                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                McDonald v. Northeast Illinois Regional Commuter R.R. Corp.,
                               2013 IL App (1st) 102766-B




Appellate Court            MARJORIE McDONALD, Executrix of the Estate of Thomas
Caption                    McDonald, Deceased, and MARJORIE McDONALD, Individually,
                           Plaintiffs-Appellees, v. NORTHEAST ILLINOIS REGIONAL
                           COMMUTER RAILROAD CORPORATION, d/b/a Metra/Metropolitan
                           Rail, Defendant-Appellant.



District & No.             First District, Second Division
                           Docket No. 1-10-2766


Filed                      April 16, 2013


Held                       Defendant commuter railroad did not owe plaintiff’s decedent any duty
(Note: This syllabus       to warn him of an oncoming train, since the danger the train posed was
constitutes no part of     open and obvious, yet decedent tried to cross the tracks before the train
the opinion of the court   arrived at the station; therefore, the denial of defendant’s posttrial motion
but has been prepared      for judgment n.o.v. was reversed.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 07-L-2551; the Hon.
Review                     Arnette R. Hubbard, Judge, presiding.



Judgment                   Reversed.
Counsel on                  James A. Fletcher and Peter C. McLeod, both of Fletcher & Sippel LLC,
Appeal                      and Sue-Ann Rosen, of Metra Law Department, both of Chicago, for
                            appellant.

                            Leslie J. Rosen, of Chicago, for appellee.


Panel                       JUSTICE SIMON delivered the judgment of the court, with opinion.
                            Justices Quinn and Neville concurred in the judgment and opinion.



                                              OPINION

¶1           Defendant, Northeast Illinois Regional Commuter Railroad Corp., d/b/a Metra, appeals
        from orders of the circuit court of Cook County entering judgment on the jury’s verdict in
        favor of plaintiff, Marjorie McDonald, individually and as the executrix of the estate of the
        decedent, Thomas McDonald, and denying defendant’s posttrial motion for a judgment n.o.v.
        or a new trial. This court affirmed the circuit court’s orders, concluding that defendant had
        a duty to warn the decedent of the oncoming train, that the jury’s answers to the special
        interrogatories were not inconsistent with its verdict, that plaintiff presented sufficient
        evidence to prove that defendant’s negligence was a legal cause and a cause in fact of the
        accident, and that defendant was not prejudiced by the circuit court’s alleged error in
        allowing plaintiff to present evidence showing that defendant was negligent for having failed
        to install and activate pedestrian signals and argue that claim to the jury. McDonald v.
        Northeast Illinois Regional Commuter R.R. Corp., 2011 IL App (1st) 102766. Our supreme
        court subsequently decided Choate v. Indiana Harbor Belt R.R. Co., 2012 IL 112948, and,
        in the exercise of its supervisory authority, directed this court to vacate its previous order and
        reconsider the prior decision in light of Choate. McDonald v. Northeast Illinois Regional
        Commuter R.R. Corp., No. 112971 (Ill. Jan. 30, 2013) (supervisory order). For the reasons
        that follow, we reverse.

¶2                                         BACKGROUND
¶3          On August 21, 2007, plaintiff filed an amended complaint in which she asserted that
        defendant operated a train station at 3000 Willow Road in Glenview, Illinois (North
        Glenview station), and that on April 25, 2002, the decedent was struck by one of defendant’s
        trains that was running express through the North Glenview station toward Chicago as the
        decedent crossed the tracks at the pedestrian crosswalk. Plaintiff also asserted that defendant
        had installed pedestrian signals at the North Glenview station, but had not yet activated them
        at the time of the accident, and that the decedent had since died of causes unrelated to the
        accident.
¶4          Plaintiff alleged that defendant owed the decedent the highest duty of care because it was

