author: JUSTICE McLAREN

text:
    KEITH WOOD, a Disabled Person, by and through his Coguardians and Next Friends, Nancy Harrold et al., Plaintiff-Appellant, v. THE VILLAGE OF GRAYSLAKE et al., Defendants-Appellees (Gayle Kostycz, Defendant).
    Second District
    No. 2—91—0966
    Opinion filed May 20, 1992.

      Thomas J. Tyrrell, Jeffrey D. Javors, and Melissa L. Granholm, all of Tyrrell, Etchingham & Associates, of Chicago, for appellant.
    Dennis J. Cotter, Glen E. Amundsen, and Mary T. Nagel, all of Querrey & Harrow, Ltd., of Waukegan, and Vincent C. Cipolla, of Kurnik, Cipolla, Stephenson & Barasha, Ltd., of Arlington Heights, for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

Keith C. Wood, plaintiff, a disabled person, by and through his co-guardians and next friends Nancy Harrold and Ronald C. Wood, appeals from an order dismissing his third amended complaint against the Village of Grayslake (the Village), the County of Lake, and the Highway Department of County of Lake, an agent of the County of Lake (hereinafter collectively referred to as the County), defendants. For the following reasons, we affirm.

Route 83 runs in a northwesterly/southeasterly direction and intersects with Lake Street, a north/south road, at an angle in the County of Lake. On September 20, 1988, at approximately 10 p.m., Keith Wood was operating his motorcycle on Route 83 in a northwesterly direction near its intersection with Lake Street. At the same time, Gayle Kostycz was travelling north on Lake Street. Wood’s motorcycle collided with a vehicle driven by Kostycz at this intersection, and Wood suffered permanent and disabling injuries. At the time of the collision, the intersection was controlled by stop signs on Lake Street for northbound and southbound traffic. Motorists travelling on Route 83 were not subject to any traffic control devices and were not required to stop.

Plaintiff’s third amended complaint alleged that the Illinois Highway Code (Ill. Rev. Stat. 1987, ch. 121, par. 1 — 101 et seq.), the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 304), and a maintenance agreement between the County of Lake and the State of Illinois imposed the following duties on the Village and the County:

To exercise ordinary care to inspect, control, regulate and maintain the public streets and roads, within and without its jurisdiction, in good repair and in a reasonably safe manner, and to provide, inspect, control and maintain adequate traffic signs, markings and devices, warning of dangers to motorists approaching the intersections of Route 83 and Lake Street and to provide adequate traffic control devices to regulate, guide or warn traffic of the unusual nature of the intersection which endangered the safe movement of traffic, said conditions not being reasonably apparent to or anticipated by a person in the exercise of due care and, further, to warn motorists of hazards adjacent to the roadway and to remove public nuisances adjacent to the roadway.

In separate counts, the complaint alleged that the Village negligently and/or intentionally or recklessly committed the following acts and omissions:

(1) Failed to provide sufficient traffic control signs, markings and devices at or near the intersection to provide a warning to northbound traffic on Lake Street of the presence of an intersecting northwesterly/southwesterly roadway (namely Route 83);
(2) failed to improve the existing traffic control devices by erecting signs or devices warning that cross-traffic on Route 83 does not stop and that the intersection is dangerous;
(3) failed to clear obstructions at the southeast corner of the intersection, namely an advertising sign, cement posts, and illegally parked automobiles, which hindered the view of oncoming traffic to motorists;
(4) failed to erect and maintain signs, markings or devices warning motorists that cross-traffic on Route 83 had an open intersection and was not required to stop or reduce speed;
(5) failed to reduce the designated speed limit on Route 83;
(6) failed to provide, erect or install stop signs, markings or other traffic control signals at or near all comers of the intersection to fully control the intersection;
(7) failed to maintain the crossroad indication sign on Route 83 located 650 feet southeast of its intersection with Lake Street at the time of the collision;
(8) failed to erect a sign on Lake Street warning motorists travelling on Lake Street approaching Route 83 that the crossroad indication sign 650 feet southeast of the intersection on Route 83 was not present and had been missing for an appreciable length of time; and
(9) otherwise failed to adequately control, maintain, inspect and regulate said highways.

Next, plaintiff alleged that the County of Lake and the Highway Department negligently and/or intentionally or recklessly committed the folio-wing acts and omissions:

(1) Failed to provide sufficient traffic control signs, markings and devices at or near the intersection to provide a warning to northwesterly bound traffic on Route 83 of the presence of an intersecting north/south roadway (namely Lake Street);
(2) failed to improve the existing traffic control devices by erecting signs or devices warning that the approaching intersection is dangerous, and implement other protective measures for traffic, including placing stop signs or signals to control traffic in all directions;
(3) failed to clear obstructions at the southeast corner of the intersection, namely an advertising sign, cement posts, and illegally parked automobiles, which hindered the view of oncoming traffic to motorists;
(4) failed to erect and maintain signs, markings or devices warning motorists that they were approaching a dangerous intersection;
(5) failed to reduce the designated speed limit on Route 83;
(6) failed to erect and maintain signs, markings or devices warning motorists that the aforementioned obstructions at the southeast corner of the intersection created an unanticipated and unsafe condition;
(7) failed to maintain the crossroad indication sign on Route 83 located 650 feet southeast of its intersection with Lake Street at the time of the collision;
(8) failed to erect a sign on Lake Street warning motorists travelling on Lake Street approaching Route 83 that the crossroad indication sign 650 feet southeast of the intersection on Route 83 was not present and had been missing for an appreciable length of time; and
(9) otherwise failed to adequately control, maintain, inspect and regulate said highways.

