author: PRESIDING JUSTICE GREEN

text:
    JIMMIE LEE SPIRES, Plaintiff-Appellant, v. MOONEY MOTORS, INC., Defendant-Appellee.
    Fourth District
    No. 4—91—0742
    Opinion filed June 18, 1992.

      Gary J. Stokes, of Georgetown, for appellant.
    Gregory G. Lietz, of Hutton, Laury, Hesser, Lietz & Wilcox, of Danville, and Richard M. Kash, Jr., of Fruin, Garst & Piper, of Paris, for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On April 10, 1989, plaintiff Jimmie Lee Spires brought suit in the circuit court of Edgar County against defendant Mooney Motors, Inc. He sought damages for injuries he received when, with defendant’s permission, he was using defendant’s tire-changing machine to place a tire on a rim of a vehicle belonging to him. He charged defendant with negligence. On May 24, 1991, plaintiff filed a motion pursuant to sections 2 — 604.1 and 2 — 616 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 604.1, 2 — 616) asking leave to file an additional count charging wilful and wanton conduct and seeking punitive damages.

Section 2 — 616 of the Code contains the traditional requirements for obtaining leave to amend pleadings. Section 2 — 604.1 of the Code is a comparatively new provision which “represents an effort to discourage the seeking and the award of punitive damages” (Ill. Ann. Stat., ch. 110, par. 2 — 604.1, Historical and Practice Notes, at 14 (Smith-Hurd Supp. 1991)). Section 2 — 604.1 of the Code states:

“Pleading of punitive damages. In all actions on account of bodily injury or physical damage to property, based on negligence, or product liability based on strict tort liability, where punitive damages are permitted[,] no complaint shall be filed containing a prayer for relief seeking punitive damages. However, a plaintiff may, pursuant to a pretrial motion and after a hearing before the court, amend the complaint to include a prayer for relief seeking punitive damages. The court shall allow the motion to amend the complaint if the plaintiff establishes at such hearing a reasonable likelihood of proving facts at trial sufficient to support an award of punitive damages. Any motion to amend the complaint to include a prayer for relief seeking punitive damages shall be made not later than 30 days after the close of discovery.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 110, par. 2 — 604.1.

After holding a hearing pursuant to section 2 — 604.1 of the Code, Circuit Judge Ralph Pearman overruled objections to the motion to amend and allowed the motion, and the proposed amended count was allowed to be filed. Subsequently, defendant filed a motion for summary judgment as to both the original negligence count and the wilful and wanton count seeking punitive damages. Plaintiff filed a motion asking that the summary judgment motion be dismissed as to the count seeking punitive damages, maintaining that such a ruling would be inconsistent with the prior ruling of Judge Pearman that a sufficient showing of likelihood of success of the wilful and wanton count had been shown.

After a hearing, Circuit Judge Richard E. Scott entered an order on October 4, 1991, denying plaintiff’s motion to dismiss and allowing defendant’s motion for summary judgment as to the wilful and wanton count seeking punitive damages and as to a subparagraph of the negligence count. The court made a finding pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) sufficient to make the summary judgment as to the wilful and wanton count appealable. Plaintiff has appealed. We affirm.

Plaintiff’s contentions on appeal are twofold. He maintains that the circuit court’s earlier determination of the existence of “a reasonable likelihood of proving facts at trial sufficient to support an award of punitive damages” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 604.1)—inherent in its ruling under section 2 — 604.1 of the Code — is so inconsistent with summary judgment for the defense on the count seeking punitive damages that the entry of summary judgment was precluded as a matter of law. Plaintiff also maintains that the record before the court when it granted summary judgment revealed at least one material issue of fact which needed to be decided by the trier of fact. We disagree.

Examining first the effect of section 2 — 604.1 of the Code, we note no Illinois case has dealt directly with the question of whether an earlier court order permitting the filing of a count for punitive damages prevents the later entry of summary judgment against that plaintiff on that count. Four other States have similar requirements which must be met prior to being permitted to plead for punitive damages: Florida (see Fla. Stat. Ann. §768.72 (West Supp. 1992)), Idaho (see Idaho Code §6 — 1604(2) (1990)), Minnesota (see Minn. Stat. Ann. §549.191 (West 1988)), and North Dakota (N.D. Cent. Code §32 — 03.2—11, at 131 (Supp. 1991)). The issue before us here has not been addressed in any of these States.

Our analysis of the effect of a section 2 — 604.1 order permitting the filing of a punitive damages count begins with the recognition that such an order is interlocutory. No appeal can be taken from the order except by the combined action of the trial court and the appellate court pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308). The order is similar to an order denying a request for summary judgment which has similar limitations upon appealability. (Rowe v. State Bank (1988), 125 Ill. 2d 203, 213-14, 531 N.E.2d 1358, 1363.) Ordinarily, the denial of a motion for summary judgment does not preclude a court from later changing its position and granting that same motion. (Rowe, 125 Ill. 2d at 213-14, 531 N.E.2d at 1363; Tracy v. Montgomery Ward & Co. (1990), 193 Ill. App. 3d 304, 549 N.E.2d 984.) The exception to that rule occurs when different judges make the two rulings and the record indicates the prevailing party was able to obtain a favorable judge by manipulation. Rowe, 125 Ill. 2d at 214, 531 N.E.2d at 1363; Tracy, 193 Ill. App. 3d at 307, 549 N.E.2d at 986.

As we have indicated, Judge Pearman made the ruling permitting the filing and Judge Scott granted the summary judgment. However, the record indicated that the case had originally been assigned to Judge Scott. Thus, his hearing the motion for summary judgment clearly was not the result of “judge shopping” or any kind of manipulation. Thus, even if the ruling on the summary judgment motion can be deemed inconsistent with the earlier section 2 — 604.1 ruling, the summary judgment ruling was not improper for that reason. The circuit court has great discretion with respect to changing interlocutory rulings during the course of a proceeding. The entry of summary judgment here is not rendered erroneous simply because of the prior entry of a section 2 — 604.1 ruling permitting the filing of the count seeking punitive damages.

The ruling on the summary judgment must nevertheless stand upon its own merits. We next examine whether the summary judgment on appeal meets that test. A motion for summary judgment should only be granted when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c); see also Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867.) In deciding whether to grant summary judgment, a court shall construe the pleadings, affidavits, depositions, admissions, and exhibits strictly against the movant and liberally in favor of the opponent. When this is done and the record indicates all the evidence is before the court and no judgment for the respondent to the motion could ever stand, the court should grant the motion for summary judgment. (Barnes v. Washington (1973), 56 Ill. 2d 22, 305 N.E.2d 535; Fooden v. Board of Governors of State Colleges & Universities (1971), 48 Ill. 2d 580, 272 N.E.2d 497.) We conclude such was the case here.

Before we examine the affidavits and other factual matter upon which the summary judgment for defendant was based, consideration of the allegations of the wilful and wanton count is appropriate. For the most part, the wilful and wanton count repeated the allegations of the negligence count but described the conduct of the defendant as wilful and wanton rather than negligent. The wilful and wanton count alleged that on November 5, 1988, defendant operated an automobile service and repair business in Chrisman in Edgar County, and owned and operated the tire changer which was involved in plaintiff’s injury and which defendant allowed plaintiff, one of its employees, to use during his lunch hour, to place a tire defendant had given him onto a rim belonging to him.

Specifically, plaintiff alleged defendant was wilful and wanton in (1) allowing persons to use the machine without adequate supervision; (2) allowing persons to use the machine without adequate training or education; (3) allowing persons to use the machine without adequate instruction as to safety procedures; (4) failing to warn persons using the machine to remain out of the direction of the tire trajectory when operating the machine; (5) failing to warn persons using the machine that use of the machine could result in serious injury or death; (6) failing to warn persons using the machine that the machine had a history of malfunction; (7) failing to inspect the machine when the defendant knew, or should have known, that the machine had malfunctioned before; (8) failing to repair or replace the machine prior to plaintiff’s use of machine when defendant knew, or should have known, that the machine had broken earlier; (9) failing to install safety shields or cages to protect persons using or operating the machine; and (10) providing plaintiff with old and used tires and rims when defendant knew, or should have known, that said tires and rims presented a greater risk of serious injury or death when mounting or demounting.

Taking the affidavits and depositions upon which the summary judgment was based most favorably to plaintiff, the following facts and sequence of events was set forth. Plaintiff’s injury occurred during his lunch break on November 3, 1988, after he had been employed by defendant for approximately one month. A supervisory employee of defendant permitted plaintiff to choose and take a tire from a group of tires which were in the basement of the shop and to use the tire machine to put the tire on plaintiff’s rim. The supervisory employee knew many of these tires had been damaged in transit and should not be used but directed plaintiff to look for and take a tire which appeared to be good. Although use of the tire machine was one of plaintiff’s assignments, he had been given instruction in its use for only a period of less than two minutes and had only used it a few times.

The following additional significant facts were set forth in the affidavits and depositions when viewed most favorably to plaintiff. The tire-changing machine had various warnings inscribed upon it, but plaintiff had read only that on the top which stated, “Important, please release chucks as soon as beads are fairly sealed.” The “chucks” were bolts used to secure the wheel rims to the tire-changing machine. Plaintiff selected a tire which appeared best to him. It had a 16-inch radius while that of his rim was I6V2 inches. Plaintiff asked a more senior employee, Burgess, if he could put such a tire on a rim with a half-inch greater radius, and the employee suggested he could try to do so.

According to the described affidavits and depositions, the explosion of the tire occurred after plaintiff (1) attached the rim to the machine; (2) placed the tire on the rim; (3) inflated the tire to a pressure of approximately 26 pounds, at which time it appeared to bond to the rim; (4) plaintiff then continued to inflate the tire whereupon it exploded, broke a bolt and the tire and rim hit plaintiff in his face. While no testimony was presented that the machine had operated in this manner before, at least two incidents were reported in which the “chuck” bolts had broken while the tire changer was in use. Suggestion had been made to defendant that some sort of screen should be obtained for the tire-changing machine but defendant essentially rejected the advice on the basis such a shield was unnecessary. No showing was made as to how the shield would operate but presumably it would be between the operator and the tire and rim he was working with.

