Choate v. Ind. Harbor Belt R.R. Co.

• Decision Date: 20 September 2012
• Docket Number: No. 112948.,112948.
• Citation: 980 N.E.2d 58
• Parties: Dominic CHOATE, Appellee, v. INDIANA HARBOR BELT RAILROAD COMPANY et al., Appellants.
• Court: Illinois Supreme Court

980 N.E.2d 58

Dominic CHOATE, Appellee,

v.INDIANA HARBOR BELT RAILROAD COMPANY et al., Appellants.

No. 112948.

Supreme Court of Illinois.

Sept. 20, 2012.

Rehearing Denied Nov. 26, 2012.

Michele L. Odorizzi, Chicago, and Evan M. Tager and Brian J. Wong, Washington, D.C., all of Mayer Brown, LLP, and David R. Schmidt and George H. Brant, Fedota Childers, P.C., Chicago, for appellants.

Milo W. Lundblad and Marvin Brustin, Brustin & Lundblad, Ltd., Chicago (Leslie J. Rosen, of counsel), for appellee.

Hugh C. Griffin, Hall, Prangle & Schoonveld, LLC, Chicago (Louis P. Warchot and Daniel Saphire, Washington, D.C., of counsel), for amici curiae Association of American Railroads et al.

Rachel Kaplan and Stephen Wood, Chicago, for amicus curiae Chicago Transit Authority.

Richard J. Rosenblum, Rubin, Machado & Rosenblum, Ltd., Chicago, for amicus curiae Illinois Trial Lawyers Association.

Justice FREEMAN delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Dominic Choate, brought a personal injury action in the circuit court of Cook County against defendants, Indiana Harbor Belt Railroad Company (IHB), the Baltimore and Ohio Chicago Terminal Railroad Company (B & OCT), and CSX Transportation, Inc. (CSX). A jury returned a verdict in favor of plaintiff. The appellate court affirmed. 2011 IL App (1st) 100209, 352 Ill.Dec. 677, 954 N.E.2d 760. We allowed defendants' petition for leave to appeal. Ill. S.Ct. R. 315 (eff. Feb. 26, 2010). We now reverse the judgments of the appellate and circuit courts.

¶ 2 I. BACKGROUND

¶ 3 A. Underlying Facts

¶ 4 In July 2003, plaintiff was 12 years and 9 months old, and had finished the sixth grade. Plaintiff lived in Chicago Ridge. CSX, which wholly owns B & OCT, owns three railroad tracks that run northwest to southeast through Chicago Ridge. IHB manages the tracks and patrols the railroad right-of-way.

¶ 5 Plaintiff testified that on July 30, 2003, he and two friends, Steven Weyer and Charles Spindler, met up with three girls, Alisa Van Witzenburg, Brittany Edgar, and Jessica Gunderson in the parking lot of an apartment building in Chicago Ridge. These children were all between 12 and 13 years old.

¶ 6 Defendants' railroad tracks lie adjacent to the north side of the parking lot. There was no railroad crossing at that location. The nearest crossings were at Ridgeland Avenue, approximately three-quarters of a mile northwest, and Central Avenue, approximately one-quarter of a mile southeast. Only segments of this mile-long corridor were fenced. On the north side of the tracks at the parking lot, a chain link fence was torn open and rolled back to enable people to walk through it to cross the tracks. On the south side of the tracks, a chain link fence ended east of the parking lot. A sign posted on the west end of this fence read as follows:

"DANGER NOTRESPASSINGNODUMPING"

According to his testimony, plaintiff did not see this sign on July 30, 2009.

¶ 7 Plaintiff further testified that while the group was gathered in the parking lot, a freight train approached on the middle track. The train was moving eastbound, from their left to their right, steadily at approximately 10 miles per hour and never stopped. According to plaintiff, the group originally intended to wait for the train to pass, and cross the tracks to reach Weyer's house. However, after a few minutes, plaintiff, Spindler, and Weyer began walking toward the tracks. They stepped onto the railroad right-of-way. Plaintiff and Spindler decided on the spur-of-the-moment to jump onto the train. Plaintiff had never before attempted to jump aboard a moving train, and he had never seen anyone successfully do so. At that point, plaintiff's motive for jumping on the train was not to cross the tracks to go anywhere else. Rather, plaintiff was focused solely on trying to impress his friends, especially Van Witzenburg, his girlfriend at that time.

¶ 8 Plaintiff testified that Spindler attempted to jump onto the train first. Spindler tried to grab a ladder on the side of a moving boxcar, but he was unsuccessful and stepped away from the train. Plaintiff then attempted to jump onto the train three times. On his first attempt, plaintiff stood flat-footed on the ground and grabbed a ladder. At the time, he was only approximately 4 feet 10 inches tall. He was able to grab the bottom rung of the ladder with his right hand. However, the ladder bent his fingers backwards and he pulled his hand back. On his second attempt, plaintiff ran alongside the train and grabbed a ladder. However, his shoes began to slip on the rocky roadbed, forcing him to let go. On his third attempt, plaintiff grabbed hold of a ladder with both hands and pulled his body up toward the train. He managed to put his right foot on the ladder. Plaintiff testified that he does not recall what happened next while he was on the train.

