Anderson v. Chicago Transit Authority , 2019 IL App (1st) 181564 ( 2019 )

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Appellate Court Date: 2019.10.08
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Anderson v. Chicago Transit Authority, 2019 IL App (1st) 181564Appellate Court CAROLYN ANDERSON, as Independent Administrator of the Estate
Caption of Jerome Anderson, Deceased, Plaintiff-Appellant, v. CHICAGO
TRANSIT AUTHORITY, a Municipal Corporation, Defendant-
Appellee.
District & No. First District, Second Division
No. 1-18-1564
Filed June 28, 2019
Decision Under Appeal from the Circuit Court of Cook County, No. 18-L-1172; the
Review Hon. John H. Ehrlich, Judge, presiding.
Judgment Affirmed.
Counsel on James D. Montgomery Jr., of Montgomery Law Firm LLC, of
Appeal Chicago, for appellant.
Karen G. Seimetz, Stephen L. Wood, and Irina Y. Dmitrieva, of
Chicago, for appellee.
Panel PRESIDING JUSTICE LAVIN delivered the judgment of the court,
with opinion.
Justices Pucinski and Hyman concurred in the judgment and opinion.
OPINION
¶1 This case stems from Jerome Anderson’s (decedent) fall from a Chicago Transit Authority
(CTA) train platform onto the electrified “third rail,” which resulted in his death. His sister,
Carolyn Anderson, was appointed to administer his estate 1 and filed a Wrongful Death Act
(740 ILCS 180/0.01 et seq. (West 2016)) and Survival Act (755 ILCS 5/27-6 (West 2016))
lawsuit against the CTA, alleging, in the main, that the CTA failed to properly monitor
decedent’s activities on the platform and assess his physical and medical condition while he
lingered there for some 30 minutes without ever boarding a train. The CTA filed a motion to
dismiss under section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9)
(West 2016)) based on the allegations of the complaint and the CTA’s attached surveillance
video of the platform. The video footage captured decedent’s actions before the fall, the fall
itself, and the emergency response that followed. 2 The trial court granted the CTA’s motion.
We affirm.
¶2 BACKGROUND
¶3 Plaintiff’s Complaint and the Videos
¶4 On June 1, 2017, around 9 a.m., decedent allegedly paid his fare and entered the Kedzie-
Homan CTA Blue Line station, allegedly to board a Loop-bound train. The first short video
clip shows decedent, who appeared about age 50, walking with a normal gait down the station
bridge, toward the CTA platform, where he purportedly intended to board a Loop-bound train.
The second and lengthier clip shows that decedent had entered the station’s 12-foot-wide
platform, flanked on either side by train tracks, with each track maintaining a “third rail” at the
outer edge. Once on the platform, decedent stood there about 30 minutes with some 11 trains
passing on both sides of the tracks. These trains were bound west toward Forest Park and east
toward the Loop (and eventually O’Hare), as passengers gathered and boarded trains without
reacting or appearing to notice decedent. Decedent remained mostly in the middle of the
platform, sometimes holding onto a pillar and sometimes hunched, along with an episodic
stumbling or wobbling observed on the surveillance video.
¶5 On several occasions, he entered the two-foot, blue-colored detectable warning tile, located
on both sides of the platform’s edge as an apparent measure to remain compliant with the
Americans with Disabilities Act (42 U.S.C. § 12101 et seq. (2012)). In one instance, for
example, decedent stood on the warning tile while a Forest Park train entered the station.
Decedent appeared as though he might board the train, although it is not entirely clear that he
was actually at the train door, but then decedent hunched slightly and backed away. In another
instance, decedent, while standing near the warning tile zone, leaned over but then caught
himself and then moved back towards the middle of the platform. Thus, decedent never
1
Decedent is also survived by another sister, brother, two nieces, and a nephew.
2
The parties do not dispute that the video footage accurately portrays decedent’s condition and
conduct while on the CTA platform leading up to his death. In addition, in their briefs the parties relate
that decedent was on the platform for some 40 minutes before his death. The stipulated video evidence
they provided this court, however, shows decedent was on the platform for about 32 minutes before
falling.
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boarded any CTA train on the morning of his death but rather appeared to be a CTA customer
who was weighing whether to enter a train.
¶6 During this period of time, it is alleged that several CTA maintenance employees and train
operators observed decedent and could have observed his incapacities, although the video
depicts no interaction with him. In the first several minutes of decedent’s entry on the platform,
for example, a CTA custodian walked along the platform, sweeping up debris, but decedent
was not even visible to the camera. Decedent later emerged from a middle platform pillar after
the custodian had passed by and left, but there is no indication the custodian took any notice
of him or interrupted his custodial duties. The operators on the trains that went through the
station possibly could have seen decedent, but there is no video proof of that either.
¶7 In the final seven minutes before his death, the video shows decedent drinking from a bottle
or can which he later dropped to the platform surface. Just then a group of other CTA customers
took notice of decedent, looking back at him as they passed by. Several minutes later, decedent
then shoved the bottle or can with his foot closer to the warning tile zone. Then, after another
few minutes passed, decedent tripped or stepped on the bottle or can, knocking it into the
trackbed before he toppled over the track and landed face down on the third rail, where he was
electrocuted. No train was approaching when he fell on the track. Oddly enough, neither party’s
brief on appeal acknowledges the presence of the bottle or can in the moments leading up to
decedent’s death, but it is apparent that a combination of decedent’s alleged medical condition
and his interaction with the bottle or can rather directly led to his unfortunate fall and death.
