Eagan v. Chicago Transit Authority, 1-90-0597

Citation608 N.E.2d 292,240 Ill.App.3d 784
Decision Date23 December 1992
Docket NumberNo. 1-90-0597,1-90-0597
Parties, 181 Ill.Dec. 219 Dennis EAGAN, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY, a municipal corporation, Defendant-Appellee.
CourtUnited States Appellate Court of Illinois

Corboy & Demetrio, P.C., Chicago (Philip H. Corboy, Todd A. Smith, David A. Novoselsky, of counsel), for plaintiff-appellant.

James D. Montgomery & Associates, Ltd., Chicago (James D. Montgomery, of counsel), for defendant-appellee.

Justice TULLY delivered the opinion of the court:

This appeal is concerned with the legal propriety of plaintiff's complaint. Plaintiff, in this instance, wishes to hold defendant, Chicago Transit Authority (CTA), liable for its failure to protect plaintiff from the criminal activities of an unknown third-party, while both were passengers on a CTA elevated train. Plaintiff interceded in a situation in which an unknown culprit was attempting to pick the pocket of another passenger. As a result, plaintiff was stabbed by the third-party pickpocket. Plaintiff appeals from the dismissal of his complaint in negligence against the CTA.

Plaintiff filed a complaint against the CTA, alleging negligence, in that the CTA: (a) failed to monitor in any way whatsoever the train and its platform so as to become aware of pickpocketing and assaults; (b) failed to respond in any way when the pickpocketing was observed by other passengers; and (c) failed to alert the Chicago police department that one of its patrons was being pickpocketed by a razor-wielding assailant. The trial court dismissed the complaint pursuant to section 2-619 (Ill.Rev.Stat.1987, ch. 110, par. 2-619) of the Illinois Code of Civil Procedure, indicating that the CTA was immune from liability for a third-party assault, pursuant to section 27 of the Metropolitan Transit Authority Act (Ill.Rev.Stat.1987, ch. 111 2/3, par. 327.) (section 27) The trial court also cited Bilyk v. Chicago Transit Authority (1988), 125 Ill.2d 230, 125 Ill.Dec. 822, 531 N.E.2d 1, as a foundational basis for the dismissal.

At issue in this case is the interpretation of section 27 which reads:

"In the policing of its properties, the Board may provide for the appointment and maintenance, from time to time, of such police force as it may find necessary and practicable to aid and supplement the police forces of any municipality in the protection of its property and the protection of the persons and property of its passengers and employees, or otherwise in furtherance of the purposes for which said Authority was organized. The members of such police force shall have and exercise like police powers to those conferred upon the police of cities. Neither the Authority [the CTA], the members of its Board nor its officers or employees shall be held liable for failure to provide a security or police force or, if a security or police force is provided, for failure to provide adequate police protection or security, failure to prevent the commission of crimes by fellow passengers or third persons or for the failure to apprehend criminals." (Ill.Rev.Stat.1987, ch. 111 2/3, par. 327.) (Emphasis added.)

The emphasized language was added to section 27 in 1985 by Public Act 84-939. Plaintiff contends that section 27 was not intended to provide a "blanket" immunity to the CTA which, as a common carrier, owes a common law duty of utmost care in providing safe transportation for its passengers. (Garrett v. Grant School Dist. No. 124 (1985), 139 Ill.App.3d 569, 93 Ill.Dec. 874, 487 N.E.2d 699.) Rather, plaintiff argues that section 27 only immunizes the CTA from any liability for failure to provide police or security protection for its passengers. Moreover, this limited immunity in section 27 does not abrogate defendant's common law duty of care to the plaintiff-passenger in this case. For example, in Gordon v. Chicago Transit Authority (1984), 128 Ill.App.3d 493, 83 Ill.Dec. 743, 470 N.E.2d 1163, the CTA was found liable for an assault or other injury to one of its passengers, where it had reason to anticipate the misconduct, but failed to exercise the degree of care and vigilance practical under the circumstances to prevent the injury. However, Gordon was decided prior to the 1985 amendment to section 27, which added the immunity language regarding third-party criminals. Defendant contends that the amendment to section 27 effectively abolished any prior common law duty of public common carriers, such as the CTA, for failure to protect passengers from third-party criminal acts. Therefore, according to defendant, the holding in Gordon is no longer viable.

