Hopkinson v. Chicago Transit Authority

Decision Date28 March 1991
Docket NumberNo. 1-88-3258,1-88-3258
Citation570 N.E.2d 716,156 Ill.Dec. 240,211 Ill.App.3d 825
Parties, 156 Ill.Dec. 240 Francis HOPKINSON, Administrator of the Estate of Rita Hopkinson, Deceased, Plaintiff-Appellee, v. CHICAGO TRANSIT AUTHORITY, a municipal corporation, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

William H. Farley, Gen. Atty., Chicago Transit Authority and Arnstein & Lehr, Chicago (Arthur L. Klein, Patrick F. Geary and John T. Wagener, of counsel), for defendant-appellant.

Ambrose & Cushing, P.C., Chicago (Thomas M. Cushing, of counsel), for plaintiff-appellee.

Justice COCCIA delivered the opinion of the court:

Plaintiff Francis Hopkinson, administrator of the estate of Rita Hopkinson, brought this wrongful death action against defendant, the Chicago Transit Authority (CTA), following decedent's rape and murder by an unknown assailant at a CTA "el" train station. A jury awarded plaintiff $1,500,000 in damages, and judgment was entered on the verdict.

On appeal, the CTA contends that it is immune from actions for failure to prevent criminal attacks by third persons, pursuant to a retrospective application of Ill.Rev.Stat.1985, ch. 111 2/3, par. 327; that the CTA owed no duty to decedent to protect her from the criminal attack of third persons; that decedent was not an invitee on CTA premises when first accosted; that plaintiff's expert witness was not qualified to render expert opinions; that evidence of prior criminal incidents was improperly admitted; that an undisclosed witness was improperly permitted to testify as an expert; that the CTA was improperly excluded from arguing to the jury about the lack of prior similar incidents; and that the CTA was improperly barred from introducing evidence of police patrols at the CTA station.

At trial, it was established that on Sunday, May 28, 1978 between 9:00 a.m. and 9:30 a.m., decedent was raped and stabbed to death at the Austin/Lombard station of the Congress "el" train line which connects Chicago and Oak Park. The CTA station platform, located below street level, runs between two ticket booth areas which are up at street level. A passenger may enter at the east end of the station, where an east-west ramp runs down to the platform.

The attack on decedent occurred at the west end of the station, about 4 blocks away, where a passenger may enter at Lombard Avenue. The Lombard entrance consists of a nearly enclosed ticket booth area, surrounded by metal sheeting and opaque fiberglass. A passenger would enter the ticket booth area through a floor to ceiling turnstile with interlocking horizontal steel bars. He would then walk down a 3-flight stairway, and then walk through a 200-foot walkway. Finally, he would walk up a few steps to the 500-foot platform itself. It is then necessary to walk the length of the platform to the Austin end, where the trains stop.

The Lombard stairway and walkway are encompassed by opaque corrugated fiberglass paneling approximately 4-feet tall, and a roof. On the platform itself, there are numerous metal wind partitions, covered with billboards, set in the middle of the platform.

Both the Austin and Lombard ticket booths were not staffed on Sundays, and fares were collected on the train.

The CTA train platform is set below street level excavation. Starting at the south end of the excavation, is a cement retaining wall which runs east-west, and which is built from the ground up to the street. Parallel to the wall are east-west railroad tracks, then the east-west CTA tracks and platform, and then the east-west Eisenhower Expressway.

The 22-year old, 5-foot tall, 88-pound decedent left home at about 8:45 a.m., planning to study at the University of Illinois medical school in Chicago where she was a student. She carried a purse, lunch, books and school papers. Her father dropped her at an Austin Boulevard bus about one mile north of the Congress "el" station. A transfer found in decedent's purse indicated she was on the southbound bus just before 9:00 a.m.

Diane DeMarro Jelison testified for plaintiff that she was 14 years old on the day in question. Between 8:50 and 9:00 a.m., Jelison and two friends went through the Lombard Avenue entrance and walked to the east end of the platform. Jelison also testified that from the street you could not see the platform or the Lombard walkway which leads to the platform. Jelison saw several people on the platform, including a black man sitting on a bench. He stared at Jelison in a "weird" way that caused her to be very frightened. Several minutes later, a train arrived, and Jelison and her friends boarded. The man did not board the train. She later described the man to the Oak Park Police.

