported by the evidence.

Accordingly, the number of signatures which can properly be rejected is 17, leaving the petitioners with a margin of eight more valid signatures than that required for dissolution by the terms of section 7—2a(b) of the Code.

Finally, objectors maintain that the petition was not bound and numbered as would be required by section 28 — 3 of the Election Code, which states that petitions shall be “bound securely and numbered consecutively.” (10 ILCS 5/28—3 (West 1992).) The petition here was not numbered consecutively but we hold that does not invalidate the petition when no statutory provision makes that a requirement of section 7—2a(b) petitions.

Accordingly, as we have indicated, we (1) affirm the order of the Regional Board on appeal and that of the circuit court of De Witt County affirming that order. We deny objectors’ motion of July 12,

1993, requesting that we declare the July 6, 1993, hearing of the Regional Board invalid.

Affirmed.

STEIGMANN, P.J., and McCULLOUGH, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE McCUSKEY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROGER D. SIFFORD, Defendant-Appellant.
    Third District
    No. 3—92—0781
    Opinion filed July 23, 1993.
    Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Larry VanDerSnick, State’s Attorney, of Cambridge (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE McCUSKEY

delivered the opinion of the court:

The defendant, Roger D. Sifford, pleaded guilty to indecent liberties with a child and was sentenced to a term of eight years’ imprisonment. He appeals. After reviewing the record and considering the defendant’s arguments, we reverse his conviction.

On August 30, 1990, the defendant was charged with two counts of aggravated criminal sexual assault and one count of aggravated criminal sexual abuse (Ill. Rev. Stat. 1991, ch. 38, pars. 12-14, 12-16).

On September 5, 1990, the State filed an amended information to reflect the law in effect at the time of the alleged conduct. The amended information charged the defendant with two counts of indecent liberties with a child (Ill. Rev. Stat. 1983, ch. 38, par. 11—4). It specifically alleged that the defendant committed one act of deviate sexual conduct in April 1984 and a second act between the summer of 1983 and the summer of 1984.

Following the imposition of sentence, the defendant wrote a letter to the trial judge stating that he wanted to appeal. The trial judge reappointed the defendant’s trial counsel. Defense counsel subsequently filed a motion to withdraw the guilty plea.

On October 6, 1992, a hearing was held on the motion. During his testimony, the defendant referred to an ex post facto violation. In arguing the motion, defense counsel stated that what the defendant meant by ex post facto was that the statute of limitations had run as to the indecent liberties charges. Defense counsel went on to state:'

“And today — I don’t remember; I thought I had checked that at one time — and now Judge McReynolds, but then the Public Defender, began representing him at the time when I think those analyses would have probably been made, and I notice that the amendment was made with the consent of the defendant to the Class 1, which, of course, benefits him.”

At the conclusion of the hearing, the trial court denied the defendant’s motion to withdraw the guilty plea.

On appeal, the defendant argues that he received ineffective assistance of counsel because he pleaded guilty to indecent liberties with a child after the statute of limitations for that offense had expired. We agree with the defendant’s argument.

The present statute of limitations for criminal offenses provides that for a handful of specified offenses, there is no limitation period. (Ill. Rev. Stat. 1991, ch. 38, par. 3—5(a).) Otherwise, there is a three-year limitation period for all other unspecified felonies, unless the limitation period is extended by section 3—6 of the Criminal Code of 1961. (Ill. Rev. Stat. 1991, ch. 38, par. 3—5(b).) The part of section 3 — 6 pertinent to the case at hand states:

“When the victim is under 18 years of age, a prosecution for criminal sexual assault, aggravated criminal sexual assault, criminal sexual abuse or aggravated criminal sexual abuse may be commenced within one year of the victim attaining the age of 18 years.” Ill. Rev. Stat. 1991, ch. 38, par. 3 — 6(d).

The defendant contends that because indecent liberties with a child is not specifically listed as an offense that is subject to an extended statute of limitations, the limitation period for his crime was three years. Consequently, the defendant argues that the applicable limitation period had expired when the defendant was charged. Again, we agree.

In response, the State argues that the legislature properly extended the statute of limitations for the charged offenses. The State submits that when section 3 — 6(d) took effect on August 15, 1986, the statute of limitations for the charged offenses had not expired. The State therefore contends that the extension was proper because the legislature has the power to extend the statute of limitations for an offense so long as the extension is accomplished prior to the expiration of the original limitations period. (People v. Anderson (1973), 53 Ill. 2d 437, 292 N.E.2d 364.) The State concedes that indecent liberties is not specifically listed in section 3 — 6(d). However, it submits that the extension was applied to indecent liberties through section 27 of Public Act 83— 1067 (Pub. Act 83—1067, §27, eff. July 1, 1984), which states:

“The provisions of this amendatory Act insofar as they are the same or substantially the same as those of any prior statute, shall be construed as a continuation of such prior statute and not as a new enactment.”

See Ill. Rev. Stat. 1991, ch. 38, par. 12—12.

We are not persuaded by the State’s argument. Here, the statutory language in sections 3 — 5 and 3 — 6 is certain and unambiguous. Therefore, we do not need to look elsewhere to discern the clear meaning of the statute. The statute must be applied as its plain language dictates. People v. Robinson (1982), 89 Ill. 2d 469, 433 N.E.2d 674.

Indecent liberties is not one of the specified offenses listed in section 3 — 5(a), nor is it listed in section 3 — 6(d) as an offense having an extended statute of limitations. (See People v. Strait (1977), 52 Ill. App. 3d 599, 367 N.E.2d 768.) Further, for the purposes of this appeal, we do not view any of the crimes enumerated in section 3 — 6(d) as a continuation of the indecent liberties charge. In this regard, we note that the State’s argument was implicitly rejected in the following cases, which held that the criminal sexual assault and abuse law of 1984 substantially changed the law governing sex offenses in Illinois. People v. Blake (1991), 221 Ill. App. 3d 586, 582 N.E.2d 183; People v. Fisher (1985), 135 Ill. App. 3d 502, 481 N.E.2d 1233.

The State further argues that defense counsel made a tactical decision not to raise a statute of limitations defense to the indecent liberties charge. In support of its argument, the State claims that the defendant could have been charged with a Class X felony for aggravated criminal sexual assault instead of the Class 1 felony of indecent liberties with a child.

The statute creating the offense of aggravated criminal sexual assault took effect on July 1, 1984. (Ill. Rev. Stat. 1985, ch. 38, par. 12—14.) However, the amended information states that the defendant’s crimes occurred between the summer of 1983 and the summer of 1984. In addition, the State did not charge aggravated criminal sexual assault in the amended information. Based on the foregoing, we disagree with the State’s contention that “it is quite likely that the last offense occurred after July 1, 1984.”

We further note that the decision to waive the statute of limitations must be knowingly made by the defendant and not by his attorney. (People v. Brocksmith (1992), 237 Ill. App. 3d 818, 604 N.E.2d 1059.) At the hearing on the motion to withdraw the guilty plfea, the defendant testified that he thought he had been wrongfully punished under an “ex post facto” law. Based on the record, it is apparent that the defendant did not concur in his attorney’s decision to waive the statute of limitations.

In addition, defense counsel did not expressly tell the court that a tactical decision was made to waive the statute of limitations. Counsel stated at the October 6, 1992, hearing that he thought he had “checked that at one time,” but he apparently could not recall what he had discovered. Counsel further noted that another attorney had represented the defendant “at the time when I think those analyses would have probably been made.” Therefore, after reviewing the record, it is unclear that the defendant’s attorney ever acquired sufficient information to make a tactical decision to waive the statute of limitations. Additionally, the record is clear that such a tactical decision was never discussed with the defendant.

In conclusion, we note that in order for a defendant to prevail on a claim of ineffective assistance of counsel, he must establish that: (1) counsel’s representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that but for counsel’s unprofessional errors, the results of the proceedings would have been different. Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.

Here, it is clear that the statute of limitations had expired for the offense of indecent liberties with a child. Also, the defendant could not have been legally prosecuted for the offenses of aggravated criminal sexual assault or aggravated criminal sexual abuse. Since the defendant was prosecution-proof, we cannot discern any trial strategy which would require the defendant to plead guilty to these offenses. Accordingly, we determine that the defendant was denied his constitutional right to effective assistance of counsel. Consequently, we reverse the defendant’s conviction for indecent liberties. As a result of our resolution of this issue, the defendant’s other arguments are moot.