A statute in derogation of the common law must be narrowly construed. (Possekel v. O'Donnell (1977), 51 Ill.App.3d 313, 9 Ill.Dec. 332, 366 N.E.2d 589.) It would appear, in the instant case, that the circuit court read into the statute involved here, language and details far broader than the narrow confines of the actual language drafted by the legislature. According to plaintiff, the trial court mistakenly permitted the CTA to utilize section 27 as a general, all-encompassing statute, immunizing the CTA from liability for each and every injury suffered by any of its passengers. Plaintiff indicates that this statute should only apply to duties that the CTA has in relationship to providing security or police officers. In support thereof, plaintiff cites the Governmental Tort Immunity Act (Ill.Rev.Stat.1987, ch. 85, par. 1-101, et seq.) (the Act), which provides immunity to other governmental bodies for failing to provide police protection. Section 4-102 of the Act reads:

"Neither a local public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or if police protection service is provided, for failure to provide adequate police protection or service, failure to prevent the commission of crimes and failure to apprehend criminals." (Ill.Rev.Stat.1987, ch. 85, par. 4-102.) (Section 4-102.)

The language of section 4-102 is almost identical to section 27, which applies specifically to the CTA. Plaintiff argues that there is no legislative judgment or intent evident in section 27, whereby the CTA should be granted greater immunity than other governmental entities. Under section 4-102, a defendant municipality may nevertheless be held liable for third-party criminal acts under what has come to be known as the "special duty" exception to governmental immunity. (See, Gardner v. Village of Chicago Ridge (1966), 71 Ill.App.2d 373, 219 N.E.2d 147.) The CTA was originally excluded from the Governmental Tort Immunity Act because of the "special relationship" between carriers and their passengers and the higher standard of care imposed upon common carriers. (See, Bilyk, 125 Ill.2d at 241, 125 Ill.Dec. at 826, 531 N.E.2d at 5.) At issue in this case, is whether or not the "special duty" exception to immunity under section 4-102 can be analogized with the common law duty of common carriers to protect their passengers from the criminal acts of third parties--a duty which results from the "special relationship" between a carrier and its passengers.

Plaintiff's complaint relates to the failure of the CTA to respond in any way to the pickpocketing situation, which was observed by other passengers on the train, or to monitor the train or its platform. Allegedly, even the conductor of the train failed to notify the Chicago police department that a crime was being committed. This is a situation in which the CTA employees, including the various trained personnel employed by the CTA at the station, apparently failed in their duties. The CTA owes a duty of utmost care towards its passengers, to prevent injuries to passengers which reasonably could have been foreseen and, thus, avoided. (Gordon, 128 Ill.App.3d 493, 83 Ill.Dec. 743, 470 N.E.2d 1163.) Common carriers have been found to have breached this duty where a passenger was assaulted by another passenger (McCoy v. Chicago Transit Authority (1977), 69 Ill.2d 280, 13 Ill.Dec. 690, 371 N.E.2d 625); where a passenger was shot by another passenger (Martin v. Chicago Transit Authority (1984), 128 Ill.App.3d 837, 84 Ill.Dec. 15, 471 N.E.2d 544); where a passenger was injured by exhaust fumes (Hanson v. Chicago Transit Authority (1977), 56 Ill.App.3d 17, 13 Ill.Dec. 792, 371 N.E.2d 884.) Moreover, plaintiff's complaint alleged that prior "numerous attacks, as well as pickpocketing, had been committed upon its [the CTA] trains and platforms and generally upon its facilities against its customers. Such criminal acts include, but are not limited to, shootings, stabbings, robberies, assaults, rapes and batteries."

Defendant indicates that plaintiff's arguments are in error and must be rejected by this court. Defendant posits that section 27 was amended to show the legislature's intent to overturn the holding in Gordon, which held that the CTA could be liable for injuries incurred by a passenger as the result of the criminal activities of third parties. Defendant further states that the trial court correctly applied section 27 as well as the Illinois Supreme Court's decision in Bilyk v. Chicago Transit Authority (1988), 125 Ill.2d 230, 125 Ill.Dec. 822, 531 N.E.2d 1. Defendant feels that no other reasonable interpretation of the events of the amendment to section 27 could be afforded and, therefore, the CTA would be immune by virtue of this revision of section 27 by the Illinois legislature.

According to plaintiff, the Bilyk decision did not resolve any issues relating to the extent of the underlying grant of immunity or the legislative intent of section 27. In Bilyk, the supreme court determined the constitutionality of section 27 and found that a classification as between public and private common carriers was not a classification in violation of the equal protection and special legislation clauses. (Davis v. Chicago...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT