Governmental Interinsurance Exchange v. Judge ( 2006 )

Docket No. 100668.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
GOVERNMENTAL INTERINSURANCE EXCHANGE et al.,
Appellants, v. JAY S. JUDGE et al., Appellees.
Opinion filed May 18, 2006.
JUSTICE FREEMAN delivered the judgment of the court,
with opinion.
Justices McMorrow, Fitzgerald, Kilbride, Garman, and
Karmeier concurred in the judgment and opinion.
Chief Justice Thomas took no part in the decision.
OPINION
Plaintiffs, Governmental Interinsurance Exchange (GIE)
and Kendall County (County), brought a legal malpractice
action in the circuit court of McLean County against attorney
Jay S. Judge and the law firms of Judge, James & Dutton, Ltd.,
and Judge & James, Ltd. (Judge defendants); and attorney
Mary E. Dickson and the law firm of Bond, Mork & Dickson,
P.C. (Dickson defendants). Plaintiffs claimed that defendants
were negligent by failing to timely file an appeal from an
adverse judgment in prior litigation in which defendants
represented GIE=s insured, the County. The circuit court
entered partial summary judgment in favor of plaintiffs on the
issues of duty and breach of duty. However, the circuit court
subsequently entered summary judgment in favor of
defendants on the issue of proximate cause.
Plaintiffs appealed the summary judgment in favor of
defendants on the issue of proximate cause. A divided panel of
the appellate court affirmed the judgment. 356 Ill. App. 3d 264.
We allowed plaintiffs= petition for leave to appeal (177 Ill. 2d R.
315(a)), and now affirm the judgment of the appellate court.
I. BACKGROUND
The proceedings below were conducted in the context of
the following legal principles. In an action for legal malpractice
the plaintiff must plead and prove that: the defendant attorney
owed the plaintiff a duty of due care arising from the attorney-
client relationship; that the defendant breached that duty; and
that as a proximate result, the plaintiff suffered injury (Sexton v.
Smith, 112 Ill. 2d 187, 193 (1986)) in the form of actual
damages (Eastman v. Messner, 188 Ill. 2d 404, 411 (1999)).
AEven if negligence on the part of the attorney is established,
no action will lie against the attorney unless that negligence
proximately caused damage to the client.@ Northern Illinois
Emergency Physicians v. Landau, Omahana & Kopka, Ltd.,
216 Ill. 2d 294, 306-07 (2005).
In cases involving litigation, no legal malpractice exists
unless the attorney=s negligence resulted in the loss of an
underlying cause of action. Accordingly, the burden of pleading
and proving actual damages requires establishing that Abut for@
-2-
the attorney=s negligence, the client would have been
successful in the underlying suit. See Sheppard v. Krol, 218 Ill.
App. 3d 254, 256-57 (1991); Claire Associates v. Pontikes, 151
Ill. App. 3d 116, 122 (1986); Bartholomew v. Crockett, 131 Ill.
App. 3d 456, 465 (1985). In a legal malpractice action alleging
that an attorney failed to perfect an appeal, the client must
prove that he or she would have been successful on appeal if
the appeal had properly been perfected. See Environmental
Control Systems, Inc. v. Long, 301 Ill. App. 3d 612, 621 (1998);
Gillion v. Tieman, 86 Ill. App. 3d 147, 150 (1980) (ATo succeed
in her malpractice claim, [plaintiff] would have been required to
prove damages caused by the defendant=s failure to file a
timely notice of appeal. To prove damages, she would have to
show that an appeal would have been successful@); accord
Jones v. Psimos, 882 F.2d 1277 (7th Cir. 1989) (same;
applying Indiana law). Thus, a legal malpractice plaintiff must
litigate a Acase within a case.@ See Eastman, 188 Ill. 2d at 411
(collecting authorities). These principles provide the lens
through which we view the following pertinent facts.
A. Underlying Case: The Automobile Accident
The trial of the underlying case adduced the following
pertinent facts. Galena Road has two lanes and runs generally
east-west. In 1978, the County assumed authority over Galena
Road, commissioned a preconstruction profile of the road, and
developed an improvement plan. The County resurfaced the
road and striped the center of the road with a skip-dash, or
broken yellow line, indicating that passing vehicles is
permissible.
Expert testimony established that the 1978 placement of
the broken yellow line conformed with guidelines on adequate
sight distances mandated by the Illinois Manual on Uniform
Traffic Control Devices (Illinois Manual) (formerly codified at 92
Ill. Adm. Code '546.100 et seq. (1985), now published as
Illinois Department of Transportation, Illinois Manual on
Uniform Traffic Control Devices (2003)). Pursuant to these
guidelines, passing vehicles is permissible only where sight
distances are adequate. If an engineering study concludes that
sight distances are inadequate, a no-passing zone must be
-3-
installed. In 1984, the Illinois Manual lowered the minimal sight
distance. This reduction rendered inadequate the sight
distance on that portion of Galena Road where the accident
subsequently occurred. In 1993, the County resurfaced Galena
Road and restriped the center of the road with the same
broken yellow line that it had placed in 1978.
