The opinion
NOTICE
2025 IL App (5th) 240852-U
NOTICE
Decision filed 10/17/25. The
This order was filed under
text of this decision may be NO. 5-24-0852 Supreme Court Rule 23 and is
changed or corrected prior to
not precedent except in the
the filing of a Petition for IN THE limited circumstances allowed
Rehearing or the disposition of
under Rule 23(e)(1).
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
TRAVIS WADER, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Macon County.
)
v. ) No. 23-LA-85
)
MACON COUNTY, ILLINOIS and ILLINOIS )
DEPARMENT OF TRANSPORTATION, ) Honorable
) Robert C. Bollinger,
Defendants-Appellees. ) Judge, presiding.
______________________________________________________________________________
JUSTICE CATES delivered the judgment of the court.
Justice Sholar concurred in the judgment.
Justice Vaughan dissented.
ORDER
¶1 Held: The trial court erred in granting Macon County’s motion to dismiss count I of the
plaintiff’s complaint with prejudice where Macon County failed to meet its initial
burden to show that an affirmative matter barred or defeated the plaintiff’s claim.
The order dismissing count I of the complaint is reversed and the cause is remanded.
¶2 The plaintiff, Travis Wader, appeals from the circuit court’s order granting defendant
Macon County’s motion to dismiss count I of his complaint with prejudice pursuant to section 2-
619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2022)). For
reasons that follow, we reverse and remand.
1
¶3 I. BACKGROUND
¶4 On October 12, 2020, at approximately 9:30 a.m., the plaintiff was a passenger in a vehicle
traveling east on County Highway 30 approaching its intersection with U.S. Highway 51. As the
plaintiff’s vehicle entered the intersection of County Highway 30 and U.S. Highway 51, it was hit
by a large truck traveling south on U.S. Highway 51. The plaintiff sustained serious injuries as a
result of the collision.
¶5 On September 20, 2023, the plaintiff filed a complaint against the defendants, Macon
County and the Illinois Department of Transportation (IDOT), in the circuit court of Macon
County. 1 In count I, the plaintiff alleged that Macon County breached its duty to the plaintiff to
maintain its property in a reasonably safe condition pursuant to section 3-102 of the Local
Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS
10/3-102 (West 2022)). More specifically, the plaintiff alleged that Macon County breached its
duty to maintain the approach to U.S. Highway 51, along eastbound County Highway 30 (Elwin
Road), 2 in a reasonably safe manner in that (a) the approach was inadequately signed to warn
travelers of the upcoming stop sign at the intersection, (b) the approach contained foliage and other
road signs that obstructed the stop sign at the intersection, and (c) Macon County failed to maintain
the light on the stop sign at the intersection of County Highway 30 and U.S. Highway 51. The
plaintiff further alleged that Macon County had actual or constructive notice of the aforementioned
1
The plaintiff filed a prior negligence complaint against Macon County, regarding this same
accident. Pursuant to the agreement of the parties, the action was voluntarily dismissed without prejudice
on September 30, 2022, after Macon County provided information indicating IDOT was responsible for the
intersection. Plaintiff then filed an action against IDOT in the Illinois Court of Claims. During the pendency
of those proceedings, IDOT produced documents showing Macon County was responsible for maintaining
the intersection and the stop sign at issue. Plaintiff obtained a stay of the proceedings in the Court of Claims
and filed the pending action in the circuit court of Macon County.
2
County Highway 30 is also referred to as Elwin Road in the pleadings. For consistency and to
avoid confusion, we will refer to Elwin Road as County Highway 30 in this order.
2
conditions within a reasonable time prior to the accident to have remedied or protected against
those conditions. The plaintiff claimed he sustained serious injuries as a direct and proximate result
of Macon County’s breach of its duty, including a skull fracture, a subarachnoid hemorrhage, a
traumatic brain injury, respiratory failure secondary to trauma, and pulmonary contusions. He
sought compensatory damages for medical expenses, pain and suffering, and posttraumatic stress.
¶6 The complaint included a second count against Macon County and IDOT. In count II, the
plaintiff sought a declaratory judgment seeking resolution of which entity was responsible for the
care, control, and maintenance of the flashing light on the stop sign at issue and the eastbound
approach to U.S. Highway 51 along County Highway 30 on the date of the accident.
¶7 On March 25, 2024, Macon County filed a motion to dismiss the plaintiff’s complaint with
prejudice pursuant to section 2-619(a)(9) of the Code. As to count I, Macon County alleged the
plaintiff’s claim was barred by an affirmative matter—the Tort Immunity Act (745 ILCS 10/1-
101-210 (West 2022)). Macon County asserted that it did not own or control the subject
intersection, that it was not responsible for the location or installation of the stop signs on County
Highway 30, and that the “stop ahead signs” on County Highway 30 in advance of the stop sign at
issue had been in place for more than 50 years. Citing section 2-105 of the Tort Immunity Act (745
ILCS 10/2-105 (West 2022)), Macon County claimed that because it did not own or control the
intersection or place the signage, it could not be liable for an inadequate or a negligent inspection
of any property other than its own. Macon County also claimed there was no evidence that the
flashing beacon on top of the stop sign at issue was not operational at the time of the accident. In
addition, Macon County argued that the plaintiff offered no facts or evidence to show it had actual
or constructive notice of a condition that was not reasonably safe, and that without any facts or
evidence of actual or constructive notice, the plaintiff’s negligence claim was barred under the
3
Tort Immunity Act. Macon County also sought dismissal of count II of the complaint, arguing that
the plaintiff lacked standing to pursue a declaratory judgment because there was no actual
controversy between Macon County and IDOT.
¶8 In support of the motion to dismiss, Macon County filed a declaration from its county
engineer, Bruce Bird. Therein, Bird averred that IDOT was responsible for the placement of signs
on all state highways and their intersecting roadways, including the intersection of U.S. Route 51
and County Highway 30, and that Macon County had no responsibility for the installation and
location of the stop signs on County Highway 30. In addition, Bird stated that in 1995, IDOT and
Macon County entered into a “Letter of Understanding” regarding the installation of a flashing
beacon system at the intersection of U.S. Route 51 and County Highway 30. The installation of
the flashing beacon system was a part of the improvements to U.S. Route 51 and County Highway
30. According to Bird’s declaration, the “Letter of Understanding” indicated that Macon County
agreed to accept responsibility for the maintenance of the flashing beacon system. Bird stated that
Macon County “regularly maintains” the flashing beacon system at U.S. Route 51 and County
Highway 30, and that it “has no records of maintenance or repair requests that suggest the flashing
beacons were not operational at the time of the accident.” Bird further stated that “stop ahead signs
are placed on County Highway 30 in advance of the U.S. Highway 51 stop sign and have been
installed for more than 50 years.”