The complaint supported its wilful and wanton allegations by attaching reports of collisions occurring at the intersection in the prior four years. Knowledge of the hazardous nature of the intersection was also asserted by virtue of a safety investigation of the intersection commissioned by the Village.

In response, the Village moved to dismiss the third amended complaint pursuant to section 2 — 615 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615) on the basis that the third amended complaint essentially repleaded the allegations previously presented in the second amended complaint which was dismissed pursuant to a prior section 2 — 615 motion. The Village also maintained its position that it does not have a duty to maintain the crossroad sign because it is located on a State highway under the exclusive jurisdiction of the Department of Transportation.

In turn, the County moved to dismiss pursuant to section 2— 619(aX9) of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2-619(a)(9)). The County asserted that it has no jurisdiction over the roadways in question and therefore owed no duty to plaintiff to control or maintain the intersection. The County further asserted that, even if it did have a such a duty, the intersection was not the proximate cause of the collision and also that the allegations of wilful and wanton conduct were insufficient because the County had no actual or constructive notice of the alleged dangerous nature of the intersection. After a hearing, the court entered an order dismissing plaintiff’s third amended complaint against the Village and the County with prejudice pursuant to section 2 — 619(a)(9) of the Code.

When the grounds for a dismissal do not appear on the face of the pleadings, but are established by affidavits or depositions, a defendant may contest the complaint through either a motion to dismiss pursuant to section 2 — 619 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619) or a motion for summary judgment (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005). (Quinton v. Kuffer (1991), 221 Ill. App. 3d 466, 469.) The purpose of a section 2 — 619 motion is to dispose of issues of law or easily proved issues of fact. (Brown v. Chicago Park District (1991), 218 Ill. App. 3d 612, 615.) A dismissal on the pleadings is warranted only if it is clearly apparent that no set of facts can be proved which would entitle the plaintiff to recover. (Gouge v. Central Illinois Public Service Co. (1991), 144 Ill. 2d 535, 542; Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 505.) In reviewing the propriety of a section 2 — 619 dismissal, we must assume all well-pleaded facts in the plaintiff’s complaint as true. However, conclusions of law or fact unsupported by specific factual allegations may be disregarded. (Nagy v. Beckley (1991), 218 Ill. App. 3d 875, 878.) In this case, the trial court dismissed plaintiff’s third amended complaint without specifically noting its rationale. However, a section 2 — 619 dismissal may be affirmed on any grounds supported by the record, regardless of whether the trial court relied on those grounds or whether the trial court’s reasoning was correct. Beckman v. Freeman United Coal Mining Co. (1988), 123 Ill. 2d 281, 286.

To state a cause of action for either simple or wilful and wanton negligence, a plaintiff must allege facts sufficient to show defendant had a duty to maintain the roadway and intersection in question, a breach of such duty, and an injury proximately resulting from the breach. (Marshall v. City of Centralia (1991), 143 Ill. 2d 1, 6.) The issue of whether the defendant owed plaintiff a duty of care is a question of law to be determined by the trial court which is properly asserted in a motion to dismiss pursuant to section 2 — 619. (Brown v. Chicago Park District (1991), 218 Ill. App. 3d 612, 616.) Resolution of the issue depends on whether the parties stood in such a relationship to one another that the law imposes an obligation on the defendant to act reasonably for the protection of plaintiff. (Gouge, 144 Ill. 2d at 542.) The court must also weigh the foreseeability that defendant’s conduct will result in injury and the likelihood of an injury occurring against the burden to defendant of imposing a duty and the consequences of imposing this burden. Ziemba v. Mierzwa (1991), 142 Ill. 2d 42, 47.

In support of its section 2 — 619 dismissal, the County submitted the affidavit of Martin Buehler, director of transportation and county superintendent of highways for the Lake County division of transportation. Buehler stated that, on the date of the collision the intersection of Route 83 and Lake Street, including the stop sign on the southeast corner of the intersection, was trader “the exclusive jurisdiction and control of the State of Illinois.” Buehler’s affidavit confirmed that the County entered into an agreement with the State of Illinois to maintain the intersection for a fee on the date in question. However, the County asserts that this agreement does not confer maintenance jurisdiction giving rise to any of the alleged duties within the meaning of the Illinois Vehicle Code. Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 304.

Plaintiff filed a response to the County’s motion to dismiss. In his objections, however, plaintiff does not deny the substance of Buehler’s affidavit, nor has he filed a counteraffidavit. The failure to file a counteraffidavit does not entitle the movant to judgment ipso facto. However, where a party moving for dismissal pursuant to section 2 — 619 files supporting affidavits containing well-pleaded facts and the party opposing the motion files no counteraffidavits, the facts set forth in the movant’s affidavits are accepted as true despite any contrary assertions in the nonmovant’s pleadings. (See In re Marriage of Dowd (1991), 214 Ill. App. 3d 156, 157; Blankenship v. Dialist International Corp. (1991), 209 Ill. App. 3d 920, 924.) If the opponent fails to controvert the proofs offered in support of the motion and the movant’s showing of uncontradicted facts would entitle him to judgment as a matter of law, a dismissal pursuant to section 2 — 619 is proper. Cf. Blankenship, 209 Ill. App. 3d at 924.

