                                                                      Sixth Division
                                                                      November 12, 2010

No. 1-09-1710

MARLA BETH TORF,                                                )   Appeal from
                                                                )   the Circuit Court
       Plaintiff–Appellant,                                     )   of Cook County
                                                                )
                v.                                              )
                                                                )   08 L 001086
CHICAGO TRANSIT AUTHORITY, a Municipal                          )
Corporation,                                                    )
                                                                )   Hon. Kathy M. Flanagan,
       Defendant–Appellee.                                      )   Judge Presiding.

       JUSTICE McBRIDE delivered the opinion of the court:

       Plaintiff, Marla Beth Torf, was injured while attempting to evacuate a Chicago Transit

Authority (CTA) train and brought an action against the CTA seeking to recover damages for

negligence. The trial court granted summary judgment in favor of the CTA, finding that it was

immune from liability under the Metropolitan Transit Authority Act (the Act) (70 ILCS 3605/27

(West 2008)). For the reasons that follow, we reverse.

       The complaint alleged that on July 7, 2007, Torf and her husband boarded a CTA train at

the Cermak-Chinatown station. Shortly after the train left the station, it was stopped on the

tracks and its power was turned off. The passengers on the train were subsequently ordered to

evacuate. Torf attempted to evacuate the train to the tracks below by first trying to sit on the

floor next to the train’s door. While doing so, Torf was knocked to the floor by another

passenger and was injured. Torf alleged that the CTA owed a duty to exercise the highest degree

of care to protect the safety of its passengers and that it breached that duty and was negligent by:

(1) failing to maintain the train so as to avoid disruption of service between platforms; (2) failing

to provide a safe means of egress for Torf to exit the train once the evacuation was ordered; (3)
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failing to provide clear instructions dictating the safe evacuation of the train so as to avoid chaos;

and (4) failing to provide assistance to Torf and other passengers as they exited the train to track

level so as to minimize the risk of injury.

        The CTA filed a motion for summary judgment, arguing that Torf’s discovery deposition

established that her injuries were caused by criminal assault and that the complaint essentially

alleged that the CTA failed to protect Torf from the criminal act of a third party. As such, the

CTA argued that it was immune from liability under section 27 of the Act. In relevant part, that

section states:

                  “Neither the Authority, the members of its Board, nor its officers or

                  employees shall be held liable for failure to provide a security or

                  police force or, if a security or police force is provided, for failure

                  to provide adequate police protection or security, failure to prevent

                  the commission of crimes by fellow passengers or other third

                  persons or for the failure to apprehend criminals.” 70 ILCS

                  3605/27 (West 2008).

        The CTA attached Torf’s discovery deposition to its motion for summary judgment. In

that deposition, Torf testified that the train was approximately 100 to 200 feet from the station

when its power was turned off. When the power to the train was cut, at approximately 8 p.m.,

the lighting and air conditioning on the train also stopped. An announcement on the train

indicated that there was an emergency on the tracks and that anyone attempting to leave the train

would be arrested. Torf testified that the outside temperature at the time was in the “high-80's,


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low-90's” and that the inside of the car felt “like an oven” because the train’s doors and windows

were closed. Approximately 40 minutes after the train was stopped, a CTA employee came

through Torf’s car and opened the doors and windows. Some time later, Torf saw police

apprehend the person threatening to commit suicide and an announcement was then made that

the train would be evacuated shortly. Someone then came through the train and closed the doors

and windows.

       Approximately 10 minutes later, and 1½ hours after the train initially came to a stop on

the tracks, an announcement was made that the passengers in Torf’s car should evacuate the train

by exiting the doors. Torf testified that there were no CTA employees in her car to help

passengers evacuate and that no announcement was made as to whether power was running

through the tracks. Instead, one of the passengers in Torf’s car opened the doors and the

passengers evacuated the train by either jumping from the car to the gravel beside the tracks

below or by sitting down on the edge of the car and then jumping from the train. Torf explained

that there was a significant drop from the train’s floor to the gravel below.

       Torf waited until all the other passengers in her car had left the train before she attempted

to evacuate because she knew that she would be slow due to a problem with her knee. Torf

attempted to evacuate by sitting down at the exit door of the car in order to lower herself down

more gradually. As Torf was attempting to sit down, someone “pushed down on [her] shoulders”

and moved his body around her and then jumped off the train. Torf also described this person as

having used her as a “springboard” to jump off the train. The push from this person forced Torf

into a sitting position and she used her hands to break her fall. Another person then put his or her


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hands on Torf’s back and “pushed” her from behind, causing Torf to fall off the train. Torf was

looking the other way at the time and so she did not see this person push her. Torf’s fall was

broken when someone outside of the train caught her and lowered her onto the gravel. The

person that caught her was not in uniform and Torf believed this person was a “passerby.”