¶8 In the complaint, plaintiff alleged that during decedent’s 30 minutes on the platform, he
was having a “medical emergency” as a result of his diabetic condition, although plaintiff did
not attach any documentation or autopsy reports in support of that allegation. Specifically, it
is alleged that he was “in an obvious state of distress due to a diabetic shock,” which caused
his unusual behavior as noted on the video, prevented him from “standing upright and boarding
a train,” and led to his fall onto the tracks, where he died.
¶9 Accordingly, in filing her complaint, plaintiff claimed wrongful death, common-carrier
negligence, alleging that decedent was a CTA passenger to whom the CTA owed the “highest
duty of care” and that the CTA negligently failed to fulfill its duty insofar as the employees
(1) failed to approach decedent to assess his condition even though he was displaying “clear
signs and symptoms” of a “medical emergency,” (2) failed to summon medical aid or
assistance even in the face of those symptoms, (3) failed to turn off the third-rail electrical
power or implement other safety measures “after learning that he was stumbling” on the
platform, (4) failed to notify emergency response personnel, (5) failed to adequately monitor
the platform, and (6) was otherwise careless and negligent. Plaintiff alleged that decedent’s
death was a direct and proximate result of negligence by the CTA and its employees.
¶ 10 In addition, plaintiff claimed wrongful death, alleging decedent was a business invitee to
whom the CTA owed an ordinary duty of reasonable care but was negligent for the same
reasons as set forth for common carriers. Plaintiff also raised these allegations in a Survival
Act claim.
¶ 11 It is noteworthy that in plaintiff’s complaint, other than the failure to monitor/summon
medical aid, there is no allegation that decedent’s death was directly caused in whole or in part
by the conduct of another person. There is no allegation that he was pushed, pulled, or lured
onto the tracks. There is no allegation of a claimed defect on the platform itself that contributed
in any way to the events that led to his accidental fall. In fact, the only obstruction on the
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platform was supplied by decedent himself, when he dropped and then shoved a bottle or can
to the platform’s edge. Finally, there is no allegation that the CTA failed to warn decedent of
the danger of the electrified third rail.
¶ 12 Motion to Dismiss and Responsive Pleadings
¶ 13 As noted, the CTA subsequently filed a section 2-619(a)(9) motion to dismiss plaintiff’s
complaint, attaching the aforementioned video clips. The CTA argued that it had no legal duty
to assess decedent’s medical condition, render assistance, or notify emergency personnel, let
alone to turn off the third rail of the tracks. The CTA also argued that imposing such a duty
would be unduly burdensome given the magnitude of the CTA’s operations. In support, the
CTA noted that in 2015, CTA trains ran on 224.1 miles of track, making about 2145 trips daily,
while servicing 145 stations. The annual ridership had reached 241.7 million, with the total
ridership at the Kedzie-Homan Blue Line station being 405,253. The CTA argued that
permitting plaintiff’s lawsuit would thwart its primary purpose of providing public
transportation to Chicagoans.
¶ 14 The CTA also argued that decedent was not a “passenger” because there were “no
allegations that [he] was riding, boarding, or alighting a CTA vehicle at the time he sustained
injury,” and as such, the CTA did not owe him the “highest duty of care” associated with the
common-carrier/passenger special relationship. Plaintiff, in a responsive pleading, insisted that
decedent was a passenger and the special relationship between the CTA and decedent required
the CTA to protect him from unreasonable risk of physical harm and render first aid after it
knew or had reason to know that decedent was ill, as well as to care for him until he could be
cared for by others.
¶ 15 The Trial Court Judgment
¶ 16 As will be delineated below in some detail, the trial court ruled that the CTA, although a
common carrier, did not owe decedent a duty to protect him from falling onto the tracks. Citing
the rule that a contractual relationship between the passenger and common carrier begins when
the passenger presents himself at the place of transport with the intent to board, the court found
decedent was a passenger. As such, the court concluded that a special relationship of common
carrier and passenger existed between the CTA and decedent. In addition, the court found a
business invitor-invitee relationship existed. Nonetheless, the court determined a legal duty did
not extend from the CTA to protect decedent by specifically monitoring his behavior or
attempting to assess whether he required medical attention as he lingered on its platform.
¶ 17 The court analyzed the case from the traditional four-factor duty analysis, first finding that
while decedent’s medical condition was reasonably foreseeable, his fall onto the electrified
third rail from the platform was not. The court wrote, the “tremendously tragic event is simply
not the type of injury process the CTA should reasonably foresee as a result of a passenger-
invitee suffering an insulin reaction (or any other emergent medical condition).” Second, the
court found it was unlikely that one suffering from “an emergent medical event would come
into contact with the third rail.” Third, and significantly, the court concluded that the magnitude
of guarding against the injury was too great, as the CTA was not duty-bound to intervene,
assess, diagnose, or obtain medical assistance for decedent’s condition, as that fell within the
ambit of first responders and it was unduly burdensome for normal CTA employees. Similarly
burdensome was turning off the third-rail’s power based on decedent’s observable and
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arguably erratic behavior. Fourth, the court concluded the consequences of placing additional
burdens on the CTA were too great, given that a contrary ruling would extend liability to many
other public service providers who failed to accurately assess medical conditions and would
also interrupt CTA services.
¶ 18 The court therefore held that the duties plaintiff proffered were, as a matter of law, not
recognized in Illinois since decedent essentially met his fate as a result of his own medical
condition and his odd platform peregrinations and not due to any condition on the platform or
as a result of any action by the CTA.
¶ 19 Accordingly, the court granted the CTA’s motion to dismiss, and plaintiff appealed.