Accordingly, we accept Buehler’s uncontroverted statement that, on the date of the collision, the State of Illinois had exclusive jurisdiction and control of Route 83, including the portion from Washington Street (south of the intersection) to Rollins Road (north of the intersection) which includes the intersection of Route 83 and Lake Street, and Lake Street south of Route 83 to Washington Street. We must also accept as true Buehler’s statement that the County entered into an agreement to maintain Lake Street from its intersection with Route 83 to Washington Street, which was in effect on the date of the collision.

On appeal, plaintiff contends that the court erred in dismissing the complaint because it contains sufficient factual allegations concerning defendants’ duty, breach of duty and proximate cause for which defendants cannot claim immunity under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1987, ch. 85, par. 1 — 101 et seq.). In an effort to controvert the contents of Buehler’s affidavit, plaintiff asserts that defendants owe a duty to maintain the intersection in a safe condition arising under common law, by statute, and pursuant to a maintenance agreement between the County and the State of Illinois. This duty is alleged to have been breached by failing to provide sufficient traffic control devices or warning signs, to improve existing traffic control devices, to clear obstructions, to reduce the speed limit on Route 83, and to maintain the sign on Route 83 warning of the intersection.

Focusing first on the maintenance agreement, our review of its specific language reveals that it obligates the County to maintain Lake Street from Route 83 to Renehan (Washington Street, south of the intersection) in a manner satisfactory to the Department of Transportation. However, plaintiff’s third amended complaint is completely devoid of any allegations concerning defendants’ duty to maintain Lake Street. Instead, plaintiff charges negligence by the County and the Village in failing to reduce the designated speed limit of Route 83, failing to maintain the crossroad indication sign located on Route 83, failing to clear obstructions located on the southeast corner of the intersection, and failing to provide traffic control devices. Because the maintenance agreement relates solely to Lake Street, it does not create a duty to remedy any of the alleged hazards on Route 83.

Moreover, the County is not under a duty to maintain Route 83 by virtue of section 11 — 304 of the Illinois Vehicle Code, which provides as follows:

“Local authorities and road district highway commissioners in their respective maintenance jurisdiction shall place and maintain such traffic-control devices upon highways under their maintenance jurisdiction as are required to indicate and carry out the provisions of this Chapter, and local traffic ordinances or to regulate, warn, or guide traffic.” (Ill. Rev. Stat. 1987, ch. 95½, par. 11-304.)

While this section imposes an obligation on local authorities to warn motorists of those hazards incident to the portion of a highway remaining under local maintenance jurisdiction (Santelli v. City of Chicago (1991), 222 Ill. App. 3d 862, 869), section 3 — 104 of the Tort Immunity Act immunizes a local public entity from any tort liability for failing to fulfill this duty. (West v. Kirkham (1992), 147 Ill. 2d 1, 14; Fitt v. City of Mattoon (1991), 215 Ill. App. 3d 472, 481.) However, a service agreement between a municipality and the State which obligates the municipality to repair and maintain streets under the jurisdiction and control of the State, for a fee, does not confer maintenance jurisdiction upon the locality within the meaning of section 11 — 304. (Ross v. City of Chicago (1988), 168 Ill. App. 3d 83, 91.) Consequently, section 11 — 304 does not create any duty on the part of the County pursuant to the maintenance agreement as to any of the allegations in plaintiff’s third amended complaint. We also note that the Village owes no duty to plaintiff pursuant to the maintenance agreement, since the Village was not a party to the agreement.

In his response to the County’s section 2 — 619 motion to dismiss, plaintiff also asserts that defendants owe a common-law duty to maintain roadways in a reasonably safe condition. However, both the Village of Grayslake and the County of Lake are within the definition of a “local public entity” of the Tort Immunity Act (Ill. Rev. Stat. 1987, ch. 85, par. 1 — 206), the purpose of which is “to protect local public entities and public employees from liability arising from the operation of government.” (Ill. Rev. Stat. 1987, ch. 85, par. 1 — 101.1(a).) Section 3 — 104 of the Tort Immunity Act describes the immunity for failing to provide traffic signals and signs as follows:

“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. 1987, ch. 85, par. 3-104.)

It is clear that the Tort Immunity Act does not create any new liabilities for negligent acts or omissions which did not previously exist, but articulates the common-law duty to which the subsequently delineated immunities apply. (Vesey v. Chicago Housing Authority (1991), 145 Ill. 2d 404, 412.) However, the extent to which the language of section 3 — 104 describes or limits the common-law duty of a governmental unit to warn motorists of hazardous roadway conditions has been an unsettled issue in our courts.

