             NOTICE
                                       2014 IL App (5th) 120464
 Decision filed 06/03/14.   The
 text of this decision may be               NO. 5-12-0464
 changed or corrected prior to
 the filing of a Petition for
 Rehearing or the disposition of               IN THE
 the same.

                                   APPELLATE COURT OF ILLINOIS

                                           FIFTH DISTRICT


MICHAEL PORTER, as Special Administrator                )   Appeal from the
of the Estates of Tina Porter, Deceased,                )   Circuit Court of
and Allaysa Porter, Deceased,                           )   St. Clair County.
                                                        )
         Plaintiff-Appellee,                            )
                                                        )
v.                                                      )   No. 07-L-17
                                                        )
ILLINOIS CENTRAL RAILROAD                               )
COMPANY,                                                )   Honorable
                                                        )   Vincent J. Lopinot,
         Defendant-Appellant.                           )   Judge, presiding.
____________________________________________________________________________________________

      PRESIDING JUSTICE WELCH delivered the judgment of the court, with
opinion.
      Justice Spomer concurred in the judgment and opinion.
      Justice Goldenhersh dissented, with opinion.

                                              OPINION

¶1       This is a wrongful death action brought against the Illinois Central Railroad

Company (Illinois Central) by Michael Porter, as special administrator of the estates of

Tina Porter, deceased, and Allaysa Porter, deceased. The decedents died as a result of a

collision between the motor vehicle in which they were traveling and an Illinois Central

freight train on November 20, 2006, at a crossing in the Village of Marissa (the Village).

¶2       At the time of the collision, the railroad crossing was equipped only with luminous


                                                  1
flashing light signals. The plaintiff alleges that the defendant was negligent in failing to

equip the railroad crossing with automatic gates. The defendant responds that, because

the flashing light signals had been installed pursuant to the approval and order of the

Illinois Commerce Commission, statute dictates that they must be deemed adequate and

appropriate and the railroad cannot be found negligent for having failed to install gates.

¶3     The case comes before us pursuant to Illinois Supreme Court Rule 308 (eff. Feb.

26, 2010). The circuit court certified the following two questions for our review:

          "1. Did the Illinois Central Railroad have a duty to use reasonable care to

       install automatic gates at the South Main Street crossing in Marissa, Illinois

       (AAR/DOT #296 124L) prior to November 20, 2006?

          2.    Under 625 ILCS 5/18c-7401(3), are luminous flashing light signals

       installed at the South Main Street crossing in Marissa, Illinois (AAR/DOT #296

       124L), which had previously been approved by the Illinois Commerce

       Commission on July 10, 1962 and thus 'shall be deemed adequate and appropriate'

       still 'deemed adequate and appropriate' after the August 15, 2005 letter from

       Michael Stead, Rail Safety Program Administrator, which stated that the 'existing

       conditions meet the Commission's minimum requirements for the installation of

       automatic gates,' even though the Illinois Commerce Commission had not yet

       ordered the installation of automatic gates?"

¶4     We will address these questions in reverse order, answering the second question

first. Because a question certified by the circuit court to this court pursuant to Supreme

Court Rule 308 must involve only a question of law, our review is de novo. Tri-Power

                                             2
Resources, Inc. v. City of Carlyle, 2012 IL App (5th) 110075, ¶ 9.

¶5    Under subchapter 7 of the Illinois Commercial Transportation Law (the Act) (625

ILCS 5/18c-7101 et seq. (West 2008)), the Illinois Commerce Commission (the

Commission) has exclusive jurisdiction over all rail carrier operations in the state.

Pursuant to that jurisdiction, the Commission has exclusive power to set safety

requirements for railway track, facilities, and equipment. 625 ILCS 5/18c-7401 (West

2008). Section 18c-7401(3) provides as follows:

      "The Commission shall have power, upon its own motion, or upon complaint, and

      after having made proper investigation, to require the installation of adequate and

      appropriate luminous reflective warning signs, luminous flashing signals, crossing

      gates illuminated at night, or other protective devices in order to promote and

      safeguard the health and safety of the public.       Luminous flashing signal or

      crossing gate devices installed at grade crossings, which have been approved by

      the Commission, shall be deemed adequate and appropriate." (Emphasis added.)

      625 ILCS 5/18c-7401(3) (West 2008).

¶6    Our supreme court has definitively held that this statutory section establishes that,

once the Commission has investigated a crossing and has approved the installation of a

luminous flashing signal, then the installation of that device shall be deemed adequate

and appropriate and a conclusive legal presumption is created which prevents a plaintiff

from arguing that the railroad should have installed other warning devices. See Espinoza

v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 121 (1995); Chandler v. Illinois

Central R.R. Co., 207 Ill. 2d 331, 342 (2003).

                                            3
¶7     On July 10, 1962, pursuant to power vested in it by section 18c-7401(3), the

Commission had entered an order approving the presence of only luminous flashing light

signals at the railroad crossing in question.      The plaintiff does not dispute that the

Commission made the requisite investigation and gave its approval pursuant to section

18c-7401(3) in 1962. Furthermore, it is undisputed that the railroad crossing in question

was equipped with luminous flashing light signals and that the signals were working

properly at the time of the collision. Nevertheless, the plaintiff argues that the defendant

had a duty to use reasonable care to install automatic gates at the crossing in addition to

the luminous flashing light signals and that it breached this duty, resulting in the deaths of

the decedents.

