                                  Illinois Official Reports

                                            Appellate Court



                   Porter v. Illinois Central R.R. Co., 2014 IL App (5th) 120464




Appellate Court              MICHAEL PORTER, as Special Administrator of the Estates of Tina
Caption                      Porter, Deceased, and Allaysa Porter, Deceased, Plaintiff-Appellee, v.
                             ILLINOIS CENTRAL RAILROAD COMPANY, Defendant-
                             Appellant.


District & No.               Fifth District
                             Docket No. 5-12-0464


Filed                        June 3, 2014


Held                         In an action arising from the death of plaintiff’s decedents when their
(Note: This syllabus         vehicle was struck by one of defendant’s trains at a crossing with only
constitutes no part of the   luminous flashing light signals and no automatic gates, the appellate
opinion of the court but     court, in response to two questions certified by the trial court pursuant
has been prepared by the     to Supreme Court Rule 308, held that pursuant to section 18c-7401(3)
Reporter of Decisions        of the Illinois Commercial Transportation Law, the luminous flashing
for the convenience of       light signals installed at the crossing were “adequate and appropriate,”
the reader.)
                             even after an administrator with the Illinois Commerce Commission
                             stated in a letter dated August 15, 2005, that the crossing now met the
                             minimum requirements for the installation of automatic gates and
                             would remain so until replaced pursuant to Commission approval, and
                             that defendant railroad had no duty to use reasonable care to install
                             automatic gates at the crossing prior to the date of the fatal collision.


Decision Under               Appeal from the Circuit Court of St. Clair County, No. 07-L-17; the
Review                       Hon. Vincent J. Lopinot, Judge, presiding.



Judgment                     Certified questions     answered;     cause   remanded     for   further
                             proceedings.
     Counsel on               Thomas E. Jones and Harlan A. Harla, both of Thompson Coburn
     Appeal                   LLP, of Belleville, for appellant.

                              Thomas Q. Keefe, Jr., and Samantha S. Unsell, both of Keefe &
                              Keefe, P.C., of Belleville, for appellee.




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


                                                   -2-
¶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).
¶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 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:

                                                  -3-
               “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 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 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

                                                   -4-
       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 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 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.


                                                   -5-
¶ 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?”
                    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, which
       consists of three administrative law judges that hold hearings and issues directives on petitions:
                    “Q. [Attorney for defendant:] And what is their function as it would relate to the
               petition process?
                    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.

                                                   -6-
¶ 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 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 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.

                                                   -7-
¶ 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 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 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.
¶ 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

                                                    -8-
                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.
¶ 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 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
       (1995); Langston v. Chicago & North Western Ry. Co., 398 Ill. 248, 253 (1947). This duty
       stems from a responsibility of rail carriers to exercise ordinary care regarding the safety of

                                                   -9-
       public crossings of railway tracks. Bales v. Pennsylvania R.R. Co., 347 Ill. App. 466, 474
       (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. Inc., 74 Ill. App. 3d 282,
       288 (1979) (citing Merchants National Bank of Aurora v. Elgin, Joliet & Eastern Ry. Co., 121
       Ill. App. 2d 445 (1970), aff’d, 49 Ill. 2d 118 (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:
                    “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.
                    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.
¶ 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
       (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
       (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

                                                   - 10 -
       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).
¶ 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.” (Emphasis added.) 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-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


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       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. Illinois Central R.R. Co.,
       207 Ill. 2d 331, 342-43 (2003); Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107,
       121 (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. 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. 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.
¶ 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 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.
¶ 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. 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.
¶ 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.
¶ 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


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               Commission entered an order that cantilever-mounted flashing light signals be installed
               at the 22nd Street crossing. The certified records of the Commission also 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.
¶ 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 (2003).
       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. 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 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

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                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.
¶ 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.
¶ 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 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

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       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.
¶ 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; Chandler 207 Ill. 2d at 341). 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.




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