                                Illinois Official Reports

                                         Appellate Court



                  National R.R. Passenger Corp. v. Terracon Consultants, Inc.,
                                  2014 IL App (5th) 130257



Appellate Court           NATIONAL RAILROAD PASSENGER CORPORATION, KATHY
Caption                   M. RICHARDSON, GATEWAY EASTERN RAILWAY
                          COMPANY,        KANSAS       CITY     SOUTHERN     RAILWAY
                          COMPANY, UNION PACIFIC RAILROAD COMPANY, PLATTE
                          PIPE LINE COMPANY, KINDER MORGAN PIPLINES (USA),
                          INC., and KINDER MORGAN CANADA, INC., Plaintiffs-
                          Appellants, v. TERRACON CONSULTANTS, INC., and
                          MATTHEW S. BALVEN, as Special Administrator of the Estate of
                          Heather S. Balven, Deceased, Defendants-Appellees.


District & No.            Fifth District
                          Docket No. 5-13-0257


Filed                     July 1, 2014


Held                       In an action arising from the death of defendant’s decedent and
(Note: This syllabus decedent’s unborn fetus when the pickup truck belonging to
constitutes no part of the decedent’s employer struck an Amtrak train at a grade crossing while
opinion of the court but decedent was driving, the trial court properly dismissed the
has been prepared by the contribution claims filed against decedent’s employer and her estate
Reporter of Decisions after plaintiffs, including several railroads, settled the underlying
for the convenience of wrongful death action brought by decedent’s estate and the estate of
the reader.)               the unborn fetus, since decedent mother had no legal duty to her
                           unborn fetus, and in the absence of a legal duty, no cause of action was
                           stated or could be stated against her estate by the complaint for
                           contribution; however, as to the claim for contribution based on the
                           negligence of decedent’s employer in training decedent on safety
                           procedures and practices in crossing railroad tracks, the dismissal was
                           reversed and the cause was remanded to allow the parties to amend
                           their pleadings and permit the court to consider the viability of that
                           claim.
     Decision Under          Appeal from the Circuit Court of Madison County, No. 09-L-871; the
     Review                  Hon. Dennis R. Ruth, Judge, presiding.


     Judgment                Affirmed in part and reversed in part; cause remanded.


     Counsel on              Richard E. Boyle and Leslie B. Shinners, both of Boyle Brasher LLC,
     Appeal                  of Belleville, and Mark E. Christensen and Katherine Amelotte Jones,
                             both of Christensen & Ehret LLP, of Chicago, for appellants.

                             Roger F. Wilson, of Law Office of Stephen H. Larson, of St. Louis,
                             Missouri, for appellee Terracon Consultants, Inc.

                             Susan M. Herold and Jeffrey K. Suess, both of Rynearson, Suess,
                             Schnurbusch & Champion, LLC, of St. Louis, Missouri, for appellee
                             Matthew S. Balven.




     Panel                   JUSTICE SPOMER delivered the judgment of the court, with opinion.
                             Justices Goldenhersh and Stewart concurred in the judgment and
                             opinion.




                                              OPINION

¶1         The plaintiffs, National Railroad Passenger Corporation, Kathy M. Richardson, Gateway
       Eastern Railway Company, Kansas City Southern Railway Company, Union Pacific Railroad
       Company, Platte Pipe Line Company, Kinder Morgan Pipelines (USA), Inc., and Kinder
       Morgan Canada, Inc., appeal the order of the circuit court of Madison County that dismissed
       their complaint for contribution against the defendants, Terracon Consultants, Inc.
       (Terracon), and Matthew S. Balven, as special administrator of the estate of Heather S.
       Balven, deceased (Heather’s estate). For the following reasons, we affirm in part, reverse in
       part, and remand for further proceedings.

