Reid by Reid v. Norfolk & Western Ry. Co., 97-2677

• Decision Date: 08 October 1998
• Docket Number: No. 97-2677,97-2677
• Citation: 157 F.3d 1106
• Parties: Charles REID, a minor, by Lindell REID, his father and next friend, Plaintiff-Appellant, v. NORFOLK & WESTERN RAILWAY COMPANY, a Virginia Company, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1106

157 F.3d 1106

Charles REID, a minor, by Lindell REID, his father and next friend, Plaintiff-Appellant, v. NORFOLK & WESTERN RAILWAY COMPANY, a Virginia Company Defendant-Appellee.

No. 97-2677.

United States Court of Appeals Seventh Circuit.

Argued Feb. 10, 1998.

Decided Oct. 8, 1998.

Kurt E. Reitz (argued), Thompson & Coburn, Belleville, IL, Russell Kenneth Benton (argued), Delano Law Offices, Springfield, IL, for Plaintiff-Appellant.

Thomas W. Alvey, Jr., Thompson & Coburn, Belleville, IL, for Defendant-Appellee.

Before CUMMINGS, ^* COFFEY and MANION, Circuit Judges.

COFFEY, Circuit Judge.

In this diversity suit, 15-year-old plaintiff-appellant Charles Reid ("Reid"), through his father, sued the defendant-appellee, Norfolk and Western Railway Company ("N & W") alleging that Reid sustained personal injuries as a result of the conduct of N & W and its agents, when he was struck by a freight train owned by N & W while trespassing on train tracks owned by N & W. The district court entered summary judgment in favor of N & W, finding that under Illinois law, Reid was not a "permissive user" of the tracks, and thus N & W did not owe Reid a duty of "ordinary care," but only a duty to refrain from engaging in "wilful and wanton" conduct, and N & W's conduct was not wilful and wanton. Reid appeals the grant of summary judgment. We affirm.

I. BACKGROUND

On August 4, 1995, between noon and 1:00 p.m., 15-year-old Charles Reid was walking through his neighborhood in Springfield, Illinois on his way to get a haircut at the "Mr. Fresh Barber Shop." At some point during his trek, Reid walked up onto railroad tracks owned and operated by N & W. ¹ The portion of track that Reid was standing upon at the time of the accident runs behind various commercial enterprises in Springfield, between the Fifth and Sixth street viaducts over which the train track traverses. There is a slight curve in the track between the Fifth and Sixth street viaducts. The defendant railroad and its employees allege that there were nearby warning signs in place on August 4, 1995, which read "Extremely Dangerous - No Trespassing - Violators will be Prosecuted - Private Property." Plaintiff, on the other hand, provided affidavits from nearby residents who attested that they had never seen these signs, and plaintiff states that these signs were not in place on August 4, 1995. Regardless of whether these signs were or were not present at the accident scene on the date in question, this area of track clearly was not an authorized track crossing point such as a sidewalk or street.

At the same time Reid ventured onto the track, a freight train owned by N & W was traveling east on the same set of tracks toward Decatur, Illinois. The train consisted of a locomotive and two tank cars, and was operated by four N & W crew members who had traveled the Jacksonville-Decatur route daily for approximately five years. The train struck Reid, and he was subsequently found lying near the track by employees of a local business. There were no witnesses to the accident, including the crewmen, who did not see Reid, and did not hear any sound suggesting the train had struck an object or a person. Reid suffered serious injuries necessitating the amputation of his right hand.

On January 11, 1996, Reid filed suit against N & W in the Circuit Court of Sangamon County, Illinois. After a bit of legal sparring between the parties at the pleadings stage, Reid filed a Second Amended Complaint and alleged two counts under Illinois common law. Initially, he alleged N & W (through its employees) operated the freight train negligently. Secondly, Reid averred that N & W operated the train in a wilful and wanton manner. Specifically, Reid claimed N & W acted negligently, and wilfully and wantonly, primarily by operating the train at an excessive speed, failing to keep a proper lookout, and failing to warn by sounding its whistle.

