Benamon v. Soo Line R.R. Co.
Annotate this Case
THIRD DIVISION
December 31, 1997
No. 1-96-1603
CATHERINE BENAMON, Individually )
and as Mother and Next Friend of )
WILLIAM BENAMON, a minor, )
) Appeal from the Circuit
Plaintiff-Appellant, ) Court of Cook County.
)
v. )
)
SOO LINE RAILROAD COMPANY, a ) Honorable Philip L.
foreign corporation, and THE BELT ) Bronstein, Judge
RAILWAY COMPANY OF CHICAGO, an ) Presiding.
Illinois corporation, )
)
Defendants-Appellees. )
JUSTICE GORDON DELIVERED THE OPINION OF THE COURT:
Catherine Benamon, individually and as mother and next
friend of William Benamon, a minor, filed a negligence action
against defendants Soo Line Railraod Company and the Belt Railway
Company of Chicago seeking to recover for William's injuries
sustained when William's foot allegedly became lodged between the
rails on a train overpass. William was unable to extricate
himself before a train drove by causing partial amputation of his
left leg. The defendants moved for summary judgment alleging
that they owed no duty to William because he was a trespasser.
The trial court agreed, granting summary judgment to the
defendants; and the plaintiff appeals.
On appeal, the plaintiff concedes that William was a
trespasser but argues that the defendants owed William a duty of
reasonable care because William's presence on the overpass was
privileged due to private necessity; because William was a
permissive user of the overpass; and because William was a minor
and a dangerous condition existed upon the overpass. The
plaintiff also argues that the defendants owed William a duty to
warn under section 337 of the Restatement of Torts (Restatement
(Second) of Torts 337 (1965)).
Summary judgment is appropriate only if the pleadings,
depositions and admissions on file, together with affidavits, if
any, show that there is no genuine issue as to any material fact
and the moving party is entitled to judgment as a matter of law.
735 ILCS 5/2-1005 (West 1996). In ruling on a motion for summary
judgment, the trial court must construe the pleadings,
depositions and affidavits in the light most favorable to the
nonmoving party. Soderlund Brothers, Inc. v. Carrier Corp., 278
Ill. App. 3d 606, 663 N.E.2d 1 (1995). Although a plaintiff is
not required to prove his or her case at the summary judgment
stage, some evidentiary facts to support the elements of the
claim must be presented. Helms v. Chicago Park District, 258
Ill. App. 3d 675, 630 N.E.2d 1016 (1994). An appellate court's
review of a summary judgment is de novo. Myers v. Health
Specialists, S.C., 225 Ill. App. 3d 68, 587 N.E.2d 494 (1992).
In the instant case, the undisputed facts before the court
on the defendants' motion for summary judgment show that the
defendants owned and maintained the railroad tracks and the
right-of-way at the overpass located near 300 North Fulton in
Chicago on January 13, 1992.
In his deposition, William testified that on January 13,
1992 at approximately 5 or 6 p.m., he was walking home after
watching a basketball game at a grammar school. William was 15
years old at the time. As William passed a group of boys playing
basketball in an alley, one of the boys asked him for a
cigarette. William told the boy he did not smoke and continued
walking. When he looked back, he saw the boys pointing at him
and running towards him. William thought they might want to
steal his "Bulls" coat. William testified that he ran up the
railway incline near 300 North Fulton onto the tracks by the
girder to hide because he was scared and wanted to do "anything
to try to get away." He was approximately three blocks from home
but did not want the gang to see where he lived. After William
thought the gang was gone, he attempted to leave the area but his
foot fell between the steel grates next to one of the wooden
rails. He tried but could not extricate his foot before a
passing freight train partially amputated his left leg below the
knee.
William also testified in his deposition that he saw
numerous graffiti marks on the girders near the tracks. He
stated that he had never been upon the tracks prior to the
accident and that none of his friends went up on the tracks.
William stated that during the four years prior to his accident,
he saw other children playing up on the tracks and throwing rocks
on three or four occasions. He stated that he saw the children
on the tracks somewhere between Fulton and West End. William did
not know where they got onto the tracks. Over objection, William
also testified that it was dangerous for the children to be on
the tracks because "[t]hey could get killed."
Roger A. Fricke, the Soo line engineer who operated the
freight train that injured the plaintiff, testified that he saw
children playing on the tracks on other occasions but could not
recall seeing them at the Fulton location.
Thomas A. Charniak, a member of the police department for
Belt Railway since 1969, testified that he investigated William's
accident. He testified that prior to that occurrence he had
never investigated a pedestrian/train accident in the Fulton
area. He stated that he was not aware that children in the area
used the tracks or embankment to cross over to the other side of
the tracks at the Fulton location. Charniak also identified a
photograph which showed graffiti on the center girder in the area
where William was injured.
Jeffrey Hinkle, a private investigator for the short line
railroad industry, hired by the defendants, testified in his
deposition that during his investigation of the accident scene he
noticed some graffiti on the girders. He stated that he did not
see any other indications that the area had been frequented by
anyone other than railroad employees. He did not notice any
trails or tracks on the embankment leading up to the overpass and
did not recall seeing any footprints or any other indication that
the embankment was used by people to reach the top of the
overpass.
