Malcome v. TOLEDO, PEORIA & WESTERN RY.

• Citation: 349 Ill.App.3d 1005,811 N.E.2d 1199,285 Ill.Dec. 320
• Decision Date: 16 June 2004
• Docket Number: No. 4-03-0805.,4-03-0805.
• Parties: Christine MALCOME, Individually and as Special Administratrix of the Estate of Daniel E. Malcome, Deceased, Plaintiffs-Appellants, v. TOLEDO, PEORIA & WESTERN RAILWAY CORPORATION, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

811 N.E.2d 1199

349 Ill.App.3d 1005

285 Ill.Dec. 320

Christine MALCOME, Individually and as Special Administratrix of the Estate of Daniel E. Malcome, Deceased, Plaintiffs-Appellants, v. TOLEDO, PEORIA & WESTERN RAILWAY CORPORATION, Defendant-Appellee.

No. 4-03-0805.

Appellate Court of Illinois, Fourth District.

June 16, 2004.

John L. Morel (arguer), John L. Morel, P.C., Bloomington, for Christine Malcome.

James P. McCarthy, Paul Van Lysebettens (arguer), Catherine Carlson, Gunty & McCarthy, Chicago, for Toledo, Peoria & Western Railway. Justice COOK delivered the opinion of the court:

Plaintiffs, Christine Malcome, individually and as special administratrix of the estate of Daniel Malcome, appeal the McLean County circuit court's order dismissing the complaint against defendant, Toledo, Peoria & Western Railway Corporation (Toledo). We affirm.

I. BACKGROUND

At approximately 9:30 p.m. on November 29, 1999, Christine's husband, Daniel Malcome, was driving south along Road 1980 East in McLean County. A train belonging to Toledo was stopped on a track that crossed the road at right angles, and the third of five consecutive flatcars blocked the road. Daniel crashed into the flatcar and died as a result. Christine brought this negligence action individually and as the administratrix of Daniel's estate. The complaint alleged that Toledo was negligent in failing to provide an adequate warning of the stopped train and in creating an extra hazardous condition.

Toledo moved to dismiss for failure to state a cause of action under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2002)). In particular, Toledo asserted that the complaint failed to allege a duty. The trial court granted the motion but allowed Christine to amend her complaint, which she did. Toledo again moved to dismiss, and the court granted the motion, dismissing the amended complaint with prejudice. Christine filed a motion to reconsider, which the court denied. This appeal followed.

II. ANALYSIS

A motion to dismiss under section 2-615 challenges the legal sufficiency of the complaint. Bajwa v. Metropolitan Life Insurance Co., 208 Ill.2d 414, 421, 281 Ill.Dec. 554, 804 N.E.2d 519, 525 (2004). Dismissal is appropriate only where, viewing the allegations in the light most favorable to the plaintiff, it is clear that no set of facts can be proved under the pleadings that will entitle the plaintiff to relief. Bajwa, 208 Ill.2d at 421, 281 Ill.Dec. 554, 804 N.E.2d at 525. We review de novo a circuit court's decision to dismiss under section 2-615. People ex rel. Ryan v. World Church of the Creator, 198 Ill.2d 115, 120, 260 Ill.Dec. 180, 760 N.E.2d 953, 956 (2001).

The key issue in this case is whether Christine adequately alleged a duty on the part of Toledo. A complaint alleging negligence must set forth facts establishing that defendant owed plaintiff a duty, breached that duty, and thereby proximately caused plaintiff injury. Bajwa, 208 Ill.2d at 421, 281 Ill.Dec. 554, 804 N.E.2d at 526. The existence of a legal duty is a question of law to be determined by the court. Bajwa, 208 Ill.2d at 422, 281 Ill.Dec. 554, 804 N.E.2d at 526.

