Eskew v. Burlington Northern & Santa Fe Ry. Co. , 2011 IL App (1st) 93450 ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Eskew v. Burlington Northern & Santa Fe Ry. Co., 2011 IL App (1st) 093450Appellate Court GARY ESKEW and JUDY HENDERSON, as Co-Administrators of the
Caption Estate of SCOTT ESKEW, Deceased, Plaintiffs-Appellees, v. THE
BURLINGTON NORTHERN AND SANTA FE RAILWAY
COMPANY, a Foreign Corporation, and THE NORTHEAST ILLINOIS
REGIONAL COMMUTER RAILROAD CORPORATION, an Illinois
Corporation d/b/a METRA, Defendants-Appellants.
District & No. First District, First Division
Docket No. 1-09-3450
Filed September 30, 2011
Held In an action for the fatal injuries suffered by a legally blind user of a
(Note: This syllabus commuter train service when he was struck by the train he usually used
constitutes no part of as it arrived at the station on a different track, the judgment for the
the opinion of the court administrators of decedent’s estate assigning 95% of the liability to
but has been prepared defendants and 5% to decedent was affirmed, and the trial court did not
by the Reporter of abuse its discretion in denying defendants’ request for an evidentiary
Decisions for the hearing on the issue of juror misconduct.
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 06-L-0616; the Hon.
Review Donald Suriano, Judge, presiding.
Judgment Affirmed.
Counsel on Raymond H. Groble III and Brian George, both of Daley Mohan Groble,
Appeal P.C., of Chicago, for appellants.
Michael W. Rathsack, Jay Paul Deratany, and Patrick P. Degnan, all of
Chicago, for appellees.
Panel PRESIDING JUSTICE HOFFMAN delivered the judgment of the court,
with opinion.
Justices Karnezis and Rochford concurred in the judgment and opinion.
OPINION
¶1 The plaintiffs, Gary Eskew and Judy Henderson, as co-administrators of the estate of
Scott Eskew (Eskew), deceased, brought this action against the defendants, the Burlington
Northern and Santa Fe Railway Company (BNSF) and the Northeast Illinois Regional
Commuter Railroad Corporation d/b/a Metra (Metra), alleging that their negligence resulted
in the death of Eskew. The jury returned a verdict for the plaintiffs in the amount of $5
million, assigning 85% of the liability to BNSF, 10% of the liability to Metra, and 5%
contributory negligence to Eskew. Based on this verdict, the circuit court entered judgment
for $4,750,000 in favor of the plaintiffs, and the defendants have appealed. For the reasons
that follow, we affirm the judgment of the circuit court.
¶2 The evidence presented at trial established that Eskew, who was legally blind, habitually
rode the 1:14 p.m. train from Berwyn to Chicago in order to begin his 3 p.m. shift as a
security guard at the Art Institute of Chicago. Eskew was struck and killed by the eastbound
commuter train as he attempted to cross from the platform on the north side of the tracks to
the southern platform, where the 1:14 p.m. train usually arrived. The commuter train was
operated by BNSF under a purchase of service agreement with the Northeast Illinois
Regional Commuter Railroad Corporation, which does business as Metra.1
¶3 The Berwyn station is in a legislatively designated “quiet zone,” which means that the
train’s horn should be sounded only in emergencies. There are three train tracks, the northern
track, the center track, and the southern track, which are adjacent to each other and run east
and west. The Berwyn station building is located on the south side of the tracks, between
1
Although BNSF has attached to its reply brief a photocopy of a document purporting to
indicate that BNSF also entered into a purchase of service agreement with the Commuter Rail
Division of the RTA, we note that this document is not contained in the record on appeal and,
therefore, may not be considered. See Whittmanhart, Inc. v. CA, Inc., 402 Ill. App. 3d 848, 852, 932
N.E.2d 520 (2010) (recognizing that the record on appeal cannot be supplemented by attaching
documents to the appendix of a brief).
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Grove Avenue on the west and Oak Park Avenue on the east. Speakers for the public
announcement system are located on each side of the station building. Announcements
regarding track and schedule changes emanate from these speakers on the southern platform.
A small shelter is located on the northern platform, directly north of the Metra station
building. There are no speakers on the northern platform. Yellow “tactiles” border the
pavement along the edge of the northern and southern platforms. Though passengers could
hear the bells and see the signal lights when the gates went down, the gates would sometimes
stay down and the bells would start to ring again. When commuters are on the north platform
and the crossing gate is down, that gate is behind the waiting passengers. There is no gate
inside the platform area.
¶4 The 1:14 p.m. eastbound train to Chicago arrived on the southern track of the Berwyn
station on 90% of its runs, and passengers regularly boarded that train from the southern
platform. Occasionally, the eastbound train ran on the northern tracks, requiring passengers
to board from the northern platform. On the date of the accident, the 1:14 p.m. commuter
train was rerouted to the northern track due to an unexpected westbound freight train that was
traveling on the center track. The warning devices at the Grove Avenue crossing were
working, and the gates on the north and south sides of the crossing were in the down
position, and the bell signals had been activated for 31 seconds before the commuter train
reached the Grove Avenue crossing. Also, the train’s bell was ringing as it approached the
crossing, but the horn had not been sounded.
¶5 Eskew’s brother, Gary, who also is legally blind, testified that he was familiar with
Eskew’s daily route to the Berwyn train station. Gary stated that Eskew took small steps and
walked slowly, as they had been taught. Gary also testified that he was familiar with the
Berwyn station. Though the announcements could be heard, they could not always be
understood. This was particularly true if you were standing on the north platform.
¶6 Eskew’s wife, Heidi, testified that she had seen her husband wait at the crossing when
a train was there. She stated that Eskew would turn his head to check whether a train was
coming. He also listened for the horn or whistle to determine if there was a train. Heidi’s
mother, Judith Henderson, confirmed that Eskew walked very carefully. Eskew’s neighbor,
Anthony Castrogiovanni, testified that Eskew was very methodical and always took the same
route to the train station. Castrogiovanni stated that Eskew stopped for the lights and bells
at Grove Avenue.