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     a common carrier with respect to its operation of the North Glenview station and the
     passengers intending to board the trains therein and that defendant breached its duty by
     operating a train through the station without having activated the pedestrian signals it had
     previously installed; allowing the public to access the station when it knew it did not have
     adequate protections in place for the safety of pedestrians; failing to adequately warn the
     decedent that the pedestrian signals had not been activated; operating a train without keeping
     a sufficient lookout; failing to adequately warn the decedent of the approach of the train;
     operating its train at an excessive rate of speed given the fact that the pedestrian signals had
     not been activated; failing to adequately slow the train and avoid hitting the decedent; and/or
     failing to activate the pedestrian signals that had previously been installed. Plaintiff also
     alleged that as a result of one or more of defendant’s breaches of its duty of care, the
     decedent sustained personal and pecuniary injuries and plaintiff sustained a loss of
     consortium, society, and support.
¶5        The record shows that defendant owned and operated the Milwaukee North Line, which
     consisted of two parallel tracks that ran north and south through the North Glenview station
     on its way to and from Chicago and Fox Lake, Illinois. Southbound trains ran on the west
     tracks and northbound trains ran on those to the east. At the time of the accident, a parking
     lot had been constructed to the east of the North Glenview station. Thus, a passenger who
     had parked in the parking lot and intended to board a southbound train would have to cross
     over both tracks at the crosswalk from the east platform to the west platform prior to the
     arrival of the train.
¶6        Plaintiff testified at trial that she and the decedent had not been to the North Glenview
     station prior to the accident, but had been to the other Glenview station about 30 times over
     the previous 3 years, and that the decedent had always obeyed the lights and bells that
     activated when a train was approaching a crossing. On the morning of the accident, plaintiff
     and the decedent parked their car in the parking lot to the east of the train tracks at the North
     Glenview station, and the decedent realized he had forgotten his change in the car as they
     started walking toward the station. Plaintiff continued across the tracks to the station, and the
     decedent returned to the car. Plaintiff waited for the decedent on the platform on the west
     side of the tracks and saw him walking toward the platform, then looked to the north and saw
     a train in the distance. Plaintiff attempted to catch the decedent’s attention and said “why
     don’t you wait,” but she did not know if he heard her. Plaintiff heard the train’s horn blow
     when the decedent was halfway across the crosswalk and saw him try to hurry across in
     response. The decedent barely made it across the crosswalk before the train arrived, but was
     blown back into the train by the force of its accompanying wind, and then landed on the
     platform. The decedent’s arm was bleeding, and an ambulance arrived at the station a few
     minutes later and transported him and plaintiff to Lutheran General Hospital.
¶7        On cross-examination, plaintiff stated that at the time of the accident, the decedent did
     not wear a hearing aid, had good hearing for someone who was 79 years old, and only wore
     glasses for reading. Plaintiff also stated that when she tried to get the decedent’s attention
     and said “why don’t you wait,” he was just beginning to cross over from the platform to the
     east of the tracks to the crosswalk. While plaintiff could not remember whether the decedent
     looked both ways before crossing the tracks, she stated that he probably would have been

