Stone v. Northeast Illinois Regional Commuter Ry. Corp. , 2023 IL App (1st) 220529-U ( 2023 )

2023 IL App (1st) 220529-UNo. 1-22-0529
Order filed December 20, 2023
Third Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
DEWANNA STONE, Independent Administrator of the ) Appeal from the
Estate of Lateasha K. Phillips, Deceased, ) Circuit Court of
) Cook County.
Plaintiff-Appellant, )
)
v. )
) No. 18 L 3076
THE NORTHEAST ILLINOIS REGIONAL )
COMMUTER RAILWAY CORPORATION, )
an Illinois Corporation d/b/a METRA, )
) Honorable
Defendant-Appellee. ) Marcia Maras,
) Judge, presiding.
JUSTICE LAMPKIN delivered the judgment of the court.
Presiding Justice Reyes and Justice R. Van Tine concurred in the judgment.
ORDER
¶1 Held: The judgment of the trial court, granting summary judgment in favor of defendant
on the basis that defendant owed no duty of care to decedent, is affirmed.
¶2 Plaintiff Dewanna Stone, the administrator of Lateasha Phillips’s estate, brought a survival
and wrongful death action against defendant Northeast Illinois Regional Commuter Railway
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Corporation d/b/a METRA (Metra) after Phillips was struck and killed by a Metra train. The trial
court granted summary judgment in favor of Metra, and plaintiff now appeals.
¶3 For the reasons that follow, we affirm the judgment of the circuit court.1
¶4 I. BACKGROUND
¶5 Metra is a governmental entity organized pursuant to the Regional Transportation
Authority Act, 70 ILCS 3615/1.01 et seq. (West 2018). It owns and operates multiple passenger
service train lines in the Chicago, Illinois area. One such line runs from downtown Millenium Park
to University Park, a southern suburb of Chicago. The 47th Street Station (Station) lies along this
University Park line. On January 15, 2018, Phillips was waiting at the Station when she was struck
and killed by an express train passing through the station at 60.9 miles per hour.
¶6 Plaintiff’s first of two counts alleged a survival action, claiming that defendant owed
Phillips the highest degree of care as a passenger and that defendant: (1) operated the train at
excessive speed; (2) failed to apply the brakes or stop the train to avoid hitting Phillips; (3) failed
to maintain safety devices at the Station that would have prevented the accident; (4) failed to
adequately sound the train’s horn to warn Phillips; and (5) failed to notify Phillips that a train was
approaching the inside track. Plaintiff’s second count alleged wrongful death and cited the same
five failures on the part of defendant.
¶7 Defendant answered and asserted affirmative defenses that: (1) Phillips was trespassing at
the time she was struck by the train; (2) excessive speed claims were preempted by federal law;
(3) Metra was entitled to tort immunity pursuant to 745 ILCS 10/1-206 et seq.; and (5) a moving
1
In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018),
this appeal has been resolved without oral argument upon the entry of a separate written order.
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train was an open and obvious hazard. Plaintiff ultimately voluntarily dismissed the survival
action.
¶8 Following extensive discovery, defendant moved for summary judgment on July 23, 2021,
and attached a number of deposition transcripts, affidavits, photographs, and other evidence. One
of these affidavits, that belonging to Corinna Gallardo Jerbis, a manager in defendant’s customer
communications department, averred that Metra used a communication system to broadcast the
status of trains, including warnings that alert passengers a train is approaching. Jerbis’s affidavit
further averred that the system made two announcements at the Station on January 15, 2018, one
at 11:13:34 a.m., and another at 11:29:14 a.m. The former told passengers that a train bound for
Chicago was arriving and warned passengers to remain behind the yellow lines. The latter
informed passengers that the next approaching train was an express train and would not stop.
¶9 Plaintiff moved to strike Jerbis’s affidavit on September 9, 2021, on the basis that Jerbis
was not present at the Station on January 15, 2018, and had no first-hand knowledge that those
announcements were made at the Station, or if they were, whether they were audible. Instead,
plaintiff claimed that Jerbis’s affidavit was based purely on data from Metra’s computer system.
¶ 10 On November 17, 2021, the trial court granted plaintiff’s motion to strike in part, striking
only the paragraph which averred that the two announcements were made at the Station on January
15, 2018.