¶ 20 ANALYSIS
¶ 21 Our review of the trial court’s granting of a dismissal pursuant to section 2-619(a)(9) is
de novo. Smith v. Vanguard Group, Inc., 2019 IL 123264, ¶ 9. While a motion to dismiss under
section 2-619 admits the legal sufficiency of the plaintiff’s complaint, it asserts an affirmative
matter that defeats the claim. Id. An “affirmative matter” in this instance is something in the
nature of a defense that negates the cause of action completely or refutes crucial conclusions
of law or conclusions of material fact contained in or inferred from the complaint. Illinois
Graphics Co. v. Nickum, 159 Ill. 2d 469, 486 (1994); see also Jones v. Brown-Marino, 2017
IL App (1st) 152852, ¶ 20 (noting the purpose of a section 2-619 motion to dismiss is to dispose
of issues of law and easily proved issues of fact at the outset of the litigation). As such, when
reviewing a section 2-619 motion, we accept as true all well-pleaded facts, as well as any
reasonable inferences from them, but will not accept mere conclusions that are not grounded
in the properly pleaded facts. In re Estate of Shelton, 2017 IL 121199, ¶ 21; Downers Grove
Associates v. Red Robin International, Inc., 151 Ill. App. 3d 310, 315 (1986) (noting a section
2-619(a)(9) motion does not admit conclusions of law, nor does it admit conclusions of fact
unsupported by allegations of specific fact upon which such conclusions rest). In addition, we
construe all pleadings and supporting documents in favor of the nonmoving party to determine
whether the allegations are sufficient to state a claim upon which relief can be granted. Shelton,
2017 IL 121199, ¶ 21; Del Real v. Northeast Illinois Regional Commuter R.R. Corp., 404 Ill.
App. 3d 65, 70 (2010).
¶ 22 To state a cause of action for negligence, a complaint must allege facts that establish the
existence of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and an
injury proximately caused by that breach. Marshall v. Burger King Corp., 222 Ill. 2d 422, 430
(2006). Also informing the duty inquiry are four policy factors, including the reasonable
foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of
guarding against the injury, and the consequences of placing that burden on the defendant. Id.
at 436.
¶ 23 Special Duty of Care: The Common Carrier-Passenger Relationship
and Whether a Heightened Duty of Care Applies
¶ 24 The question of whether defendant owed decedent a duty of care is a legal question also
commanding de novo review and is an appropriate basis for a section 2-619 motion. Marshall,
222 Ill. 2d at 430; Lang v. Silva, 306 Ill. App. 3d 960, 970 (1999). It’s well established that the
touchstone of this court’s duty analysis is to ask whether the plaintiff and the defendant stood
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in such a relationship to one another that the law imposed upon the defendant an obligation of
reasonable conduct for the benefit of the plaintiff. Marshall, 222 Ill. 2d at 436.
¶ 25 Here, plaintiff maintains the CTA and defendant had the special relationship of common
carrier and passenger, such that the CTA maintained a heightened duty of care for the benefit
of decedent. The common carrier and passenger is one among four special relationships that
section 314A of the Restatement (Second) of Torts identifies, as recognized by our supreme
court in Marshall, 222 Ill. 2d at 438. Restatement (Second) of Torts § 314A (1965). The others
include innkeeper and guest, custodian and ward, and business invitee and business invitor. Id.
As plaintiff notes, in various instances, such relationships give rise to an affirmative duty to
aid or protect another against an unreasonable risk of physical harm and to give first aid to the
ill or injured when notified. Id.; Gress v. Lakhani Hospitality, Inc., 2018 IL App (1st) 170380,
¶ 16. The duties are premised on a relationship between the parties that is independent of the
specific situation giving rise to the harm. Gress, 2018 IL App (1st) 170380, ¶ 16. Significantly,
the key to imposing a duty based on a special relationship is that the defendant’s relationship
with either the tortfeasor or the plaintiff places the defendant in the best position to protect
against the risk of harm. Bogenberger v. Pi Kappa Alpha Corp., 2018 IL 120951, ¶ 39.
¶ 26 This court has long held that a common carrier has a duty to its passengers to exercise the
highest degree of care, not only to carry them safely to their destinations, but to provide them
with a reasonable opportunity to board and leave the conveyance safely. Krywin v. Chicago
Transit Authority, 238 Ill. 2d 215, 226 (2010); Katamay v. Chicago Transit Authority, 53 Ill.
2d 27, 32 (1972). Whether the uncontroverted facts establish the relationship of carrier and
passenger is a question of law for the court to determine. Eskew v. Burlington Northern &
Santa Fe Ry. Co., 2011 IL App (1st) 093450, ¶ 33. Yet, as the parties’ arguments reveal, exactly
when a person becomes or ceases to become a passenger on a common carrier is not clearly
defined under the law and depends on varying circumstances. See Jones v. Chicago &
Northwestern Transportation Co., 206 Ill. App. 3d 136, 138 (1990).
¶ 27 Plaintiff now argues that a CTA customer becomes a passenger when he pays his fare, then
enters some place under the carrier’s control, such as a station waiting room or platform, and
once there, intends to be transported. See Skelton v. Chicago Transit Authority, 214 Ill. App.
3d 554, 572-73 (1991). Plaintiff maintains decedent satisfied that test. The CTA counters that
to be a passenger, one must be in the act of boarding, be upon, or be in the act of alighting from
the carrier’s vehicle. See Illinois Pattern Jury Instructions, Civil, Nos. 100.09, 100.10
(approved July 18, 2014) (similarly defining passenger); Del Real, 404 Ill. App. 3d at 72. As
decedent was doing none of those things, the CTA asserts he failed to meet the legal definition
of passenger, and thus there was no higher duty of care. We agree with the CTA.