¶9 A copy of the 1995 Letter of Understanding was attached to the Bird declaration. The Letter
of Understanding provided, in pertinent part, that the State of Illinois, through IDOT, would install
a flashing beacon system at the intersection of U.S. Route 51 and County Highway 30. The flashing
beacon system consisted of flashing yellow beacons on the post mounted advance warning signs
on U.S. Route 51 and flashing red beacons on the stop signs at County Highway 30. In exchange
4
for the installation of the flashing beacon system, Macon County agreed to accept 100%
responsibility for the maintenance and the electrical energy of the system. The Letter of
Understanding also provided:
“It is mutually agreed that the actual maintenance will be performed by the
COUNTY, either with its own forces or through an ongoing contractual agreement.
It is further agreed that the flashing beacons shall be maintained to at least the Levels of
Maintenance shown above and in the attached Exhibit A made a part hereof.”
¶ 10 Exhibit A, entitled “Flashing Beacon Maintenance Provisions,” was also attached to the
Bird declaration. This document provided that the maintaining agency, Macon County, agreed to:
“1. Patrol the flashing beacon system on a regular basis and replace burned out
lamps or damaged sockets as may be required. All lamps should be replaced as
frequently as experience proves necessary to prevent undue failures. The reflector and
lens should be cleaned each time a lamp is replaced. All replacement lamps shall equal
the wattage and type of the existing lamps.
2. Keep signal heads properly adjusted and in alignment.
3. Replace burned out fuses.
4. Clean reflectors, lenses, and lamps once every six (6) months.
5. Repaint all signal components exposed to weather on a regular basis.
6. Repair or replace any and all equipment damaged by any cause whatsoever.
7. Be responsible to make recovery for damage to any part of the systems from
the party causing the damage.
8. Provide skilled maintenance personnel who will be available to respond
without delay to emergency calls. This may be provided by agency forces, contract,
5
or maintenance agreement. Lights out, or knockdowns at an intersection are
considered emergencies.
9. Provide the DEPARTMENT the names, addresses, and telephone numbers of
at least two persons who will be available for emergency repair of the flashing beacon
system and keep the DEPARTMENT informed of any changes of same.”
¶ 11 A copy of the resolution of the Macon County Board approving the Letter of Understanding
was also included with the Bird declaration. The resolution provided in part:
“WHEREAS Macon County now desires to enter into a new letter of understanding
with the State of Illinois Department of Transportation for the installation of a flashing
beacon system at the intersection of US Route 51 with County Highway 30 in Elwin to
replace the old system that was removed due to the US Route 51 improvements; and
WHEREAS in compliance with the aforementioned letter of understanding it is
necessary for the County to agree to maintain the system installed by the State.
NOW, THEREFORE, BE IT RESOLVED BY THE MACON COUNTY BOARD
THAT it hereby approves said letter of understanding with respective costs.”
The resolution was unanimously passed by the Macon County Board on August 20, 1995.
¶ 12 The plaintiff filed a response in opposition to Macon County’s section 2-619(a)(9) motion
to dismiss. The plaintiff argued that his complaint sufficiently alleged that Macon County was
responsible for maintaining the approach to the subject intersection and the flashing light above
the stop sign at that intersection and that the flashing light above the stop sign at issue was not
functioning at the time of the accident. The plaintiff also argued that while Macon County claimed
it had no actual notice that the flashing light above the stop sign was not working, Macon County
did not address constructive notice in its motion. In addition, the plaintiff reminded the trial court
6
that a section 2-619 motion to dismiss “admits all well-pleaded facts and the legal sufficiency of
the complaint as true.” The plaintiff claimed that Macon County, through its pleadings and
supporting documents, was attempting to introduce facts to refute the factual allegations in the
complaint, rather than establish an affirmative matter that barred plaintiff’s complaint under
section 2-619(a)(9). The plaintiff concluded that Macon County was seeking a summary judgment
“under the guise” of a 2-619(a)(9) motion to dismiss.
¶ 13 The plaintiff attached an affidavit from his attorney in support of his motion in opposition
to Macon County’s motion to dismiss. Therein, plaintiff’s attorney attested to an email he received
from an IDOT claims manager on April 26, 2023. In the email, the IDOT claims manager stated
that he was advised that “the intersection in question is under the maintenance responsibility of
the Macon County Highway Department.” The plaintiff also attached a copy of the Illinois Traffic
Crash Report of the incident. In the crash report, the responding officer documented his
observation that when he arrived on scene, “the red flashing beacon above the stop sign facing
eastbound traffic was not functioning.”
¶ 14 In reply, Macon County argued that the plaintiff failed to offer admissible evidence to show
that Macon County controlled the intersection of County Road 30 and U.S. Route 51. Macon
County also argued that the plaintiff failed to plead any facts regarding actual or constructive notice
of a condition at the intersection that was not reasonably safe. Macon County referenced the traffic
crash report offered by the plaintiff and argued that the responding police officer’s observation
that the flashing beacon system was not working at the time of the accident was hearsay. Macon
County claimed that the plaintiff relied upon inadmissible hearsay in the traffic crash report to
support its negligence claim. However, later in its reply, Macon County also referred to and relied
upon other inadmissible hearsay statements in the traffic crash report. Macon County noted that
7
the responding officer indicated he called IDOT while at the crash site. During the call, an
unidentified IDOT employee informed the officer that the flashing beacon system was inspected
weekly, and that “the dysfunctional red flashing beacon system would have been functioning on
the last inspection date of 10/12/2020.”
¶ 15 On March 28, 2024, IDOT also filed a motion to dismiss count II pursuant to section 2-
619(a)(1) of the Code (735 ILCS 5/2-619(a)(1) (West 2022)). IDOT argued that count II was
barred by sovereign immunity under the State Lawsuit Immunity Act (745 ILCS 5/0.01 et seq.
(West 2022)). IDOT also argued that under section 8 of the Court of Claims Act (705 ILCS 505/8
(West 2022)), the Court of Claims had exclusive jurisdiction over the plaintiff’s claim against
IDOT.
¶ 16 After considering the parties’ pleadings and arguments, the trial court granted Macon
County’s motion to dismiss count I of the plaintiff’s complaint with prejudice. In a written order,
the trial court found that the plaintiff’s complaint did not include “any well-pled factual allegations
to establish that Macon County owned or controlled the intersection where the accident occurred
or had any notice that the lights on the stop sign were in need of any type of maintenance.” The
court also found that the Bird declaration asserted that Macon County “neither maintained nor
controlled the intersection” and established that Macon County had “no records of any
maintenance or repair requests suggesting that the flashing beacons were not operational at the
time of the accident.” The court determined that the affirmative matter raised by Macon County
negated the plaintiff’s cause of action completely and that no affirmative matter raised by the
plaintiff created a factual dispute for the trier of fact. The court concluded as a matter of law that
“Macon County established that it did not own or control the intersection at issue which defeats
Plaintiff’s negligence action against Macon County.” Having found there was no factual dispute
8
to preclude “summary adjudication,” the court dismissed count I of the plaintiff’s complaint with
prejudice.