I. Private Necessity
It is axiomatic that a plaintiff in a negligence action must
establish duty, breach of duty, and injury proximately caused by
that breach. E.g., Ward v. K Mart Corp., 136 Ill. 2d 132, 554 N.E.2d 223 (1990); Rodriguez v. Norfolk & Western Ry. Co., 228
Ill. App. 3d 1024, 593 N.E.2d 597 (1992). Traditionally, the
duty of care owed by a landowner to a person entering the
premises was dependent upon that person's status. See, e.g., Lee
v. Chicago Transit Authority, 152 Ill. 2d 432, 605 N.E.2d 493,
498 (1992); Miller v. General Motors Corp., 207 Ill. App. 3d 148,
565 N.E.2d 687 (1990). See generally Restatement (Second) of
Torts 333 through 344 (1965). However, the Premises Liability
Act (740 ILCS 130/1 et seq. (West 1992)) adopted in Illinois in
1984 abolished the common law distinctions of invitee and
licensee providing, instead, that the duty owed to entrants is
that of "reasonable care under the circumstances regarding the
state of the premises or acts done or omitted on them." 740 ILCS
130/2 (West 1992). As to trespassers, however, the Premises
Liability Act reaffirmed the general common law rule that no duty
of reasonable care is owed a trespasser except to refrain from
wantonly or willfully injuring him. 740 ILCS 130/3 (West 1992);
Lee, 152 Ill. 2d 432, 605 N.E.2d 493; Kahn v. James Burton Co., 5 Ill. 2d 614, 126 N.E.2d 836 (1955); Rodriguez, 228 Ill. App. 3d
1024, 593 N.E.2d 597. A trespasser "is a person who enters or
remains upon land in the possession of another without a
privilege to do so created by the possessor's consent or
otherwise." Restatement (Second) of Torts 329, at 171 (1965).
See also Rodriguez, 228 Ill. App. 3d 1024, 593 N.E.2d 597.
Illinois courts have created certain exceptions to the
general rule of duty with respect to trespassers. Lee, 152 Ill. 2d 432, 605 N.E.2d 493. One such exception exists where the
trespasser enters the property of another pursuant to the
privilege of private necessity, that is, for the purpose of
advancing or protecting his own interests, the property owner
owes a duty of reasonable care under the circumstances. West v.
Faurbo, 66 Ill. App. 3d 815, 384 N.E.2d 457 (1978). See
generally Restatement (Second) of Torts 345, Comment a, at 227
(1965).
On appeal, the plaintiff first contends that the defendants
owed William a duty of reasonable care because William was
privileged to be on defendants' property due to the existence of
a private necessity. The plaintiff argues that William's
deposition testimony shows that he was forced to go up the
incline and onto the overpass for safety reasons and to protect
his well-being. She argues that William's testimony showed that
he reasonably feared for his immediate safety after the gang of
boys began chasing him. She further argues that William was
justified in hiding amongst the girders on the railroad overpass
because he did not want the boys to see where he went or where he
lived.
We disagree. The private necessity privilege allows one to
enter the premises of another without permission in an emergency
situation when such entry is reasonably necessary to avoid
serious harm. Restatement (Second) of Torts 345, 197 (1965).
However, as provided in the Restatement (Second) of Torts, "the
privilege must be exercised at a reasonable time and in a
reasonable manner" and in light of all of the circumstances.
Restatement (Second) of Torts 197, Comment a, at 355, Comment c,
at 356 (1965). Here, the deposition testimony of William
suggests that his entry upon the railroad overpass was for his
self-protection and to avoid the threat of bodily harm posed by
the gang of boys chasing him. However, even if we were to agree
that William's belief in that threat was reasonable, we cannot
agree that the action he took to avoid that threat was
reasonable. In his alleged effort to hide from his assailants,
William chose to hide near the girders on the railroad tracks.
It is without question that the hazards posed by oncoming
railroad trains presents a serious threat of harm to persons on
or near the tracks. William, himself, testified that it was
dangerous to be on the tracks and that children could get killed
playing up there.
Moreover, as the trial court noted, William had other,
more safe, options available to him. Those options included
running home, running to a nearby house, or running back to the
grammar school where he had watched a basketball game. The
plaintiff argues that a material question of fact exists as to
whether any of these options would have provided for William's
safety. The plaintiff argues that it would have been nonsensical
for William to run back to the school because he would have had
to run into the path of the boys chasing him. With respect to
the option of running home, the plaintiff notes that William
testified that he did not run home because he did not want the
boys to see where he lived. However, notwithstanding the
viability of those particular options, it is clear that William
was not forced upon the tracks. It is also clear that, having
chosen to hide, he could have chosen a less dangerous place to
hide. Instead, he ran up the embankment to hide in an area known
to be inherently dangerous.
This factual situation is inapposite to that which existed
in West v. Faurbo, 66 Ill. App. 3d 815, 384 N.E.2d 457 (1978),
the only Illinois case cited by the parties on the private
necessity exception. In that case, the plaintiff, a 13-year-old
boy, who was riding his bicycle, had no choice but to swerve onto
defendant's property to avoid an oncoming automobile. The
decision to enter the defendant's property, a grassy area near a
driveway and about four to five feet from the edge of the
sidewalk, was instantaneous. There was no time for forethought.
Moreover, the grassy area was not inherently dangerous and, in
fact, was just off the sidewalk and in the proximity of a parking
lot meant to be used by members of the public, namely, patrons of
the defendant's lounge. (In fact, the plaintiff alternatively
argued that he was a licensee in view of the proximity of his
injury to the public parking lot.) Here, unlike in West, the
defendant had time, albeit minimal, and opportunity to choose a
course of action. William chose to run onto an area not meant
for public use and not easily accessible to the public. The area
was not street level; it was elevated so as to deter public
access. Under the circumstances, we must conclude as a matter of
law that, given the existence of less dangerous options, and
given the known risks associated with the railroad tracks, that
William's presence on or near those tracks was not reasonable and
thus his presence on those tracks was not a private necessity so
as to entitle William, a trespasser, to a higher standard of
care. Restatement (Second) of Torts 197, Comments a, c; 345
(1965).