On a November evening in 1994, Sandra Wittenmyer was
driving westbound on Galena Road. Aaron Gesell was driving
eastbound. As Gesell was passing another eastbound vehicle,
he collided head-on with Wittenmyer in the westbound lane.
Gesell=s and Wittenmyer=s automobiles collided at the apex of
a rise in Galena Road. Gesell was traveling at a speed
significantly higher than the posted 55-miles-per-hour speed
limit. Gesell stated that he passed the eastbound vehicle
ahead of him because he knew that a broken yellow line
indicated that passing vehicles was permissible. Also,
according to Gesell, he was not aware that the rise in Galena
Road would have obstructed his view of oncoming traffic. As a
result of the collision, Wittenmyer suffered severe and
permanent injuries.
In January 1995, Sandra and her husband filed a lawsuit
against Gesell. In October 1995, the Wittenmyers added the
County as a defendant and Gesell brought a third-party
contribution action against the County. Between November
1995 and June 1997, GIE, the County=s insurer, retained the
Dickson defendants and the Judge defendants to represent the
County.
Through its attorneys, the County moved for summary
judgment, contending that section 3B104 of the Local
Governmental and Governmental Employees Tort Immunity
Act (Tort Immunity Act) (745 ILCS 10/3B104 (West 1994))
immunized the County from liability. The trial court denied the
County=s motion for summary judgment, and the case
proceeded to a jury trial. On October 30, 1998, the jury
returned a verdict in favor of the Wittenmyers. The jury
awarded $4.5 million in damages to Sandra against Gesell and
the County, apportioning 20% of the fault to Gesell and 80% of
the fault to the County. The jury also awarded $500,000 in
-4-
damages to Sandra=s husband. On Gesell=s counterclaim
against the County, the jury found the County 50% at fault.
On November 25, 1998, the County filed a posttrial motion.
The County also moved to file a supplemental posttrial motion,
alleging that its attorneys had only very recently received the
report of proceedings. On December 3, 1998, the trial court
denied both of the County=s motions.
On December 31, 1998, the County filed a notice of appeal
from the judgment entered on the jury verdict and from the trial
court=s denial of its posttrial motions. On the same day, the
County also presented to the trial court an emergency motion
for leave to file a supplemental posttrial motion. The
emergency motion was premised on the impending appeal
deadline of January 4, 1999, i.e., 30 days after the trial court=s
December 3, 1998, denial of the County=s posttrial motions.
The County alleged that, based on this deadline, it was
necessary for the County to seek leave to file a supplemental
posttrial motion, which contained five additional grounds for
reversal based upon trial errors. The trial court granted the
motion in an order stating: AFinal orders not having been
entered in this cause, the time for filing notice of appeal in this
matter is hereby extended until a final order is entered.@
On January 12, 1999, the County filed an amended
supplemental posttrial motion. On February 16, 1999, the trial
court denied the motion, ruling that the court lacked jurisdiction
to hear the motion and, alternatively, that the motion was
denied Aas a matter of substance.@ On March 15, 1999, the
County filed a motion with the appellate court, Second District,
seeking leave to amend its notice of appeal to include the trial
court=s February 16 order denying the County=s supplemental
posttrial motion. The appellate court initially granted the
motion, but on May 7, 1999, the appellate court vacated that
order and struck the County=s March 15 amended notice of
appeal. The appellate court also denied Wittenmyer=s and
Gesell=s motions to dismiss the appeal, finding that the
County=s December 31, 1998, notice of appeal preserved the
grounds raised in the County=s first posttrial motion.
On July 16, 1999, Gesell filed a motion in the appellate
court, contending that the County=s December 31, 1998, notice
-5-
of appeal was prematurely filed and the County never filed a
new notice of appeal. On December 14, 1999, the appellate
court, in an unpublished order, reversed its prior ruling that the
December 31, 1998, notice of appeal was timely. Wittenmyer v.
Gesell, No. 2B99B0041 (December 14, 1999) (unpublished
order under Supreme Court Rule 23). In its order, the appellate
court stated that the County was required to withdraw its
December 31, 1998, notice of appeal when it simultaneously
filed its supplemental posttrial motion. The appellate court
observed that, after the trial court denied the County=s
amended supplemental posttrial motion on February 16, 1998,
the County failed to file a timely notice of appeal. Therefore,
the appellate court held that the County=s original notice of
appeal was premature and ineffectual. Consequently,
according to the appellate court, the County=s March 15, 1999,
motion to amend its notice of appeal was also without effect.
The appellate court denied the County=s request for
reconsideration, and this court denied the County=s petition for
leave to appeal. Wittenmyer v. Gesell, 189 Ill. 2d 683 (2000)
(table).