Thus, any wilful and wanton conduct would have to arise from one or more of the following acts of the defendant: (1) the permission to use the machine was given plaintiff when defendant knew plaintiff had little experience in its operation; (2) defendant knew or should have known that a bolt on the machine had previously broken; (3) defendant gave plaintiff a tire which was likely defective and permitted him to attempt to use the tire changer without a shield when such a shield would have been possible to install. At oral argument on appeal, plaintiff insisted that defendant owed plaintiff a greater duty because he was an employee of defendant, but he has not presented any authority on that point.

Because of the punitive effect of exemplary damages, the supreme court has often stated that they are not favored (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 188, 384 N.E.2d 353, 360; Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31, 35, 330 N.E.2d 509, 511), but the degree of culpability required to constitute grounds for such damages has not been stated with precision until recently in Loitz v. Remington Arms Co. (1990), 138 Ill. 2d 404, 563 N.E.2d 397. There, a circuit court permitted an award of punitive damages against a gun manufacturer in favor of a user injured by a barrel explosion. The crux of the award arose because the manufacturer had continued its manufacture of the gun after over 90 complaints of insufficiency of the strength of the barrel.

In Loitz, a divided court reversed the award of punitive damages. In a comprehensive opinion by Justice Miller, the majority gave recognition to the greater concern about the frequency and amount of such awards and then explained:

“ ‘Since the purpose of punitive damages is not compensation of the plaintiff but punishment of the defendant and deterrence, these damages can be awarded only for conduct for which this remedy is appropriate — which is to say, conduct involving some element of outrage similar to that usually found in crime. The conduct must be outrageous, either because the defendant’s acts are done with an evil motive or because they are done with reckless indifference to the rights of others.’ (Restatement (Second) of Torts §908, comment b, at 464-65 (1979).) In this context, willful and wanton misconduct ‘ “approaches the degree of moral blame attached to intentional harm, since the defendant deliberately inflicts a highly unreasonable risk of harm upon others in conscious disregard of it.” ’ Bresland v. Ideal Roller & Graphics Co. (1986), 150 Ill. App. 3d 445, 457[, 501 N.E.2d 830, 839].” (Emphasis added.) Loitz, 138 Ill. 2d at 415-16, 563 N.E.2d at 402.

Here, giving full significance to the most culpable interpretation of any misdeed of defendant shown, we do not find that conduct to involve either the “evil motive” or the “reckless indifference” necessary as a basis for punitive damages. Clearly, the conduct does not produce “outrage similar to that usually found in crime.” Accordingly, we agree that the proof offered in support of the punitive damages count would clearly be insufficient to support such an award. The circuit court properly granted summary judgment on that count. We affirm that ruling.

Affirmed.

STEIGMANN and COOK, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE McCULLOUGH

license: Public Domain

text:
    CURTIS CONLEY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Nussbaum Trucking, Appellee).
    Fourth District (Industrial Commission Division)
    No. 4—91—0510WC
    Opinion filed May 28, 1992.
    Rehearing denied July 14, 1992.

      Warren E. Danz, P.C., of Peoria, for appellant.
    Michael J. Kehart, of Kehart, Shatter, Hughes & Webber, P.C., of Decatur, for appellee.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Claimant’s application for adjustment of claim was dismissed for want of prosecution. More than 60 days later, claimant filed a motion to reinstate the case, which the arbitrator and Industrial Commission (Commission) denied. The circuit court confirmed the Commission and claimant appeals, contending he is entitled to reinstatement because there is no evidence he received notice that his case had been dismissed. We affirm.

Claimant, represented by attorney Warren Danz, filed an application for adjustment of claim, No. WC40371, on November 18, 1983, for a heart attack occurring October 5, 1983. When the case lay dormant in excess of three years, it was dismissed by an arbitrator for want of prosecution on December 31,1986.

A petition for reinstatement bearing a proof of service of June 16, 1987, was filed by attorney James W. Johnson. The unverified petition recited that “neither Petitioner [n]or his attorney had notice of the hearing on December 31, 1986,” and claimant did not learn of the dismissal until June 10,1987.

An objection was filed by respondent, contending the petition to reinstate was untimely because “[t]he record further shows that notice of the dismissal was dated February 20, 1987, and mailed to counsel on February 24, 1987.” Attached as an exhibit was the form notice of dismissal from the Commission received by counsel for the respondent. The objection also indicated that “[t]he record further shows that a similar notice was sent to Warren Danz, Attorney at Law, on the same date” since Danz was counsel of record at that time and attorney Johnson had never entered an appearance on behalf of claimant.

Claimant filed a “rebuttal” in which he again alleged that neither he nor his attorney had notice of any December 31, 1986, hearing which resulted in the order dismissing the case for want of prosecution. Concerning respondent’s allegation that attorney Danz received notice of the dismissal, the “rebuttal” stated:

“To date Petitioner had no information that such notice was received by anyone representing him. On the contrary, although the record of the commission shows that notice of dismissal was sent to Mr. Warren Danz, who formerly represented petitioner, according to Mr. Dobbs of the Industrial Commission, there is no return receipt or copy of a notice addressed to Petitioner in the file that might suggest that Mr. Danz or anyone representing Petitioner received notice.”

Claimant concluded that the Commission was required to serve notice by certified mail under its rules and, therefore, he should be absolved from filing an untimely petition to reinstate.

On September 15, 1987, attorney Johnson filed a formal appearance on behalf of claimant. Attorney Danz was allowed to withdraw at that time. A hearing on claimant’s petition to reinstate was held before the arbitrator that same day.

Claimant testified that he filed several applications for adjustment of claim for three heart attacks. The first attack was on September 28, 1983, and the second was approximately six days later. The third heart attack, the date of which claimant was unsure, occurred sometime in 1984. Claimant stated he learned of the dismissal of this particular application in June 1987 when he was advised of this fact by someone from his union. Claimant stated he never personally received any notice of dismissal from the Commission.

On cross-examination, claimant admitted that attorney Danz initially represented him when the applications for adjustment of claim were filed. He stated that although he later changed lawyers and retained attorney Johnson, he was unaware of whether the appropriate substitution of counsel forms were ever filed with the Commission. Claimant also conceded he had no knowledge of whether attorney Danz had received notice that the case had been dismissed. Claimant was the only witness.

Attorney Johnson then asked the arbitrator to take judicial notice of the Commission’s records for two reasons. Johnson represented that from discussions with Commission personnel it was his belief there was no record that the Commission served notice of the dismissal on anyone other than counsel for the respondent. Attorney Johnson also attempted to argue that the Commission rules required actual notice to claimant irrespective of whether counsel received notice.

The arbitrator noted that attorney Johnson’s oral representation that the Commission file did not indicate notice had been sent to attorney Danz was in direct contradiction to claimant’s written “rebuttal” which recited that the Commission record did show that notice was sent to attorney Danz despite the fact that there was no return receipt.

The arbitrator also observed that the Commission rules did not require that parties be personally served in addition to counsel and attorney Johnson conceded that current Commission rules do not require use of certified mail by the Commission. He also agreed that although he had taken over claimant’s file 18 months earlier, he had failed to file the appropriate substitution of attorney form with the Commission and attorney Danz was counsel of record for claimant at all times prior to the filing of the petition to reinstate.

In his final argument, attorney Johnson contended there was no indication in the file that attorney Danz or claimant had ever received notice that the case was set for hearing before it was dismissed on December 31, 1986. The arbitrator rejected this contention on the basis that under Commission procedures, cases which had been inactive for three years were simply dismissed and no formal hearing had been held on December 31, 1986.

Based on the contrary position claimant took in his written “rebuttal” and the oral representations made during the hearing, the arbitrator indicated she was going to consult the Commission files to determine if there was evidence that notice of the dismissal was sent to attorney Danz. In concluding the hearing, the arbitrator stated:

“I’m going to have to find out if notice was sent. If they returned it and it came back in the file, obviously he doesn’t have it. But if there’s no reason to think — if they mailed it and they haven’t gotten it back, he has got it, and that’s all there is to it.
This is not a question of whether or not I think your client’s [sic] a nice person and should have his case reinstated. This is jurisdictional.
* * *
*** And if you can’t show — if you cannot show that you really didn’t get notice or that Mr. Danz didn’t get notice under the circumstances that would justify filing [the petition to reinstate] close to four months after the notices went out, I don’t have jurisdiction to do anything about it. It’s just not there.
[ATTORNEY] JOHNSON: I agree. I agree.
ARBITRATOR WHITE: It’s going to hang on what that Commission file says.”

An order was subsequently entered by the arbitrator denying the petition for reinstatement. The order recites that notice of dismissal was sent in accordance with Commission rules to the attorneys of record and, since the petition for reinstatement was filed more than 60 days after notice of dismissal was received by the attorneys for the parties, the Commission did not have jurisdiction to reinstate the case.

A third attorney, Stephen M. Cornelius, filed a petition for review of the order denying reinstatement on behalf of claimant. In his statement of exceptions and supporting brief, attorney Cornelius offered the following summary of the events:

“When the case was three years old it was dismissed by Arbitrator White on 12-31-86, apparently after a failure of the Petitioner to appear at the Decatur Arbitration docket in December of 1986. According to Commission records, the notice was sent to Mr. Danz. No proof of his receipt exists. No Petition to Reinstate was filed until after the 60 day time period.”