In Janssen v. City of Springfield (1980), 79 Ill. 2d 435, our supreme court held that the city had a statutory obligation to warn of the hazard created by a traffic island which projected into the outer lane of an intersection under State control. The court found that the city’s duty existed by virtue of an agreement between the city and State bestowing maintenance jurisdiction over the lane which would bring motorists in contact with the hazardous projection on the city. In Dinges v. Gabardi (1990), 202 Ill. App. 3d 732 (Geiger, J., dissenting), this court upheld the viability of Janssen and reversed the dismissal of the portion of plaintiff’s complaint alleging negligence by the County of Kane in failing to maintain a stop sign and otherwise warn motorists of the dangerous condition of the intersection. It reasoned that the duty to warn stems from the duty to maintain public roadways in a reasonably safe condition and that the immunities available under section 3 — 104 of the Tort Immunity Act “[do] not apply where a particular sign is necessary to warn of a condition which endangers the safe movement of traffic.” (Dinges, 202 Ill. App. 3d at 736-37, citing Smith v. County of White (1989), 191 Ill. App. 3d 569, 577.) In Castorena v. Browning-Ferris Industries of Illinois (1991), 217 Ill. App. 3d 328 (Geiger, J., specially concurring), however, this court reversed a directed verdict on the issue of the city’s negligence in failing to warn of a hazardous condition. Although the Castoreña court modified Dinges and held that a public entity is immune from liability for initially failing to provide signs warning of a dangerous condition, it found that the immunity no longer exists once the public entity has notice of the dangerous condition. Castorena, 217 Ill. App. 3d at 334.

Recently, our supreme court clarified the extent to which section 3 — 104 provides immunity for the “failure to initially provide regulatory traffic control devices.” (Ill. Rev. Stat. 1987, ch. 85, par. 3 — 104.) In West (147 Ill. 2d at 6), plaintiff’s complaint alleged negligence by the City of Urbana in failing to provide a left-turn arrow on a street where the collision occurred. The court rejected plaintiff’s contention that the immunity described by section 3 — 104 will only attach if the municipality was without notice that the lack of the device created a dangerous condition. Instead, the court concluded that the legislative history and the language of section 3 — 104 evidence the clear intent “to enlarge the scope of section 3 — 104’s immunity and to immunize absolutely the failure to initially provide a traffic control device, even where such failure might ‘endanger the safe movement of traffic.’ ” (Emphasis in original.) West, 147 Ill. 2d at 8.

Further, the court overruled Smith v. County of White (1989), 191 Ill. App. 3d 569, to the extent it relied on section 3 — 104(b) of the Tort Immunity Act, which was deleted by an amendment to the statute in 1986, in holding that immunity cannot attach when the local public entity previously installs a sign at the intersection because the claim at issue is not based on the “initial” failure to provide. (West, 147 Ill. 2d at 11.) The court stated that this rationale “would effectively swallow the section’s immunity entirely,” because “the creative plaintiff, seeking to premise an action on the failure to provide a particular traffic device, could always circumvent section 3 — 104 by finding and pointing out some other traffic device that was provided.” (Emphasis in original.) (West, 147 Ill. 2d at 10.) This rationale applies to plaintiff’s allegation that defendants were negligent in failing to reduce the speed limit on Route 83. Although this language is not couched in terms of the initial failure to provide a speed limit sign, West makes clear that immunity under section 3 — 104 applies to the failure to provide a specific traffic control device, even if the alleged hazard already has a different type of signal or sign.

Further, the West court dispelled any confusion concerning the construction of section 3 — 104 with section 3 — 102 of the Tort Immunity Act. Section 3 — 102(a) codifies the common-law duty of a governmental unit to maintain its property in a safe condition as follows:

“Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 85, par. 3 — 102(a).)

The West court held that the duty to provide is exclusively governed by section 3 — 104 because the underscored language exhibits an intent to expressly exclude the duty to provide from the general duty to maintain. (West, 147 Ill. 2d at 13.) West, therefore, holds that section 3 — 104 of the Tort Immunity Act absolutely immunizes a local public entity from failing to provide traffic control devices even if the governmental unit had notice of the hazardous condition of the roadway.

Thus, even if defendants owe a duty to maintain their property for the benefit of plaintiff, arising by operation of common law (codified in section 3 — 102), under contract (pursuant to the maintenance agreement), or by statute (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 304), our supreme court’s analysis in West indicates that section 3 — 104 absolutely immunizes a local public entity from any liability arising out of the failure to provide a particular traffic control device, even if such failure was the proximate cause of plaintiff’s injuries. Therefore, all allegations charging the Village and the County with both ordinary and wilful and wanton negligence in failing to provide, improve, erect, or install traffic control signs, markings, or devices were properly dismissed by the court.

The remaining allegations charge the Village and the County with both ordinary and wilful and wanton negligence in failing to remove obstructions from the southeast comer of the intersection and failing to maintain the crossroad indication sign on Route 83. Although Buehler’s affidavit states that neither the Village nor the County had jurisdiction over the intersection and its surrounding area, plaintiff cites Dinges for the proposition that a governmental unit controlling a roadway owes a duty to warn motorists of hazards adjacent to the roadway even if the hazard itself is not within its control. As we previously noted, this was essentially the holding of our supreme court in Janssen (79 Ill. 2d at 444). However, Janssen and Dinges are overruled by our supreme court in West, to the extent they rely on section 3 — 104(b) of the Tort Immunity Act, which was deleted by an amendment to the statute in 1986. See West, 147 Ill. 2d at 11.

