Vega v. Northeast Ill. Reg. Commuter R.R.

• Decision Date: 13 February 2007
• Docket Number: No. 1-05-1888.,No. 1-05-3169.,1-05-1888.,1-05-3169.
• Citation: 309 Ill.Dec. 101,863 N.E.2d 733
• Parties: Tanya VEGA and Jose Vega, Indiv. and as Parents and Next Friends of Bryanna Vega, a Minor, Plaintiffs-Appellants, v. NORTHEAST ILLINOIS REGIONAL COMMUTER RAILROAD CORPORATION, d/b/a Metra; and Chicago Park District, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

863 N.E.2d 733

309 Ill.Dec. 101

Tanya VEGA and Jose Vega, Indiv. and as Parents and Next Friends of Bryanna Vega, a Minor, Plaintiffs-Appellants, v. NORTHEAST ILLINOIS REGIONAL COMMUTER RAILROAD CORPORATION, d/b/a Metra; and Chicago Park District, Defendants-Appellees.

No. 1-05-1888.

No. 1-05-3169.

Appellate Court of Illinois, First District, First Division.

February 13, 2007.

Power Rogers & Smith, PC, Chicago (Thomas G. Siracusa, of counsel), for Appellant.

Sue-Ann Rosen and Michael Noland of Metra Law Department, Chicago; Jay S. Judge and Kathryn James Anderlik, of Judge, James & Kujawa, LLC, Park Ridge (Jay S. Judge, Kathryn James Anderlik and Sue-Ann Rosen, of counsel), for Appellee Northeast Illinois Regional Commuter R.R. Corp.

Jeanne G. Toft of Chicago Park District, Chicago, for Appellee Chicago Park District.

Justice CAHILL delivered the opinion of the court:

Plaintiffs Tanya and Jose Vega appeal from orders of summary judgment entered in favor of defendants Northeast Illinois Regional Commuter Railroad Corp., doing business as Metra, and the Chicago Park District. Plaintiffs' eight-year-old daughter Bryanna was struck and injured by a Metra train as she crossed a railroad track adjacent to Ridge Park, a city park, on July 26, 2000. She reached the track by going around a fence that stopped short of fully barricading the park grounds from the railroad track. Plaintiffs filed a 12-count complaint, alleging negligence against Metra, the park district and the City of Chicago. Plaintiffs voluntarily dismissed the city as a defendant. Metra and the park district filed motions for summary judgment that the trial court granted. Plaintiffs appeal. We affirm.

Plaintiffs alleged in their complaint that Metra erected or caused to be erected fencing between its tracks and Ridge Park, that the fence did not run the entire distance between the Metra tracks and Ridge Park and that Metra knew or should have known that children crossed the unfenced portion of its right-of-way to access Ridge Park. Plaintiffs alleged that Metra was negligent in failing to fence or otherwise barricade adequately its tracks and right of way, failing to erect signs or warn pedestrians of the dangers of crossing its tracks and right-of-way and failing to keep a proper lookout. Plaintiffs alleged that Metra showed "utter indifference to or conscious disregard for the safety to the public" and committed "wilful and wanton acts and omissions." Plaintiffs made essentially the same allegations against the park district, adding claims that the district knew or should have known that children and other pedestrians crossed the unfenced portion of the right-of-way to access Ridge Park.

The evidence included discovery depositions. Bryanna, age eight in 2000, testified that on the day of the accident she was going to the park with her uncles, David and Malcolm. The tracks were between the park and the home of Bryanna's grandmother, the uncles' mother. Bryanna said she was running across the tracks when she was hit by the train. She said she did not remember having crossed the tracks at that location other than on the day of the accident.

Bryanna's uncle David Warren, about age 13 in 2000, testified that he had taken Bryanna to the park more than five times before the day of the accident, using the shortcut more than once. David said when he went to the park with his brothers, they would "hop over the fence" to reach the tracks. Bryanna's uncle Malcolm Warren, age 10 in 2000, said he would take either 96th Street where there were crossing gates or "the shortcut" across the tracks when going to the park. Plaintiffs neither presented nor elicited testimony that anyone else used the shortcut or that the boys always or usually used the shortcut.

Charlotte Warren, Bryanna's grandmother, said when Bryanna's mother Tanya Vega was a child, "everybody" used to go through the opening in the fence and cross the tracks to get to the park. She said there was no hole or opening in the fence in 2000. Tanya said she was last in Ridge Park about 20 years earlier. Tanya said that when she was younger, she and others entered the park by passing through an opening or hole in a fence next to the railroad tracks and crossing the tracks. Plaintiffs neither presented nor elicited testimony that the shortcut was known to these women or other residents of the area.

Tracy Hurley was the engineer on the Metra train that struck Bryanna. He said that he had not seen people crossing the tracks to go to or from the park before that day. Hurley said he could not recall a specific instance when he saw pedestrians cross in front of the train in that area.

