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 t he judgment of the court, with opinion. Justices McMorrow, Fitzgeral d, Kilbride, Garman, and Karmeier concurred in the judgment and opinion. Chief Justice Thomas took no part in the decision.

OPINION- 2 - 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 fi rm of Bond, Mork & Dickson, P.C. (Dickson defendants). Plaint iffs claimed that defendants were negligent by failing to ti mely 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 proximat e 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 c onducted in the context of the following legal principles. In an action for legal malpractice the plaintiff must plead and prov e that: the defendant attorney owed the plaintiff a duty of due ca re arising from the attorneyclient relationship; that the defendant breached t hat 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)).

A Even if negligence on the part of the attorney is established, no action will lie against the attorney unless that negligence proximately caused dam age 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. Accord ingly, the burden of pleading and proving actual damages r equires establishing that A but for @- 3 - 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 hav e 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) ( A To 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 A case 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 underlyi ng case adduced the following pertinent facts. Galena Road has two lanes and runs generally east-west. In 1978, the County a ssumed authority over Galena Road, commissioned a preconstructi on 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 confo rmed with guidelines on adequate sight distances mandated by t he 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 Trans portation, Illinois Manual on Uniform Traffic Control Device s (2003)). Pursuant to these guidelines, passing vehicles is permissible only where sight distances are adequate. If an engi neering study concludes that sight distances are inadequate, a no-passing zone must be- 4 - installed. In 1984, the Illinois Manual lowered the minimal sight distance. This reduction rendered inadequate the sight distance on that portion of Ga lena 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 passi ng another eastbound vehicle, he collided head-on with Wittenmye r in the westbound lane. Gesell = s and Wittenmyer = s automobiles collided at the apex of a rise in Galena Road. Gese ll 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 vehicl es was permissible. Also, according to Gesell, he was not aw are that the rise in Galena Road would have obstructed his view of oncoming traffic. As a result of the collision, Wi ttenmyer 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 Gese ll brought a third-party contribution action against t he County. Between November 1995 and June 1997, GIE, the County = s insurer, retained the Dickson defendants and the Judge def endants to represent the County. Through its attorneys, the County moved for summary judgment, contending that section 3

B 104 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/3

B 104 (West 1994)) immunized the County from liab ility. 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 t he fault to Gesell and 80% of the fault to the County. T he jury also awarded $500,000 in- 5 - 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 Count y filed a posttrial motion. The County also moved to file a supplemental posttrial motion, alleging that its attorneys had onl y very recently received the report of proceedings. On Decem ber 3, 1998, the trial court denied both of the County = s motions. On December 31, 1998, the C ounty filed a notice of appeal from the judgment enter ed on the jury verdict and from the trial
court = s denial of its posttrial moti ons. On the same day, the County also presented to the tr ial court an emergency motion for leave to file a supplem ental posttrial motion. The emergency motion was prem ised 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: A Final 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, alternat ively, that the motion was denied A as a matter of substance. @ On March 15, 1999, the County filed a motion with the appellate court, Second District, seeking leave to amend its notic e 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 t he appeal, finding that the County = s December 31, 1998, notic e of appeal preserved the grounds raised in the County = s first posttrial motion. On July 16, 1999, Gesell fil ed a motion in the appellate court, contending that the County = s December 31, 1998, notice- 6 - of appeal was prematurely fil ed and the County never filed a new notice of appeal. On Dece mber 14, 1999, the appellate court, in an unpublished order, revers ed its prior ruling that the December 31, 1998, notice of appeal was timely. Wittenmyer v. Gesell, No. 2

B 99

B 0041 (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 posttria l motion. The appellate court observed that, after the tr ial court denied the County = s amended supplemental posttrial mo tion on February 16, 1998, the County failed to file a time ly notice of appeal. Therefore, the appellate court held that the County = s original notice of appeal was premature and i neffectual. 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 requi site elements. Plaintiffs pled the element of duty. Plaintiffs a lleged that they had an attorneyclient relationship with def endants regarding the underlying case, whereby defendants A had a duty to represent Plaintiffs with the reasonable care, sk ill and diligence possessed by attorneys @ who, in the case of defendants, held themselves

