NO. 4-03-0347

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

DEANNE M. MILLER,

		Plaintiff-Appellant,

		v.

THE HIGHWAY COMMISSIONER OF NORTH

OTTER TOWNSHIP ROAD DISTRICT; NORTH

OTTER TOWNSHIP ROAD DISTRICT; and

NORTH OTTER TOWNSHIP, a Local

Government Unit;

		Defendants,

		and

RURAL ELECTRIC CONVENIENCE

COOPERATIVE COMPANY, an Illinois Not-

for-Profit Corporation,

		Defendant-Appellee.	)

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)	Appeal from

Circuit Court of

Macoupin County

No. 99L30

Honorable

Thomas P. Carmody,

Judge Presiding.

_________________________________________________________________

		JUSTICE STEIGMANN, delivered the opinion of the court:

		In July 1999, plaintiff, Deanne M. Miller, sued defen

dants, the Highway Commissioner of North Otter Township Road

District, North Otter Township Road District, North Otter Town

ship, and Rural Electric Convenience Cooperative Company (Rural

Electric), for injuries Miller sustained when her minivan skidded

off a roadway and struck a utility pole owned by Rural Electric. 

		In October 2002, Rural Electric filed a motion, pursu ant to section 2-619 of the Code of Civil Procedure (Code) (735

ILCS 5/2-619 (West 2002)), to dismiss count IV of Miller's complaint, which alleged, in pertinent part, that Rural Electric

had negligently placed the utility pole.  Following a February

2003 hearing, the trial court granted the motion to dismiss, upon

determining that Rural Electric owed Miller no duty of care.  In

March 2003, the court entered a finding that no just reason existed for delaying enforcement or appeal of its order (155 Ill.

2d R. 304(a)).

		Miller appeals the trial court's granting of Rural

Electric's October 2002 motion to dismiss count IV, and we

affirm.

	I. BACKGROUND

		Around 10:20 p.m. on July 18, 1998, Miller was driving

her minivan east on Hays Road in Macoupin County.  (The township

maintained that portion of Hays Road by spreading oil and then

placing gravel on it.)  As Miller approached the unmarked and

unlighted intersection of Hays Road and Jones Road, she thought

that Hays Road either ended or veered sharply to the right.  As

she attempted to negotiate the right-hand turn onto Jones Road,

her minivan skidded through the intersection and struck Rural

Electric's utility pole, which was located approximately 10 feet

from the southeast corner of the intersection.  As a result of

the collision, Miller sustained serious injuries, including the

loss of one eye.  

		In July 1999, Miller filed a complaint against Rural

Electric and the other defendants.  Count IV of the complaint

alleged, in pertinent part, that Rural Electric acted negligently

by (1) placing the utility pole "in a location closely behind and

slightly to the right" of the intersection of Hays and Jones

Roads, and (2) failing to (a) warn motorists about the utility

pole, (b) place lighting or reflective tape on the utility pole,

and (c) provide a cushion barrier or a "breakaway" utility pole.

		In August 1999, Rural Electric filed a motion, pursuant

to section 2-615 of the Code (735 ILCS 5/2-615 (West 1998)), to dismiss count IV of Miller's complaint, alleging that the com

plaint failed to state a cause of action because it failed to

allege that Rural Electric owed Miller a duty.  Following a

September 1999 hearing on Rural Electric's motion, the trial

court dismissed count IV's allegations that Rural Electric acted

negligently by failing to (1) warn motorists about the utility

pole, (2) place lighting or reflective tape on the utility pole,

and (3) provide a cushion barrier or a "breakaway" utility pole. 

As to the remaining allegation set forth in count IV, the court

requested that Rural Electric resubmit its motion to dismiss

after the parties completed discovery. 

		In October 2002, Rural Electric filed a motion, pursu ant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2002)), to dismiss the remaining allegation set forth in count IV of

Miller's complaint--namely, that Rural Electric had negligently

placed the utility pole "in a location closely behind and

slightly to the right" of the intersection of Hays and Jones

Roads.  In the motion, Rural Electric argued that it owed no duty

to Miller because (1) "the utility pole was off the traveled

surface of the roadway"; and (2) Miller "was not in the ordinary

course of travel as she deviated from the road and struck the

utility pole."  Rural Electric also filed a memorandum of law in

support of its motion to dismiss.  Attached to the memorandum

were the following:  (1) the discovery depositions of Sharon Hays and Dara Drake, both of whom lived on Hays Road at the time of

the accident; and (2) the affidavit of Louis DeLaby, Rural

Electric's manager of operations and maintenance.  