¶ 11 On December 21, 2021, plaintiff filed a response to defendant’s motion for summary
judgment. That response included the affidavit of Charles L. Culver, a private railroad operations
consultant, which offered a number of opinions. First, Culver stated that Phillips would not have
been struck by a train if a gate had been in place at the ground level of the Station at 47th Street,
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and that the Station itself obstructed the view of Phillips as she stood on the ground next to the
tracks. He also opined that the train engineer, Todd Thompson, failed to apply the brakes in a
timely manner and failed to reduce his speed. Culver opined that yellow markings on the stairs at
the Station were confusing and de-emphasized the importance of the yellow lines that demarcated
areas where individuals should not stand. Finally, Culver opined that Phillips was not trespassing
and that defendant owed Phillips the highest duty of care. On defendant’s motion, the trial court
struck Culver’s affidavit in its entirety on February 22, 2022.
¶ 12 The following is a summary of the remaining relevant evidence with which the trial court
evaluated defendant’s motion for summary judgment.
¶ 13 The Station is elevated and accessible via 47th Street, which runs underneath the Station.
Once up the stairs, passengers find themselves on a landing at ground level with the tracks with
chain-link fence on either side of them. Openings on either side of the fence, marked by a yellow
line, allow for access to the tracks themselves. A chain is sometimes in place across these openings,
but it could be removed at times such as during snow removal. Another small set of stairs leads to
an elevated platform from which passengers can board trains. Yellow lines run the length of the
platform on either side. Individuals must remain behind these lines until approaching trains have
come to a complete stop. Metra stations ordinarily play automated announcements that alert
passengers to approaching trains and remind them to stay behind the yellow line, or that the next
inbound train is an express train that will not stop. However, there was no first-hand evidence
available that either of those messages were audible at the Station on the morning Phillips was
struck and killed. The record contains a number of photographs depicting the Station and its
surroundings in addition to testimony describing the Station. Overhead photographs also show that
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the tracks running north and south from the Station are straight, and there are no trees or other
objects that would obscure vision of oncoming trains.
¶ 14 Two tracks are located to the west of the boarding platform; track 1 is the farthest west
while track 2 is adjacent to the platform. Trains heading southbound use tracks 1 and 2. Tracks 3
and 4 are east of the boarding platform, with track 4 being farthest east while track 3 is adjacent to
the boarding platform. Northbound trains utilize tracks 3 and 4. A wooden cross-walk extends west
from the track-level landing all the way to track 1, and east all the way to track 4. Trains traveling
southbound typically use track 2, allowing passengers to board using the platform. Boarding a train
on track 1 requires walking across track 2 and boarding from track-level, but such boarding is rare
and typically only occurs when a track is out of service because of the danger to passengers
walking across the tracks. In the event that track-level boarding from track 1 or 4 becomes
necessary, the train’s conductor would descend from the train, walk across the tracks, remove the
chain across the gap in the fence, if present, and escort passengers across the tracks and to the train.
¶ 15 On the morning of January 15, 2018, it was snowing and Metra employees were present at
the Station, having finished clearing and salting the boarding platform, landing, stairs, and track-
level platform. At the time of the incident, they were sitting inside their work truck, which was
parked next to track 1, facing north. Train 219 left the Station heading southbound on track 2 at
11:12 a.m. Phillips purchased a one-way ticket to Homewood at 11:26 a.m. The next scheduled
stop at the Station was not until 11:52 a.m. Jazzmine Waller, Phillips’s sister, said she had used
Metra trains repeatedly with Phillips and that Phillips understood the purpose of staying behind
the yellow line to avoid being hit by a train. She also stated that Phillips had no problems with her
hearing or eyesight.
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¶ 16 Train 119, an express train, left Millenium Park, en route to University Park at 11:20 A.M.
It had no scheduled stop at the Station. Thompson, Train 119’s engineer, was in the controller’s
compartment and was the only eyewitness to the accident. Train 119’s event recorder confirmed
that its headlights, oscillating lights, and bells were all functioning as it approached the Station on
track 2. It also had red reflector tape affixed to the front. According to Thompson, track speed, or
the maximum allowable speed, for that area was 65 miles per hour. Thompson believed the train
was traveling at least 60 miles per hour, but he was unsure of its exact speed.
¶ 17 As Train 119 approached the Station on track 2, Thompson saw someone move out toward
the track, and then move back toward the station. He first blew the train’s horn as a warning. When
he saw the Metra truck parked by track 1, he presumed that the person he saw was a Metra
employee because they were beyond the yellow line on the ground. He then used the horn twice,
which he described as the designated way of recognizing Metra employees. Upon realizing that
the individual, later identified as Phillips, was not wearing a work vest, he repeatedly blew the
train’s horn to warn her. As the train got closer to the station, Phillips was standing on the ground
several feet from the tracks. A still photograph taken from Train 119’s camera, when the train was
perhaps 50 to 100 feet away from Phillips, shows Phillips facing south, away from the train. It
appears she had one foot on the wooden walkway and one foot in the rocks around the tracks,
otherwise known as ballast.
¶ 18 Thompson “laid on the horn” as the train drew near to Phillips and, before he lost sight of
her, saw her reach out and turn into the path of the train. He then heard the impact as the train
struck her. The train’s event recorder showed that the train was traveling 60.9 miles an hour when
it struck and killed Phillips instantly. Although Thompson was unsure whether he applied the
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brakes just prior to the impact or immediately after, the event recorder showed that it took the train
approximately a quarter of a mile to come to a stop. There was no evidence taken from any witness
that the train could have stopped in time to avoid hitting Phillips once it became clear that she was
not moving out of the way.
¶ 19 A video taken from Train 119 in the moments leading up to and encompassing the accident
is also included in the record on appeal. There is approximately 34 seconds of footage prior to the
accident as Train 119 approaches the Station. A front-facing camera shows Train 119 heading
toward the Station, while a second rear-facing camera captures the left side of the train. Although
the video is of poor quality and has no sound, Phillips can be seen standing next to the tracks at
ground-level as Train 119 approaches the Station. Phillips is facing away from the train the entire
time until she disappears from the camera’s field of view as the train bears down on her. The rear-
facing camera shows that there was perhaps a foot or less of space between the train and the
boarding platform.
¶ 20 Subsequent investigation revealed blood and an impact mark on the front of the train.
William Greene, a Metra safety officer, testified at his deposition that he investigated the accident
and classified Phillips as a trespasser. When asked to explain that classification, he replied,
“Because that person was in the foul of the track.” 2 Greene explained that possession of a ticket
has no bearing on whether someone is considered a trespasser if they are in the foul of the tracks.
Even ticketed passengers are not allowed to pass the yellow lines until a train entering the station
2
Deposition testimony defined fouling a track as being in close proximity to a track. The Code of
Federal Regulations also provides that “fouling a track means the placement of an individual or an item of
equipment in such proximity to a track that the individual or equipment could be struck by a moving train
or on-track equipment, or in any case is within four feet of the field side of the near running rail.” 49 C.F.R.
§ 214.7.
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comes to a complete stop, and defendant regards anyone venturing beyond those yellow lines,
outside of boarding a train, as a trespasser.
¶ 21 On April 14, 2022, the trial court found that the open and obvious nature of the train
precluded the imposition of any duty on the part of defendant toward Phillips and granted
defendant’s motion for summary judgment.
¶ 22 II. ANALYSIS
¶ 23 Plaintiff raises a number of different issues including: (1) the trial court improperly granted
summary judgment because there are disputed material facts; (2) Phillips was a passenger; (3)
Phillips was not a trespasser; (4) defendant owed Phillips a duty of care despite the open and
obvious nature of the train that struck her; and (5) a claim that the train was traveling at an
excessive speed is not preempted by federal law. As these questions are all, in one way or another,
related to the issue of whether summary judgment was appropriate, they will be addressed as parts
of the same analysis. However, before addressing plaintiff’s contentions, we must first address
defendant’s request to strike portions of the appellant’s brief and the attached appendix for failure
to comply with Supreme Court Rules 341 and 342.
¶ 24 A. Compliance with Rules 341 and 342
¶ 25 Defendant contends that the appellant’s brief repeatedly relies on the contents of Culver’s
stricken affidavit and that the appendix contains documents that are not part of the record on
appeal.
¶ 26 Failure to comply with the rules governing appellate briefs is not an inconsequential matter,
and a party’s failure to comply with Rule 341 is grounds for disregarding its arguments on appeal.
Burmac Metal Finishing Co. v. West Bend Mut. Ins. Co., 356 Ill. App. 3d 471, 478 (2005). Rule
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341’s requirements are not mere suggestions, and this court has the inherent authority to strike
briefs, or even dismiss appeals entirely, when an appellant’s brief fails to conform to Rule 341.
People v. Williams, 2020 IL App (3d) 180024, ¶ 25. A party generally may not rely on matters
outside the record to support its position on appeal. Keener v. City of Herrin, 235 Ill. 2d 338, 346
(2009). When a party’s brief fails to comply with that rule, a court of review may strike the brief,
or simply disregard the inappropriate material. Id.¶ 27 We begin with the appendix to the appellant’s brief, which contains three documents. The
first is a hand-drawn diagram of the Station, which was not contained in the record on appeal and
is of unverifiable origin. The second is a black and white photograph contained in the record on
appeal showing the Station’s ground-level landing, the stairs leading to the boarding platform, and
the ground-level chain-link fence with its opening that leads to the tracks. The yellow line across
the fence’s opening is visible on the ground. The third document contains data which plaintiff
asserts is the speed of Train 119 in the minutes leading up to the accident, but this document, too,
does not originate from the record on appeal. Rather than strike the appendix, we elect the
alternative course, and we will simply disregard the documents that are not part of the record.