There have been enough instances over the years of motor vehicles colliding with standing trains that the courts have developed a special rule to address the situation. Illinois's version of this rule is that "a train stopped at a crossing is generally held to be adequate notice and warning of its presence to any traveler who is in the exercise of ordinary care for his own safety, and the railroad is under no duty to give additional signs, signals[,] or warnings." Dunn v. Baltimore & Ohio R.R. Co., 127 Ill.2d 350, 357, 130 Ill.Dec. 409, 537 N.E.2d 738, 741 (1989). This rule is subject to the following exception: if "special circumstances" are present, then the railroad may have a duty to provide warnings beyond the mere presence of the train. Dunn, 127 Ill.2d at 357, 130 Ill.Dec. 409, 537 N.E.2d at 741. The rule regarding stopped trains has its detractors. One federal court has described it as "a legal dinosaur, which, once out, tramples twentieth century negligence law and then lumbers back to its dark cave only to await another victim." Hurst v. Union Pacific R.R. Co., 958 F.2d 1002, 1003 (10th Cir.1992). The rule calls to mind the discredited "stop, look, and listen" approach that once denied recovery to a motorist who failed to take every precaution before daring to cross a railway. See Baltimore & Ohio R.R. Co. v. Goodman, 275 U.S. 66, 48 S.Ct. 24, 72 L.Ed. 167 (1927),overruled in Pokora v. Wabash Ry. Co., 292 U.S. 98, 54 S.Ct. 580, 78 L.Ed. 1149 (1934)

. In placing on the motorist the burden to avoid an accident, the stopped-train rule resembles a rule of contributory negligence. Trevino v. Union Pacific R.R. Co., 916 F.2d 1230, 1235 (7th Cir.1990). Our supreme court has held, however, that the rule is concerned not with contributory negligence, but with a railroad's duty; it was therefore not affected by this state's switch to a comparative-negligence regime. Dunn, 127 Ill.2d at 367,

130 Ill.Dec. 409,

537 N.E.2d at 745. The Dunn case, like this one, involved a motorist (in that case on a motorcycle) who crashed into a stopped railroad car at approximately 9:30 p.m. Dunn, 127 Ill.2d at 354,

130 Ill.Dec. 409,

537 N.E.2d at 739. His survivors alleged in part that the railroad was negligent in failing to warn motorists of the stopped train under the circumstances. These circumstances included darkness, vehicular traffic, a lack of lighting, and the grades surrounding the crossing. The trial court dismissed the negligence counts, and the supreme court ultimately affirmed the dismissal, holding that the complaint did not allege special circumstances sufficient to remove the case from the general rule that a stopped train warns motorists of its presence. Dunn, 127 Ill.2d at 362-63,

130 Ill.Dec. 409,

537 N.E.2d at 743.

We find that Dunn is squarely on point and controls this case. If anything, the allegations in Christine's complaint have less substance than those in Dunn. The essential factual allegations of Christine's complaint reduce to this: Daniel was driving at night and hit Toledo's flatcar. This is insufficient to establish special circumstances under Dunn; Christine has failed to allege a duty and therefore to state a claim for relief.

Christine attempts to distinguish this case from Dunn on the basis that in Dunn considerable discovery had occurred before the case was dismissed. It is true that Christine sought discovery before her amended complaint was dismissed and never got the depositions or interrogatory responses she requested. On the other hand, she has given no indication of how the lack of discovery has affected her ability to plead a sufficient cause of action. This is not the type of case in which the defendant has exclusive control of the facts needed to plead a cause of action. See Bryson v. News America Publications, Inc., 174 Ill.2d 77, 110, 220 Ill.Dec. 195, 672 N.E.2d 1207, 1224-25 (1996). The types of things that would qualify as special circumstances so as to avoid the rule in Dunn generally are as available to Christine as to Toledo. See, e.g., Petricek v. Elgin, J. & E. Ry. Co., 21 Ill.App.2d 60, 66, 157 N.E.2d 421, 424 (1959)

(First District) (blinding snowstorm). Facts that Christine points to on appeal as tending to show special circumstances — the heights of the track and roadway, Daniel's line of vision as he drove, the fact that his speedometer was lodged at around 50 miles per hour — come from her own investigation. We conclude that the lack of discovery does not excuse Christine's failure to state a cause of action.

Christine also...