For the reasons indicated, the decision of the circuit court of Henry County is reversed.

Reversed.

STOUDER and SLATER, JJ., concur.


author: JUSTICE COLWELL

text:
    ANTONIO LERMA, Special Adm’r of the Estate of Orlando Lerma, Deceased, et al., Plaintiffs-Appellants, v. ROCKFORD BLACKTOP CONSTRUCTION COMPANY et al., Defendants-Appellees.
    Second District
    Nos. 2—92—0962, 2—92—1234 cons.
    Opinion filed July 1, 1993.
    Modified on denial of rehearing August 13, 1993.

      Lawrence J. Ferolie and Frank A. Perrecone, both of Lawrence J. Ferolie & Associates, Ltd., of Rockford (Albert F. Ferolie, of counsel), for appellants.
    Stephen R. Swofford and D. Kendall Griffith, both of Hinshaw & Culbertson, of Chicago, and John A. Sandberg, of Thomas & Hinshaw, Culbertson, of Rockford (Bruce L. Carmen, of counsel), for appellee Belvidere Park District.
    Michael J. Chmiel, of Barrick, Switzer, Long, Balsley & Van Evera, of Rockford (Richard K. Van Evera, of counsel), for appellee Rockford Blacktop Construction Company.
   JUSTICE COLWELL

delivered the opinion of the court:

Plaintiffs appeal from orders of the Boone County circuit court dismissing their wrongful death actions against the Belvidere Park District (the Park District) and Rockford Blacktop Construction Company (Rockford Blacktop). In separate complaints, plaintiffs alleged negligence and willful and wanton misconduct on the part of the Park District and negligence on the part of Rockford Blacktop in the drowning deaths of decedents. The two cases have been consolidated for appeal. We affirm.

On May 12, 1991, at approximately 7 p.m., Orlando Lerma, age 11, and Adan Ramirez, age 14, entered the Kishwaukee River near a dam and drowned. Although accounts vary, a total of seven children may have been wading in the river and been pulled under by the current. The coroner’s report and the jury inquest indicate that adults rescued five of the children. Plaintiffs’ pleadings state only that the decedents drowned downstream of the dam while attempting to rescue another child who had also been playing in the river.

The incident occurred in Belvidere Park in Boone County where the Kishwaukee River flows through the park and is crossed by a dam. The State of Illinois owns the river and the dam. The Park District operates the dam under an agreement with the State. Under contract with the State, Rockford Blacktop was engaged in repair work on the dam in May 1991.

Plaintiffs alleged that unseen hazards in the river in the form of undercurrents or debris or both caused decedents’ deaths. The Park District, by the terms of its agreement with the State, controlled the flow of river water going over the dam or through its conduits. Plaintiffs maintained that operation of the dam’s conduits altered the natural flow of the river, creating dangerous undercurrents and undertows that were not visible from the surface of the water and that were capable of causing drowning by dragging a person under the water. When Blacktop began its work, it opened the conduits to prevent the water from flowing over the top of the dam. According to plaintiffs, the entire flow of the river was forced downstream through the conduits, creating dangerous undercurrents and undertows downstream from and near the dam. Plaintiffs also asserted that the river’s bottom was cluttered with metal and concrete debris from Rockford Blacktop’s construction project which could not be seen from the surface and in which a person could become entangled and drown.

Plaintiffs alleged that both the Park District and Rockford Blacktop knew of the hazards and failed either to provide adequate warning of the dangers to people entering the river or to prohibit entry all together in the vicinity of the dam. Moreover, the Park District was “in the business” of providing recreation and, according to the pleadings, “allowed and encouraged” park-goers to fish, boat, walk, wade, and swim in the river.

Both defendant Park District and defendant Rockford Blacktop filed motions to dismiss pursuant to section 2—615 of the Civil Practice Law (Ill. Rev. Stat. 1989, ch. 110, par. 2—615). Defendant Park District’s first argument, that the complaint failed to allege that the Park District owned or controlled the river, dam, or construction project at the time of the occurrence and that, therefore, the Park District owed no legal duty to plaintiffs, was rendered moot by plaintiffs’ amendments to the complaint, which alleged that the river and dam, while owned by the State at the time of the occurrence, were either “possessed, maintained, controlled or operated” by the Park District and continued to be so after the construction project began. In the alternative, plaintiffs’ amendments alleged that the Park District used the river and dam as part of its intended recreational purpose and such use was reasonably incident to the Park District’s use of its adjacent park.

Defendant Park District’s remaining arguments in its motion to dismiss were that the danger of drowning while swimming in a river near a dam is an open and obvious condition, for which no duty should be extended to the minor decedents; that plaintiffs' negligent counts are barred by the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1991, ch. 85, par. 3—106); and that plaintiffs’ willful and wanton misconduct counts failed to state a cause of action under section 1 — 210 of the Tort Immunity Act (Ill. Rev. Stat. 1991, ch. 85, par. 1—210).

Plaintiffs countered that the negligence counts were not barred by the Tort Immunity Act. Plaintiffs maintained that the Tort Immunity Act did not apply to conduct of the Park District involving the river and dam, because the Park District did not own the river and dam. Plaintiffs further argued that the amended complaint sufficiently alleged willful and wanton conduct based on the definition stated in the Tort Immunity Act.

Defendant Rockford Blacktop echoed the Park District’s argument that plaintiffs’ complaint failed to state a cause of action because Illinois law holds that the danger of drowning while swimming in a river near a dam is an open and obvious condition for which no duty should be extended from defendants to plaintiffs’ decedents. Plaintiffs later amended their counts against Rockford Blacktop to include allegations that Rockford Blacktop, as general contractor for the construction project, owed a duty to decedents to keep the construction site and its vicinity safe and that Rockford Blacktop was required by its contract with the State to post a warning sign in the location where the children were playing and the drowning occurred.

The question on appeal is whether plaintiffs’ pleadings state a cause of action. The trial court determined that they did not and granted both defendants’ motions to dismiss. We affirm.

When considering the sufficiency of a complaint dismissed pursuant to a section 2 — 615 motion, the reviewing court must determine whether the allegations in the complaint, when construed in the light most favorable to the plaintiff, are sufficient to set forth a cause of action upon which relief may be granted. (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 505.) If the complaint does not allege facts necessary to state a cause of action, the deficiency may not be cured by liberal construction. (Beckman v. Freeman United Coal Mining Co. (1988), 123 Ill. 2d 281, 287.) To avoid dismissal for failure to state a cause of action, the complaint must set out sufficiently every essential fact to be proved. (In re Beatty (1987), 118 Ill. 2d 489, 499.) Conclusions of law or fact unsupported by specific factual allegations are not taken as true. Burdinie, 139 Ill. 2d at 505.

To plead a sufficient cause of action in negligence, the plaintiff must allege the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by the breach. (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 140.) Where, as here, the defendant is a local public entity (see Ill. Rev. Stat. 1991, ch. 85, par. 1—206), the plaintiff must also plead that the proximate cause of the plaintiff’s injury was the governmental entity’s willful and wanton conduct, if the injury is based on the existence of a condition of public property used for recreational purposes. Ill. Rev. Stat. 1991, ch. 85, par. 3—106.

The definition of “public property” is found in section 3—106 of the Tort Immunity Act:

“ ‘[Pjroperty of a local public entity’ and ‘public property’ mean real or personal property owned or leased by a local public entity, but do not include easements, encroachments and other property that are located on its property but that it does not own, possess or lease.” (Ill. Rev. Stat. 1991, ch. 85, par. 3—101.)

Plaintiffs allege that decedents were engaged in recreational activities in the Kishwaukee River at the time they drowned but argue that because the river is owned by the State of Illinois and because the Park District does not have a formal lease with the State, the river is not “public property” as defined by section 3 — 101.

Section 3 — 101 is ambiguous on its face. On the one hand, “public property” must be “owned” or “leased”; on the other hand, certain property, which may or may not be owned by another entity, is also public property if it is merely in the possession of the local public entity on whose property it is located.

In construing a statute, no portion should be interpreted so as to be rendered meaningless (Harris v. Manor Healthcare Corp. (1986), 111 Ill. 2d 350, 362-63), and language is to be given the fullest rather than narrowest possible meaning to which it is susceptible. Lake County Board of Revenue v. Property Tax Appeal Board (1988), 119 Ill. 2d 419, 423.

