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
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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 attorneyclient 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 attorneyclient 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 nopassing 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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Road1

, 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. 

 

 1We 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. 

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 
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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 twodirection 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.