¶ 28 These competing legal propositions are set forth in Katamay, 53 Ill. 2d 27, the supreme
court’s seminal case about who qualifies as a “passenger” for the purposes of imposing the
heightened duty of care. In Katamay, the plaintiff approached an opened-door train that had
stopped, and as she did so, fell on the platform because the heels of her shoes had wedged
between spaces in the wooden planks, leading to her injury. The supreme court concluded that,
as a matter of law, the plaintiff was a passenger at the time of her injury and, as such, the CTA
owed her the highest degree of care. The court noted,
“the rationale for the imposition of the duty upon a carrier to exercise the highest degree
of care for the safety of an individual while he is a passenger as distinguished from the
lesser duty owed at all other times is that the degree of care should be commensurate
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with the danger to which the passenger is subjected, and the degree of care required to
be exercised increases as the danger increases.” Id. at 29-30.
¶ 29 Katamay discussed with approval three prior Illinois cases involving passengers who were
injured when alighting from or while boarding trains and one Washington state case involving
a passenger injured while waiting to purchase his ticket on the ferry dock. 3 The supreme court
then held the plaintiff “was not required to be in physical contact with defendant’s train in
order to occupy the status of passenger” if she intended to board the train, pay the required
fare, and moved toward it for that purpose. Id. at 32. The fact that she was standing on the
boarding platform and was “engaged in the ‘act of boarding’ ” meant that the CTA owed her
“the duty to exercise a degree of care for her safety equal to the duty owed to provide her a
safe place to alight,” which was the highest degree of care. Id. This was notwithstanding that
plaintiff had not actually boarded the train at the time of her injury.
¶ 30 Applying the rules stated in Katamay to the case at bar, we conclude that decedent was not
a passenger at the time of his accident. Even taking the plaintiff’s allegations as true that
decedent paid his fare and entered the station platform intending to board the train, decedent
then lingered on the platform for some 30 minutes without boarding any of the 11 trains that
entered the station. After wandering around the platform and loitering in particular spots,
decedent tripped on a container that he had moments before dropped on the ground, prompting
his stumble and fall from the platform to the third rail. The video evidence submitted thus
defeats plaintiff’s legal and factual assertions in her complaint, and plaintiff did not counter
that evidence. See Doe v. University of Chicago Medical Center, 2015 IL App (1st) 133735,
¶ 42 (if the movant puts forth sufficient evidence to entitle it to judgment as a matter of law,
the burden shifts to the nonmovant to counter that evidence). As described in further depth
below, whether decedent’s claimed medical emergency also contributed to his fall did not
3
Katamay specifically noted that Zorotovich v. Washington Toll Bridge Authority, 491 P.2d 1295(Wash. 1971), involving the ferry passenger, identified several factors for determining a person’s status,
including the place under the carrier’s control for use by people about to enter the conveyance, the time
to enter the conveyance, the person’s intention to enter the conveyance, a person’s submission to the
carrier’s control, and knowledge by the carrier that the person is prepared to take passage or persons
awaiting passage are reasonably there. Katamay further noted Zorotovich’s statement that its result did
not change even though the plaintiff in that case was not actually in the act of boarding the ferry when
injured and that the dock was several hundred feet in length, since “ ‘the dock was a necessary part of
the act of boarding the ferry.’ ” Katamay, 53 Ill. 2d at 32 (quoting Zorotovich, 491 P.2d at 1298).
Katamay also specifically identified Lake Street Elevated R.R. Co. v. Burgess, 200 Ill. 628, 629 (1903),
where the plaintiff had alighted from one train onto an “island platform” and was in the process of
boarding a connecting train when she was injured. Katamay noted Burgess’ reliance on Chicago &
Eastern Illinois R.R. Co. v. Jennings, 190 Ill. 478 (1901) (a case we discuss at length later), holding
that if a person is in the place for passengers, such as a station platform, with a ticket and intending to
take a conveyance, that person has the right of a passenger. Katamay used both these cases and the
others to justify its holding that one need not be in actual contact with the train in order to be a passenger
but must be moving toward it for that purpose. While some might interpret Katamay’s reliance on those
cases as justifying the conclusion that anytime a person is on a train platform, he is a passenger, we
think Katamay only demonstrates that the analysis for determining who is a passenger is much more
nuanced. Also contradicting any such conclusion is the fact that the cases Katamay relied upon
primarily all involved a passenger alighting or boarding a train and not simply remaining on the
platform. Regardless of the cases relied on, Katamay’s principal holding remains more narrow.
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convert him to a CTA passenger. See Fillpot v. Midway Airlines, Inc., 261 Ill. App. 3d 237,
243 (1994) (“the defendant’s duty of highest care applies when passengers entrust the common
carrier to protect them from dangers to which they may not otherwise have been exposed and
from which they cannot otherwise protect themselves”); cf. Katamay, 53 Ill. 2d at 31-32 (noting
factors for determining passenger status). Unlike in Katamay, in this case decedent was not at
all engaged in the act of boarding the train, as there was no train even in sight at the time of
his accidental fall. He thus was by no means a passenger to whom the CTA owed a heightened
duty of care.