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       able to see the approaching train had he looked north before traversing the crosswalk.
       Plaintiff further stated that the train’s horn sounded several seconds before the accident and
       that the decedent would have been out of the train’s way had he stopped and taken a step
       back after hearing the horn.
¶8          William Porter, the director of public works for the Village of Glenview at the time of
       the accident, testified that the North Glenview station opened on January 7, 2001, in an area
       of Glenview previously occupied by a naval base. Defendant opened the station even though
       the pedestrian signals, which had been installed at the other Glenview station in the 1980s
       and were to flash lights and ring bells as a train was approaching, had not been completed.
       Porter believed the station should have been equipped with pedestrian signals, and he had
       public works crews from Glenview install signs on the barricades at the pedestrian crossing
       which directed patrons to “stop, look, and listen.” At the time of the accident, the pedestrian
       signals were set to be in service by May 10, 2002. On cross-examination, Porter stated that
       defendant put up signs at the crosswalk that said “CAUTION!,” “HIGH SPEED TRAINS,”
       and “LOOK BOTH WAYS BEFORE CROSSING” shortly after January 11, 2001, and that
       at the time of the accident, the signal heads for the pedestrian signals were in place and
       covered with black plastic bags.
¶9          Glenford Peters, defendant’s project manager in charge of designing the North Glenview
       station, testified that the final set of drawings for the station provided for a location where
       pedestrian signals were to be installed and stated on cross-examination that he did not know
       why the signals had not been installed by the time the station was opened and that he helped
       in putting together a sign that was to be mounted on the inner track fence to warn of
       approaching trains. Frank Baranski, an employee in defendant’s signal department, testified
       that the signal design for the North Glenview station was completed in November 2001 and
       that pedestrian signals were designed to provide commuters with a 20-second warning of
       approaching trains, which was the standard minimum warning time provided by the Federal
       Railroad Administration (FRA).
¶ 10        Eugene Holland, a consulting engineer and licensed structural engineer in the State of
       Illinois, testified that pedestrian warning signals provide a commuter with a warning that a
       train’s arrival is imminent and opined within a reasonable degree of engineering certainty
       that defendant should not have opened the North Glenview station until after such signals
       had been completed because commuters were not provided with a prewarning that a train was
       approaching. On cross-examination, Holland stated that the decedent would have been able
       to see the approaching train had he looked both ways before attempting to cross the tracks.
¶ 11        After plaintiff rested her case-in-chief, defendant called Daniel Orseno, who worked for
       defendant as the superintendent of the Milwaukee District and investigated the accident at
       the request of defense counsel to determine whether Brian Voss, the engineer of the train
       involved in the accident, had properly operated the train. Orseno testified that an engineer
       was required to activate the train’s bell at least a quarter-mile before reaching a station at
       which the train was not going to stop, keep a lookout to make sure the track was clear, sound
       the train’s horn as a warning if someone was in harm’s way, and put on the emergency brakes
       if a person did not get off the tracks following the warning horn. Once the emergency brakes
       had been applied, there was nothing else an engineer could do to slow down or stop the train.

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¶ 12        Based on his investigation, Orseno believed that on the morning of the accident, Voss
       was operating a southbound train and the decedent attempted to cross the tracks from east
       to west at the crosswalk at the North Glenview station. Orseno determined that Voss
       activated the train’s bell about 40 seconds and more than a half-mile before reaching the
       station, sounded the horn 7 to 8 seconds before the train reached the crosswalk, and applied
       the emergency brakes 6 to 7 seconds before reaching the crosswalk. Orseno opined that Voss
       fulfilled his responsibilities as an engineer to keep a lookout, activate the train’s bell, sound
       its horn, and apply the emergency brakes on the morning of the accident.
¶ 13        On cross-examination, Orseno stated that pedestrian signals were to be activated 20
       seconds before an approaching train reached the station, that Voss would not have been
       doing his job properly if he had waited until the decedent was halfway across the crosswalk
       to sound the train’s horn, and that based on additional observations made by a Glenview
       police officer, it was possible that Voss did not sound the train’s horn until six seconds
       before it reached the crosswalk. On redirect, Orseno testified that he believed Voss blew the
       train’s horn when the decedent was on the tactile strip on the edge of the east platform before
       he stepped foot on the crosswalk.
¶ 14        Arlene Landsman testified that she was on the east platform at the North Glenview
       station a few minutes after 8:20 a.m. on April 25, 2002, when she saw a man walking from
       the platform to the crosswalk as a train approached from the north. Landsman heard the
       train’s bells and horn and saw that it was approaching quickly, and the man stepped onto the
       crosswalk and quickened his pace as he walked across while the bells and horn continued to
       sound.
¶ 15        David Chidlow testified that he was on his phone while at the North Glenview station on
       the morning of the accident when he saw plaintiff and the decedent standing on opposite
       sides of the crosswalk as a train approached from the north. The decedent was on the east
       side of the tracks and plaintiff was on the west, and plaintiff was telling the decedent to stay
       on his side of the tracks and wait for the next train. The decedent responded that he could
       make it across before the oncoming train arrived and tried to run across the tracks. Chidlow
       did not remember hearing a bell or horn before the train arrived at the station. After the train
       passed, Chidlow went across the tracks, saw the decedent lying on the ground, and called
       911.
¶ 16        Brian Voss testified that he was an engineer and operated one of defendant’s trains on
       the morning of April 25, 2002, which departed from Fox Lake at 7:34 a.m., and was
       scheduled to arrive at Union Station in Chicago at 8:53 a.m. The train consisted of an engine,
       five coaches, and a cab car, and Voss operated the train from the cab car at the front of the
       train while the engine pushed the cars from behind. The train was scheduled to run express
       through North Glenview on the way from Northbrook to the old Glenview station. The speed
       limit for that section of track was set by the FRA at 79 miles per hour, and Voss did not
       exceed the speed limit on the morning of the accident.
¶ 17        Voss also testified that he activated the train’s bell well before he was within a quarter-
       mile of the North Glenview station and that the train’s oscillating headlights were on as he
       approached the station, as were the ditch lights, which began to flash when he activated the