Moreover, even if William's presence upon the defendants'
property was of private necessity, which we hold it was not, we
would question William's further contention that the defendants
owed him a duty of reasonable care. At the time West v. Faurbo,
66 Ill. App. 3d 815, 384 N.E.2d 457 (1978) was decided, Illinois
determined premises liability issues on the basis of the status
distinctions of invitee, licensee and trespasser as set forth in
the Restatement (Second) of Torts (see Restatement (Second) of
Torts 328E to 350 (1965)). Thus, the court in West applied the
private necessity exception set forth in section 345 of the
Restatement (Second) of Torts so as to treat the trespasser as a
licensee. In that regard, the court held that the defendants
owed the plaintiff a duty to refrain from injury by willful and
wanton misconduct; to exercise reasonable care in his "active
operations"; and to warn of known hidden or latent dangers.
Approximately six years after West was decided, the Illinois
legislature adopted the Illinois Premises Liability Act (740 ILCS
130/1 et seq. (West 1992)). As discussed above, that Act
abolished the common law distinctions of invitee and licensee
providing, instead, that the duty owed to entrants is that of
"reasonable care under the circumstances regarding the state of
the premises or acts done or omitted on them." 740 ILCS 130/2
(West 1992). One could argue, as the plaintiff does, that a
trespasser who enters the property of another under private
necessity, considered to be a licensee, is now entitled to the
greater protection of reasonable care since there is no longer a
distinction between licensees and invitees. We would disagree
with such an argument. We believe that the abolishment of the
licensee/invitee distinction in Illinois would not heighten the
duties owed by a possessor of land to a person who enters his
land under private necessity. There can be no logical reason to
afford a greater protection of reasonable care to such a person,
who, in actuality, is a trespasser and who enters the property
without the possessor's permission and without benefit to the
possessor. Thus, we would hold that had William satisfied the
private necessity exception, the defendants would have owed him
the duties applicable to licensees, such as to warn of any latent
defects in the track configurations.
II. Permissive User
The plaintiff next argues that the trial court erred in
finding that William was not a permissive user of the premises.
Under the permissive user exception, a landowner owes a duty
of reasonable care to a trespasser when the landowner permits
regular use of his land for travel or otherwise and where the
landowner is engaged in a dangerous activity involving a risk of
death or serious bodily harm. Rodriguez v. Norfolk & Western Ry.
Co., 228 Ill. App. 3d 1024, 593 N.E.2d 597 (1992). See generally
Restatement (Second) of Torts 334 (1965). In accordance with
this exception, a duty of care extends because it is said that
the landowner's continued toleration of the trespassers'
intrusion amounts to permission to make use of the land.
Rodriguez, 228 Ill. App. 3d 1024, 593 N.E.2d 597; Miller v.
General Motors Corp., 207 Ill. App. 3d 148, 565 N.E.2d 687
(1990). However, in order for a possessor of land to be subject
to liability under this rule, it is necessary that the possessor
know, or from facts within his knowledge should know, that
persons constantly and persistently intrude upon some particular
place within the land. Miller, 207 Ill. App. 3d 148, 565 N.E.2d 687. It is not enough that he know or have reason to know that
persons persistently roam at large over his land. Restatement
(Second) of Torts 334, Comment d, at 186-87 (1965).
Here, the plaintiff contends that there is ample indication
from the record of constant intrusion by others. The plaintiff
cites to deposition testimony of William and Jeffrey Hinkle
concerning the existence of graffiti on the girders near the
tracks and to the deposition testimony of William and Soo Line
engineer, Roger Fricke, that they saw children along the tracks.
We do not agree that the testimony provided in this regard
established the constant intrusion necessary to impose a duty of
reasonable care upon the defendants under the permissive user
theory.
Initially, we note that William's testimony concerning the
presence of children upon the tracks established that that
presence was minimal, three or four occasions during the four
years preceding William's injury. Also, William stated that he
saw the children playing somewhere between Fulton and West End,
not at the location where he had been injured. Fricke testified
that he saw children playing on the tracks but could not recall
seeing them at the Fulton location where William was injured.
The deposition testimony of Hinkle as well as Thomas Charniak, a
police officer for defendant Belt Railway, also disproved any
contention of frequent intrusion by trespassers. Hinkle
testified that during his investigation of the accident scene, he
did not notice any trails or tracks on the embankment leading up
to the overpass. He stated that he did not recall seeing any
footprints or any other indication that the embankment was used
regularly by people to reach the top of the overpass. Charniak
testified that since his employment with Belt Railway in 1969, he
had never investigated a pedestrian/train accident in the Fulton
area where William was injured. He also stated that he was not
aware that children used the tracks or embankment to cross over
to the other side of the tracks at the Fulton location. Finally,
although there was some testimony as to the existence of graffiti
upon the girders, there was no testimony establishing when the
graffiti was placed upon the girders, how often it occurred, or
how often it reoccurred after any obliteration. It may very well
be that the graffiti was placed on the girders on a few limited
occasions.
As a result of these insufficiencies in the submissions to
the trial court, it can be said as a matter of law that the
plaintiff did not establish a constant intrusion by trespassers
upon the area of the overpass where William was injured. Absent
indicia of constant intrusion, the plaintiff could not establish
that the defendant railroads knew or should have known that
trespassers frequented the area where William was injured and,
thus, the defendants owed no duty of reasonable care to William.
See Rodriguez, 228 Ill. App. 3d 1024, 593 N.E.2d 597; Miller, 207
Ill. App. 3d 148, 565 N.E.2d 687. See generally Restatement
(Second) of Torts 334 (1965).