¶ 31 In reaching this conclusion, we disagree with plaintiff’s reliance on Skelton, where the
plaintiff and his girlfriend entered the Oak Park station intending to pay their fare when they
boarded, and both waited on the platform for the train. On seeing it, plaintiff stood on the
platform edge, waving at the train before losing his balance and falling onto the tracks, where
he was injured by an oncoming train. Although there was some evidence that plaintiff had been
drinking alcohol and was half asleep when he fell off the track, Skelton concluded the defendant
had placed himself at the proper place to be transported with the intention of becoming a
passenger and was thus a passenger at the time of his injury. Thus, the CTA, as a matter of
law, owed plaintiff the highest duty of care in his action for negligent operation of the train.
¶ 32 Skelton, even at first glance, is distinguishable from this case since there the plaintiff was
at least waving at a train he intended to board and was struck by it. Even apart from that fact,
we find Skelton of questionable value since the acts of waving at a train or being half-asleep
and falling off the track are not ones that an individual takes to board a train or submit to the
carrier’s control. Such actions also do not show an acceptance by the carrier of a person as a
passenger. See Todd v. Louisville & Nashville R.R. Co., 274 Ill. 201, 208 (1916) (where train
was moving at the time the decedent tried to get on, the employees “in charge of the train never
assented, either directly or impliedly, to his becoming a passenger on the train”). Likewise, we
find Skelton’s holding—that the plaintiff’s presence on the platform, together with intent to
board, was enough to make him a passenger—misplaced.
¶ 33 This is because to reach that conclusion, Skelton relied on a factually inapposite, although
still vibrant, 1901 supreme court case, Chicago & Eastern Illinois R.R. Co. v. Jennings, 190
Ill. 478 (1901). There, the plaintiff’s decedent was killed when he crossed the railroad tracks
while on his way to the train depot. Jennings noted that the high duty of care on the part of the
common carrier arises “when the contract relation begins” and if the plaintiff-decedent is “at
the place provided for passengers, such as [a] waiting room or platform at the station, with the
intention of taking passage and has a ticket, he is entitled to all the rights and privileges of a
passenger.” Id. at 483. Significantly, the court went on to state that such a person must have
placed himself “under the control of a carrier in order to be entitled to its care as a passenger,”
as the mere fact of having a ticket or intending to take the train does not suffice. Id. at 484.
Jennings wrote that the relationship is often understood by implication, where “one has offered
himself to be carried, and that the offer has been accepted by the carrier.” Id. at 485. Given that
the decedent was crossing the railroad tracks and had not reached any place provided for
passengers, Jennings held that he was not a passenger, and thus no high duty of care existed,
but rather an ordinary one.
¶ 34 Jennings and its progeny rightly stand for the proposition that a person cannot be a
passenger to whom the carrier owes a high duty of care when they are not even on the common
carrier’s premises. See, e.g., Pence v. Northeast Illinois Regional Commuter R.R. Corp., 398
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Ill. App. 3d 13, 18 (2010) (noting the plaintiff injured in middle of a public roadway of the
Metra track system was not a passenger); Del Real, 404 Ill. App. 3d at 73 (noting the plaintiff
who only attempted to board the platform was not a passenger). Skelton, however, seems to
gloss over that factual distinction. Moreover, as delineated above, this case presents a different
factual scenario.
¶ 35 Having reviewed the cases and parties’ arguments, we conclude that mere presence on a
CTA platform, followed by an accidental death on the train tracks possibly from a medically-
induced condition, without more, does not garner the injured person the status of a “passenger”
to whom the CTA owes the highest duty of care, notwithstanding that the injured person paid
his fare and at one point had intentions of boarding a train. Katamay and other Illinois common-
carrier cases, dealing with third-party attacks on the platforms, support this conclusion. For
example, in Neering v. Illinois Central R.R. Co., 383 Ill. 366 (1943), the plaintiff was assaulted
on the station platform while awaiting the arrival of a train and subsequently sued the railroad
company. The supreme court noted the question on appeal was whether the railroad company
had provided sufficient protection for its passengers at its station platform to prevent them from
being assaulted. The court noted the parties had conceded that plaintiff “was a passenger after
arriving on the station platform” but that the railroad nonetheless only owed her “the duty of
ordinary care.” Id. at 374. The court wrote that, instead,
“[t]he rule requiring the highest degree of care on the part of railroad companies for the
protection of passengers applies only to the operation of trains and immediate incidents
of transportation, and as to station buildings and other appurtenances the carrier is
required to exercise only ordinary care to keep them in reasonably safe condition for
use.” 4 (Emphasis added.) Id.
See also Hopkinson v. Chicago Transit Authority, 211 Ill. App. 3d 825, 838-41 (1991). It has
also been said that a common carrier must “exercise with regard to its passengers the highest
degree of care consistent with its mode of conveyance and practical operation.” (Emphasis
added.) Loring v. Yellow Cab Co., 33 Ill. App. 3d 154, 157 (1975); see also Krywin, 238 Ill.
2d at 227 (same).
¶ 36 Returning to the case at bar, there were no trains or “immediate incidents of transportation”
that should have warranted the higher duty of care. See Neering, 383 Ill. at 374; see also Roth
v. Costa, 272 Ill. App. 3d 594, 596 (1995) (“Although a carrier owes a high degree of care
when actually transporting its passengers, it owes only ordinary, reasonable care to passengers
in its stations and on its platforms.”); Jones, 206 Ill. App. 3d at 138 (noting “it is well
established that once a passenger has safely alighted from a train, the only duty a carrier owes
a passenger that debarked from the train is the duty of ordinary care”); cf. Aliotta v. National
R.R. Passenger Corp., 315 F.3d 756, 768 (7th Cir. 2003) (“At least when they are victims of
4
Since Neering, the legislature passed the Metropolitan Transit Authority Act, which controls the
CTA’s powers and responsibilities. 70 ILCS 3605/1 et seq. (West 2016). Section 27 provides that the
CTA board may appoint a police force to aid the municipal force to protect CTA property, passengers,
and employees. Perhaps recognizing the impracticality of protecting against all crime, the legislature
also thought to immunize the CTA from lawsuits for third-party crimes: “Neither the [CTA], the
members of its Board nor its officers or employees shall be held liable for failure to provide a security
or police force or, if a security or police force is provided, for failure to provide adequate police
protection or security, failure to prevent the commission of crimes by fellow passengers or other third
persons or for the failure to apprehend criminals.” 70 ILCS 3605/27 (West 2016).