¶ 9 Edgar and Gunderson each testified that the girls were screaming at plaintiff to stop what he was doing and get away from the train. Gunderson and Van Witzenburg each testified that plaintiff slipped from the ladder and fell down. Van Witzenburg further saw his left foot fall under a train wheel.

¶ 10 Plaintiff remembered waking up on the ground and trying unsuccessfully to stand. Plaintiff's left foot had been severed above the toes.

¶ 11 Austin Patton testified that he saw the children in the parking lot, shortly before the accident. Patton testified that he watched as the boys approached the moving train. One of the boys tried to grab a ladder on the side of a boxcar, but he was knocked down and made no further attempt to jump on the train. The other boy, whom Patton identified as plaintiff, continued trying to jump on the train. Patton saw plaintiff's one hand lose its grip on the ladder, such that the moving train "swung him [plaintiff] around so his back was to the train. He went down and his—his foot went up over that rail."

¶ 12 Patton was approximately 50 feet from plaintiff and Spindler when they began their attempts to jump on the train. Patton yelled at the boys to stay away from the tracks, but the train was so loud they could not hear him.¹ Patton testified:

"So as I'm making my way towards him is when—is when I saw what happened." Patton ran over and pulled plaintiff away from the moving train. Patton saw that plaintiff "lost the tip of his foot at an angle." He instructed a friend who was with him to run back to his apartment, telephone 911, and bring back towels. Patton elevated plaintiff's leg, covered it with the towels, and flagged down a nearby ambulance.

¶ 13 Dr. Andrea Kramer, plaintiff's orthopedic surgeon, testified that plaintiff's injury necessitated an amputation below the knee, rather than closer to the ankle, because "there was no skin left on his heel or his foot, so it was the best option."

¶ 14 B. Procedural Background

¶ 15 On March 16, 2005, plaintiff filed the instant second amended complaint. Plaintiff alleged, inter alia, that defendants failed to: adequately fence the area; prevent minor children from accessing trains or the railroad tracks; post warning signs, or otherwise warn of the danger of trains; and monitor the area in the vicinity of the train and railroad tracks to prevent children from gaining access thereto.

¶ 16 Defendants moved for summary judgment, contending they did not owe plaintiff a legal duty because: (1) jumping onto a moving freight train is an obvious danger to children of plaintiff's age; and (2) based on his discovery deposition, plaintiff subjectively appreciated the danger. The circuit court initially granted defendants' motion, but on reconsideration, vacated the summary judgment. The court found that whether the danger of jumping onto a moving freight train is so obvious as to preclude any duty owed by defendants to plaintiff is a question of fact for the jury.

¶ 17 The trial adduced the above-recited evidence. The jury returned a verdict in favor of plaintiff. The jury assessed plaintiff's damages in the amount of $6.5 million, but reduced that amount to $3.9 million after finding that plaintiff was 40% comparatively negligent. The circuit court subsequently entered judgment on the verdict in the amount of $3,875,000.²

¶ 18 Defendants timely filed a posttrial motion pursuant to section 2–1202(b) of the Code of Civil Procedure ( 735 ILCS 5/2–1202(b) (West 2002)). Defendants requested a judgment non obstante veredicto (n.o.v.), asserting that: (1) they did not owe plaintiff a duty to protect against the possibility that he might injure himself by confronting an obvious danger, and (2) plaintiff's alleged remedy for eliminating the dangerous condition was not reasonable. Alternatively, defendants requested a new trial. The circuit court denied defendants' posttrial motion. The appellate court affirmed the judgment of the circuit court. 2011 IL App (1st) 100209, 352 Ill.Dec. 677, 954 N.E.2d 760.

¶ 19 Defendants appeal to this court. We granted the Illinois Trial Lawyers Association leave to submit an amicus curiae brief in support of plaintiff. We also granted the Association of American Railroads, the Chicago Transit Authority, and the Northeast Illinois Regional Commuter Railroad Corporation (Metra) leave to submit an amici curiae brief in support of defendants. Ill. S.Ct. R. 345 (eff. Sept. 20, 2010).

¶ 20 II. ANALYSIS

¶ 21 Defendants contend that they are entitled to a judgment n.o.v., which is properly granted only where all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504 (1967). An adverse ruling on a motion for a judgment n.o.v. is reviewed de novo. Evans v. Shannon, 201 Ill.2d 424, 427, 267 Ill.Dec. 533, 776 N.E.2d 1184 (2002). In other words, the reviewing court applies the same Pedrick standard as did the circuit court. Harris v. Thompson, 2012 IL 112525, ¶ 15, 364 Ill.Dec. 436, 441–42, ...