III. Section 337 of the Restatement (Second) of Torts
The plaintiff next argues that the trial court erred in
finding that the defendants owed no duty to William to warn him
of the dangerous condition on the premises, namely, the spacing
of the metal grates with the railroad ties. The plaintiff argues
that the condition created "the risk of someone getting their
foot lodged and caught amongst the gratings and railroad ties
next to the tracks."
Section 337 of the Restatement (Second) of Torts, which was
adopted by our supreme court in Lee v. Chicago Transit Authority,
152 Ill. 2d 432, 605 N.E.2d 493 (1992), provides that a possessor
of land owes a duty to exercise reasonable care to warn a
trespasser of an artificial condition upon the land which
involves a risk of death or serious bodily harm. Such a duty is
imposed when the possessor knows or has reason to know of the
trespasser's proximity to the condition and if the condition is
of such a nature that the possessor has reason to believe that
the trespasser will not discover the condition or realize the
risk involved. Restatement (Second) of Torts 337 (1965). In
order to establish a duty under section 337, the trespasser must
first show that the landowner knew or had reason to know of the
trespasser's presence. Lee, 152 Ill. 2d 432, 605 N.E.2d 493. In
Lee, the court found that the defendant carrier possessed
knowledge of trespassers' presence near the electrified third
rail based upon the carrier's stipulation to that fact plus
evidence of ten prior accidents during a 27-year period involving
a 3.2 mile segment of track where the third rail ran at grade or
street level. The court also noted that the third rail was
located "a mere 6 1/2 feet from the public sidewalk" that was
adjacent to a busy city street. Lee, 152 Ill. 2d at 451, 605 N.E.2d at 501. According to the court, the defendant "knew that
pedestrians used the sidewalk to cross the tracks, and certainly
that pedestrians gained access thereby to those tracks." Lee,
152 Ill. 2d at 451, 605 N.E.2d at 501.
Here as discussed in part II of this opinion, the
submissions of the parties showed that the defendants had no
actual knowledge and could not reasonably have known that
trespassers frequented the area where William was injured.
Unlike in Lee, the area where William sustained his injury was
not easily accessible to pedestrians and was not near or adjacent
to a public sidewalk used to cross the railroad tracks. In order
to reach the area where William was injured, one would have to
climb an incline or embankment. This fact alone inhibited public
access to the tracks. Given the absence of actual or reasonable
knowledge of the presence of trespassers, the defendants owed no
duty to warn trespassers of the alleged dangerous artificial
condition created by the spacing of the metal grates with the
railroad ties; and summary judgment was properly granted with
respect to plaintiff's claim under section 337 of the Restatement
(Second) of Torts.
IV. Child Trespassers
As her final argument on appeal, the plaintiff argues that
the trial court erred in finding a lack of duty to William in his
status as a child trespasser.
As a general rule, a duty is imposed upon an owner or other
person in possession and control of the premises to exercise due
care to remedy a dangerous condition on the land or to otherwise
protect children from injury resulting from it where: (1) the
owner or occupier of land knew or should have known that children
habitually frequent the property; (2) a defective structure or
dangerous condition was present on the property; (3) the
defective structure or dangerous condition was likely to injure
children because they are incapable, because of age and maturity,
of appreciating the risk involved; and (4) the expense and
inconvenience of remedying the defective structure or dangerous
condition was slight when compared to the risk to children. Mt.
Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110, 660 N.E.2d 863 (1995); Kahn v. James Burton Co., 5 Ill. 2d 614, 126 N.E.2d 836 (1955). See also Restatement
(Second) of Torts 339, at 197 (1965). Reasonable foreseeability
of harm determines liability in negligence actions involving
injury to child trespassers. Mt. Zion State Bank, 169 Ill. 2d 110, 660 N.E.2d 863. In accordance with Kahn and its progeny,
the harm is sufficiently foreseeable if the owner or party in
possession or control of the premises "'knows or should know that
children frequent the premises and if the cause of the child's
injury was the dangerous condition on the premises.'" (Emphasis
original.) Mt. Zion Bank, 169 Ill. 2d at 120, 660 N.E.2d at 869
quoting Corcoran v. Village of Libertyville, 73 Ill. 2d 316, 326,
383 N.E.2d 177 (1978).
Here, as noted above, there is an absence of facts in the
submissions of the parties to establish that the defendants knew
or should have known that children frequent the area where
William was injured. Nothing in the parties' submissions
established the frequency with which graffiti was painted on the
girders near the site of the injury; and testimony regarding the
presence of children in the area was minimal (three or four times
in four years) and, then, only as to the area between Fulton and
West End, not the specific area where William was injured.
Testimony regarding the physical condition of the area wherein
William was injured showed a lack of frequent usage in that there
was an absence of any footprints or trails on the embankment
leading up the overpass. Moreover, although, in her argument,
the plaintiff characterizes the area where William was injured as
an area "intended as a walkway," there is no evidentiary support
for such a statement. There also was no testimony suggesting the
need for such public access to the tracks given the absence of
any commuter railroad stations in the area. Instead the parties'
submissions showed that the area wherein William's alleged injury
occurred consisted of railroad tracks utilized by nonstop trains.
As noted above, access to that area was extremely limited as
evidenced by the need to climb an embankment in order to gain
access to the tracks. Thus, since the parties submissions did
not establish that the defendants knew or should have known that
children frequented the area, the plaintiff could not establish
foreseeability of harm upon which to impose a duty upon the
defendants to exercise due care to remedy a dangerous condition
on the land. See Mt. Zion State Bank, 169 Ill. 2d 110, 660 N.E.2d 863.
For the foregoing reasons, the judgment of the Circuit Court
of Cook County is affirmed.
Affirmed.