Furthermore, a court must ascertain and give effect to the legislature’s intent in enacting the statute. (Kirwan v. Welch (1989), 133 Ill. 2d 163, 165.) A statute capable of two interpretations should be given that which is reasonable and which will not produce absurd, unjust or unreasonable results that the legislature could not have intended. (Mulligan v. Joliet Regional Port District (1988), 123 Ill. 2d 303, 312-13; People v. Williams (1987), 119 Ill. 2d 24, 28.) An interpretation that renders a statute valid is always presumed to have been intended by the legislature. Harris, 111 Ill. 2d at 363.

Plaintiffs contend that because the Tort Immunity Act is in derogation of the common-law action against local public entities, it must be strictly construed against the public entity involved. (Aikens v. Morris (1991), 145 Ill. 2d 273, 278.) However, plaintiffs’ construal of section 3 — 101 produces an unreasonable result. Under plaintiffs’ analysis, a party who does not own the property or does not have a formal lease will be liable for simple negligence, while a party with the greater dominion over property enjoyed by a landowner or lessee is liable only for willful and wanton misconduct. We do not believe the legislature intended this unjust disparity.

We believe the intent of the legislature here is to include all property owned, leased, or possessed by the public entity, including any encroachment, easement, or property of others which is located on its property. (See Kirnbauer v. Cook County Forest Preserve District (1991), 215 Ill. App. 3d 1013, 1021-22 (“public property” within the meaning of the statute includes an easement possessed by the public entity).) The Park District maintained all the incidents of a lease — possession, control, maintenance, and repair — albeit without the formality of a written lease.

The Park District exercised sufficient dominion over the river and dam to be liable for conduct related to the condition of that property. However, because we find that the river and dam fall under the statute’s definition of “public property,” we hold that the Park District is liable only for willful and wanton conduct related to the condition of the river and dam. Plaintiffs’ negligence counts against the Park District are, therefore, barred by the Tort Immunity Act.

Plaintiffs contend that their complaint adequately alleges willful and wanton misconduct on the part of the Park District. Section 1—210 of the Tort Immunity Act provides:

“ ‘Willful and wanton conduct’ as used in this Act means a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property.” Ill. Rev. Stat. 1991, ch. 85, par. 1—210.

Plaintiffs allege that, in spite of the Park District’s knowledge of the hidden undercurrents and debris and the dangers they presented, it failed to warn of the hazards or to prohibit or to restrict entry into the river at the hazardous locations. This court has held that to plead a cause of action sufficiently for willful and wanton conduct, a plaintiff must allege that a defendant engaged in a course of action that proximately caused the injury. Benhart v. Rockford Park District (1991), 218 Ill. App. 3d 554, 559.

In Benhart, this court determined that the plaintiff’s factual allegations were sufficient to establish a willful and wanton cause of action. In that case, the plaintiff lost her footing and fell when she was struck by a wave created by a wave machine in a pool operated by a public entity. The defendant park district had removed certain nonslip strips from the bottom of the pool. The plaintiff alleged that the defendant consciously disregarded its own knowledge that the protection these strips previously provided would be absent once it removed them. This court held that plaintiff’s allegations represented a course of action that proximately caused plaintiff’s injuries.

The distinction between the park district’s conduct in Benhart and defendant Park District’s conduct is one of action versus nonaction, commission as opposed to omission. Defendant Park District’s failure to act upon its alleged knowledge of dangers does not, we believe, demonstrate a course of action showing deliberate intention to cause harm or conscious disregard for the safety of others.

Alternatively, plaintiffs allege that a course of action can be found in the Park District’s “invitation” to park-goers to enter the river for recreational purposes. Plaintiffs’ attempt to establish a duty on the part of defendants by likening decedents’ status to that of a business invitee is unpersuasive. The common-law labels of trespasser, licensee, and invitee, as they relate to an injured child’s status, are no longer relevant in assessing liability. (Cope v. Doe (1984), 102 Ill. 2d 278, 285-86; Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 625.) It is therefore not significant if the Park District had invited park-goers to use the river for recreational purposes.

Because the facts as pleaded fail to state a cause of action, we affirm the trial court’s dismissal of plaintiffs’ allegations of willful and wanton misconduct on the part of defendant Park District.

Plaintiffs allege that defendant Rockford Blacktop owed decedents a duty of care because Rockford Blacktop was the general contractor of the dam repair project. It is true that a general contractor in control of the premises has a duty to keep its construction site safe and to keep itself informed as to its safety. (Ross v. Aryan International, Inc. (1991), 219 Ill. App. 3d 634, 651.) However, the nature of the danger is dispositive, and where, as here, the danger is open and obvious, no duty exists.

The customary principles of ordinary negligence must be applied to determine the liability of owners or parties in possession or control of premises upon which a child is injured. (Cope v. Doe, 102 Ill. 2d at 286, citing Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 326.) Foreseeability of harm to the child is the test for liability. (Kahn, 5 Ill. 2d at 625.) A duty that would not be imposed under ordinary negligence will be imposed where an owner or party in possession or control of premises “ ‘knows or should know that children frequent the premises and if the cause of the child’s injury was a dangerous condition on the premises.’ ” (Emphasis in original.) (Cope v. Doe, 102 Ill. 2d at 286, quoting Corcoran, 73 Ill. 2d at 326.) A dangerous condition is one which is likely to cause injury to children generally who, by reason of their age and immaturity, would not be expected to comprehend and avoid the attendant risks. Cope v. Doe, 102 Ill. 2d at 286.

It is well settled that if the condition complained of presents obvious risks that children would be expected to avoid, there is no duty to remedy that condition. (Cope v. Doe, 102 Ill. 2d at 286.) The rationale for the obvious risk rule is that “since children are expected to avoid dangers which are obvious, there is no reasonably foreseeable risk of harm. The law then is that foreseeability of harm to the child is the test for assessing liability; but there can be no recovery for injuries caused by a danger found to be obvious.” Cope v. Doe, 102 Ill. 2d at 286; Old Second National Bank v. Aurora Township (1987), 156 Ill. App. 3d 62, 68.

The Illinois Supreme Court has recognized that one of the obvious risks that children would generally be expected to appreciate and avoid is water:

“ ‘There are many dangers, such as those of fire and water, or of falling from a height, which under ordinary conditions may reasonably be expected to be fully understood and appreciated by any child of an age to be allowed at large.’ ” (Emphasis omitted.) (Cope v. Doe, 102 Ill. 2d at 286-87, quoting Restatement (Second) of Torts §339, Comment j, at 203 (1965).)

Circumstances under which open bodies of water have been found by Illinois courts to present obvious risks include playing on a partially frozen retention pond located in an apartment complex (Cope v. Doe (1984), 102 Ill. 2d 278; see also Weber v. Village of Carol Stream (1984), 129 Ill. App. 3d 628); drowning in a partially frozen man-made duck pond (Wingate v. Camelot Swim Club, Inc. (1990), 193 Ill. App. 3d 963); wading in a retention pond in which the depth of the water varied (Prince v. Wolf (1981), 93 Ill. App. 3d 505); inner-tubing in a floodwater ditch (Old Second National Bank, 156 Ill. App. 3d at 62); falling into a retention pond surrounded by prairie grass (Stevens v. Riley (1991), 219 Ill. App. 3d 823); and wading on a flooded sidewalk on the bank of a river (Christon v. Kankakee Valley Boat Club (1987), 152 Ill. App. 3d 202). In each of these cases, the defendant landowner was found not to owe a duty to a child old enough to be at large to protect against the dangers bodies of water pose.

Plaintiffs emphasize that the dangers decedents encountered — hazardous undercurrents, undertows, and debris — were subsurface and could not be appreciated or anticipated from the shore or even by entering the water. Plaintiffs cite Pasierb v. Hanover Park Park District (1981), 103 Ill. App. 3d 806, for support. In Pasierb, a child drowned after falling through a frozen pond when the surface was obscured by a layer of snow. Plaintiffs maintain that the concealed hazard in that instance was the ice on the pond. According to our reading of the case, the hidden dangerous condition on the land was the water itself. The court noted that it was impossible to discern the location of the creek and added “[w]e believe the risks involved in a completely concealed creek in a park are not the type ‘which children generally would be expected to recognize and appreciate.’ ” Pasierb, 103 Ill. App. 3d at 809, quoting Corcoran, 73 Ill. 2d at 328.