¶8     The plaintiff premises his argument on the fact that, prior to the collision, at the

request of the citizens of the Village, the Commission had investigated the crossing and

determined that it did meet the minimum requirements for adding automatic gates. While

the Commission had not taken formal action on this determination at the time of the

collision, it had made its determination known by way of a letter from Michael Stead,

Rail Safety Program Administrator, to a local congressman dated August 15, 2005. The

letter indicated that the proposed improvements were scheduled to be installed in fiscal

year 2010 and that the Commission would contact the Village and the defendant railroad

as fiscal year 2010 approached. The defendant railroad received a copy of this letter. In

the meantime, the flashing light signals installed pursuant to the 1962 approval and order

of the Commission would remain.

¶9     The accident occurred on November 20, 2006.             Immediately thereafter, the

                                              4
Commission, through Michael Stead, its Rail Safety Program Administrator, notified the

local congressman that it was working with the Village and the defendant railroad to

expedite a project to install automatic gates at the crossing.           In that letter, the

Commission, through Stead, advised that it anticipated that:

        "an agreement for the work will be executed expeditiously so that an Order,

        recommending the proposed safety improvements, can be submitted to the

        Commission early in 2007. Following Commission approval of the proposed

        changes, the railroad will have 12 months within which to complete the work."

According to Stead, the railroad had no authority to install the automatic gates without an

order of the Commission. Such an order was entered by the Commission on August 29,

2007.

¶ 10    The plaintiff argues that Stead's letter of August 15, 2005, stating that the crossing

met the minimum requirements for installation of automatic gates, somehow revoked the

Commission's 1962 order approving the installation of luminous flashing light signals at

the crossing and, because they were no longer "approved," they could no longer be

deemed "adequate and appropriate." The plaintiff argues that Stead's letter of August 15,

2005, indicates that the Commission had "approved" the installation of automatic gates at

the crossing and the presumption of adequacy and appropriateness no longer applied to

the luminous flashing lights. We reject the plaintiff's argument.

¶ 11    The parties argue at length in their briefs about whether Commission "approval" of

protective devices requires an "order" of the Commission. The plaintiff argues that

Commission approval and an order are two different things and that, despite the absence

                                              5
of an "order" requiring the installation of automatic gates at the crossing, the Commission

had "approved" the installation of automatic gates as indicated by Stead's letter of August

15, 2005.     We understand the plaintiff's argument to be that "approval" by the

Commission of the automatic gates somehow revoked the Commission's "approval" of

the already installed luminous flashing light signals, thereby removing the statutory

presumption that the signals were "adequate and appropriate."

¶ 12   We find no need to discuss the difference between a Commission "order" and

Commission "approval." The statutory language establishing the presumption speaks in

terms of protective devices "installed" at grade crossings, which have been approved by

the Commission. It seems to us that the key word here is "installed." Once installed

pursuant to Commission approval, the protective devices retain the presumption of

adequacy and appropriateness until they are replaced. They do not lose the presumption

simply because a future change has been approved or ordered by the Commission. Our

interpretation of the statute is consistent with the statutory scheme and with existing case

law.

¶ 13   In Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107 (1995), our supreme

court discussed the language of section 18c-7401(3) of the Act which provides that

installed and approved luminous flashing signal devices at grade crossings shall be

deemed adequate and appropriate. The court stated:

            "We interpret the relevant language of section 18c-7401(3) as providing that

       once the Commission has investigated a crossing and has approved the installation

       of a luminous flashing signal or crossing gate device, then the installation of that

                                             6
       device shall be deemed adequate and appropriate. A conclusive legal presumption

       is created which prevents plaintiffs from arguing that the railroad should have

       installed other warning devices." (Emphasis added.) Espinoza, 165 Ill. 2d at 121.

Our supreme court again so held in Chandler v. Illinois Central R.R. Co., 207 Ill. 2d 331,

341-45 (2003). Furthermore, the unqualified language of section 18c-7401(3) manifests

an intent to allow railroads to rely on Commission determinations with respect to the

adequacy and appropriateness of crossing protective devices regardless of changed

circumstances or the passage of time. Danner v. Norfolk & Western Ry. Co., 271 Ill.

App. 3d 598, 603 (1995). Thus, the fact that circumstances had changed at the crossing

such that it now met the minimum requirements for the installation of automatic gates did

not deprive the defendant railroad of the conclusive legal presumption that the approved

and installed luminous flashing light signals were adequate and appropriate until they

were replaced. To hold otherwise would subject the railroad to liability for the period of

time between the determination that a change was warranted and the actual installation of

the new protective devices. This is certainly not the intent of the statute. Section 18c-

7401 is "clearly intended to foreclose litigation over the adequacy of approved warning

devices." Danner, 271 Ill. App. 3d at 602.

¶ 14   Accordingly, we answer the first-addressed certified question in the affirmative.

Under section 18c-7401(3) of the Act the luminous flashing light signals installed at the

subject crossing are still deemed "adequate and appropriate" even after the August 15,

2005, letter from Stead which stated that the crossing now met the minimum

requirements for the installation of automatic gates and will remain so until replaced

                                             7
pursuant to Commission approval.

¶ 15   We turn now to the other certified question: "Did the Illinois Central Railroad

have a duty to use reasonable care to install automatic gates at the South Main Street

crossing in Marissa, Illinois (AAR/DOT #296 124L) prior to November 20, 2006?"

¶ 16   Taking the question as stated, the answer is clearly no. Because the flashing

luminous light signals had been installed pursuant to the approval and order of the

Commission, they must be deemed adequate and appropriate, and not only did the

defendant railroad have no duty to install automatic gates at the crossing, it was expressly

prohibited from doing so by the Act. Hunter v. Chicago & North Western Transportation

Co., 200 Ill. App. 3d 458, 465-66 (1990) (once the Commission has ordered the

installation of a particular kind of warning device, its decision is conclusive, and the

railroad is prohibited from installing any other).