PRESIDING JUSTICE LEAVITT and CAHILL, J., concur.
December 31, 1997
No. 1-96-1603
CATHERINE BENAMON, Individually )
and as Mother and Next Friend of )
WILLIAM BENAMON, a minor, )
) Appeal from the Circuit
Plaintiff-Appellant, ) Court of Cook County.
)
v. )
)
SOO LINE RAILROAD COMPANY, a ) Honorable Philip L.
foreign corporation, and THE BELT ) Bronstein, Judge
RAILWAY COMPANY OF CHICAGO, an ) Presiding.
Illinois corporation, )
)
Defendants-Appellees. )
JUSTICE GORDON DELIVERED THE OPINION OF THE COURT:
Catherine Benamon, individually and as mother and next
friend of William Benamon, a minor, filed a negligence action
against defendants Soo Line Railraod Company and the Belt Railway
Company of Chicago seeking to recover for William's injuries
sustained when William's foot allegedly became lodged between the
rails on a train overpass. William was unable to extricate
himself before a train drove by causing partial amputation of his
left leg. The defendants moved for summary judgment alleging
that they owed no duty to William because he was a trespasser.
The trial court agreed, granting summary judgment to the
defendants; and the plaintiff appeals.
On appeal, the plaintiff concedes that William was a
trespasser but argues that the defendants owed William a duty of
reasonable care because William's presence on the overpass was
privileged due to private necessity; because William was a
permissive user of the overpass; and because William was a minor
and a dangerous condition existed upon the overpass. The
plaintiff also argues that the defendants owed William a duty to
warn under section 337 of the Restatement of Torts (Restatement
(Second) of Torts 337 (1965)).
Summary judgment is appropriate only if the pleadings,
depositions and admissions on file, together with affidavits, if
any, show that there is no genuine issue as to any material fact
and the moving party is entitled to judgment as a matter of law.
735 ILCS 5/2-1005 (West 1996). In ruling on a motion for summary
judgment, the trial court must construe the pleadings,
depositions and affidavits in the light most favorable to the
nonmoving party. Soderlund Brothers, Inc. v. Carrier Corp., 278
Ill. App. 3d 606, 663 N.E.2d 1 (1995). Although a plaintiff is
not required to prove his or her case at the summary judgment
stage, some evidentiary facts to support the elements of the
claim must be presented. Helms v. Chicago Park District, 258
Ill. App. 3d 675, 630 N.E.2d 1016 (1994). An appellate court's
review of a summary judgment is de novo. Myers v. Health
Specialists, S.C., 225 Ill. App. 3d 68, 587 N.E.2d 494 (1992).
In the instant case, the undisputed facts before the court
on the defendants' motion for summary judgment show that the
defendants owned and maintained the railroad tracks and the
right-of-way at the overpass located near 300 North Fulton in
Chicago on January 13, 1992.
In his deposition, William testified that on January 13,
1992 at approximately 5 or 6 p.m., he was walking home after
watching a basketball game at a grammar school. William was 15
years old at the time. As William passed a group of boys playing
basketball in an alley, one of the boys asked him for a
cigarette. William told the boy he did not smoke and continued
walking. When he looked back, he saw the boys pointing at him
and running towards him. William thought they might want to
steal his "Bulls" coat. William testified that he ran up the
railway incline near 300 North Fulton onto the tracks by the
girder to hide because he was scared and wanted to do "anything
to try to get away." He was approximately three blocks from home
but did not want the gang to see where he lived. After William
thought the gang was gone, he attempted to leave the area but his
foot fell between the steel grates next to one of the wooden
rails. He tried but could not extricate his foot before a
passing freight train partially amputated his left leg below the
knee.
William also testified in his deposition that he saw
numerous graffiti marks on the girders near the tracks. He
stated that he had never been upon the tracks prior to the
accident and that none of his friends went up on the tracks.
William stated that during the four years prior to his accident,
he saw other children playing up on the tracks and throwing rocks
on three or four occasions. He stated that he saw the children
on the tracks somewhere between Fulton and West End. William did
not know where they got onto the tracks. Over objection, William
also testified that it was dangerous for the children to be on
the tracks because "[t]hey could get killed."
Roger A. Fricke, the Soo line engineer who operated the
freight train that injured the plaintiff, testified that he saw
children playing on the tracks on other occasions but could not
recall seeing them at the Fulton location.
Thomas A. Charniak, a member of the police department for
Belt Railway since 1969, testified that he investigated William's
accident. He testified that prior to that occurrence he had
never investigated a pedestrian/train accident in the Fulton
area. He stated that he was not aware that children in the area
used the tracks or embankment to cross over to the other side of
the tracks at the Fulton location. Charniak also identified a
photograph which showed graffiti on the center girder in the area
where William was injured.
Jeffrey Hinkle, a private investigator for the short line
railroad industry, hired by the defendants, testified in his
deposition that during his investigation of the accident scene he
noticed some graffiti on the girders. He stated that he did not
see any other indications that the area had been frequented by
anyone other than railroad employees. He did not notice any
trails or tracks on the embankment leading up to the overpass and
did not recall seeing any footprints or any other indication that
the embankment was used by people to reach the top of the
overpass.
