The opinion
JUSTICE LUND, dissenting:
I respectfully disagree with the majority opinion. Section 3 — 104 of the Act must be read together with section 3 — 102(a) of the Act, which provides:
“Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be 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.” Ill. Rev. Stat. 1991, ch. 85, par. 3-102(a).
Together with this provision is “the traditional rule that local governments have an obligation to maintain public property in a reasonably safe condition.” (Curtis v. County of Cook (1983), 98 Ill. 2d 158, 163 , 456 N.E.2d 116, 119 .) The duty to maintain governmental property does not require the creation of public improvements. (Horrell v. City of Chicago (1986), 145 Ill. App. 3d 428, 432 , 495 N.E.2d 1259, 1262 .) The duty to maintain does not commence until an improvement is actually undertaken. (Deren v. City of Carbondale (1973), 13 Ill. App. 3d 473, 478 , 300 N.E.2d 590, 593 ; Horrell, 145 Ill. App. 3d at 432 , 495 N.E.2d at 1262 ; Bowen v. City of Harvey (1987), 164 Ill. App. 3d 637, 639 , 518 N.E.2d 203, 205 .) “A township has no common law duty to *** erect signs ***. A duty only arises when a public improvement is actually undertaken.” Havens v. Harris Township (1988), 175 Ill. App. 3d 768, 771 , 530 N.E.2d 284, 285 .
In Baran v. City of Chicago Heights (1969), 43 Ill. 2d 177, 180-81 , 251 N.E.2d 227, 229 , our supreme court said:
“We cannot accept the argument. The court has long recognized that where a city undertakes to provide lights, it is liable for injuries which result from deficient or inadequate ones. (Johnston v. City of East Moline, 405 Ill. 460 ; City of Chicago v. Powers, 42 Ill. 169 ; City of Freeport v. Isbell, 83 Ill. 440 .) In holding a city responsible for injuries thus caused the court is not reviewing the city’s discretion in selecting a plan. It is not controlling or passing upon the city’s estimate of public needs. Nor is it deciding what the ‘best’ kind of improvement may be. It is simply saying that when a city creates a hazardous condition and someone is injured as a consequence it must respond in damages, just as others are required to do. Such is in no sense usurping a legislative power, as suggested by defendant. A municipal corporation, like an individual or a private corporation, is required to exercise its rights and powers with such precautions as shall not subject others to injury. The rule which protects it in the exercise of its governmental functions should not be construed to relieve from liability when the plan devised, if put in operation, leaves the city’s streets in a dangerous condition for public use. (City of Chicago v. Seben, 165 Ill. 371 .) After a careful review of the record in the case at bar we think that the evidence of negligence was sufficient to justify the circuit court in refusing to direct a verdict.”
One of the main issues on appeal in the present case is whether section 3 — 104 of the Act did create immunity. Because the dismissal was based upon the pleadings, we must take all well-pleaded facts in plaintiffs’ complaint as true. (Wolfe v. Wolfe (1980), 81 Ill. App. 3d 833 , 401 N.E.2d 1111 .) Plaintiffs’ complaint alleged the following as negligent and as wilful and wanton acts and/or omissions by the defendants:
(a) failed to put the warning device far enough in advance of the flooding river to enable southbound drivers approaching the bridge from the north to stop in time to avoid driving into the river;
(b) permitted the warning device or barricade on the northerly approach to the bridge to be moved (or removed) and to remain in the wrong location (or to remain absent) when they knew (or should have known) that the absence of such warning signs created a dangerous condition for motorists going south on the road at the bridge;
(c) failed to properly maintain, replace, or position the warning device or barricades immediately north of the flooding river;
(d) failed to provide a warning sign or barricade on the northerly approach to the bridge, in addition to the flashing light, to alert drivers of the flooding, when flooding would not be reasonably apparent to motorists;
(e) failed to provide barricades or warning signs on the northerly approach to the bridge far enough in advance of the flooding river, when similar warnings had earlier been placed on the southerly approach to the bridge;
(f) failed to close the road in the area of the bridge, when defendants had closed the road to northbound traffic;
(g) failed to warn southbound traffic that the road was closed, when defendants had posted such warnings at the intersection for northbound motorists;
(h) failed to post a warning device conforming to the Uniform Manual for southbound motorists;
(i) failed to give an adequate warning of the flooded road to southbound motorists, in that the flashing light was located off the roadway, low to the ground, and was a device customarily used to mark holes in highways or lateral boundaries of roadways and was therefore ambiguous as to its intent and purpose; and
(j) failed to give adequate warning to southbound motorists, in that the flashing light failed to conform to section 6B — 3 of the Uniform Manual (Uniform Manual §6B — 3, at 6B — 2 (warning devices should be placed in a position where they will convey their message most effectively and drivers will have adequate time for a response)) and failed to accompany the light with a sign warning of the flooded roadway as required by section 2C — 40 of the Uniform Manual (Uniform Manual §2C — 40, at 2C — 22).
I agree that if none of the devices as listed in section 3 — 104 of the Act had been installed, then section 3 — 104 immunity would control. However, what is the effect of the installation of the yellow flashing device? I suggest that placing of the flashing warning light removed the section 3 — 104 immunity, or at least created a fact question as to the existence of negligent installation.
Section 3 — 105 Immunity
Section 3 — 105(a) immunity relates to “effect of weather conditions.” (Ill. Rev. Stat. 1991, ch. 85, par. 3 — 105(a).) Section 3— 105(c) provides that “[n]othing in this Section shall relieve the local public entity of the duty to exercise ordinary care in the maintenance of its property as set forth in Section 3 — 102.” Ill. Rev. Stat. 1991, ch. 85, par. 3 — 105(c).
Case law previously cited provides that once a governmental body undertakes to provide a warning or traffic device, immunity does not exist for failing to use ordinary care. This rule should equally apply to sections 3 — 104 and 3 — 105 of the Act.
Proximate Cause
The trial court, in dismissing plaintiffs’ complaint, indicated the only proximate cause was the flooding. Proximate cause is defined as that cause which produces an injury through a natural and continuous sequence of events, unbroken by any effective intervening cause. (Durbin v. St. Louis Slag Products Co. (1990), 206 Ill. App. 3d 340, 356-57 , 564 N.E.2d 242, 253 .) In addition, there may be more than one proximate cause of an injury. (Ray v. Cock Robin, Inc. (1974), 57 Ill. 2d 19, 23 , 310 N.E.2d 9, 11-12 ; Bentley v. Saunemin Township (1980), 83 Ill. 2d 10, 17 , 413 N.E.2d 1242, 1246 .) Plaintiffs alleged in their complaint that at the time of the accident the asphalt road was dark and there were no lights in the area. They also alleged the bridge angled to the east for southbound motorists, thereby reducing or eliminating a driver’s ability to see the flood conditions in time to stop a vehicle. They further alleged the flashing light was placed immediately south of the bridge on the downward slope leading away from the bridge, but immediately north of the floodwater. They then alleged the improper placement of the light and failure to provide warning devices conforming to the Uniform Manual. The allegations are sufficient to establish that there was a failure to exercise ordinary care and that failure was a proximate cause of the accident which resulted in the injury.
The trial court should be reversed and this cause should be remanded.