Colls v. City of Chicago, 1-88-2243

• Decision Date: 19 April 1991
• Docket Number: No. 1-88-2243,1-88-2243
• Citation: 212 Ill.App.3d 904,571 N.E.2d 951
• Parties: , 156 Ill.Dec. 971 Nohemi COLLS, Administrator of the Estate of Daniel Colls, deceased, Plaintiff-Appellant, v. CITY OF CHICAGO, a Municipal Corporation, and Chicago and Northwestern Transportation Company, a Corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 951

571 N.E.2d 951

212 Ill.App.3d 904, 156 Ill.Dec. 971

Nohemi COLLS, Administrator of the Estate of Daniel Colls deceased, Plaintiff-Appellant, v. CITY OF CHICAGO, a Municipal Corporation, and Chicago and Northwestern Transportation Company, a Corporation, Defendants-Appellees.

No. 1-88-2243.

Appellate Court of Illinois First District, Fifth Division.

April 19, 1991.

Kelly R. Welsh, Corp. Counsel of the City of Chicago, Chicago, (Ruth M. Moscovitch, Chief Asst. Corp. Counsel, Michelle A. Hutchinson, Asst. Corp. Counsel, of counsel), for defendants-appellees.

Asher, Pavalon, Gittler and Greenfield, Ltd., Chicago, (Eugene I. Pavalon, Gary K. Laatsch, Ladonna L. Steiner, of counsel), for plaintiff-appellant.

Justice GORDON delivered the opinion of the court:

Plaintiff, Nohemi Colls, as administrator of the estate of Daniel Colls, her minor son, brought a wrongful death action against defendants, the Chicago and North Western Transportation Company (C & NW) and the City of Chicago (the city), alleging that defendants' negligence caused her son to be struck and fatally injured by a commuter train, and requesting damages. (Ill.Rev.Stat.1977, ch. 70, par. 1 et seq.) Following a jury trial in the circuit court of Cook County, a general verdict was returned in favor of both defendants, and judgment was entered thereon. Plaintiff appeals from the judgment and from the denial of her post-trial motion to set aside the verdict and for a new trial.

On appeal, plaintiff contends that several trial court errors, either individually or by their cumulative effect, denied her a fair trial on the merits. She raises the following issues for our review: (1) whether the trial court erred in modifying the pattern jury instruction on the plaintiff's burden of proof (Illinois Pattern Jury Instructions, Civil, No. 120.04 (2d ed. 1971)), so that the instruction contained an additional element of proof and misstated the applicable law; (2) whether the trial court abused its discretion by failing to order a mistrial or further limit the testimony of a defense witness following the late disclosure of relevant documents which had been requested during discovery; (3) whether the trial court committed reversible error by striking certain allegations of plaintiff's complaint regarding issues on which the jury had heard evidence, and by subsequently refusing to instruct the jury on the issues raised by those allegations; and (4) whether the trial court committed reversible error in permitting defense counsel and defense witnesses to repeatedly characterize plaintiff's decedent as a "trespasser," where such status was irrelevant to the question of defendants' liability under the legal theory of the case.

The following facts relating to this tragic occurrence are undisputed. On August 19, 1978, at approximately 11:30 a.m., 12-year-old Daniel Colls was struck and killed instantly by a commuter train operated by C & NW (hereafter referred to as "the railroad") on its northwest line from the suburbs into its Chicago terminal. Daniel and an 8-year-old friend, John Spaw, had been walking along tracks owned and maintained by the railroad at a location about one and one-half blocks from the Colls family residence. The boys were searching for discarded railroad spikes for use in the construction of a tree house which neighborhood children were building on a strip of city property adjacent to the railroad right-of-way. The property in question is located along the southwest side of North Irene Avenue in Chicago. It runs on a diagonal, for about 250 feet, between North Kedzie and West Belmont Avenues. The railroad tracks at this location also run in a southeasterly and northwesterly direction, parallel to Irene Avenue, on an embankment rising from the city-owned land. The tracks cross over Kedzie and Belmont Avenues by means of steel-girded bridges, or viaducts. At the time that he was struck by an in-bound train, plaintiff's decedent was on the Kedzie Avenue bridge. The parties agree that the railroad was On January 24, 1979, plaintiff filed her complaint, charging the railroad and the city with conduct proximately causing Daniel's death, under a negligence theory based on Kahn v. James Burton (1955), 5 Ill.2d 614, 126 N.E.2d 836. The complaint alleged that the railroad permitted a dangerous condition to exist on its premises which involved an unreasonable risk to children, including the decedent. It further alleged that the railroad and the city knew, or should have known, that children had frequently played at the tracks and on the adjacent embankment and city property, for some time prior to August 19, 1978, and that the children, due to their immaturity, were not able to appreciate the dangers and hazards of the tracks. The complaint stated that well-worn paths extended up the embankment, on the property of both defendants, and that numerous railroad spikes and a tree house were located in the same area. The complaint specifically charged the railroad, inter alia, with negligence in failing to: (1) barricade or fence off its elevated tracks; (2) maintain warning signs on and around these tracks; (3) warn children of the dangers and hazards of playing at the tracks, although they knew that children, including plaintiff's decedent, would not appreciate the danger involved in these activities; (4) maintain guards or other suitable personnel to prevent children from playing on the tracks; and (5) maintain the tracks so as to keep them free from objects which would attract children. The allegations of negligent conduct by the city included, inter alia, failure to: (1) barricade or fence off its property; (2) maintain warning signs in and around the property and railroad tracks; and (3) keep its property free from objects which would attract children to the tracks.