¶ 17 Regarding count II, the trial court found that given the dismissal of count I, there was no
actual controversy and therefore the plaintiff lacked standing to pursue the declaratory judgment
action. The court also found that the plaintiff’s claim against IDOT could proceed in the Court of
Claims. The court granted Macon County’s motion to dismiss count II with prejudice and
determined that IDOT’s motion to dismiss was rendered moot by the ruling.
¶ 18 II. ANALYSIS
¶ 19 On appeal, the plaintiff contends the trial court erred in granting Macon County’s motion
to dismiss count I of the complaint with prejudice pursuant to section 2-619(a)(9) of the Code. The
plaintiff claims that his complaint contained well-pled factual allegations of negligence against
Macon County, and that Macon County did not establish an affirmative matter that barred the
plaintiff’s claim but instead presented arguments more appropriate for summary judgment. The
plaintiff asks this court to vacate the order dismissing his negligence claim against Macon County
and to remand the case for further proceedings. The plaintiff did not appeal from that portion of
the trial court’s order dismissing count II of the complaint, and so we will not consider that ruling.
¶ 20 Section 2-619(a)(9) provides that a defendant may file, within the time for pleading, a
motion to dismiss a cause of action on the ground that the claim is “barred by other affirmative
matter avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2022).
The purpose of section 2-619(a)(9) is to dispose of issues of law and easily proved issues of fact
at the outset of the litigation. Van Meter v. Darien Park District, 207 Ill. 2d 359, 367 (2003);
Reynolds v. Jimmy John’s Enterprises, LLC, 2013 IL App (4th) 120139, ¶ 31.
9
¶ 21 A motion to dismiss under section 2-619(a)(9) admits the legal sufficiency of the complaint
and asserts that an affirmative matter outside the complaint bars or defeats the cause of action
against the defendant. Van Meter, 207 Ill. 2d at 367; Reynolds, 2013 IL App (4th) 120139, ¶ 31.
An affirmative matter is a type of defense that negates a cause of action completely or refutes
critical conclusions of law or conclusions of material fact that are unsupported by allegations of
specific facts contained in or inferred from the complaint. Reynolds, 2013 IL App (4th) 120139,
¶ 33. An affirmative matter is not simply evidence upon which the defendant expects to contest
essential elements of the plaintiff’s cause of action. Smith v. Waukegan Park District, 231 Ill. 2d
111, 121 (2008). The affirmative matter must be either apparent on the face of the complaint or
supported by affidavits or other evidentiary materials, and it must do more than refute a well-
pleaded fact in the complaint. Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 383 (1997).
Section 2-619(a)(9) does not authorize a defendant to submit affidavits or other evidentiary matters
for the purpose of contesting the plaintiff’s factual allegations and presenting its own version of
the facts. Reynolds, 2013 IL App (4th) 120139, ¶ 34.
¶ 22 The defendant has the initial burden to establish that an affirmative matter bars or defeats
the plaintiff’s claim. Epstein, 178 Ill. 2d at 383. If the defendant satisfies the initial burden of going
forward on the section 2-619(a)(9) motion to dismiss, then the burden shifts to the plaintiff to
demonstrate that the proffered affirmative matter is either “unfounded or requires the resolution of
an essential element of material fact before it is proven.” Epstein, 178 Ill. 2d at 383 (quoting Kedzie
& 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116 (1993)). The plaintiff may satisfy
the shifted burden by presenting affidavits or other proof. 735 ILCS 5/2-619(c) (West 2022).
¶ 23 When ruling on a section 2-619(a)(9) motion, the trial court must accept as true all well-
pleaded facts in the plaintiff’s complaint and all reasonable inferences that may be drawn
10
therefrom, and the court must construe the pleadings and supporting documents in a light most
favorable to the nonmoving party. Reynolds, 2013 IL App (4th) 120139, ¶ 31 (citing Sandholm v.
Kuecker, 2012 IL 111443, ¶ 55). The motion should be granted only if the plaintiff can present no
set of facts that would support his cause of action. Reynolds, 2013 IL App (4th) 120139, ¶ 31
(citing Synder v. Heidelberger, 2011 IL 111052, ¶ 8). A motion to dismiss under section 2-
619(a)(9) presents a question of law that is reviewed de novo. Van Meter, 207 Ill. 2d at 368. De
novo review means that the reviewing court performs the same analysis that the trial court
performed, without deference to the trial court. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564,
578 (2011).
¶ 24 In its written order, the trial court recited the procedural rules for a section 2-619(a)(9)
motion but then failed to follow them. Rather than considering whether Macon County satisfied
its initial burden to show that the plaintiff’s claim was barred under the Tort Immunity Act, the
trial court first considered the legal sufficiency of the plaintiff’s complaint, effectively
transforming the section 2-619(a)(9) motion into a motion to dismiss for failure to plead sufficient
facts to state a cause of action under section 2-615 of the Code (735 ILCS 5/2-615 (West 2022)). 3
¶ 25 Illinois requires fact pleading and a plaintiff must allege sufficient facts to state a legally
recognized cause of action. Marshall v. Burger King Corp., 222 Ill. 2d 422, 429-30 (2006). To
state a cause of action for negligence, the complaint must allege sufficient facts to establish the
existence of a duty owed by the defendant, a breach of that duty, and an injury proximately caused
by the breach. Marshall, 222 Ill. 2d at 430. Whether a duty exists in a particular case is a question
of law for the court to decide. Marshall, 222 Ill. 2d at 430. Whether the defendant breached the
3
A motion to dismiss under section 2-615 questions whether “the facts alleged in the complaint,
viewed in the light most favorable to the plaintiff, and taking all well-pleaded facts and all reasonable
inferences that may be drawn from those facts as true, are sufficient to state a cause of action upon which
relief may be granted.” Reynolds, 2013 IL App (4th) 120139, ¶ 25.
