Filed 5/19/08             NO. 4-07-0816

                     IN THE APPELLATE COURT

                           OF ILLINOIS

                         FOURTH DISTRICT

PHILLIP MORRIS, Administrator of the    )    Appeal from
Estate of ALVIN MORRIS, Deceased,       )    Circuit Court of
          Plaintiff-Appellant,          )    Coles County
          v.                            )    No. 05L86
ILLINOIS CENTRAL RAILROAD COMPANY,      )
d/b/a CANADIAN NATIONAL/ILLINOIS        )
CENTRAL RAILROAD; and TATE & LYLE       )    Honorable
GRAIN, INC., d/b/a STALEY GRAIN, INC., )     Teresa K. Righter,
          Defendants-Appellees          )    Judge Presiding
_________________________________________________________________

          JUSTICE COOK delivered the opinion of the court:

          Plaintiff, Phillip Morris, administrator of the estate

of Alvin Morris, appeals the trial court's order dismissing his

complaint against defendants Illinois Central Railroad Company,

which does business as Canadian National/Illinois Central Rail-

road (Illinois Central), and Tate and Lyle Grain, Inc., which

does business as Staley Grain, Inc. (Tate and Lyle).    We affirm.

                          I. BACKGROUND

          Plaintiff's original complaint alleged that on January

1, 2004, at approximately 7:06 p.m., Alvin Morris drove his

vehicle into the side of an Illinois Central train that was

stopped at a railroad crossing on tracks owned by Tate and Lyle.

Plaintiff claimed that at the time of the crash, the area was

unlit at night with overcast sky and precipitation.    Plaintiff

died as a result of the injuries he sustained in the crash.

          Both defendants filed motions to dismiss pursuant to
section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615

(West 2004)) and section 2-619 of the Code of Civil Procedure

(735 ILCS 5/2-619 (West 2004)).    Plaintiff confessed those

motions by agreement with leave to file a first amended com-

plaint.   Plaintiff filed his first amended complaint.

           Both defendants filed motions to dismiss plaintiff's

first amended complaint.    Finding the complaint failed to state a

cause of action, the trial court granted both motions without

prejudice.    Plaintiff filed his second amended complaint.    In

both counts that addressed the separate defendants, plaintiff

alleged that each defendant "failed to illuminate its train at

the crossing or to make [it] visible to motorists at the crossing

site given the special circumstances that existed at the time."

On August 13, 2007, the court granted both defendants' motions to

dismiss with prejudice for plaintiff's failure to state a cause

of action.    This appeal followed.

                            II. ANALYSIS

           Defendants' motions to dismiss reference both section

2-615 and 2-619 of the Code of Civil Procedure.    735 ILCS 5/2-

615, 2-619 (West 2004).    When resolving motions to dismiss under

either section 2-615 or section 2-619, a trial court is required

to accept as true all well-pled factual allegations.     See In re

Chicago Flood Litigation, 176 Ill. 2d 179, 184, 680 N.E.2d 265,

268 (1997).    This court reviews dismissals under either section


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de novo.   People ex rel. Ryan v. World Church of the Creator, 198

Ill. 2d 115, 120, 760 N.E.2d 953, 956 (2001) (section 2-615

motion to dismiss); DeLuna v. Burciaga, 223 Ill. 2d 49, 59, 857

N.E.2d 229, 236 (2006) (section 2-619 motion to dismiss).

           Illinois courts follow the "longstanding rule that a

train stopped at a crossing is generally held to be adequate

notice and warning of its presence to any traveler who is in

exercise of ordinary care for his own safety, and the railroad is

under no duty to give additional signs, signals[,] or warnings."

Dunn v. Baltimore & Ohio R.R. Co., 127 Ill. 2d 350, 357, 537

N.E.2d 738, 741 (1989).   Only when "special circumstances" are

present will the railroad have an added duty to further warn.

Dunn, 127 Ill. 2d at 357, 537 N.E.2d at 741.

           According to the Supreme Court of Illinois, "special

circumstances" are not clearly defined but courts have recognized

"a blinding snowstorm" and "malfunctioning warning lights which

erroneously indicated that the crossing was clear" as "special

circumstances."   Dunn, 127 Ill. 2d at 357, 537 N.E.2d at 741.