¶7 Valerie Fitzgibbons, the BNSF station agent, had seen Eskew in the waiting area on
previous occasions and was aware that he had taken the 1:14 p.m. train regularly during the
prior two years. She knew that he was legally blind and had observed him holding a paper
very close to read it and using a small device to see down the track. According to
Fitzgibbons, Eskew walked hesitantly with a careful gait and did the same thing every day.
¶8 Fitzgibbons testified that, on the day of the accident, she was informed about the track
change for the commuter train just minutes before it was due to arrive. She then made two
identical announcements to advise waiting passengers that the eastbound train to Chicago
would board from the north rather than the south platform, stating “please cross over to the
north platform.” She made the first announcement before the freight train arrived, and she
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made the second announcement while the freight train was passing through the station.
Fitzgibbons acknowledged that she did not inform the waiting passengers that two trains
were coming into the station, and she was aware that the announcements could not always
be heard when a train was going by.
¶9 Fitzgibbons stated that, after making the two announcements, she called the BNSF train
conductor and advised her that passengers on the south side of the station needed to get to
that train. Fitzgibbons testified that she asked the conductor to hold up or slow and wait for
those passengers to cross. According to Fitzgibbons, she specifically asked the conductor to
hold up before Grove Avenue, and the conductor acknowledged that request and agreed to
wait. The commuter train arrived at the station between 5 to 15 seconds after the freight train
had passed.
¶ 10 Beverly Thompson, the BNSF conductor on the incoming commuter train, testified that,
on the day of the accident, she received a call from Fitzgibbons, who told her that there were
passengers standing on the wrong side of the tracks. Thompson testified that she told
Fitzgibbons that the train would wait for passengers to cross over to the north side of the
tracks. She then asked the train engineer to stop short of Oak Park Avenue, but she did not
tell the ticket agent that they were going to stop before Oak Park Avenue, rather than Grove
Avenue.
¶ 11 Thompson further testified that she saw a man, whom she later learned was Eskew,
standing just north of the yellow “tactile” strip on the northeast corner of the Grove Avenue
crossing. He was looking east, and she did not know who he was. When the freight train
cleared the station, the commuter train was almost at the edge of Grove Avenue, and the
gates were down. As she was moving back to the vestibule, she heard the sound of the train
striking Eskew. When she got off the train, she recognized Eskew as a man who had ridden
the train before and was sight disabled. Thompson testified that Eskew was not in a position
of safety when he was standing inside the pedestrian gate on the platform.
¶ 12 Engineer John Szychlinski testified that he was advised by Thompson that there were
passengers waiting on the south side of the tracks. According to Szychlinski, the train was
to stop short of the island circuit at the Oak Park Avenue crossing in order to allow the gates
to “time out” and go up, thus permitting waiting passengers to cross the tracks safely at Oak
Park Avenue. Szychlinski stated that he started to slow the train about 300 feet west of Grove
Avenue as the freight train was clearing Grove. He saw a person, later determined to be
Eskew, standing close to the Grove Avenue crossing. Eskew was facing east, with his back
to the approaching commuter train, and then turned his head to the south but did not move.
Szychlinski testified that Eskew went out of his view as the commuter train started to occupy
the crossing. At the east end of the crossing, he heard a bang and put the train into emergency
mode. In Szychlinski’s opinion, Eskew was in a place of safety when he was standing on the
walkway or the very edge of the platform.
¶ 13 Trainmaster Timothy Leppert testified that an engineer or conductor is required to sound
the horn if they see a passenger who is not in a place of safety. That circumstance is
considered to be an emergency, and the city’s “quiet zone” rule prohibiting the use of the
horn does not apply. In addition, the conductor can tell the engineer to stop.
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¶ 14 Several passengers testified that it was difficult to hear and understand the
announcements on the north platform. Katherine Zack testified that she was on the north
platform on the day of the accident, and she saw Eskew standing on the sidewalk next to the
tracks as the commuter train started to cross Grove Avenue. According to Zack, Eskew then
stepped onto the first rail and was hit by the train.
¶ 15 The plaintiffs presented expert testimony from Kenrick Van Wyk, an acoustical engineer,
who testified that, in his opinion, the passing freight train and the lack of speakers on the
north side of the tracks interfered with the intelligibility of the announcements made over the
public address system. Van Wyk also expressed his opinion that, because the intelligibility
of the announcement had been reduced, it was more likely than not that the message was
confused, causing Eskew to cross the tracks. During Van Wyk’s testimony, the jury heard
a recording of an announcement by a station agent at the Berwyn station, which was overlaid
with a recording of a freight train to reflect the circumstances that existed on the northern
platform prior to the accident. Van Wyk explained that the lack of speakers on the north
platform rendered Fitzgibbons’ announcement less intelligible in that location. According
to Van Wyk, if the word “north,” which contains soft consonants, was eliminated from that
announcement, Eskew likely would have understood that he was supposed to cross over the
tracks to the other platform. Van Wyk acknowledged, however, that he had no way of
knowing what Eskew actually heard prior to the accident.
¶ 16 Daniel Melcher, the plaintiffs’ expert in transportation safety engineering, testified that
BNSF owns the Berwyn train station and platform, which are located on that railroad’s right-
of-way. BNSF operates its own freight trains and Metra commuter trains, and the train
personnel are BNSF employees. The station’s public address system was paid for by Metra
at the time it was installed, but is operated jointly by BNSF and Metra. Therefore,
announcements can be made by the station agent who is on-site, or they can be made
remotely by the “Voice of Metra.”
¶ 17 Melcher explained that, when the crossing gates are down, Grove Avenue is part of the
Berwyn station platform because that is where the train stops and is one of the places where
passengers board and alight from the train. The crossing gates are outside of the station and
are designed to control through traffic. There are no pedestrian gates inside the station area.
¶ 18 Melcher opined that the Berwyn station is dangerous and a high-risk train-pedestrian
location. In describing the functionality of the crossing devices, Melcher stated that the bells
begin ringing when the signal has been activated, which is about 30 seconds before the train
is due to arrive. The gates begin to move down about five seconds later. When the gates are
in the down position, the bells stop because they are not required; the gates warn that a train
is approaching. The bells remain silent as the train travels through the crossing and begin
sounding again when it has cleared the crossing and the gates go back up.
¶ 19 According to Melcher, the ringing bells do not provide sufficient warning to passengers
who are inside the platform area, particularly where two trains are traveling through the
station. Melcher explained that, if a second train is approaching the station at about the same
time that the first train has departed and cleared the station, a blind person would not know
whether the ringing bells indicate that the first train has left and it is safe to cross the tracks
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or that a second train is arriving. Melcher stated that these auditory signals could indicate that
it is clear to cross the tracks because the train has left the station. In Melcher’s opinion, these
signals create a hazard because there is no difference in the tone of the warning bells and
there is no physical cue, such as a gate, to inform a pedestrian of an approaching train.
¶ 20 Melcher also expressed his opinion that the lack of speakers on the north platform
violated accepted standards of transportation safety care, and the public address system
should have been sufficient to inform passengers on the north platform that they did not need
to cross. In particular, Melcher stated that passengers on the north platform received a
garbled message, which was not sufficient to advise Eskew of the track change.
¶ 21 Melcher further testified that the hazardous condition existing at the Berwyn station
could be addressed by installation of a channeling device, comprised of a simple fence with
signs, that would direct people on the platform who hear a “change track” announcement to
walk eight feet out of their way to a spot behind the crossing gate. If the gate is in the down
position, it provides a warning that a second train is coming. Melcher described this
channeling device as “a cheap and simple option,” which is used at all CTA stations with
grade crossings. Melcher also described another solution, consisting of the installation of a
second gate in the platform area to guide the movement of passengers who are already in the
station, but he stated that this would be a more expensive option.
¶ 22 Melcher stated that he had no criticism of the pedestrian gates that were outside of the
station area, and he indicated that they were very effective and were appropriately designed
to control through traffic, as were the bell signals. However, he was of the opinion that the
inadequacy of the public address system and the failure to have a channeling device or
additional platform barrier contributed to cause the accident.
¶ 23 James Sotille, the plaintiffs’ railroad safety expert, testified that, if the train conductor
believed that Eskew was standing in a dangerous location, she was obligated to instruct the
engineer to stop the train. In addition, Sotille expressed his opinion that the train crew should
have sounded the horn if Eskew was not in a place of safety. In Sotille’s opinion, the
communication between Fitzgibbons and Thompson regarding stopping the train was
inappropriate because it did not allow waiting passengers to cross the tracks safely.
¶ 24 The defendants presented the expert testimony of Clayton Weaver, a civil engineer, who
testified that the Illinois Commerce Commission (ICC) does not govern the platform areas,
which are controlled by BNSF. In addition, Weaver acknowledged that announcements over
the public address system can be made by the station agent or by Metra. Weaver further
testified that the speakers installed at the Berwyn station were placed on the south side of the
tracks because that is where most of the inbound trains stop and is where people go to wait
for trains. According to Weaver, the public address system conformed to engineering
standards, and the warning devices at the Grove Avenue crossing were adequate and were
consistent with applicable engineering requirements. Weaver stated that he believed the
additional pedestrian gate recommended by Melcher would not comply with track clearance
requirements, and the installation of such a gate would limit the maneuverable space to
approximately 12 inches. Weaver expressed his opinion that the channeling device
recommended by Melcher also would violate the clearance standards and would leave a 30-
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inch gap at the edge of the platform.
¶ 25 Brian Heikkila, the defendants’ railroad consultant, opined that the communication
between Fitzgibbons and Thompson involved the routine exchange of pertinent information
and was appropriate. Heikkila also testified that there was no need to sound the commuter
train’s horn because Eskew was observed to be standing in a position of safety on the
northern platform at the east side of Grove Avenue. Heikkila noted that Thompson’s last
announcement was made while the freight train was passing through the station, and he
agreed that it would be less than ideal if passengers on the north platform heard only snippets
of the announcements.
¶ 26 Bernie Morris, who formerly worked as a chief railroad engineer for the ICC, testified
that crossing gates are designed to protect automobiles and pedestrians. Morris agreed that
the sidewalks along Grove Avenue are part of the platforms of the Berwyn station, and he
stated that the safety devices at the crossing are adequate. In addition, Morris confirmed that
the ICC does not govern station platforms.
¶ 27 The plaintiffs’ complaint, as finally amended, alleged that BNSF was negligent in that
it (1) failed to adequately communicate to commuters a change in the track being utilized by
the approaching eastbound train, (2) failed to sound the train horn or whistle when
circumstances required, (3) failed to stop the train before Grove Avenue, despite knowledge
that passengers on the platform needed to cross the tracks, (4) failed to provide the additional
care required of a common carrier having knowledge that its passenger was physically
disabled, (5) failed to have in place an adequate public address system to warn pedestrians
on the north side of the platform, (6) made improper announcements on the public address
system, causing pedestrians on the platform to cross the tracks when the gates were down,
(7) failed to have in place adequate communication policies and procedures to provide
employees with clear instructions during schedule changes and when passengers were located
on the wrong platform, and (8) failed to properly locate platform barriers to prevent
pedestrians from crossing the tracks when a train was proceeding.
¶ 28 The plaintiffs’ claims against Metra were confined to negligence in its use and operation
of the public address system and were predicated on (1) the failure to adequately
communicate to commuters a change in the track being utilized by the approaching
eastbound train, and (2) the failure to adequately communicate schedule changes to
commuters and the station ticket agent.
¶ 29 At the conclusion of the trial, the jury returned a verdict for the plaintiffs in the amount
of $5 million, assigning 85% of the total liability to BNSF, 10% of the liability to Metra, and
5% contributory negligence to Eskew. The circuit court entered judgment for $4,750,000 in
favor of the plaintiffs. The court subsequently denied the defendants’ posttrial motion, as
well as their motion requesting an evidentiary hearing to determine whether the jury’s
deliberations and verdict were compromised by juror misconduct. This appeal followed.
¶ 30 The issues raised by the defendants on appeal fall into four general categories: (1)
improper jury instructions, (2) erroneous evidentiary rulings, (3) the improper denial of a
directed verdict in favor of Metra, and (4) the erroneous denial of the motion for an
evidentiary hearing on the issue of juror misconduct.
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¶ 31 We initially address the defendants’ claims that the trial court committed reversible error
in instructing the jury. A litigant has the right to have the jury instructed on each theory that
is supported by the evidence. Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 100,
658 N.E.2d 450 (1995). Jury instructions are considered proper where they fairly, fully, and
comprehensively informed the jury as to the relevant principles. Leonardi, 168 Ill. 2d at 100.
Because the determination of whether to give a jury instruction is a matter within the
discretion of the trial court, its decision will not be disturbed on review absent an abuse of
that discretion. Leonardi, 168 Ill. 2d at 100. An abuse of discretion occurs only if “no
reasonable person would take the view adopted by the trial court.” Dawdy v. Union Pacific
R.R. Co., 207 Ill. 2d 167, 177, 797 N.E.2d 687 (2003).
¶ 32 The defendants first assert that the trial court erred by instructing the jury that a common
carrier owes the highest duty of care to its passengers. According to the defendants, because
Eskew was not boarding a train but was walking toward the place where he normally caught
the 1:14 p.m. eastbound train, he was merely a pedestrian and could not be considered to be
a passenger at the time of the accident. We cannot agree.
¶ 33 A common carrier must exercise the highest degree of care to its passengers. Katamay
v. Chicago Transit Authority, 53 Ill. 2d 27, 29-30, 289 N.E.2d 623 (1972); Skelton v.
Chicago Transit Authority, 214 Ill. App. 3d 554, 572, 573 N.E.2d 1315 (1991). A contractual
relationship between passenger and carrier begins when the passenger has presented himself
at the proper place to be transported with the intention of becoming a passenger and is then
either expressly or impliedly accepted by the carrier for transportation. Skelton, 214 Ill. App.
3d at 572. The person must be at some place which is under the control of the carrier and
provided for passengers, such as the waiting room or platform at the station, so that the
carrier may exercise the high degree of care imposed upon it. Skelton, 214 Ill. App. 3d at 572.
Whether the uncontroverted facts establish the relationship of carrier and passenger is a
question of law for the court to determine. Skelton, 214 Ill. App. 3d at 573.
¶ 34 Here, it is undisputed that, immediately before Eskew attempted to cross the tracks, he
was standing on the platform in a place where passengers routinely boarded and alighted
from commuter trains. This area was within the sole control of the defendants, as evidenced
by the fact that the crossing gates were lowered in the down position. In addition, the
evidence reflects that Eskew would not have had to move in order to board the eastbound
train and that the passengers who were waiting on the south platform had been advised to
cross over the tracks in order to board the train from the north platform. Also, despite their
assertion that Eskew’s intent was “in dispute,” the defendants have admitted both in the trial
court and on appeal that Eskew intended to board the 1:14 p.m. eastbound train. Thus, the
evidence established that Eskew was standing in a place that had been provided for
passengers and was under the control of the defendants and that he intended to catch his
regular train into the city. In light of these circumstances, we find no abuse of discretion in
the trial court’s decision to instruct the jury that a common carrier owed its passengers the
highest duty of care. See Katamay, 53 Ill. 2d at 32; Skelton, 214 Ill. App. 3d at 573.
¶ 35 Next, the defendants argue that the court committed reversible error in refusing to
instruct the jury that the duty of ordinary care was owed with regard to allegations relating
to the condition and design of the Berwyn station. This argument is without merit.
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¶ 36 First, we note that, although the defendants requested that the jury be instructed that the
standard of ordinary care applied because Eskew was not a passenger, neither defendant
tendered an ordinary care instruction based on the allegations relating to the physical aspects
of the station or the public address system. As a result, this issue has been forfeited on
appeal. See Auton v. Logan Landfill, Inc., 105 Ill. 2d 537, 549, 475 N.E.2d 817 (1984).
¶ 37 Second, even if this issue had been preserved for appeal, such an instruction would not
have been warranted. The defendants correctly assert that the duty of a carrier to provide
reasonably safe depots, platforms, and approaches for the use of passengers requires the
exercise of only ordinary care. Davis v. South Side Elevated R.R. Co., 292 Ill. 378, 384, 127
N.E. 66 (1920); Skelton, 214 Ill. App. 3d at 573. However, the ordinary care standard
controls the conduct of a common carrier when the claim for recovery is predicated on a
theory of premises liability, and the issue is the safety of the premises themselves, such as
where injury resulted from a defect or other dangerous condition in the station or platform.
See Skelton, 214 Ill. App. 3d at 573-74.
¶ 38 In arguing that the allegations relating to the lack of an adequate public address system
and sufficient platform barriers should be governed by the standard of ordinary care, the
defendants entirely misconstrue the applicability of the premises liability rule set forth above.
The plaintiffs did not allege that the failure to provide adequate speakers and channeling
devices or barriers on the north platform created an inherently dangerous condition in the
premises themselves. Rather, the failure to provide such devices was alleged to support the
claim that the defendants failed to properly warn of and protect against the risk of injury to
a passenger created by a moving train. The standard of ordinary care does not apply where,
as here, a passenger is struck and killed by a train as it moves into a station and the claim for
recovery is based upon allegations of negligence in the operation of the train. Skelton, 214
Ill. App. 3d at 573-74. Accordingly, even if an ordinary care instruction had been requested,
the trial court would have been justified in refusing it.