I. Private Necessity
It is axiomatic that a plaintiff in a negligence action must
establish duty, breach of duty, and injury proximately caused by
that breach. E.g., Ward v. K Mart Corp., 136 Ill. 2d 132, 554 N.E.2d 223 (1990); Rodriguez v. Norfolk & Western Ry. Co., 228
Ill. App. 3d 1024, 593 N.E.2d 597 (1992). Traditionally, the
duty of care owed by a landowner to a person entering the
premises was dependent upon that person's status. See, e.g., Lee
v. Chicago Transit Authority, 152 Ill. 2d 432, 605 N.E.2d 493,
498 (1992); Miller v. General Motors Corp., 207 Ill. App. 3d 148,
565 N.E.2d 687 (1990). See generally Restatement (Second) of
Torts 333 through 344 (1965). However, the Premises Liability
Act (740 ILCS 130/1 et seq. (West 1992)) adopted in Illinois in
1984 abolished the common law distinctions of invitee and
licensee providing, instead, that the duty owed to entrants is
that of "reasonable care under the circumstances regarding the
state of the premises or acts done or omitted on them." 740 ILCS
130/2 (West 1992). As to trespassers, however, the Premises
Liability Act reaffirmed the general common law rule that no duty
of reasonable care is owed a trespasser except to refrain from
wantonly or willfully injuring him. 740 ILCS 130/3 (West 1992);
Lee, 152 Ill. 2d 432, 605 N.E.2d 493; Kahn v. James Burton Co., 5 Ill. 2d 614, 126 N.E.2d 836 (1955); Rodriguez, 228 Ill. App. 3d
1024, 593 N.E.2d 597. A trespasser "is a person who enters or
remains upon land in the possession of another without a
privilege to do so created by the possessor's consent or
otherwise." Restatement (Second) of Torts 329, at 171 (1965).
See also Rodriguez, 228 Ill. App. 3d 1024, 593 N.E.2d 597.
Illinois courts have created certain exceptions to the
general rule of duty with respect to trespassers. Lee, 152 Ill. 2d 432, 605 N.E.2d 493. One such exception exists where the
trespasser enters the property of another pursuant to the
privilege of private necessity, that is, for the purpose of
advancing or protecting his own interests, the property owner
owes a duty of reasonable care under the circumstances. West v.
Faurbo, 66 Ill. App. 3d 815, 384 N.E.2d 457 (1978). See
generally Restatement (Second) of Torts 345, Comment a, at 227
(1965).
On appeal, the plaintiff first contends that the defendants
owed William a duty of reasonable care because William was
privileged to be on defendants' property due to the existence of
a private necessity. The plaintiff argues that William's
deposition testimony shows that he was forced to go up the
incline and onto the overpass for safety reasons and to protect
his well-being. She argues that William's testimony showed that
he reasonably feared for his immediate safety after the gang of
boys began chasing him. She further argues that William was
justified in hiding amongst the girders on the railroad overpass
because he did not want the boys to see where he went or where he
lived.
We disagree. The private necessity privilege allows one to
enter the premises of another without permission in an emergency
situation when such entry is reasonably necessary to avoid
serious harm. Restatement (Second) of Torts 345, 197 (1965).
However, as provided in the Restatement (Second) of Torts, "the
privilege must be exercised at a reasonable time and in a
reasonable manner" and in light of all of the circumstances.
Restatement (Second) of Torts 197, Comment a, at 355, Comment c,
at 356 (1965). Here, the deposition testimony of William
suggests that his entry upon the railroad overpass was for his
self-protection and to avoid the threat of bodily harm posed by
the gang of boys chasing him. However, even if we were to agree
that William's belief in that threat was reasonable, we cannot
agree that the action he took to avoid that threat was
reasonable. In his alleged effort to hide from his assailants,
William chose to hide near the girders on the railroad tracks.
It is without question that the hazards posed by oncoming
railroad trains presents a serious threat of harm to persons on
or near the tracks. William, himself, testified that it was
dangerous to be on the tracks and that children could get killed
playing up there.
Moreover, as the trial court noted, William had other,
more safe, options available to him. Those options included
running home, running to a nearby house, or running back to the
grammar school where he had watched a basketball game. The
plaintiff argues that a material question of fact exists as to
whether any of these options would have provided for William's
safety. The plaintiff argues that it would have been nonsensical
for William to run back to the school because he would have had
to run into the path of the boys chasing him. With respect to
the option of running home, the plaintiff notes that William
testified that he did not run home because he did not want the
boys to see where he lived. However, notwithstanding the
viability of those particular options, it is clear that William
was not forced upon the tracks. It is also clear that, having
chosen to hide, he could have chosen a less dangerous place to
hide. Instead, he ran up the embankment to hide in an area known
to be inherently dangerous.
This factual situation is inapposite to that which existed
in West v. Faurbo, 66 Ill. App. 3d 815, 384 N.E.2d 457 (1978),
the only Illinois case cited by the parties on the private
necessity exception. In that case, the plaintiff, a 13-year-old
boy, who was riding his bicycle, had no choice but to swerve onto
defendant's property to avoid an oncoming automobile. The
decision to enter the defendant's property, a grassy area near a
driveway and about four to five feet from the edge of the
sidewalk, was instantaneous. There was no time for forethought.
Moreover, the grassy area was not inherently dangerous and, in
fact, was just off the sidewalk and in the proximity of a parking
lot meant to be used by members of the public, namely, patrons of
the defendant's lounge. (In fact, the plaintiff alternatively
argued that he was a licensee in view of the proximity of his
injury to the public parking lot.) Here, unlike in West, the
defendant had time, albeit minimal, and opportunity to choose a
course of action. William chose to run onto an area not meant
for public use and not easily accessible to the public. The area
was not street level; it was elevated so as to deter public
access. Under the circumstances, we must conclude as a matter of
law that, given the existence of less dangerous options, and
given the known risks associated with the railroad tracks, that
William's presence on or near those tracks was not reasonable and
thus his presence on those tracks was not a private necessity so
as to entitle William, a trespasser, to a higher standard of
care. Restatement (Second) of Torts 197, Comments a, c; 345
(1965).