Assuming arguendo that both the Village and the County owe a duty to plaintiff arising under common law and its construction in Janssen, by statute, or pursuant to the maintenance agreement, neither the obstructions nor the absence of a crossroad indication sign on Route 83 was the proximate cause of the collision. Proximate cause is defined as the cause which produces the injury through a natural and continuous sequence of events unbroken by any effective intervening cause. (Parsons v. Carbondale Township (1991), 217 Ill. App. 3d 637, 647.) While proximate cause is ordinarily a question of fact, it can be a question of law where reasonable persons could not differ as to the inferences to be drawn from disputed facts. (Newsome v. Thompson (1990), 202 Ill. App. 3d 1074, 1081.) To survive dismissal, the plaintiff must present some factual basis that arguably entitles him to recover. (Gehrman v. Zajac (1975), 34 Ill. App. 3d 164, 166.) If the negligence charged does nothing more than furnish a condition which made the injury possible, and that condition causes an injury by the subsequent, independent act of a third party, the creation of the condition is not the proximate cause of the injury. The subsequent independent act becomes the effective intervening cause which breaks the causal connection between the original wrong and the injury, and itself becomes the proximate or immediate cause. Ball v. Waldo Township (1990), 207 Ill. App. 3d 968, 973; Newsome, 202 Ill. App. 3d at 1081.

Immediately prior to the collision in the present case, plaintiff was travelling in a northwesterly direction on Route 83. Assuming plaintiff was not aware of the upcoming intersection with Lake Street due to the absence of the warning sign on Route 83 or because obstructions impaired his view, a stop sign on the southeast comer of Lake Street required Gayle Kostycz, the woman operating the vehicle which collided with plaintiff, to stop and yield to traffic on Route 83. Plaintiff’s complaint lacks any allegations that defendants were negligent in failing to maintain this stop sign or that the obstructions impaired Kostycz’ view of the stop sign on the date in question. Instead, the complaint makes the sweeping allegation that defendants were negligent in “fail[ing] to cause obstructions, including an advertising sign, cement posts and illegally parked automobiles, located at the southeast comer of the intersection adjacent to the highway hindering motorists view of oncoming traffic to be removed.”

In its motion to dismiss, the County offered excerpts of Kostycz’ deposition in an effort to show that no improvement to the intersection would have prevented the collision. Kostycz testified that on the date of the collision the weather conditions were clear and dry. She claims to have observed the stop sign by coming to a complete stop approximately three car lengths after the sign and looking both ways along Route 83 for approximately three seconds before proceeding into the intersection and colliding with plaintiff. She stated that her vision was not impaired by parked cars, sign posts, or any other obstructions.

As we have previously stated, plaintiff’s complaint must allege a duty, a breach of duty, and an injury proximately resulting from the breach. (Marshall, 143 Ill. 2d at 6.) Where a plaintiff fails to establish an element of the cause of action through the pleadings, depositions, admissions, and affidavits filed, dismissal is proper. (Cf Parsons, 217 Ill. App. 3d at 649.) Although we do not expect, nor does the law require, that plaintiff prove his case at the hearing on the County’s motion to dismiss, he must present some facts to show that the absence of the sign on Route 83 and any obstructions which existed were the proximate cause of his injuries. Cf. Gilberg v. Toys “R” Us, Inc. (1984), 126 Ill. App. 3d 554, 558.

In this case, both the Village and County had a right to assume that Kostycz would not violate her statutory duty to yield the right-of-way to oncoming traffic on Route 83 and that she would check for oncoming traffic before proceeding into the intersection. Furthermore, Kostycz testified that she did observe the stop sign. Without any counterevidentiary support for plaintiff’s allegations that the failure to maintain the sign on Route 83 and the failure to clear obstructions from the intersection somehow caused his injuries, his allegations are based on surmise and conjecture and fail to furnish a factual link between the collision and the conditions of the intersection sufficient to support the requirement of pleading proximate cause. Based on the pleadings and uncontroverted evidentiary facts before the court, we find that the absence of the sign or any obstructions at the intersection did nothing more than furnish a condition. Kostycz’ actions were the type of subsequent, independent acts constituting an effective intervening cause which broke the chain of causation between the Village’s and County’s negligence, if any, and plaintiff’s injury.

To summarize our holding, we determine, as a matter of law, that all allegations in plaintiff’s third amended complaint were properly dismissed pursuant to section 3 — 104 of the Tort Immunity Act and its construction as articulated in West v. Kirkham (1992), 147 Ill. 2d 1, 14, with the exception of the allegations that the County and Village were negligent in failing to clear obstructions from the intersection and in failing to maintain the sign on Route 83 warning of the approaching intersection. Additionally, we determine, as a matter of law, that the remaining allegations were also properly dismissed because plaintiff failed to allege facts and present evidence which would support a finding that the failure to maintain the sign and clear obstructions was a proximate cause of plaintiff’s injuries.

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

Affirmed.