Apart from swimming pools, which our courts and the legislature have traditionally regarded differently from other bodies of water (Cope, 102 Ill. 2d at 288; see Ill. Rev. Stat. 1991, ch. lll1/2, par. 1201 et seq.), bodies of water are deemed to signal obvious danger to persons old enough to be at large precisely because of their unknown surface or subsurface elements. As this court has previously stated, “ ‘[c]learly, any body of water has the potential to contribute to a drowning. *** [T]he risk of drowning is one which children generally! ] would be expected to recognize.’ ” Old Second National Bank, 156 Ill. App. 3d at 69, quoting Prince v. Wolf (1981), 93 Ill. App. 3d 505, 509.

Plaintiffs attempt to distinguish the Cope line of cases by arguing that the instant case involved not a naturally occurring condition but one that was caused by the artificial creation of undertows or accumulated construction debris or by a combination of the two. The touchstone of liability in the line of cases spawned by Kahn v. James Burton Co. is not the distinction between natural or artificial but is instead the foreseeability of harm to children. (Pasierb, 103 Ill. App. 3d at 809.) We reiterate that it is a body of water per se that presents an obvious risk of drowning, not its attendant conditions, whether surface or subsurface, artificial or natural.

Plaintiffs further argue that the Cope line of cases has been modified by recent supreme court decisions holding that, despite a plaintiff’s knowledge of an obvious danger, owners and possessors of land may be held liable for injuries resulting from such dangers. The “ ‘obviousness’ of a condition or the fact that the injured party may have been in some sense ‘aware’ of it may not always serve as adequate warning of the condition and of the consequences of encountering it.” (Ward, v. K mart Corp. (1990), 136 Ill. 2d 132, 148-49.) The injured party in Ward was a customer who walked into a concrete post as he left a K mart store carrying a large mirror. The court found that even though some conditions may be “known” and “obvious,” defendant's duty may extend to such situations where the defendant can anticipate that a plaintiff may, whether from distraction or forgetfulness, fail to avoid the risk. Ward, 136 Ill. 2d at 156; see also Deibert v. Bauer Brothers Construction Co. (1990), 141 Ill. 2d 430 (a worker exiting a portable toilet may be distracted from a hole because of objects falling from above); American National Bank & Trust Co. v. National Advertising Co. (1992), 149 Ill. 2d 14 (a worker may be distracted from overhead power lines by the need to watch his feet on a narrow walk rail).

The Ward court stated that the relevant inquiry is “whether the defendant should reasonably anticipate injury to those entrants on his premises who are generally exercising reasonable care for their own safety, but who may reasonably be expected to be distracted, as when carrying large bundles, or forgetful of the condition after having momentarily encountered it.” Ward, 136 Ill. 2d at 152.

We do not believe this analysis applies to the risk of drowning in a body of water. A person who is generally exercising reasonable care for his own safety either does not enter a body of water for recreation, or, once in it, does not drown because he has become distracted or forgetful of the otherwise obvious danger. We believe it is not reasonably foreseeable to an owner or occupier of land that a person entering a body of water for recreation would somehow be distracted from the fact that he is in the water. We reiterate the holding of the Cope line of cases that a body of water is not a condition against which an owner or possessor of land must take precautions, because all persons old enough to be at large are expected to appreciate and avoid it.

We also find unpersuasive plaintiffs’ allegation that Rockford Blacktop owed a duty to decedents based on its contract with the State. The State contract called for a sign to be posted warning of hazardous currents and warning against entry into the spillway area. Plaintiffs argue that this provision of defendant’s contract created a duty to warn decedents and that defendant’s alleged failure to erect the sign was a breach of that duty.

The scope of a defendant’s duty is dependent on the terms of the contract. (Perkaus v. Chicago Catholic High School Athletic League (1986), 140 Ill. App. 3d 127, 134, citing Ferentchak v. Village of Frankfort (1985), 105 Ill. 2d 474, 482.) The contract in this case called for the installation of a single warning sign “in accordance with the plans and the Standard Specifications for Traffic Control Items,” to be located as indicated on the plans and as directed by the engineer. The sign was to read: “WARNING, Hazardous Currents Present, DO NOT Enter Spillway Area, Ill [sic] Div. of Water Resources.” It was to be posted 250 feet upstream of the dam. The sign was to be placed on the river’s levee and angled to face the river.

The Department of Transportation’s specifications imply to us that the sign was intended to warn approaching water traffic of the dangers posed by the construction work in the spillway area. Plaintiffs do not allege that decedents approached the dam via the river from 250 feet upstream. Rather, plaintiffs argue, without citing legal authority, that because decedents drowned in the spillway area, they were among the intended class of persons to be protected by the warning sign and that defendant, therefore, owed them a duty to erect the sign. We believe that, under the facts as alleged, whether the sign was actually installed is immaterial; the specifications for the sign absolve Rockford Blacktop from any duty to decedents based on its contract with the State.

For the above reasons, we affirm the orders of the circuit court of Boone County dismissing plaintiffs’ complaints against Belvidere Park District and Rockford Blacktop Construction Company for failure to state a cause of action.

Affirmed.

UNVERZAGT and WOODWARD, JJ., concur.


author: JUSTICE DOYLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN JOHNSON III, Defendant-Appellant.
    Second District
    No. 2—91—1156
    Opinion filed July 15, 1993.

      Rolfe F. Ehrmann, of Ehrmann, Gehlbach, Beckman & Lee, of Dixon, for appellant.
    Daniel A. Fish, State’s Attorney, of Dixon, Brian L. Buzard, of Mt. Morris, and Jay Wiegman, of Springfield (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DOYLE

delivered the opinion of the court:

Following a jury trial in the circuit court of Lee County, defendant, John Johnson III, was found guilty of two counts of aggravated battery. The first count charged battery to a school official while located on school grounds (Ill. Rev. Stat. 1991, ch. 38, pars. 12-3, 12—4(b)(3) (now 720 ILCS 5/12-3, 5/12 — 4(b)(3) (West 1992))), and the second count charged battery causing great bodily harm (Ill. Rev. Stat. 1991, ch. 38, pars. 12—3, 12—4(a) (now 720 ILCS 5/12—3, 5/12—4(a) (West 1992))). Defendant was sentenced on count II to 30 months’ probation, conditioned onf his serving a six-month jail term and payment of a $1,000 fíne, $682 in court costs, and $12,794.30 in restitution. Defendant filed a timely appeal of his conviction and sentence, raising the following issues: (1) whether the trial court erred in instructing the jury on the use of force by an initial aggressor; and (2) whether the trial court abused its discretion by imposing, as conditions of probation, a six-month jail term together with a fine, costs, and restitution.

The facts relevant to this appeal are as follows: Between 8 and 8:15 a.m. on May 12, 1991, George Taubenheim, the superintendent for the Ashton schools, and John Frattinger, the principal for the Ashton middle school, observed defendant drive a passenger car through a circular driveway in front of the school which was restricted to school bus use. Defendant had been occasionally employed as a substitute teacher for the Ashton school, and his wife, Rebecca Johnson, was a fifth-grade teacher at the Ashton school and also the president of the teachers’ union. Defendant drove through the driveway and into the school’s parking lot. Defendant went into the school’s office, picked up his wife’s paycheck, returned to the parking lot, and stopped to speak to a parent who was dropping off her children.

Several people were gathered near the school’s parking lot, including Gaye Smith, the school’s head cook; Debra Atkinson, an assistant cook; Connie Cater, a part-time school bus driver; Sherry Harris, a part-time bus driver; and Jack Krigbaum, the school’s custodian. Smith observed Mr. Taubenheim approach defendant. She testified that “[h]e looked upset like something was on his mind.” Smith stated that defendant and Mr. Taubenheim talked for a minute or two, and then defendant slapped Mr. Taubenheim’s face hard and with an open hand. Smith stated that Mr. Taubenheim appeared stunned, sort of turned away, and then turned back around. Smith then saw defendant strike Mr. Taubenheim in the mouth with a closed fist, causing him to fall down. Before he was struck the second time, Mr. Taubenheim raised his hands in front of him to try to block the punch. Smith stated that Mr. Taubenheim tried to get up from the ground, but defendant repeatedly kicked him in the upper chest area. Eventually, Mr. Taubenheim was able to get his hand on a mirror of a parked van and pull himself partially up, but defendant struck him in the eye with his fist causing Mr. Taubenheim to fall backwards “[l]ike a ton of bricks.” Smith stated that Mr. Taubenheim never made a fist, swung, or kicked at defendant.