Moreover, even if William's presence upon the defendants'
property was of private necessity, which we hold it was not, we
would question William's further contention that the defendants
owed him a duty of reasonable care. At the time West v. Faurbo,
66 Ill. App. 3d 815, 384 N.E.2d 457 (1978) was decided, Illinois
determined premises liability issues on the basis of the status
distinctions of invitee, licensee and trespasser as set forth in
the Restatement (Second) of Torts (see Restatement (Second) of
Torts 328E to 350 (1965)). Thus, the court in West applied the
private necessity exception set forth in section 345 of the
Restatement (Second) of Torts so as to treat the trespasser as a
licensee. In that regard, the court held that the defendants
owed the plaintiff a duty to refrain from injury by willful and
wanton misconduct; to exercise reasonable care in his "active
operations"; and to warn of known hidden or latent dangers.
Approximately six years after West was decided, the Illinois
legislature adopted the Illinois Premises Liability Act (740 ILCS
130/1 et seq. (West 1992)). As discussed above, that Act
abolished the common law distinctions of invitee and licensee
providing, instead, that the duty owed to entrants is that of
"reasonable care under the circumstances regarding the state of
the premises or acts done or omitted on them." 740 ILCS 130/2
(West 1992). One could argue, as the plaintiff does, that a
trespasser who enters the property of another under private
necessity, considered to be a licensee, is now entitled to the
greater protection of reasonable care since there is no longer a
distinction between licensees and invitees. We would disagree
with such an argument. We believe that the abolishment of the
licensee/invitee distinction in Illinois would not heighten the
duties owed by a possessor of land to a person who enters his
land under private necessity. There can be no logical reason to
afford a greater protection of reasonable care to such a person,
who, in actuality, is a trespasser and who enters the property
without the possessor's permission and without benefit to the
possessor. Thus, we would hold that had William satisfied the
private necessity exception, the defendants would have owed him
the duties applicable to licensees, such as to warn of any latent
defects in the track configurations.
II. Permissive User
The plaintiff next argues that the trial court erred in
finding that William was not a permissive user of the premises.
Under the permissive user exception, a landowner owes a duty
of reasonable care to a trespasser when the landowner permits
regular use of his land for travel or otherwise and where the
landowner is engaged in a dangerous activity involving a risk of
death or serious bodily harm. Rodriguez v. Norfolk & Western Ry.
Co., 228 Ill. App. 3d 1024, 593 N.E.2d 597 (1992). See generally
Restatement (Second) of Torts 334 (1965). In accordance with
this exception, a duty of care extends because it is said that
the landowner's continued toleration of the trespassers'
intrusion amounts to permission to make use of the land.
Rodriguez, 228 Ill. App. 3d 1024, 593 N.E.2d 597; Miller v.
General Motors Corp., 207 Ill. App. 3d 148, 565 N.E.2d 687
(1990). However, in order for a possessor of land to be subject
to liability under this rule, it is necessary that the possessor
know, or from facts within his knowledge should know, that
persons constantly and persistently intrude upon some particular
place within the land. Miller, 207 Ill. App. 3d 148, 565 N.E.2d 687. It is not enough that he know or have reason to know that
persons persistently roam at large over his land. Restatement
(Second) of Torts 334, Comment d, at 186-87 (1965).
Here, the plaintiff contends that there is ample indication
from the record of constant intrusion by others. The plaintiff
cites to deposition testimony of William and Jeffrey Hinkle
concerning the existence of graffiti on the girders near the
tracks and to the deposition testimony of William and Soo Line
engineer, Roger Fricke, that they saw children along the tracks.
We do not agree that the testimony provided in this regard
established the constant intrusion necessary to impose a duty of
reasonable care upon the defendants under the permissive user
theory.
Initially, we note that William's testimony concerning the
presence of children upon the tracks established that that
presence was minimal, three or four occasions during the four
years preceding William's injury. Also, William stated that he
saw the children playing somewhere between Fulton and West End,
not at the location where he had been injured. Fricke testified
that he saw children playing on the tracks but could not recall
seeing them at the Fulton location where William was injured.
The deposition testimony of Hinkle as well as Thomas Charniak, a
police officer for defendant Belt Railway, also disproved any
contention of frequent intrusion by trespassers. Hinkle
testified that during his investigation of the accident scene, he
did not notice any trails or tracks on the embankment leading up
to the overpass. He stated that he did not recall seeing any
footprints or any other indication that the embankment was used
regularly by people to reach the top of the overpass. Charniak
testified that since his employment with Belt Railway in 1969, he
had never investigated a pedestrian/train accident in the Fulton
area where William was injured. He also stated that he was not
aware that children used the tracks or embankment to cross over
to the other side of the tracks at the Fulton location. Finally,
although there was some testimony as to the existence of graffiti
upon the girders, there was no testimony establishing when the
graffiti was placed upon the girders, how often it occurred, or
how often it reoccurred after any obliteration. It may very well
be that the graffiti was placed on the girders on a few limited
occasions.
As a result of these insufficiencies in the submissions to
the trial court, it can be said as a matter of law that the
plaintiff did not establish a constant intrusion by trespassers
upon the area of the overpass where William was injured. Absent
indicia of constant intrusion, the plaintiff could not establish
that the defendant railroads knew or should have known that
trespassers frequented the area where William was injured and,
thus, the defendants owed no duty of reasonable care to William.
See Rodriguez, 228 Ill. App. 3d 1024, 593 N.E.2d 597; Miller, 207
Ill. App. 3d 148, 565 N.E.2d 687. See generally Restatement
(Second) of Torts 334 (1965).