operating[156 Ill.Dec. 975] its train properly; no issues relating to train operation or maintenance were raised at trial.

On April 8, 1980, plaintiff filed interrogatories to the railroad which, in part, requested as follows:

"Prior to August 19, 1978, did any agents, employees or representatives of [the railroad] have knowledge of persons crossing, standing on or near, or walking along [the] tracks at and adjacent to [the] Irene Street track segment? If so, please state the following:

(a) The name and last known residence and business address of any and all persons having such knowledge.

(b) The date or dates on which such knowledge was learned or observations of person crossing [the] tracks was made.

(c) For approximately how long prior to August 19, 1978, had such agent, employee or representative had such knowledge.

* * * * * *

Prior to August 19, 1978, had [the railroad] received any reports or complaints of children or other persons being upon the right of way and/or tracks at the place of the occurrence alleged in Plaintiff's Complaint? If so, state the following:

(a) The date or dates on which each such report was received.

(b) The name and last known residence and business address of the person making each such report, and * * * receiving each such report.

(c) The nature of the complaint or report on each such occasion.

(d) Identify by date, title, author, and name and address of the present custodian any and all documents pertaining to each such report, including but not limited to complaint reports, investigation forms, police reports, and incident reports."

Plaintiff also filed, on April 8, 1980, a "Notice to Produce [Documents]," including:

"One copy of any and all [railroad] police reports, investigation reports, spot reports, incident reports, complaints, or other documents showing instances when members of the public (particularly including children) were upon or crossing the railroad right of way at the place of and prior to the occurrence * * *."

On April 18, 1980, the railroad answered the interrogatory relating to agents' knowledge of persons walking on or near the tracks "at and adjacent to" the Irene track "Defendant has one police report of a trespasser related to 8/3-8/4, 1978 where an adult trespasser was warned and released in the vicinity of Belmont Avenue." (Emphasis added.)

                [156 Ill.Dec. 976] segment by stating that there was "[n]o record of same."   It answered the interrogatory requesting reports or complaints of persons on the right-of-way and tracks by stating, "See defendant's production response."   Apparently, that answer referenced the railroad's "Response to Plaintiff's Notice to Produce," also filed on April 18, 1980, wherein the railroad answered the above-quoted request for police reports and similar documents by stating as follows
                

The police report so described was provided to plaintiff, and was later introduced at trial during her case-in-chief. It contains the designation, "Criminal Trespass to Land," and memorializes a complaint, received by "D. Hahne" on August 3, 1978, in the following words:

"Juveniles on North West Line at Belmont daily between 0800 & 0830. Commuter trains # 630 and 632 reporting incidents."

The report further describes the "status of [the] investigation" into the complaint as follows:

"Reporting officer surveilled the subject location on 8/4/78, and one adult was observed running along (south) the right of way. Subject advised that he was enroute to work and was taking a short-cut. Subject warned and released with no further incident. Further contacts with trespassers will be reported on separate incidents."

The name and address of the adult trespasser, which also appear in the body of the report, bear no apparent relation to the parties or issues in this case. No other incident reports, or documents of a similar nature, were disclosed or provided to plaintiff during the course of discovery.

Trial commenced on March 22, 1988, following lengthy pre-trial proceedings unrelated to this appeal. During his opening statement, counsel for C & NW referred to the railroad's problem with "tre...