Attorney Cornelius raised three issues before the Commission: (1) whether the Commission was required to give personal notice to claimant; (2) whether the arbitrator had continuing jurisdiction because an order of dismissal is not conclusive within the meaning of the statute when it was not timely appealed because it is not an order directed to the merits of the case; and (3) whether the Commission should adopt the dissenting opinion in Roberts v. Industrial Comm’n (1983), 96 Ill. 2d 475, 478, 451 N.E.2d 857, 858 (Simon, J., dissenting), in which Justice Simon indicated his belief that a claimant should have an absolute right to refile a petition within one year after its dismissal for want of prosecution. No additional evidence was presented by attorney Cornelius at a hearing set before the commissioner on review.

Respondent, however, offered two exhibits, which were admitted without objection by claimant. The first exhibit was a preprinted Commission notice of dismissal issued to attorney Danz in Commission case No. WC40372 (which was apparently a companion case to the one at issue here, No. WC40371). The second exhibit was an affidavit by a partner in respondent’s counsel’s law firm who averred that in June 1987 he examined the Commission file and found in it a notice to respondent’s law firm showing a dismissal date of February 20, 1987. Attached to this affidavit was a copy of the form notice respondent received from the Commission showing dismissal of case No. WC40371. This was the same notice originally attached to respondent’s objections to the petition to reinstate.

On October 10, 1990, the Commission issued an order affirming the arbitrator. Attorney Warren Danz then filed review proceedings in the circuit court. Following the failure of either claimant or his attorney to appear at the hearing set in the circuit court, the court confirmed the Commission. A timely notice of appeal was filed by attorney Danz on behalf of claimant.

The principles of law in this area are well settled. On a petition for reinstatement before the Commission, the burden is on the claimant to allege and prove facts justifying the relief sought. The granting or denying of the petition to reinstate rests in the sound discretion of the Commission. Cranfield v. Industrial Comm’n (1980), 78 Ill. 2d 251, 255, 399 N.E.2d 1316, 1318; Zimmerman v. Industrial Comm’n (1972), 50 Ill. 2d 346, 349, 278 N.E.2d 784, 786.

On appeal, claimant initially contends that there is no record anywhere of the Commission having sent attorney Danz notice of dismissal of case No. WC40371, much less evidence of a date on which the notice was received, so as to trigger the 60-day window for filing the petition to reinstate.

The problem with this contention is twofold. Throughout the Commission proceedings and on appeal claimant speculates as to what the Commission file may or may not contain and what the arbitrator may or may not have reviewed. The actual Commission files which the arbitrator was asked to consider and which she indicated she would review have not, however, been made a part of the record at any point in the litigation. It is clearly the duty of the party desiring to have the case reviewed to see that a complete record relating to any issues raised is filed by the Commission. (Berry v. Industrial Comm’n (1978), 72 Ill. 2d 120, 124, 378 N.E.2d 507, 509.) Since the record is insufficient to resolve claimant’s speculative arguments, claimant has waived them for purposes of review.

In addition, claimant’s argument suffers from another fundamental defect. The burden of proof is on claimant to allege and prove facts justifying reinstatement. No such facts were produced before the arbitrator. Claimant initially conceded that attorney Danz was sent notice of the dismissal. While this concession was orally retracted during the hearing before the arbitrator, no evidence was ever presented by attorney Danz, either by way of testimony or affidavit, that he had not received the Commission order. Allegations of lack of notice by someone other than the individual who would have been the recipient of the notice is not proof of that fact.

Finally, at oral argument, claimant for the first time raised the contention that section 19(i) of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(i)) requires that the Commission serve all notices required under the Act either personally or by registered mail and, for that reason, claimant’s case should be reinstated. Initially, we observe this issue is waived because this particular theory and argument was not made until oral argument in the appellate court, long after it should have appropriately been raised before the arbitrator or Commission. Forrest v. Industrial Comm’n (1979), 77 Ill. 2d 86, 92, 395 N.E.2d 576, 579.

Even were we to consider claimant’s argument on the merits, we would find it wanting. As pointed out by respondent, various provisions of the Act do require personal, certified mail, or registered mail service. (Ill. Rev. Stat. 1989, ch. 48, pars. 138.2(c), 138.4(c), 138.5(b), 138.19(b — 1).) Section 19(b) states in part:

“The decision of the Arbitrator shall be filed with the Commission which Commission shall immediately send to each party or his attorney a copy of such decision, together with a notification of the time when it was filed.” (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(b).)

Section 19(i) does not require all notices to be served personally or by registered mail. The section does state that when personal or registered mail service is required, the service shall be made “at the last address so filed with the Commission.” (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(i).) When no address is filed with the Commission, the party may file the notice with the Commission. The Commission is not a “party” to its own proceedings and does not “serve” documents upon anyone.

An interpretation as argued by claimant would render meaningless those sections of the Act which require a specific type of service. For example, 19(b — 1) requires all service with respect to that paragraph to be “by personal service or by certified mail and with evidence of receipt.” (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(b — 1).) Section 19(f) is specific as to procedures in seeking review in the circuit court and service of notice upon the Commission and parties in interest. Ill. Rev. Stat. 1989, ch. 48, par. 138.19(f).

The claimant cites Cooke v. Industrial Comm’n (1930), 340 Ill. 309, 172 N.E.2d 761. Cooke does not say personal or registered mail service is required in giving notice of an arbitrator’s award. The issue in Cooke, as here, was whether notice was received.

Since claimant failed to establish at arbitration or before the Commission any facts suggesting his attorney of record, Warren Danz, did not receive notice of the dismissal of claimant’s application for adjustment of claim, and because the record on appeal is insufficient to resolve claimant’s speculative arguments on what the Commission file contains, it cannot be said that the Commission’s decision denying claimant’s petition to reinstate was an abuse of discretion.

Accordingly, the judgment of the Macon County circuit court is affirmed.

Affirmed.

RAKOWSKI, WOODWARD, STOUDER, and LEWIS, H., JJ., concur.


author: JUSTICE LUND

text:
      In re MARRIAGE OF STEVEN HASKELL EVANS, Petitioner-Appellee, v. DONNETTA SUE EVANS, Respondent-Appellant.
    Fourth District
    No. 4—91—0884
    Opinion filed June 19, 1992.

      Peggy Patty, of Land of Lincoln Legal Assistance Foundation, Inc., of Mattoon, for appellant.
    James W. Dicker and Catherine H. Barbercheck, both of Lawrence E. Johnson & Associates, P.C., of Champaign, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

Respondent Donnetta Sue Evans appeals from an order of the circuit court of Douglas County, awarding joint custody of the minor child of respondent and petitioner Steven Haskell Evans to petitioner and respondent. The circuit court characterized its order as a temporary order. However, because of the special problems in regard to opportunity to appeal which can arise from custody orders as here limited as to time but otherwise appealable under Supreme Court Rule 301 (134 Ill. 2d R. 301), we treat this order as appealable under that rule. (See In re Marriage of Cesaretti (1990), 203 Ill. App. 3d 347, 351-52, 561 N.E.2d 306, 308-09.) We note that, in any event, the order would be subject to appeal to this court upon our grant of leave to do so (134 Ill. 2d R. 306(a)(1)(v)) and, if requested, we would have granted such leave here. See In re Custody of Purdy (1986), 112 Ill. 2d 1, 4, 490 N.E.2d 1278,1279.

The issue before this court is whether a joint custody order made on the court’s own motion was against the manifest weight of the evidence. We reverse and remand with directions to award custody of the child to respondent.

Facts

Petitioner was born on October 10, 1962, graduated from high school, and moved with his family from Tennessee to Illinois in 1980. Respondent was born July 8, 1960. She did not graduate from high school, but eventually obtained her general equivalency diploma (GED). The two met in June 1980. Petitioner joined the United States Army (Army) in September 1980, and the couple were married on December 12, 1980. The only child of the marriage, a son, was bom in Germany on May 28, 1982. In May 1983, after returning from the military assignment in Germany to an assignment in Georgia, respondent left petitioner, taking the child, and returned to Illinois. Petitioner was discharged from the Army on February 24,1984.

Petitioner obtained a dissolution of marriage judgment in Tennessee on December 14, 1987. This judgment, while dissolving the marriage, did not provide for custody or child support. No child support was paid by petitioner after the December 1987 judgment. On October 15, 1990, upon petitioner’s motion, the Tennessee judgment was registered in Douglas County, Illinois, and petitioner filed a petition seeking custody of the child of the parties.

The Child

The child, now 10 years of age, is mentally handicapped. He attends special classes for trainably mentally handicapped (TMH) children. Educable mentally handicapped (EMH) is a somewhat higher level than TMH children. There was evidence that his IQ level is between 35 and 55. He can communicate orally, is initially shy around people, is hyperactive, and has a short attention span. In the words of his maternal grandmother, he is a loving and special child. In September 1991, the time of the trial court’s hearing on the petition for custody, the child had not seen his father for six years.

Petitioner

Evidence was introduced regarding petitioner’s excessive use of alcohol and drugs during his military tenure. Respondent testified of abuse to her and stated she left with the child in 1983 when petitioner abused the child. After leaving the Army, petitioner had various jobs and, based upon a Uniform Reciprocal Enforcement of Support Act action, paid $25 per week in child support payments until the 1987 dissolution order.

Petitioner married Sally Gregory on November 11, 1989, and they live in Tennessee. Sally was born January 13, 1955. She has a daughter (now 13 years of age) and a son (now 9 years of age) by her previous husband. She testified that one of her conditions for the marriage was no alcohol or drug use. Sally works in a hospital emergency room in the early evening hours and earns $217 every two weeks.

Evidence indicates that petitioner cares for his stepchildren. Along with his new family, he is very active in the Church of Christ. He no longer uses alcohol or any type of drugs, and he wants to be a minister in his own church. He and Sally have purchased a new 1,500-square-foot house. He is employed as a welding supervisor, with a gross weekly income of $471.

