Wisnasky v. CSX Transp., Inc., NO. 5-17-0418

CourtUnited States Appellate Court of Illinois
Writing for the CourtJUSTICE BARBERIS delivered the judgment of the court, with opinion
Citation151 N.E.3d 678,440 Ill.Dec. 206,2020 IL App (5th) 170418
Parties Scott WISNASKY, as Next Friend and Kin and Administrator of Dr. W., Deceased, and A.W., Deceased, and Administrator of the Estate of Alyssa Sewell, Deceased, and as Father and Next Friend of Dy. W., Minor, Plaintiff-Appellee, v. CSX TRANSPORTATION, INC.; CSX Corporation; John Bradley; Vandalia Railroad Company; Pioneer Railcorp, Inc.; Pioneer Railroad Services, Inc. ; The Estate of Crystal Anna; Vandalia Civic Advancement Association, Inc.; Vandalia Lions Club, Inc., and The City of Vandalia, Illinois, Defendants (The City of Vandalia, Illinois, Defendant-Appellant).
Docket NumberNO. 5-17-0418
Decision Date06 April 2020

2020 IL App (5th) 170418
151 N.E.3d 678
440 Ill.Dec.
206

Scott WISNASKY, as Next Friend and Kin and Administrator of Dr. W., Deceased, and A.W., Deceased, and Administrator of the Estate of Alyssa Sewell, Deceased, and as Father and Next Friend of Dy. W., Minor, Plaintiff-Appellee,
v.
CSX TRANSPORTATION, INC.; CSX Corporation; John Bradley; Vandalia Railroad Company; Pioneer Railcorp, Inc.; Pioneer Railroad Services, Inc. ; The Estate of Crystal Anna; Vandalia Civic Advancement Association, Inc.; Vandalia Lions Club, Inc., and The City of Vandalia, Illinois, Defendants

(The City of Vandalia, Illinois, Defendant-Appellant).

NO. 5-17-0418

Appellate Court of Illinois, Fifth District.

Rule 23 order filed March 13, 2020
Motion to publish granted April 6, 2020
Opinion filed April 6, 2020


William P. Hardy, of Hinshaw & Culbertson LLP, of Springfield, Charles Pierce, of Pierce Law Firm, P.C., of Belleville, and Joseph A. Bleyer, of Bleyer and Bleyer, of Marion, for appellant.

Gregory L. Shevlin, of Cook, Bartholomew, Shevlin & Cook, LLP, of Belleville, and Robert L. Pottroff (pro hac vice) and Nathan L. Karlin (pro hac vice), of Pottroff & Karlin LLC, of Manhattan, Kansas, for appellee.

JUSTICE BARBERIS delivered the judgment of the court, with opinion

151 N.E.3d 682
440 Ill.Dec. 210

¶ 1 This cause comes before this court as an interlocutory appeal pursuant to Illinois Supreme Court Rule 308 (eff. July 1, 2017). Plaintiff-appellee, Scott Wisnasky, as administrator of the estates of Dr. W., A.W., and Alyssa Sewell, and as father of Dy. W., filed a wrongful death and personal injury action against the above-named defendants after a tragic accident, which claimed the lives of two of his children, Dr. W. and A.W., and seriously injured a third, Dy. W., at a railroad crossing in Vandalia, Illinois. The accident also took the life of Crystal Anna, the children's mother, and her adult child, Alyssa Sewell. The circuit court of Fayette County certified two questions for permissive interlocutory review after it denied the defendant-appellant's, the City of Vandalia, Illinois (Vandalia), motion to dismiss that was filed in response to plaintiff's second amended complaint. The two questions certified for appellate consideration are as follows:

"1. Whether, assuming all well pled facts of Plaintiff's Second Amended Complaint (incorrectly titled ‘Complaint at Law’) are true, [Vandalia] is entitled to absolute immunity on the counts brought against [it] under one or more of the following provisions of the Local Governmental Tort Immunity Act: 745 ILCS 10/4-102, 10/2-201, 10/2-103, 10/2-104, 10/2-105 and/or 10/3-104 [;] [and]

2. Whether, assuming all well pled facts of Plaintiff's Second Amended Complaint (incorrectly titled ‘Complaint at Law’) are true, [Vandalia] owed a duty to protect Crystal Anna and the occupants of her vehicle from the hazards associated with the railroad crossing where the accident occurred."

¶ 2 After this court initially denied Vandalia's petition for leave to appeal pursuant to Illinois Supreme Court Rule 308 (eff. July 1, 2017), Vandalia filed a petition for leave to appeal with the Illinois Supreme Court. The supreme court denied Vandalia's petition but entered a supervisory order directing this court to vacate its denial, allow the application for leave to appeal, and address the certified questions. Accordingly, we now issue this opinion.

¶ 3 I. BACKGROUND

¶ 4 The following facts were taken from the second amended complaint1 filed by

151 N.E.3d 683
440 Ill.Dec. 211

plaintiff on January 25, 2016, the pleadings, and other supporting documents. We limit the recitation to facts germane to the certified questions presented for our consideration.