		In January 2003, Miller filed a response to Rural

Electric's motion to dismiss.  Attached to the response were the

following:  (1) nine photographs of the accident site and the

nearby roadway, which were taken shortly after the accident

(Miller's exhibit Nos. 1 through 9); (2) DeLaby's discovery

deposition; and (3) Miller's discovery deposition.  

		Because the parties are familiar with the facts set

forth in the depositions and affidavit, we discuss them only to

the extent necessary to put Miller's argument in context.  Hays

testified that since 1977, she had lived on Hays Road about a

half-mile from the intersection of Hays and Jones Roads.  Hays

identified Miller's exhibit Nos. 1 through 9 as photographs

accurately depicting Hays Road and its intersection with Jones

Road at the time of the accident.  As a driver approaches the

intersection, there are a series of rises and dips, and the

crossroads are difficult to see "until you get up there."  If a

driver is not familiar with Hays Road, she would think that it is

a "regular road" east of the intersection.  However, east of the

intersection Hays Road is "mostly dirt," although it is main

tained by North Otter Township.  The intersection "pretty much

always" contains loose gravel on top of the oiled surface.  On

occasions when Hays drove 40 to 45 miles per hour as she turned

from Hays Road south onto Jones Road, her car "sort of" lost traction on the loose gravel.  However, her car did not slide or

swerve.  Hays was not personally aware of any prior accidents at

the intersection involving the utility pole.  She had heard of a

"couple" of accidents on Hays Road, including a fender bender, a

car hitting a roadway mile marker, and drunk drivers sliding into

ditches.  Hays had never contacted Rural Electric about its

placement of the utility pole. 

		Dara Drake testified that she had lived on Hays Road

near its intersection with Jones Road for five years.  Around

10:20 p.m. on July 18, 1998, Drake was in her house when she and

her husband heard a crash.  After dialing 9-1-1, she joined her

husband at the accident site and saw that the front driver's side

of Miller's minivan had struck the utility pole.  Drake stated

that Hays Road continues on east of the intersection, although it

becomes a dirt road.  A driver traveling east on Hays Road may go

through the intersection and then either continue straight on the

dirt road or turn left into the Drakes' driveway.  Drake knew of

other people who commonly used that section of Hays Road "as a

means of travel."  Drake was aware of other accidents in which

drivers drove into the Drakes' field on the northwest side of the

intersection (diagonally across the intersection from the utility

pole).  She did not know whether those drivers lost control in

the intersection or simply drove off the road into the field. 

Drake never contacted Rural Electric regarding any accidents, and

she was not aware of any accidents (other than Miller's) that had

occurred at the intersection involving the utility pole.  Drake previously had telephoned the township road commissioner and

requested that the township install stop signs at the intersec

tion because drivers go too fast as they approach it.  If drivers

traveled at a "reasonable speed," the loose gravel at the inter

section was not dangerous. 

		DeLaby averred that he had been employed by Rural

Electric since 1972 and was familiar with the location of the

utility pole near the intersection of Hays and Jones Roads. 

Prior to placing the utility pole at its current location, Rural

Electric was not "aware of any dangerous propensity of the

intersection," and did not know of any accidents in which vehi

cles left the roadway because of a failed right-hand turn onto

Jones Road while traveling east on Hays Road.  In addition, Rural

Electric was not aware of any accident (other than Miller's) in

which a vehicle left the roadway at the intersection and struck

the utility pole.  Rural Electric had never received any com

plaints from residents regarding the safety of the utility pole's

location.  