Respondent

In 1983, Donnetta Evans returned to Villa Grove, Illinois, with her son. She resided with her mother and three sisters, in her mother’s home, until moving to an apartment and then to a trailer in 1991. Her main support has been public assistance and waitress work. She completed her GED and eventually enrolled in Parkland Junior College. Her first year at Parkland involved studies relating to the travel agent business. Then, upon advice from her college counselor, she switched to secretarial training. She has a semester’s work left before finishing the secretarial education training.

Respondent has had the principal responsibility for raising her son since May 1983 and has actively sought medical help and special educational assistance for the boy. There is no evidence of anything but a caring and loving relationship between mother and son. Actually, the record does not indicate antagonism toward petitioner, but does indicate the mother’s fear of losing her son.

Trial Court Order

Petitioner requested custody of the son, suggesting that he can provide the necessary male image and will obtain evaluations from top doctors at Vanderbilt University Medical School. He suggests his home is adequate and his stepchildren will provide friendship.

Respondent argued that the child does not know petitioner and any visitation will be emotionally disturbing. She points out that she has raised the child in a loving and caring environment.

At the end of the September 1991 hearing, the trial judge emphasized that the past must be disregarded and the future should include a relationship between child and father. The written order filed November 1, 1991, was termed a temporary judgment order and “awarded temporary joint custody of the minor child” to the parties “with Respondent being the residential parent.” Specific visitation was provided, including some visitation in Tennessee at petitioner’s expense. Child support was ordered of petitioner in the amount of $65 per week. Other provisions relevant to the welfare of the child were included, and the order provided for a court review in May 1992.

Joint Custody Issue

Joint custody was not mentioned in this case until the judge’s decision. Joint custody was not available on a judge’s own motion until January 1, 1986, at which time the present provision became effective. Section 602.1 of the Illinois Marriage and Dissolution of Marriage Act (Act) now provides, in relevant part:

“(b) Upon the application of either or both parents, or upon its own motion, the court shall consider an award of joint custody. Joint custody means custody determined pursuant to a Joint Parenting Agreement or a Joint Parenting Order. ***
(c) The court may enter an order of joint custody if it determines that joint custody would be in the best interests of the child, taking into account the following:
(1) the ability of the parents to cooperate effectively and consistently with each other towards the best interest of the child;
(2) [t]he residential circumstances of each parent; and
(3) all other factors which may be relevant to the best interest of the child.
(d) Nothing within this section shall imply or presume that joint custody shall necessarily mean equal parenting time. The physical residence of the child in joint custodial situations shall be determined by:
(1) express agreement of the parties; or
(2) order of the court under the appropriate circumstances listed herein.” Ill. Rev. Stat. 1991, eh. 40, pars. 602.1(b), (c), (d).

Custody is determined in accordance with the best interest of the child and all relevant factors shall be considered, including those specifically listed in section 602 of the Act. Sections 602(a)(3), (a)(4), and (a)(5) of the Act provide:

“(3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child's best interest;
(4) the child’s adjustment to his home, school and community;
(5) the mental and physical health of all individuals involved.” Ill. Rev. Stat. 1991, ch. 40, pars. 602(a)(3), (a)(4), (a)(5).

There is a dearth of case law interpreting and indicating the application of the current section 602.1 of the Act as it applies to court’s acting on its own motion. However, we conclude the present fact situation clearly requires a determination that the trial court’s use of joint custody was an abuse of discretion.

The minor child in this case is a special child. Special schools are necessary and special care and training is required. The respondent has illustrated her responsibility by assuring the needs of the child are addressed. She has done this with the help of her family and State aid. Insignificant assistance has been received from the father. While the petitioner suggests he was deterred by respondent from assisting, such is contrary to all of the evidence. He was the one who failed to make contact for six years and, before that, made minimum contacts.

Traveling by automobile, petitioner lives approximately six hours from respondent’s home. The son has been raised among his mother’s family in Douglas County since he was one year old. There is no admissible evidence in the court file which indicates anything other than respondent being a caring and competent parent. Sole custody should have been awarded to respondent mother.

Visitation

In reading comments made by the court, it becomes apparent that the court’s joint custody order intervention was to encourage cooperation between petitioner and respondent and phase in visitation so as to avoid undue hardship for the child. The court emphasizes the value of the relationship between father and son. It was suggested that the unpleasantness of the early 1980’s should be treated as ancient history.

Section 607(a) of the Act provides in part:

“Visitation, (a) A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child’s physical, mental, moral or emotional health.” Ill. Rev. Stat. 1991, ch. 40, par. 607(a).

The evidence does not justify prohibiting petitioner’s visitation. As indicated, because of the long separation and the “special child” status, great care was needed to implement the father’s reconciliation with his son. The structured initial visitation is evidence of the trial judge’s concern for this child. We commend the trial judge for his concern. Nothing in this opinion should be considered criticism or reversal of visitation provisions previously ordered by the trial court. In entering future visitation orders, we direct the trial court’s attention to Coons v. Wilder (1981), 93 Ill. App. 3d 127, 131, 416 N.E.2d 785, 790, where the appellate court affirmed a finding that eight consecutive weeks of summer visitation would prove traumatic to the children and was not in their best interests. See also In re Marriage of Bush (1989), 191 Ill. App. 3d 249, 264, 547 N.E.2d 590, 598.

The order of joint custody is reversed, and this cause is remanded with directions to enter an order granting sole custody of the child to respondent. The trial court’s orders as to visitation entered prior to the time of this appeal are affirmed.

Reversed and remanded with directions.

GREEN, P.J., and COOK, J., concur.


author: JUSTICE COOK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SEAN KERNS, Defendant-Appellant.
    Fourth District
    No. 4—91—0570
    Opinion filed June 11, 1992.
    Daniel D. Yuhas and Arden J. Lang, both of State Appellate Defender’s Office, of Springfield, for appellant.

      Tony Lee, State’s Attorney, of Paxton (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE COOK

delivered the opinion of the court:

After a jury trial in the circuit court of Ford County, defendant, Sean Kerns, was found guilty of aggravated criminal sexual assault, a nonprobationable Class X felony (Ill. Rev. Stat. 1989, ch. 38, pars. 12 — 14(b)(2)(ii), (d)), for placing his penis in the anus of nine-year-old B.R Defendant was sentenced to six years’ imprisonment. Defendant appeals. We reverse and remand.

At the jury trial which commenced on June 24, 1991, B.P., who was nine in 1990, testified that on three consecutive Mondays during the summer of 1990, defendant wrestled with B.P., pulled down B.P.’s pants, and placed his “whatchamacallit” (penis) in B.P.’s “butt” (anus). B.P. testified that defendant threatened to get a knife and kill him if he told anyone.

A.T. (B.P.’s 12-year-old aunt) testified that during the summer of 1990, B.P. told her that defendant had placed his “thing” (penis) in B.P.’s “butt.” B.P.’s mother and A.T. testified that on January 10, 1991, B.P. told them that defendant had placed his “whatchamacallit” in B.P.’s “butt” on three consecutive Mondays, and that defendant had threatened to kill him if he told anyone. Police officer Larry Hale testified that in January 1991, B.P. told him that on three consecutive Mondays in the summer of 1990, defendant placed his “whatchamacallit” in B.P.’s “butt,” and then threatened to kill him if he told anyone. Defendant testified that he wrestled with B.P., but that he never placed his penis in B.P.’s anus.

Over objection, the trial court allowed the State to cross-examine defendant about his February 13, 1991, juvenile delinquency adjudication for burglary and theft.

Defendant argues (1) the trial court erred by allowing the State to cross-examine him about his prior juvenile adjudication of delinquency for burglary and theft; and (2) B.P.’s out-of-court statements concerning sexual contact should not have been admitted into evidence because the time, content, and circumstances of the statements did not provide sufficient safeguards of reliability.

I

Section 1 — 10(l)(c) of the Juvenile Court Act of 1987 (Act) (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 10(1)(c)) provides:

“(1) Evidence and adjudications in proceedings under this Act shall be admissible:

* * *

(c) in proceedings under this Act or in criminal proceedings in which anyone who has been adjudicated delinquent under Section 5 — 3 is to be a witness, and then only for purposes of impeachment and pursuant to the rules of evidence for criminal trials[.]”

In order to properly interpret section 1 — 10(l)(c), it is necessary to consider Federal Rule of Evidence 609 (Fed. R. Evid. 609), which has been adopted by the Illinois Supreme Court. People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695; People v. Ray (1973), 54 Ill. 2d 377, 297 N.E.2d 168.

Federal Rule of Evidence 609(d), as adopted in Montgomery, stated:

“ ‘(d) Juvenile Adjudications. Evidence of juvenile adjudications is generally not admissible under this rule. The judge may, however, allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the judge is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.’ ” Montgomery, 47 Ill. 2d at 517, 268 N.E.2d at 699, quoting 51 F.R.D. 391 (setting forth Rule 609).

Rule 609(d) gives the court discretion to admit evidence of juvenile adjudications to impeach a witness; however, there is no such discretion when the witness is the accused in a criminal case. When the witness is the accused, as is the defendant in this case, then Rule 609(d) prohibits the admission of juvenile adjudications for impeachment. M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §609.9, at 391 (5th ed. 1990).

In People v. McClendon (1986), 146 Ill. App. 3d 1004, 1011, 497 N.E.2d 849, 853, this court found section 2 — 10 of the Juvenile Court Act (Ill. Rev. Stat., 1982 Supp., ch. 37, par. 702 — 10) had supplanted Rule 609(d), and that a prior adjudication as a delinquent for armed robbery was freely admissible for purposes of impeachment without first performing the balancing test required in Rule 609. However, this court stated in McClendon:

“The case at bar concerns only the impeachment of a witness, not the defendant himself. We offer no opinion as to the applicability of section 2 — 10 [(Ill. Rev. Stat., 1982 Supp., ch. 37, par. 702 — 10 (now see Ill. Rev. Stat. 1989, ch. 37, par. 801— 10))], or any possible interplay with Rule 609(d), in the case of a defendant as a witness in his own behalf.” (McClendon, 146 Ill. App. 3d at 1012, 497 N.E.2d at 854.)