11
duty and whether the breach proximately caused the plaintiff’s injuries are factual matters for a
jury to decide, provided there is a genuine issue of material fact regarding those issues. Marshall,
222 Ill. 2d at 430.
¶ 26 In count I of the complaint, the plaintiff specifically alleged that under section 3-102 of the
Tort Immunity Act, Macon County had a duty to maintain the approach to the intersection of
County Highway 30 and U.S. Route 51 as well as the light on the stop sign at that intersection,
that Macon County breached its duty, and as a result, the plaintiff was seriously injured in an
accident at the intersection. The plaintiff further alleged that Macon County had actual or
constructive notice of the conditions within a reasonable time prior to the accident to have
remedied or protected against those conditions. As will be discussed in more detail below, the
plaintiff’s theory of liability was not based on whether Macon County owned or installed the stop
sign and “stop ahead” signs at the approach to the intersection, as alleged by Macon County, but
rather, whether Macon County properly maintained the flashing light on the stop sign and the
approach to the intersection. The record shows that the plaintiff alleged a specific duty under
section 3-102 of the Tort Immunity Act, a breach of that duty, notice, and injuries proximately
caused by the breach of duty. The plaintiff’s complaint is not a model pleading. Nevertheless, the
factual allegations in the complaint were sufficient to state a cause of action and to inform Macon
County of the claim it was called upon to defend. Indeed, by filing its motion to dismiss pursuant
to section 2-619(a)(9) of the Code, Macon County admitted the legal sufficiency of the plaintiff’s
complaint, and the trial court erred in finding otherwise.
¶ 27 The central question in this case was framed by Macon County when it filed its motion to
dismiss under section 2-619(a)(9) of the Code. That question is whether Macon County met its
initial burden to show that an affirmative matter barred the plaintiff’s claim. Immunity under the
12
Tort Immunity Act is an affirmative matter that may be raised in a section 2-619 motion to dismiss.
Van Meter, 207 Ill. 2d at 367. The Tort Immunity Act protects local public entities and their
employees from liability arising out of governmental operations. Van Meter, 207 Ill. 2d at 368.
The Tort Immunity Act is in derogation of the common law and is construed strictly against the
public entity seeking immunity. Van Meter, 207 Ill. 2d at 368. Unless an immunity provision
applies, a public entity is liable in tort to the same extent as a private party. Van Meter, 207 Ill. 2d
at 368.
¶ 28 Section 3-102 of the Tort Immunity Act provides that a local public entity has a duty to
exercise ordinary care to maintain its property in a reasonably safe condition for intended users
and for reasonably foreseeable uses. 745 ILCS 10/3-102(a) (West 2022). However, a local public
entity is not liable for injury “unless it is proven that it has actual or constructive notice of the
existence of such a condition that is not reasonably safe in reasonably adequate time prior to an
injury to have taken measures to remedy or protect against such condition.” 745 ILCS 10/3-102(a)
(West 2022). Section 3-102(b) provides that a public entity does not have constructive notice of a
dangerous condition if it establishes either:
“(1) The existence of the condition and its character of not being reasonably safe
would not have been discovered by an inspection system that was reasonably adequate ***;
or
(2) The public entity maintained or operated such an inspection system with due
care and did not discover the condition.” 745 ILCS 10/3-102(b) (West 2022).
¶ 29 Here, the plaintiff alleged that pursuant to section 3-102(a) of the Tort Immunity Act,
Macon County had a duty to maintain the light on the stop sign at the intersection of County
Highway 30 and U.S. Route 51 as well as the approach to that intersection. In its section 2-
13
619(a)(9) motion to dismiss, Macon County asserted that it had immunity from liability under the
Tort Immunity Act for three reasons: (1) Macon County did not own and was not responsible for
the installation and location of the stop signs on County Highway 30, (2) the stop ahead signs were
placed in advance of the U.S. Highway 51 stop sign and had been installed for more than 50 years,
and (3) there was no evidence that the flashing beacons located on top of the stop signs were not
operating at the time of the accident. Macon County also argued that there were no facts or
evidence to place it on actual or constructive notice of an unsafe condition to prevent the
application of the Tort Immunity Act. We consider each in turn.
¶ 30 Initially, Macon County asserted that the stop sign at issue was not the property of Macon
County and that it was not responsible for the installation and location of that stop sign. Macon
County argued that since it did not own or control the intersection or place the stop sign, it was
immune from liability for an inadequate or a negligent inspection of any property other than its
own, citing section 2-105 of the Tort Immunity Act. Here, however, the plaintiff did not allege that
Macon County owned the stop sign at issue or that Macon County was responsible for the location
and installation of the stop sign. Nor did the plaintiff allege that Macon County breached a duty
owed under section 2-105 of the Tort Immunity Act. The plaintiff’s theory of liability was based
upon Macon County’s duty to properly maintain the flashing light on the stop sign at issue under
section 3-102 of the Tort Immunity Act. The Bird declaration and attached documents filed by
Macon County supported the plaintiff’s theory. The plaintiff’s theory of liability was not based
upon the ownership or the location of the stop sign. Thus, Macon County’s assertion that it neither
owned nor installed the stop sign had nothing to do with the plaintiff’s claim that Macon County
breached a duty to maintain the stop sign under section 3-102 of the Tort Immunity Act. Likewise,
section 2-105 of the Tort Immunity Act, relied on by Macon County, was not relevant to the
14
plaintiff’s claim. Accordingly, Macon County failed to establish a basis for the dismissal of the
plaintiff’s cause of action under section 2-619(a)(9).
¶ 31 The same reasoning applies to Macon County’s assertion that it was entitled to immunity
because the “stop ahead” signs located in advance of the U.S. Highway 51 stop sign had been
installed for more than 50 years. Once again, the plaintiff’s theory of liability was based upon
Macon County’s duty to properly maintain the approach to the intersection under section 3-102 of
the Tort Immunity Act, and not on the location or installation of the “stop ahead” signs. Once
again, Macon County’s assertion of immunity under section 2-105 of the Tort Immunity Act—a
section different than that pled by the plaintiff—was not relevant. Thus, Macon County’s assertion
that it was not responsible for the location and installation of the signage does not constitute an
affirmative matter that would negate the plaintiff’s cause of action against Macon County.
Accordingly, Macon County failed to establish a basis for the dismissal of the plaintiff’s claim
under section 2-619(a)(9).
¶ 32 Finally, we consider the notice issue. The question of actual or constructive notice is
ordinarily one of fact and becomes a question of law only if all of the evidence, when viewed in a
light most favorable to the plaintiff, so overwhelmingly favors the public entity that no contrary
verdict could ever stand. See generally, Zameer v. City of Chicago, 2013 IL App (1st) 120198,
¶ 12.