¶2                                               FACTS
¶3          The facts necessary to our disposition of this appeal are as follows. On March 12, 2009,
       while in the course of her employment with defendant Terracon, and while driving a pickup
       truck owned by Terracon, decedent Heather S. Balven collided with an Amtrak train at a
       railroad grade crossing in Hartford. Both Heather and her unborn fetus of approximately
       three months gestation (subsequently named Morgan A. Balven) were killed instantly in the
       collision. Litigation ensued, and the plaintiffs in this action settled wrongful death claims

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     brought by Heather’s estate and by Morgan’s estate. Following those settlements, the
     plaintiffs brought this contribution action against Terracon (count I) and against Heather’s
     estate (count II), alleging that both Terracon and Heather were guilty of acts of negligence
     that caused the collision and therefore proximately caused Morgan’s death. The allegations
     against Terracon, found in count I, consisted of six alleged acts of negligence on the part of
     Heather for which Terracon was allegedly vicariously liable, and a seventh alleged act of
     negligence that was allegedly directly attributable to Terracon and separate from any
     negligence on the part of Heather: the alleged failure of Terracon “to properly train and
     instruct its employees, including [Heather], concerning safety procedures and practices while
     crossing railroad tracks during the performance of their duties.”
¶4       Heather’s estate moved to dismiss count II, contending that Heather owed no legal duty
     to her unborn fetus, and that in the absence of a legal duty, no cause of action was stated or
     could be stated against Heather’s estate by the complaint for contribution. At the hearing on
     the motion to dismiss, Terracon orally moved to join Heather’s estate’s motion to dismiss,
     but did not assert, orally or in writing, any separate or additional grounds for dismissal.
     Following the hearing, the trial court dismissed both counts of the complaint for contribution,
     pursuant to Stallman v. Youngquist, 125 Ill. 2d 267 (1988), and Cullotta v. Cullotta, 287 Ill.
     App. 3d 967 (1997). This timely appeal followed. Additional facts will be provided as
     necessary throughout the remainder of this opinion.

¶5                                           ANALYSIS
¶6       We review de novo the trial court’s order dismissing this action. Gregory v. Farmers
     Automobile Insurance Ass’n, 392 Ill. App. 3d 159, 161 (2009). The arguments of the parties
     on appeal may be stated quite succinctly: the defendants contend that under Stallman v.
     Youngquist, 125 Ill. 2d 267 (1988), no cause of action exists in Illinois by or on behalf of a
     fetus against its mother for the unintentional infliction of prenatal injuries, or even prenatal
     death, and that, in the absence of such a cause of action, no contribution claim may be
     sustained under the Joint Tortfeasor Contribution Act (the Act) (740 ILCS 100/0.01 et seq.
     (West 2008)). The defendants also contend that: (1) there was no duty owed by Heather to
     the general public that would render Heather’s estate “subject to liability in tort” under the
     Act to Morgan’s estate for Morgan’s death, the injury for which the plaintiffs seek
     contribution; (2) under Stallman, because there is no legal duty on the part of a mother to her
     unborn child, there is no proper cause of action by Morgan’s estate for wrongful death
     against Heather’s estate; and (3) no claim for contribution against Terracon, as Heather’s
     employer, for negligent supervision or training of Heather can stand because the portion of
     the plaintiffs’ complaint purporting to state this claim against Terracon contains only
     conclusory factual allegations and therefore asserts no cognizable cause of action.
¶7       The plaintiffs, on the other hand, contend that because Stallman did not involve a
     contribution claim, it should not be read so broadly as to bar the claim in this case. Instead,
     the plaintiffs point to People v. Brockman, 143 Ill. 2d 351, 371 (1991), wherein the Supreme
     Court of Illinois held that “there need not be actual tort liability in order to state a cause of
     action for contribution,” as long as “the persons from whom contribution is sought are
     potentially capable of being held liable in a court of law or equity,” said potential for liability
     depending “merely upon their relative culpability in causing the same injury.” The plaintiffs
     point out that under Brockman, “[s]o valued are principles of fairness and the avoidance of

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       unjust enrichment that even if a person who might otherwise be immune has contributed as a
       cause to the injury he should be liable in contribution” “even though he cannot be directly
       liable to the plaintiff.” Id. at 373-74. The plaintiffs also contend there is no conflict in this
       case with Stallman, because Stallman dealt only with situations in which a fetus was
       subsequently born alive, and thus the public policy considerations before the Stallman
       court−which involved the far-ranging implications of allowing a living infant to assert
       liability against his or her mother for alleged prenatal injuries attributable to the mother’s
       conduct during pregnancy−are not implicated in a case such as this one, where the fetus did
       not survive.
¶8          The plaintiffs further contend: (1) Heather breached a duty owed to the general public,
       including the plaintiffs, and that Stallman notwithstanding, the defendants are “subject to
       liability in tort” as a result of that breach; (2) the defendants are “subject to liability in tort”
       because Stallman does not preclude a wrongful death claim on the behalf of Morgan’s estate
       against Heather’s estate and thus does not preclude a contribution claim by the plaintiffs with
       regard to that wrongful death claim; and (3) the trial court erred in dismissing the plaintiffs’
       claim for contribution against Terracon for failure “to properly train and instruct its
       employees, including [Heather], concerning safety procedures and practices while crossing
       railroad tracks during the performance of their duties.”
¶9          With regard to the plaintiffs’ claim that Stallman is not applicable to this case because it
       did not involve a contribution claim and it did not involve a fetus who did not survive the
       injuries allegedly inflicted by the tortfeasor, we agree with the defendants that under
       Stallman there is simply no duty owed by Heather to Morgan, and that a contribution claim
       brought under the Act pursuant to this nonexistent duty is not sustainable. As the defendants
       point out, although a cause of action for the wrongful death of an unborn fetus does exist in
       Illinois, against the world at large, no Illinois court has recognized that cause of action when
       asserted against the mother of the unborn fetus. We are not persuaded by the plaintiffs’
       argument that the public policy considerations discussed in Stallman−which, as noted above,
       involved a fetus subsequently born alive−do not apply equally when the fetus does not
       survive. As the defendants point out, declining to recognize the applicability of the Stallman
       holding to situations where a fetus does not survive the injuries allegedly inflicted
       unintentionally by the mother of the fetus would create the paradoxical and potentially unjust
       situation wherein a fetus that did not survive its injuries could bring a claim against its
       mother, but a fetus that did survive its injuries could not. We agree with the defendants that
       duty should not hinge on the nature and extent of the injury involved. The Stallman court
       declined to recognize a legal duty on the part of a pregnant woman, during her pregnancy, to
       “guarantee the mental and physical health of another” at birth, because the recognition of
       such a legal duty would create an environment wherein “[m]other and child would be legal
       adversaries from the moment of conception until birth.” Stallman v. Youngquist, 125 Ill. 2d
       267, 276 (1988).
¶ 10        In accordance with this reasoning, and the other thoughtful and compelling public policy
       reasoning put forward by the Stallman court (see id. at 276-80), we believe the court likewise
       would have rejected the idea that a pregnant woman has a legal duty, during her pregnancy,
       to guarantee that her fetus will survive to birth, as that too would create an environment
       where mother and child were legal adversaries during the pregnancy. Accordingly, although
       we recognize that the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2008)) itself


