Young v. Chicago Transit Authority

• Decision Date: 17 December 1990
• Docket Number: No. 1-89-1929,1-89-1929
• Citation: 154 Ill.Dec. 18,568 N.E.2d 18,209 Ill.App.3d 84
• Parties: , 154 Ill.Dec. 18 Starling YOUNG, Jr., Plaintiff-Appellee, v. CHICAGO TRANSIT AUTHORITY, a municipal corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 18

568 N.E.2d 18

209 Ill.App.3d 84, 154 Ill.Dec. 18

Starling YOUNG, Jr., Plaintiff-Appellee, v CHICAGO TRANSIT AUTHORITY, a municipal corporation Defendant-Appellant.

No. 1-89-1929.

Appellate Court of Illinois First District, First Division.

Dec. 17, 1990.

Rehearing Denied March 13, 1991.

As Modified on Denial of Rehearing March 25, 1991.

Flynn, Murphy & Ryan, Chicago (Richard T. Ryan, Mark F. Smolens, of counsel), for defendant-appellant.

French Kezelis & Kominiarek, Chicago (Richard G. French, James M. Hofert, Russell P. Veldenz, Patrick B. Cage, of counsel), for plaintiff-appellee.

MODIFIED ON DENIAL OF REHEARING

Justice O'CONNOR delivered the opinion of the court:

After a jury found the Chicago Transit Authority (CTA) liable for the injuries Starling Young (Young) sustained while a passenger on a CTA bus, the trial court entered judgment on the verdict. The CTA appeals the denial of its motion to dismiss, which was based upon an alleged affirmative defense of immunity, and in addition, claims prejudicial errors.

During the evening of December 4, 1977, Young, his brother Sheldon Young, and Reginald Granderson boarded a west bound Chicago Avenue CTA bus at Chicago Avenue and State Street in Chicago, Illinois. As the men entered the bus, two unidentified women also boarded. The two unidentified women were described as "an older woman" and "a younger woman." Later, while the men and women were on the bus, one of the unidentified women shot Young in the neck. Thereafter, on November 30, 1978, Young filed his lawsuit against the CTA for negligence.

Almost eight years after Young was shot, the Illinois legislature amended section 27 of the Metropolitan Transit Authority Act, and the amendment expressly states that September 24, 1985 was its "effective date." Amended section 27 provides, in pertinent part, that:

"... Neither the Chicago Transit Authority, the members of its Board nor its officers or employees shall be held liable for failure to provide a security or police force, or if a security or police force is provided, for failure to prevent the commission of crimes by fellow passengers or other third persons or for the failure to apprehend criminals." (Ill.Rev.Stat.1987, ch. 111 2/3, par. 327.)

Pursuant to amended section 27, the CTA filed a motion to dismiss Young's cause of action based upon its alleged immunity. On November 1, 1988, the trial court denied the CTA's motion to dismiss.

Also before trial, the trial court granted Young's motion in limine to preclude evidence that Young allegedly "consumed alcohol and/or was ejected from a McDonald's restaurant." Later at trial, the court again refused evidence of the "McDonald's incident" on the grounds that it was "very remote in terms of its probative weight ... and can [sic] be very prejudicial."

On February 27, 1989, the trial commenced. At trial, evidence was elicited that the three men and the two unidentified women sat at the back of the bus; that a conversation ensued between Young and the younger woman; that the conversation angered the older woman; and that the older woman told the younger woman, or Young, or both, not to talk.

At trial, Young testified that the older woman loudly threatened to "blow him away" if he did not discontinue the conversation; that the threats continued for a period of time; that subsequently the older woman placed her right arm around the younger woman's neck; that the older woman was holding a pistol; that after approximately twenty minutes, he (Young) left his seat, walked towards the bus driver, and the older woman followed; that Sheldon Young and the younger woman were arguing; that as Sheldon Young and the younger woman continued to fight, the older woman pointed her gun at Sheldon Young; and that when Young turned back to warn Sheldon Young, the older woman shot Young in the neck. Young is now a paraplegic with partially paralyzed arms.

During the cross-examination of Young, the CTA attempted to introduce evidence that he was allegedly convicted for solicitation of prostitution in 1979. The trial court, however, ruled that questions regarding the alleged 1979 conviction were not admissible on the grounds that they were highly prejudicial and had minimal probative weight.

During Young's case-in-chief, Timothy V. O'Mahoney testified as an expert in transit security. O'Mahoney testified that he had previously worked as a security officer for the CTA; that the Chicago Avenue bus traveled through a "high crime" area; that the training CTA drivers were given regarding security matters was inadequate; that the bus driver should have used the bus telephone to call the police when he heard loud talking and lewd language; and that the bus driver should have called the police even if the talking ceased upon his request.