When she was outside of the train, Torf saw people in uniform at the car behind her lifting

somebody in a wheelchair. Torf was then joined by her husband and they walked with the other

passengers to the platform. Torf had to climb four or five stairs to get to the platform and hurt

her hand while doing so. As a result of the incident, Torf experienced pain in her lower back,

hip, and hands. Torf lost some functionality in her right hand and missed approximately two

weeks of work.

        Angel Negron, a transportation manager for the CTA, testified in his discovery deposition

that the Chicago fire department made the decision to evacuate the train and he estimated that the

distance between the threshold of the floor of each train car to the tracks level was five feet. He

also testified that there is a ladder affixed to the side of each car by the door, but that in order to

use the ladder a person would have to reach outside the train and grab the handle to the ladder,

“swing their way out,” and step down onto the ladder. Negron also testified as to CTA policies

and procedures for evacuating a train but he did not know if the CTA had employees at each car

helping people evacuate and he did not witness Torf’s fall from the train.

        In his discovery deposition, Torf’s husband testified to substantially the same sequence of

events as did Torf. He did not witness the contact between Torf and the two passengers, nor did

he see how Torf exited the train.


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       In response to defendant’s motion for summary judgment, Torf argued that the basis for

her complaint was not that the CTA failed to protect her from the criminal acts of a third party.

Rather, her complaint alleged that the CTA was negligent in that it failed to properly conduct the

evacuation of the train. Torf also responded that there were no facts establishing the requisite

criminal intent of the third-party actors who pushed her and that a reasonable inference from the

evidence was that the actions of these third parties were the result of panic caused by the CTA’s

negligent handling of the evacuation.

       Following a hearing, the circuit court granted defendant’s motion for summary judgment.

The court stated that Torf was pushed off a train and that this constituted a battery that brought

her claim within the scope of the immunity afforded to the CTA by the Act. The court noted that

Torf attempted to distinguish her claim so as to remove it from the Act by alleging that the CTA

was negligent in the way it evacuated the train, but the court found that “in the end it comes

down to a failure to prevent a criminal attack.” The court therefore found that defendant was

entitled to summary judgment based upon the immunity it was given under section 27 of the Act.

This appeal followed.

       Torf contends that summary judgment was improper because the allegations in her

complaint fall outside the scope of the Act and because a question of fact exists as to whether

criminal conduct caused her injuries.

       Summary judgment is “a drastic measure [of disposing of litigation] and should only be

granted if the movant's right to judgment is clear and free from doubt.” Outboard Marine Corp.

v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). “The purpose of summary judgment


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is not to try a question of fact, but rather to determine whether a genuine issue of material fact

exists.” Williams v. Manchester, 228 Ill. 2d 404, 417 (2008). Summary judgment is appropriate

“if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2008); see also Fidelity National

Title Insurance Co. of New York v. Westhaven Properties Partnership, 386 Ill. App. 3d 201, 212

(2007).

          In determining whether the moving party is entitled to summary judgment, the court must

construe the pleadings and evidentiary material in the record strictly against the movant and

liberally in favor of the nonmoving party. American States Insurance Co. v. Hamer, 352 Ill.

App. 3d 521, 525 (2004). A genuine issue of material fact exists where the facts are in dispute or

where reasonable minds could draw different inferences from the undisputed facts. Williams,

228 Ill. 2d at 417; In re Estate of Ciesiolkiewicz, 243 Ill. App. 3d 506, 510 (1993); see also

Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 114 (1995) (“[W]here reasonable

persons could draw divergent inferences from the undisputed material facts or where there is a

dispute as to a material fact, summary judgment should be denied and the issue decided by the

trier of fact”). The circuit court’s decision to grant or deny a motion for summary judgment is

reviewed de novo. Harrison v. Hardin County Community Unit School District No. 1, 197 Ill. 2d

466, 470-71 (2001).

          We first consider Torf’s contention that summary judgment was improper because a

question of material fact exists as to whether her injuries were caused by criminal conduct. In


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granting summary judgment in favor of defendant, the circuit court noted Torf’s allegations that

the CTA was negligent in evacuating the train but stated that the “crux of the complaint” was “a

failure to prevent a criminal attack.” However, when a court considers a motion for summary

judgment, the pleadings must be construed strictly against the movant and liberally in favor of

the nonmoving party. Hamer, 352 Ill. App. 3d at 525. Viewed under this standard, Torf’s

complaint was clearly and solely directed at defendant’s alleged negligence in failing to provide a

safe and clear means for passengers to evacuate the train so as to avoid the risk of injury to

passengers resulting from a chaotic and disorderly evacuation. In her complaint, Torf alleged

that defendant owed a duty to exercise the highest degree of care in operating the train and she

enumerated four ways by which defendant breached that duty. Specifically, defendant failed to

maintain the train so as to avoid discontinuation of service between platforms, failed to provide a

safe means of egress for passengers to evacuate the train, failed to provide “clear instructions

dictating the safe evacuation of the CTA Train so as to avoid chaos,” and failed to provide

assistance to passengers evacuating the train so as to minimize their risk of injury. Torf made no

mention in her complaint of an alleged failure by the CTA to prevent a third-party “criminal

attack” on one of its passengers and she did not characterize the push she received by either of

the unknown third parties as a “battery.” There is nothing in the substance of Torf’s complaint

that could be construed to assert liability on the part of the CTA based upon its failure to prevent

a criminal attack on Torf.