UNVERZAGT and WOODWARD, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE INGLIS

license: Public Domain

text:
      In re MARRIAGE OF CATHERINE L. LOS, Petitioner-Appellee, and SIMON G. LOS, Respondent-Appellant.
    Second District
    No. 2—91—0910
    Opinion filed May 19, 1992.

      Simon G. Los, of Wilmington, Delaware, appellant pro se.

    Eva W. Tameling, of Botti, Marinaccio, DeSalvo & Tameling, Ltd., of Oak Brook, for appellee.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Respondent, Simon G. Los, appeals after the circuit court of Du Page County issued a plenary order of protection that restricted his visitation rights for a two-year period. Simon, a resident of Delaware, contends that the Illinois trial court lacked personal jurisdiction to enter the order of protection sought by petitioner, Catherine L. Los. He alternatively contends that the trial court abused its discretion in issuing the protective order. We reverse and remand.

The parties were divorced in August 1989. At that time, Simon and Catherine had two sons, Benjamin and Morgan. Before the final divorce decree, Catherine and the children moved to Chicago to live with her parents. On October 13, 1989, the family court of Delaware awarded primary custody to Catherine in Illinois. Simon was awarded visitation for July and August of each year, from December 26 through January 1 of each year, “from Tuesday through Sunday during the weeks [sic] following the childrens’ [sic] spring vacation from school,” alternate Thanksgivings, and three weekends a year in October, February and June.

The visitation schedule remained unmodified until March 1991. On March 15, Catherine filed a petition to domesticate the Delaware judgment for dissolution of marriage pursuant to section 511(c) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (Ill. Rev. Stat. 1989, ch. 40, par. 511(c)). Simon, pro se, filed an answer, appearing “specifically and not generally” to contest jurisdiction. Between the time of Catherine’s petition and Simon’s answer, the Delaware Supreme Court ordered that Simon’s pending motion to amend visitation would be treated as a properly filed petition to amend provided that Simon paid the required filing fee. The record reflects that Simon did not follow through with the petition to amend visitation in the Delaware courts.

On May 9, 1991, Judge Michael Galasso of the eighteenth judicial circuit, Du Page County, received a letter from Judge Jay Conner of the Delaware family court. Judge Conner informed Judge Galasso that the parties had no issues of custody or support pending in the family court. Judge Conner also acknowledged that Simon failed to pay the filing fee to retain his motion for modification of visitation. Simon wrote a letter to Judge Galasso on May 29, 1991, to inform him that the order of the Delaware Supreme Court was being appealed to the United States Supreme Court.

Catherine replied to Simon’s answer on June 12, 1991. Her affidavit stated that visitation should be modified because Simon was behind on child support payments, he was unemployed and Catherine did not know his address, and that the children were not properly cared for when visiting Simon. The same day, the Du Page County circuit court domesticated the Delaware judgment. Simon filed a motion for reargument.

According to Judge Conner’s order in the Delaware family court, Catherine wrote Simon on June 22 claiming that a hearing to modify custody was scheduled for July 9, and Catherine did not want to permit Simon’s summer visitation prior to the hearing. However, the record reflects that Catherine’s petition to modify the judgment for dissolution of marriage was not filed until July 1. On July 1, Simon traveled to Illinois to bring his children to Delaware for the court-approved July and August visitation. Simon picked them up at day-care in the morning and returned to Delaware. In response, Catherine filed a petition for order of protection claiming the children had been “abducted.” Catherine also filed a petition for a rule to show cause and for attorney fees. According to the record, Catherine also filed the petition to modify the dissolution judgment. The court issued an emergency order of protection for the return of the Los children to Illinois. The order was to expire on July 18.

Simon was sent notice on July 1 that the hearing on the petitions for a rule to show cause, attorney fees and for modification of the judgment would be held on July 9. Catherine also petitioned the Delaware family court to find Simon in contempt for violating the emergency order of protection. Simon claims that he became aware of the protection order several days after returning to Delaware.

On July 8, both Simon and Catherine appeared in the Delaware family court. The Delaware court ordered that Simon had a legal right to visitation pursuant to the dissolution judgment. The court also expressed concerns about whether Illinois courts had subject matter jurisdiction and personal jurisdiction over Simon to modify visitation rights. The court ordered that Simon return to Illinois with the children on July 18 for a weekend visit with Catherine. That date coincided with the hearing in Illinois on July 18 for extension of the protection order.

Meanwhile, the hearing on Catherine’s various petitions was scheduled for July 9. Simon failed to appear, and the court ordered that the rule to show cause be issued for Simon’s failure to pay child support of $131.54 per week. The court also ordered that the hearing on Catherine’s petition to modify the judgment and on the contempt order be set for July 18, the same time as the hearing on the extension of the protection order. Simon filed a memorandum on July 16, again disputing the court’s jurisdiction to issue the protection order and to domesticate the Delaware judgment and requested that all pleadings by Catherine in the Illinois courts be dismissed.

On July 18, the trial court issued a plenary order of protection giving full legal custody of the children to Catherine until a hearing on July 15, 1993. Simon was prohibited from removing the children from the State of Illinois and was allowed visitation if supervised by Catherine or another person selected by her. Simon filed a timely notice of appeal.

