Lee v. Chicago Transit Authority

• Decision Date: 22 October 1992
• Docket Number: No. 71304,71304
• Citation: 178 Ill.Dec. 699,605 N.E.2d 493,152 Ill.2d 432
• Parties: , 178 Ill.Dec. 699 Jae Boon LEE, Adm'x of the Estate of Sang Yeul Lee, Deceased, Appellant, v. The CHICAGO TRANSIT AUTHORITY, Appellee.
• Court: Illinois Supreme Court

Page 493

605 N.E.2d 493

152 Ill.2d 432, 178 Ill.Dec. 699

Jae Boon LEE, Adm'x of the Estate of Sang Yeul Lee Deceased, Appellant, v. The CHICAGO TRANSIT AUTHORITY, Appellee.

No. 71304.

Supreme Court of Illinois.

Oct. 22, 1992.

Rehearing Denied Dec. 7, 1992.

William J. Harte, Ltd. (William J. Harte and Erik D. Gruber, of counsel), and Fishman & Fishman & Saltzberg, P.C. (Michael F. Maloney, Michael Barone and Clifford Gately, of counsel), Chicago, for appellant.

Todd A. Smith, Corboy & Demetrio, P.C., Chicago, for amicus curiae Ill. Trial Lawyers Association.

Peter C. John and Mary Patricia Benz, Pope & John, Ltd., Chicago, for amicus curiae Commonwealth Edison Co.

Charles H. Cole, Cole, Grasso, Fencl & Skinner, Ltd., Chicago, for amicus curiae Ill. Ass'n of Defense Trial Counsel.

Wildman, Harrold, Allen & Dixon, Chicago (Ruth E. VanDemark, Stanley V. Boychuck and George J. Brown, of counsel), Chicago, for appellee.

Stephen J. Mattson and Lee Ann Conti, Mayer, Brown & Platt, Chicago, for amicus curiae Illinois Telephone Association.

Lord, Bissell & Brook, Chicago (Hugh C. Griffin, Thomas J. Healey and David R. Schmidt, of counsel), for amicus curiae Illinois Railroad Association.

Coffield, Ungaretti & Harris, Chicago (J. Timothy Eaton, of counsel), for amicus curiae State Farm Fire & Casualty Co.

Justice FREEMAN delivered the opinion of the court:

Plaintiff, Jae Boon Lee, administratrix of the estate of Sang Yeul Lee, brought a wrongful death action in the circuit court of Cook County against defendant, Chicago Transit Authority (CTA), to recover damages for the death of her husband, who was electrocuted while on land owned by the CTA. Count I of plaintiff's fourth-amended complaint alleged that the CTA was negligent in failing to guard and warn of the existence of its street-level electrified third rail; count II alleged willful and wanton conduct. The jury returned a verdict in the amount of $3 million for plaintiff on the negligence count, but reduced the award by 50% based on decedent's own negligence.

The CTA appealed, contending that the trial court erred in denying its motions for directed verdict and judgment notwithstanding the verdict; that insufficient and improper evidence and trial error compelled a new trial; and that the jury's apportionment of fault and award of damages were not supported by the evidence. The appellate court reversed (205 Ill.App.3d 163, 150 Ill.Dec. 26, 562 N.E.2d 556), and entered judgment in favor of the CTA. This court granted plaintiff's petition for leave to appeal (134 Ill.2d R. 315).

The Illinois Trial Lawyers Association, the Illinois Association of Defense Trial Counsel, and Commonwealth Edison have filed briefs as amici curiae. The Illinois Trial Lawyers Association urges this court to affirm the trial court's decision; the Illinois Association of Defense Trial Counsel and Commonwealth Edison urge us to affirm the decision of the appellate court.

The issue presented for review is whether the jury was properly instructed that the CTA owed a duty of ordinary care to the decedent. We hold that the CTA did owe such a duty. Accordingly, we reverse.

FACTS

The following facts were adduced at trial. Plaintiff's decedent, Sang Yeul Lee (Lee), a 46-year-old Korean immigrant who was unable to read English, attended a party on the evening of October 21, 1977. On his way home, Lee entered a CTA right-of-way at the intersection of Kedzie Avenue and the Ravenswood railway line in Chicago, apparently, in order to urinate. The right-of-way was posted with signs, placed on a utility shed and on sawhorses at each side of the tracks, warning "Danger," "Keep Out," and "Electric Current." Parallel to the tracks and approximately 6 1/2 feet from the sidewalk lay a street-level third rail. The purpose of the rail, which carried 600 volts of electricity, was to supply power to trains as they passed through the street-level crossing. The CTA had laid uneven-edged boards, about six inches apart, called "jaws" on its right-of-way next to the sidewalk in order to make pedestrians aware that they were not meant to walk in that area. The uneven surface of the boards, also known as "cattle boards," makes it impossible for cattle and difficult for persons to walk atop them. The "jaws" at Kedzie Avenue extended between the end of the third rail and the sidewalk and were also placed on either side of the rail and between the tracks. Lee, whose blood-alcohol level of 0.341 placed him in the "stupor" classification of intoxication, made contact with the third rail and suffered fatal injuries. Thomas Wolgemuth, manager of facilities engineering and maintenance for the CTA, testified that Lee was neither permitted nor invited to be on the Kedzie Avenue CTA tracks at the time of his death. Plaintiff did not rebut this testimony.