The issue reserved in McClendon is now before us. We follow the authority established by the supreme court in Montgomery and Ray, by adopting the Rule 609(d) prohibition on impeachment of a criminal defendant with a prior juvenile adjudication.

The language of section 1 — 10 of the Act (see Ill. Rev. Stat. 1989, ch. 37, par. 801 — 10) is identical to the predecessor statute (see Ill. Rev. Stat. 1985, ch. 37, par. 702 — 10). The Second District Appellate Court in People v. Massie (1985), 137 Ill. App. 3d 723, 730, 484 N.E.2d 1213, 1218, interpreted the phrase “ ‘is to be a witness’ ” (Ill. Rev. Stat. 1983, ch. 37, par. 702 — 10(c)) to exclude a defendant. The court also found, based on the phrase “ ‘pursuant to the rules of evidence in criminal trials,’ ” that to allow impeachment of a defendant with a juvenile adjudication would be contrary to the rule of Montgomery and Federal Rule of Evidence 609(d). (Massie, 137 Ill. App. 3d at 731, 484 N.E.2d at 1218, quoting Ill. Rev. Stat. 1983, ch. 37, par. 702 — 10(c).) The court then found error in the admission of juvenile adjudications to impeach the defendant. (Massie, 137 Ill. App. 3d at 731, 484 N.E.2d at 1219, cited with approval in People v. Allen (1986), 151 Ill. App. 3d 391, 394, 502 N.E.2d 1260, 1262, and People v. Bunch (1987), 159 Ill. App. 3d 494, 513, 512 N.E.2d 748, 761.) We agree with this interpretation.

The trial court erred in admitting juvenile adjudications to impeach defendant’s testimony in this case. The prejudicial effect of a prior conviction is unmistakable. (Montgomery, 47 Ill. 2d at 514, 268 N.E.2d at 697.) Accordingly, we reverse and remand for a new trial.

Now that we have rejected the argument that defendants can be impeached with juvenile adjudications, it makes little sense to continue to hold that section 1 — 10(l)(c) of the Act has supplanted Rule 609(d). “No reason exists why a juvenile adjudication offered to impeach credibility as a prior conviction should be automatically admissible while an adult conviction for the same offense requires discretionary balancing.” (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §609.9, at 392 (5th ed. 1990).) In light of our decision today we choose no longer to follow McClendon, and choose instead to follow Massie and Bunch. The admissibility of juvenile adjudications is governed by Federal Rule 609(d), as adopted in Montgomery, and not by section 1 — 10(l)(c) of the Act.

II

Defendant also contends that he was deprived of a fair trial when the trial court allowed B.P.’s mother, as well as A.T. (his 12-year-old aunt) and Officer Larry Hale, to testify to reports of sexual offenses made by the victim, B.P. We address this issue because the State will likely seek to adduce this same evidence at retrial. Section 115 — 10 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10(b)(1)) provides that a child victim’s reports of sexual offenses may be admitted when the court, following a hearing outside the presence of the jury, finds that sufficient safeguards of reliability are present. Under this provision, there are no precise or mechanical tests for evaluating trustworthiness or reliability. Instead, the totality of the circumstances surrounding the victim’s statements are to be considered. (People v. Deavers (1991), 220 Ill. App. 3d 1057, 1069, 580 N.E.2d 1367, 1375; People v. Coleman (1990), 205 Ill. App. 3d 567, 581, 563 N.E.2d 1010, 1019.) The trial court’s determination of the admissibility of the evidence based on its balancing of the circumstances surrounding the reports cannot be disturbed on appeal unless it is contrary to the manifest weight of the evidence. Deavers, 220 Ill. App. 3d at 1069, 580 N.E.2d at 1375.

The United States Supreme Court in Idaho v. Wright (1990), 497 U.S. 805, 821, 111 L. Ed. 2d 638, 656, 110 S. Ct. 3139, 3150, indicated that the factors to be considered in determining reliability include spontaneity and consistent repetition, mental state of declarant, use of terminology unexpected of a child of similar age, and lack of motive to fabricate. The Court then further explained:

“[T]he unifying principle is that these factors relate to whether the child declarant was particularly likely to be telling the truth when the statement was made.” Wright, 497 U.S. at 822, 111 L. Ed. 2d at 656,110 S. Ct. at 3150.

The circumstances surrounding the statements in this case demonstrate that they were reliable and trustworthy, as found by the trial court. B.P. had initially reported the offenses to his 12-year-old aunt, A.T., soon after they had occurred. Thereafter, B.P. had limited contact with defendant. Then six months after the offense, B.P. overheard a discussion of sexual abuse and reported defendant’s sexual assaults to his mother and his aunt, A.T. He then repeated the same report to Officer Larry Hale. The reports were highly consistent, phrased in terms of language used by young children, and related information concerning sexual matters that B.P. would not be expected to know about had the incidents complained of not occurred. No evidence was adduced which materially detracted from the reliability or trustworthiness of this evidence. Thus, the trial court did not abuse its discretion in admitting the statements.

The fact that there was a six-month delay between the offenses and the reports in question did not require their exclusion from evidence. (People v. Hickox (1990), 197 Ill. App. 3d 205, 214, 553 N.E.2d 1166, 1173; People v. Kelly (1989), 185 Ill. App. 3d 43, 49, 540 N.E.2d 1125, 1129; People v. Bailey (1988), 177 Ill. App. 3d 679, 683, 532 N.E.2d 587, 590.) This delay can be understood because of the child’s natural sense of shame and embarrassment. (Deavers, 220 Ill. App. 3d at 1070, 580 N.E.2d at 1375; People v. Wheeler (1991), 216 Ill. App. 3d 609, 617, 575 N.E.2d 1326, 1333.) The delay is made even more understandable by the fact that, according to B.P., the defendant had threatened to kill him if he told anyone what had happened.

The trial court’s decision to admit the testimony of witnesses as to the child victim’s reports of sexual offenses was not contrary to the manifest weight of the evidence.

Reversed and remanded.

GREEN, P.J., and LUND, J., concur.


author: JUSTICE McCULLOUGH

text:
    JERRY SAMPSON, Adm’r of the Estate of Ray Sampson, Deceased, Plaintiff-Appellant, v. CAPE INDUSTRIES, LIMITED, et al., Defendants (Zurich Insurance Company, Garnishee-Appellee).
    Fourth District
    No. 4—91—0561
    Opinion filed June 4, 1992.

      James Walker, Ltd., of Bloomington, for appellant.
    William R. Brandt, of Livingston, Barger, Brandt & Schroeder, of Bloomington, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

On June 28, 1991, summary judgment was granted in favor of defendant Zurich Insurance Company (Zurich) against plaintiff Jerry Sampson, administrator of the estate of Ray Sampson (Sampson). Although the motion for summary judgment alleged collateral estoppel, the trial court granted summary judgment finding that no issue of material fact existed as to the noncooperation of Cape Industries, Limited (Cape), in its defense under an insurance contract between Zurich and the named insured, North American Asbestos Corporation (NAAC). We affirm the granting of summary judgment in favor of Zurich.

On February 20, 1980, Ray Sampson filed a complaint to recover damages for mesotheloioma caused by his exposure to asbestos. Cape, a registered corporation in England, was named as a defendant. In March 1980, Ray Sampson died and his son, Jerry, was appointed administrator of his estate. In that capacity, Jerry Sampson filed plaintiff’s third-amended complaint for the wrongful death of his father naming Cape as a defendant. Cape was served by mail with summons and complaint on March 3, 1980. On September 9, 1980, Sampson’s attorney sent Zurich a copy of the complaint and a letter advising Zurich of the pending lawsuit. This letter also indicated Sampson was aware of an indication by Zurich that it would not defend Cape in this matter and advised against doing so. Default judgment was entered against Cape on May 1, 1981. On February 20, 1984, Sampson’s attorney sent a letter to Zurich informing it of the default judgment against Cape and of Sampson’s intent to file a garnishment action against Zurich for any insurance proceeds. On March 14, 1984, after Sampson had proved his damages, judgment was entered against Cape in the amount of $245,590.92.

Thereafter, on March 22, 1984, Sampson filed a garnishment action against Cape and Zurich as garnishee. The garnishment affidavit stated that Zurich had issued two insurance policies, with NAAC listed as the named insured, providing insurance coverage for the claims alleged in the amended complaint. Cape was alleged to be an “additional insured” under the policies issued by Zurich to NAAC by virtue of the fact that Cape was a stockholder of NAAC and was alleged to have acted in that capacity when selling asbestos owned by NAAC to the operators of the asbestos plant where Sampson worked. Zurich has maintained throughout these proceedings that Cape is not an insured under these policies and would not have coverage.

In McLean County case No. 80 — MR—26, the Insurance Company of North America (INA) brought a declaratory judgment action against Cape and NAAC, among others, for asbestos-related injuries. Summary judgment was granted to INA in that case based on Cape’s breach of the cooperation clause in an insurance contract between INA and NAAC. In McLean County case No. 80 — MR—53, INA brought another declaratory judgment action against Cape, NAAC and Sampson, among others, for asbestos-related injuries. Summary judgment was granted in favor of INA there based on collateral estoppel on the fact of Cape’s breach of the cooperation clause of the insurance contract in McLean County case No. 80 — MR—26.