		DeLaby testified that in September 1947, Rural Electric

first installed utility poles along Jones Road.  In September

1975, Rural Electric completed an improvement project by install

ing utility poles along Hays Road.  As part of that project,

Rural Electric moved the utility pole in question from a location

along Jones Road to its current location near the southeast

corner of the intersection of Hays and Jones Roads.  No guide

lines or specifications existed regarding the distance utility poles should be placed from intersections.  However, when Rural

Electric placed the utility pole at its current location, Rural

Electric's "ruling span" guidelines suggested a distance of 326

feet between utility poles, allowing a divergence of 10%.  Thus,

utility poles could be placed between 294 feet and 358 feet apart

and still fall within the guidelines.  In 1978, Rural Electric

adopted a specification that suggested a 300-foot ruling span for

additional protection of the poles from ice storms.  The distance

between the utility pole in question and the next utility pole

along Hays Road was 224 feet.  DeLaby opined that it would cost

approximately $1,000 to move the utility pole in question farther

from the intersection.  

		DeLaby also testified that prior to the July 19, 1998,

accident, Rural Electric did not know of any accidents that (1)

involved the utility pole in question or (2) occurred at or near

the intersection.  He acknowledged that at the time of the

accident, Rural Electric was aware that (1) no streetlights

existed near the intersection of Hays and Jones Roads; (2) east

of the intersection, the surface of Hays Road changed; and (3) no

posted speed limit signs existed on Hays Road, which meant that

the speed limit was 55 miles per hour.  DeLaby also acknowledged

that Miller's exhibit Nos. 1 through 9 were photographs that

accurately depicted Hays Road and its intersection with Jones

Road as they existed in July 1998.        

		Miller testified that on the night of the accident, she

turned onto Hays Road about one mile before its intersection with Jones Road.  Although Miller had never driven on Hays Road before

that night, she had driven on country roads for many years.  Just

prior to the accident, Miller was traveling between 45 and 50

miles per hour.  She described the accident as follows:  

			"[Hays Road] looked like it went

straight ahead.  I was under the impression

that it went straight ahead, that's why I

continued to drive straight ahead, until

right when I came up on that, came up on that

little, that rise, *** that's right then is

when I realized it made a turn to the right.

			So of course the first, my first reac

tion was to turn to the right, and because of

the rocks on the road I just kept going

straight, and I hit the [utility] pole."  

Had it not been for the loose gravel in the intersection, Miller

"would have had control" of her minivan.                          

		Following a January 2003 hearing on Rural Electric's

motion to dismiss, the trial court took the matter under advise

ment and instructed the parties to submit additional written

briefs, which the parties later did.

		Later in January 2003, Rural Electric filed a supple

mental section 2-619 motion to dismiss the remaining allegation

set forth in count IV on the ground that Miller's claim was

barred by the statute of repose (735 ILCS 5/13-214(b) (West

2002)).  In February 2003, Miller filed a motion for leave to file an amended complaint.  Count IV of the amended complaint

alleged that Rural Electric acted negligently by keeping, main

taining, and continuing to use a utility pole that had been

placed in a dangerous location.  Later in February 2003, the

trial court granted Rural Electric's motion to dismiss the

remaining allegation set forth in count IV.              

		In March 2003, the trial court entered an order (1)

denying Miller's motion for leave to file an amended complaint,

upon determining that nothing in the amended complaint estab

lished that Rural Electric owed a duty to Miller, and (2) finding

that no just reason existed for delaying enforcement or appeal of

its September 1999 and February 2003 orders dismissing count IV

(155 Ill. 2d R. 304(a)).  Based on its ruling, the court did not

address Rural Electric's statute of repose argument.  This appeal

of the court's February 2003 order dismissing the remaining

allegation set forth in count IV followed. 

	II. ANALYSIS

	A. Section 2-619 Motions To Dismiss

		Section 2-619 motions to dismiss provide a means for

disposing of issues of law or easily proved issues of fact. 