Citing Bachman v. Illinois Central R.R. Co., 132 Ill. App. 2d

277, 268 N.E.2d 42 (1971), the Supreme Court of Illinois went on

to state that "it has been held that darkness, heavy fog[,] and

poor visibility do not constitute special circumstances."     Dunn,

127 Ill. 2d at 357, 537 N.E.2d at 741.   Also in Dunn, the court

determined that the following circumstances did not constitute


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"special circumstances": (1) darkness, (2) the presence of

vehicular traffic at the crossing, (3) the absence of lighting at

the crossing, (4) the grade of the crossing, and (5) unnecessary

distractions in the vicinity of the crossing.   Dunn, 127 Ill. 2d

at 360-61, 537 N.E.2d at 742.   More recently, in Malcome v.

Toledo, Peoria & Western Ry. Corp., 349 Ill. App. 3d 1005, 1007,

811 N.E.2d 1199, 1202 (2004), this court held that the presence

of a flatcar across the tracks on a dark night did not establish

special circumstances.

          Plaintiff claims that the circumstances he alleges

constitute special circumstances despite the cases cited above.

The circumstances plaintiff alleged essentially were darkness, an

unlit crossing, and a sky that was heavily overcast with fog and

rain.

          Plaintiff acknowledges that the Illinois Supreme Court

stated that darkness and heavy fog did not constitute special

circumstances but argues that the court only came to that conclu-

sion because it incorrectly interpreted the holding in Bachman.

Bachman was decided before Alvis v. Ribar, 85 Ill. 2d 1, 421

N.E.2d 886 (1981), held that Illinois would apply comparative

negligence instead of the common-law doctrine of contributory

negligence.   According to plaintiff, in Bachman the court merely

held that the trial court was correct in finding that the evi-

dence established plaintiff's contributory negligence.   The


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Bachman court did not reach the issue of whether plaintiff could

prove "special circumstances."    For this reason, plaintiff urges

this court to ignore the supreme court's statement in Dunn that

darkness, heavy fog, and poor visibility do not constitute

special circumstances.

          Even if we were to agree with plaintiff that the

Illinois Supreme Court misinterpreted the technical holding of

Bachman, we cannot agree that plaintiff's complaint sets forth

special circumstances that would give rise to a duty in defen-

dants to provide further warning.    Plaintiff asserts that dark-

ness and an overcast sky constitute special circumstances and a

jury should decide whether his assertions should be accepted.

The question, though, is whether plaintiff alleged a duty on

defendants' part.   Malcome, 349 Ill. App. 3d at 1007, 811 N.E.2d

at 1202 (our supreme court has held that the stopped-train rule

is concerned with a railroad's duty).    "The existence of a legal

duty is a question of law to be determined by the court." Malcom-

e, 349 Ill. App. 3d at 1006, 811 N.E.2d at 1201.   As stated

above, a railroad may only have a duty to provide warnings beyond

the presence of the train on the track if the plaintiff proves

special circumstances.   A combination of darkness, an overcast

sky, fog, and rain is a common occurrence during an Illinois

winter and does not give rise to special circumstances that would

require defendants provide more warning than the presence of the


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train itself provides.

            Accepting as true all of plaintiff's complaint's

factual allegations, plaintiff failed to present a situation that

would except itself from the standing-car rule.

                           III. CONCLUSION

            For the reasons stated, we affirm the trial court's

judgment.

            Affirmed.

            STEIGMANN, J., concurs.

            KNECHT, J., dissents.




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           JUSTICE KNECHT, dissenting:

           There may be long-standing reasons for favorable

treatment of railroads and the creation of the standing-car rule.

I do not know what they are or what continued vitality they have

in the twenty-first century.   The citizens of Illinois would be

hard-pressed to understand the logic or public policy behind a

decision that imposes a duty of reasonable care on a merchant

regarding a post and a customer door (Ward v. Kmart Corp., 136

Ill. 2d 132, 554 N.E.2d 223 (1990)) but not on a railroad for

failure to illuminate a stopped train at a crossing (Dunn v.

Baltimore & Ohio R.R. Co., 127 Ill. 2d 350, 537 N.E.2d 738

(1989)).

           A customer can be distracted or momentarily forgetful

while carrying a large, bulky item and then collide with a post

known or obvious to him or her.   An automobile driver can be

distracted or misled or confused on a dark Midwestern night

heavily overcast with fog and rain and drive into the side of a

stopped or slowly moving train.

           A duty should be imposed here.   It is not unduly

burdensome.   If there is a special-circumstances exception, the

presence of special circumstances is a question properly left to

the trier of fact just as in Ward.




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