Finally, in McLean County case No. 80 — CH—43, Centennial Insurance Company (Centennial) and Westchester Fire Insurance Company (Westchester) filed suit against Cape, NAAC, Zurich, and Sampson, among others. Summary judgment was granted for both Westchester and Centennial in that case based on Cape’s breach of the cooperation clause in those insurance contracts between Centennial and NAAC and Westchester and NAAC, as well as collateral estoppel based on case Nos. 80 — MR—26 and 80 — MR—53. With respect to Westchester’s motion for summary judgment, the trial court found there was no question of material fact that Cape had failed to cooperate with Westchester and this action had prejudiced Westchester, thereby relieving it of any liability to Cape. With respect to Centennial’s motion for summary judgment, the trial court concluded there was no genuine issue of material fact that Cape had breached its duty to cooperate with Centennial by instructing it not to act or appear on its behalf thereby forfeiting any insurance coverage under the policy. The trial court further ordered “all of the defendants [which included Sampson] are collaterally estopped to relitigate the issue as to the breach of Cape Industries, Inc. [sic], to cooperate in its defense, thereby forfeiting any right to insurance coverage it may have had by reason of the judgments entered in McLean County cause Nos. 80 — MR—53 and 80-MR-26.”

Cape has never tendered the defense of this lawsuit to Zurich. In April 1980, Cape sent a letter to the attorney for INA specifically stating that neither INA nor “any other insurer of NAAC in a similar position have [sic] any instructions to act or appear on behalf of this Company in any proceedings in Illinois or any other state of the United States.” Cape sent a similar letter in May 1980 to the attorneys for Westchester. Attorneys for Centennial received a telegram from Cape on August 7, 1980, instructing it and all other insurers of NAAC not to act or appear on behalf of Cape in any suit in Illinois. Finally, on November 5, 1986, Zurich received a letter from Cape confirming its previous instructions to INA, Centennial and Westchester, and now specifically to Zurich, not to act or appear on behalf of Cape in any lawsuit pending in Illinois. Except for the November 5, 1986, letter from Cape to Zurich, which is in the common law record, all of this correspondence was attached to Zurich’s motion for summary judgment.

In the present case, in May 1991, Zurich filed a motion for summary judgment alleging an issue raised in its affirmative defenses was whether Cape had instructed it not to appear on its behalf and had thereby breached its duty to cooperate with Zurich thus forfeiting any right to insurance coverage under the policy issued to NAAC by Zurich. Zurich further alleged that since Zurich and Sampson were both defendants in case No. 80 — CH—43, Sampson was collaterally estopped from raising the issue of Cape’s forfeiture of insurance coverage by virtue of the orders entered in that case on August 24, 1982.

On June 28, 1991, the trial court granted Zurich’s motion for summary judgment. The court noted the findings made in case Nos. SOME — 26, 80 — ME—53 and 80 — CH—43, and concluded that Zurich had notice, by virtue of being a defendant in case No. 80 — CH—43 when the motions for summary judgment by Centennial and Westchester were filed, of Cape’s declared intent not to cooperate with any of its insurers. The court found “there is no issue of material fact as to Cape refusing to cooperate with any and all insurers, which would include Zurich *** Zurich is entitled to a judgment as a matter of law based upon the noncooperation of Cape.”

Although not specifically stating collateral estoppel applied, the trial court based its ruling granting summary judgment in favor of Zurich on the following facts: (1) the telegram from Cape to Charles H. Lankheit, regional claims manager for Centennial, which was part of the record in case No. 80 — CH—43, and which stated: “No insurers of NAAC have any authority to act or appear on behalf of Cape Industries in the above or any other proceedings”; (2) the affidavit of Lankheit, which stated that he was familiar with the proceedings in case No. 80 — CH—43 and knew Cape had sent a telegram to Centennial instructing it not to enter an appearance on its behalf in that case; (3) that Zurich was a party in case No. 80 — CH—43 when Centennial’s motion for summary judgment was filed, with the supporting documents, including the telegram and Lankheit’s affidavit, which gave notice to Zurich of Cape’s noncooperation; (4) the issue of Cape’s noncooperation with all insurers was an issue in case No. 80 — CH—43; and (5) it found nothing in the record to support Sampson’s position that Cape would cooperate with Zurich. Sampson filed this notice of appeal on July 26,1991.

At oral argument, Sampson argued that the trial court erred in granting summary judgment in favor of Zurich by finding there was no genuine issue of material fact as to Cape’s refusing to cooperate with any insurers. Sampson suggests, since Zurich’s motion for summary judgment only raised the issue of collateral estoppel, he was never afforded the opportunity to address the issue of Cape’s noncooperation. Inasmuch as we conclude Sampson was collaterally estopped from relitigating the issue of Cape’s noncooperation, an issue Sampson did have an opportunity to address, we need not respond to this contention. This court can sustain the decision of the circuit court on any grounds which are called for by the record regardless of whether the circuit court relied on those grounds and regardless of whether the circuit court’s reasoning was correct. Beckman v. Freeman United Coal Mining Co. (1988), 123 Ill. 2d 281, 286, 527 N.E.2d 303, 305.

Sampson next asserts Zurich cannot now rely on the affirmative defense of Cape’s noncooperation because Zurich failed to contact Cape and notify it of its obligation to defend Cape in this matter. However, Sampson cites no authority to support this contention and, as we have previously noted, “we have not found a case indicating an insurance company has a responsibility to notify the insured of its duty to defend or pay for the defense.” (American Family Mutual Insurance Co. v. Blackburn (1991), 208 Ill. App. 3d 281, 287, 566 N.E.2d 889, 893.) Thus, we do not believe Zurich has waived its defense of Cape’s noncooperation.

Finally, Sampson contends the trial court erred in applying collateral estoppel against him based on the trial court’s order in case No. 80 — CH—43, since the insurance contract between Zurich and NAAC was not in issue in that case. Sampson suggests one of the three requirements necessary to utilize the doctrine of collateral estoppel, namely identical issues between the prior adjudication and current litigation, is missing.

The only pertinent questions for the utilization of collateral estoppel are whether the issue decided in the prior adjudication is identical with the one presented in the suit in question, whether there has been a final judgment on the merits, and whether the party against whom estoppel is asserted is a party or in privity with a party to the prior adjudication. (Illinois State Chamber of Commerce v. Pollution Control Board (1979), 78 Ill. 2d 1, 7, 398 N.E.2d 9, 12; In re Owens (1988), 125 Ill. 2d 390, 399-400, 532 N.E.2d 248, 252.) The party against whom estoppel is asserted must have had a full opportunity to litigate the issue in question. (Wolford v. Owens-Corning Fiberglas Corp. (1988), 176 Ill. App. 3d 312, 314, 530 N.E.2d 721, 722.) Collateral estoppel is most often asserted by a defendant in an effort to preclude relitigation of an issue which the plaintiff has previously litigated against another defendant and lost. Mohn v. International Vermiculite Co. (1986), 147 Ill. App. 3d 717, 721, 498 N.E.2d 375, 377.

Since summary judgment was granted in favor of Zurich, there was a final judgment on the merits. (See, e.g., Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 505 N.E.2d 314.) Furthermore, the party against whom estoppel is asserted, Sampson, was a party in the prior adjudication in case No. 80 — CH—43. Thus, the only remaining requirement is whether the issue presented in case No. 80 — CH—43 was the same issue presented to the trial court in the present case.

The trial court in case No. 80 — CH—43 granted summary judgment to Centennial for two reasons: (1) there was no genuine issue of material fact that Cape had breached its duty to cooperate with Centennial in its defense by instructing Centennial not to enter an appearance in any lawsuit filed against it in McLean County; and (2) that all defendants were collaterally estopped from relitigating the issue of Cape’s breach of its duty to cooperate in its defense, thereby forfeiting any rights to insurance coverage from judgments in case Nos. 80 — MR—53 and 80 — MR—26. Also in case No. 80 — CH—43, the trial court granted summary judgment in favor of Westchester since there was no question of material fact that Cape had failed to cooperate in its defense by specifically instructing Westchester not to enter an appearance for it, thereby waiving any right to insurance coverage. Summary judgment was granted in this case since the trial court found there was no issue of material fact as to Cape’s noncooperation.

Thus, in case No. 80 — CH—43 and in the present case, the relevant issue was Cape’s noncooperation in its defense and the waiver thereby of any insurance coverage under any of the insurance contracts. Sampson attempts to distinguish these issues by noting that different insurance policies were considered in the two cases. We conclude this distinction is irrelevant. The policies were similar in that they each contained nearly identical clauses describing Cape’s duty to cooperate in its defense and the effect of the failure to do so. We find support for our conclusion in Service Systems Corp. v. Van Bortel (1988), 174 Ill. App. 3d 412, 528 N.E.2d 378. There, an employer brought suit against its former officers and employees seeking an enforcement of a covenant not to compete and a noncompetition provision in their employment agreements. The court held a Federal court’s declaratory judgment involving another employee collaterally estopped the employer from relitigating the issue of whether the covenant not to compete was enforceable. The court noted, although different employment agreements were involved in the two cases, the language of the covenants not to compete was identical and that the employees involved held similar positions within the employer’s company. (Service Systems Corp., 174 Ill. App. 3d at 418, 528 N.E.2d at 382.) Thus, the court found the issues identical for collateral estoppel purposes.

For further support, we refer to our decision in Wolford. There, the plaintiff brought an action against the defendant, Owens-Corning Fiberglass Corporation, for intentional torts relating to exposure to asbestos dust. Owens-Corning filed a motion to dismiss the complaint which was granted by the trial court. On appeal before us, plaintiff contended Owens-Corning was collaterally estopped from challenging the sufficiency of the complaint because of the decision in Handley v. Unarco Industries, Inc. (1984), 124 Ill. App. 3d 56, 463 N.E.2d 1011. Owens-Corning was a defendant in Handley.

This court agreed with plaintiff and found Owens-Corning was collaterally estopped from challenging the sufficiency of the complaint. We noted:

“The complaints in the present case and in Handley are sufficiently alike so as to be considered identical. The counts are voiced in language indicating intentional torts, obviously for the purpose of avoiding the exclusive provisions of the Workers’ Occupational Diseases Act (Ill. Rev. Stat. 1985, ch. 48, pars. 172.40 through 172.46). The issue of collateral estoppel was presented to the trial court by the indication of the similarities of pleadings and by the furnishing of the Handley appellate opinion.” Wolford, 176 Ill. App. 3d at 314, 530 N.E.2d at 722.