¶ 33 In this case, Macon County asserted that no evidence was offered to show that the flashing
light on top of the stop sign was not operational at the time of the accident and that no facts or
evidence showed that it had either actual or constructive notice of the conditions alleged in the
plaintiff’s complaint. Macon County offered the Bird declaration in support of this contention. In
his declaration, Bird asserted that Macon County “has no records of maintenance or repair
15
requests that suggest the flashing beacons were not operational at the time of the accident”
(emphasis added). It is important to recognize here that Macon County’s own pleadings and
supporting documents established that Macon County agreed to do more than simply await
“requests” for repairs.
¶ 34 Macon County, through the Bird declaration and the documents attached thereto, admitted
that it undertook a duty to maintain the flashing beacon above the stop sign at issue. The duty
undertaken by Macon County was consistent with its statutory duty under the Tort Immunity Act
“to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the
exercise of ordinary care of people” who were intended and permitted users. 745 ILCS 10/3-102(a)
(West 2022).
¶ 35 The Bird declaration, the Letter of Understanding, and the Flashing Beacon Maintenance
Provisions show Macon County undertook very specific duties as part of its agreement to maintain
the flashing beacon system. In his declaration, Bird admitted that Macon County “regularly
maintains the flashing beacon system at U.S. Route 51 and County Highway 30 (Elwin Street).”
The Letter of Understanding shows that Macon County agreed that it would be “100% responsible”
for maintenance of the flashing beacon system and that the system would be maintained to “at least
the Levels of Maintenance” specified in the Letter of Understanding and the Flashing Beacon
Maintenance Provisions. The duties specified in the Flashing Beacon Maintenance Provisions
were set forth verbatim earlier in this order. Significantly, the first provision in that document
required Macon County to “[p]atrol the flashing beacon system on a regular basis and replace
burned out lamps or damaged sockets as may be required.” It also required that “[a]ll lamps
should be replaced as frequently as experience proves necessary to prevent undue failures.”
Macon County’s maintenance duties included inspecting and maintaining the flashing beacon
16
system, replacing lamps and fuses, and repairing and replacing equipment damaged by any cause.
“Lights out, knockdowns at an intersection” were considered emergencies. Thus, Macon County
agreed to patrol the flashing beacon system on a regular basis, to undertake proactive and
preemptive maintenance to prevent failures, and to provide skilled maintenance personnel to
respond to emergency calls without delay. Macon County also accepted the duty to designate, in
advance, the name of the person to be contacted if a light went out, as that was deemed an
emergency. Despite all of the responsibilities that Macon County accepted as part of its duty to
maintain the flashing beacon system and stop sign at issue, Macon County did not identify or
produce its standards and protocols for “patrolling” and “inspecting” the flashing beacon system
and stop sign. Nor did it produce any patrol, inspection or preventative maintenance logs. These
types of documents would have been in the possession and control of Macon County, yet Macon
County did not produce any such documents in support of its section 2-619(a)(9) motion to
dismiss. As noted previously, the initial burden was on Macon County to allege an affirmative
matter that would have defeated the plaintiff’s claim, accepting the plaintiff’s complaint as legally
sufficient and true.
¶ 36 Whether the flashing beacon on the stop sign was working at the time of the accident is a
question of fact raised in the plaintiff’s complaint. The fact that Macon County had no records of
“requests” for repairs is not an affirmative matter within the meaning of section 2-619(a)(9). An
affirmative matter is something more than evidence offered to contest the factual allegations in the
plaintiff’s complaint. Reynolds, 2013 IL App (4th) 120139, ¶ 34. Here, the lack of requests for
repairs is merely evidence offered to support Macon County’s version of the facts and to refute the
plaintiff’s version of the facts. Reynolds, 2013 IL App (4th) 120139, ¶ 34. When a defendant seeks
to attack the factual allegations in a complaint, the proper procedural tool is a motion for summary
17
judgment. Reynolds, 2013 IL App (4th) 120139, ¶ 34; Barber-Colman Co. v. A and K Midwest
Insulation Co., 236 Ill. App. 3d 1065, 1072 (1992).
¶ 37 It is worth noting here that both parties referred to portions of the traffic crash report in
their pleadings. In that report, the responding officer noted that he personally observed that the
flashing light was not operational, and that when he called IDOT, he was advised that the red
flashing beacons used at this intersection were “inspected weekly” and that “the dysfunctional red
flashing beacon would have been functioning on the last inspection date 10/12/2020.” While the
traffic accident report contains hearsay and double hearsay, both parties relied upon the parts of
the report that supported their respective arguments about whether the flashing light was operating
at the time of the accident and whether Macon County had actual or constructive notice that the
light was not operating. Again, this illustrates the parties were arguing over genuine issues of fact.
Those types of disputes are not the focus of a section 2-619(a)(9) motion to dismiss and are more
properly made in a motion for summary judgment.
¶ 38 Finally, we pause to address the dissent. At the outset, the dissent asserts that the majority
“strays from” and “fails to address” the arguments that were presented in this appeal. The dissent
then repeatedly claims that the majority addresses issues that were “neither raised nor argued by
the parties.” The contentions of the dissent are spurious, and the tone is lacking in civility and
discernment. Once stripped of the coarse rhetoric and cut to the core, ironically, the dissent exposes
more areas of alignment than disagreement with the majority’s analysis.
¶ 39 For example, the dissent finds that the plaintiff’s first argument on appeal, i.e., that the trial
court erred in dismissing the plaintiff’s complaint with prejudice because the complaint was well-
pled, was a “non-issue” under section 2-619(a)(9) of the Code. (Infra ¶ 50). Thus, the dissent
agrees that the argument over whether the plaintiff pled sufficient facts to allege a cause of action
18
should have been irrelevant because the legal sufficiency of the complaint is admitted in section
2-619(a)(9) motion to dismiss. Given that the legal sufficiency of the complaint was admitted, the
trial court erred in finding otherwise. The dissent further agrees that the Bird declaration admitted
that Macon County had a duty to maintain the flashing light on the stop sign at issue and that the
declaration did not negate the actual facts alleged in the plaintiff’s complaint. (Infra ¶¶ 51, 52).
¶ 40 The dissent then chastises the majority for failing to address Macon County’s contention
that it was immune from liability because it did not own the stop sign, the “stop ahead” signage,
or the intersection and because it was not responsible for the location and placement of the signage
at issue. As noted earlier in our order, Macon County asserted that it was immune from liability
under section 2-105 of the Tort Immunity Act—a section different than that pled by the plaintiff.
