Chandler v. Illinois Cent. R. Co.

• Decision Date: 30 August 2002
• Docket Number: No. 5-01-0348.,5-01-0348.
• Citation: 267 Ill.Dec. 178,776 N.E.2d 315,333 Ill. App.3d 463
• Parties: Paulette CHANDLER, Administrator of the Estate of Douglas Chandler, Deceased, Plaintiff-Appellant, v. ILLINOIS CENTRAL RAILROAD COMPANY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

776 N.E.2d 315

333 Ill. App.3d 463

267 Ill.Dec. 178

Paulette CHANDLER, Administrator of the Estate of Douglas Chandler, Deceased, Plaintiff-Appellant, v. ILLINOIS CENTRAL RAILROAD COMPANY, Defendant-Appellee.

No. 5-01-0348.

Appellate Court of Illinois, Fifth District.

August 30, 2002.

Bruce N. Cook, Cook, Ysursa, Bartholomew, Brauer & Shevlin, Ltd., Belleville, for Appellant.

Kurt E. Reitz, Heath H. Hooks, Thompson Coburn LLP, Belleville, for Appellee.

Justice GOLDENHERSH delivered the opinion of the court:

The instant case originated after a car driven by Douglas Chandler (decedent) and a train owned and operated by Illinois Central Railroad Company (defendant) collided with each other. The crossing at which this accident occurred was once protected by gates, but in 1962, defendant petitioned the Illinois Commerce Commission (Commission) to remove the gates. The Commission granted defendant's petition, and the gates were removed. On October 6, 1997, Paulette Chandler (plaintiff), the administrator of decedent's estate, filed an action against defendant. Plaintiff alleged that defendant's negligence caused decedent's death. The third amended complaint, which is the subject of this appeal, was dismissed by the trial court. The trial court ruled in favor of defendant's motions to dismiss, which were brought pursuant to both section 2-615 and section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 (West 2000)). On appeal, plaintiff contends that (1) whether or not a duty exists is a question of law based upon the facts in the complaint, (2) the immunity conferred upon a railroad against its negligence in the case of the installation of flashing signals or crossing gates does not include the instant situation in which defendant petitioned the Commission to remove the crossing gates, (3) section 1535.335(a) of Title 92 of the Illinois Administrative Code (Administrative Code) (92 Ill. Adm.Code § 1535.335(a) (1994)) establishes a standard of care that flashing signals generally be placed within 15 feet of the near rail, and (4) subparagraph 5(i) of the amended complaint was not time-barred, because it relates back to the original complaint. We reverse and remand.

FACTS

On January 16, 1997, decedent collided with a train operated by defendant at the Center Street grade crossing in Tilden, Illinois. The crossing was secured by flashing signals only. The crossing was previously secured by gates, but on March 10,1962, defendant petitioned the Commission to remove the gates. The Commission granted defendant's petition in July 1962, and the gates were removed.

On October 6, 1997, plaintiff filed her original complaint, which she later voluntarily dismissed. On January 11, 2000, plaintiff refiled her complaint in the circuit court of St. Clair County; however, on May 22, 2000, the trial court transferred the cause to Randolph County on the basis of forum non conveniens. On November 27, 2000, the trial court granted plaintiff leave to file a first amended complaint. In response to the amended complaint, defendant filed a motion to dismiss or strike. On February 23, 2001, the trial court entered an order granting defendant's motion to dismiss. The order also allowed plaintiff 30 days in which to file an amended complaint.

On March 2, 2001, plaintiff filed an amended complaint, which was styled "[t]hird [a]mended [c]omplaint." Paragraph five of plaintiff's third amended complaint alleged that defendant committed one or more of the following negligent acts or omissions:

"a. Negligently and carelessly failed to adequately maintain its flashing warning signals;

b. Negligently and carelessly failed to adequately warn motorists of the approach of the train;

c. Negligently and carelessly placed the flashing signals controlling southbound traffic on Center Street more than 15 feet from the rail, contrary to the Illinois Administrative Code[,] Title 92[,] § 1535.335;

d. Negligently and carelessly placed the flashing signals controlling such southbound traffic on Center Street in a manner that failed to adequately warn southbound motorists of an approaching train;

e. Negligently and carelessly failed to equip the crossing with gates when the defendant knew or should have known the railroad crossing was ultra hazardous [sic];

f. Negligently and carelessly failed to keep its right-of-way reasonably clear of brush, shrubbery, trees, weeds[,] and other unnecessary obstructions for a distance of at least 500 feet each way from its grade crossing in violation of [section 18c-7401 of the Illinois Commercial Transportation Law (625 ILCS 5/18c-7401 (West 2000)) ];

g. Negligently and carelessly failed to keep a proper lookout for vehicles at or near the crossing;

h. Negligently and carelessly drove its train at a speed that was not reasonable and proper;

i. Negligently and carelessly failed to stop or slow its train in a manner as to avoid the accident;

j. Negligently and carelessly removed gates from the crossing in question when the defendant knew or should have known that such presented a hazard to motors [sic] on Center Street;

k. Negligently and carelessly failed to have crossing gates protecting the intersection in question."