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accidents which involve the trains themselves, persons who are on the platform with intent to
board a train are passengers ***.”). Nor would the high duty of care plaintiff wishes us to adopt
be reasonably consistent with the CTA’s “mode of conveyance and practical operation.” See
Loring, 33 Ill. App. 3d at 157; see also Krywin, 238 Ill. 2d at 227.
¶ 37 Our holding is consistent with the policy reasons behind the high duty of care between a
common carrier and passenger. Indeed, the common carrier has the most control, and thus is
in the best position to protect against the risk of harm, when the carrier is about to transport or
is in the process of actively transporting a passenger. See Krywin v. Chicago Transit Authority,
391 Ill. App. 3d 663, 668 (2009), aff’d, 238 Ill. 2d 215 (2010) (“passengers must wholly rely
upon a common carrier’s proper maintenance and safe operation of its equipment during
passage”). As expressed in Davis v. South Side Elevated R.R. Co., 292 Ill. 378, 381-82 (1920),
where the court held that only an ordinary duty of care was owed to a plaintiff who was injured
after slipping and falling on a banana peel left on the landing of the station stairs:
“ ‘A railroad company is held to the highest degree of care in respect to the condition
and management of its engines and cars, because negligence in that respect involves
extreme peril to passengers, against which they cannot protect themselves. It would not
act reasonably if it did not exercise greater care in equipping and running its trains than
in regard to the condition of its station grounds.’ ” Id. (quoting Moreland v. Boston &
Providence R.R. Co., 6 N.E. 225, 227 (Mass. 1886)).
¶ 38 In addition to these precedents, section 314 of the Restatement (Second) of Torts, which
details the duties owed by a common carrier to its passengers, supports our holding. Although
plaintiff asserts comment d to section 314A and the illustrations favor her legal position
regarding decedent’s status as a passenger, we find quite the contrary. See Restatement
(Second) of Torts § 314A cmt. d, at 119-20 (1965). A brief analysis proves that plaintiff’s
position here is quite a misstatement of the Restatement (Second) of Torts. That is because the
illustrations noted in the Restatement (Second) of Torts all describe injuries to passengers on
a train. In illustration 1, for example, a passenger on the train of the defendant railroad falls
off the train and is injured; the crew discovers that he has fallen, but they do nothing to aid
him. See Restatement (Second) of Torts § 314A illus. 1, at 120 (1965). In illustration 2, a
“passenger riding on the train *** suffers an apoplectic stroke and becomes unconscious. The
train crew unreasonably assume that [he] is drunk, and do nothing to obtain medical assistance
for him,’ ” which leads to an aggravation of his illness over five hours. Restatement (Second)
of Torts § 314A illus. 2, at 120-21 (1965). As the reader can see, these illustrations are in no
way similar to the factual situation in the case sub judice. As stated, decedent was not on the
train and did not fall from the train.
¶ 39 Last, there is no competent evidence the CTA had constructive or actual notice of decedent
being in the midst of a medical emergency. A common carrier is not liable when he lacks
knowledge of an unreasonable risk, illness, or injury. Restatement (Second) of Torts § 314A
cmt. e, at 119 (1965). By contrast, “[w]hen a common carrier knows that a passenger is affected
by a physical or mental disability which increases the hazards of travel, a degree of attention
should be bestowed on their safety beyond that due to an ordinary passenger.” 7 Ill. L. & Prac.
Carriers § 263, at 67 (updated 2018). In a somewhat analogous fashion, common carriers owe
“helplessly intoxicated” passengers a high duty of care, although not a duty of continuous
monitoring, once the carrier knows of the intoxication. See Panor v. Northwestern Elevated
R.R. Co., 228 Ill. App. 162, 175, 180 (1923) (applying highest duty of care where “the servants
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of a carrier put a helplessly intoxicated passenger off on a dangerous platform, with knowledge
of his condition,” then left him “without further care” such that he was injured); but see
St. Louis, Alton & Terre Haute R.R. Co. v. Carr, 47 Ill. App. 353, 358 (1892) (“If a passenger
voluntarily becomes intoxicated, the law does not impose the duty on the common carrier to
place a guard over such passenger to prevent him from injuring himself, or placing himself in
a place of danger.”).
¶ 40 Apart from the fact that the decedent here was not a passenger, the video itself contradicts
plaintiff’s allegation that CTA employees even observed decedent or his alleged aberrant
activities. See Gaines v. Chicago Transit Authority, 346 Ill. App. 3d 346, 349 (2004) (a carrier
is not liable for injuries that result from a cause beyond its control); cf. Suarez v. Trans World
Airlines, Inc., 498 F.2d 612, 613-17 (7th Cir. 1974) (airline owed highest duty of care to
passenger with prepaid ticket who had informed airline of her disabled condition, and
requested a wheelchair, but was then left in the lobby for two hours and suffered a heart attack).