Connie Cater stated that when Mr. Taubenheim walked out to where defendant was standing he appeared upset and in a hurry. Cater testified that defendant and Mr. Taubenheim talked for a minute or two, Mr. Taubenheim pointed his finger towards the front of the school where the buses unload, and then defendant slapped him. Mr. Taubenheim grabbed his face in surprise, and defendant hit him again, causing Mr. Taubenheim to fall to the ground. While Mr. Taubenheim was on the ground trying to get back up, defendant repeatedly kicked him. Cater testified that Mr. Taubenheim was finally able to get up, but defendant punched him one last time in the face, by his eye, causing Mr. Taubenheim to fall back onto the pavement. Cater stated that Mr. Taubenheim never raised a fist, swung, or kicked at defendant.

Susan Harris stated that when Mr. Taubenheim walked up to defendant he looked angry. She saw them talking in raised voices, and she stated that “Mr. Taubenheim’s hands were kind of up in [defendant’s] face.” Harris stated that his hands were open, and moving back and forth in front of defendant’s face. Harris testified that defendant hit Mr. Taubenheim in the face with his fist, causing him to fall backwards against a parked van. Defendant punched Mr. Taubenheim in the face again and kicked him in the chest. During this time Harris stated that Mr. Taubenheim was supporting himself against the van. She glanced away for a second, and when she looked back Mr. Taubenheim was on the ground. Harris stated that Mr. Taubenheim never raised a fist, swung, or kicked at defendant.

Debra Atkinson stated that when Mr. Taubenheim approached defendant, “[i]t looked like something was on his mind, bothering him.” The two began talking, and then Atkinson saw defendant slap Mr. Taubenheim. Mr. Taubenheim reacted by holding his face, and defendant continued to hit him again in the face, causing Mr. Taubenheim to fall to the ground. Defendant kicked Mr. Taubenheim in the stomach several times while he - was on the ground, and Atkinson saw Mr. Taubenheim try to block the kicks. After defendant stopped kicking, Mr. Taubenheim got up, and defendant punched him in the eye. After being struck Mr. Taubenheim fell straight backwards, and Atkinson heard his head strike the pavement. Atkinson testified that Mr. Taubenheim never raised a fist, swung, or kicked at defendant.

Jack Krigbaum testified that he saw Mr. Taubenheim and defendant talking in the parking lot but did not see the fight start. The only things Krigbaum overheard were Mr. Taubenheim saying, “John, John,” and defendant saying, “You S.O.B.” He stated that he heard a couple of smacks, turned around and saw Mr. Taubenheim trying to straighten up against a van. Although Krigbaum did not see what caused Mr. Taubenheim to fall against the van, he stated that defendant was pretty close to Mr. Taubenheim, and no one else was in the area at that time. Krigbaum testified that as Mr. Taubenheim began to straighten up defendant got close to him again and punched him in the face, causing Mr. Taubenheim to fall to the pavement. Krigbaum described the sound of Mr. Taubenheim’s head striking the pavement as “just real loud.” Krigbaum stated that he went out to the parking lot and “told [defendant] to back off; he had enough, so [defendant] backed off.”

George Taubenheim stated that he and Frattinger observed defendant drive his vehicle through the restricted driveway while children were present. Taubenheim eventually went through the cafeteria, out the back door and walked over to where defendant was standing in the parking lot. Taubenheim said to defendant, “I’d like to have a moment of your time please to talk to you concerning our posted sign prohibiting traffic through the driveway between 8:00 and 8:30.” He then informed defendant about the signs, and defendant tried to explain that he was unaware of the signs and any restrictions concerning the driveway. Taubenheim testified that he pointed to the signs and informed defendant “that we would like to keep traffic out of the driveway because of the safety of the kids *** if you persist in doing this I will have to call the Sheriffs Department and notify them of the incident.” Taubenheim stated that the only movement he made with his hands was to point over defendant’s shoulder at the posted sign located behind him. Taubenheim stated that the next thing that occurred was defendant either slapping or punching him. Taubenheim responded, “What the hell do you think you’re doing,” and the next thing he remembered was waking up in the hospital. Taubenheim denied ever raising a fist, swinging, or kicking at defendant.

Defendant admitted driving through the restricted driveway, parking his car in the school’s lot, going to the school’s office, picking up his wife’s paycheck, and returning to the parking lot. He testified that he passed Mr. Taubenheim when he was inside the school, but neither spoke to the other. When he returned to the parking lot, he spoke with a parent dropping off her children for school. Defendant stated that when he turned to head towards his car, Mr. Taubenheim was standing 10 to 15 feet away from him. Mr. Taubenheim made a comment about the restricted parking zone, and defendant testified, “I kind of just sloughed him off. I said, you know, so what.” Defendant stated that Mr. Taubenheim looked really angry, and “[h]e came kind of rushing at me and he was, you know, in an outrage type attitude and I just couldn’t understand why.” Defendant stated that Mr. Taubenheim’s hands were open and up in front of him at chest height, about shoulder width apart. Defendant testified that Mr. Taubenheim came “[ejxtremely close and in the manner he was approaching me I thought for sure he was going to lay hands on me or hit me. *** Well, when he got right in my face or real close within, you know, say maybe a foot or two I took a swing and hit him.”

Defendant denied initially slapping Taubenheim, stating that he cocked his arm before delivering the initial punch. Defendant testified that Mr. Taubenheim backed up and came at him again. Defendant admitted punching Taubenheim a second time, knocking him to the ground. Defendant testified that he told Mr. Taubenheim, “Stay down,” but when Mr. Taubenheim continued to try to get up, defendant “kicked him in the butt.” After being kicked, Mr. Taubenheim continued to try to get up, so defendant hit him one more time, after which “[h]e fell back and he didn’t try to get up any more so I didn’t try to — I didn’t pursue it any more.” Defendant admitted that Mr. Taubenheim never struck him, cocked his arm back as if to swing at him, or swung his leg back as if to kick at him.

At the jury instruction conference defendant proposed that the following instruction be given to the jury on self-defense: “A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force.” The court refused this proposed instruction, giving instead court’s instruction No. 1, which stated as follows:

“A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of force.
However, a person is justified in the use of force which is intended or likely to cause great bodily harm only if he reasonably believes that such force is necessary to prevent great bodily harm to himself or another.” See Illinois Pattern Jury Instructions, Criminal, No. 24—25.06 (2d ed. 1981) (hereinafter IPI Criminal 2d).

Over defense objection, the court also gave court’s instruction No. 2:

“A person who initially provokes the use of force against himself is justified in the use of force if the force used against him is so great that he reasonably believes he is in imminent danger of great bodily harm, and he has exhausted every reasonable means to escape the danger other than the use of force which is likely to cause great bodily harm to the other person.” See IPI Criminal 2d No. 24 — 25.09[1].

Over defense objection, the trial court also gave State’s instruction No. 20:

“A person is not justified in the use of force if he initially provokes the use of force against himself with the intent to use that force as an excuse to inflict bodily harm upon the other person.” IPI Criminal 2d No. 24 — 25.11.

The jury returned guilty verdicts on both counts of the complaint. The trial court subsequently entered judgment on count II and sentenced defendant to a term of 30 months’ probation with conditions including: (1) a six-month jail term, and (2) a fine of $1,000, court costs of $682, and restitution of $12,794.30.

Defendant claims that the trial court erred in instructing the jury and permitting the State to argue that defendant had a duty to exhaust every reasonable means of escape before his own use of force. The State responds that the trial court properly instructed the jury on the issue of self-defense.

Initially, we note that defendant’s proposed self-defense instruction was wholly inapplicable to the circumstances of this case. Count II of the complaint charged that defendant knowingly, and without legal justification, committed a battery to Mr. Taubenheim causing great bodily harm. The nature and elements of this charge required that the jury be instructed as to what circumstances would justify defendant’s use of force likely to cause great bodily harm. Defendant’s tendered self-defense instruction was incomplete in this regard. Thus, not only was the trial, court correct in giving IPI Criminal 2d No. 24—25.06 with the second paragraph, but also it would have been error to do otherwise. The instruction given properly advised the jury of the law of justifiable use of force as set out in section 7—1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 7-1 (now 720 ILCS 5/7-1 (West 1992))).

