Foreman v. Consolidated Rail Corp.

• Decision Date: 28 May 1991
• Docket Number: No. 1-89-1222,1-89-1222
• Parties: , 158 Ill.Dec. 384 Rufus FOREMAN, Jr., a minor by his Guardian and next friend Charlesia Heard, and Charlesia Heard, Plaintiffs-Appellants, v. CONSOLIDATED RAIL CORPORATION and City of Chicago, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 178

574 N.E.2d 178

214 Ill.App.3d 700, 158 Ill.Dec. 384

Rufus FOREMAN, Jr., a minor by his Guardian and next friend Charlesia Heard, and Charlesia Heard, Plaintiffs-Appellants, v. CONSOLIDATED RAIL CORPORATION and City of Chicago,

Defendants-Appellees.

No. 1-89-1222.

Appellate Court of Illinois,

First District, Second Division.

May 28, 1991.

Levy, Leopold & Associates, P.C., Chicago (David A. Novoselsky and Tammy A. Koester, of counsel), for plaintiffs-appellants.

Kelly R. Welsh, Corp. Counsel of the City of Chicago (Ruth M. Moscovitch and Michelle A. Hutchinson, Asst. Corp. Counsel, of counsel), for defendant-appellee City of Chicago.

Justice COCCIA delivered the opinion of the court:

Plaintiff Rufus Foreman, Jr., a minor, by his guardian Charlesia Heard, and plaintiff Charlesia Heard, appeal from a trial court order dismissing two counts of their complaint directed at defendant City of Chicago, pursuant to section 2-619 of the Illinois Code of Civil Procedure. (Ill.Rev.Stat.1989, ch. 110, par. 2-619.) The court entered a finding under Supreme Court Rule 304(a). (134 Ill.2d R. 304(a).) On appeal, plaintiffs contend that the complaint states a valid cause of action for negligence based on the city's failure to fence its property which was adjacent to a railroad track, where the minor plaintiff was injured when he tried to board a moving freight train. Counts directed against defendant Consolidated Rail Corporation remain pending in the trial court.

The complaint alleges that on July 13, 1985, the minor plaintiff, then 11 years old, crossed property owned by the City of Chicago, and entered the railroad property where he tried to climb onto a moving freight train. He fell and was injured, requiring the amputation of his left foot and three toes of his right foot.

Count III of the complaint alleges that the city owned property adjacent to the railroad tracks and that it should have known that children crossed the property to get to the tracks as evidenced by well worn bicycle and/or foot paths across the city's property leading to the railroad tracks. The complaint alleged that the city had a duty to exercise due care to prevent children from crossing its property; that the city was negligent for failing to keep children from crossing its property; and that the city was negligent for failing to fence its property.

Count VIII of the complaint alleges that plaintiff Heard, the minor's sister, has incurred expenses as a result of the minor's injuries.

The city filed a section 2-619 motion to dismiss (Ill.Rev.Stat.1989, ch. 110, par. 2-619) counts III and VIII, raising as affirmative matter statutory immunities. (Ill.Rev.Stat.1989, ch. 85, par. 1-101 et seq.) The city argued that under both the Tort Immunity Act and common law it had no duty to erect public improvements such as fences.

On April 6, 1989, the trial court granted the city's motion to dismiss after finding that no duty existed to affirmatively put up a fence rather than to maintain it. The court stated that questions "of duty are not always a matter of foreseeability. * * * [V]ery often and possibly most often it's [a] question[ ] of public policy." The court found a heavy burden would be imposed on municipalities if required to put up fences where their properties bordered a railroad "even in the event that they knew or should have known about children going up upon property that leads onto railroad tracks." Under section 2-619 of the Code of Civil Procedure, the court may dismiss an action for failure to state a cause of action and the movant may raise affirmative matter which would avoid the legal effect of or defeat the claim. (Ill.Rev.Stat.1989, ch. 110, par. 2-619(a)(9).) For purposes of a section 2-619 motion all well-pleaded facts and reasonable inferences therefrom are taken as true. (Kirby v. Jarrett (1989), 190 Ill.App.3d 8, 137 Ill.Dec. 204, 545 N.E.2d 965.) Conclusions of law or fact unsupported by allegations of specific facts upon which such conclusions rest may not be admitted. (Meyer v. Murray (1979), 70 Ill.App.3d 106, 26 Ill.Dec. 48, 387 N.E.2d 878.) Here, the parties did not submit affidavits or other evidence and the case was decided on the pleadings.

Common law negligence consists of a duty owed by defendant to plaintiff, a breach of that duty, and an injury proximately caused by the breach. (Curtis v. County of Cook (1983), 98 Ill.2d 158, 74 Ill.Dec. 614, 456 N.E.2d 116.) Plaintiff's complaint must allege facts from which the law will raise a duty, and whether a legal duty exists is first a question of law to be determined by the court. (Widlowski v. Durkee Foods (1990), 138 Ill.2d 369, 150 Ill.Dec. 164, 562 N.E.2d 967.) Whether a duty exists involves a consideration of foreseeability of possible harm; legal and social policies; the magnitude of the burden of guarding against the injury; and the consequence of placing the burden on defendant. (Widlowski v. Durkee Foods.) The weight accorded each factor depends upon the circumstances of each case. Widlowski v. Durkee Foods.