       Moreover, in granting summary judgment, the circuit court concluded as a matter of law

that the “push” Torf received from one or both of the unknown persons was a “battery.” “A


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person commits battery if he intentionally or knowingly without legal justification and by any

means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or

provoking nature with an individual.” 720 ILCS 5/12-3 (West 2008). Intent is an essential

element of the offense of battery. People v. Phillips, 392 Ill. App. 3d 243, 258 (2009). Although

there appears to be disagreement as to whether battery is a specific or general intent crime, an

essential element of the crime is that the conduct of the person who is alleged to have committed

a battery must have been knowing or intentional, and not accidental. See Phillips, 392 Ill. App.

3d at 258 (noting the disagreement as to whether battery is a specific or general intent crime). A

person acts with knowledge of the result of his conduct “when he is consciously aware that such

result is practically certain to be caused by his conduct.” 720 ILCS 5/4-5(b) (West 2008).

       In this case, we conclude that when viewed in the light most favorable to plaintiff, there is

insufficient evidence in the record to determine as a matter of law the mental state of either

person who made contact with plaintiff. With respect to the first individual, Torf testified that

she waited until all the passengers on her car had left the train before she attempted to evacuate.

As she was sitting down on the train floor, the first individual pushed down on Torf’s shoulders

and maneuvered his body around her in order to jump off the train. This was the only testimony

concerning this person’s actions and it is insufficient to permit a legal conclusion that his actions

were intentional or knowing. Torf did not testify that she saw this individual approach her from

behind and there was no such testimony from any other witness as to the circumstances leading

to this person’s contact with plaintiff. Moreover, reasonable minds could draw competing

inferences from the evidence that is contained in the record. That evidence, viewed in the light


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most favorable to plaintiff, established that the situation in the train was chaotic. The passengers

had been waiting in the train for over an hour and Torf described the temperature in the train as

“like an oven.” She also testified that the lights were turned off in her train car, that there were

no CTA employees in the car to help with the evacuation, and that some people were evacuating

by jumping out of the car while others did so by first sitting down on the car floor and then

jumping to the gravel below. Under these circumstances, a reasonable person could infer that the

contact made by the first person was simply incidental to this person evacuating the train or that

this person was pushed into plaintiff by other evacuating passengers, which would indicate

accidental contact and would negate a finding of intentional or knowing conduct. Because of the

lack of evidence in the record and the inferences that could be drawn from the evidence, we

conclude that a question of material fact remains as to the state of mind of the first person who

made contact with Torf. Accordingly, the circuit court’s legal determination that this person’s

conduct constituted a battery was error.

        We also conclude that a question of material fact remains as to whether the contact made

by this first person caused Torf’s fall from the train and her subsequent injuries. Torf testified

that the first contact forced her into a sitting position on the train floor. Torf further testified that

as she was in this sitting position, another person put his or her hands on Torf’s back and pushed

her from behind, causing Torf to fall off the train. The circuit court stated that “plaintiff was

pushed off the train by another passenger” and that “the pushing complained of here is a battery.”

However, given the testimony described above when viewed in the light most favorable to Torf,

a reasonable person could conclude that it was the contact made by the second person which


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caused Torf to be ejected from the train and to suffer injuries. Therefore, even if the conduct of

the first person could legally be considered a battery, summary judgment would be proper only if

the contact made by the second person was properly determined as a matter of law to also have

been a battery.

       However, for the same reasons discussed above, there is insufficient evidence in the

record to conclude as a matter of law that the contact made by this second person was a battery.

There is less testimony as to the circumstances surrounding this contact than was offered

regarding the first person who made contact with Torf. Torf testified that she was looking the

other way and that she did not see this second person push her from behind. There was no other

testimony from Torf or any other witness regarding the contact made by this person. Again,

given the circumstances of the evacuation, Torf’s limited testimony is insufficient to determine

the mental state of this second individual as a matter of law. Accordingly, drawing all reasonable

inferences in favor of plaintiff, we cannot conclude as a matter of law that this person

intentionally or knowingly made contact with Torf.