¶ 39 The defendants also contend that the trial court committed reversible error by instructing
the jury that the defendants owed Eskew an additional duty of care based on the fact that he
suffered from a visual disability. In support, the defendants claim that such a duty is imposed
only where the passenger has been accepted for carriage and the common carrier is aware that
the passenger suffers from a disability that increase the dangers of travel. See Chevalier v.
Chicago Transit Authority, 338 Ill. App. 119, 86 N.E.2d 838 (1949); Burke v. Chicago &
Northwestern R.R. Co., 108 Ill. App. 565 (1902).
¶ 40 The determination of what issues have been raised by the evidence is within the
discretion of the trial court. Leonardi, 168 Ill. 2d at 100. The giving of an instruction is
warranted as long as it is supported by some evidence in the record, even if the evidence is
insubstantial. Leonardi, 168 Ill. 2d at 100-01. On appeal, a trial court will not be reversed
“for giving faulty instructions unless they clearly misled the jury and resulted in prejudice
to the appellant.” Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d
260, 274, 775 N.E.2d 964 (2002).
¶ 41 In this case, the plaintiffs presented evidence that Fitzgibbons knew that Eskew was
visually disabled and that he routinely caught the 1:14 p.m. train at the Berwyn station. In
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addition, Thompson knew that Eskew was sight disabled and had ridden that train before.
Before the accident, Thompson saw a man standing near the Grove Avenue crossing, but she
said she did not recognize him to be Eskew because he was facing east. Based on this
evidence, the trial court determined that the jury should be instructed regarding the additional
duty owed by a common carrier to a passenger that is known to be physically disabled.
¶ 42 Even if we were to conclude that this evidence was not sufficient to justify an instruction
on the additional duty owed to disabled passengers, we cannot discern how the defendants
might have been prejudiced by the trial court’s decision. Considering the nature of Eskew’s
visual disability, the additional duty of care, if applicable, required the defendants to ensure
that auditory signals and physical barriers were adequate to protect a visually impaired
passenger from the risk of being struck by a moving train. The precautionary measures that
the defendants could have taken to satisfy this duty include: providing an adequate public
address system to allow clear and intelligible warnings of schedule and track changes,
sounding the train’s horn as it approached the station, stopping the train in advance of the
Grove Avenue station to allow waiting passengers to cross to the north platform safely, and
providing platform barriers to prevent passengers from crossing the tracks when a train is
moving into the station. While the failure to take such precautions would establish a breach
of the heightened duty owed to passengers with disabilities, it also would support a verdict
against the defendants based on the duty owed by a common carrier to its passengers in
general. Consequently, any possible error in instructing the jury that the defendants owed
Eskew an additional duty of care based on his visual disability would not have resulted in
prejudice to the defendants, and the jury’s verdict is not subject to reversal on this ground.
¶ 43 The defendants also claim that the trial court committed reversible error by instructing
the jury regarding Eskew’s careful habits and that this error was compounded by the court’s
refusal of an instruction advising that Eskew’s attempt to cross the tracks while a warning
bell was audible constituted a statutory violation. We review both claims of instructional
error under the abuse of discretion standard. See Leonardi, 168 Ill. 2d at 100.
¶ 44 In reviewing the propriety of the careful habits instruction, we note that the question of
whether Eskew had exercised ordinary care for his own safety was one of the pivotal issues
in the case. At trial, the testimony of Eskew’s family members and a neighbor established
that he was very methodical and always took the same route when walking to the train and
that he walked carefully and took slow, small steps. This testimony was admitted without
objection or a request for a limiting instruction, and the trial court instructed the jury that it
could consider that evidence when deciding whether Eskew had used ordinary care for his
own safety.
¶ 45 In arguing that the careful habits instruction was improper, the defendants rely on
Frankenthal v. Grand Trunk Western R.R. Co., 120 Ill. App. 3d 409, 413, 458 N.E.2d 530(1983), which addressed the admissibility of testimony regarding the careful habits of the
decedent and held that such evidence is admissible to establish the decedent’s due care prior
to the accident only when there are no eyewitnesses to the accident. This rule is premised on
the principle that, where there are competent eyewitnesses who observed the incident, habit
evidence becomes unnecessary and should not be admitted. See Plank v. Holman, 46 Ill. 2d
465, 469-70, 264 N.E.2d 12 (1970); see also Grewe v. West Washington County Unit District
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No. 10, 303 Ill. App. 3d 299, 306-07, 707 N.E.2d 739 (1999) (recognizing this “longstanding
rule” in dicta).
¶ 46 The plaintiffs dispute the applicability of this rule of necessity and cite several cases
stating that Illinois courts have adopted Federal Rule of Evidence 406 (Fed. R. Evid. 406),
which permits the admission of habit evidence, regardless of the presence of eyewitnesses.
See Bradfield v. Illinois Central Gulf R.R. Co., 137 Ill. App. 3d 19, 23, 484 N.E.2d 365(1985), aff’d on other grounds, 115 Ill. 2d 471, 505 N.E.2d 331 (1987); Alvarado v. Goepp,
278 Ill. App. 3d 494, 496-97, 663 N.E.2d 63 (1996); Hajian v. Holy Family Hospital, 273
Ill. App. 3d 932, 942-43, 652 N.E.2d 1132 (1995).
¶ 47 We need not determine the continued validity of the rule of necessity described above
because the testimony regarding Eskew’s careful habits was admitted without objection. In
reaching this conclusion, we reject the defendants’ assertion that the challenged instruction
was improper because the testimony of Eskew’s careful habits was elicited to explain “how
a visually impaired person was able to function without the use of a seeing-eye dog or a
walking stick.” As previously noted, the defendants did not request a limiting instruction
directing the jury to consider the habit testimony for that purpose only. See Davis v. Kraff,
405 Ill. App. 3d 20, 33, 937 N.E.2d 306 (2010). We find no abuse of discretion in the trial
court’s decision to issue the careful habits instruction.