Wolgemuth further testified that there are 19 grade, or street-level, crossings on the CTA transit lines where trains are powered by a third rail. At two of the grade crossings, located at Maple and Isabella Streets in Wilmette, the CTA installed safety measures consisting of automatic chain link fence-type gates across the track when the line was converted from overhead to third rail power in 1973. Before installing the "jaws" trespass system on the Ravenswood line in 1976, the CTA considered three alternative protective systems: gates such as those at the Wilmette grade crossings, which would remain closed except when a train was in the station; boards, which would cover the third rail on all but the train side; and catenary lines, which would carry the electric current overhead.

Plaintiff introduced evidence of 10 prior accidents which occurred between 1948 and 1975 on the 3.2-mile segment of track where the CTA's third rail runs at grade level. One of the accidents occurred at the Ravenswood/Kedzie crossing in 1974, when a youth fell from a fence he was scaling onto the rail. The CTA offered to stipulate that it had notice of the accidents on that section of its line prior to 1977. Plaintiff, however, refused the stipulation. The CTA also presented evidence that there were no accidents on the section between July 1976, when it installed the "jaws," and October 1977, when Lee was electrocuted.

Charles Heilman, plaintiff's expert witness, testified that the segment of track in question is the only one in the United States or Canada where an electrically charged grade-level third rail is unguarded, uncovered or unfenced.

At the completion of testimony, the parties tendered instructions to the court. Plaintiff's instruction, Illinois Pattern Jury Instructions, Civil, No. 120.03 (2d ed. 1971) (IPI Civil 2d No. 120.03), was based on the theory that at the time of the accident, the CTA was engaged in the activity of conducting The court specifically instructed the jury that "the C.T.A. owes the trespasser no duty unless his presence on the tracks should have been reasonably anticipated, then the C.T.A. owes him the duty not to willfully or wantonly cause him injury. The C.T.A. was under a duty not to [injure] Sam [sic ] Yeul Lee, however, if the C.T.A. knows or to facts known to it should reasonably anticipate the presence of Sam Yeoul [sic ] Lee in the place of danger, it is then under the duty to use ordinary care not to injury [sic ] Sam Yeoul [sic ] Lee."

[178 Ill.Dec. 704] electricity. The CTA objected to the submission of this instruction, tendering in its stead IPI Civil 2d No. 120.02, reflecting the CTA's position that the electrified third rail was a condition, not an activity, on the land. Finding, however, that the CTA was engaged in the activity of conducting electricity, the [152 Ill.2d 445] court rejected the CTA's instruction, and instructed the jury in accordance with IPI Civil 2d No. 120.03.

Following deliberations, the jury found that the CTA had breached its duty of care and was thus negligent. In response to a special interrogatory, the jury also found that the CTA's conduct was not willful or wanton. The jury returned a verdict for plaintiff which was proportionately reduced to reflect decedent's own negligence.

On appeal, the appellate court held that the trial court improperly gave the jury IPI Civil 2d No. 120.03, which states a landowner's duty of ordinary care to an anticipated trespasser when that trespasser is injured by an activity on the land. Rather, according to the appellate court, the trial court should have instructed the jury according to IPI Civil 2d No. 120.02, which states the duty of the landowner to refrain from willful and wanton conduct towards a trespasser who is injured by a condition on the land. Because the jury had specifically found that the CTA's conduct was not willful or wanton, the appellate court reversed without remanding for a new trial.

DISCUSSION

Negligence

Traditionally, the liability of a landowner in Illinois has been delineated in terms of the duty owed to persons present on the land. Whether a duty exists is a question of law for the court to determine. (Gouge v. Central Illinois Public Service Co. (1991), 144 Ill.2d 535, 542, 163 Ill.Dec. 842, 582 N.E.2d 108.) Courts have found the duty of a landowner to vary according to whether the entrant on the landowner's property was classified as an invitee, a licensee or a trespasser, with the greatest care due to the invitee and the least to the licensee or trespasser. However, in 1984, the Premises Liability Act (Act) (Ill.Rev.Stat.1991, ch. 80, par. 301 et seq.) abolished the common law distinction between invitees and licensees. Section 302 of the Act states that "[t]he duty owed to such entrants is that of reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them." Because the Act is not retroactive, and because plaintiff does not dispute that Lee was a trespasser at the time of his death, we consider the Act only insofar as it reaffirms the views of the legislature concerning trespassers....