The bus driver testified that he heard obscene and vulgar language from the three men three times; that after each incident of vulgarity, he told the men to quiet down and they did so; that after the third "vulgar" language incident one of the women approached the front of the bus, that Young followed and asked the woman to get off the bus and have sex with him; that the woman asked Young to "please leave us alone;" and that when he heard a "bang," he curbed the bus, opened the doors and pressed the silent alarm.

After deliberating, the jury awarded Young $3,368,000.00, which was reduced by 25% for Young's negligence, leaving a total of $2,526,000.00. The trial court entered judgment upon the verdict and denied the CTA's post-trial motion. The CTA appeals both the denial of its motion to dismiss, which was based upon an alleged affirmative defense of immunity, and claimed prejudicial errors. For the reasons set forth below, we affirm the judgment of the trial court.

The CTA argues that the trial court erred in denying its motion to dismiss, which was based upon its alleged immunity pursuant to amended section 27, contending that amended section 27 should be applied retroactively. We disagree. Statutory changes are presumed to be prospective. However, the presumption of prospectivity can be rebutted by: (1) the amendment's express language; (2) "necessary implication;" (3) demonstrating that the amendment merely affects the remedy; or (4) demonstrating that the amendment merely affects procedural matters. Rivard v. Chicago Fire Fighters Union, Local No. 2 (1988), 122 Ill.2d 303, 309-310, 119 Ill.Dec. 336, 522 N.E.2d 1195, cert. denied (1988), 488 U.S. 909, 109 S.Ct. 262, 102 L.Ed.2d 250.

Initially, the CTA argues that the presumption of prospectivity is rebutted by the amendment's express language or alternatively by "necessary implication" because the legislation clearly states that the CTA should not be liable for the criminal acts of third parties. We disagree. Amended section 27 expressly states that it was effective September 24, 1985. If the legislature intended the amendment to be retroactive, it could have expressly so stated, or made the amendment effective prior to September 24, 1985. Additionally, we do not find that retroactive application by necessary implication is appropriate. Necessary implication refers to a logical necessity, meaning that no other interpretation is permitted by the words of the statute construed. In re Application of County Treasurer (1973), 14 Ill.App.3d 1062, 1066, 304 N.E.2d 9.

Further, the CTA argues that the presumption of prospectivity is rebutted by contending that amended section 27 merely affects Young's remedy, because Young's cause of action was not a vested right. In support thereof, the CTA cites Shelton v. City of Chicago (1969), 42 Ill.2d 468, 248 N.E.2d 121, cert. denied (1969), 396 U.S. 906, 90 S.Ct. 222, 24 L.Ed.2d 182, wherein the court held that 200 causes of action based upon mob violence statutes were barred, even though they were pending at the time the mob violence statutes were repealed, because "the legislature has the power to withdraw jurisdiction of the courts over statutory causes of action and the exercise of that power leaves all such causes of action where the repeal finds them." (emphasis added) (Shelton, 42 Ill.2d at 473-474, 248 N.E.2d 121.) By analogy, the CTA argues that prior to amended section 27, the right to sue the CTA, a municipal corporation, was a special statutory cause of action created by an express waiver of sovereign immunity. Consequently, the CTA contends that the legislature could repeal its waiver of sovereign immunity without infringing upon any vested rights and that, therefore, the repeal of the statutory cause of action can retroactively bar Young's cause of action. We are not persuaded by the CTA's argument because, in contrast to Shelton, Young's cause of action was not premised upon a special statutory provision that waived sovereign immunity, but rather on the fact that immunity itself had been abolished (except where provided by law) by the Illinois State Constitution of 1970, Article XIII, section 4. ¹ Because of the abolition of sovereign immunity, Young's cause of action was not pursuant to a "special statutory" remedy, but rather based upon a common law remedy.

In response, the CTA cites George v. Chicago Transit Authority (1978), 58 Ill.App.3d 692, 15 Ill.Dec. 896, 374 N.E.2d 679 as support for the proposition that "the eradication of sovereign immunity had no effect whatsoever on the CTA" and that, therefore, the right to sue the CTA is a "special statutory" cause of action. In George, the appellant argued that the elimination of tort immunity for governmental entities abolished immunity from punitive damages as well as for compensatory damages. The George court held that the CTA could not be liable for punitive damages in the absence of a statute specifically authorizing such recovery (Id. at 693, 15 Ill.Dec. 896, 374 N.E.2d 679) and, additionally, concluded "that the CTA is protected by common-law principles against punitive damages even without a statute which...