¶ 17   Further, if by the certified question the circuit court meant to ask whether the

defendant railroad had a duty to petition the Commission for permission to install

automatic gates at the crossing, the answer remains no. Under section 18c-7401(3) of the

Act, there is no duty to petition the Commission for additional warning devices once

warning lights have been installed pursuant to approval of the Commission. Danner v.

Norfolk & Western Ry. Co., 271 Ill. App. 3d 598, 602 (1995).

¶ 18   In Danner, the following question was certified to the appellate court:

          " 'In light of the provision of 625 ILCS 5/18c-7401(3) that "luminous flashing

       signal or crossing gate devices installed at grade crossings which have been

       approved by the Commission, shall be deemed adequate and appropriate", does a

                                              8
       railroad have a common law or other duty to petition the [Commission] to

       authorize an upgrade of the protection by installation of additional safety devices

       at a crossing protected by flashing signals ordered and approved by the

       [Commission], when the railroad is aware or should be aware that additional

       safety devices are warranted?' " Danner, 271 Ill. App. 3d at 600.

The court answered the question as follows: "The answer to the certified question is no,

there is no duty." Danner, 271 Ill. App. 3d at 604.

¶ 19   We answer the certified question before us the same way: the railroad had no duty

to install, or to petition for permission to install, automatic gates at the crossing in

question.

¶ 20   In conclusion, the defendant railroad is entitled to the conclusive legal

presumption that the luminous flashing light signals installed at the crossing in question

were adequate and appropriate at the time of the accident. Further, the defendant railroad

had no duty to install at the crossing automatic gates or to petition the Commission for

permission to do so.

¶ 21   Certified questions answered; cause remanded for further proceedings.



¶ 22   JUSTICE GOLDENHERSH, dissenting:

¶ 23   I respectfully dissent. The following two questions were certified for appeal:

       Certified Question No. 1: "Did the Illinois Central Railroad have a duty to use

       reasonable care to install automatic gates at the South Main Street crossing in

       Marissa, Illinois (AAR/DOT #296 124L) prior to November 20, 2006?"

                                            9
       Certified Question No. 2: "Under 625 ILCS 5/18c-7401(3), are luminous flashing

       light signals installed at the South Main Street crossing in Marissa, Illinois

       (AAR/DOT #296 124L), which had previously been approved by the Illinois

       Commerce Commission on July 10, 1962 and thus 'shall be deemed adequate and

       appropriate' still 'deemed adequate and appropriate' after the August 15, 2005

       letter from Michael Stead, Rail Safety Program Administrator, which stated that

       the 'existing conditions meet the Commission's minimum requirements for the

       installation of automatic gates,' even though the Illinois Commerce Commission

       had not yet ordered the installation of automatic gates?"

¶ 24   I would answer the first question in the affirmative and the second question in the

negative.

¶ 25   The Illinois Commerce Commission has two bureaus–the Public Utilities Bureau

and the Transportation Bureau. The formulation of the certified questions presented on

appeal rests largely on correspondence and deposition testimony of Michael Stead, head

of the Rail Safety Section in the Transportation Bureau. Stead testified that he reports to

the head of the Transportation Bureau, who reports to the executive director.          The

executive director, "in turn, reports to the Commission itself."      Stead described the

Hearings and Orders Section that consists of three administrative law judges that holds

hearings and issues directives on petitions:

            "Q. [Attorney for defendant:] And what is their function as it would relate to

       the petition process?



                                               10
          A. Once a petition is filed, then an administrative hearing is scheduled, and

       when those hearings are held, the administrative law judge, for lack of a better

       term, runs those hearings much like a judge in a court of law would do.

          Q. Okay. And then after they have run that hearing, what would be the

       product of that hearing?

          A. The product of those hearings normally is an order that is submitted to the

       Commission for its approval, and within those–that order is the language that

       directs the parties accordingly depending on the contents of the petition."

¶ 26   In February of 2000, the mayor of Marissa submitted a project application to the

Commission which sought an upgrade over the existing flashing light signals. Due to the

project application, the Commission performed a database review of the crossing and, in

April 2005, placed the crossing on a five-year project list for fiscal year 2007 through

fiscal year 2011.

¶ 27   In his deposition, Stead reviewed a set of proposed grade-crossing protection fund

projects for local roads and streets–one for fiscal years 2006 through 2010 and another

for fiscal years 2007 through 2011. The plan for fiscal years "FY 2007-2011 Plan" was

issued by the Illinois Commerce Commission in April 2006. The South Main Street

crossing in Marissa was listed in "Appendix 2 FY 2008-2011 Projects by County" with a

cost of $265,000.      The plan noted: "Projects programmed for submittal to the

Commission in FY2008-2011 are listed in Appendix 2. For those years, it is anticipated

the Commission will consider projects requiring commitment from the Grade Crossing



                                            11
Protection Fund totaling over $133 million, affecting more than 219 crossings in over 69

counties." At the bottom of each page of appendix 2, including the page listing the

Marissa crossing, a footnote stated: "Note: Total Est. Project Costs are shown, since

Commission approval has not been granted for these projects." Appendix 3 listed the

"Active Projects" with specific locations and cost information.

¶ 28   Stead described the document:

          "A. *** So we have a tabular summary for the one-year plan and also for the

       five-year plan.   Ultimately we have a list of all of the proposed crossing

       improvement projects planned for the next five years.

          Q. [Attorney for plaintiff:] And you say, 'proposed.' What do you mean by

       proposed?