John MacAskill, a supervisor of Ridge Park, testified that he had worked at Ridge Park between 1974 and 1989. He said he then returned to the park as a supervisor and had worked there for nine years before the accident. MacAskill said when Bryanna was injured, a chain-link fence ran along the Metra right-of-way and the east end of Ridge Park, beginning at 96th Street and ending around 97th Street. He said a fence had been in the same location when he worked at the park between 1974 and 1989. MacAskill said he had not seen anyone maintaining or painting the fence and, to his knowledge, no park district employees worked on the fence. He said he was unaware that pedestrians crossed the tracks to enter the south end of the park. He testified that in 2001, after the accident, a wrought iron fence was installed around the perimeter of the park. He said the new fence was erected by GF Structures, but he did not know if it had been hired by Metra or the park district. On cross-examination MacAskill said he was told by his former supervisor, now deceased, that Metra had installed the fence in place at the time of the accident. He said that neither he nor, to his knowledge, his coworkers knew of a hole in the fence when he worked at Ridge Park between 1974 and 1989.

The evidence included as plaintiffs' exhibits eight color photographs of the track, fence and surrounding areas. The photos were taken after the accident but before a new fence was erected around the perimeter of the park in 2001. None of the photos shows a well-worn path leading to or from the railroad right-of-way. The evidence also included the park district's "plot plan" drawing of Ridge Park. Neither the plan nor the deposition testimony established which entity owned, installed or maintained the fence between the tracks and the park.

At a hearing on Metra's motion for summary judgment, plaintiffs argued that the existence of the path across the tracks meant that Bryanna was a "permitted" or "intended" user, that the end of fencing adjacent to the path served as an unmarked crossing and that the legal status of Bryanna was not that of a trespasser. The trial court concluded that Bryanna was a trespasser under section 18c-7503(a) of the Illinois Commercial Transportation Law (Transportation Law) (625 ILCS 5/18c-7503(a) (West 2000)). The Transportation Law prohibits walking on railroad property on or along the right of way except at public crossings. 625 ILCS 5/18c-7503(a) (West 2000). The trial court entered an order of summary judgment in favor of Metra and continued the proceedings as to the park district. The court later entered an order of summary judgment in favor of the park district.

The appeals were consolidated at plaintiffs' request. Three months after plaintiffs filed their appellate brief, Nelson v. Northeast Illinois Regional Commuter R.R. Corp., 364 Ill.App.3d 181, 301 Ill.Dec. 19, 845 N.E.2d 884 (2006), was filed. The issue in Nelson was whether Metra owed a duty of care under the frequent trespass doctrine to a 15-year-old girl who was injured by a train as she crossed a railroad track. Nelson, 364 Ill.App.3d at 184, 301 Ill.Dec. 19, 845 N.E.2d 884. Plaintiffs sought and received leave of this court to cite Nelson as supplemental authority. Plaintiffs filed a supplemental brief where they argued for the first time that Bryanna was a frequent trespasser.

Plaintiffs first argued: "Because Nelson has established a duty of ordinary care owed by the landowner when the frequent trespasser doctrine is applicable, summary judgment must be reversed." Plaintiffs claimed that "[t]he frequent trespasser doctrine establishes a duty of ordinary care even if the danger was open and obvious" and "[t]he frequent trespasser doctrine establishes a duty of ordinary care even with the existence of the [Transportation Law]." Plaintiffs next contended "Defendant-Appellee's arguments regarding the law set forth in Nelson are without merit." Plaintiffs claimed that "Nelson establishes that the [Local Governmental and Governmental Employees] Tort Immunity Act [(Tort Immunity Act) (745 ILCS 10/3-102(a) (West 2002))] only covers dangerous conditions on the property, not activities on the property, and thus Metra cannot be immunized by the [Tort Immunity] Act." Plaintiffs also maintained that defendants' arguments were "wholly erroneous because a triable issue of material fact exists as to whether a path existed leading to where Bryanna Vega crossed the tracks" and "whether Bryanna Vega should be considered a frequent trespasser."

Because plaintiffs' allegation that Bryanna was a frequent trespasser was argued for the first time on appeal, it is waived. Haudrich v. Howmedica, Inc., 169 Ill.2d 525, 536, 215 Ill.Dec. 108, 662 N.E.2d 1248 (1996). Plaintiffs cannot bootstrap a frequent trespass theory into their case on appeal because the frequent trespass doctrine as articulated in Nelson was not a new enunciation of the law. A frequent trespass theory could have been argued by plaintiffs at the outset of this litigation. The court in Nelson relied on the established principles stated in McKinnon v. Northeast Illinois Regional Commuter R.R. Corp., 263 Ill.App.3d 774, 777, 200 Ill.Dec. 405, 635 N.E.2d 744 (1994), and the cases cited in it, including Miller v. General...