Lee v. Chicago Transit Authority

• Decision Date: 05 October 1990
• Docket Number: No. 1-88-0088,1-88-0088
• Citation: 205 Ill.App.3d 163,150 Ill.Dec. 26,562 N.E.2d 556
• Parties: , 150 Ill.Dec. 26 Jae Boon LEE, Administratrix of the Estate of Sang Yeul Lee, Deceased, Plaintiff-Appellee, v. CHICAGO TRANSIT AUTHORITY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 556

562 N.E.2d 556

205 Ill.App.3d 163, 150 Ill.Dec. 26

Jae Boon LEE, Administratrix of the Estate of Sang Yeul Lee, Deceased, Plaintiff-Appellee, v. CHICAGO TRANSIT AUTHORITY, Defendant-Appellant.

No. 1-88-0088.

Appellate Court of Illinois,

First District, Sixth Division.

Oct. 5, 1990.

Rehearing Denied Nov. 20, 1990.

Wildman, Harrold, Allen & Dixon, Chicago (Ruth E. VanDemark and Stanley V. Boychuck, of counsel), for defendant-appellant.

Phelan, Pope & John, Ltd., Chicago (Peter C. John and Mary Patricia Benz, of counsel), amicus curiae.

William J. Harte, Ltd., Fishman & Fishman & Saltzberg, P.C., Chicago (Michael Maloney, William J. Harte, Ltd. and Erik Gruber, of counsel), for plaintiff-appellee.

Chairman, George M. Elsener, Past Chairman, Todd A. Smith, Corboy & Demetrio, P.C., Chicago, amicus curiae Ill. Trial Lawyer's Assoc. Justice McNAMARA delivered the opinion of the state:

Plaintiff, Jae Boon Lee, administratrix of the estate of Sang Yeul Lee, brought a wrongful death action to recover damages for the death of her husband which occurred while he was on land owned by defendant, Chicago Transit Authority. Plaintiff's complaint alleged that the CTA's conduct in maintaining its third rail was either negligent or wilful and wanton, and caused decedent's death. The jury returned a verdict for plaintiff on the negligence count in the amount of $3,000,000, but reduced its award by 50 percent based on the decedent's own negligence. In response to a special interrogatory, the jury found that the CTA's conduct was not wilful and wanton. The court entered judgment on the verdict for $1,500,000. The CTA appeals from that judgment, contending that the trial court erred in denying its motions for directed verdict and for judgment notwithstanding the verdict; that improper and insufficient evidence and trial error compel a new trial; and that the jury's apportionment of fault and award of damages are not supported by the evidence.

Both the Illinois Trial Lawyer's Association and Commonwealth Edison Company have filed briefs as amicus curiae in this case. The Association urges this court to affirm the trial court's decision, while Commonwealth Edison urges us to reverse the decision.

At trial, the following information was adduced. Plaintiff testified that she and the decedent immigrated to the United States from a rural area outside of Seoul, Korea. They had two sons, Chong Yoon Lee and Jae Lee. At the time of his death, the decedent was employed at Thayer & Chandler, a manufacturer of air brushes. The decedent had a limited understanding of English, but was able to get to and from work by riding the Ravenswood "L".

On October 21, 1977, the morning preceding the accident, the decedent informed plaintiff that he planned to attend a party in the evening. Decedent apparently left the party after dark. He proceeded up Kedzie Avenue, a north/south street which intersected with the northwest-bound Ravenswood rapid transit line. At this point, he apparently proceeded into the CTA's right-of-way in order to urinate. In the process of doing so, he came into contact with the third rail, and suffered fatal injuries.

The decedent's body was found on the elevated ("L") tracks located on the CTA's Ravenswood line at or near 4700 North Kedzie Avenue. John Costantini, a Chicago Fire Department paramedic field officer, testified that the decedent lay perpendicular to the northwest-bound CTA tracks, his head pointing north. The decedent's feet were near the third rail, pointing in its direction. (The third rail carries 600 volts of electricity and provides power to the train cars as they traverse grade crossings.) The decedent's pants zipper was open, and his penis was exposed. The pathology report listed the immediate cause of death as electrocution. At the time of his death, the decedent had a 0.341 percent blood alcohol concentration which placed him in the stupor classification of intoxication.

Thomas Wolgemuth, the CTA's Director of Plant Maintenance and later its Manager of Engineering, testified that the decedent was neither permitted nor invited to be on the Kedzie "L" tracks on October 22, 1977. (Plaintiff introduced no evidence that the presence of decedent inside the Kedzie right-of-way was known to the CTA.) In order to prevent pedestrians from entering the right-of-way at grade crossings such as the one at Kedzie, the CTA developed a "pedestrian access barrier system." This system was in place in July 1976, and consisted of warning signs, right-of-way fencing, access barriers and chain link fences, and trespass barriers, also known as "jaws."