          A. These are projects that we propose.

          Q. When you say 'we' who are you–

          A. When I say, 'we,' I'm referring to Rail Safety Section staff. This is a list of

       projects that we propose, we submit to the Commission for its approval. Pending

       approval, pending the Commission's approval of this entire five-year plan

       document, this list represents the projects for which the Commission has

       committed assistance from the Grade Crossing Protection Fund for completion of

       the projects, and proposed also means projects we feel comfortable–we, again,

       staff from–Rail Safety Section staff believe will eventually be completed, actually

       ordered in the next five years and eventually completed thereafter.       There are



                                            12
       some cases where these projects run into delays and have to be pushed back.

       That's why we continue to consider it proposed projects rather than actual projects.

          Q. Okay. So all of those projects that are listed in–as part of Exhibit 5 are not

       projects that have actually, at the point that document is prepared, been ordered by

       the Commission?

          A. That's correct.

          Q. The ones that had actually been ordered by the Commission, are they

       identified separately in that list by appendix or otherwise?

          A. Yes. Appendix 3 of the five-year plan includes a list that are described as

       active projects, and the definition of active projects are projects that have been

       approved through order by the Commission."

¶ 29   In June 2005, Congressman Jerry Costello sent correspondence to Peggy Snyder,

the Director of Office of Government Affairs for the Commission, regarding the crossing.

Costello attached a letter from Mike Parker of Marissa that contained a petition signed by

over 180 citizens of the Marissa area. Apparently Frank Miles also filed an online

complaint and received correspondence on June 28, 2005. This is only referred to in

Stead's deposition.

¶ 30   On June 30, 2005, Stead sent correspondence to Congressman Costello. Stead

wrote in response to the petitions Costello forwarded to the Commission's Office of

Government Affairs. He acknowledged that the petitions reflected a concern by citizens




                                             13
of Marissa that automatic gates were necessary at the South Main and Finger Hill Road

crossings, writing:

          "A representative of this office will be assigned to investigate your constituents'

          concerns. If existing conditions meet the Commission's minimum requirements

          for adding automatic gates, we will work with the Village and the railroad to

          implement the safety improvements as soon as possible."

¶ 31      On August 15, 2005, Stead sent Congressman Costello a "follow-up" letter, which

stated:

             "A representative of this office recently inspected the subject crossings and

          determined that existing conditions meet the Commission's minimum requirements

          for the installation of automatic gates.        Assistance from the Grade Crossing

          Protection Fund (GCPF) has been programmed to help pay for the installation of

          new automatic flashing light signals and short-arm gates at the subject crossings

          during state fiscal year 2010 (July 1, 2009 - June 30, 2010). We will contact the

          Village and [defendant] to discuss the details of these proposed improvements as

          FY 2010 nears.

             For the installation of automatic flashing light signals and gates we typically

          recommend to the Commission that the GCPF be used to pay 85% of the

          installation costs at each location.        The Village of Marissa would likely be

          responsible for 10% of the installation costs. Defendant would pay all remaining




                                                 14
       installation costs, as well as all future operating and maintenance costs."

       (Emphasis added.)

Stead noted that the cost to install the gates was estimated at $235,000 per crossing.

¶ 32   Stead proceeded to address the issue of funding. He estimated the portion to be

paid by Marissa at $47,000 plus all costs that might be incurred for improving the grade

improvements to the road. Stead commented that "[w]ith the proposed improvements

programmed for FY 2010," Marissa would have sufficient time to budget for its share of

costs, but if Marissa lacked funds it could submit a hardship application.               Stead

continued:

          "The large number of project requests submitted every year requires us to

       prioritize projects based on several criteria, including the relative safety of the

       existing crossing, and the volume and types of existing train and highway traffic.

          After each application is prioritized based on engineering requirements,

       geographic location is also taken into account so that improvements throughout

       the state can be addressed as equitably as possible. In this instance, since both

       crossings are currently equipped with automatic flashing light signals, we

       determined that project requests to install automatic warning devices at crossing

       locations equipped only with crossbuck warning signs should be given priority."

Stead forwarded copies of his correspondence to representatives of the Village of Marissa

and defendant.




                                            15
¶ 33   The fatal accident occurred on November 20, 2006. On November 22, 2006,

Stead sent Congressman Costello another letter. Stead wrote:

          "I previously indicated that assistance from the Grade Crossing Protection

       Fund (GCPF) had been included in the Illinois Commerce Commission's FY 2007-

       2011 Crossing Safety Improvement Program 5-Year Plan to help pay for the

       installation of new automatic flashing light signals and short-arm gates at the

       subject crossings during state fiscal year (FY) 2010 (July 1, 2009 - June 30, 2010).

       However after a train/vehicle collision occurred at the South Main Street crossing

       on Monday November 20th, this office is working with the Village of Marissa and

       the CN to expedite a safety improvement project to install automatic flashing light

       signals and gates at both crossings as soon as possible. Working in conjunction

       with the Village and the railroad we anticipate an agreement for the work will be

       executed expeditiously so that an Order, recommending the proposed safety

       improvements, can be submitted to the Commission early in 2007. Following

       Commission approval of the proposed safety improvements the railroad will have

       12 months within which to complete the work." (Emphasis added.)

¶ 34   On August 29, 2007, the chairman of the Illinois Commerce Commission signed

an order of the Commission requiring and directing defendant to proceed immediately

with installation of gates at the crossings as outlined in a stipulated agreement. The order

required defendant to proceed immediately and subjected defendant to fines if the

installation was not completed within 12 months.