Similar to the dissent’s finding that the plaintiff’s argument regarding the legal sufficiency of the
complaint should have been a “non-issue,” we find that Macon County’s claim of immunity under
section 2-105 should also have been a “non-issue.” The plaintiff’s theory of liability was based
upon Macon County’s breach of its duty to maintain the light on the stop sign and to maintain the
approach to the intersection in a reasonably safe condition under section 3-102 of the Tort
Immunity Act. Indeed, the dissent recognizes that the plaintiff’s theory of the case was not based
upon Macon County’s ownership or placement of the signage, but then states: “It is exactly due to
the fact that plaintiff did not make those allegations that Macon County’s affidavit could not negate
the alleged facts.” (Emphasis in original.) While the dissent’s logic is difficult to decipher, it
suggests that Macon County’s affidavit did not refute the actual facts pled in the plaintiff’s
complaint. On that we can agree. Accordingly, Macon County did not satisfy its burden to establish
an affirmative matter that defeated the plaintiff’s claim.
19
¶ 41 Finally, the dissent repeatedly claims that the majority “supplies” two “factual issues” not
presented on appeal. Specifically, the dissent claims that the issue of constructive notice and the
issue of whether the flashing light on the stop sign was working were not issues argued on appeal.
The dissent’s assertions are both incredible and concerning because the issues were clearly
addressed in the briefs on appeal. In the appellant’s brief, the plaintiff claimed that Macon
County’s affidavit did not establish an affirmative matter and that an affidavit may not be used to
simply refute allegations of negligence and notice. In the appellee’s brief, Macon County argued
that there was “no evidence of actual or constructive notice” of an issue with the flashing beacon
system or the stop ahead signs” and no evidence that the flashing light was not operational at the
time of the accident. The arguments were presented to the trial court, and they were raised on
appeal.
¶ 42 The majority and the dissent interpret the same record differently. The majority’s approach
reflects an objective analysis of the issues and arguments presented in this appeal after a thorough
review of the record.
¶ 43 In sum, Macon County chose to file its motion to dismiss pursuant to section 2-619(a)(9).
Therefore, Macon County assumed the initial burden to establish some affirmative matter that
barred the plaintiff’s negligence claim under section 2-619(a)(9), and it failed to meet that burden.
Macon County’s own pleadings, including the Bird declaration and attached documents,
established its duty of care to maintain the property under section 3-102 of the Tort Immunity Act.
Macon County’s pleadings and supporting documents do not assert an affirmative matter that
would negate the plaintiff’s negligence claim completely or refute crucial conclusions of law or
fact.
20
¶ 44 III. CONCLUSION
¶ 45 After thoroughly reviewing the record—accepting as true all well-pleaded facts in the
plaintiff’s complaint and all reasonable inferences therefrom and construing the pleadings and
supporting documents in a light most favorable to the nonmoving party—we find that Macon
County failed to meet its initial burden to show that it was entitled to immunity under the Tort
Immunity Act. For the reasons stated, the trial court’s order granting Macon County’s motion to
dismiss count I of the plaintiff’s complaint with prejudice under section 2-619(a)(9) of the Code
is reversed and the cause is remanded for further proceedings.
¶ 46 Reversed and remanded.
¶ 47 JUSTICE VAUGHAN, dissenting:
¶ 48 I respectfully dissent from my colleague’s decision. The majority’s decision fails to address
the arguments that were presented in this appeal and instead addresses issues that were neither
raised nor argued by the parties. Further, the majority presents issues of fact that would allegedly
preclude summary judgment that were not raised by plaintiff; however, even if properly raised by
plaintiff, the issues were resolved by the evidence submitted, and relied on, by both parties.
¶ 49 Because the majority strays from the issues presented in this appeal, I first address the
actual errors contended by plaintiff. Plaintiff’s brief stated that the
“trial court erred as a matter of law in dismissing Plaintiff’s complaint with
prejudice because Plaintiff’s complaint was well-pled, because Defendant could not use an
affidavit to attack Plaintiff’s allegations, and because Plaintiff relied on a counter affidavit
showing the possibility of relief under the pled cause of action.”
Plaintiff also presented one issue of fact that he claimed would preclude summary judgment.
21
¶ 50 Plaintiff’s first issue contended that his complaint was well-pled. The majority addresses
this argument and ultimately finds that while the complaint was not a “model pleading” it was
“sufficient to state a cause of action.” While I find the majority’s classification generous, at best,
in reality the argument is irrelevant because the legal sufficiency of the complaint is admitted. See
Van Meter v. Darien Park District, 207 Ill. 2d 359, 367 (2003). Therefore, this is a non-issue.
¶ 51 The second issue raised by plaintiff on appeal argued that Macon County was precluded
from relying on an affidavit that negated allegations set forth in the complaint. In support, plaintiff
cited In re Estate of Kirk, 2017 IL App (4th) 160416, Smith v. Waukegan Park District, 231 Ill. 2d
111 (2008), O’Connell v. County of Cook, 2022 IL 127527, and Reynold v. Jimmy John’s
Enterprises, LLC, 2013 IL App (4th) 120139, all of which prohibited a party from using an
affidavit to negate issues of fact arising from the complaint. While I do not dispute the conclusions
reached in plaintiff’s cited cases, Macon County’s affidavit did not negate the facts alleged in
plaintiff’s complaint.
¶ 52 As noted by the majority, a portion of Macon County’s affidavit admitted that Macon
County had a duty to maintain the flashing lights on the stop sign. Indubitably, such allegation
does not negate plaintiff’s claim that defendant had a duty to maintain the flashing lights on the
stop sign and instead admits it. As such, plaintiff’s argument as to this portion of the affidavit must
fail.
¶ 53 The second portion of Macon County’s affidavit contended that Macon County was not
the owner of the “stop ahead” sign, the stop sign, or the intersection. The affidavit further alleged
that Macon County did not place any of the signage on the highway. The majority finds that this
portion of the affidavit “does not provide a basis for the dismissal of the plaintiff’s claim under
22
section 2-619(a)(9)” because it is not an “affirmative matter.” Critically, the majority fails to
address the argument presented by Macon County with regard to this evidence.
¶ 54 “Immunity from suit under the Tort Immunity Act is an ‘affirmative matter’ properly raised
under section 2-619(a)(9).” Van Meter, 207 Ill. 2d at 377 (citing Bubb v. Springfield School District
186, 167 Ill. 2d 372, 378 (1995)). “The ‘affirmative matter’ asserted by the defendant must be
apparent on the face of the complaint; otherwise, the motion must be supported by affidavits or
certain other evidentiary materials.” Van Meter, 207 Ill. 2d at 377. “The phrase ‘affirmative matter’
refers to a defense that negates the cause of action completely or refutes crucial conclusions of law
or conclusions of material fact contained in or inferred from the complaint.” McIntosh v.
Walgreens Boots Alliance, Inc., 2019 IL 123626, ¶ 16 (citing Glisson v. City of Marion, 188 Ill.
2d 211, 220 (1999)).