¶ 48 The defendants also challenge the trial court’s refusal to instruct the jury regarding
Eskew’s statutory duty, as follows:
“[n]o pedestrian shall enter *** or traverse over a railroad grade crossing or
pedestrian walkway crossing a railroad track when an audible bell *** is operational
giving warning of the presence, approach, passage, or departure of a railroad train.”
¶ 49 The trial court properly refused the proposed instruction because it was not warranted by
the evidence and would have confused the jury. The instruction tendered by the defendants
sets out the statutory duty of a pedestrian who is confronted by closed crossing gates and an
audible warning bell at a grade crossing; it does not define the duty of a passenger who is
standing on a station platform. There was no evidence that Eskew had attempted to traverse
the crossing before he reached the platform. Rather, the evidence affirmatively established
that Eskew was waiting on the platform and that he intended to catch his regular train, which
was scheduled to arrive at 1:14 p.m. Thus, in deciding how to apportion the relative fault, the
jury was charged with the task of evaluating Eskew’s conduct as a passenger on the train
platform rather than as a pedestrian. In light of these facts, we agree that giving the tendered
instruction would have created confusion and could have been misleading to the jury.
Therefore, we find no abuse of discretion in the trial court’s refusal of this instruction. See
Malek v. Lederle Laboratories, 125 Ill. App. 3d 870, 872, 466 N.E.2d 1038 (1984).
¶ 50 The defendants next argue that the trial court abused its discretion in making certain
evidentiary rulings. The admission of evidence is a matter within the sound discretion of the
trial court, and its decision will not be reversed on appeal unless that discretion has been
clearly abused (Leonardi, 168 Ill. 2d at 92), such as where “no reasonable person would take
the view adopted by the trial court” (Dawdy, 207 Ill. 2d at 177).
¶ 51 Evidence must be relevant to be admissible at a trial. Voykin v. Estate of DeBoer, 192 Ill.
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2d 49, 57, 733 N.E.2d 1275 (2000); Ford v. Grizzle, 398 Ill. App. 3d 639, 646, 924 N.E.2d
531 (2010). Evidence is relevant when it has a tendency to prove a fact in controversy or
render a matter in issue more or less probable. In re A.W., 231 Ill. 2d 241, 256, 897 N.E.2d
733 (2008).
¶ 52 The defendants assert that, because the grade crossing devices near the Berwyn station
had been approved by the ICC, the trial court erred in (1) excluding evidence that those
devices were adequate as a matter of law and (2) permitting the plaintiffs to present evidence
that additional platform barriers were necessary. In support of this assertion, the defendants
rely primarily on Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 649 N.E.2d
1323 (1995), which held that the ICC’s investigation of a crossing and approval of a
particular safety device creates a conclusive legal presumption that the device is adequate and
appropriate, precluding the plaintiffs from asserting that the railroad should have installed
other warning devices. Espinoza, 165 Ill. 2d at 121.
¶ 53 The defendants’ reliance on Espinoza is misplaced because the ICC regulates only those
devices controlling people on the public way. The public’s use of the street and sidewalk
over the crossing is controlled by gates and bells, which are outside the station and protect
pedestrians and the occupants of automobiles who are traversing the crossing while traveling
to some other destination. Those gates do not control and are not intended to protect
passengers who are standing on the platform awaiting an incoming train. Here, the plaintiffs
did not allege that the warning devices at the Grove Avenue crossing were inadequate or
were not functioning. Rather, the plaintiffs claimed that the safety and warning devices on
the platform were inadequate. These claims were predicated on traditional negligence
principles as opposed to the violation of ICC regulations. Thus, the fact that the crossing
devices were compliant with ICC regulations was not relevant (see In re A.W., 231 Ill. 2d at
256), and the plaintiffs were not barred from presenting evidence that additional safety
precautions were necessary to protect passengers on the platform.
¶ 54 The defendants also argue that the trial court erroneously precluded them from
introducing evidence that the design and construction of the Berwyn station complied with
the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101 et seq. (2000)). In
support of this contention, the defendants claim that, because schedule and track information
must be conveyed to those who are deaf, their compliance with the terms of the ADA
necessarily was relevant to the issue of whether they had acted negligently in warning Eskew
of the approaching commuter train. In particular, the defendants challenge the exclusion of
evidence that the public address system complied with the ADA. However, the plaintiffs’
complaint was based exclusively on common-law negligence principles, and the allegations
relating to the inadequacy of the public address system were not based on ADA
requirements. As a consequence, the question of whether the public address system installed
at the Berwyn station complied with the ADA was entirely irrelevant to the issues being tried
(see In re A.W., 231 Ill. 2d at 256), and the trial court did not abuse its discretion in excluding
such evidence.
¶ 55 The defendants further contend that the plaintiffs’ allegations regarding the public
address system and platform barriers were time-barred because they were not brought within
the 10-year statute of repose applicable to claims for faulty construction. This contention is
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premised on section 13-214(b) of the Code of Civil Procedure, which provides as follows:
“No action based upon tort, contract or otherwise may be brought against any person
for an act or omission of such person in the design, planning, supervision,
observation or management of construction, or construction of an improvement to
real property after 10 years have elapsed from the time of such act or omission.” 735
ILCS 5/13-214(b) (West 2006).
¶ 56 This 10-year statute of repose “was enacted for the express purpose of insulating all
participants in the construction process from the onerous task of defending against stale
claims.” MBA Enterprises, Inc. v. Northern Illinois Gas Co., 307 Ill. App. 3d 285, 288, 717
N.E.2d 849 (1999). The plain language of the statute differentiates construction activities
from other types of activities and protects against only those claims that are based on conduct
falling within the enumerated construction-related activities. Trtanj v. City of Granite City,
379 Ill. App. 3d 795, 801-02, 884 N.E.2d 741 (2008); MBA Enterprises, Inc., 307 Ill. App.
3d at 288. Though a statute of repose is to be interpreted liberally to fulfill its designated
purpose, it must not be expanded to encompass circumstances that are beyond the
legislature’s intent. Ryan v. Commonwealth Edison Co., 381 Ill. App. 3d 877, 883, 885
N.E.2d 544 (2008).