B. Malpractice Action
GIE and the County brought this legal malpractice action
against Judge individually and his law firm and successor law
firm, and Dickson individually and her law firm. In their ultimate
complaint, plaintiffs pled the requisite elements. Plaintiffs pled
the element of duty. Plaintiffs alleged that they had an attorney-
client relationship with defendants regarding the underlying
case, whereby defendants Ahad a duty to represent Plaintiffs
with the reasonable care, skill and diligence possessed by
attorneys@ who, in the case of defendants, held themselves
Aout to the public as having specialized experience in the
handling of trial, post-trial matters and appeal of civil cases@
such as the underlying case. Plaintiffs also alleged that
defendants Aagreed to continue representing the interests of
Plaintiffs including, but not limited to, taking the steps
necessary to overturn the adverse judgment in *** Wittenmyer
-6-
*** including, but not limited to, pursuing an appeal on the
merits.@
Plaintiffs pled breach of the duty. Plaintiffs alleged that, for
the reasons expressed by the appellate court in its December
14, 1999, Rule 23 order, defendants breached their duties
owed to plaintiffs and failed to properly preserve Kendall
County=s appellate rights concerning the adverse judgment in
the underlying case. Further, defendants= conduct constituted
Aa breach of [defendants=] duty to exercise reasonable care,
skill and diligence on behalf of Plaintiffs.@
Plaintiffs pled the elements of proximate cause and
damages. Plaintiffs alleged: ABut for the negligence of
[defendants], the appeal in *** Wittenmyer *** would have been
successful, and the judgment against Kendall County would
have been overturned.@ Plaintiffs also alleged that as a result of
defendants= negligence, plaintiffs sustained damages including:
payment of the judgment and accrued interest entered against
the County, the lost time and value of the monies paid by
plaintiffs in satisfaction of the judgment, and plaintiffs= legal
expenses for preparation of an appeal that the County was
denied the opportunity to pursue. According to plaintiffs, the
damages they had sustained Awere proximately caused by the
breach of duties by [defendants], as set forth above.@
Discovery ensued. In an interrogatory, defendants asked
plaintiffs to state the legal grounds plaintiffs were alleging that
the appellate court would have reversed the judgment against
the County in the underlying case. Plaintiffs answered that, had
the underlying appeal been perfected, the meritorious ground
for reversal would have been what defendant Judge had
advised plaintiffs, i.e., governmental tort immunity pursuant to
several sections of the Tort Immunity Act.
Plaintiffs moved for partial summary judgment on the issues
of duty and breach of duty. Plaintiffs contended that the circuit
court could determine defendants= breach of duty as a matter
of law based solely on the appellate court=s order in
Wittenmyer v. Gesell, No. 2B99B0041 (December 14, 1999)
(unpublished order under Supreme Court Rule 23). Defendants
responded and filed a joint cross-motion for summary
judgment, contending that the issue of breach of duty was one
-7-
of fact for the jury, which must generally be established through
expert testimony. At the close of a hearing on March 20, 2003,
the circuit court found that the record in the underlying case,
including the appellate court=s dismissal of the underlying
appeal in Wittenmyer v. Gesell, No. 2B99B0041 (December 14,
1999) (unpublished order under Supreme Court Rule 23),
established the factual record upon which the court could rule.
The circuit court granted plaintiffs= motion for partial summary
judgment and denied defendants= cross-motion for summary
judgment. The court found that defendants owed plaintiffs a
duty to perfect the appeal and that defendants= failure to do so
constituted a breach of that duty. The court then scheduled
further proceedings on the issues of proximate cause and
damages.
Defendants subsequently filed a joint motion for summary
judgment on the issues of proximate cause and damages.
Defendants contended that, regardless of whether they had
perfected the appeal in the underlying case, the appeal would
not have been successful. Defendants argued that, had the
appellate court in the underlying case reviewed the County=s
appeal on the merits, the court would not have reversed the
judgment in the underlying case. Defendants also contended
that the circuit court, and not a jury, should decide the question
of whether the appeal of the underlying case would have been
successful. Opposing the motion for summary judgment,
plaintiffs contended that the tort immunity arguments
defendants asserted on behalf of the County in the underlying
case were correct and, had defendants competently perfected
the underlying appeal, the appellate court would have reversed
the judgment entered against the County. Plaintiffs also
contended that the circuit court should deny defendants=
motion for summary judgment because the question of the
hypothetical outcome of the County=s dismissed appeal was a
question of fact for a jury.
At the close of a hearing, the circuit court ruled that the
issue of proximate cause in an appellate legal malpractice
action is a question of law that should be decided by the court.
The parties then agreed that the circuit court would set the
case for an appellate-style oral argument, and that the circuit
-8-
court would confine its review to the trial court record and the
appellate briefs in the underlying case.
The circuit court held a hearing in which the parties argued
the governmental tort immunity issue that was briefed to the
appellate court in the underlying case. In a written order, the
circuit court granted defendants= motion for summary judgment,
finding that the appellate court in the underlying case would not
have reversed the judgment based on the immunity issue. The
circuit court=s analysis focused on section 3B104 of the Tort
Immunity Act (745 ILCS 10/3B104 (West 1994)). The circuit
court interpreted section 3B104 as immunizing only the failure
to initially provide traffic control devices, and not the incorrect
placement of those devices. The court reasoned that if the
county had failed to stripe Galena Road at all, it would have
been immunized under section 3B104. However, according to
the circuit court, the County initially acted by installing the
passing-permitted zone in 1978. Further, when the County
restriped the road in 1993, the County was obliged to do so in
compliance with the Illinois Manual but failed to do so.