Likewise, here, although different insurance policies were in issue, the language in each indicating the forfeiture of coverage because of a failure to cooperate was similar. The trial court had before it these various insurance policies as well as the summary judgment motions and orders in case No. 80 — CH—43. We find the issue in case No. 80 — CH—43 and the present case sufficiently identical for collateral estoppel purposes.

Moreover, Sampson as a defendant in case No. 80 — CH—43 was aware of Cape’s intent not to cooperate. As early as 1980, when Sampson’s attorney sent a letter to Zurich, Sampson was aware that Cape might be uncooperative with its insurers. That letter specified three reasons why Zurich might choose not to defend Cape and the possible consequences of each course of action. One of those reasons included Cape’s failure to tender the defense to Zurich. A reasonable inference from this statement is that Cape had manifested an intent not to cooperate with Zurich by refusing to notify it of the claim and by failing to tender the defense.

Summary judgment was entered in case No. 80 — CH—43 in 1982, which was prior to Sampson’s 1984 proof of damages in the present case. The correspondence of Cape regarding its intention not to cooperate with the other insurers was attached to the motions for summary judgment by Centennial and Westchester, copies of which Sampson received. Sampson even had specific notice of Cape’s intent not to cooperate with Zurich. Attached to Zurich’s trial brief regarding its affirmative defenses was the letter from Cape to Zurich specifically reiterating Cape’s previous instructions to INA, Centennial, and Westchester, and now to Zurich, not to enter an appearance on its behalf in any case in McLean County. Thus, we conclude that Sampson had notice of Cape’s intent not to cooperate with any insurer in Illinois and had an opportunity to litigate this issue in case No. 80 — CH—43.

The policies underlying res judicata and collateral estoppel include, inter alia, certainty and finality to litigation and consistency in judgments. Hammond v. North American Asbestos Corp. (1991), 207 Ill. App. 3d 556, 564, 565 N.E.2d 1343, 1348.

The policies favoring finality of litigation and judicial economy will best be served by concluding that Sampson is collaterally estopped from relitigating the issue of Cape’s noncooperation under this insurance contract. This particular lawsuit has been ongoing for over 10 years and has been to our court once before. (Sampson v. Cape Industries Ltd. (1989), 185 Ill. App. 3d 83, 540 N.E.2d 1143.) As a party defendant, Sampson had the opportunity to litigate the issue of Cape’s noncooperation in case No. 80 — CH—43. Zurich has suffered prejudice since a default judgment was entered against Cape when Zurich had no opportunity to defend Cape in the suit brought by Sampson. Zurich was never notified of the suit by Cape and Cape specifically stated no insurer, including Zurich, was to enter an appearanee on its behalf or defend it in any lawsuit. There is no question that Cape breached its duty to cooperate and thus all of its insurers are relieved of liability under the policy. If Zurich has no liability under the contract, Sampson cannot garnish any proceeds of the contract.

Therefore, for the foregoing reasons, we hold Sampson collaterally estopped from relitigating the issue of Cape’s breach of the cooperation clause in the insurance contract between Zurich and NAAC. The trial court’s granting of summary judgment in favor of Zurich is affirmed.

Affirmed.

COOK and LUND, JJ., concur.


text:
    DONALD E. GRESHAM, Adm’r of the Estate of Carol Gresham, Deceased, Plaintiff-Appellant, v. LLOYD A. KIRBY et al., Defendants-Appellees.
    Fourth District
    No. 4—91—0212
    Opinion filed June 11, 1992.

      William A. Allison, of Allison & Kelly, of Bloomington, for appellant.
    Ancel, Glink, Diamond & Cope, P.C., of Chicago (David Lincoln Ader and Jennifer A. Pritz, of counsel), for appellee Town of Normal.
    William F. Costigan and Robert S. White, both of Costigan & Wollrab, P.C., of Bloomington, for appellee Lloyd A. Kirby.
   JUSTICE COOK

delivered the opinion of the court:

Plaintiff Donald E. Gresham, administrator of the estate of Carol Gresham, deceased, filed this wrongful death action against defendants, the Town of Normal (Town) and Lloyd Kirby. The Town’s motion for summary judgment was granted. A jury found in Kirby’s favor. Plaintiff appeals the grant of summary judgment. We affirm.

On July 5, 1988, Carol Gresham died in an automobile accident at the intersection of College Avenue and U.S. Route 150 in Normal, Illinois. Decedent approached the intersection from the southwest on College Avenue, a two-lane road owned and maintained by the Town; the road had a posted speed limit of 30 miles per hour. Kirby approached the intersection from the southeast on Route 150, a two-lane highway owned and maintained by the State of Illinois Department of Transportation (IDOT); the highway had a posted speed limit of 55 miles per hour. There were stop signs on both College Avenue approaches to the intersection, and no stop signs or other traffic devices on either Route 150 approach. Route 150 traffic accordingly had the right of way. Upon entering the intersection, decedent’s step van was struck by Kirby’s automobile, resulting in decedent’s death. The intersection was first opened in November 1987. There had been at least eight accidents at the intersection before this one, including a fatality in April 1988. After this accident, the Town added two more stop signs for traffic on College Avenue, to the two already present, and placed red flags on top of all four stop signs.

Plaintiff filed a wrongful death action against Kirby, then an amended four-count complaint adding the Town as a defendant. This appeal concerns counts II, III and IV directed against the Town.

The Town averred it was entitled to summary judgment because (1) on the date of the accident, it had no authority to place any traffic regulatory devices on Route 150, which was under the jurisdiction of the State; (2) it did not owe the decedent any duty to warn her as to the condition of the intersection; (3) it was immune from liability under section 3 — 104 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (Ill. Rev. Stat. 1989, ch. 85, par. 3— 104); and (4) none of its alleged acts were the proximate cause of decedent’s death. The court granted the Town’s motion for summary judgment.

Summary judgments are desirable where the pleadings, affidavits, and depositions show that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c); Wojdyla v. City of Park Ridge (1992), 148 Ill. 2d 417, 420-21; Fitt v. City of Mattoon (1991), 215 Ill. App. 3d 472, 479, 574 N.E.2d 1275, 1279.) It was formerly held that when a defendant moved for summary judgment defendant was required to show it was not possible that plaintiff could prove his case, that is, defendant was required to negate plaintiff’s case, even though plaintiff had the burden of proof at trial. (See, e.g., Motz v. Central National Bank (1983), 119 Ill. App. 3d 601, 605, 456 N.E.2d 958, 961-62.) More recent cases make it easier for defendants to obtain summary judgment, holding it sufficient for defendant to point out an absence of some element of evidence to support plaintiff’s case. (Celotex Corp. v. Catrett (1986), 477 U.S. 317, 325, 91 L. Ed. 2d 265, 275, 106 S. Ct. 2548, 2554; Koukoulomatis v. Disco Wheels, Inc. (1984), 127 Ill. App. 3d 95, 101, 468 N.E.2d 477, 481-82; Lindenmier v. City of Rockford (1987) 156 Ill. App. 3d 76, 85, 508 N.E.2d 1201, 1207 (“When a defendant files a motion for summary judgment, the plaintiff must come forward with evidence of negligence on the part of the defendant and with evidence that defendant’s negligence was a proximate cause of the plaintiff’s injuries”); see Schwarzer, Hirsch & Barrans, The Analysis and Decision of Summary Judgment Motions, 139 F.R.D. 441, 449-51, 478 (1991).) In this case, defendant attempts to negate plaintiff’s case by showing there was no duty on its part. The entry of summary judgment is not a matter within the discretion of the trial court. In reviewing a trial court’s ruling on a motion for summary judgment, the appellate court should consider anew the facts and law related to the case to determine whether the trial court was correct. Shull v. Harristown Township (1992), 223 Ill. App. 3d 819, 824, 585 N.E.2d 1164, 1167.

In order to recover in tort for negligence, a plaintiff must establish the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting from that breach. (Wojdyla, 148 Ill. 2d at 417; Ross v. City of Chicago (1988), 168 Ill. App. 3d 83, 86, 522 N.E.2d 215, 217; Dinges v. Gabardi (1990), 202 Ill. App. 3d 732, 735, 560 N.E.2d 21, 23.) The existence of a duty must be determined by the courts as a matter of law. (Curtis v. County of Cook (1983), 98 Ill. 2d 158, 162, 456 N.E.2d 116, 118; Fitt, 215 Ill. App. 3d at 479, 574 N.E.2d at 1279.) If no duty exists, no recovery is possible as a matter of law, and summary judgment for defendant is proper. Beal v. Kuptchian (1987), 164 Ill. App. 3d 191, 193, 517 N.E.2d 712, 714.

Count II of plaintiff’s amended complaint was based on section 3 — 103(a) of the Act (Ill. Rev. Stat. 1989, ch. 85, par. 3 — 103(a)), which makes a local public entity liable for the creation of a condition that is not reasonably safe. Plaintiff alleged that the Town had agreed with the State to reconstruct the intersection and to build it in accordance with the plans and specifications approved by the State. According to the plans, College Avenue would be a through street and traffic on Route 150 would stop at the intersection. Nevertheless, the Town built the intersection with Route 150 as the through street, with traffic on College Avenue to stop. Plaintiff asserted this failure created a “condition that was not reasonably safe for motorists” and was the proximate cause of decedent’s death. However, regardless of whether the Town had a duty not to deviate from the approved plans, plaintiff could not establish that the Town breached such a duty because the Town had no duty or authority to place stop signs on Route 150.