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       bell. As he approached the station, Voss saw the decedent, who was on the east platform,
       walk toward the tracks. When the decedent reached the yellow tactile strip on the edge of the
       platform by the crosswalk, Voss began to blow the train’s horn because it looked as though
       the decedent was going to go across the crosswalk. At that time, the train was traveling at
       close to 70 miles per hour. After Voss sounded the horn, the decedent stepped onto the
       crosswalk and began to hurry across. Voss applied the emergency brakes as soon as he saw
       the decedent step onto the crosswalk and heard a thud from the right edge of the cab car
       when it passed the crosswalk. On cross-examination, Voss stated that the decedent paused
       for a split second when he sounded the train’s horn.
¶ 18       Following closing arguments, the jury returned a verdict in favor of plaintiff and assessed
       $700,143.70 in damages. In doing so, the jury found that plaintiff suffered $1,166,906.18 in
       damages as a proximate result of the accident and that 40% of the negligence that
       proximately contributed to plaintiff’s injuries was attributable solely to the decedent. The
       jury also provided answers to five special interrogatories, in which it related that it found
       that: (1) defendant did not provide the decedent with adequate warning that its train was
       approaching the North Glenview station; (2) the decedent walked in front of defendant’s train
       when he knew or reasonably should have known that it was unsafe to do so; (3) Voss kept
       a proper lookout for the decedent; (4) Voss did not sound the horn in a timely manner; and
       (5) Voss applied the brakes in a timely manner. Defendant filed a posttrial motion asking the
       circuit court to grant it a judgment n.o.v. or, in the alternative, a new trial, and the court
       denied the motion.

¶ 19                                         ANALYSIS
¶ 20        Defendant contends that it was entitled to a judgment n.o.v. because it did not have a duty
       to warn the decedent of the oncoming train where the decedent knew of its approach and the
       danger it presented was open and obvious. A trial court may only enter a judgment n.o.v.
       where all the evidence, viewed in the light most favorable to the nonmovant, so
       overwhelmingly favors the movant that no contrary verdict could stand. Pedrick v. Peoria
       & Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967). A motion for a judgment n.o.v. presents a
       question of law as to whether there was a total failure to present evidence to prove a
       necessary element of the plaintiff’s case, and we therefore review the circuit court’s ruling
       on such a motion de novo. York v. Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d
       147, 178 (2006).
¶ 21        To recover damages based on defendant’s alleged negligence, plaintiff was required to
       allege and prove that defendant owed a duty to the decedent, that defendant breached that
       duty, and that the breach was the proximate cause of the alleged injuries to plaintiff and the
       decedent. Thompson v. County of Cook, 154 Ill. 2d 374, 382 (1993). The issue of whether
       a duty exists presents a question of law for this court to decide by determining whether there
       is a relationship between the parties requiring the imposition of a legal obligation upon one
       party for the benefit of the other. Washington v. City of Chicago, 188 Ill. 2d 235, 239 (1999).
       If defendant did not owe a duty to the decedent, then a judgment n.o.v. is required. Id. at 238-
       39.