                                            16
¶ 35   The stipulated agreement was attached to the order. The agreement provided the

preliminary plans and costs estimates along with outlining the division of costs and was

signed by Stead and attested by Von DeBur on April 26, 2007. On later dates, the

stipulation was signed by representatives of the Village of Marissa, the Illinois

Department of Transportation, and defendant.

¶ 36   On January 10, 2007, plaintiff filed suit in the circuit court of St. Clair County.

Defendant filed an answer and affirmative defenses, including that the flashing signals

were conclusively adequate and appropriate under the Illinois Commercial Transportation

Law (625 ILCS 5/18c-7401 (West 2006)). The court granted plaintiff's motion to strike

the affirmative defenses and defendant filed for supervisory order. On May 16, 2007, the

Supreme Court of Illinois entered a supervisory order directing the circuit court to vacate

the order striking the affirmative defenses. The circuit court entered an order vacating

the previous order, denying the motion to strike affirmative defenses, and entered an

order certifying the two questions for appeal.

¶ 37   Defendant contends that the applicable statutory scheme permitted its behavior.

The Illinois Commercial Transportation Law provides a conclusive presumption that

signal installations "approved" by the Commission are to be deemed adequate and

appropriate. Plaintiff replies that the term "approved" is not synonymous with "order" or

"require"–thus, the meaning of the statute is ambiguous. This reveals an underlying issue

of whether the condition of a crossing is still "deemed adequate and appropriate" when a

Commission investigation spurred by citizen petition determines a need for upgrade.

Any attempt to address the certified questions and the underlying issues in terms of this

                                            17
regulatory scheme leads to an inquiry as to whether the present situation was beyond the

contemplation and legislative intent of the General Assembly as embodied in its statute.

¶ 38                            History of Presumption

¶ 39   Illinois has long recognized that rail carriers have a duty to provide adequate

warning devices at road crossings. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill.

2d 107, 120, 649 N.E.2d 1323, 1329 (1995); Langston v. Chicago & North Western Ry.

Co., 398 Ill. 248, 253, 75 N.E.2d 363, 365 (1947). This duty stems from a responsibility

of rail carriers to exercise ordinary care regarding the safety of public crossings of

railway tracks. Bales v. Pennsylvania R.R. Co., 347 Ill. App. 466, 474, 107 N.E.2d 179,

183 (1952).

¶ 40   Prior to enactment of section 18c-7401(3) of the Illinois Commercial

Transportation Law, a rail carrier's compliance with the standards set forth by the state

constituted evidence of due care. Paulison, decided shortly before enactment of 18c-

7401(3), exemplifies the previous approach. Paulison v. Chicago, Milwaukee, St. Paul &

Pacific R.R., 74 Ill. App. 3d 282, 288, 392 N.E.2d 960, 964 (1979) (citing Merchants

National Bank of Aurora v. Elgin, Joliet & Eastern Ry. Co., 121 Ill. App. 2d 445, 257

N.E.2d 216 (1970), aff'd, 49 Ill. 2d 118, 273 N.E.2d 809 (1971)). In Paulison, the estate

of a motorist brought a wrongful death action asserting that the rail carrier was negligent

for failing to provide automatic gates at a crossing even though state standards did not

require gates at the single track crossing. Relying on Merchants, Paulison discussed the

previous approach:




                                            18
   "The question then becomes whether the State standards represent the totality

of defendant's duty. This question was presented to this court in Merchants

National Bank v. Elgin, Joliet, & Eastern Ry. Co. (1970), 121 Ill. App. 2d 445,

257 N.E.2d 216, aff'd (1971), 49 Ill. 2d 118, 273 N.E.2d 809. In that case, the

State standards were also introduced. The railroad argued that it was not negligent

because the Illinois Commerce Commission had not ordered a particular warning

device for that crossing. In response, this court held: '[t]he fact that a statute may

provide one precaution does not relieve the railroad from adopting such others as

public safety or common prudence may dictate.' (121 Ill. App. 2d 445, 456.)

Clearly, the State standards are merely evidence of due care; they do not operate to

relieve defendant of liability even if complied with.       'A railroad company is

required to exercise ordinary prudence and care in operating its trains to prevent

injury to those who travel upon a public highway crossing its tracks.' (Bales v.

Pennsylvania R.R. Co. (1952), 347 Ill. App. 466, 474, 107 N.E.2d 179.) 'The fact

that the statute may provide one precaution does not relieve the company from

adopting such others as public safety or common prudence may dictate.' Wagner

v. Toledo, Peoria & Western R.R. (1933), 352 Ill. 85, 91, 185 N.E. 236.

   These cases indicate that there may have been a duty upon the defendant

railroad to install automatic gates notwithstanding the fact that they were not

required under the State standards." Paulison, 74 Ill. App. 3d at 288, 392 N.E.2d

at 964.



                                      19
¶ 41   No longer are the state standards merely evidence of due care. Although railroads

still have a duty to provide adequate warning devices, the Illinois Commercial

Transportation Law has created a conclusive presumption that the installation of devices

as "approved by the Commission" is adequate and appropriate. 625 ILCS 5/18c-7401

(West 2006).

¶ 42   The General Assembly declared that the accelerating growth of the transportation

industry and attendant regulation "necessitates the streamlining of regulatory procedures

to allow for prompt action to protect the interests of the people of the State of Illinois."

625 ILCS 5/18c-1102(b) (West 2006). The Commission has plenary and exclusive

jurisdiction over the safety devices at crossings. McClaughry v. Village of Antioch, 296

Ill. App. 3d 636, 639, 695 N.E.2d 492, 496 (1998). Its role in overseeing safety devices

at crossings and the standards for such devices is in accord with federal regulation and

the Manual on Uniform Traffic Control Devices. 23 C.F.R. 655.601 (2012); see Brennan

v. Wisconsin Central Ltd., 227 Ill. App. 3d 1070, 1079, 591 N.E.2d 494, 501 (1992).