The next question is whether it was also proper for the trial court to give court’s instruction No. 2 (IPI Criminal 2d No. 24— 25.09), which requires a person who has initially provoked the use of force against himself to exhaust reasonable means of escape before responding to the force used against him. Defendant’s argument on appeal initially suggests that, by giving this instruction, the trial court implicitly instructed the jury that defendant was the initial aggressor. We disagree. The testimony at trial reflects some dispute concerning which of the two men was the initial aggressor. It is undisputed that defendant struck the initial blows and that he administered additional blows to Taubenheim during the course of the altercation. Defendant, on the other hand, claimed a justification for defending himself, first, as an angry Taubenheim initially came toward him and, later, as Taubenheim attempted to return to a standing position.

The jury is the sole judge of the credibility of the witnesses and the weight and sufficiency of the evidence, and it is responsible for resolving any factual disputes which arise therefrom. (People v. Hendricks (1990), 137 Ill. 2d 31, 65.) Identifying the initial aggressor was a factual question for the jury to resolve. (See People v. Crue (1977), 47 Ill. App. 3d 771, 773-74.) Further, it was for the jury to consider whether defendant’s actions were likely to cause great bodily harm, and, if so, whether they were taken in self-defense based upon a reasonably perceived, imminent danger of great bodily harm. The jury might have believed from the evidence that defendant’s actions provoked Taubenheim to threaten the use of force at some point during the incident. When there is a question as to whether a defendant or the victim was the initial aggressor, it is appropriate to give this instruction, and to do so does not erroneously assume that the defendant was the initial aggressor. Where, as in the present case, it is given with an additional instruction concerning justifiable use of force principles, the jury is able to resolve the issues under either hypothesis. See People v. Ellis (1982), 107 Ill. App. 3d 603, 614.

Section 7 — 4(c)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 7-4(c)(l) (now 720 ILCS 5/7-4(c)(l) (West 1992))) provides that the defense of justifiable use of force is not available to a person who initially provokes the use of force against himself, with the intent to use such force as an excuse to inflict bodily harm upon the assailant; or otherwise initially provokes the use of force against himself, unless “[sjuch force is so great that he reasonably believes that he is in imminent danger of death or great bodily harm, and that he has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant.” Although defendant relied at trial on a claim of defense of his person, he now presents on appeal the unique contention that section 7 — 4(c)(1) was inapplicable in the present case and that it was error for the court to instruct the jury upon it, because Taubenheim never employed any force against defendant during the incident. Defendant apparently argues that this section applies only to instances in which combatants mutually exert actual physical force against one another. The only authority defendant offers in support of his argument is a general reference to People v. Townsend (1985), 136 Ill. App. 3d 385, and Ellis (107 Ill. App. 3d 603). We find nothing in either case that provides even remote support for defendant’s restrictive reading of section 7 — 4(c)(1).

The law provides, and defendant concedes, that if an initial aggressor commits a battery to another individual, and this victim responds by exerting actual force against the aggressor, then the aggressor is justified in employing further force in self-defense only if he is threatened with death or great bodily harm and has no reasonable means of escape. But, under defendant’s perception of the law, if the victim does not exert force, but only threatens retaliation, the aggressor would be lawfully justified in continuing his assault with no additional duty to first retreat. Such an interpretation would punish victims who, through self-restraint or incapacity, threaten to respond but fail to inflict injury upon their assailants. It is clear from both legislative commentary and case law that section 7 — 4(c)(1) encompasses threats of force as well as the actual exertion of force. (See Ill. Ann. Stat., ch. 38, par. 7—4, Committee Comments — 1961, at 400 (Smith-Hurd 1989) (“Each of the three preceding sections of this article [720 ILCS 5/7—1 to 5/7—3 (West 1992)] has assumed that the person using force in defense has not commit-, ted an unlawful act which has inspired the use or threat of force against him, and has not otherwise provoked such force”) (emphasis added); People v. Barnett (1977), 48 Ill. App. 3d 121, 123-25; Crue, 47 Ill. App. 3d at 773-74.) The statute’s use of the phrase “imminent danger of death or great bodily harm” further corroborates our interpretation. (Emphasis added.) Ill. Rev. Stat. 1991, ch. 38, par. 7—4(c)(1) (now 720 ILCS 5/7-4(c)(l) (West 1992)).

In the present case, defendant argued to the jury that because of Mr. Taubenheim’s size, angry manner, and continued attempts to rise during the heat of the altercation, defendant could reasonably believe himself to be in imminent danger of an unlawful use of force by Taubenheim likely to cause great bodily harm. In view of the strong evidence supporting the State’s position that defendant was the initial aggressor, we conclude that the jury would not have been equipped to evaluate this defense argument without the guidance of an instruction explaining the legal limitations on the right of an initial aggressor to exert force in response to retaliatory efforts by the victim. Had the trial court not given court’s instruction No. 2 (IPI Criminal 2d No. 24 — 25.09), the applicable law would have been misstated, and the jury might have mistakenly concluded that it could acquit defendant on count II by a mere finding that at the moment of striking the particular blow which inflicted great bodily harm defendant reasonably believed that the force he used against Taubenheim was necessary to prevent imminent great bodily harm to himself, regardless of whether defendant was the initial aggressor. Thus, contrary to defendant’s assertions, the principles of section 7 — 4(c)(1) were applicable under the facts presented in this case, and court’s instruction No. 2 was appropriately given.

Defendant also contends that the trial court erred by giving State’s instruction No. 20 (IPI Criminal 2d No. 24—25.11) because it was “inapposite to the facts of the instant case.” This instruction stated: “A person is not justified in the use of force if he initially provokes the use of force against himself with the intent to use that force as an excuse to inflict bodily harm upon the other person.” (IPI Criminal 2d No. 24—25.11.) Specifically, defendant argues again that no evidence was presented of any force by Mr. Taubenheim against defendant. Although we have already rejected this reasoning in discussing a related issue, we further note that defendant failed to raise this issue in his post-trial motions. As recently reemphasized by the Illinois Supreme Court in People v. Ward (1992), 154 Ill. 2d 272, to preserve properly an issue for review, both a trial objection and a written post-trial motion raising the issue are required. The failure to so preserve the issue operates as a waiver of the right to raise the issue on review. (Ward, 154 Ill. 2d at 293.) We conclude that defendant has waived this point for review. In any event, we note parenthetically that the trial court correctly gave this instruction in view of the witnesses’ accounts of defendant’s initially slapping Mr. Taubenheim.

Defendant also argues that the trial court abused its discretion in imposing a sentence of probation including “mixed” conditions of a six-month jail term and payment of a fine, costs and restitution. The central thrust of defendant’s argument is that the total amount of the fine, costs, and restitution exceeds his ability to pay, given that he earns only $1,880 a month for 10 months a year as a school teacher and has expenses of $1,864 a month, and because he will likely lose his job if forced to serve a six-month jail term, and will accordingly be unable to pay. The State responds by noting that the defendant posted a $2,500 bond which was ordered to be deducted from the total amount he owes. It argues, therefore, that defendant has exaggerated the amount which must be paid and that the trial court sentence was properly imposed.

Defendant concedes that the determination and imposition of a sentence has long been held to be a matter resting within the sound discretion of the trial court, and the standard of review is whether the trial court abused its discretion in imposing the sentence. (People v. Younger (1986), 112 Ill. 2d 422, 427; People v. Kaminski (1993), 246 Ill. App. 3d 77, 83.) As noted by both the State and defendant, an order of restitution is not rendered invalid merely because a defendant is also ordered to serve a jail term. (People v. Lambert (1990), 195 Ill. App. 3d 314, 334.) Restitution is intended to provide crime victims with compensation while a defendant is on probation and is able to work. (People v. Rupert (1986), 148 Ill. App. 3d 27, 29.) Between the date of the incident underlying this case and the sentencing hearing, held less than five months later, defendant demonstrated that he is capable of obtaining gainful employment by securing a job as a school teacher in Houston, Texas. We also note that defendant has been given until the end of the probationary period to pay the fine, costs, and restitution. Although defendant’s sentence will result in some hardship, it does not impose an impossible financial burden. (See Rupert, 148 Ill. App. 3d at 29.) We cannot say, in light of the seriousness of this offense and the substantial harm and cost which it imposed upon Mr. Taubenheim, that the court abused its discretion in sentencing defendant.