N & W removed the case to federal court on grounds of diversity jurisdiction. Discovery followed, including depositions of the N & W crew members. Engineer Jerry Floyd testified he had previously seen persons around the track at the accident site, but that on the day of the accident, he observed nobody near the track as he rounded the curve at the Fifth Street viaduct. Conductor Patrick Riley stated that he saw people on the track "rarely or occasionally," but specifically recalled looking out the front windows of the locomotive at the alleged time and location of Reid's accident, and not spotting anyone on the tracks. Brakeman Timothy Roach testified he was looking at the track in the area rounding the curve and saw only "clear track," but acknowledged he may have taken his eyes off the track following the curve. Because none of the crew members saw or heard Reid, they saw no necessity to sound the train's whistle as it allegedly approached him. Mr. Floyd also testified that railroad regulations require the crew to sound the whistle when they see an individual on the tracks, but there is nothing in the record to indicate the whistle must be activated when rounding or approaching the curve if no one is spotted on the tracks.

Following discovery, N & W moved for summary judgment. It argued, among other things, that Reid was a trespasser and thus, N & W did not owe Reid a duty of "ordinary care" as alleged in Count I of Reid's amended complaint ("the negligence count"). With respect to Count II ("the wilful and wanton count"), N & W argued for summary judgment against Reid's allegations of wilful and wanton conduct because he failed to offer proof that N & W's actions in the operation of the train could be classified as wilful and wanton.

In response, Reid did not dispute the defendant's characterization of him as a trespasser. Rather, he pointed to various exceptions to the characterization of a trespasser for purposes of defining the appropriate standard of care, including the "permissive user" exception, under which N & W would have owed Reid a duty of ordinary care if Reid was a "permissive user" of the property (the particular area of track). Thus, Reid argued that because he was a "permissive user" of the railroad track, the proper duty was one of ordinary care, and the trial court committed error because material issues of fact exist regarding whether N & W fulfilled its duty of ordinary care towards Reid.

The district judge examined each count separately. With respect to the negligence count, the judge noted that Reid did not dispute the defendant's characterization of him as a "trespasser," and found Reid was not a "permissive user." The court concluded N & W owed Reid only a duty to refrain from wilfully and wantonly injuring him, not a duty of ordinary care as alleged in the negligence count. With respect to the wilful and wanton count, the court found that because Reid "admits that none of the four crew members saw or heard [him] on the railroad tracks prior to the accident, ... [N & W] did not know of [his] presence on the tracks, [and] could not have [acted wilfully and wantonly]." Based upon the totality of this reasoning, the court granted N & W's motion for summary judgment on both counts and entered a final judgment against Reid. Reid appealed. We affirm.

II. ISSUE

Reid appeals the district court's grant of summary judgment and advances a sole issue for consideration. He contends that the district court incorrectly concluded that Reid was not a "permissive user" of N & W's property for purposes of establishing the appropriate standard of care owed to Reid by N & W.

III. DISCUSSION

A. Standard of Review ²

We review de novo the district court's grant of summary judgment. Porter v. Whitehall Labs. Inc., 9 F.3d 607, 612 (7th Cir.1993). Summary judgment is appropriately granted if the party seeking summary judgment demonstrates through its pleadings and other record materials filed with the court--pleadings, depositions, answers to interrogatories, admissions on file, and affidavits--that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant has met its burden, the nonmovant must set forth specific facts showing a genuine issue for trial, and may not rely upon mere allegations or denials of the pleadings. See Fed.R.Civ.P. 56(e); Gonzalez v. Ingersoll Milling Mach. Co., 133 F.3d 1025, 1031 (7th Cir.1998). In determining whether a genuine issue of material fact exists, we consider the evidence in the light most favorable to the nonmovant. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

B. Whether Reid was a "permissive user" for purposes of establishing the appropriate standard of care owed to Reid by N & W. ³

In order to state a cause of action for negligence, a plaintiff must establish "the existence of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach." Ward v. K mart Corp., 136 Ill.2d 132, 140, 143 Ill.Dec. 288, 554 N.E.2d 223, 226 (1990). The first element, the existence of a duty, is a question of law to be decided by the court. See Rodriguez v. Norfolk & Western Ry. Co., 228 Ill.App.3d 1024, 1037-38, 170 Ill.Dec. 708, 593 N.E.2d 597, 607 (1992). Under Illinois law, the nature of the duty a landowner owes to an entrant upon its land depends upon whether the entrant is a trespasser, licensee or invitee. See Miller v. General Motors Corp., 207 Ill.App.3d 148, 153-54, 152 Ill.Dec. 154, 565 N.E.2d 687, 690 (1990). ⁴ The question of status may be determined as a matter of law if there are no factual questions presented. Lorek v. Hollenkamp, 144 Ill.App.3d 1100, 1102, 99 Ill.Dec. 232, 495 N.E.2d 679, 681 (1986) (citation omitted). Here, Reid does not dispute N & W's contention that he was a trespasser when he walked onto the railroad...