It also contradicts plaintiff’s allegation that decedent was displaying clear signs and symptoms
of a medical emergency because not only did 11 trains pass by decedent without the train
operators having any responsive action but so too did a number of passengers. And, indeed,
there is no reason why anyone should have taken note of decedent’s somewhat erratic activity.
To state the obvious, the bus stations and train platforms of Chicago have plenty of people who
are not acting in an entirely normal way, so decedent’s behavior, even if specifically observed,
would not look that out-of-place at an “L” station. Even considered with the improved vision
of hindsight, the decedent gave all appearances of nothing more than a commonly observed
mass transit platform habitué.
¶ 41 Special Duty of Care: The Business Invitor-Invitee Relationship
and Whether an Ordinary Duty of Care Applies
¶ 42 Having found decedent was not a train passenger but merely a CTA customer lingering on
the platform, we turn to the next stage of our analysis. The parties agree that decedent was a
business invitee and the CTA was a business invitor, which by itself only gives rise to an
ordinary, reasonable duty of care. See Marshall, 222 Ill. 2d at 437; Roth, 272 Ill. App. 3d at
596; see also Davis, 292 Ill. at 381 (noting there was no reason to hold a railroad company to
“a higher degree of care in maintaining its station buildings than that to which an individual
owner of buildings used for ordinary business purposes is held”). It is worth noting that
although both the special relationships of carrier-passenger and business invitor-invitee
generally give rise to an affirmative duty to aid or protect another against unreasonable risk of
physical harm and to render care to the ill or injured, case law dictates that the carrier-passenger
relationship garners a higher duty of care than does the business invitor-invitee. See Marshall,
222 Ill. 2d at 438-39; Restatement (Second) of Torts § 314A (1965).
¶ 43 With respect to the business invitor-invitee relationship, we find Parra v. Tarasco, Inc.,
230 Ill. App. 3d 819, 822 (1992), instructive. There, the plaintiff estate of the decedent filed a
wrongful death negligence suit after the decedent died when he choked on a piece of food in
the defendant’s restaurant. It was undisputed that the choking was not due to a foreign
substance in the food or food poisoning. The plaintiff nonetheless alleged the defendant
restaurant was negligent, in part, for failing to post conspicuous instructions for patrons and
employees regarding first-aid assistance to choking patrons and the restaurant further failed to
assist decedent when he was choking or summon prompt medical aid. This court recognized
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the invitor-invitee special relationship warranted an ordinary duty of care on the defendant’s
part but nonetheless held that there was no duty “on a restaurateur to rescue a customer from a
danger which was not caused in the first instance by the restaurateur.” Id. at 822. Instead, the
court wrote that the cause of the injury was “wholly idiopathic, i.e., it is of an internal, personal
origin.” Id. Parra reasoned that a restaurateur is not an insurer of his customers’ safety against
all personal injuries, nor does he have a duty as to conditions or risks that are ordinary and are,
or should be, known or obvious to the patron. Under Parra, an invitor’s ordinary duty is not
broad enough to require the invitor to aid a customer suffering from a natural cause that is not
attributable to the invitor.
¶ 44 Here, plaintiff similarly argues that the CTA has the duty to “monitor” the platform for
anyone acting in a manner that might suggest a medical problem or the need for a referral to
medical personnel. This monitoring duty, plaintiff argues, would extend to any CTA
employees who had the opportunity to observe decedent while he was lingering by himself on
the platform for about 30 minutes. Plaintiff also suggests that the monitoring should include
having somebody monitor the video camera feed (presumably in real time) to look out for
disturbed or disoriented individuals.
¶ 45 We find, as in Parra, that plaintiff has not cited any Illinois case law providing that the
CTA’s ordinary duty toward invitees requires its employees to monitor the station platforms
to determine whether plaintiff was in the throes of a medical problem requiring attention or to
intervene and rescue a customer from a wholly idiopathic illness. Plaintiff has not identified
any Illinois cases elevating the CTA’s duty as an invitor to such a degree that it could be
expected to execute a carrier’s version of emergency triage. It is noteworthy that plaintiff has
asserted a conclusory allegation of medical emergency without identifying what causes
diabetic shock, how it can be identified, or how it can be treated. Given that it is the crux of
her lawsuit, we do not believe it is a well-pled allegation, nor has plaintiff provided any medical
documents to corroborate the allegation in the face of the motion to dismiss.
¶ 46 Bluntly put, the CTA is not an insurer of the safety of every individual customer and
passenger but is focused on ensuring mass transit for the public at large. Bilyk v. Chicago
Transit Authority, 125 Ill. 2d 230, 243 (1988). The CTA was not in the best position to monitor
and maintain decedent’s health. The decedent was. As in Parra, the CTA does not have a duty
to scan its platforms for conditions or risks which are, or should be, known or obvious to the
customer. This includes individual medical maladies and not standing so near the edge of a
platform over train tracks when feeling ill. See Choate v. Indiana Harbor Belt R.R. Co., 2012
IL 112948, ¶¶ 31-32 (in Illinois, falling from a height is considered an obvious danger, as is a
moving train, and there can be no recovery for injuries caused by a danger found to be obvious).
In short, we find the ordinary duty of care the CTA owes to its customers and passengers does
not encompass the allegations in plaintiff’s complaint.