¶ 55 Macon County’s argument was based on section 2-105 of the Tort Immunity Act (745
ILCS 10/2-105 (West 2022)) which states that “[a] local public entity is not liable for injury caused
by its failure to make an inspection, or by reason of making an inadequate or negligent inspection,
or any property, other than its own, ***.” (Emphasis added.) Plaintiff failed to allege that Macon
County owned any of the alleged obstructions. Therefore, Macon County’s affidavit, that
affirmatively stated that it did not own any of the signage could not negate a fact that was never
alleged. Similarly, plaintiff never alleged that Macon County placed the signage forewarning of
the upcoming stop or any other signs that obstructed the stop sign. As such, the affidavit was an
absolute defense to plaintiff’s claim that Macon County was remiss in failing to maintain the
eastbound approach to U.S. Highway 51 because the approach “was inadequately signed to warn
[travelers] of the upcoming stop sign at the intersection” and that “other signs obstruct[ed] a stop
sign located at the intersection” because it did not own or place on the highway.
23
¶ 56 The majority’s claim that “plaintiff did not allege that Macon County owned the stop sign
at issue or that Macon County was responsible for the placement and installation of the stop sign
at issue,” and therefore the affidavit was irrelevant completely ignores the import of Macon
County’s section 2-105 affirmative defense. It is exactly due to the fact that plaintiff did not make
those allegations that Macon County’s affidavit could not negate the alleged facts. Instead, the
affidavit supported the affirmative defense that precluded liability based on a lack of ownership.
The majority also fails to explain why Macon County would have liability for the alleged negligent
placement of signage that allegedly impeded the driver’s view if the entity did not place any signs
on the road. As such, I wholeheartedly disagree with the majority’s finding that the affidavit did
“not provide a basis for the dismissal of plaintiff’s claim under section 2-619(a)(9)” and would
find the opposite.
¶ 57 Plaintiff’s argument contended that Macon County’s affidavit was precluded because
affidavits could not be used to negate facts alleged by plaintiff. However, Macon County’s
affidavit actually supported one of plaintiff’s claims and the other denied liability based on a lack
of allegations pursuant to section 2-105. Therefore, I would find that plaintiff’s reliance on In re
Estate of Kirk, 2017 IL App (4th) 160416, Smith, 231 Ill. 2d 111 (2008), O’Connell, 2022 IL
127527, and Reynolds, 2013 IL App (4th) 120139, was misplaced. The argument has no merit
because Macon County’s affidavit could not negate facts that were never alleged by plaintiff.
¶ 58 Plaintiff’s third argument on appeal contended that his counter affidavit showed the
possibility of relief under the pled cause of action. More specifically, he contended that a factual
issue existed that precluded dismissal. He stated that the factual issue was whether Macon County
or IDOT was required to maintain the intersection. In response, Macon County argued that the
counter affidavit was based on hearsay and therefore was inadmissible.
24
¶ 59 It is undeniable that the counter affidavit by plaintiff’s attorney was uncompelling. An
Illinois Supreme Court Rule 191(a) affidavit is required for dismissals under section 2-619 of the
Code, if the grounds are not apparent based on the face of the pleading. 735 ILCS 5/2-619 (West
2022); Ill. S. Ct. R. 191(a) (eff. Jan. 4, 2013). The Rule 191(a) affidavit must include the facts
upon which the affiant relied and may not rely on mere conclusions. Landeros v. Equity Property
and Development, 321 Ill. App. 3d 57, 63 (2001). “The affidavit is actually a substitute for
testimony taken in open court and should meet the same requisites as competent testimony.” Harris
Bank Hinsdale v. Caliendo, 235 Ill. App. 3d 1013, 1025 (1992).
¶ 60 Here, plaintiff’s affidavit addressed an email from an IDOT employee to plaintiff’s
attorney, which stated “that the intersection at issue in the above-captioned matter is under the
maintenance and responsibility of Macon County Highway Department.” Macon County correctly
classified the communication as hearsay. The only other “fact” produced by plaintiff in response
to the motion to dismiss was a police report from the accident; however, “police reports are
generally inadmissible hearsay.” People v. Long, 316 Ill. App. 3d 919, 928 (2000) (citing People
v. Smith, 141 Ill. 2d 40, 72 (1990)); see Kociscak v. Kelly, 2011 IL App (1st) 102811, ¶ 25. As
such, plaintiff’s affidavit did not meet the requirements of Rule 191(a). It was based on hearsay,
no exception to the hearsay rule was pled or argued, and the witness listed could not competently
attest to the information in the documents attached to the affidavit.
¶ 61 However, even if Rule 191 was not at issue, the email from IDOT did not create a factual
issue as to whether Macon County or IDOT was the entity required to maintain the flashing lights
on the stop sign. Plaintiff alleged that Macon County was the responsible party and Macon County
admitted that it was. The IDOT email denied responsibility for maintenance of the sign and placed
the responsibility on Macon County. Accordingly, no question of fact arises from the IDOT email
25
and therefore, it is my position that the trial court’s dismissal of plaintiff’s complaint, with
prejudice, was proper.
¶ 62 Finally, I address the unpalatable portions of the majority’s decision. First, it does not
address the arguments presented on appeal. Further, the majority claims that the issue in this appeal
is whether Macon County’s affidavit was sufficient to dismiss plaintiff’s complaint. However, that
argument was never raised by plaintiff. The majority also supplies additional “factual issues” that
it contends preclude dismissal of the complaint. As noted above, only one factual issue was
presented by plaintiff.
¶ 63 “A section 2-619 dismissal resembles the grant of a motion for summary judgment[,]
[therefore, on appeal] we must [also] determine whether a genuine issue of material fact should
have precluded the dismissal or, absent such an issue of fact, whether the dismissal was proper as
a matter of law. Shirley v. Harmon, 405 Ill. App. 3d 86, 90 (2010). Although the majority claims
three issues of fact preclude dismissal, the plaintiff only claimed one issue on appeal. That issue
was whether IDOT or Macon County was responsible for the flashing beacons and that issue was
resolved when Macon County admitted responsibility.
¶ 64 The majority adds two additional factual issues. The first issue raised by the majority was
“whether Macon County had constructive notice of the alleged dangerous condition of the
property.” Notably, while plaintiff raised this issue before the trial court, it was not raised on appeal
and therefore was forfeited. Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (“Points not argued are
forfeited ***.”).
