Governmental Interinsurance Exchange v. Judge

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@

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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

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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

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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

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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

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*** 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

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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

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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

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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

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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

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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

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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.

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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

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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.

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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).

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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

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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.

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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

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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

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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.

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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.

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