A out to the public as having specialized experience in the handling of trial, post-trial ma tters and appeal of civil cases @ such as the underlying case. Plaintiffs also alleged that defendants A agreed to continue represent ing the interests of Plaintiffs including, but not limited to, taking the steps necessary to overturn the adverse judgment in *** Wittenmyer- 7 - *** including, but not limited to, pursuing an appeal on the merits. @ Plaintiffs pled breach of the dut y. Plaintiffs alleged that, for the reasons expressed by the appe llate court in its December 14, 1999, Rule 23 order, def endants 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

A a breach of [defendants = ] duty to exercise reasonable care, skill and diligence on behalf of Plaintiffs. @ Plaintiffs pled the element s of proximate cause and damages. Plaintiffs alleged: A But 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 a ccrued 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 A were proximately caused by the breach of duties by [defendants], as set forth above. @ Discovery ensued. In an in terrogatory, 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 hav e 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. Plaint iffs 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. 2

B 99

B 0041 (December 14, 1999) (unpublished order under Supreme Court Rule 23). Defendants responded and filed a joint cross-motion for summary judgment, contending that the iss ue of breach of duty was one- 8 - 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. 2

B 99

B 0041 (December 14, 1999) (unpublished order under S upreme 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 iss ues 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, regardl ess of whether they had perfected the appeal in the underlying case, the appeal would not have been successful. De fendants 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 under lying case would have been successful. Opposing the mo tion for summary judgment, plaintiffs contended that t he tort immunity arguments defendants asserted on behalf of t he County in the underlying case were correct and, had def endants 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- 9 - 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 3

B 104 of the Tort Immunity Act (745 ILCS 10/3

B 104 (West 1994)). The circuit court interpreted section 3

B 104 as immunizing only the failure to initially provide traffic cont rol devices, and not the incorrect placement of those devices. T he court reasoned that if the county had failed to stripe Galena Road at all, it would have been immunized under section 3

B 104. However, according to the circuit court, the County init ially acted by installing the passing-permitted zone in 1978. Further, when the County restriped the road in 1993, the C ounty was obliged to do so in compliance with the Illinois Manual but failed to do so. Therefore, according to the circ uit court, the trial court in the underlying case was corre ct to deny the County = s motion for summary judgment based on section 3

B 104 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 proxim ate cause issue. The Judge defendants and the Dickson defendants not only defended the summary judgment on the issue of proximate cause, but also raised alter native 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 pr oximate cause issue was an issue of law for a court to dec ide and not a question of fact for a jury. 356 Ill. App. 3d at 270- 72. The court next held that section 3

B 104 of the Tort Immunity Act did not immunize the County in the underlying case. The court reasoned that the- 10 - 1993 restriping of Galena Road di d not constitute an initial failure to place a traffic c ontrol device, which section 3

B 104 immunizes, but rather an impr oper placement of a traffic control device, which section 3

B 104 does not immunize. Consequently, the appellate court agreed with the circuit court that, in the underlying case, the tr ial court correctly rejected the County = s assertion of section 3

B 104 immunity, and the appellate court would have affi rmed the judgment. Therefore, in the legal malpractice acti on, 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 dissent ed solely on the issue of section 3

B 104 immunity. 356 Ill. App. 3d at 277 (Cook, P.J., dissenting). The dissenting just ice disagreed with the majority = s characterization of the County = s action as the improper placement of a passing zone. Ra ther, the dissenting justice viewed the County = s action as failing to initially provide a nopassing zone. Presiding Justice Cook reasoned:

A It is incorrect to say that a broken yellow line is a passing zone. Rather, the abs ence of a solid yellow line is a passing zone. Even a r oadway without a centerline is a passing zone. *** The abs ence of the solid yellow line does not interfere with t he 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 3

B 104. 356 Ill. Ap p. 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 Associat ion of County Engineers, Intergovernmental Risk M anagement Agency, Property Casualty Insurers Association of America, and Cook County. We also granted leave to the I llinois Trial Lawyers Association- 11 - to file an amicus curiae brief in support of defendants. See 155 Ill. 2d R. 345. Additional per tinent 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 3