¶ 43   Section 18c-7401 of the Illinois Commercial Transportation Law governs safety

requirements for rail carriers regarding tracks, facilities, and equipment. The section is

copious and addresses numerous aspects of the maintenance and installation of tracks at

road crossings, including obligations of rail carriers to maintain flush crossings and clear

shrubbery for visibility. Paragraph (3) gives the Commission the authority to determine

the number, type, and location of protective devices at crossings including signs, signals,

and gates. 625 ILCS 5/18c-7401(3) (West 2006).




                                            20
¶ 44   In 1982, the General Assembly adopted an amendment to section 18c-7401(3) that

forms the focus of this dispute. Pub. Act 82-763 (eff. Jan. 1, 1983) (amending sections

57 and 58 of the Illinois Public Utilities Act, which was the precursor of the Illinois

Commercial Transportation Law). This amendment created a statutory presumption:

       "The Commission shall have power, upon its own motion, or upon complaint, and

       after having made proper investigation, to require the installation of adequate and

       appropriate luminous reflective warning signs, luminous flashing signals, crossing

       gates illuminated at night, or other protective devices in order to promote and

       safeguard the health and safety of the public.      Luminous flashing signal or

       crossing gate devices installed at grade crossings, which have been approved by

       the Commission, shall be deemed adequate and appropriate." 625 ILCS 5/18c-

       7401(3) (West 2006).

¶ 45                    Statutory Scheme and Defendant's Case

¶ 46   Plaintiff argues that the situation at hand was beyond the contemplation and intent

of the legislature expressed in section 18c-7401. Defendant argues section 18c-7401 is

globally comprehensive and contends that the flashing signals were adequate and

appropriate as they had been installed pursuant to order of the Commission. Defendant

argues that the exclusive jurisdiction and regulatory authority of the Commission over

safety devices is signified by the repeated use of the terms "order" and "require" in

section 18c-7401. For example, section 18c-7401 provides that "[t]he Commission shall

also have power by its order to require *** improvement of any crossing" and may

apportion the cost "[b]y its original order or supplemental orders." 625 ILCS 5/18c-

                                           21
7401(3) (West 2006). Moreover, the sentence establishing a conclusive presumption is

preceded by a sentence authorizing the Commission to "require" the installation of

adequate and appropriate luminous devices. Essentially, defendant asserts that imbuing

"approval" with a distinct meaning from "order" and "require" would divorce the term

from the context of the statutory scheme, and particularly the exclusive authority of the

Commission to set requirements through orders set forth in section 18c-7401.

¶ 47                         Case Law and Plaintiff's Case

¶ 48   Pointing to the same passages of section 18c-7401 relied on by defendant, plaintiff

asserts that throughout section 18c-7401 the word "order" is used in conjunction with the

Commission's power to "require" action after a hearing, but that the use of the term

"approved" signifies something other than a requirement.         Plaintiff calls approval

"something less than an order pursuant to a hearing." Indeed, section 18c-7401 does not

limit the Commission's authority to the power to "require," but also uses the term

"permission." "No public road, highway, or street shall hereafter be constructed across

the track of any rail carrier *** without having first secured the permission of the

Commission ***." 625 ILCS 5/18c-7401(3) (West 2006). "The Commission shall have

the right to refuse its permission or to grant it upon such terms and conditions as it may

prescribe." 625 ILCS 5/18c-7401(3) (West 2006). Plaintiff argues the instant situation

was not contemplated by the legislature when enacting section 18c-7401–a rule from the

Commission in the process of modification.

¶ 49   Contrary to the position taken by defendant, the term "approved" has been

interpreted as not being synonymous with "order" in section 18c-7401. Chandler v.

                                             22
Illinois Central R.R. Co., 207 Ill. 2d 331, 342-43, 798 N.E.2d 724, 730 (2003); Espinoza

v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 121, 649 N.E.2d 1323, 1329 (1995).

¶ 50   In Espinoza, flashing light signals had been installed in 1965 and, in 1981,

Commission staff had inspected the crossing and determined that gates were not

necessary. Section 18c-7401 of the Illinois Commercial Transportation Law did not

become effective until 1986. The plaintiffs argued that in order for section 18c-7401 to

apply, the approval must have taken place after the effective date the statutory provision

came into effect and, as such, "the Commission has not yet made an investigation and

determination that the warning devices installed *** are adequate and appropriate."

Espinoza, 165 Ill. 2d at 122, 649 N.E.2d at 1330. Espinoza framed the issue in terms of

whether the defendant "owed a duty to provide additional warning devices, such as

crossing gates." (Emphasis in original.)    Espinoza, 165 Ill. 2d at 121, 649 N.E.2d at

1329. Espinoza reasoned that the conclusive presumption in favor of the railroad was

justified because the "railroad can install no other signal, by law," once the Commission

orders a particular kind of signal. (Internal quotation marks omitted.) Espinoza, 165 Ill.

2d at 122, 649 N.E.2d at 1330.

¶ 51   Espinoza proceeded to reject plaintiffs' contention that approval must be in the

form of an order entered after the effective date of section 18c-7401 of January 1, 1983.

Espinoza's conclusion focused on the role of investigation, not the procedural process of

the Commission entering an order. Espinoza found:

          "The Transportation Law provides that certain devices approved by the

       Commission shall be deemed adequate and appropriate. By its plain language it

                                           23
        applies to any Commission investigation and approval. It does not restrict its

        application to investigations and approvals that occurred after a certain date, as

        plaintiffs argue." Espinoza, 165 Ill. 2d at 122, 649 N.E.2d at 1330.