III. Section 337 of the Restatement (Second) of Torts
The plaintiff next argues that the trial court erred in
finding that the defendants owed no duty to William to warn him
of the dangerous condition on the premises, namely, the spacing
of the metal grates with the railroad ties. The plaintiff argues
that the condition created "the risk of someone getting their
foot lodged and caught amongst the gratings and railroad ties
next to the tracks."
Section 337 of the Restatement (Second) of Torts, which was
adopted by our supreme court in Lee v. Chicago Transit Authority,
152 Ill. 2d 432, 605 N.E.2d 493 (1992), provides that a possessor
of land owes a duty to exercise reasonable care to warn a
trespasser of an artificial condition upon the land which
involves a risk of death or serious bodily harm. Such a duty is
imposed when the possessor knows or has reason to know of the
trespasser's proximity to the condition and if the condition is
of such a nature that the possessor has reason to believe that
the trespasser will not discover the condition or realize the
risk involved. Restatement (Second) of Torts 337 (1965). In
order to establish a duty under section 337, the trespasser must
first show that the landowner knew or had reason to know of the
trespasser's presence. Lee, 152 Ill. 2d 432, 605 N.E.2d 493. In
Lee, the court found that the defendant carrier possessed
knowledge of trespassers' presence near the electrified third
rail based upon the carrier's stipulation to that fact plus
evidence of ten prior accidents during a 27-year period involving
a 3.2 mile segment of track where the third rail ran at grade or
street level. The court also noted that the third rail was
located "a mere 6 1/2 feet from the public sidewalk" that was
adjacent to a busy city street. Lee, 152 Ill. 2d at 451, 605 N.E.2d at 501. According to the court, the defendant "knew that
pedestrians used the sidewalk to cross the tracks, and certainly
that pedestrians gained access thereby to those tracks." Lee,
152 Ill. 2d at 451, 605 N.E.2d at 501.
Here as discussed in part II of this opinion, the
submissions of the parties showed that the defendants had no
actual knowledge and could not reasonably have known that
trespassers frequented the area where William was injured.
Unlike in Lee, the area where William sustained his injury was
not easily accessible to pedestrians and was not near or adjacent
to a public sidewalk used to cross the railroad tracks. In order
to reach the area where William was injured, one would have to
climb an incline or embankment. This fact alone inhibited public
access to the tracks. Given the absence of actual or reasonable
knowledge of the presence of trespassers, the defendants owed no
duty to warn trespassers of the alleged dangerous artificial
condition created by the spacing of the metal grates with the
railroad ties; and summary judgment was properly granted with
respect to plaintiff's claim under section 337 of the Restatement
(Second) of Torts.
IV. Child Trespassers
As her final argument on appeal, the plaintiff argues that
the trial court erred in finding a lack of duty to William in his
status as a child trespasser.
As a general rule, a duty is imposed upon an owner or other
person in possession and control of the premises to exercise due
care to remedy a dangerous condition on the land or to otherwise
protect children from injury resulting from it where: (1) the
owner or occupier of land knew or should have known that children
habitually frequent the property; (2) a defective structure or
dangerous condition was present on the property; (3) the
defective structure or dangerous condition was likely to injure
children because they are incapable, because of age and maturity,
of appreciating the risk involved; and (4) the expense and
inconvenience of remedying the defective structure or dangerous
condition was slight when compared to the risk to children. Mt.
Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110, 660 N.E.2d 863 (1995); Kahn v. James Burton Co., 5 Ill. 2d 614, 126 N.E.2d 836 (1955). See also Restatement
(Second) of Torts 339, at 197 (1965). Reasonable foreseeability
of harm determines liability in negligence actions involving
injury to child trespassers. Mt. Zion State Bank, 169 Ill. 2d 110, 660 N.E.2d 863. In accordance with Kahn and its progeny,
the harm is sufficiently foreseeable if the owner or party in
possession or control of the premises "'knows or should know that
children frequent the premises and if the cause of the child's
injury was the dangerous condition on the premises.'" (Emphasis
original.) Mt. Zion Bank, 169 Ill. 2d at 120, 660 N.E.2d at 869
quoting Corcoran v. Village of Libertyville, 73 Ill. 2d 316, 326,
383 N.E.2d 177 (1978).
Here, as noted above, there is an absence of facts in the
submissions of the parties to establish that the defendants knew
or should have known that children frequent the area where
William was injured. Nothing in the parties' submissions
established the frequency with which graffiti was painted on the
girders near the site of the injury; and testimony regarding the
presence of children in the area was minimal (three or four times
in four years) and, then, only as to the area between Fulton and
West End, not the specific area where William was injured.
Testimony regarding the physical condition of the area wherein
William was injured showed a lack of frequent usage in that there
was an absence of any footprints or trails on the embankment
leading up the overpass. Moreover, although, in her argument,
the plaintiff characterizes the area where William was injured as
an area "intended as a walkway," there is no evidentiary support
for such a statement. There also was no testimony suggesting the
need for such public access to the tracks given the absence of
any commuter railroad stations in the area. Instead the parties'
submissions showed that the area wherein William's alleged injury
occurred consisted of railroad tracks utilized by nonstop trains.
As noted above, access to that area was extremely limited as
evidenced by the need to climb an embankment in order to gain
access to the tracks. Thus, since the parties submissions did
not establish that the defendants knew or should have known that
children frequented the area, the plaintiff could not establish
foreseeability of harm upon which to impose a duty upon the
defendants to exercise due care to remedy a dangerous condition
on the land. See Mt. Zion State Bank, 169 Ill. 2d 110, 660 N.E.2d 863.
For the foregoing reasons, the judgment of the Circuit Court
of Cook County is affirmed.
Affirmed.
PRESIDING JUSTICE LEAVITT and CAHILL, J., concur.
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