Simon contends that the trial court lacked jurisdiction to issue the plenary order of protection under Illinois’ Uniform Child Custody Jurisdiction Act (Custody Act) (Ill. Rev. Stat. 1989, ch. 40, par. 2101 et seq.) and under Federal law, specifically the Parental Kidnapping Prevention Act of 1980 (Kidnapping Act) (28 U.S.C. §1738A et seq. (1988)). Alternatively, Simon contends that the trial court abused its discretion in issuing the plenary order of protection. Catherine contends that the trial court had personal jurisdiction over Simon to enter the protection order and that Simon is estopped from arguing jurisdiction because he failed to appear at the hearing to present his argument.

We note that arguments I and II in Catherine’s brief, which claim that Simon is estopped from arguing jurisdiction, are not adequately briefed. There are no references to case citations or to the record. We deem these arguments waived by Catherine. Spinelli v. Immanuel Lutheran Evangelical Congregation, Inc. (1987), 118 Ill. 2d 389, 400-01.

Section 208 of the Domestic Violence Act of 1986 states:

“In child custody proceedings, the court’s personal jurisdiction is determined by this State’s Uniform Child Custody Jurisdiction Act, as now or hereafter amended. Otherwise, the courts of this State have jurisdiction to bind (i) State residents and (ii) non-residents having minimum contacts with this State, to the extent permitted by the long-arm statute, Section 2 — 209 of the Code of Civil Procedure, as now or hereafter amended.” Ill. Rev. Stat. 1989, ch. 40, par. 2312 — 8.

Section 4 of the Custody Act states that the circuit courts have jurisdiction to modify a child custody judgment if, among other reasons:

“1. [TJhis State
(i) is the home state of the child at the time of commencement of the proceeding, or
(ii) had been the child’s home state within 6 months before commencement of the proceeding and the child is absent from this State because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this State.” Ill. Rev. Stat. 1989, ch. 40, par. 2104(a)(1).

Section 3.04 of the Custody Act defines “[h]ome state” as:

“[T]he state in which the child immediately preceding the time involved lived with *** [a] parent, for at least 6 consecutive months.” Ill. Rev. Stat. 1989, ch. 40, par. 2103.04.

Section 15 of the Custody Act provides that an Illinois court may modify a child custody judgment of another State if that State no longer has jurisdiction or the Illinois court has jurisdiction. (Ill. Rev. Stat. 1989, ch. 40, par. 2115; In re Marriage of Bueche (1990), 193 Ill. App. 3d 594, 598.) Under the Custody Act, personal jurisdiction is not necessary for a circuit court to modify the judgment as long as the jurisdictional requirements of section 4 of the Custody Act are met. (Bueche, 193 Ill. App. 3d at 599.) If subject matter jurisdiction exists, a court could dismiss the petition for modification if another State is a more convenient forum. Bueche, 193 Ill. App. 3d at 599; Ill. Rev. Stat. 1989, ch. 40, par. 2108(a).

Even though the Bueche case concerned a petition to modify a custody order, its discussion of the jurisdictional principles is applicable here. For a plenary order of protection to issue, the petitioner must establish jurisdiction under section 208 of the Illinois Domestic Violence Act of 1986 (Ill. Rev. Stat. 1989, ch. 40, par. 2312 — 19). Section 208 of the Domestic Violence Act specifically states that personal jurisdiction is determined by the Custody Act. Thus, the same jurisdictional requirements for a custody order modification under the Custody Act apply to the plenary order of protection appealed from by Simon.

We hold that the circuit court of Du Page County had jurisdiction not only to register the Delaware judgment in Illinois but also to issue a plenary order of protection and to accept the other underlying pleadings in this case. The Bueche case cannot be any clearer that personal jurisdiction is an irrelevant issue under the Custody Act. However, we do recognize that an argument can be made that the Custody Act jurisdictional requirements infringe upon substantive due process rights.

This court has previously found that the due process clause of the fourteenth amendment limits the power of Illinois courts to modify out-of-State dissolution judgments affecting the rights of nonresident respondents lacking minimum contacts with the State. (See Coons v. Wilder (1981), 93 Ill. App. 3d 127, 130.) The fact that Simon’s ex-wife lives with her children in Illinois does not necessarily mean that he has purposely availed himself to be subject to the Illinois courts’ jurisdiction over him. (Wiles v. Morita Iron Works Co. (1988), 125 Ill. 2d 144, 151 (“Jurisdiction will only be proper where the contacts proximately result from actions by the defendant himself that create a ’substantial connection’ with the forum State” (emphasis in original).) Moreover, Professors Richman and Reynolds suggest in their treatise, Understanding Conflicts of Law, that minimum contacts may be necessary in custody cases:

“[T]he extension in Shaffer v. Heitner [(1977), 433 U.S. 186, 53 L. Ed. 2d 683, 97 S. Ct. 2569,] of the minimum contacts requirement to in rem actions [ ] suggests] that custody decrees rendered without jurisdiction over all concerned may present serious constitutional concerns. ***
Some have argued that status adjudications, or at least those involving children, will escape testing under the Shaffer standard ***. Nevertheless, it is possible that the minimum contacts standard will be applied to custody cases.” W. Richman & W. Reynolds, Understanding Conflicts of Laws 340 (1984).