On March 30, 2001, defendant filed a motion to dismiss and/or motion for a summary judgment, in which it raised numerous arguments why the third amended complaint should be dismissed.

On April 23, 2001, the trial court granted defendant's motion to dismiss. The trial court dismissed subparagraph 5(h) on the basis that plaintiff previously conceded that her claim that the train was being operated at an improper speed was preempted by federal law. The trial court dismissed subparagraph 5(c) on the basis that section 1535.335 of Title 92 of the Administrative Code (92 Ill. Adm.Code § 1535.335 (1994)) does not impose a duty on defendant to place signals within 15 feet from the near rail, dismissed subparagraph 5(i) on the basis that it was filed beyond the statute of limitations, and dismissed subparagraphs 5(d), (e), (j) and (k) on the basis that they are precluded by section 18c-7401(3) of the Illinois Commercial Transportation Law (Transportation Law) (625 ILCS 5/18c-7401(3) (West 2000)). The trial court also dismissed the complaint on the basis that it failed to allege a duty owed to plaintiff by defendant. Plaintiff filed a timely notice of appeal.

ANALYSIS

I. Duty

We first address plaintiff's contention that whether or not a duty exists is a question of law based upon the facts in the complaint rather than the specific allegation of "duty." The trial court dismissed plaintiff's third amended complaint pursuant to section 2-615 of the Code because plaintiff failed to specifically allege a duty on the part of defendant to plaintiff. The better practice is to so allege specifically and to use the term "duty" in that allegation. We find, however, that a plaintiff need not plead the term "duty" for a duty to actually exist.

In reviewing the dismissal of a complaint under either section 2-615 or section 2-619 of the Code, we apply a de novo standard of review. R-Five, Inc. v. Shadeco, Inc., 305 Ill.App.3d 635, 639, 238 Ill.Dec. 809, 712 N.E.2d 913, 915 (1999). A section 2-615 motion is based on the pleadings rather than the underlying facts. A motion brought pursuant to section 2-615 attacks the legal sufficiency of the complaint. We must determine whether the allegations of the complaint, when viewed in the light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be granted. Provenzale v. Forister, 318 Ill.App.3d 869, 878, 252 Ill.Dec. 808, 743 N.E.2d 676, 683 (2001).

Browning v. Heritage Insurance Co., 33 Ill.App.3d 943, 338 N.E.2d 912 (1975), set forth the following rule concerning the necessity of alleging a duty:

"Where the cause of action arises out of a breach of duty owed by defendant to plaintiff, plaintiff must plead facts which disclose a duty to him and defendant's breach of that duty. The plaintiff must allege facts from which the law will raise a duty, and allege an omission of duty and a resulting injury. An allegation of duty, as such, is surplusage—if the facts stated raise the duty[,] the allegation is unnecessary; if they do not, it is unavailing. If the complaint plainly and concisely alleged sufficient facts from which the law will raise a duty, and an alleged omission of duty, and an alleged proximately resulting injury[,] it is sufficient as a matter of pleading." (Emphasis added.) Browning, 33 Ill.App.3d at 947-48, 338 N.E.2d at 916.

This common-sense approach promotes substance over form and is applicable in the instant case.

We disagree with defendant's assertion that plaintiff waived this issue by failing to raise Browning before the trial court. Whether a duty exists is a question of law that can be raised at any time and is for a court to decide. Plaintiff either alleged this element of the cause of action or she did not. If she alleged this element, the dismissal of the complaint was improper. The question is not dependent upon what case law was raised before the trial court.

A railroad has a duty to exercise due care in order to avoid a collision (Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill.2d 107, 115, 208 Ill.Dec. 662, 649 N.E.2d 1323, 1326 (1995)) and to provide adequate warning devices at crossings. Espinoza, 165 Ill.2d at 120, 208 Ill.Dec. 662, 649 N.E.2d at 1329. Upon close examination, it is clear that plaintiff's third amended complaint contained sufficient facts to state a cause of action as a matter of pleading. An additional paragraph specifically alleging a duty was not necessary. Accordingly, we find that the trial court erred in dismissing plaintiff's third amended complaint on the basis that it failed to specifically allege a duty.

II. Removal of Gates

Plaintiff next contends that the trial court erred in dismissing subparagraphs 5(d), (e), (j), and (k) of her third amended...