B 104 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 ov erturns the summary judgment in their favor, defendants request, as cross-relief, that we reverse the partial summary judgment in fa vor of plaintiffs on the issues of duty and breach of duty. Ho wever, 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 revi ew 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: Q uestion of Law or Fact? Prior to granting summary j udgment 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 fo r a jury to determine based on its consideration of a ll 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: A The issue of proximate causation in a legal malpractice setting is generally considered a factual i ssue to be decided by the trier- 12 - 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, plainti ffs 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 ar gue 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 t heir 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) (c ollecting cases). This principle does not usurp the fact -finding role of a jury, but rather reflects the constitutiona lly 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. A The 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 A judicial 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 pr evail, they must prove that, but for defendants = failure, the appellate court in the underlying case would have held that the Tort Immunity Act immunized- 13 - the County from liabilit y. In other words: A If 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 proximat e 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 w ould 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 A whether 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 applicati on of the Tort Immunity Act. @ 356 Ill. App. 3d at 272. Although this case present s an issue of statutory interpretation, which is clearly an issue of law for the court, we do not see how the issue of pr oximate 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 A must *** be made by the trial judge as an issue of law, based on review of the transcrip t 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. Sm ith, Legal Malpractice ' 30.52, at 1257 (2005). Indeed, the vast majority of c ourts that have addressed this issue have concluded that the iss ue of proximate cause in an appellate legal malpractice ac tion 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 t he 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.- 14 - Skokos , 335 Ark. 41, 51, 977 S.W.2d 217, 221-22 (1998) (agreeing with A majority 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). A The rationale for these decisions is clear. The overall inquiry is whether the client would have been successful if the attorney had timely filed t he 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:

A The question of whether an appeal would have been successful depends on an analysis of the law and the procedural rules. [T he malpractice plaintiff = s] position that the jury should make this determination as a question of fact would requi re 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 prov ince 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 *** out come 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.

A To rule otherwise

B and hold that a jury should decide how an appellate court would have ruled

B would misconstrue the very nature of appellate review. Appella te 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 malpra ctice action erred in deciding- 15 - whether the appeal in the under lying case would have been successful; the court held that t he issue of proximate cause in an appellate legal malpractice acti on is a question of fact. As a learned treatise described Andrews : A The court did not discuss or even reference the virtua lly uniform case law to the contrary. @ 3 R. Mallen & J. Smith, Legal Malpractice ' 30.52, at 1259 (2005). In the present case, the appella te court expressly limited its holding to the facts presented in this case, i.e. , an appellate legal malpractice action wher e the success of the underlying case rests upon a question of la w. 356 Ill. App. 3d at 272. However, we agree with the circui t 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 3

B 104 Tort Immunity The circuit court in the legal appellate malpractice action ruled that section 3

B 104 of the Tort Immunity Act (745 ILCS 10/3

B 104 (West 1994)) did not imm unize the County in the underlying case. According to the circuit court, had defendants perfected an appeal to the appella te court in the underlying case, the appellate court w ould not have reversed the judgment against the County based on governmental tort immunity. Therefore, because t he legal appellate malpractice action lacked the element of pr oximate cause, defendants were entitled to a judgment as a matte r 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 A the pleadings, depositions, and admissi ons 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 5/2

B 1005(c) (West 2004). If the plaintiff fails to est ablish 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.- 16 - 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. Theref ore, a governmental unit is liable in tort on the same basis as a private tortfeasor unless a valid statute dealing with tort i mmunity 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 A to exercise ordinary care to main tain its property in a reasonably safe condition. @ 745 ILCS 10/3

B 102(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:

A At common law, a municipa lity had a duty to maintain its property in a safe c ondition, but this duty did not extend to creating or erec ting 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) ( A This 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 11

B 304 of the Illinois Vehicle Code (625 ILCS 5/11

B 304 (West 1994)), by mandating co mpliance with the Illinois Manual, establishes a defendant = s duty of reasonable care. Snyder v. Curran Township , 167 Ill. 2d 466, 472 (1995).- 17 - 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
3

B 104 of the Tort Immunity Act provided it absolute immunity from liability for a breach of this duty. Section 3

B 104 provides as follows:

A Neither 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 si gns, speed restriction signs, distinctive roadway marki ngs or any other traffic regulating or warning sign, device or marking, signs, overhead lights, traffic separat ing or restraining devices or barriers. @ (Emphasis added.) 745 ILCS 10/3

B 104 (West 1994). Before this court, plaintiffs do not deny the existence of the County = s above-referenced duty but claim immunity under section 3

B 104. Plaintiffs acknowl edge 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 impr oper placement by its 1993 restriping of Galena Road wit h a broken yellow line that permitted passing. The circuit and appellate courts agreed with defendants. We do likewise.
Section 11

B 304 of the Illinois Vehicle Code provides that, when placing traffic control devices, local authorities A shall, @ i.e. , must, follow the Illinoi s Manual. See 625 ILCS 5/11

B 304 (West 1994). The Illinois Manual st ates that a broken yellow line indicates a two-direction passing zone. On those roads, passing is permitted for traffic trav eling 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 trav eling adjacent to the broken line. Reviewing the Illinois Manual and the Illinois Rules of the- 18 - 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-directi on 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.