People v. Philip Morris, Inc., 198 Ill. 2d 87, 94, 759 N.E.2d 906, 911 (2001).  In this case, the ground advanced for dismiss

ing the remaining allegation set forth in count IV of Miller's

complaint is that the claim asserted therein is barred because

Rural Electric owed no duty to Miller.  See Lang v. Silva, 306 Ill. App. 3d 960, 970, 715 N.E.2d 708, 715 (1999) (the lack of a duty is an appropriate basis for a section 2-619 motion to

dismiss); see also 735 ILCS 5/2-619(a)(9) (West 2002) (permitting

involuntary dismissal when "the claim asserted against defendant

is barred by other affirmative matter avoiding the legal effect

of or defeating the claim").  The trial court should grant the

motion and dismiss the complaint if, after construing the allega

tions in the light most favorable to the plaintiff, no set of

facts can be proved that would entitle the plaintiff to recover. 

We review de novo the trial court's granting of a defendant's section 2-619 motion.  Towne Realty, Inc. v. Shaffer, 331 Ill. App. 3d 531, 535, 773 N.E.2d 47, 51 (2002)).

	B. Miller's Claim That Rural Electric Owed a Duty to Her

		Miller argues that the trial court erred by granting

Rural Electric's October 2002 motion to dismiss the remaining

allegation of count IV because under the circumstances of this

case, Rural Electric owed her a duty to place the utility pole a

"reasonably safe" distance from the intersection of Hays and

Jones Roads.  We disagree.

		The existence of a duty is essential to a claim sound

ing in negligence (LaFever v. Kemlite Co., 185 Ill. 2d 380, 388, 706 N.E.2d 441, 446 (1998)), and whether a duty exists is a

question of law (Happel v. Wal-Mart Stores, Inc., 199 Ill. 2d 179, 186, 766 N.E.2d 1118, 1123 (2002)).  In determining whether

a duty exists, a court should consider the following factors: 

(1) the reasonable foreseeability of injury; (2) the reasonable

likelihood of injury; (3) the magnitude of the burden that guarding against injury places on the defendant; and (4) the

consequences of placing that burden on the defendant.  Happel, 199 Ill. 2d at 186-87, 766 N.E.2d at 1123-24.

		In Gouge v. Central Illinois Public Service Co., 144 Ill. 2d 535, 538-39, 582 N.E.2d 108, 110 (1991), the plaintiff

lost control of his car as he approached a sharp right-hand

curve, skidded 65 feet, left the paved roadway, crossed a gravel

shoulder, and struck a utility pole owned by the defendant

utility company.  The plaintiff sued the utility company for the

injuries he sustained when he struck the utility pole, which was

located 15 feet from the paved roadway.  The trial court dis

missed the plaintiff's complaint for failing to state a cause of

action, and the appellate court reversed, upon concluding that

the complaint stated a cause of action for "negligent installa

tion" of the utility pole.  Gouge, 144 Ill. 2d at 539, 582 N.E.2d at 110.  The supreme court reversed, upon concluding that it was

not reasonably foreseeable that the plaintiff would deviate from

the roadway and strike the utility pole.  Gouge, 144 Ill. 2d at 545, 582 N.E.2d at 113.  In so concluding, the supreme court

relied on section 368 of the Restatement (Second) of Torts, which

provides as follows:  

			"A possessor of land who creates or

permits to remain thereon an excavation or

other artificial condition so near an exist

ing highway that he realizes or should real

ize that it involves an unreasonable risk to others accidentally brought into contact with

such condition while traveling with reason

able care upon the highway, is subject to

liability for physical harm thereby caused to

persons who

			(a) are traveling on the highway, or 

			(b) foreseeably deviate from it in the ordinary course of travel."  (Emphasis added.)  Restatement (Second) of Torts §368,

at 268 (1965) (hereinafter Restatement). 

For a duty to arise under section 368, the person to whom the

duty is owed must foreseeably deviate from the roadway in the

ordinary course of travel, and the distinction "'is thus not one

between inadvertent and intentional deviations, but between those

which are normal incidents of travel and those which are not.'" 

Battisfore v. Moraites, 186 Ill. App. 3d 180, 189, 541 N.E.2d 1376, 1382 (1989), quoting Restatement §368, Comment g, at 270

(1965).  

		In addition, in Boylan v. Martindale, 103 Ill. App. 3d 335, 346, 431 N.E.2d 70-71 (1982), the Second District Appellate

Court stated as follows:

		"It is common knowledge that vehicles collide

in roadways and on occasion leave the roadway

and strike a utility pole or tree adjacent to

the roadway.  However, for a duty to third

persons to be imposed upon those who erect and maintain such utility poles, there must

be a reasonable anticipation of such devia

tion from the roadway as a normal incident of

travel."