However, we must also note that the appendix attached to the appellant’s brief contains none of
the documents required by Rule 342. Ill. S. Ct. R. 342 (eff. Oct. 1, 2019).
¶ 28 Next is the issue of plaintiff’s reliance on facts that were contained in Culver’s stricken
affidavit. As defendant rightly points out, plaintiff has not challenged the trial court’s decision to
strike Culver’s affidavit. Nevertheless, the appellant’s brief repeatedly references facts and
opinions contained within Culver’s stricken affidavit. For example, plaintiff claims that the
Station’s structures can obstruct vision of oncoming trains, and that Thompson failed to apply the
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train’s brakes in a timely manner, both of which were opinions offered by Culver and no one else.
Like plaintiff’s appendix, we elect to disregard any facts or arguments based on Culver’s affidavit
in our summary judgment analysis.
¶ 29 Finally, it must be said that the compliance of the appellant’s brief with Rule 341 is
minimal, at best. Although Rule 341 is clear that factual assertions must be supported by citations
to the record on appeal, and argument must be supported by authority and citation to the record,
the appellant’s brief frequently foregoes these requirements. Ill. S. Ct. R. 341(h) (eff. Oct. 1, 2020).
The appellant’s brief, for instance, contains an initial “Introduction” section, which is not one of
the required components of a brief, that is comprised of nearly four pages of argument with few
citations to the record and legal authority. Likewise, the “Statement of Facts” is similarly replete
with factual assertions completely unsupported by citations to the record. The “Argument” section
does not fare any better and contains entire swaths of argument which do not cite to the record on
appeal or to authority. The reply brief, on the other hand, does not contain a single citation to the
record on appeal in fifteen pages of text. Not only does the appellant’s brief repeatedly fail to
provide required citations, but it also makes continued assertions that are completely contradicted
by the record. For example, the appellant’s brief routinely refers to the gap in the chain link fence
at the Station as a “gate,” when that is entirely unsupported by the record. Indeed, plaintiff’s
counsel repeatedly made a similar assertion below until the trial court admonished plaintiff’s
counsel that no such gate existed in any of the photos. Plaintiff also repeatedly insists that Phillips
was struck and killed by a handhold protruding from the side of the train when the only evidence
before us is that Phillips was killed when she was struck head-on by the front of the train.
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¶ 30 We take this opportunity to issue a reminder: “A reviewing court is entitled to have the
issues clearly defined with pertinent authority and is not simply a depository into which the
appealing party may dump the burden of argument and research.” People v. Oglesby, 2016 IL App
(1st) 141477, ¶ 205. Furthermore, compliance with our procedural rules is not optional. McCann
v. Dart, 2015 IL App (1st) 141291, ¶ 12.
¶ 31 Nevertheless, other than the aforementioned disregard of portions of the appendix and
plaintiff’s brief, we decline to levy any other sanctions that would punish plaintiff for her counsel’s
lapses. Given that the appellee’s brief sufficiently sets out the facts and the issues, which are not
complicated, we consider the merits of plaintiff’s arguments below. See Niewold v. Fry, 306 Ill.
App. 3d 735, 737 (1999) (declining to penalize plaintiff for counsel’s failure to comply with Rule
341 because the issues were simple, and the appellee’s brief provided a summary of the relevant
testimony).
¶ 32 B. Summary Judgment
¶ 33 The trial court granted summary judgment on behalf of defendant, reasoning that the open
and obvious nature of the train precluded a finding that defendant owed a duty to Phillips. Plaintiff
now asserts that this was error because Phillips was a passenger and defendant owed Phillips the
highest standard of care.
¶ 34 Summary judgment is appropriate when the pleadings, depositions, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law. Horwitz v. Holabird & Root,
212 Ill. 2d 1, 8 (2004); 735 ILCS 5/2-1005(c) (West 2018). Summary judgment should not be
granted unless the right of the moving party is clear and free from doubt. Horwitz, 212 Ill. 2d at 8.
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While the nonmoving party in a summary judgment motion is not required to prove his or her case,
the nonmovant must present a factual basis arguably entitling that party to a judgment. Id. A trial
court’s ruling on a summary judgment motion is reviewed de novo. Id. In reviewing a motion for
summary judgment, courts construe the record strictly against the movant and liberally in favor of
the nonmoving party. Magnini v. Centegra Health System, 2015 IL App (1st) 133451, ¶ 23.
¶ 35 To succeed in an action for negligence, plaintiff must establish that the defendant owed a
duty to the plaintiff, that defendant breached that duty, and that the breach proximately caused
injury to the plaintiff. Choate v. Indiana Harbor Belt R.R. Co., 2012 IL 112948, ¶ 22. A legal duty
refers to a relationship between the defendant and the plaintiff such that the law imposes on the
defendant an obligation of reasonable conduct for the benefit of the plaintiff. Id. Absent a duty, no
recovery by the plaintiff is possible as a matter of law. Id. The existence of a duty under a particular
set of circumstances is a question of law for the court to decide. Id. Four overarching factors guide
our duty analysis in any negligence case: (1) the reasonable foreseeability of the injury; (2) the
likelihood of the injury; (3) the magnitude of the burden of guarding against the injury; and (4) the
consequences of placing that burden on the defendant. Quiroz v. Chicago Transit Authority, 2022
IL 127603, ¶ 13.
¶ 36 1. Phillips’s Status as a Trespasser
¶ 37 Traditionally, a landowner owes a duty of reasonable care under the circumstances to all
those entering the premises except to trespassers. Quiroz, 2022 IL 127603, ¶ 14. A trespasser is a
person who enters upon the premises of another with neither permission nor invitation and intrudes
for some purpose of his own, or at his convenience, or merely as an idler. Id. An entrant’s status
is determined at the time of injury. Id.- 12 -
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¶ 38 In Anderson v. Chicago Transit Authority, the decedent paid his fare and entered the
Kedzie-Homan CTA Blue Line station. Anderson v. Chicago Transit Authority, 2019 IL App (1st)
181564, ¶ 4. Once on the boarding platform, the decedent waited for thirty minutes as multiple
trains came and went. Id. On multiple occasions, he entered the two-foot, blue-colored warning
tile located at the edges of the platform. Id. ¶ 5. The decedent ultimately dropped a bottle or can
on the ground and later tripped on it, falling onto the station’s tracks where he was electrocuted by
the third rail. Id. ¶ 7. This court rejected the argument that the decedent became a passenger as
soon as he paid his fare and thus, he was entitled to the highest standard of care owed by a common-
carrier to its passengers. Id. ¶ 27. Instead, this court agreed with the defendant that a person must
be in the act of boarding, be upon, or be in the act of alighting from the carrier’s vehicle to be
entitled to the standard of care owed to passengers. Id. ¶¶ 27, 30.
¶ 39 Though plaintiff insists that there is a dispute over the material fact of whether Phillips was
trespassing at the time she was struck by a train, she has provided no evidence to substantiate such
a dispute. The evidence before us is that Phillips, similar to the decedent in Anderson, was standing
in a place that she was not authorized to be: beyond the yellow line and close to the tracks. As
Greene testified, she was in “the foul of the tracks.” The uncontroverted evidence presented for
summary judgment below was that anyone crossing the yellow lines at the Station, other than at
the time of boarding a train and irrespective of the possession of a ticket, is a trespasser. Phillips
was well beyond the yellow line at the ground-level landing and was standing close enough to the
tracks to be struck head-on by Train 119. The evidence bore out that if Metra police had been
present at the station, they would have cited Phillips based on where she was standing. Section
18c-7503 of the Illinois Vehicle Code, titled, “Trespassing on railroad property; terminal security,”
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states that no person shall “walk, ride, drive, or be upon the right of way or rail yard of a rail carrier
within the State, at a place other than a public crossing.” 625 ILCS 5/18c-7503(1)(a)(i) (West
2018). The same section defines “right of way,” as “the track or roadbed owned, leased, or operated
by a rail carrier which is located on either side of its tracks and which is readily recognizable to a
reasonable person as being railroad property or is reasonably identified as such by fencing or
appropriate signs.” 625 ILCS 5/18c-7503(3) (West 2018). To be entitled to the standard of care
owed to a passenger, which plaintiff claims would be appropriate, Phillips would have needed to
be in the act of boarding, be upon, or be in the act of alighting from the carrier’s vehicle to be
entitled to the standard of care owed to passengers. Anderson, 2019 IL App (1st) 181564, ¶¶ 27,
30. Phillips was doing none of those things.
¶ 40 Thus, defendant owed no duty of care to Phillips as a trespasser other than to refrain from
willfully and wantonly injuring her. Quiroz, 2022 IL 127603, ¶ 16 (citing Choate, 2012 IL 112948,
¶ 25). This limited duty is based on the concept that the law does not require an owner or occupier
of land to anticipate the presence of persons wrongfully or unexpectedly on his land. Id. ¶ 16. A
result of this principle is that a railroad operator is not required to keep a lookout for persons on
the track. Quiroz, 2022 IL 127603, ¶ 14 (citing Joy v. Chicago, Burlington & Quincy R. Co., 263
Ill. 465, 468 (1914) (“the law casts no duty upon a railroad company to keep a lookout for
trespassers on its track” away from populated areas and public crossings)).
¶ 41 2. Open and Obvious Condition
¶ 42 In considering the foreseeability of the injury and likelihood of the injury, we also consider
that “a party who owns or controls land is not required to foresee and protect against an injury if
the potentially dangerous condition is open and obvious.” Quiroz, 2022 IL 127603, ¶ 17 (quoting
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Rexroad v. City of Springfield, 207 Ill. 2d 33, 44 (2003)). Obvious means both the condition and
the risk are apparent to and would be recognized by a reasonable person, in the position of the
visitor, exercising ordinary perception, intelligence, and judgment. Id.¶ 43 Not only are moving trains among the obvious dangers we recognize, but they are such an
obvious danger that “even children should realize the risk of coming within the area made
dangerous by it.” Id. ¶ 18 (quoting Choate, 2012 IL 112948, ¶ 35). “It has never been part of our
law that a landowner may be liable to a trespasser who proceeds to wantonly expose himself to
unmistakable danger in total disregard of a fully understood risk.” Choate, 2012 IL 112948, ¶ 39.
When there is no dispute about the physical nature of the condition, such as its visibility, the
question of whether a condition is open and obvious is a legal one for the court. Park v. Northeast
Illinois Regional Commuter R.R. Corp., 2011 IL App (1st) 101283, ¶ 15. Given Choate and its
progeny, we can only conclude that the train in this case was an open and obvious danger. Plaintiff
agrees that the train was an open and obvious danger, but insists that defendant nevertheless owed
Phillips a duty.
¶ 44 It is true that determining that the open and obvious doctrine applies does not end the
analysis regarding duty. Park, 2011 IL App (1st) 101283, ¶ 13. Instead, the existence of a duty in
the face of a known or obvious condition requires consideration of the same four factors that
determine whether a duty exists in every negligence case: (1) the reasonable foreseeability of the
injury; (2) the likelihood of the injury; (3) the magnitude of the burden of guarding against the
injury; and (4) the consequences of placing that burden on the defendant. Id. Open and obvious
dangers particularly implicate the first two factors. Id.- 15 -
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¶ 45 Park and McDonald are both instructive to our analysis of duty here. In Park, the decedent
was struck and killed by an Amtrak train while he was crossing the railroad tracks at the Edgebrook
station in Chicago. Park, 2011 IL App (1st) 101283, ¶ 2. The decedent attempted to cross the
tracks at a designated pedestrian crossing, and there were no audible or visual warning devices to
alert passengers of approaching trains. Id. ¶ 5. However, this court held that no duty was owed to
the decedent due to the open and obvious nature of the train. Id. ¶ 18.
¶ 46 In McDonald, the decedent was struck by an express Metra train as he crossed the tracks
at a Glenview station at a pedestrian crossing. McDonald v. Northeast Illinois Regional Commuter
R.R. Corp., 2013 IL App (1st) 102766-B, ¶ 3. Pedestrian signals were installed at the crossing, but
were not yet activated. Id. This court held that Metra owed no duty because the moving train was
an open and obvious danger. Id. ¶ 28. Notably, neither of the decedents in Park and McDonald
were trespassers, and they were struck while in pedestrian crossings. Park, 2011 IL App (1st)
101283, ¶ 5; McDonald, 2013 IL App (1st) 102766-B, ¶ 3.
¶ 47 Similar to Park and McDonald, we find that defendant did not have a duty to Phillips,
irrespective of whether Phillips was trespassing, because of the open and obvious nature of the
moving train. At a minimum, the first two factors weigh heavily in defendant’s favor. “When a
condition is deemed open and obvious, the likelihood of injury is generally considered slight as it
is assumed that people encountering potentially dangerous conditions that are open and obvious
will appreciate and avoid the risks.” Park, 2011 IL App (1st) 101283, ¶ 12. Property owners are
also entitled to the expectation that those who enter upon their property will exercise reasonable
care for their own safety. Id. ¶ 14. As for the third factor, we should consider the impact on the
company’s business operation as a whole when analyzing the existence of a duty. Quiroz, 2022 IL
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127603, ¶ 37. The burden on defendant would be immense if we were to find that defendant has a
duty to identify people on its right-of-way and protect them from the open and obvious danger of
moving trains. Id. ¶ 38. Railroads operate day and night, every day, over thousands of miles of
track. Id. Such a burden would no doubt require fencing off countless portions of track, as well as
real-time monitoring through cameras or employees. While the record does not bear out what
consequences defendant would suffer if it was forced to assume such a duty, the first three factors
weigh heavily in defendant’s favor and against the imposition of a duty despite the open and
obvious nature of the train.
¶ 48 The record contains a photograph of Phillips, taken from the approaching train that struck
her when it was perhaps 50 to 100 feet away. Phillips was standing on the ground, only several
feet from the actual train tracks. In fact, if Phillips had been standing on the boarding platform, it
would have been impossible for her to get as close to the tracks as she was without walking off the
edge of the platform. It appears from the photograph and video that she was adjacent to the
boarding platform and, had she moved several feet to her left, her back would have been up against
the elevated boarding platform. Given the amount of space between the train as it passes through
the station and the boarding platform, Phillips was directly in the path of the train. The extreme
and undeniable danger of Phillips’s decision to stand where she did is immediately apparent––
made all the more inexplicable given her sister’s testimony about Phillips’s familiarity with Metra
trains, the Station, and the importance of waiting behind the designated yellow lines. At a bare
minimum, based on the video taken from Train 119, the train was visible for at least 34 seconds
prior to the accident, and probably for some time before that. It is uncontroverted that the train’s
headlights, oscillating lights, and bells were all functioning, and that Thompson repeatedly
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sounded the horn. The record before us offers no explanations or even theories as to why Phillips,
standing so close to southbound tracks, never once looked north, and seemingly ignored multiple
audible cues that should have alerted her to the approaching train. All of this is to say, the
foreseeability and likelihood of such an injury––that a person will willingly stand in front of an
obvious train even with ample time to move––is exceedingly low. Thus, defendant did not owe
Phillips a duty despite the open and obvious nature of the train.
¶ 49 3. Possible Exceptions
¶ 50 Both Park and McDonald also maintained that an open and obvious danger is not a per se
bar to finding a duty provided that the “distraction exception” or “deliberate encounter exception”
applied. Park, 2011 IL App (1st) 101283, ¶ 22; McDonald, 2013 IL App (1st) 102766-B, ¶ 26.
The former asks whether a property owner may have a reason to expect that the plaintiff’s attention
might be distracted such that he would not discover the obvious condition. Park, 2011 IL App (1st)
101283, ¶ 24. The latter imposes a duty when a defendant has reason to expect that a plaintiff will
proceed to encounter the known or obvious condition, despite the danger, because to a reasonable
person the advantages of doing so would outweigh the risk. Id. ¶ 26. However, plaintiff has not
argued that either of these exceptions apply, and the evidence before us does not support them.
¶ 51 Instead, plaintiff asserts that we may still find the existence of a duty based on Section 337
of the Restatement (Second) of Torts, which states:
“A possessor of land who maintains on the land an artificial condition which
involves a risk of death or serious bodily harm to persons coming in contact with it, is
subject to liability for bodily harm caused to trespassers by his failure to exercise
reasonable care to warn them of the condition if:
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(a) the possessor knows or has reason to know of their presence in dangerous
proximity to the condition, and
(b) the condition is of such nature that he has reason to believe that the trespasser
will not discover it or realize the risk involved.” Restatement (Second) of Torts,
§ 337 (1965).
¶ 52 The supreme court expressly adopted Section 337 in 1992. Lee v. Chicago Transit
Authority, 152 Ill. 2d 432, 447-48 (1992). But application of Section 337 here, particularly
subsection (b), stands in direct opposition to the open and obvious doctrine. Following the supreme
court’s holding in Choate that a moving train is an open and obvious danger as a matter of law,
Section 337 cannot apply in this instance because defendant could not have had reason to believe
that Phillips would not discover the obvious moving train or realize the risk involved. Choate,
2012 IL 112948, ¶ 35; see also Quiroz, 2022 IL 127603, ¶ 23 (finding that Section 337 did not
apply because the condition at issue, a moving train, was an open and obvious condition). Thus,
there are no applicable exceptions that would impose a duty on defendant despite the open and
obvious nature of the train.