Tom Hejna testified for defendant that sometime after 9:00 a.m., he was playing baseball in a park, across the street and about 350 feet from the Lombard end of the "el" station. The park was street level, above the expressway and the "el" platform. One end of the park ran parallel with the platform.

Hejna testified that shortly after 9:00 a.m., while playing centerfield, he saw decedent on Lombard Avenue, outside of the Lombard entrance to the "el" station, with a black man. The man was "leading her by the hand into the station." Decedent appeared "reluctant," but not in danger. Hejna had no idea whether or not they had just exited the Lombard station.

Decedent and the man walked into the station, and were in and out of his view after that time. Hejna could see the first flight of the stairway. At one point, he saw decedent run down the stairway, followed by the man, who then led her back up the stairway. Panels obstructed his view and he could not tell whether she was fully clothed or injured at that time. Hejna could occasionally see them through the rear opening in the Lombard entrance, and at one point saw the girl seated on the ground while the man stood near her.

Hejna eventually saw another man, Kenneth Bobco, enter the station at Lombard Avenue. Hejna then saw Bobco run down the stairs, and after a short delay decedent ran after Bobco. The assailant then exited the station onto Lombard Avenue. He looked down at the platform, and then ran away.

Hejna was not certain how long this all took, but he remembered playing portions of two half-innings in centerfield, and between those, his team played a full half-inning up at bat.

Kenneth Bobco testified for plaintiff that he entered the station at Lombard Avenue between 9:00 and 9:30 a.m. He could not see into the area very well until he had actually passed through the turnstile. Bobco then saw decedent, naked from the waist down, standing on the top stair of the stairway leading down to the platform. Decedent pointed to a "completely obscured area around the corner inside that entrance area." A black male then moved from that area toward Bobco and stabbed him twice in the chest. Bobco began running down the stairs and through the walkway to the platform, yelling at decedent to run, too. At one point, Bobco fell. He then turned and saw decedent running behind him on the platform, and noticed she was covered with blood. Bobco finally collapsed on the platform, unconscious.

Bobco later described the assailant to the Oak Park Police, and that description matched the one given by Jelison of the man she had seen on the platform at 9:00 a.m. Bobco also testified that from the street, it was almost impossible to see into the Lombard stairway and walkway.

At about 9:32 a.m., the police arrived. The assailant was never apprehended.

William Thomas, a CTA motorman, testified for both parties. He stated that he drove an eastbound train into the Austin/Lombard station shortly after 9:00 a.m. Looking up to the street level, he saw a bus stopped at the Austin entrance to the station. He saw several passengers, but did not see the man Jelison described, and did not see decedent.

Rafael Davila, a CTA conductor, testified for defendant that he was on a 9:06 a.m. westbound train. He scanned the platform for passengers, and saw several, but did not see the man Jelison described, or decedent. After the train reached the end of the line it turned around. The now eastbound train arrived at the Austin/Lombard station shortly after 9:30 a.m., when he saw a lady lying on the platform, and he radioed for help.

Dr. Michael Wolfson Kaufman, a pathologist, testified for plaintiff that he reviewed the medical examiner's records regarding decedent. Decedent suffered four chest wounds which perforated the surface of the lungs. Any one or more of the wounds could have been fatal. She also suffered a knife wound which penetrated completely through the heart, and was a fatal wound. There was also a stab wound in the vaginal area. Ultimately, decedent bled to death. It would have taken anywhere from 5 to 15 minutes to bleed to death, depending on the sequence of the wounds.

Lieutenant Paul Briggs of the Oak Park Police Department testified for plaintiff that he was called to the scene of the murder on May 28, 1978. Just inside the Lombard entrance he found decedent's purse, shoe, jeans, lunch and school papers. A CTA transfer was found in the purse. He observed a little blood inside the Lombard ticket booth area, and a trail of blood on the stairway and walkway, including footprints, handprints and pools of blood.

Briggs also testified that you could not see into the ticket booth area from the street. He testified that from the baseball field on Garfield, and looking into the Austin or the Lombard entrance, it was not possible to see most of the "el" platform. Standing on either Austin or Lombard Avenue, you could not see the tunnels on the opposite ticket booths because they are partially walled and roofed with opaque paneling.

Michael Fitzsimmons testified that in 1978 he was Deputy Chief of Police for Oak Park. He related a series of extensive complaints, community outcry and studies relating to the serious crimes committed at the...

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