Therefore, according to the circuit court, the trial court in the
underlying case was correct to deny the County=s motion for
summary judgment based on section 3B104 immunity.
Consequently, the circuit court concluded that the appellate
court would have affirmed the trial court=s decision regarding
governmental tort immunity and would not have reversed the
judgment against the County in the underlying case.
Plaintiffs appealed the circuit court=s grant of summary
judgment in favor of defendants on the proximate cause issue.
The Judge defendants and the Dickson defendants not only
defended the summary judgment on the issue of proximate
cause, but also raised alternative grounds for affirming the
judgment. A divided panel of the appellate court affirmed the
circuit court=s grant of summary judgment to the defendants on
the issue of proximate cause. 356 Ill. App. 3d 264. Initially, the
appellate court held that the proximate cause issue was an
issue of law for a court to decide and not a question of fact for
a jury. 356 Ill. App. 3d at 270-72. The court next held that
section 3B104 of the Tort Immunity Act did not immunize the
County in the underlying case. The court reasoned that the
-9-
1993 restriping of Galena Road did not constitute an initial
failure to place a traffic control device, which section 3B104
immunizes, but rather an improper placement of a traffic
control device, which section 3B104 does not immunize.
Consequently, the appellate court agreed with the circuit court
that, in the underlying case, the trial court correctly rejected the
County=s assertion of section 3B104 immunity, and the
appellate court would have affirmed the judgment. Therefore,
in the legal malpractice action, the appellate court upheld the
circuit court=s grant of summary judgment in favor of
defendants on the issue of proximate cause. 356 Ill. App. 3d at
273-77.
Presiding Justice Cook dissented solely on the issue of
section 3B104 immunity. 356 Ill. App. 3d at 277 (Cook, P.J.,
dissenting). The dissenting justice disagreed with the majority=s
characterization of the County=s action as the improper
placement of a passing zone. Rather, the dissenting justice
viewed the County=s action as failing to initially provide a no-
passing zone. Presiding Justice Cook reasoned:
AIt is incorrect to say that a broken yellow line is a
passing zone. Rather, the absence of a solid yellow line
is a passing zone. Even a roadway without a centerline
is a passing zone. *** The absence of the solid yellow
line does not interfere with the integrity of the broken
yellow line.@ 356 Ill. App. 3d at 277-78 (Cook, P.J.,
dissenting).
The dissenting justice opined that the failure to initially place
this traffic roadway marking, i.e., the solid yellow line, was
immunized under section 3B104. 356 Ill. App. 3d at 278-79
(Cook, P.J., dissenting). Neither the appellate court majority
nor the dissent mentioned defendants= alternative grounds for
affirming the circuit court judgment.
We allowed GIE and the County=s petition for leave to
appeal. 177 Ill. 2d R. 315(a). We subsequently granted leave to
the following to file amicus curiae briefs in support of GIE and
the County: Illinois Association of County Engineers,
Intergovernmental Risk Management Agency, Property
Casualty Insurers Association of America, and Cook County.
We also granted leave to the Illinois Trial Lawyers Association
-10-
to file an amicus curiae brief in support of defendants. See 155
Ill. 2d R. 345. Additional pertinent background will be discussed
in the context of our analysis of the issues.
II. ANALYSIS
Before this court, plaintiffs assign error to the two holdings
of the appellate court: (1) the proximate cause issue was an
issue of law for the court to decide, and (2) section 3B104 of
the Tort Immunity Act did not immunize the County in the
underlying case. Not limiting their contentions to a defense of
the appellate court=s reasoning, defendants offer an alternative
ground for affirming the summary judgment in their favor.
Further, solely if this court overturns the summary judgment in
their favor, defendants request, as cross-relief, that we reverse
the partial summary judgment in favor of plaintiffs on the issues
of duty and breach of duty. However, a court may assume,
arguendo, the existence of a duty and its breach to address the
issue of proximate cause. Abrams v. City of Chicago, 211 Ill.
2d 251, 257 (2004). Because our review of the two issues that
the appellate court addressed is sufficient to resolve this
appeal, we need not and do not discuss defendants= alternative
contentions. See, e.g., Abrams, 211 Ill. 2d at 256-57.
A. Proximate Cause: Question of Law or Fact?
Prior to granting summary judgment in favor of defendants
on the issue of proximate cause, the circuit court ruled that the
issue of proximate cause in an appellate legal malpractice
action is a question of law for the court to decide and not a
question of fact for a jury. The appellate court upheld this
ruling. 356 Ill. App. 3d at 270-72.