¶ 53 4. Material Facts in Dispute
¶ 54 Finally, plaintiff also contends that summary judgment as a matter of law was improper
because there are material facts in dispute, and those disputed facts could give rise to a duty, and
because her claim that the train was traveling at an excessive speed is not pre-empted by federal
law. We disagree.
¶ 55 In determining whether a genuine issue of material fact exists, the court strictly construes
the pleadings, depositions, and affidavits against the moving party and liberally construes them in
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favor of the nonmoving party. Inman v. Howe Freightways, Inc., 2022 IL App (1st) 210274, ¶ 65.
A genuine issue of material fact exists where the material facts are disputed or, if the material facts
are undisputed, reasonable persons might draw different inferences from the undisputed facts. Id.For the purpose of summary judgment, material facts are facts that might affect the outcome of the
case under the applicable substantive law. Thai v. Triumvera 600 Naples Court Condominium
Association, 2020 IL App (1st) 192408, ¶ 38.
¶ 56 Without any citations to the record, plaintiff claims the following facts are in dispute: (1)
Phillips’s status as a passenger; (2) the duty owed to Phillips as a passenger; (3) whether Thompson
was negligent for failing to apply the brakes prior to striking Phillips; (4) whether defendant was
negligent for failing to maintain a locked chain on the fence on the ground-level landing; (5)
whether there was an audible announcement made about the express train prior to it striking
Phillips; (6) whether defendant was negligent for failing to guard the fence while the chain was
unlocked; and (7) whether the train approached the station at a speed in excess of federal
regulations.
¶ 57 A number of the “facts” that plaintiff insists are disputed are not facts at all, but instead
legal conclusions that need no resolution on account of the fact that defendant owed no duty to
Phillips because of the open and obvious nature of the train. As for Phillips’s status as a passenger,
we have already discussed above that the only evidence presented showed that Phillips was
trespassing at the time she was struck by the train. Plaintiff’s insistence to the contrary does not
change the uncontroverted evidence before us. Next, there is no dispute about whether audible
warning announcements were played at the Station. Defendant’s computer system showed the
audio warnings that should have been played, but there was no evidence that those warnings were
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No. 1-22-0529
audible at the Station. However, even if this fact was disputed, it is not material to the outcome of
this case given the open and obvious nature of the moving train. If the train was an open and
obvious danger, which plaintiff has conceded, then defendant, in line with Quiroz’s rejection of
Section 337 of the Restatement (Second) of Torts, had no duty to warn Phillips of the danger.
Quiroz, 2022 IL 127603, ¶ 23. Finally, plaintiff asserts that there is a factual dispute about whether
the train was traveling at a speed greater than that allowed by federal regulations, but the record
does not reflect such a dispute. Thompson’s testimony was that track speed for that area was 65
miles per hour, and the train’s event recorder confirmed that Train 119 was traveling 60.9 miles
per hour at the time of the accident. The only information that supports the conclusion that the
train was traveling over the speed limit is that which was improperly appended to the appellant’s
brief and which we have elected to disregard.
¶ 58 That leads us tangentially to plaintiff’s argument that an excessive speed claim was not
preempted by federal law. When trains are traveling at speeds within the limits set by federal
regulations, negligence claims based on excessive speed are pre-empted. CSX Transp., Inc. v.
Easterwood, 507 U.S. 658, 674-76 (1993); Zook v. Norfolk & Western Ry Co., 268 Ill. App. 3d
157, 162 (1994). Plaintiff’s only support for a claim that Train 119 exceeded 65 miles per hour is
the material appended to the appellant’s brief that originated from outside the record that we have
elected to disregard. Thus, we cannot accept plaintiff’s position that an excessive speed claim was
not pre-empted by federal law. Nor has plaintiff argued, or provided any authority in support
thereof, that such an excessive speed claim would override the fact that Train 119 was an open and
obvious danger.
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¶ 59 III. CONCLUSION
¶ 60 At the time she was struck by Train 119, Phillips was standing on the ground-level landing
beyond the yellow line, a place she was not authorized to stand, and thus she was classified as a
trespasser. Defendant’s duty was therefore to refrain from willfully and wantonly injuring her––
something plaintiff did not allege. Moreover, regardless of whether Phillips was a trespasser,
plaintiff concedes that Train 119 was an open and obvious danger, and none of the circumstances
of this case warrant the imposition of a duty despite the open and obvious nature of the train. The
trial court properly found that defendant did not owe Phillips a duty. Without the presence of a
duty to enable recovery, there was no error in granting summary judgment in defendant’s favor.
¶ 61 Affirmed.
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