¶ 65 Plaintiff’s complaint on the issue of notice alleged, “Defendant Macon County had actual
or constructive notice of the conditions mentioned herein with reasonably adequate time prior to
Plaintiff’s injury to have taken measures to remedy or protect against such conditions but failed to
26
do so.” Clearly, this “allegation” is a legal conclusion as it contains no factual information to
support the conclusion. Regardless, this “revived” factual issue was actually resolved by Exhibit
B attached to plaintiff’s counter affidavit. Exhibit B was a police report that stated that the officer
contacted IDOT while he was at the scene and the agency advised the officer that the sign was
inspected every Friday and was functioning on the last inspection date of October 12, 2020. That
information reveals that the sign was on a weekly inspection rotation and was inspected prior to
and on the same date as the accident.
¶ 66 Section 3-102 of the Tort Immunity Act (745 ILCS 10/3-102(b) (West 2022)) states,
“A public entity does not have constructive notice of a condition of its property that
is not reasonably safe within the meaning of Section 3-102(a) if it establishes either:
(1) The existence of the condition and its character of not being reasonably
safe would not have been discovered by an inspection system that was reasonably
adequate considering the practicability and cost of inspection weighed against the
likelihood and magnitude of the potential danger to which failure to inspect would
give rise to inform the public entity whether the property was safe for the use or
uses for which the public entity used or intended others to use the public property
and for uses that the public entity actually knew others were making of the public
property or adjacent property; or
(2) The public entity maintained and operated such an inspection system
with due care and did not discover the condition.”
Here, plaintiff’s own evidence precludes a finding of constructive notice. As such, the majority
first claim of a factual issue precluding summary judgment fails.
27
¶ 67 The majority’s second claim of a factual issue not claimed by the plaintiff, was whether
the flashing beacon on the stop sign was working at the time of the accident. However, this is not
even a relevant factual issue. Even if the lights were not functioning at the time of the accident,
which is an inference afforded to plaintiff, plaintiff’s own evidence revealed that the flashing
beacons were not working immediately after the accident. The evidence also revealed that the
flashing beacon was inspected on the same day of the accident pursuant to the weekly Friday
inspection. Therefore, again, even if the flashing beacons were not working, plaintiff’s own
evidence precludes liability. See 745 ILCS 10/3-102(b) (West 2022).
¶ 68 This leaves only the issue of whether dismissal was proper as a matter of law. The majority
contends that Macon County’s affidavit—which supplied the factual information regarding the
intersection—was insufficient as a matter of law. I cannot agree with the conclusion, nor can I
condone the majority’s failure to address the issues as framed by the appellant. The majority claims
the trial court “bypassed” the procedural rules for a section 2-619(a)(9) motion and effectively
transformed the section 2-619(a)(9) motion into a motion to dismiss for failure to plead sufficient
facts to state a cause of action. The majority then writes a decision as if it were the trial court,
despite the fact that the major issues addressed in the majority decision were either never presented,
or only vaguely presented, by the plaintiff. While Macon County addressed the vaguely presented
arguments, it was never given any opportunity to present argument on the issues addressed in the
majority decision that were not raised by the appellant.
¶ 69 When new issues are first raised on appeal, they are subject to forfeiture. Mabry v. Boler,
2012 IL App (1st) 111464, ¶ 15 (“Generally, arguments not raised before the circuit court are
forfeited and cannot be raised for the first time on appeal.”). While forfeiture is a limitation on the
parties and not the reviewing court, overlooking forfeiture should only occur to obtain a just result
28
or maintain a sound and uniform body of precedent. Village of New Athens v. Smith, 2021 IL App
(5th) 200257, ¶ 22.
¶ 70 Here, the action is unjustified especially when, (1) neither party presented argument on
appeal for the issues addressed by the majority, (2) the record is devoid of argument on the issue
before the trial court, (3) sound, uniform precedent exists on the issue of affirmative defenses
raised under the Tort Immunity Act (see i.e., Van Meter, 207 Ill. 2d 359, 366-78 (2003); Prough
v. Madison County, 2013 IL App (5th) 110146, ¶¶ 19-33; People ex rel. Birkett v. City of Chicago,
325 Ill. App. 3d 196, 200-06 (2001); Monson v. City of Danville, 2018 IL 122486, ¶¶ 14-39), and
(4) no novel argument was presented to supplant the previously issued decisions. While it is
undisputed that new issues raised for the first time on appeal may be considered, consideration is
only allowed if the issue is one of law, was fully briefed and argued by the parties, and public
interest favors consideration of the issue. See Forest Preserve District v. First National Bank of
Franklin Park, 2011 IL 110759, ¶ 28 (citing Unzicker v. Kraft Food Ingredients Corp., 203 Ill. 2d
64, 73 (2002)). None of those criteria are met and therefore, it is my belief that the majority goes
well beyond the scope of this appeal by considering issues that were never presented to either the
trial court or this court especially when such action deprived Macon County of the ability to present
its position on those issues.
¶ 71 As shown above, Plaintiff never alleged that Macon County owned the alleged obstructive
signs on the highway. Macon County’s affidavit affirmatively stated that it did not own any of the
obstructions claimed by plaintiff. It then argued that because there was no ownership, liability was
precluded pursuant to section 2-105 of the Tort Immunity Act which precludes liability for a failure
to inspect, or inadequate or negligent inspection of property which the entity does not own. The
affidavit also affirmatively stated that it did not place any of the obstructive signs on the highway.
29
The plaintiff provides no information to the contrary. The majority finds this portion of the
affidavit irrelevant and completely ignores Macon County’s argument pursuant to section 2-105
that removed liability under the Tort Immunity Act for everything but maintenance of the flashing
beacons.
¶ 72 The second portion of Macon County’s affidavit admitted that it was responsible for
maintenance of the flashing lights on the stop sign. The affidavit further stated that it regularly
maintained the flashing beacon system and had no record of any maintenance or repair requests
that suggested the beacons were not operational at the time of the accident. While the majority
found this insufficient to defeat plaintiff’s legal conclusion related to notice under section 3-102(a)
of the Tort Immunity Act, because it did not provide log books related to maintenance or
inspection, the majority ignores Exhibit B of plaintiff’s counter affidavit that revealed the flashing
beacons on that stop sign were inspected every Friday, were inspected on the same day of the
accident, and were functioning properly at the time of the inspection. This evidence revealed that
Macon County “maintained and operated such an inspection system with due care and did not
discover the condition” (see 745 ILCS 10/3-102(b) (West 2022)) which statutorily rebutted
constructive notice.
¶ 73 Therefore, based on the arguments presented here and before the trial court, I would hold
that Macon County’s affidavit in support of its section 2-619(a)(9) dismissal motion was proper in
that it did not negate plaintiff’s fact, and that plaintiff’s counter-affidavit did not create any factual
issues that precluded summary judgment and instead supported dismissal of the complaint.
Accordingly, I would affirm the trial court’s dismissal of count I of plaintiff’s complaint.
¶ 74 For the foregoing reasons, I dissent.
30