¶ 57 In this case, the plaintiffs’ claims alleging the lack of an adequate public address system
and sufficient platform barriers did not seek recovery for faulty construction or installation
of an improvement to real property. Rather, those claims were predicated on the defendants’
ongoing duty to maintain and operate the platform and the public address system in a safe
manner that would protect against the risk of injury from a moving train. As such, they were
not time-barred by the construction statute of repose set forth in section 13-214(b). See Ryan,
381 Ill. App. 3d 888-89; Trtanj, 379 Ill. App. 3d at 801-02; MBA Enterprises, Inc., 307 Ill.
App. 3d at 288-89.
¶ 58 We next address the assertion that the trial court committed reversible error by refusing
to enter a directed verdict in favor of Metra because (1) the term “Metra” is only a trademark
and is not a legally recognized entity, and (2) any claims against Metra were time-barred
pursuant to the one-year statute of limitations governing claims against the Regional
Transportation Authority (RTA). These assertions are without merit.
¶ 59 With regard to the first assertion, we note that counsel filed both an appearance and
answer on behalf of “the Northeast Illinois Regional Commuter Railroad Corporation d/b/a
Metra” in March 2006. No motion to strike the “d/b/a Metra” designation was ever filed, and
the contention that Metra could not be sued because it is not a legally recognized entity was
not raised until the defendants filed their motion for a directed verdict on August 18, 2009,
at the conclusion of the eight-day trial. At that time, defense counsel acknowledged that the
Northeast Illinois Regional Commuter Railroad Corporation has the trade name “Metra.” We
find that, as the plaintiffs argued in opposition to the defendants’ motion, even if Metra
should not have been included as a named defendant, the error could be remedied at any time
under the statutory provision allowing for the correction of the name of a party sued under
a misnomer (735 ILCS 5/2-401(b) (West 2008)). Consequently, it cannot be said that the trial
court erred in denying the motion for a directed verdict on this ground.
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¶ 60 As to the second assertion, the defendants rely on section 5.03 of the Regional
Transportation Authority Act, which states that all claims against the RTA for wrongful
death or injury to a person must be commenced within one year from the date the cause of
action accrued. 70 ILCS 3615/5.03 (West 2008). The clear and unequivocal language in this
provision establishes that the one-year statute of limitations applies only to claims against
the RTA.
¶ 61 Here, the record demonstrates that the RTA, which was named as a defendant in the
plaintiffs’ original complaint, filed a motion to dismiss, in part, due to the fact that the action
against it was not timely filed. In August 2006, the claims against the RTA were dismissed,
and the trial court entered an order stating that “[t]his matter continues as to all other
parties.” The defendants do not contend that Metra, the name under which the Northeast
Illinois Regional Commuter Railroad Corporation does business, is the same as the RTA and
should have been similarly dismissed out in August 2006, nor do they cite any precedential
authority or evidentiary support in the record explaining how the one-year statute of
limitations governing claims against the RTA applies to the claims against Metra here.
Accordingly, this contention has been forfeited on appeal. See Ill. S. Ct. R. 341(h)(7) (eff.
Sept. 1, 2006).
¶ 62 Finally, the defendants argue that the trial court erred in denying their request for an
evidentiary hearing on the issue of juror misconduct. In support of this argument, the
defendants rely on statements contained in certain entries of an internet blog maintained by
a juror, alleged to be Eve Bradshaw, who described her experiences during the trial.
¶ 63 The record reflects that the blog entry posted on August 16, 2009, contains the following
statements:
“But I can tell you some stuff. At one point on Friday, in the privacy of the jury
room, one of the jurors said, ‘Well, all that’s left now is deciding how much.’ I
looked at her in disbelief. ‘Lalalalalalala!’ I singsonged, holding my fingers in my
ears. ‘You cannot talk that way, Juror L,’ I said, ‘You have to wait until ALL the
evidence is in and we’ve heard from ALL the witnesses.’
‘How come?’ she said, *** ‘It’s clear to me who’s at fault.’
‘You don’t know that,’ chimed in my buddy, Juror F. ‘What if they show us a
suicide letter?’
‘There’s a suicide letter?’
‘No, no, no!’ we said in unison, and then JF continued, ‘but you don’t know what
else they might tell us or show us. You have to wait to make up your mind!’
***
We spend our time in the jury room trying–but not succeeding–to NOT talk about
the case . When deputy D pokes her head in, she looks around suspiciously. ‘You’re
not talking about the case, are you?’ she says.
***
One more thing: I tell Mr. Peevie [the juror’s husband] things about the case, but
I’m very careful not to give away any details that might let him know what the case
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is. (Even if I did, he wouldn’t pursue it. He has too much integrity and character to
do so. He is packed with all sorts of annoying ethics.) But the other night, as we were
talking, I almost–ALMOST–let the name of (large company) slip out. In fact, I did
let the first syllable slip out. Twice. Oops.”
Another entry posted on August 12, 2009, states as follows:
“Of course, it ain’t over ’til it’s over. After four full days of plaintiff-side witnesses,
we’ve only heard one witness for the defense. The other jurors and I are guarding our
objectivity fiercely until the last syllable of testimony has been uttered and the last
molecule of evidence has been presented.”
¶ 64 The defendants claim that the trial court erred in refusing to conduct voir dire to
determine whether the integrity of the jury’s process had been compromised. According to
the defendants, the blog entries quoted above indicate that (1) jurors discussed the case
amongst themselves before it was delivered to them for deliberation and decision, (2) one
juror stated to other members of the jury that she had made up her mind on liability before
the close of the evidence, and (3) the juror alleged to be Eve Bradshaw discussed the case
with her husband during the trial. The defendants assert that the trial court erred in failing to
investigate whether the verdict was contaminated because some of the jury members violated
their oaths and were presented with improper “extraneous information.” We disagree.