       We find support for this conclusion in Zboralski v. Monahan, 616 F. Supp. 2d 792, 803

(N.D. Ill. 2008). In that case, the plaintiff alleged a battery under Illinois law arising from

alleged touching of her vaginal area by the defendant during a pat-down search at a mental health

treatment center. The defendant filed a motion for summary judgment, arguing that any touching

was incidental to the lawful pat-down. The court stated that this argument turned on the

defendant’s mental state at the time, “an issue in dispute and one which is more appropriately

suited for the trier of fact.” Zboralski, 616 F. Supp. 2d at 803. The court also noted that the


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plaintiff disagreed with the defendant’s version of events, that the facts must be viewed in the

light most favorable to the plaintiff, and that under those circumstances summary judgment was

inappropriate. Zboralski, 616 F. Supp. 2d at 803-04.

       Although the decision in Zboralski is not binding on this court, it illustrates the difficultly

in determining whether a person acted with the mental state required for the crime of battery on a

motion for summary judgment. In this case, unlike in Zboralski, the problem is not primarily that

there is conflicting evidence as to the state of mind of the person alleged or found to have

committed a battery. Rather, the problem is that there is insufficient evidence as to the state of

mind of the individuals who made contact with plaintiff so as to permit a legal determination that

they acted with the mental state required for the crime of battery. In the absence of such

testimony, we conclude that it was improper to determine as a matter of law that the contact

either of these individuals made with plaintiff was a battery. Accordingly, entry of summary

judgment was improper.

       The parties also dispute whether plaintiff’s claim falls within the immunity afforded to

the CTA by the Act. In claiming that it is immunized from liability by the Act, the CTA relies

upon our supreme court’s decisions in Bilyk v. Chicago Transit Authority, 125 Ill. 2d 230 (1988)

and Eagan v. Chicago Transit Authority, 158 Ill. 2d 527 (1994). In Bilyk, 125 Ill. 2d at 233-34,

our supreme court upheld the constitutionality of section 27 of the Act and acknowledged that it

“immunizes the CTA from tort liability for any failure to protect passengers from criminal acts of

third parties.” Subsequently, in Eagan, 158 Ill. 2d at 530, the court considered whether a

complaint filed against the CTA was properly dismissed by the circuit court on the ground that


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the claims asserted therein were barred by the immunity granted to the CTA in section 27 of the

Act. The plaintiff’s complaint alleged while he was a passenger on a CTA train, he was injured

by an individual attempting to pick the pocket of another passenger. The complaint further

alleged that the CTA was aware of prior instances of pickpocketing, that it had a duty to take

“‘some form of preventative measure,’” and that it breached that duty by failing to monitor the

train and respond when the pickpocketing was observed. Eagan, 158 Ill. 2d at 529. In

considering the propriety of that dismissal, the supreme court stated that section 27 of the Act

granted the CTA immunity from liability under the following circumstances:

               “(1) failure to provide a security or police force; or (2) if a security

               or police force is provided, (a) failure to provide adequate police

               protection or security, (b) failure to prevent the commission of

               crimes by fellow passengers or third persons, or (c) failure to

               apprehend criminals.” Eagan, 158 Ill. 2d at 532.

The court characterized the plaintiff’s complaint as essentially alleging that the CTA was liable

because it failed to prevent the commission of the criminal attack on the plaintiff by a third party.

The court found that the allegations fell within the provisions of the Act and affirmed the

dismissal of the complaint. Eagan, 158 Ill. 2d at 532, 535.

       There is no dispute in this case that the language of section 27 as well as the decisions in

Bilyk and Eagan indicate that section 27 immunizes the CTA from tort liability for any failure to

protect passengers from criminal acts of third parties. This issue in this case, however, is

whether it was proper to determine on a motion for summary judgment that the contact that either


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third party made with plaintiff was a criminal act and specifically a battery. Because we

conclude that questions of material fact exist as to whether the contact made to plaintiff was a

battery, it is premature to consider the issue of whether the CTA is immune from liability under

section 27 of the Act.

       As an alternative basis for affirming the circuit court’s judgment, the CTA contends that

summary judgment was appropriate because plaintiff cannot prove that the CTA proximately

caused her injuries. The CTA asserts that “the two fellow passengers who battered plaintiff and

inflicted her injuries constitute subsequent intervening causes” and relieved the CTA of liability.

In granting summary judgment, the circuit noted that the CTA raised this argument but stated that

questions of causation “are usually ones of fact.” Based upon our de novo review of the limited

record before us, we cannot conclude as a matter of law that plaintiff is unable to establish that

the CTA proximately caused her injuries.

       For the foregoing reasons, we reverse the judgment of the circuit court and remand the

cause for further proceedings consistent with this opinion.

       Reverse and remanded.

       GARCIA, P.J., and R.E. GORDON, J., concur.




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