1 We acknowledge that the Illinois Rules of the Road A is 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. Applying these rules to the underly ing 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 C ounty initially installed the correct traffic control marking. Rat her, 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. T he plain language of section 3

B 104 immunizes only the failure to in itially provide traffic control devices. A Where the language of a statut ory provision is clear, a court must give it effect. @ West , 147 Ill. 2d at 6. In 1978, the County developed an improvem ent plan for Galena Road, resurfaced the road, and then

B initially

B improved 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 10/3

B 102(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 requi red the County to conform the then-existing traffic control mark ing to the Illinois Manual by- 19 - replacing the two-directi on 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 ju stice, who opined that the County failed to initially provide a no-passing zone. 356 Ill. App. 3d at 278-79 (Cook, P.J., dissenting). A The 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 dissenti ng justice curiously opined: A The absence of the solid yellow li ne 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 3

B 104 of the Tort Immuni ty Act immunized the County. In West , the plaintiff collided with another vehicle in the process of making a left turn. T he 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 3

B 104 = 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 inte rsection where the accident occurred. Thus, the plaintiff argued that the city = s alleged negligence constituted a non-i mmunized improper placement. West , 147 Ill. 2d at 10. This court rejected this argument:

A We find that the exc eption to section 3

B 104 urged by plaintiff and accepted by the appellate court is unwarranted and would effectively swallow the section = s immunity entirely. The creat ive plaintiff, seeking to- 20 - premise an action on the failure to provide a particular traffic device, could always circumvent section 3

B 104 by finding and pointing out some other traffic device that

was provided. We do not belie ve that the legislature intended such a narrow construction of section 3

B 104 ***. @ (Emphases in original.) West , 147 Ill. 2d at 10.

This court in West also explained how section 3

B 104 furthers the policy behind the Tort Immunity Act, which is to protect local governmental units from liability arising from A the operation of government. @ 745 ILCS 10/1

B 101.1 (West 1994). This court reasoned:

A The > 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 dec ision whether to install a traffic signal requires the m unicipal traffic planner to balance a host of competi ng interests, among them, safety, convenience and cost. *** [T]his is not the sort of decision that should be sec ond-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 woul d 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 effici ency, would be the natural result. The legislature rec ognized this by enacting section 3

B 104 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 3

B 104 by pointing to some other traffic- 21 - control device. Rather, the County = s mistake in the present case involves the erroneous plac ement of one traffic signal, the centerline of Galena Road. Sec ond, in the present case, the County = s failure to correct the err oneous traffic control marking

was not a result of the County = s balancing A a host of competing interests, among them, sa fety, 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 caus e confusion for the road user shall be removed or obliterat ed 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 3

B 104. A Because of the above distinctions, to hold the County li able 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
3

B 109 immunizes the failure to init ially provide traffic control devices, but not the failure to ma intain existing traffic control devices). The record in the underlying case demonstrates that, in 1993, the County negligently replaced the erroneous twodirection passing zone on Galena Road. Because section
3

B 104 of the Tort Immunity Act immunizes only the failure to initially provide traffic contro l markings, the County was not immune from this improper placem ent. Thus, the circuit court in this appellate legal malpractice action correctly concluded: the trial court in the underlying ca se correctly denied the County = s motion for summary judgmen t; had defendants perfected the appeal in the underlying case, t he appellate court would not have reversed the judgm ent based on section 3

B 104; and, therefore, defendants = negligence in failing to perfect the appeal was not the proximat e cause of plaintiff = s injury. Consequently, the element of pr oximate 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.- 22 - III. CONCLUSION For the foregoing reasons, t he judgment of the appellate court is affirmed.

Affirmed

.

CHIEF JUSTICE THOMAS took no part in the consideration or decision of this case.