For the foregoing reasons, the judgment of the circuit court of Lee County is affirmed.

Affirmed.

INGLIS, P.J., and COLWELL, J., concur.


author: PRESIDING JUSTICE INGLIS

text:
    KENNETH CULVER et al., Plaintiffs-Appellants, v. SARAH VELCOR et al., Defendants-Appellees.
    Second District
    No. 2—92—1063
    Opinion filed July 15, 1993.
    Walter D. Braud and Duane Thompson, both of Braud/Warner, Ltd., of Rock Island, for appellants.
    Sarah Hansen Sotos and John J. Kohnke, both of Knight, Hoppe, Fanning & Knight, Ltd., of Des Plaines, for appellee.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Plaintiffs, Kenneth Culver, Jackie Culver and Olive Culver, appeal after the trial court dismissed that portion of their complaint, counts IV, V and VI, filed against defendant, Jo Daviess County (the county). Sarah Velcor (correctly spelled Velsor) is a defendant not participating in this appeal. Plaintiffs contend that the trial court erred in allowing the county’s motion to dismiss pursuant to section 2 — 615 of the Civil Practice Law (the Code) (Ill. Rev. Stat. 1991, ch. 110, par. 2—615 (now 735 ILCS 5/2-615 (West 1992))).

The well-pleaded facts are taken as true and are taken from counts IV, V and VI of plaintiffs’ first amended complaint. On or about July 1, 1990, plaintiffs were driving in a westerly direction on Council Hill Road in Galena, Jo Daviess County. At the intersection of Council Hill Road and Route 84, plaintiffs’ vehicle collided with Velsor’s vehicle, which was traveling in a northerly direction on Route 84. Prior to July 1, 1990, there was a stop sign for westbound travelers on Council Hill Road at Route 84, which did not exist on that date because it had been knocked down or removed.

Plaintiffs further alleged that the county is a municipal corporation that owned, controlled and maintained certain roads, particularly Council Hill Road. Plaintiffs alleged that the county had a duty, pursuant to section 11 — 304 of the Illinois Rules of the Road (Ill. Rev. Stat. 1989, et. 951/2, par. 11-304 (now 625 ILCS 5/11-304 (West 1992))), to maintain and post traffic signs to notify the motoring public of dangerous conditions that exist on the roadway. The county had been notified by a county resident 48 hours before the accident in question that the stop sign was down. Plaintiffs claimed that the county breached one or more of the following duties:

“a. Failed to put a stop sign in the appropriate location on or before the intersection with Route 84 or to notify the State of Illinois that the stop sign was down;
b. Failed to take temporary emergency measures to notify the motoring public of the down stop sign;
c. Failed to make the roadway reasonably safe for the traveling public at the aforesaid location.”

As a proximate cause of the county’s alleged negligence, all three plaintiffs were severely injured.

The county then filed a motion to dismiss counts IV, V and VI of plaintiffs’ first amended complaint. The county contended that the State of Illinois was responsible for erecting and maintaining stop signs at the intersection of Council Hill Road and Route 84; that the first amended complaint failed to contain sufficient facts to state a cause of action; that the statute cited by plaintiffs does not create a duty owed by the county to plaintiffs; that the county owed plaintiffs no duty to initially post traffic signs, make improvements or warn of the condition complained of; and that the county is immune from liability under the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act) (Ill. Rev. Stat. 1989, ch. 85, par. 1—101 et seq. (now 745 ILCS 10/1—101 et seq. (West 1992))).

After hearing arguments from both parties, the trial court noted that the factual situation was identical to that in Dinges v. Gabardi (1990), 202 Ill. App. 3d 732, in which this court found that Kane County had a duty to warn of the dangerous condition. The trial court further noted that Dinges was modified by Castoreña v. Browning-Ferris Industries (1991), 217 Ill. App. 3d 328, which held that a public entity is immune from liability for initially failing to warn of a dangerous condition unless the public entity had prior notice of the dangerous condition. Because the trial court found that the county had a “common law” duty to warn of a dangerous condition when it had actual notice that a dangerous condition existed, the trial court denied the county’s motion to dismiss counts IV, V and VI of plaintiffs’ first amended complaint, but struck certain portions of the pleading. The trial court also certified a question of law, the applicability of sections 3 — 104 of the Tort Immunity Act, pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308), if proper application was made by the parties to appeal to the supreme court.

The county then filed a motion to reconsider in light of West v. Kirkham (1992), 147 Ill. 2d 1, a supreme court case that the county contended virtually overruled the Dinges case. The trial court held that West and Wood v. Village of Grayslake (1992), 229 Ill. App. 3d 343, “effectively eliminated” the rationale relied upon by the trial court when it denied the county’s motion to dismiss. Thus, the trial court, on reconsideration, granted the county’s motion to dismiss counts IV, V and VI of plaintiffs’ first amended complaint. After the trial court ordered that there was no just reason for delaying enforcement or appeal of that order, plaintiffs filed a timely notice of appeal.

Plaintiffs contend that immunity is unavailable to the county because it has a duty to warn motorists of dangerous conditions and to maintain roads in a reasonably safe condition. Section 3 — 104 of the Tort Immunity Act only provides immunity to public entities that initially fail to provide traffic control devices or warning signs. Plaintiffs argue that this section does not provide immunity if the county fails to warn of a defective condition, in this case a downed stop sign. They claim that the case law that exists following the Dinges decision does not affect the county’s duty to warn of a defective condition.

The county contends that it had no duty to warn motorists traveling westbound on Council Hill Road that the State failed to maintain its stop sign. Further, it argues that the cases decided after Dinges, particularly the West case, interpret section 3 — 104 of the Tort Immunity Act to provide absolute immunity to public entities for failure initially to provide traffic control devices, even when the failure might endanger the safe movement of traffic. The county claims that notice, or the lack of it, is irrelevant under that section of the Act.

A motion brought under section 2—615 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2—615 (now 735 ILCS 5/2—615 (West 1992))) admits all well-pleaded facts and reasonable inferences drawn therefrom. (Boender v. Chicago North Clubhouse Association, Inc. (1992), 240 Ill. App. 3d 622, 627.) The reviewing court must determine whether the allegations in the complaint are sufficient to state a cause of action when viewed in the light most favorable to the plaintiffs. (Packard v. Rockford Park District (1993), 244 Ill. App. 3d 643, 648.) “A complaint should not be dismissed for failure to state a cause of action unless it clearly appears that no set of facts could be proved under the allegations which would entitle the party to relief.” Geick v. Kay (1992), 236 Ill. App. 3d 868, 873.

Section 3 — 104 of the Tort Immunity Act provides:

“Neither a local 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.” Ill. Rev: Stat. 1991, ch. 85, par. 3-104 (now 745 ILCS 10/3-104 (West 1992)).

We begin our analysis with Dinges (202 Ill. App. 3d 732), a case which the parties agree is factually identical to the case at hand. One of the issues on appeal in Dinges was whether Kane County had a duty to warn motorists of a downed stop sign that was maintained by the State and located in a right-of-way purchased by the State Department of Transportation. (Dinges, 202 Ill. App. 3d at 733, 735.) Relying in part on Janssen v. City of Springfield (1980), 79 Ill. 2d 435, 444-45, this court found that the duty to warn motorists of hazards adjacent to the roadway, even if the public entity did not control the hazard itself, did not arise from section 3—104 of the Tort Immunity Act, but from the common-law duty to maintain roads in a reasonably safe condition. (Dinges, 202 Ill. App. 3d at 736.) We also concluded that section 3 — 104 of the Tort Immunity Act was “virtually identical” to subsection “a” of the prior version of section 3—104, amended effective November 25, 1986, which provided:

“Neither a local 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 regulatory signs.” (Ill. Rev. Stat. 1985, ch. 85, par. 3—104(a).)

Thus, we concluded that immunity was not available to Kane County for failing to warn of a condition which endangered the safe movement of traffic. Dinges, 202 Ill. App. 3d at 737.