Generally, the issue of what is the proximate cause of an
injury is a question of fact for a jury to determine based on its
consideration of all of the evidence. Kalata v. Anheuser-Busch
Cos., 144 Ill. 2d 425, 436 (1991), quoting Davis v. Marathon Oil
Co., 64 Ill. 2d 380, 395 (1976), quoting Neering v. Illinois
Central R.R. Co., 383 Ill. 366, 381 (1943). Specifically: AThe
issue of proximate causation in a legal malpractice setting is
generally considered a factual issue to be decided by the trier
-11-
of fact.@ Renshaw v. Black, 299 Ill. App. 3d 412, 417-18 (1998)
(and cases cited therein). This court has explained that issues
that could cause reasonable persons to reach different results
should never be determined as questions of law. The
debatable qualities of issues such as proximate cause, the fact
that fair-minded persons might reach different conclusions,
emphasize the appropriateness of leaving such issues to a
fact-finding body, i.e., the jury. Ney v. Yellow Cab Co., 2 Ill. 2d
74, 84 (1954).
In the present case, plaintiffs contend that the issue of
whether defendants= appellate legal malpractice proximately
caused plaintiffs= injury was likewise a question of fact for a jury
to determine. Plaintiffs argue that the appellate court=s holding
in the present case distinguishes attorneys who commit
appellate malpractice from other negligent professionals, and
insulates negligent appellate attorneys from a jury
determination of whether their negligence caused injury.
Plaintiffs go so far as to argue that this result violates the right
to a jury trial as guaranteed by the Illinois Constitution. Ill.
Const. 1970, art. I, '13. We cannot accept plaintiffs= contention.
It is quite settled that A[t]he interpretation of a statute is a
matter of law for the court and appropriate for summary
judgment.@ County of Knox ex rel. Masterson v. The Highlands,
L.L.C., 188 Ill. 2d 546, 551 (1999) (collecting cases). This
principle does not usurp the fact-finding role of a jury, but
rather reflects the constitutionally recognized role of the court
to interpret and declare the law. The Illinois Constitution places
the state=s judicial power in the courts. Ill. Const. 1970, art. VI,
'1. AThe application of principles of law is inherently a judicial
function.@ Wright v. Central Du Page Hospital Ass=n, 63 Ill. 2d
313, 322 (1976); see Environmental Control Systems, 301 Ill.
App. 3d at 621 (stating that the Ajudicial power includes the
power to determine and analyze the applicable law@).
In this appellate legal malpractice action, the negligence
that plaintiffs alleged defendants committed was the failure to
perfect the appeal to the appellate court in the underlying case.
Accordingly, for plaintiffs to prevail, they must prove that, but
for defendants= failure, the appellate court in the underlying
case would have held that the Tort Immunity Act immunized
-12-
the County from liability. In other words: AIf the County should
not have been afforded protection from the verdict under the
Tort Immunity Act, then defendants= failure to perfect the
appeal was not the proximate cause of the County=s damages.@
356 Ill. App. 3d at 272. Thus, the success of plaintiffs= legal
malpractice action rests upon the question of how the appellate
court in the underlying case would have interpreted the Tort
Immunity Act. This was a question of law for the circuit court.
The circuit court=s determination of the correct interpretation
of the Tort Immunity Act and whether the County should be
immune thereunder does not turn on questions of fact. We
agree with the appellate court that Awhether defendants told
plaintiffs prior to the appeal of the underlying traffic accident
case that the appellate court was likely to reverse based upon
tort immunity and whether such statement was truthful does
not affect the proper application of the Tort Immunity Act.@ 356
Ill. App. 3d at 272.
Although this case presents an issue of statutory
interpretation, which is clearly an issue of law for the court, we
do not see how the issue of proximate cause in an appellate
legal malpractice action could be a question of fact for a jury.
The issue of proximate cause in an appellate legal malpractice
action Amust *** be made by the trial judge as an issue of law,
based on review of the transcript and record of the underlying
action, the argument of counsel, and subject to the same rules
of review as should have been applied to the [underlying]
appeal.@ 3 R. Mallen & J. Smith, Legal Malpractice '30.52, at
1257 (2005).
Indeed, the vast majority of courts that have addressed this
issue have concluded that the issue of proximate cause in an
appellate legal malpractice action presents a question of law
for the court and not a question of fact for a jury. In addition to
the appellate court panel in the present case, the appellate
court in Environmental Control Systems, 301 Ill. App. 3d at
620-22, so held. Other decisions so holding include Richards v.
Knuchel, 327 Mont. 249, 254-55, 115 P.3d 189, 192-93 (2005)
(discussing cases), Steeves v. Bernstein, Shur, Sawyer &
Nelson, P.C., 718 A.2d 186, 190-91 (Me. 1998) (agreeing with
A[n]umerous courts@ that have recognized rule), Sturgis v.
-13-
Skokos, 335 Ark. 41, 51, 977 S.W.2d 217, 221-22 (1998)
(agreeing with Amajority rule@), Millhouse v. Wiesenthal, 775
S.W.2d 626, 627-28 (Tex. 1989) (collecting cases), Daugert v.