	1. Reasonable Foreseeability

		Miller first contends that it was "reasonably foresee

able that a motorist traveling down Hay[]s [R]oad might deviate

from the roadway in the ordinary course of travel and strike the

utility pole."  We disagree.

		In support of a section 2-619 motion to dismiss, a

defendant may file exhibits, including affidavits.  A court will

accept as true those evidentiary facts in a defendant's support

ing affidavit if the plaintiff fails to refute those facts in a

counteraffidavit, notwithstanding contrary, unsupported allega

tions in the plaintiff's complaint.  Pryweller v. Cohen, 282 Ill. App. 3d 899, 907, 668 N.E.2d 1144, 1149 (1996).  Here, count IV

of Miller's complaint alleged that Rural Electric should have

known that one or more motor vehicle accidents had occurred at

the intersection of Hays and Jones Roads.  However, DeLaby's

affidavit refuted that unsupported allegation.  In particular,

DeLaby averred that (1) prior to Rural Electric's placing the

utility pole in September 1975, Rural Electric did not know of

any accidents in which vehicles left the roadway because of a

failed right-hand turn onto Jones Road while traveling east on

Hays Road; and (2) Rural Electric was not aware of any accident

(other than Miller's) in which a vehicle left the roadway at the intersection and struck the utility pole.  Thus, no evidence

showed that when Rural Electric placed the utility pole in 1975,

it was aware of any facts that would indicate a reasonable

foreseeability that motorists would deviate from the roadway in

the ordinary course of travel and strike the utility pole.

		Miller nonetheless asserts that the depositions of Hays

and Drake show that Rural Electric should have known that the

intersection was dangerous.  Contrary to that assertion, neither

Hays nor Drake testified that she knew of any accidents (other

than Miller's) involving the utility pole in question.  Although

Hays and Drake knew of (or had heard about) other accidents on

Hays and Jones Roads near the intersection, neither one testified

that those prior accidents involved situations similar to

Miller's.  For instance, Drake knew of accidents in which drivers

had ended up in the Drakes' field on the northwest side of the

intersection; however, she did not know whether those drivers

lost control in the intersection or simply drove off the road

into the field.  Further, the accidents that Hays had heard about

involved a fender bender, a car hitting a roadway mile marker,

and drunk drivers sliding into ditches.  See Boylan, 103 Ill. App. 3d at 346, 431 N.E.2d at 70 (in which the appellate court

concluded, in part, that the plaintiff's complaint had failed to

allege that (1) the particular utility pole previously had been

struck by vehicles, or (2) the condition that caused vehicles to

strike other nearby utility poles correlated with any similar

condition at the location of the plaintiff's accident).    

		In addition, contrary to Miller's assertion, Drake did

not request that the township install stop signs at the intersec

tion "because of the dangerous nature of the intersection." 

Instead, Drake testified that (1) she had requested that stop

signs be installed because drivers go too fast as they approach

the intersection; and (2) if drivers traveled at a "reasonable

speed," the loose gravel at the intersection was not dangerous. 

In short, the depositions of Hays and Drake simply do not support

Miller's claim that Rural Electric should have (1) known that the

intersection was dangerous or (2) foreseen her accident.

		Further, we reject Miller's suggestion that (1) her

exhibit Nos. 1 through 9 (photographs depicting the roadway near

and at the accident site at the time of the July 1998 accident)

and (2) DeLaby's testimony regarding Rural Electric's knowledge

of the road and lighting conditions in July 1998 indicate that

Rural Electric had notice that the intersection constituted a

dangerous condition.  As Rural Electric points out, the photo

graphs and testimony regarding the accident site conditions in

July 1998 are irrelevant to determining whether Rural Electric

knew that the intersection was dangerous in 1975, when it placed

the utility pole in its current location.  Notably, nothing in

the record shows that the accident site conditions as they

existed in July 1998 were the same as they were in 1975.  To the

extent that Miller attempts to claim that the photographs and

related testimony show a recently developed condition that caused

her accident, we note that her complaint did not allege that Rural Electric had a continuing duty to inspect the utility pole

in relation to potentially changing road conditions.         

		Moreover, the undisputed fact that Miller's accident

was the only reported accident involving the utility pole since

its September 1975 placement weighs against Miller's claim that

it was foreseeable that as a normal incident of travel, a motor

ist would deviate from the roadway and strike the utility pole. 

In that regard, we agree with the Maryland Court of Appeals in

Coates v. Southern Maryland Electric Cooperative, Inc., 354 Md. 499, 523, 731 A.2d 931, 944 (1999), which wrote as follows:

			"*** [A] collision with any particular pole

is not legally foreseeable merely by virtue

of its proximity to the traveled portion of a

road.  Such a collision may be foreseeable, however, based on the condition and topogra

phy of the road, the proximity of the pole to

the traveled portion of the road, other site

conditions, and experience.  Absent signifi

cant changes to the road or the site, experi ence may be the best guide, for it tends to amalgamate many of the other factors.  If a pole has existed at a relatively unchanged site for any significant length of time with out serious problem, there may be little reason to anticipate a future collision, for it suggests that motorists are able to navi gate that part of the road without incident."  (Emphasis omitted, and emphases added.)

Prior to Miller's accident, the utility pole stood at its loca

tion approximately 10 feet from the southeast corner of the

intersection for almost 23 years without serious incident. 

Indeed, during that time, Rural Electric had not been notified of

any accident involving the utility pole.  Under such circum stances, Rural Electric had little reason to anticipate future

accidents.  

		Under the circumstances of this case, we conclude that

Miller's injury was not reasonably foreseeable--that is, it was

not reasonably foreseeable to Rural Electric that Miller would

deviate from the roadway as she did in the ordinary course of

travel and strike Rural Electric's utility pole. 

		In so concluding, we note that Miller's contention that

her accident was reasonably foreseeable constitutes an attempt to

view the accident with the benefit of hindsight.  As our supreme

court stated in Cunis v. Brennan, 56 Ill. 2d 372, 376, 308 N.E.2d 617, 619 (1974),: 

		"In judging whether harm was legally foresee

able[,] we consider what was apparent to the

defendant at the time of his now complained[-

]of conduct, not what may appear through

exercise of hindsight.  We will not look

back, as it was felicitously put by Justice

Cardozo, 'at the mishap with the wisdom born of the event ***.'  [Greene v. Sibley, Lindsay & Curr Co., 257 N.Y. 190, 192, 177 N.E. 416, 417 (1931)]." 

		Miller cites the following factors as supporting her

contention that the accident was reasonably foreseeable:  (1) her

unfamiliarity with Hays Road and its intersection with Jones

Road; (2) the lack of lighting at the intersection; (3) the loose

gravel at the intersection; (4) the 55-mile-per-hour speed limit;

and (5) the fact that she panicked when she thought that she

could only turn right onto Jones Road.  We agree with Rural

Electric that although these factors might explain how the

accident occurred, they do not establish that the accident was

reasonably foreseeable.  Instead, Miller's argument constitutes

an attempt to look back "'at the mishap with the wisdom born of

the event.'"  See Cunis, 56 Ill. 2d at 376, 308 N.E.2d at 619, quoting Greene, 257 N.Y. at 192, 177 N.E. at 417.  

	2. Other Factors in the Duty Analysis 

		Having concluded that Miller's injury was not

reasonably foreseeable, we now turn to the remaining three

factors in the duty analysis:  (1) the likelihood of Miller's

injury; (2) the magnitude of the burden Rural Electric would bear

were we to place the duty on it; and (3) the consequences of

placing the burden on Rural Electric. 

		Given that no vehicular accidents were reported

involving the utility pole between its September 1975 placement

and Miller's July 1998 accident, we conclude that the likelihood of injury was slight.  