At the time of the accident the State had jurisdiction of Route 150; jurisdiction was eventually transferred to McLean County after the accident. Sections 11 — 303(a) and (b) of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1989, ch. 95½, pars. 11 — 303(a), (b)) provide the State is responsible for placing and maintaining traffic control devices on all highways under its jurisdiction, and local authorities shall not erect any traffic control devices on any State highway except by the State’s permission. (Fitt, 215 Ill. App. 3d at 480, 574 N.E.2d at 1279.) Moreover, when roads and highways of larger and lesser governmental entities intersect, section 11 — 302 of the Code places the responsibility for the erection and maintenance of stop signs and the designation of through highways at the intersections upon the larger governmental entity. (Ill. Rev. Stat. 1989, ch. 95½, par. 11 — 302; Griglione v. Town of Long Point (1989), 184 Ill. App. 3d 20, 28, 539 N.E.2d 1348, 1353, citing Burris v. Madison County (1987), 154 Ill. App. 3d 1064, 1073, 507 N.E.2d 1267, 1273.) The Town could not place stop signs on Route 150 because that power was exclusively vested in the State.

The agreement between the Town and the State contains no specific authorization giving the Town authority to erect traffic control devices, other than an at-grade signalized crossing at the Norfolk & Southern railroad. The agreement clearly obligated the Town to construct the improvements according to the plans, but nothing in the language gave the Town the authority to erect traffic control devices at the intersection of College Avenue and Route 150. This contention is supported by the testimony of Edmund R. Wallens, IDOT bureau of traffic chief, that the joint agreement only made the Town responsible for the traffic control devices on College Avenue, and is reinforced by letters Wallens received from Town officials asking IDOT to act with regard to the intersection. Under the Code, the Town could not place stop signs on Route 150 because that power was reserved to the State, unless specific permission was given to the Town. Contrary to plaintiff’s argument, the agreement did not authorize the Town to erect traffic control devices on Route 150. Summary judgment on count II was appropriate.

As plaintiff states in his brief, the only difference between count II and count III “is that count III suggests the action which the Town failed to take once the dangerous condition became known.” The measures the Town failed to take were (1) to close the intersection to traffic on College Avenue, (2) to provide a four-way stop as recommended by a Town official’s letter to Wallens, (3) to condition motorists on Route 150 or College Avenue to the changes at the intersection as recommended by the Town official’s letter, and (4) to warn traffic on College Avenue of the dangerous condition. Again, the allegations that the Town was negligent in failing to take some action regarding Route 150 must fail because Route 150 was under the jurisdiction of the State, and the Town had no duty or authority to place signs on it or close it.

A different analysis must be applied to the allegations that the Town failed to close or place adequate signs on College Avenue. Under section 11 — 304 of the Code (Ill. Rev. Stat. 1989, ch. 951k, par. 11 — 304), local authorities are required to post signs to regulate, warn, and guide traffic on highways under their maintenance jurisdiction. Section 11 — 304 “ ‘imposes an obligation on local authorities to warn motorists of those hazards which are incident to that portion of the highway which remains under local maintenance jurisdiction.’ ” (Fitt, 215 Ill. App. 3d at 480, 574 N.E.2d at 1280, quoting Janssen v. City of Springfield (1980), 79 Ill. 2d 435, 448, 404 N.E.2d 213, 219.) The Town had authority to post signs to warn traffic on College Avenue of the changes to the intersection and that College Avenue traffic stopped but Route 150 traffic did not.

While section 11 — 304 of the Code imposes an obligation on local authorities to post warning signs (see also section 3 — 102(a) of the Act (Ill. Rev. Stat. 1989, ch. 85, par. 3 — 102(a)), discussed below), section 3 — 104 of the Act immunizes local authorities from any tort liability for failing to fulfill this duty. Section 3 — 104 of the 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. 1989, ch. 85, par. 3-104.

The Town cannot be liable for the failure to post warning signs even if such failure was negligent and was a cause of plaintiff’s injury. This section provides the Town with complete immunity from liability for the failure to warn traffic traveling on College Avenue of the alleged dangerous intersection. (West v. Kirkham (1992), 147 Ill. 2d 1, 5-12, 588 N.E.2d 1104, 1106-09; Fitt, 215 Ill. App. 3d at 481, 574 N.E.2d at 1280.) Summary judgment was properly entered on count III. Section 3 — 104 immunity is also a justification for the grant of summary judgment on count II, assuming the Town had the duty or authority to place signs on Route 150. The trial court did not discuss immunity in its order granting summary judgment, but we may affirm for any reason or ground appearing in the record, irrespective of the reasons assigned by the trial court. Farmers State Bank v. Webel (1983), 113 Ill. App. 3d 87, 92, 446 N.E.2d 525, 528, citing Harrison v. Kamp (1946), 395 Ill. 11, 21, 69 N.E.2d 261, 267.

Plaintiff's argument that the Town should have closed the road is designed to avoid the language of section 3 — 104. That section speaks of “warning sign[s]” and “traffic control devices,” but says nothing of closing a road. Plaintiff’s argument, if accepted, would change the result in most of the cases finding immunity under section 3 — 104. In West, for example, plaintiff would have argued, not that the city should have provided a left-turn arrow, but that the city should have closed Lincoln Avenue. We reject the idea that the policy considerations underlying West and the other cases in this area could be so easily overcome. In any event, a municipality would close a street by “restraining devices” or “barriers,” and a Town’s failure to provide those devices is completely immune from liability under section 3— 104.

Finally, plaintiff alleged that count IV was based on section 3— 102(a) of the Act, which requires a local public entity to maintain its property in a reasonably safe condition for the benefit of intended users when it has notice of an unsafe condition. Plaintiff alleged that notwithstanding its duty to maintain its property, the Town was guilty of one or more of the following acts: (1) allowing traffic on College Avenue when it knew that it was not built according to the plans; (2) failing to warn motorists on College Avenue of the hazard created by the intersection; (3) failing to build the intersection in accordance with the plans; (4) failing to build the intersection, taking into account the safe movement of the traffic, in accordance with the plans; (5) placing the stop sign on College Avenue so it would not reasonably be seen in time to stop at the intersection; (6) placing stop signs on College Avenue without conducting an engineering study; (7) failing to close the intersection; (8) failing to provide a four-way stop; (9) failing to condition motorists traveling on Route 150 or College Avenue to the changes at the intersection; and (10) failing to install intersection control beacons.

The Act creates no new duties but merely codifies those existing at common law. (West, 147 Ill. 2d at 14, 588 N.E.2d at 1110; Swett v. Village of Algonquin (1988), 169 Ill. App. 3d 78, 92, 523 N.E.2d 594, 603.) The traditional common law duty of local governments concerning public property was one to maintain that property in a reasonably safe condition. (Curtis, 98 Ill. 2d at 163, 456 N.E.2d at 119; Horrell v. City of Chicago (1986), 145 Ill. App. 3d 428, 432, 495 N.E.2d 1259, 1262.) Once a public improvement was actually constructed, the municipality had a duty to maintain it in a reasonably safe condition; however, no liability could be imposed for the failure to undertake the improvement in the first place. Swett, 169 Ill. App. 3d at 92, 532 N.E.2d at 603; see also Horrell, 145 Ill. App. 3d at 432, 495 N.E.2d at 1262; Ross, 168 Ill. App. 3d at 87, 522 N.E.2d at 218.

Most of the allegations of count IV do not apply to any duty of maintenance. Plaintiff does not allege that the death of the decedent was caused by a state of disrepair or deterioration of the intersection, or for any other failure of maintenance. (See Harding v. Chicago Park District (1975), 34 Ill. App. 3d 425, 428-29, 339 N.E.2d 779, 782; Ross, 168 Ill. App. 3d at 87-89, 522 N.E.2d at 218-19.) Rather, plaintiff argues that the Town had a duty to build the intersection in accordance with the plans, to warn or condition motorists on Route 150 and College Avenue, to close the intersection, to provide a four-way intersection, and to install intersection control beacons — all as part of its duty to maintain its property under this section. The duty of maintenance does not include such activities. The State had placed stop signs on College Avenue, which was under the jurisdiction and control of the Town. The Town did have a duty to maintain these stop signs. (See Griglione, 184 Ill. App. 3d at 28, 539 N.E.2d at 1348; Bentley v. Saunemin Township (1980), 83 Ill. 2d 10, 413 N.E.2d 1242.) As the trial court found, there was no evidence to show that the Town had breached this duty.

Finally, section 3 — 102(a) of the Act requires a local entity to maintain its property in a reasonably safe condition, “[ejxcept as otherwise provided” (Ill. Rev. Stat. 1989, ch. 85, par. 3 — 102(a)), but section 3 — 104, granting immunity for the initial failure to provide traffic control devices, is a section which “otherwise provides.” The obligation to provide traffic control devices is expressly excluded from the purview of the general duty to maintain found in section 3 — 102(a). (West, 147 Ill. 2d at 14, 488 N.E.2d at 1110.) Section 3-102(a) of the Act does not provide a basis for the Town’s duty to decedent, and summary judgment was appropriate on this count.

Because we find that summary judgment was appropriate as to each of the three counts, there is no need for us to address the Town’s contention that summary judgment could have been granted on the basis that plaintiff failed to establish that the Town’s acts or omissions were the proximate cause of decedent’s death.

Similarly, we need not address plaintiff’s argument that if this court finds error in the grant of summary judgment, the case should be remanded for a new trial against both defendants. Plaintiff originally took an appeal both as to the Town and as to Kirby, the driver of the other vehicle. After plaintiff filed his brief, plaintiff and defendant Kirby filed a motion to dismiss the appeal against Kirby, contending they had entered into a good-faith settlement relating to that cause of action. (See Ill. Rev. Stat. 1989, ch. 70, pars. 302(c), (d).) The Town objected, arguing it might be entitled to contribution from Kirby in the event we reversed the summary judgment. We grant the motion to dismiss the appeal as to Kirby.

The judgment of the trial court is affirmed.

Affirmed.

KNECHT and STEIGMANN, JJ., concur.