¶ 47 In reaching this decision, we recognize that Illinois’s treatment of certain special
relationships, as compared with the Restatement, presents an anomaly. The Restatement’s
section 314A, does not assign different levels of duty to the four special relationships identified
therein. Instead, that section requires only the exercise of reasonable care under the
circumstances and applies “where the relation exists between the parties, and the risk of harm,
or of further harm, arises in the course of that relation.” Restatement (Second) of Torts § 314
cmt. c, e, at 119 (1965). Additionally, comment d clarifies that the duty to give aid to an ill or
injured person extends to cases involving natural causes and pure accident, such as the case
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alleged at hand. Id. However, under Illinois case law, the CTA would have a heightened duty
of care toward decedent only if he were a passenger. 5
¶ 48 The Restatement and Illinois case law do not explain the different levels of duty assigned
nor what they entail on a practical level. It seems, however, that “heightened duty” means that
the ordinary duty owed in every special relationship case may be broader in certain
circumstances, providing a plaintiff more ways to allege that a legal duty was triggered. See
Danile v. Oak Park Arms Hotel, Inc., 55 Ill. App. 2d 2, 9 (1964) (an innkeeper-guest case
noting “a reasonable degree of care is a high degree of care”). Additionally, we note that the
high standard due to a carrier is a holdover legal principle that derives from English and early
American common law, developed in particular during the Industrial Revolution. See Robert
J. Kaczorowski, The Common-Law Background of Nineteenth-Century Tort Law, 51 Ohio St.
L.J. 1127, 1158 (1990). As one early Connecticut court wrote, the reason for this high standard
is that the carrier “has, for the time being, committed to his trust the safety and lives of people,
old and young, women and children, locked up, as it were, in the coach or rail-car, ignorant,
helpless, and having no eyes, or ears, or power to guard against danger, and who look to him
for safety in their transportation” such that “as far as human foresight and care can reasonably
go, he will transport them safely.” Dewort v. Loomer, 21 Conn. 245, 253-54 (1851). In such
cases, the common carrier “is liable for the smallest negligence in himself or his driver.” Id. at
254; see also Stokes v. Saltonstall, 38 U.S. (1 How.) 181, 190-91 (1839) (requiring the stage
coach driver to act with “the utmost prudence and caution” and “if the disaster in question was
occasioned by the least negligence, or want of skill, or prudence on his part, then the defendant
is liable in this action”).
¶ 49 Thus, the heightened or broadened duty seems to apply to situations where the defendant,
like the common carrier or innkeeper, has a greater degree of control over the plaintiff
passenger or guest. However, as set forth in this case, the CTA owes decedent no heightened
duty because he was not a passenger, and the CTA lacked knowledge of his condition. Under
Parra, the CTA also does not owe any duty to aid in these circumstances, notwithstanding the
business invitor-invitee special relationship. Plaintiff therefore failed to establish a legal duty.
¶ 50 Policy Considerations and the Legal Burden on the CTA
¶ 51 Even assuming a duty of reasonable care (or even the highest degree of care, in our
judgment), plaintiff’s suit still cannot proceed because requiring the CTA to perform a
layman’s triage to sort out an emergent medical condition would be entirely unreasonable and
impractical, negating the existence of a legal duty. See Krywin, 238 Ill. 2d at 232-33. In other
words, the factors relied on by the CTA support the creation of an exemption from that duty.
See Marshall, 222 Ill. 2d at 437.
¶ 52 The courts and legislature have recognized that the continued operation of the CTA is
essential for the Chicago metropolitan area. Bilyk, 125 Ill. 2d at 238. As the CTA noted in its
motion to dismiss, this court may take judicial notice of the magnitude of the CTA’s operations.
Joseph v. Chicago Transit Authority, 306 Ill. App. 3d 927, 936 (1999). In its motion, the CTA
noted that in 2015, CTA trains ran on 224.1 miles of track, they made about 2145 trips daily,
The heightened duty of care also applies to the special relationship of innkeeper-guest. See Gress,
5
2018 IL App (1st) 170380, ¶ 16.
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and the CTA serviced 145 stations. The annual ridership had reached 241.7 million, with the
total ridership at the Kedzie-Homan Blue Line station being 405,253.
¶ 53 In a city as large as Chicago with its plethora of trains, buses, and customers and
passengers, it is simply infeasible for the CTA to hire people who could make a differential
diagnosis on the bus stop or train platform. A CTA maintenance worker or train operator surely
has some skills for their position, but they do not include acting as a first responder or a
paramedic. Decedent, after all, was standing and/or ambulating on a train platform, not in a
hospital emergency room waiting area. The type of monitoring plaintiff suggests could also
lead to undue delays should the CTA be required to turn off the third rail anytime a customer
acted in an aberrant way. Additionally, plaintiff’s suggestion that these practices are forms of
protection delineated in the Restatement’s section 314A(1)(a), is quintessential, legal
hyperbole that is not rooted to the factual or legal situation with which we are confronted. That
is, section 314A is grounded in reasonableness; plaintiff’s position is not. Likewise, enlarging
duty to encompass the situation presented in this case could expose the CTA to liability for a
customer’s mental health problems and other medical problems not of the CTA’s own making.
This would undercut the mass transit legislative purpose of the CTA by diverting public funds
to guard against these lawsuits.
¶ 54 Therefore, even assuming a medical condition and injury like that present in this case were
reasonably foreseeable and likely to cause injury or death of a customer or passenger on a CTA
platform, we conclude the magnitude of the burden of guarding against the injury and the
consequences of placing that burden on the CTA would be too great. See Krywin, 238 Ill. 2d
at 234-35; Serritos v. Chicago Transit Authority, 153 Ill. App. 3d 265, 271-72 (1987).
¶ 55 CONCLUSION
¶ 56 For the reasons to follow, we conclude there was no legal duty owed by the CTA to
decedent. As such, we affirm the judgment of the circuit court dismissing plaintiff’s lawsuit.
¶ 57 Affirmed.
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