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       does not specifically prevent an unborn fetus from asserting a claim against an allegedly
       negligent mother, we hold that the recognition of a cause of action for wrongful death
       asserted by an unborn fetus against the mother of the fetus would be incongruent with the
       reasoning underlying the Stallman holding that there is no duty on the part of a mother to her
       unborn fetus. Therefore, we decline to recognize such a duty and such a cause of action.
¶ 11       We also agree with the defendants that the detailed and specific reasoning found in
       Cullotta v. Cullotta, 287 Ill. App. 3d 967, 972-74 (1997), with regard to the distinction
       between immunity from liability and lack of duty trumps the more general aspirational
       statements about the relationship between immunity and contribution under the Act found in
       People v. Brockman, 143 Ill. 2d 351, 373-74 (1991), cited by the plaintiffs. The Cullotta
       court ruled that in the absence of a legal duty of care owed to a plaintiff by a defendant, “no
       cause of action is stated” because “[t]he existence of a legally recognized duty is a
       prerequisite to the very existence of a cause of action, whereas, the existence of an immunity
       merely affords a tortfeasor an affirmative defense to a plaintiff’s right to recovery.” Cullotta,
       287 Ill. App. 3d at 973. Accordingly, the Cullotta court reiterated that, pursuant to Stallman,
       “no cause of action can be stated for maternal prenatal negligence.” Id. at 974. In the case at
       bar, Heather owed no duty to Morgan, and thus there is no set of circumstances under which
       Heather’s estate can be “subject to liability in tort” to Morgan’s estate.
¶ 12       The plaintiffs also posit that, aside from any duty owed by Heather to Morgan, Heather
       also breached a duty owed to the general public, including the plaintiffs, and that Stallman
       notwithstanding, the defendants are “subject to liability in tort” under the Act as a result of
       that breach. The plaintiffs concede that no Illinois courts have recognized such a duty, but
       cite a number of cases from New York in which courts have, and urge us to adopt the
       position of those courts. We are not persuaded by the reasoning of the New York courts and
       decline to adopt the position advocated by the plaintiffs. Accordingly, no contribution claim
       against Heather’s estate under the Act is sustainable, and the trial court did not err in
       dismissing the plaintiffs’ claims against Heather’s estate.
¶ 13       Likewise, because no cause of action against Heather’s estate exists that would make it
       “subject to liability in tort” under the Act to Morgan’s estate, the plaintiffs’ claims against
       Terracon for contribution under the Act for the six alleged acts of negligence by Heather for
       which Terracon was allegedly vicariously liable, under the theory of respondeat superior, fail
       as well. See, e.g., Carey v. K-Way, Inc., 312 Ill. App. 3d 666, 672 (2000) (no liability for
       employer under theory of respondeat superior where no liability on part of employee).
¶ 14       We now address the plaintiffs’ contention that the trial court erred in dismissing the
       plaintiffs’ final claim for contribution against Terracon, which was based upon a seventh
       alleged act of negligence that, unlike the previous six acts, was allegedly directly attributable
       to Terracon and separate from any negligence on the part of Heather: the alleged failure of
       Terracon “to properly train and instruct its employees, including [Heather], concerning safety
       procedures and practices while crossing railroad tracks during the performance of their
       duties.” As noted above, although Terracon, at the hearing on Heather’s estate’s motion to
       dismiss, orally moved to join that motion, Terracon did not assert, orally or in writing, any
       separate or additional grounds for dismissal. Not surprisingly, Heather’s estate’s motion to
       dismiss did not attack the plaintiffs’ negligent-training claim against Terracon, which, as
       noted above, was based upon the purported conduct of Terracon, not of Heather.
       Accordingly, although Terracon now asserts multiple reasons why it claims we should affirm