If the Dinges case stood alone as the only relevant authority on the applicability of section 3 — 104 to our factual situation, plaintiffs’ cause of action against the county clearly would survive a motion to dismiss. However, Dinges has been criticized, questioned, and adversely discussed in a number of cases, beginning with the dissent in Dinges. Justice Geiger, in dissent, noted that the amendment to section 3 — 104 of the Tort Immunity Act deleted a provision in section 3 — 104(b) providing that “immunity was available ‘unless such a signal, sign, marking or device was necessary to warn of a condition which endangered the safe movement of traffic.’ ” (Dinges, 202 Ill. App. 3d at 739 (Geiger, J., dissenting), quoting Ill. Rev. Stat. 1985, ch. 85, par. 3—104(b).) Thus, under the current version of section 3— 104, immunity would be provided even if the traffic sign is necessary to warn of a condition which endangers this safe movement of traffic. Justice Geiger further noted that the common-law duty to maintain safe roadways does not encompass the duty to warn of a downed stop sign in the control of another public entity. The State’s negligence could not result in the creation of a duty on the part of Kane County to warn of the dangerous condition caused by the State. Dinges, 202 Ill. App. 3d at 739-40 (Geiger, J., dissenting).

An expansive view of the immunity provided by section 3—104 of the Tort Immunity Act continued in Newsome v. Thompson (1990), 202 Ill. App. 3d 1074. There, the Appellate Court, First District, found that public entities are immune under section 3—104 “for failing to provide traffic-separating devices or barriers or warning signs of any kind.” (Emphasis added.) (Newsome, 202 Ill. App. 3d at 1078.) No attempt was made to interpret the meaning or intent of the word “initially” in section 3—104.

In Fitt v. City of Mattoon (1991), 215 Ill. App. 3d 472, an accident occurred at the intersection of a State route and county road partly controlled by the City of Mattoon. The State controlled the traffic signs at the intersection. (Fitt, 215 Ill. App. 3d 475-77.) The reviewing court found that section 3 — 104 provided the city with the “complete defense of immunity from liability to plaintiff for failure to [post warning signs].” (Emphasis added.) (Fitt, 215 Ill. App. 3d at 481.) The court explicitly declined to follow Dinges and followed the Newsome court’s broad interpretation of section 3—104 to provide immunity for failure to post any traffic warnings. (Fitt, 215 Ill. App. 3d at 482-83.) However, this was not a case where a previously existing traffic sign was down, but was a case where the plaintiff believed the existing traffic signs were inadequate.

Our court then addressed the Dinges rationale in Castorena v. Browning-Ferris Industries (1991), 217 Ill. App. 3d 328. There, the plaintiff's vehicle collided with a Browning-Ferris dumpster on a roadway controlled by the City of Elmhurst. (Castorena, 217 Ill. App. 3d at 329.) The trial court directed a verdict for the city based on section 3—104 of the Tort Immunity Act. (Castorena, 217 Ill. App. 3d at 333.) On review, we reversed the directed verdict because “section 3—104 only provides immunity for the failure initially to provide such [warning] signs.” (Emphasis added.) (Castorena, 217 Ill. App. 3d at 334.) Because the city had notice that another driver had struck the dumpster, the need for warning signs was known and section 3—104 immunity was no longer available. To the extent that this interpretation of section 3—104 was different from that in Dinges, the Dinges holding was modified. (Castorena, 217 Ill. App. 3d at 334.) Castoreña interpreted the word “initially” in section 3—104 to protect public entities from liability for dangerous conditions that existed only before the public entity had notice of such conditions. As we will discuss shortly, this rationale had limited viability.

The debate reached our supreme court in West v. Kirkham (1992), 147 Ill. 2d 1. The issue on appeal was whether the City of Urbana was immune from liability under section 3—104 for failing to provide a left-turn arrow for southbound traffic at the intersection where the collision between the parties occurred. (West, 147 Ill. 2d at 5.) In holding that the city was immune for initially failing to provide a left-turn arrow, the supreme court stated that the word “initially” in section 3—104 does not mean that liability will attach if the public entity is on notice that the lack of a traffic control device created a dangerous condition. (West, 147 Ill. 2d at 6.) Because the language of section 3—104 is unconditional and contains no notice provision, the court held that “section 3 — 104 clearly and unequivocally states that the municipality is immune from all liability arising out of the failure to provide a particular traffic control device.” (Emphasis in original.) (West, 147 Ill. 2d at 7.) Further, the legislative history demonstrated to the court that section 3 — 104 provided absolute liability for failing initially to provide traffic control devices, even when the safe movement of traffic is endangered. West, 147 Ill. 2d at 8.

The case law following West further supports its broad interpretation of section 3—104 of the Tort Immunity Act. In Wood v. Vil lage of Grayslake (1992), 229 Ill. App. 3d 343, this court again discussed the “unsettled issue” of the extent to which section 3 — 104 of the Tort Immunity Act limits a public entity’s common-law duty to warn motorists of hazardous roadway conditions. (Wood, 229 Ill. App. 3d at 352.) After reviewing the case law discussed above, this court found that section 3 — 104 exclusively governs the duty to provide traffic control devices, and not the duty to maintain such devices. (Wood, 229 Ill. App. 3d at 354.) We also overruled both Janssen and Dinges, based on West, to the extent that those cases relied on the prior version of section 3—104. Wood, 229 Ill. App. 3d at 354.

In Milder v. Van Alstine (1992), 230 Ill. App. 3d 869, the Appellate Court, Third District, followed the West case and interpreted section 3—104 as providing absolute immunity to public entities for failing initially to provide traffic control devices. (Milder, 230 Ill. App. 3d at 872.) Additionally, the Milder court discussed the Castoreña case and its conclusion that immunity no longer applied if the public entity had notice of the dangerous condition. (Milder, 230 Ill. App. 3d at 873.) However, the court noted that our supreme court remanded Castoreña for renewed consideration in light of the West decision (Castoreña v. Browning-Ferris Industries (1992), 144 Ill. 2d 631), which it viewed as an indication that Castoreña was no longer viable. Milder, 230 Ill. App. 3d at 874.

In Castorena (237 Ill. App. 3d 702) (Castorena II), this court abandoned the rationale that there was a notice exception to section 3 — 104 and held that the City of Elmhurst was immune for failing to provide a warning sign. (Castorena II, 237 Ill. App. 3d at 704.) We specifically followed the West court’s interpretation of section 3—104. Castorena II, 237 Ill. App. 3d at 704.

Although the West case is factually distinguishable from our case, our supreme court’s declaration of immunity under section 3— 104 of the Tort Immunity Act is unequivocally broader than this court’s interpretation of section 3—104 in Dinges. We are bound by its interpretation that section 3—104 of the Tort Immunity Act provides public entities with immunity from all liability for failing to provide traffic control devices, including warning signs. (West, 147 Ill. 2d at 7.) The West court found that such a broad interpretation of section 3 — 104 “better serves the policy behind the Tort Immunity Act *** to ‘protect local public entities and public employees from liability arising from the operation of government.’ (Ill. Rev. Stat. 1987, ch. 85, par. l-101.1(a).)” (West, 147 Ill. 2d at 11.) The “operation of government” includes the public entity’s decision-making power to provide traffic control devices on property it" maintains or to provide signs to warn of downed traffic control devices on property maintained by another entity. As such, plaintiffs’ attempt to distinguish a public entity’s discretionary decision-making function from its common-law duty to warn of known dangers on or adjacent to its roadways is unpersuasive in light of the existing law.

Plaintiffs allege that the county was negligent for failing to put a stop sign in the appropriate location or failing to notify the State of the downed stop sign; failing to warn the motoring public of the downed stop sign; and failing to make the roadway reasonably safe. It is undisputed that the State had the duty to maintain traffic control devices at the intersection of Route 84 and Council Hill Road. Thus, the plaintiffs’ injuries did not result from the county’s failure to maintain the intersection. Because the county had no duty to maintain and because we are unaware of any duty on the part of the county to notify the State of a problem on State-controlled property, the county’s duty to motorists was to warn them of the dangerous condition by providing some type of warning device on Council Hill Road. However, section 3 — 104 of the Tort Immunity Act immunizes the county from liability for failing initially to provide a warning sign. Even if the county is notified of the dangerous condition, the county receives immunity when deciding not to provide a sign warning of a dangerous condition. We hold that the trial court did not err in dismissing counts IV, V and VI of plaintiffs’ first amended complaint based on section 3 — 104 of the Tort Immunity Act, as interpreted by our supreme court in West.

The order of the circuit court of Jo Daviess County dismissing counts IV, V and VI of plaintiffs’ first amended complaint is affirmed.

Affirmed.

GEIGER and DOYLE, JJ., concur.