¶ 65 The determination of whether jurors have been influenced and prejudiced to such an
extent that they would not, or could not, be fair and impartial rests within the sound
discretion of the trial court. People v. Runge, 234 Ill. 2d 68, 104-05, 917 N.E.2d 940 (2009).
To compel a posttrial evidentiary hearing on juror misconduct, the moving party must
produce “ ‘specific, detailed and nonconjectural evidence in support of [its] position.’ ”
People v. Kuntu, 188 Ill. 2d 157, 161, 720 N.E.2d 1047 (1999) (quoting People v. Towns,
157 Ill. 2d 90, 102, 623 N.E.2d 269 (1993)). In general, a verdict cannot be impeached by
testimony or affidavits relating to the motive, method, and process of jury deliberations.
Redmond v. Socha, 216 Ill. 2d 622, 636, 837 N.E.2d 883 (2005); Stallings v. Black & Decker
(U.S.), Inc., 342 Ill. App. 3d 676, 680, 796 N.E.2d 143 (2003). However, a verdict may be
challenged by testimony or affidavits establishing the existence of improper extraneous
influences on the jury. Redmond, 216 Ill. 2d at 636; Stallings, 342 Ill. App. 3d at 680.
¶ 66 Even where a jury has been exposed to improper extraneous information, the verdict is
not subject to automatic reversal. People v. Willmer, 396 Ill. App. 3d 175, 181, 919 N.E.2d
1035 (2009). “The party challenging the verdict must establish prejudice by showing that the
information relates directly to something at issue in the case and that it may have influenced
the verdict.” Willmer, 396 Ill. App. 3d at 181. “Because it is impossible to prove whether
extraneous information affected jurors’ decisions, the courts do not require proof of actual
prejudice when determining whether a jury verdict has been tainted.” Stallings 342 Ill. App.
3d at 681. Rather, a presumption of prejudice exists “if the extraneous information bears on
a crucial issue in the case and may have improperly influenced the verdict.” Stallings, 342
Ill. App. 3d at 681; see also People v. Holmes, 69 Ill. 2d 507, 519, 372 N.E.2d 656 (1978).
Once this presumption has been triggered, the burden then shifts to the prevailing party to
show that no actual prejudice occurred. Willmer, 396 Ill. App. 3d at 181; Stallings, 342 Ill.
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App. 3d at 681.
¶ 67 In this case, the trial court correctly observed that the defendants had not produced any
showing that the jurors were exposed to improper extraneous information bearing on the
crucial issues in the case. Nothing in the blog entries indicated that any information was
received either from the husband of the juror who maintained the blog or from any other
source. Although the record indicates that some comments were posted in response to certain
of the blog entries referenced above, the defendants did not bring the substance of those
comments to the attention of the trial court. Thus, the nature and content of such comments
are not included in the record on appeal, and we cannot presume that the jury was prejudiced
by exposure to extraneous information that bore on a crucial issue in the case and may have
improperly influenced the verdict. See Stallings, 342 Ill. App. 3d at 681; Holmes, 69 Ill. 2d
at 519. In addition, one juror’s statement that “all that’s left now is deciding how much,”
“[i]t’s clear to me who’s at fault” cannot be fairly characterized as extraneous information.
Rather, the statement constituted a verbal articulation of the result of the juror’s
consideration of the evidence presented as of that point in the trial. Though it was expressed
prematurely, this statement merely reflected that juror’s mental process. We agree with the
trial court’s conclusion that the statements contained in the blog entries are not sufficient to
show that the jury’s verdict was tainted by external influences.
¶ 68 We also reject the defendants’ contention that the blog entries demonstrate that certain
members of the jury engaged in improper premature deliberations, which biased their later,
actual deliberations. Questions of possible intra-jury influence or misconduct are treated
differently from assertions of contamination by external influences. Runge, 234 Ill. 2d at 103.
“ ‘[A] trial judge is vested with broad discretion in responding to an allegation of jury
misconduct, and that discretion is at its broadest when the allegation involves internal
misconduct such as premature deliberations ***.’ ” Runge, 234 Ill. 2d at 105 (quoting United
States v. Dominguez, 226 F.3d 1235, 1246 (11th Cir. 2000)). The supreme court has observed
that, although premature jury deliberation is “not necessarily proper, [it] is not as serious as
[the exertion of external influences on a jury], nor does every incident of juror misconduct
require[ ] a new trial. [Citation.] What is crucial is not that jurors keep silent with each other
about the case but that each juror keep an open mind until the case has been submitted to the
jury.” (Internal quotation marks omitted.) Runge, 234 Ill. 2d at 125. Improper jury
deliberation mandates reversal only where the defendant has been so prejudiced as to have
been denied a fair trial. Runge, 234 Ill. 2d at 128. “The important question in this regard is
not whether the jurors kept silent with each other about the case, but whether each juror kept
an open mind until the case was submitted to them.” (Internal quotation marks omitted.)
Runge, 234 Ill. 2d at 128.
¶ 69 Here, the defendants’ argument that the verdict was the result of bias due to premature
jury deliberations fails to acknowledge that the posted blog entries reflect that the jurors were
committed to keeping an open mind and were “guarding their objectivity fiercely until the
last syllable of testimony [had] been uttered and the last molecule of evidence [had] been
presented.” In addition, the blog reflects that, when one of the jurors expressed an opinion
regarding liability, other jury members immediately responded and emphatically cautioned
that they had to wait until all of the evidence had been presented before reaching any
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conclusions. The blog entries on which the defendants rely do not indicate that premature
deliberations resulted in a jury that was biased when it commenced its deliberations or that
the jury’s actual deliberations and verdict were affected by any discussions during trial. In
fact, the entries indicate just the opposite. In light of these circumstances, we conclude that
the trial court did not abuse its discretion in denying the defendants’ request for an
evidentiary hearing on the issue of juror misconduct.
¶ 70 For all of the foregoing reasons, the judgment of the circuit court is affirmed.
¶ 71 Affirmed.
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