Although we acknowledge that the substantive due process argument has some merit, we choose to follow the established precedent. We leave the question of personal jurisdiction under the Custody Act for the legislature to ponder.

Simon also argues that Illinois does not have jurisdiction because Delaware did not, and could not, relinquish jurisdiction pursuant to the Kidnapping Act. Simon cites section 1738A(d), which states:

“The jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant.” (28 U.S.C. §1738A(d) (1980).)

However, the relevant section of the Kidnapping Act in this situation is subsection (f):

“(f) A court of a State may modify a determination of the custody of the same child made by a court of another State, if—
(1) it has jurisdiction to make such a child custody determination; and
(2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.” (28 U.S.C. § 1738(f) (1988).)

Section 15 of the Custody Act is phrased similarly, except that the requirements of subsections (1) and (2) are disjunctive, not conjunctive. Ill. Rev. Stat. 1989, ch. 40, pars. 2115(a)(1), (a)(2).

The circuit court of Du Page County had jurisdiction to make a child custody determination in this case as there was jurisdiction under Illinois law, specifically the Custody Act, and Illinois was the children’s home State. (28 U.S.C. §§1738A(c)(l), (c)(2)(A)© (1988).) We also find that the requirement under subsection (f)(2) of the Kidnapping Act was met. The letter from Judge Conner in the Delaware family court to Judge Galasso of the eighteenth judicial circuit, Du Page County, showed that the Delaware court was no longer exercising jurisdiction to modify the dissolution judgment. Therefore, the Kidnapping Act does not require a different result.

Although Simon did not raise the issue in his brief, we also consider sua sponte whether the Illinois court was the most convenient forum under the Custody Act. (Ill. Rev. Stat. 1989, ch. 40, par. 2108.) After reviewing the factors under section 8, we hold that the Illinois court was the most convenient forum. Illinois was the children’s home State, was the place containing substantial evidence concerning the children’s care, and the purposes of the Custody Act would not be contravened if Illinois exercised jurisdiction. In short, Illinois was the court which could most capably act in the children’s best interests. In re Marriage of Doehner (1991), 215 Ill. App. 3d 570, 572-73.

Simon’s second contention is that the trial court abused its discretion in issuing the plenary order of protection. Simon argues that the emergency order of protection was improperly granted because “exigent circumstances” did not exist to issue the order without prior notice to him, citing Sanders v. Shephard (1989), 185 Ill. App. 3d 719. Simon also argues that his procedural due process rights were violated when his parental rights were terminated without proper notice and a hearing.

We agree that Simon’s procedural due process rights were violated here. Section 6 of the Custody Act governs the notice requirements in this situation. It states:

“(b) Notice in all custody proceedings required for the exercise of jurisdiction over a person outside this State shall be given in a manner best calculated to give actual notice and shall be either:
* * *
3. by any form of mail addressed to the person to be served and requesting a receipt; ***
(c) Notice under this Section shall be served, mailed or delivered at least 10 days before any hearing in this State.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 40, pars. 2106(b)(3), (c).)

As Simon points out, he was not timely notified of the July 9 hearing on the petition to show cause and for attorney fees and the petition to modify the judgment. He received notice after July 1. On July 9, the trial court ordered that the hearing on Catherine’s petition to modify would be held on July 18. Simon also did not receive timely notice of this hearing pursuant to the requirements of section 6(c) of the Custody Act. We agree with Catherine that Simon was properly notified of her petition to domesticate the Delaware judgment.

Finally, although Simon received timely notice of the emergency order of protection on July 8, 10 days before the July 18 hearing to extend the order, we find that the order was not based on a showing of “exigent circumstances.” The emergency order of protection was based on a false accusation by Catherine that Simon had “abducted” the children. Simon had custody in July and August pursuant to a valid Delaware judgment that was unmodified at the time his visitation began. Further, Catherine’s petition for the emergency protection order was not supported by an affidavit demonstrating that exigent circumstances existed justifying the entry of the order without prior notice to Simon. (Sanders, 185 Ill. App. 3d at 727.) The record reflects that the attachments to Catherine’s petition for the emergency protection order were her petitions for a rule to show cause and attorney fees and her petition to modify the judgment. We found no affidavit attached to these documents.

We vacate the plenary order of protection, the issuance of which was based on the emergency order for protection and Catherine’s other petitions, all of which violated Simon’s procedural due process rights for lack of proper notice. We remand this cause with directions that the trial court schedule a hearing on Catherine’s petitions for a rule to show cause and attorney fees and for modification of the judgment for dissolution of marriage.

We do not appreciate the way in which the judicial system was manipulated in this situation. Catherine should have petitioned for modification of the judgment at a time when her children’s visitation with their father would not be disrupted. Instead, she created an inconvenient and frustrating situation for Simon by seeking an emergency order of protection and modification of the judgment at the exact time that his visitation was to begin. The court system would best serve the community if these adolescent tactics were avoided.

For the foregoing reasons, the order of the circuit court of Du Page County is reversed, and the cause is remanded with directions.

Reversed and remanded with directions.

UNVERZAGT and NICKELS, JJ., concur.