Before a duty will be imposed on a party who owns or possesses certain land, it must be shown that the party knows or should know that children frequent the premises and that the cause of the child's injury was a dangerous condition on the premises. (Logan v. Old Enterprise Farms, Ltd. (1990), 139 Ill.2d 229, 151 Ill.Dec. 323, 564 N.E.2d 778; Corcoran v. Village of Libertyville (1978), 73 Ill.2d 316, 22 Ill.Dec. 701, 383 N.E.2d 177; Cope v. Doe (1984), 102 Ill.2d 278, 80 Ill.Dec. 40, 464 N.E.2d 1023; Kahn v. James Burton Co. (1955), 5 Ill.2d 614, 126 N.E.2d 836; see also Restatement (Second) of Torts, sec. 339 (1965).) Absent these two requirements, the harm to the child will not be deemed sufficiently foreseeable such that the law will find a duty to remedy the unsafe condition. Logan v. Old Enterprise Farms, Ltd.

Under Illinois law, municipalities have always had a duty to exercise ordinary care to maintain their property in a reasonably safe condition. Curtis v. County of Cook; Chicago v. O'Brennan (1872), 65 Ill. 160.

The complaint here alleges that at the time of the accident:

"[The City's property] was located is [sic] approximately 225 [sic] South of the South edge of 94th Street, 279 feet East of the East curb of South Woodlawn and 13 feet West of the West curb of South Avalon, and now [sic] a small hill.

[M]inors crossed Defendant's property and played upon the moving trains and railroad tracks located adjacent to Defendant's property near the intersection of 94th and Avalon in Chicago, Illinois.

* * * * * *

That on July 13, 1985, and for a long time prior thereto there existed well worn bicycle and/or foot paths across their property leading upon the railroad tracks and the Defendant, by its agents and employees, knew or reasonably should have known that minors crossed its property to play upon the moving trains and railroad tracks located adjacent to Defendant's property near the intersection of 94th and Avalon in Chicago, Illinois and that said minors did not appreciate the inherently dangerous condition created by the moving trains.

That on July 13, 1985, the plaintiff, Rufus Foreman, Jr., crossed Defendant's property at the top of the above-mentioned small hill in the area approximately in direct line with the West sidewalk of South Avalon in Chicago, Illinois."

There is only the barest of allegations that the city knew, or should have known, of a condition on its land which was dangerous to minors. The single mention of a path, however, is insufficient for us to find a duty.

Plaintiff relies heavily on LaSalle National Bank v. City of Chicago (1985), 132 Ill.App.3d 607, 88 Ill.Dec. 102, 478 N.E.2d 417, where a 9-year-old boy climbed through a hole in a fence constructed and maintained by the city, and entered the adjacent property owned by the railroad, where he tried to board a moving freight train and was injured, requiring the amputation of one leg and the other foot. The court affirmed a jury verdict for plaintiff, and found the city had a duty to repair the hole in the fence, which it had agreed to maintain. That case differs significantly from the present case. In LaSalle, we specifically noted we were relying on the city's contractual duty to erect and maintain the fence. In addition, it was significant that a fence already existed, that the city had been told several times it was in need of repair, and that the land consisted of a playground.

The court in LaSalle National Bank relied upon Leone v. City of Utica (1979), 414 N.Y.S.2d 412, 66 App.Div.2d 463, aff'd. (1980), 49 N.Y.2d 811, 426 N.Y.S.2d 980, 403 N.E.2d 964, where an 8-year-old was injured while trying to board a moving freight train. The court in Leone affirmed a judgment for plaintiff against the city for failure to erect a fence between its property and the railroad. In contrast to the present case, however, the city property in Leone consisted of a playground and park located adjacent to the railroad property. Here, there is no such allegation.

Plaintiff also points to Pellegrini v. Chicago, Rock Island & Pacific R.R. Co. (1980), 91 Ill.App.3d 1091, 47 Ill.Dec. 610, 415 N.E.2d 615, where the court reversed summary judgment entered against the defendant railroad and in favor of the 13-year-old plaintiff injured while trying to board a moving train, where the railroad had failed to erect a fence. That case, however, did not involve a public entity or an adjacent landowner. Moreover, the danger was on defendant's property, not on adjacent property.

Plaintiff also relies on Maskaliunas v. Chicago & Western Indiana R.R. Co. (1925), 318 Ill. 142, 149 N.E. 23, where the court affirmed judgment for plaintiff against the defendant railroad for injuries sustained by an 8-year-old who was trying to board a moving train. The court held that the question of whether the failure to fence the property was a proximate cause of plaintiff's injury was...