Pappas, 104 Wash. 2d 254, 258, 704 P.2d 600, 603-04 (1985)
(collecting cases); Tinelli v. Redl, 199 F.3d 603, 606-07 (2d Cir.
1999) (collecting cases; applying New York law), and Jones v.
Psimos, 882 F.2d 1277, 1281 (7th Cir. 1989) (applying Indiana
law). AThe rationale for these decisions is clear. The overall
inquiry is whether the client would have been successful if the
attorney had timely filed the appeal. *** Underlying the broad
inquiry, however, are questions bearing legal analysis.@
Daugert, 104 Wash. 2d at 258, 704 P.2d at 604. As the court
in Millhouse explained:
AThe question of whether an appeal would have
been successful depends on an analysis of the law and
the procedural rules. [The malpractice plaintiff=s]
position that the jury should make this determination as
a question of fact would require the jury to sit as
appellate judges, review the trial record and briefs, and
decide whether the trial court committed reversible
error. A judge is clearly in a better position to make this
determination. Resolving legal issues on appeal is an
area exclusively within the province of judges; a court is
qualified in a way a jury is not to determine the merits
and probable outcome of an appeal. Thus, in cases of
appellate legal malpractice, where the issue of
causation hinges on the *** outcome of an [underlying]
appeal, the issue is to be resolved by the court as a
question of law.@ Millhouse, 775 S.W.2d at 628.
ATo rule otherwiseBand hold that a jury should decide how an
appellate court would have ruledBwould misconstrue the very
nature of appellate review. Appellate courts decide matters as
>issue[s] of law, based upon review of the transcript and . . . the
argument of counsel.= [Citations.]@ Tinelli, 199 F.3d at 607
(applying New York law).
Plaintiffs cite Andrews v. Saylor, 134 N.M. 545, 80 P.3d 482
(App. 2003), in an attempt to lighten this weight of authority. In
Andrews, the New Mexico Court of Appeals held that the trial
court in an appellate legal malpractice action erred in deciding
-14-
whether the appeal in the underlying case would have been
successful; the court held that the issue of proximate cause in
an appellate legal malpractice action is a question of fact. As a
learned treatise described Andrews: AThe court did not discuss
or even reference the virtually uniform case law to the
contrary.@ 3 R. Mallen & J. Smith, Legal Malpractice '30.52, at
1259 (2005).
In the present case, the appellate court expressly limited its
holding to the facts presented in this case, i.e., an appellate
legal malpractice action where the success of the underlying
case rests upon a question of law. 356 Ill. App. 3d at 272.
However, we agree with the circuit court, and so hold, that the
issue of proximate cause in an appellate legal malpractice
action is inherently a question of law for the court and not a
question of fact for the jury.
B. Section 3B104 Tort Immunity
The circuit court in the legal appellate malpractice action
ruled that section 3B104 of the Tort Immunity Act (745 ILCS
10/3B104 (West 1994)) did not immunize the County in the
underlying case. According to the circuit court, had defendants
perfected an appeal to the appellate court in the underlying
case, the appellate court would not have reversed the
judgment against the County based on governmental tort
immunity. Therefore, because the legal appellate malpractice
action lacked the element of proximate cause, defendants were
entitled to a judgment as a matter of law and the circuit court
granted summary judgment in favor of defendants. The
appellate court upheld this ruling. 356 Ill. App. 3d at 273-77.
Summary judgment is appropriate only where Athe
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.@ 735 ILCS 5/2B1005(c) (West
2004). If the plaintiff fails to establish any element of the cause
of action, summary judgment for the defendant is proper. Pyne
v. Witmer, 129 Ill. 2d 351, 358 (1989). Our review is de novo.
Masterson, 188 Ill. 2d at 551.
-15-
The Tort Immunity Act adopted the general principle that
local governmental units are liable in tort, but limited this
liability with an extensive list of immunities based on specific
governmental functions. Therefore, a governmental unit is
liable in tort on the same basis as a private tortfeasor unless a
valid statute dealing with tort immunity provides an exception,
or a condition, to that liability. See Barnett v. Zion Park District,
171 Ill. 2d 378, 385-86 (1996). Further, the Tort Immunity Act
codifies the common law duty of a local governmental unit Ato
exercise ordinary care to maintain its property in a reasonably
safe condition.@ 745 ILCS 10/3B102(a) (West 2004). This
section does not create any new duties; the Act delineates
immunities and defenses in subsequent sections. Wagner v.
City of Chicago, 166 Ill. 2d 144, 152-53 (1995); accord Barnett,
171 Ill. 2d at 386; Anderson v. Alberto-Culver USA, Inc., 317 Ill.
App. 3d 1104, 1111-12 (2000). Thus, we must look to the
common law and other statutes to determine whether the
County owed the Wittenmyers and Gesell a legal duty.
The applicable common law duty is quite established:
AAt common law, a municipality had a duty to maintain
its property in a safe condition, but this duty did not
extend to creating or erecting public improvements.
[Citations.] 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.@ West v. Kirkham, 147 Ill. 2d 1, 14
(1992).
Accord First National Bank in De Kalb v. City of Aurora, 71 Ill.
2d 1, 11 (1978) (AThis court has clearly established the rule
that once a governmental unit >adopts a plan in the making of
public improvements,= it owes a duty to a plaintiff to maintain
those improvements@); Thorsen v. City of Chicago, 74 Ill. App.
3d 98, 107 (1979) (collecting cases); Smith v. Godin, 61 Ill.
App. 3d 480, 482 (1978) (traffic control devices). Further,
section 11B304 of the Illinois Vehicle Code (625 ILCS 5/11B304
(West 1994)), by mandating compliance with the Illinois
Manual, establishes a defendant=s duty of reasonable care.
Snyder v. Curran Township, 167 Ill. 2d 466, 472 (1995).
-16-
In its summary judgment motion in the underlying case, the
County did not contest this common law duty owed to the
Wittenmyers and Gesell. Rather, it contended that section
3B104 of the Tort Immunity Act provided it absolute immunity
from liability for a breach of this duty. Section 3B104 provides
as follows:
ANeither 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.@ (Emphasis added.) 745 ILCS 10/3B104
(West 1994).
Before this court, plaintiffs do not deny the existence of the
County=s above-referenced duty but claim immunity under
section 3B104. Plaintiffs acknowledge that the statutory
language immunizes the failure to initially provide road
markings, but not the improper placement of markings.
However, plaintiffs and supporting amici contend that by failing
to paint a no-passing line on Galena Road, the County
committed an immunized failure of initial placement.
Defendants and supporting amicus argue that the County
committed non-immunized improper placement by its 1993
restriping of Galena Road with a broken yellow line that
permitted passing. The circuit and appellate courts agreed with
defendants. We do likewise.
Section 11B304 of the Illinois Vehicle Code provides that,
when placing traffic control devices, local authorities Ashall,@
i.e., must, follow the Illinois Manual. See 625 ILCS 5/11B304
(West 1994). The Illinois Manual states that a broken yellow
line indicates a two-direction passing zone. On those roads,
passing is permitted for traffic traveling in either direction. In
contrast, a broken yellow line and a solid yellow line indicates a
one-direction no-passing zone. On those roads, passing is
permitted only for the traffic traveling adjacent to the broken
line. Reviewing the Illinois Manual and the Illinois Rules of the
-17-
Road 1, the appellate court correctly concluded that a broken or
skip-dash yellow line, by itself, is a traffic control device. In
contrast, a solid yellow line, by itself, is not a traffic control
device, because a one-direction no-passing zone requires both
a broken yellow line and a solid yellow line, and a two-direction
no-passing zone requires two solid yellow lines. 356 Ill. App. 3d
at 274.
Applying these rules to the underlying case, it is clear that
the County=s 1993 restriping of Galena Road did not constitute
an immunized failure to initially place a solid yellow line. The
question is not whether the County initially installed the correct
traffic control marking. Rather, the question is whether the
County made any improvement to Galena Road, thereby
undertaking the duty to maintain that improvement in a
reasonably safe condition. The plain language of section 3B104
immunizes only the failure to initially provide traffic control
devices. AWhere the language of a statutory provision is clear,
a court must give it effect.@ West, 147 Ill. 2d at 6. In 1978,
the County developed an improvement plan for Galena Road,
resurfaced the road, and thenBinitiallyBimproved the road with
a traffic control marking, i.e., the two-direction passing zone.
Once the road was improved, the County had the duty to use
ordinary care to maintain the road in a reasonably safe
condition. See 745 ILCS 10/3B102(a) (West 1994); First
National Bank, 71 Ill. 2d at 11. When the County resurfaced
Galena Road in 1993, the County=s duty to maintain the road in
a reasonably safe condition required the County to conform the
then-existing traffic control marking to the Illinois Manual by
1
We acknowledge that the Illinois Rules of the Road Ais intended
as a tool for drivers and should not be cited as a legal authority in
court.@ Illinois Rules of the Road 1. However, as did the appellate
court, we refer to this publication precisely to show drivers= common
understanding of these road markings.
-18-
replacing the two-direction passing zone with a no-passing
zone. See Snyder, 167 Ill. 2d at 472. However, the County
breached its duty by negligently replacing the passing zone.
The County=s negligent act constituted a non-immunized
improper placement.
As support for their contention, plaintiffs rely on the
appellate court dissent. The appellate court majority
adequately refutes the dissenting justice, who opined that the
County failed to initially provide a no-passing zone. 356 Ill. App.
3d at 278-79 (Cook, P.J., dissenting). AThe above regulations
clearly establish that, contrary to the dissent=s statement *** a
broken yellow line does indicate a passing zone. Such an
indication exists regardless of whether a driver can pass on a
roadway without a centerline. *** [Citation.] Therefore, a broken
yellow line, by itself, is a traffic-control device.@ 356 Ill. App. 3d
at 274. Further, the dissenting justice curiously opined: AThe
absence of the solid yellow line does not interfere with the
integrity of the broken yellow line.@ 356 Ill. App. 3d at 277-78
(Cook, P.J., dissenting). However, we agree with the appellate
court majority that the absence of the solid yellow line gave the
erroneous traffic indication on Galena Road and was a cause
of the accident. 356 Ill. App. 3d at 274.
Plaintiffs rely on West v. Kirkham in support of their position
that section 3B104 of the Tort Immunity Act immunized the
County. In West, the plaintiff collided with another vehicle in the
process of making a left turn. The plaintiff sued the city of
Urbana, claiming that the city had a duty to provide a left-turn
arrow for her direction of traffic. Plaintiff argued, inter alia, that
section 3B104=s immunity for the failure to initially provide road
markings did not apply in that case because the city had
previously installed a left-turn arrow for traffic traveling in the
opposite direction at the intersection where the accident
occurred. Thus, the plaintiff argued that the city=s alleged
negligence constituted a non-immunized improper placement.
West, 147 Ill. 2d at 10. This court rejected this argument:
AWe find that the exception to section 3B104 urged
by plaintiff and accepted by the appellate court is
unwarranted and would effectively swallow the section=s
immunity entirely. The creative plaintiff, seeking to
-19-
premise an action on the failure to provide a particular
traffic device, could always circumvent section 3B104 by
finding and pointing out some other traffic device that
was provided. We do not believe that the legislature
intended such a narrow construction of section 3B104
***.@ (Emphases in original.) West, 147 Ill. 2d at 10.
This court in West also explained how section 3B104
furthers the policy behind the Tort Immunity Act, which is to
protect local governmental units from liability arising from Athe
operation of government.@ 745 ILCS 10/1B101.1 (West 1994).
This court reasoned:
AThe >operation of government= necessarily
encompasses the policy decisions made by a
municipality; that is, those decisions which require the
municipality to balance competing interests and to make
a judgment call as to what solution will best serve each
of those interests. The decision whether to install a
traffic signal requires the municipal traffic planner to
balance a host of competing interests, among them,
safety, convenience and cost. *** [T]his is not the sort of
decision that should be second-guessed by the courts.
Were such second-guessing permitted, the traffic
planner would be more concerned with avoiding
possible litigation than with using his best judgment to
properly balance the competing interests. Thus, instead
of seeking the best balance of safety, convenience and
cost, the traffic planner would concern himself only with
whether it could later be argued that the regulation
provided could have possibly been safer. Excessive
regulation, with no corresponding gain in safety,
convenience or cost efficiency, would be the natural
result. The legislature recognized this by enacting
section 3B104 and expressly immunizing the failure to
provide a traffic control device or sign.@ West, 147 Ill. 2d
at 11-12.
The appellate court correctly distinguished West from the
present case.
First, this is not a case where a creative plaintiff
circumvents section 3B104 by pointing to some other traffic
-20-
control device. Rather, the County=s mistake in the present
case involves the erroneous placement of one traffic signal, the
centerline of Galena Road. Second, in the present case, the
County=s failure to correct the erroneous traffic control marking
was not a result of the County=s balancing Aa host of competing
interests, among them, safety, convenience and cost.@ West,
147 Ill. 2d at 11. Rather, the Illinois Manual states: A >markings
that are no longer applicable for roadway conditions or
restrictions and that might cause confusion for the road user
shall be removed or obliterated to be unidentifiable as a
marking as soon as practical.= @ 356 Ill. App. 3d at 276. Thus,
the County=s failure to correct the erroneous traffic control
marking was simply a negligent oversight and not the sort of
decision immunized by section 3B104. ABecause of the above
distinctions, to hold the County liable in the instant case does
not reflect the type of second-guessing that West prohibits.@
356 Ill. App. 3d at 276; see, e.g., Wood v. Village of Grayslake,
229 Ill. App. 3d 343, 354, 556 (1992) (holding that section
3B109 immunizes the failure to initially provide traffic control
devices, but not the failure to maintain existing traffic control
devices).
The record in the underlying case demonstrates that, in
1993, the County negligently replaced the erroneous two-
direction passing zone on Galena Road. Because section
3B104 of the Tort Immunity Act immunizes only the failure to
initially provide traffic control markings, the County was not
immune from this improper placement. Thus, the circuit court in
this appellate legal malpractice action correctly concluded: the
trial court in the underlying case correctly denied the County=s
motion for summary judgment; had defendants perfected the
appeal in the underlying case, the appellate court would not
have reversed the judgment based on section 3B104; and,
therefore, defendants= negligence in failing to perfect the
appeal was not the proximate cause of plaintiff=s injury.
Consequently, the element of proximate cause being absent
from plaintiffs= case, the circuit court properly granted summary
judgment in favor of defendants. The appellate court correctly
upheld the judgment of the circuit court.
-21-
III. CONCLUSION
For the foregoing reasons, the judgment of the appellate
court is affirmed.
Affirmed.
CHIEF JUSTICE THOMAS took no part in the consideration
or decision of this case.
-22-