Prior to installing the "jaws" trespass barrier system, the CTA considered three alternative protective systems: gates which would remain closed except when a train was traveling through the crossing, cover boards which would cover the third rail, and catenary lines which would carry the electric current overhead.

Charles Heilman, a safety expert, testified for plaintiff that each of the above systems would have been preferable to the system employed by the CTA. Heilman concluded that the "jaws" were intrinsically unsafe and that the warning signs were insufficient. Heilman gave detailed reasons for his conclusion, but because of our view of the proceedings, it is not necessary to set forth his reasoning.

Plaintiff introduced evidence of ten prior accidents involving injuries caused by the third rail at CTA grade level crossings. Of those, one occurred at the Ravenswood crossing at Kedzie in 1974. The ten accidents spanned the period from 1948 through 1975. None of the accidents occurred after the CTA placed its "jaws" trespass barrier system at grade level crossings on the Ravenswood line.

Following the presentation of all testimony, the parties tendered instructions to the court. Plaintiff tendered an instruction based on her theory that the CTA was engaged in the activity of conducting electricity. The CTA objected to plaintiff's instruction and tendered its own instruction based on the position that the third rail was a condition, not an activity. The court found that the CTA was engaged in the activity of conducting electricity, and gave the jury plaintiff's instruction charging the CTA with the duty of ordinary care. The court refused to give the CTA's instruction.

Following deliberations, the jury returned a verdict in the sum of $3,000,000 which it reduced by 50% to account for the decedent's own negligence. The CTA's motion for directed verdict as well as its motion for judgment notwithstanding the verdict were denied.

The CTA first contends that the trial court erred in denying its motions for a directed verdict on the negligence count, and for judgment notwithstanding the verdict. In support of this contention, the CTA argues that railroads owe no duty of ordinary care to trespassers and that only an intentional and affirmative activity by a landowner gives rise to a duty of ordinary care owed to trespassers whose presence can be anticipated.

Although plaintiff argues that it was not proved that decedent was a trespasser at the time of his death, we find that the evidence establishes that he was a trespasser. A trespasser is one who enters the premises of another for his own purposes without permission, invitation or other right. (Sumner v. Hebenstreit (1988), 167 Ill.App.3d 881, 118 Ill.Dec. 888, 522 N.E.2d 343; Trout v. Bank of Belleville (1976), 36 Ill.App.3d 83, 343 N.E.2d 261.) At trial, it was established that the decedent entered the CTA's right-of-way in order to urinate. The CTA presented evidence to establish that the decedent was neither invited nor permitted to be on the right-of-way on October 22, 1977. Plaintiff presented no contrary evidence. The question of status may be decided as a matter of law if there are no factual questions present. (Lorek v. Hollenkamp (1986), 144 Ill.App.3d 1100, 99 Ill.Dec. 232, 495 N.E.2d 679.) In view of the unrebutted testimony presented by the CTA with regard to this issue, we conclude as a matter of law that at the time of his death, the decedent was a trespasser.

Generally, a railroad company owes no duty to a trespasser except to refrain from wantonly or wilfully injuring him, and to use reasonable care to avoid injury to him after he is discovered to be in peril. (Rowe v. Taylorville Electric Co. (1904), 213 Ill. 318, 72 N.E. 711; Illinois Central Ry. Co. v. Eicher (1903), 202 Ill. 556, 67 N.E. 376; Knyal v. Illinois Power Co. (1988), 169 Ill.App.3d 440, 119 Ill.Dec. 883, 523 N.E.2d 639; Grimwood v. Tabor Grain Co. (1985), 130 Ill.App.3d 708, 86 Ill.Dec. 6, 474 N.E.2d 920; Fosbury v. Aurora, Elgin & Chicago Ry. Co. (1908), 141 Ill.App. 98.) This limited duty is based on the concept that the law does not require an owner or occupier of land to anticipate the presence of persons wrongfully or unexpectedly on his land. (Corcoran v. Village of Libertyville (1978), 73 Ill.2d 316, 22 Ill.Dec. 701, 383 N.E.2d 177.) There are, however, three exceptions to this general rule of limited duty. The first is for young children who the owner knows habitually frequent the vicinity of a defective structure or dangerous agency existing on the land and who by reason of their immaturity cannot appreciate the risk involved. (Corcoran v. Village of Libertyville; Kahn v. James Burton Co. (1955), 5 Ill.2d 614, 126 N.E.2d 836.) The second exception applies to trespassers using permissive paths. (Morgan v. New York Central Ry. Co. (1927), 327 Ill. 339, 158 N.E. 724.) The third exception is for discovered trespassers. Briney v. Illinois Central R.R. Co. (1948), 401 Ill. 181, 81 N.E.2d 866; Illinois Central Ry. Co. v. Eicher.

It is obvious that neither the first exception, dealing with small children, nor the third exception, dealing with discovered trespassers, is applicable to the situation before us. At the time of his death, decedent was forty-six years old. Thus, the exception for children does not...