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       the dismissal of the plaintiffs’ complaint, even with regard to the negligent-training claim,
       those reasons were never presented to the trial court, although they should have been and
       very easily could have been. Therefore, we agree with the plaintiffs that Terracon’s
       objections to the pleadings of the plaintiffs should only be considered on appeal if the
       plaintiffs’ complaint, “with all the intendments in its favor, wholly and absolutely fails to
       state a cause of action at all.” Oberman v. Byrne, 112 Ill. App. 3d 155, 159 (1983); see also
       735 ILCS 5/2-612(c) (West 2012) (“All defects in pleadings, either in form or substance, not
       objected to in the trial court are waived.”); Naiditch v. Shaf Home Builders, Inc., 160 Ill.
       App. 3d 245, 259 (1987) (complaint does not “wholly and absolutely” fail to state a cause of
       action if, had alleged deficiencies been raised in trial court, plaintiff “might have remedied
       the pleading defects now complained of for the first time on appeal”). For the following
       reasons, we cannot conclude that the plaintiffs’ claim against Terracon, with all the
       intendments in its favor, wholly and absolutely fails to state a cause of action at all.
¶ 15       As the plaintiffs point out, a claim for negligent training is “best analyzed under
       principles generally applicable to negligence cases.” Vancura v. Katris, 238 Ill. 2d 352, 383
       (2010). Therefore, the cases cited by the trial court in its order, both of which were pertinent
       to the lack of liability on the part of Heather’s estate, and the lack of vicarious liability on the
       part of Terracon, due to Heather’s lack of a duty to Morgan, do not support the dismissal of
       the plaintiffs’ negligent-training claim, which, under principles generally applicable to
       negligence cases, requires an analysis of Terracon’s duty to Morgan, apart from any duty
       owed by Heather, on the basis of the conduct of Terracon in its training of Heather. That is
       because a direct claim of negligence against an employer, such as a claim for negligent
       hiring, negligent training, or negligent supervision, differs from a vicarious liability, or
       respondeat superior, claim. Id. at 375. The latter type of claim generally requires no
       “malfeasance on the part of the employer,” but only legal liability on the part of the
       employee, which is then imputed to the employer. Id. The former type of claim, in contrast,
       requires that the plaintiff prove “that the employer was itself negligent.” (Emphasis in
       original.) Id. The plaintiff must prove the existence of a duty on the part of the employer to
       the injured party, a breach of that duty, and an injury proximately caused by the breach. Id.
       “In direct negligence, the plaintiff must prove that the employer’s breach–not simply the
       employee’s malfeasance–was a proximate cause of the plaintiff’s injury.” Id. Significantly,
       although Illinois courts speak of some type of malfeasance, wrongdoing, or negligence on the
       part of the employee that results from the negligent hiring, training, or supervision of the
       employer and thus leads to the direct liability of the employer, no Illinois case of which we
       are aware has held that the employee must actually be liable in tort in order for the causes of
       action to lie. See Young v. Lemons, 266 Ill. App. 3d 49, 52 (1994) (noting in negligent hiring
       and negligent supervision case that proximate cause focus is on employer’s “failure to
       exercise ordinary care in hiring or supervision, rather than the wrongful act of the employee”
       and that no Illinois case requires employee’s wrongful act to result in liability in tort on part
       of employee). Accordingly, the fact that Heather cannot be held liable in tort by Morgan
       solely because of her special relationship to Morgan as Morgan’s mother is not, in and of
       itself, determinative of whether Terracon can be held liable in tort by Morgan for its
       allegedly negligent training of Heather.
¶ 16       Terracon asserts, citing in support thereof a negligent-entrustment case, that we should
       nevertheless affirm the dismissal of the negligent-training claim, pursuant to the language in


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       Gant v. L.U. Transport, Inc., 331 Ill. App. 3d 924, 928 (2002), that the liability of an
       employer cannot exceed the liability of an employee. However, we agree with the plaintiffs
       that Terracon takes the Gant holding out of context; in fact, what the Gant court recognized
       was that when an employer has conceded responsibility, under the theory of
       respondeat superior, for an employee’s negligence, the employer cannot also be held
       responsible under a separate theory of negligent entrustment, because under those
       circumstances, “the cause of action for negligent entrustment is duplicative and unnecessary”
       and allowing it to stand would allow the trier of fact “to assess or apportion a principal’s
       liability twice.” Id. at 929-30. In the case at bar, Terracon has not conceded responsibility
       under a theory of respondeat superior, and indeed we have held that Terracon has no liability
       under the theory of respondeat superior. Thus, the negligent-training claim is not duplicative
       and unnecessary, and allowing it to stand will create no danger of a judge or jury assessing or
       apportioning Terracon’s alleged liability twice.
¶ 17       Accordingly, although we otherwise affirm the order of the trial court, we reverse the
       order with regard to the plaintiffs’ negligent-training claim against Terracon and remand for
       further proceedings, at which time both parties may seek leave of court to amend their
       pleadings so that the court may adjudge the viability or nonviability of that claim.

¶ 18                                    CONCLUSION
¶ 19      For the foregoing reasons, we affirm in part, reverse in part, and remand for further
       proceedings.

¶ 20      Affirmed in part and reversed in part; cause remanded.




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