¶ 52    Espinoza turned to the legislative history for support of a lack of a time frame for

investigation. A railroad could take the "extra precaution of putting in a gate." (Internal

quotation marks omitted.) Espinoza, 165 Ill. 2d at 123, 649 N.E.2d at 1330. After

reviewing this history, Espinoza concluded that the legislature intended that Commission

investigations and approvals that occurred prior to the enactment of section 18c-7401

were sufficient to invoke the presumption. Espinoza, 165 Ill. 2d at 123, 649 N.E.2d at

1330.

¶ 53    The approval in Espinoza derived from the 1981 investigation and approval, not

from the 1965 order. Plaintiff points to language of investigation in Espinoza:

           "We interpret the relevant language of section 18c-7401(3) as providing that

        once the Commission has investigated a crossing and has approved the installation

        of a *** crossing gate device, then the installation of that device shall be deemed

        adequate and appropriate." Espinoza, 165 Ill. 2d at 121, 649 N.E.2d at 1329-30.

¶ 54    Espinoza's conclusion was that the flashing lights met approval was based on the

most recent investigation of the Commission. Espinoza concluded:

           "The record in this case establishes that the Commission has made the requisite

        investigation and approval pursuant to the Transportation Law.         In 1965, the

        Commission entered an order that cantilever-mounted flashing light signals be

        installed at the 22nd Street crossing. The certified records of the Commission also

                                             24
       show that, in 1981, a member of the Commission staff specifically inspected the

       22nd Street crossing to determine whether crossing gates were necessary. Bernard

       Morris, chief railroad engineer for the Commission, stated that, as a result of the

       1981 inspection, he determined that crossing gates were not necessary. According

       to Morris, the warning signals at the 22nd Street crossing were determined by the

       Commission to be adequate and appropriate. He therefore concluded that the

       warning devices existent at the crossing remained adequate and appropriate at the

       time of the accident since the Commission order from 1965 was still in effect."

       Espinoza, 165 Ill. 2d at 123-24, 649 N.E.2d at 1330-31.

¶ 55   Chandler involved a crossing in Tilden that had been equipped according to a

1962 order entered on the petition of Illinois Central Railroad Company.           Before

specifically addressing the arguments made by the plaintiff, Chandler discussed

Espinoza.     Chandler interpreted Espinoza as finding approval derives from the

Commission investigation. Chandler described Espinoza:

            "The record in the case established that the Commission had made the requisite

       investigation and approval pursuant to the Transportation Law. Espinoza, 165 Ill.

       2d at 123. In 1965, the Commission had entered an order that flashing light

       signals be installed at the crossing, and, in 1981, Commission staff had inspected

       the crossing and determined that crossing gates were not necessary. Espinoza, 165

       Ill. 2d at 123-24." Chandler v. Illinois Central R.R. Co., 207 Ill. 2d 331, 342-43,

       798 N.E.2d 724, 730 (2003).



                                            25
Chandler found that the record led to the conclusion "that in 1962 the Commission duly

investigated the crossing and the adequacy of the warning devices." (Emphasis added.)

Chandler, 207 Ill. 2d at 343, 798 N.E.2d at 730. Chandler did not rest alone on the 1962

order, but looked to the supporting investigation. In support of the 1962 petition, Illinois

Central had submitted documentary evidence, including blueprints, and the Commission

entertained testimony.

¶ 56   After commenting on the investigation supporting the Commission approval,

Chandler proceeded to discount the arguments made by the plaintiff. The plaintiff

asserted that the conclusive presumption applies only where the Commission approves

the installation of devices upon its own motion and only applies when the Commission

requires warning devices.     Chandler rejected these arguments, again looking to the

connection between investigation and approval:

          "Plaintiff also follows the reasoning of the appellate court in arguing that the

       conclusive legal presumption only applies where the Commission, upon its own

       motion or upon complaint, approves the installation of the warning devices (see

       333 Ill. App. 3d at 470).       Plaintiff notes that Illinois Central initiated the

       proceedings at issue as opposed to the Commission or a private citizen. We reject

       plaintiff's argument. First, plaintiff assumes that the conclusive legal presumption

       cannot apply if a railroad moves for a change to a railroad crossing. Nothing in

       section 18c-7401(3) so intimates. Moreover, there is no principled reason to

       distinguish between instances where the Commission approves the warning

       devices following investigation, whether the proceedings are initiated by the

                                            26
       Commission, the railroad, a municipality or a private individual. Second, as noted

       in Espinoza, 165 Ill. 2d at 122, the conclusive legal presumption applies to 'any

       Commission investigation and approval.' It is not limited to instances where the

       Commission requires the installation of warning devices at a crossing, as opposed

       to instances where the Commission approves existent warning devices. Again,

       there is no principled reason for a distinction. The Commission undertakes the

       same investigation and is motivated by the same safety concerns whether it enters

       an order in a proceeding initiated by a railroad or by another entity, and whether it

       approves existent warning devices or warning devices which are to be placed at

       the crossing at a later date. In this regard we note that section 18c-7401(3)

       provides that '[n]o railroad may change or modify the warning device system at a

       railroad-highway grade crossing, including warning systems interconnected with

       highway traffic control signals, without having first received the approval of the

       Commission.' 625 ILCS 5/18c-7401(3) (West 1996). Illinois Central modified the

       warning device system at the Center Street crossing upon approval of the

       Commission." (Emphasis in original.) Chandler, 207 Ill. 2d at 344-45, 798

       N.E.2d at 731.

¶ 57   Both Espinoza and Chandler indicate that the policy behind granting protection to

railroads is justified by the fact that the Commission had investigated the safety devices.

Neither of these precedents involved the modification of approval. Thus, the question

again becomes whether the situation at hand was contemplated by the legislature when it

created the statutory protection for the railroad.

                                              27
¶ 58   I conclude that the situation at hand was not contemplated by the legislature. The

change to this particular rail crossing had been investigated and approved by the person

and divisions charged with determining the merits of such a modification. It was on the

waiting list for a formal order from the Commission; the only effect of such order would

be allocation of funding for the change in the crossing, resulting in defendant sharing the

cost of modification with the state and municipality rather than bearing the entire

financial burden itself.    The collision in this case occurred 15 months after the

Commission's investigation and determinations. The determination had already been

made that the crossing was unsafe and the need for upgrade already proven. The record

suggests a funding concern, not a contest over whether the conditions were safe or

"approved." Defendant's strategy in this contest was to lay low and silent. There was no

other impediment to the changes or reason to assume that the crossing did not fit in the

category of those "approved."

¶ 59   Defendant contends that failure to afford statutory protection would create a duty

for it to file a petition for modification. This is without merit. Defendant's reaction upon

being informed of the investigation was not merely a failure to file a petition for

modification–defendant reacted with silence. Even after the investigation revealed the

need for installation of automatic gates, defendant was decidedly uninvolved. Most

importantly, defendant's assertion underlies how the situation at hand was not

contemplated by the legislature. Certainly the legislature did not intend to encourage a

railroad such as defendant to remain detached, indeed silent, when confronted with

complaints by the mayor, congressman, and citizenry of a village and an investigation

                                            28
concluding that there was need for change. Likewise, the majority's citation of Danner v.

Norfolk & Western Ry. Co., 271 Ill. App. 3d 598 (1995), is not on point. Danner, like

Espinoza and Chandler, had no occasion to address the situation in the instant case, a rule

in the process of modification.

¶ 60   The statute in question, in contrast to the instant facts on record, deals with a

completed Commission process and the resulting presumption.           The parties to this

litigation have not presented, and our research has not revealed, any indication that the

legislature considered a rule in the process of change, already approved on the merits, and

merely awaiting the formalities leading to implementation of funding. The legislative

intent, evidenced by the statute's language, contemplated the consequences of a formally

completed process, not one in process.

¶ 61   Likewise, our supreme court's decisions in Espinoza and Chandler examined and

clarified the consequences of the completed process dealt with in the statute. Espinoza

dealt with the questions of effective date and the extent of safety machinery (gates not

needed). In Chandler, the court examined the Commission's record supporting approval

of existing warning devices. Neither Espinoza nor Chandler had occasion to examine the

consequences and implications of the present scenario: changes investigated, approved,

and recommended by the appropriate Commission personnel and merely awaiting formal

order and funding. After a formal order, funding, and completion of the project, the

statutory presumptions in Espinoza and Chandler could apply.

¶ 62   I now turn to the certified questions from the circuit court, but will consider them

in reverse order.

                                            29
¶ 63   Certified question No. 2 deals with the effect of the existing order for this crossing

in light of the investigation, determination, and recommendation of the appropriate

Commission personnel. In light of the discussion above, I would answer this question in

the negative. Answering it in the affirmative would contradict what the Commission

personnel actually determined.

¶ 64   In light of the answer to question No. 2, I would answer question No. 1 in the

affirmative. Both Espinoza and Chandler recognize that a railroad has a duty to provide

adequate devices (Espinoza, 165 Ill. 2d at 120, 649 N.E.2d at 1329; Chandler 207 Ill. 2d

at 341, 798 N.E.2d at 729). Nothing in this record indicates that anything but funding

was at issue after the findings by the Commission personnel outlined above. Further,

nothing in this record suggests any impediment to a stipulation to that effect, and the

shield of the statutory presumption does not apply in this case (see question No. 2).

¶ 65   Accordingly, I respectfully dissent.




                                              30
                                2014 IL App (5th) 120464

                                     NO. 5-12-0464

                                           IN THE

                            APPELLATE COURT OF ILLINOIS

                                  FIFTH DISTRICT
______________________________________________________________________________

MICHAEL PORTER, as Special Administrator    )   Appeal from the
of the Estates of Tina Porter, Deceased,   )    Circuit Court of
and Allaysa Porter, Deceased,               )   St. Clair County.
                                            )
      Plaintiff-Appellee,                   )
                                            )
v.                                          )   No. 07-L-17
                                            )
ILLINOIS CENTRAL RAILROAD                   )
COMPANY,                                    )   Honorable
                                            )   Vincent J. Lopinot,
      Defendant-Appellant.                  )   Judge, presiding.
______________________________________________________________________________

Opinion Filed:          June 3, 2014
______________________________________________________________________________

Justices:         Honorable Thomas M. Welch, P.J.

                  Honorable Stephen L. Spomer, J.,
                  Concurring
                  Honorable Richard P. Goldenhersh, J.,
                  Dissenting
______________________________________________________________________________

Attorneys         Thomas E. Jones, Harlan A. Harla, Thompson Coburn LLP, 525
for               West Main Street, P.O. Box 750, Belleville, IL 62222-0750
Appellant
______________________________________________________________________________

Attorneys         Thomas Q. Keefe, Jr., Samantha S. Unsell, Keefe & Keefe, P.C.,
for               #6 Executive Woods Court, Belleville, IL 62226
Appellee
______________________________________________________________________________