¶ 5 Vandalia Lions Club, Inc. (Vandalia Lions Club), and Vandalia have jointly organized the annual community Halloween parade for more than 50 years. The parade typically draws more than 2000 spectators each year, which causes traffic congestion near the parade route due to road closures. There is a railroad crossing at the intersection of Sixth Street and Main Street (Sixth Street Crossing), located one block from the parade route, which is approximately 70 feet from gate-to-gate and contains two sets of train tracks—the mainline and the spur.

¶ 6 For the limited purpose of assisting the reader in understanding the layout of the Sixth Street Crossing, as described below, we take judicial notice of the following aerial photograph from Google Maps. See People v. Clark , 406 Ill. App. 3d 622, 633-34, 346 Ill.Dec. 386, 940 N.E.2d 755 (2010) (holding that maps from major online sites such as Google Maps are appropriate for judicial notice); see also People v. Stiff , 391 Ill. App. 3d 494, 503-04, 328 Ill.Dec. 664, 904 N.E.2d 1174 (2009) (taking sua sponte judicial notice on appeal of the distance from one house to another using Google Maps).

Google Maps, https://www.google.com/maps/@38.9619045,-89.0973731,109m/data=!3m1!1e3 (last visited Jan. 2, 2020). [https://perma.cc/28V8-6GAV].

¶ 7 Sixth Street runs north and south, and Main Street runs east and west parallel to the mainline track. Going in a southernly direction, Sixth Street first crosses Main Street, then the spur track and, finally, after several feet, crosses the mainline track. Both the northbound and southbound approaches to the tracks are

151 N.E.3d 684
440 Ill.Dec. 212

protected by crossing gates with flashing lights. A section of the spur track runs diagonally through Main Street and continues through the Sixth Street Crossing until the spur track reaches the mainline track east of the intersection. The record indicates that CSX Transportation, Inc., owns the mainline track and Vandalia owns a section of the spur track.

¶ 8 According to plaintiff's second amended complaint, the Sixth Street Crossing has several layers of asphalt patches that create a "steep incline or hump." Due to distance and the differences in road surface and elevation, the mainline track is less visible to southbound traffic. As a result, when approaching the spur track, a southbound motorist may not recognize that the mainline track is located within the same crossing. The complaint alleged that Vandalia was aware that it was the most dangerous crossing in Vandalia's city limits.

¶ 9 The second amended complaint also provides an alleged description of the events leading to the underlying collision, which are summarized as follows. On the rainy night of October 30, 2014, Crystal Anna drove four of her children, Alyssa Sewell, A.W., Dr. W., and Dy. W., from Greenville, Illinois, to Vandalia for the Halloween parade. At 6:49 p.m., Crystal Anna was approaching the Sixth Street Crossing on Sixth Street following a line of traffic to the parade area. As she was crossing the spur track, the flow of traffic suddenly stopped, the flashing lights activated, and the gates closed. Crystal Anna, unaware of an approaching train on the mainline track, made a hurried attempt to drive her vehicle forward away from the spur track. However, she drove her vehicle onto the mainline track and was struck by an eastbound freight train traveling approximately 46 miles per hour. The train collided with the passenger side of Crystal Anna's vehicle, instantly killing Alyssa Sewell, A.W., and Dr. W. Crystal Anna and Dy. W., both seriously injured, were transported to local hospitals where Crystal Anna died, leaving Dy. W. as the sole survivor of the collision.

¶ 10 The second amended complaint contains multiple negligence counts against Vandalia; the Vandalia Lions Club; CSX Transportation, Inc., and it parent company, CSX Corporation (collectively CSX); the Estate of Crystal Anna; Pioneer Railcorp, Inc.; Vandalia Railroad Company, a subsidiary of Pioneer Railcorp, Inc.; Pioneer Railroad Services, Inc.; and the Vandalia Civic Advancement Association, Inc. (Vandalia Civic Advancement Association). As a general liability claim, plaintiff alleged that all defendants had a duty to exercise reasonable care "to avoid injuring or killing members of the public." Plaintiff also specifically alleged in counts II, III, IV, V, and X that Vandalia, as a railroad defendant,2 had breached various statutory duties and proximately caused the deaths of Alyssa Sewell, A.W., Dr. W., and Crystal Anna and the serious injuries Dy. W. suffered. Additionally, in count VIII, plaintiff specifically alleged that Vandalia, as a municipal corporation, performed or failed to perform, through its employees and agents, negligent acts where it:

"a) created and allowed a temporary unsafe condition to exist on its property in the form of traffic congestion at or around the subject crossing; b) failed to notify CSX regarding the plans for the Halloween Parade; c) failed to prepare a master list of key contacts including railroad officials; d) failed to have a written safety plan and emergency response
151 N.E.3d 685
440 Ill.Dec. 213
plan including notification of railroad and other entities; e) failed to
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