		We further conclude that although the cost of

relocating the utility pole 10 to 35 feet fuarther from the

intersection (a distance Miller suggests would make it safe for

motorists) may be relatively small, the economic costs of

requiring Rural Electric to independently survey all of its

utility poles and determine whether any of them have been placed

in dangerous locations based on particular road conditions,

lighting conditions, speed limits, signage, and other relevant

conditions would be staggering.  As Rural Electric correctly

points out, it is not in control of (1) how a roadway is

constructed or surfaced, (2) whether or how a township decides to

post signs on a roadway, or (3) the speed limit.  Yet, any of

those factors could change after Rural Electric had installed a

utility pole and without notice to Rural Electric.  Thus, were we

to impose a duty on Rural Electric, it would be required to (1)

continuously monitor changes in road and other relevant

conditions to determine whether a particular utility pole had

been placed in a dangerous location, and (2) perhaps move

hundreds of utility poles, at enormous cost and inconvenience to

both Rural Electric and its customers, and, even then, without an

absolute assurance of safety.   

		In light of the foregoing considerations, we conclude

that Rural Electric did not owe a duty to Miller.  We thus hold

that the trial court did not err by granting Rural Electric's

October 2002 motion to dismiss the remaining allegation set forth in count IV.

		In so holding, we reject Miller's suggestion that this

court has created "something very close to" immunity for utility

companies "with respect to the placement of their utility poles." 

In Gouge, 144 Ill. 2d at 546-47, 582 N.E.2d at 114, the supreme court addressed the same argument and stated, in pertinent part,

as follows:

			"We also disagree with plaintiffs'

contention that utility companies are being

granted 'virtual immunity in the installation

of its electrical energized power poles and

transformers along the roadways of the State

of Illinois.'  Utility companies do have a

duty to exercise reasonable care in the

installation and maintenance of their utility

poles.  CIPS [(Central Illinois Public

Service Company)] owed a duty to properly guy

its utility poles so that, for instance, they

would not fall onto a roadway, smashing an

automobile and injuring the driver.  This

duty is not being diminished.  Nonetheless,

CIPS does not owe a duty to motorists who

unforeseeably deviate from the traveled

portion of the roadway and strike a utility

pole located 15 feet from the roadway.  As

stated in Dunn v. Baltimore & Ohio R.R. Co.[, 127 Ill. 2d 350, 366, 537 N.E.2d 738, 745

(1989)]:

			'The law imposes a duty on all

persons to exercise ordinary care. 

We believe that the imposition of a

general duty to anticipate and

guard against the negligence of

others would place an intolerable

burden on society.'"

Similarly, in this case, Rural Electric has a duty to exercise

reasonable care in installing and maintaining its utility poles. 

However, Rural Electric does not owe a duty to motorists who

unforeseeably deviate from the traveled portion of the roadway

and strike a utility pole that is set back 10 feet from the

roadway. 

	C. Miller's Claim That a Duty Arises Because 

Rural Electric Failed To Follow Its Own Guideline

		Although not set forth as a separate argument, Miller

contends that a duty arises because Rural Electric violated its

own ruling span guideline when it placed the utility pole in

1975.  We disagree.

		To impose liability for a defendant's violation of a

statute or rule designed to protect human life or property, a

plaintiff must show the following:  (1) the violation proximately

caused the injury; (2) the plaintiff belonged to the class of

persons whom the rule was intended to protect from injury; and

(3) the kind of injury suffered by the plaintiff was the kind of injury the rule sought to prevent.  Gouge, 144 Ill. 2d at 543, 582 N.E.2d at 112.

		In this case, DeLaby testified that under Rural

Electric's 1975 ruling span guidelines, utility poles could be

placed between 294 feet and 358 feet apart.  The distance between

the utility pole in question and the next utility pole along Hays

Road was 224 feet.  Miller asserts that if Rural Electric had

followed its own guidelines, it would have placed the utility

pole in question 111 feet fuarther away from the intersection. 

Even accepting Miller's contention that Rural Electric violated

its own guidelines in placing the utility pole, we conclude that

Miller has not shown that the ruling span guidelines were

intended to protect against the type of injury that occurred in

this case.  Indeed, nothing in the record indicates that the

ruling span guidelines were designed to regulate Rural Electric

in its placement of utility poles in light of safety concerns for

passing motorists.  Instead, DeLaby's testimony suggested that

the purpose of those guidelines was to assure the stability of

the utility poles and prevent them from falling over due to the

strain of ice accumulation.  Notably, DeLaby testified that no

guidelines or specifications existed regarding the distance

utility poles should be placed from intersections.  Accordingly,

we reject Miller's contention that Rural Electric owed her a duty

to install the utility pole in accordance with its ruling span

guidelines.  

	III. CONCLUSION

		For the reasons stated, we affirm the trial court's

judgment.

		Affirmed.

		APPLETON, J., concurs.

		COOK, J., specially concurs.

		JUSTICE COOK, specially concurring:

		A section 2-619 motion is generally not an appropriate

vehicle for determining whether a plaintiff has stated a good

cause of action in negligence.  A section 2-619 motion admits the

legal sufficiency of plaintiff's complaint and goes on to suggest

that the claim asserted is barred by other affirmative matter

such as release, satisfaction of judgment, discharge in

bankruptcy, or the running of the statute of limitations.  Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115, 619 N.E.2d 732, 735 (1993).  Defendant may not prevail on a

section 2-619 motion without establishing some affirmative matter

that defeats the claim; simply negating the allegations of the

plaintiff's complaint is not sufficient.  Kedzie, 156 Ill. 2d at 115, 619 N.E.2d at 735.  Nevertheless, the trial court in this

case did not rule on the motion until discovery had been

completed.  The motion here is properly viewed as a motion for

summary judgment.  735 ILCS 5/2-1005 (West 2002).

		As the majority points out, the existence of a duty is

a question of law for the court.  Issues of breach of duty,

however, are questions of fact for the jury.  It is possible to

view questions of duty broadly (everyone owes everyone else the

duty to act reasonably under the circumstances) and to allow most

cases to be decided by the jury.  Viewed broadly, there is a duty

in this case.  "Utility companies do have a duty to exercise

reasonable care in the installation and maintenance of their

utility poles."  Gouge, 144 Ill. 2d at 546, 582 N.E.2d at 114.  Taking such a broad approach, however, amounts to an abandonment

of the court's role in determining the important policy questions

justifying the imposition of a duty.  See Benner v. Bell, 236 Ill. App. 3d 761, 765, 602 N.E.2d 896, 899 (1992).  

		Parties do have some obligation to anticipate the

negligence of others.  In a case alleging the negligent

installation and maintenance of a guardrail, for example, it was

held that the fact that the Ccounty erected the guardrail, at the

location in question, conceded the foreseeability that motorists

would deviate from the ordinary course of travel in the direction

of the guardrail.  Michalak v. LaSalle County, 121 Ill. App. 3d 574, 576, 459 N.E.2d 1131, 1132 (1984).  The mere fact that

vehicle collision with utility poles is foreseeable, however,

does not justify the imposition of a broad duty on the utility to

prevent such collisions.  The more important questions in this

case are the magnitude of the burden placed on defendant and the

consequences of imposing that burden, questions within the

exclusive discretion of the courts.  The transmission of

electricity by use of utility poles is a matter of considerable

benefit to the public.  Merlo v. Public Service Co. of Northern Illinois, 381 Ill. 300, 312-13, 45 N.E.2d 665, 673 (1942); Tinder v. Illinois Power Co., 325 Ill. App. 3d 606, 610, 758 N.E.2d 483, 487 (2001).  For a duty to exist under the facts of this case,

plaintiff must identify some particular defect in the

construction, placement, or maintenance of the pole in question. 

It is not enough to show that it is likely that vehicles will randomly deviate from the highway and strike utility poles; some

specific problem must be shown with this particular pole.    

		Finally, I disagree with the majority's assertions

(slip op. at 14, -15) that any negligence of Rural Electric must be

based on its conduct in 1975, when it placed the utility pole in

its current location.  Rural Electric had a duty to reasonably

maintain the pole.  If Rural Electric later became aware of facts

indicating improper placement of the pole, it may have had a duty

to move the pole.  The majority seems to abandon that argument

elsewhere.  Slip op. at 16 (fact that this accident was the only

accident since 1975 "weighs against Miller's claim that it was

foreseeable"); Coates, 354 Md. at 523, 731 A.2d at 944 ("experience may be the best guide").