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¶ 22       A landowner owes a duty of reasonable care regarding the state of its premises and the
       acts conducted thereon to all entrants upon its land except for trespassers. Rhodes v. Illinois
       Central Gulf R.R., 172 Ill. 2d 213, 228 (1996). The open and obvious doctrine is an
       exception to that general duty of reasonable care (Park v. Northeast Illinois Regional
       Commuter R.R. Corp., 2011 IL App (1st) 101283, ¶ 12) and provides that the landowner is
       not liable for physical harm to individuals caused by any activity or condition on the land
       whose danger is known or obvious unless the landowner should anticipate the harm despite
       such knowledge or obviousness (Sollami v. Eaton, 201 Ill. 2d 1, 15 (2002); Restatement
       (Second) of Torts § 343A(1) (1965)).
¶ 23       Defendant asserts that it was not required to warn the decedent of the oncoming train
       because the danger posed by the train was open and obvious. In Choate, 2012 IL 112948, the
       plaintiff, a 12 year-old boy, was seriously injured when he fell while attempting to jump onto
       a moving freight train that was running on the defendants’ tracks, and our supreme court held
       that the defendants were entitled to a judgment n.o.v. on the plaintiff’s personal injury action
       because the defendants did not owe the plaintiff a legal duty. In reaching its decision, the
       court noted that the plaintiff was a trespasser on the defendant’s property and that while a
       landowner is generally under no duty to maintain its premises for the safety of trespassers,
       an exception to the rule exists for child trespassers. Id. ¶¶ 24-27. The exception only applies,
       however, if the dangerous condition is likely to injure children because they are incapable,
       based on age and maturity, of appreciating the risk involved, and the court noted that a
       defendant has no duty to remedy a dangerous condition if it presents obvious risks that a
       child of the plaintiff’s age would be expected to appreciate and avoid. Id. ¶ 31. The court
       concluded that the child trespasser exception did not apply to the plaintiff in Choate because
       a child of the plaintiff’s age would be expected to appreciate and avoid the danger of a
       moving train, and the court held that “we now explicitly recognize as a matter of law that a
       moving train is an obvious danger [and] that any child allowed at large should realize the risk
       of coming within the area made dangerous by it.” Id. ¶ 35.
¶ 24       In this case, the evidence, viewed in the light most favorable to plaintiff, shows that the
       decedent was halfway across the crosswalk and between the northbound and southbound
       tracks when he heard the horn of the oncoming train. The evidence also shows that the
       decedent would have remained out of the way of the oncoming train had he stopped and
       taken a step back when he heard the train’s horn and that he probably would have been able
       to see the approaching train had he looked north before traversing the crosswalk.
¶ 25       Pursuant to Choate, we determine that the oncoming train in this case was an open and
       obvious danger because the decedent could have seen it approaching the station had he
       looked both ways prior to stepping on the crosswalk, the decedent was made aware of its
       approach by its horn prior to stepping in its path, and the decedent had time to stop and step
       back away from the track before it arrived. We also determine that the tracks in front of a
       moving train constitute an area made dangerous by the train and that the decedent should
       have realized the risk of entering that area and attempting to hurry across the tracks in
       advance of the train’s arrival. As such, we conclude that the danger posed by the oncoming
       train in this case was open and obvious and that the decedent should have realized the risk
       of trying to hurry across the tracks before it arrived at the station.

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¶ 26       Our conclusion that the train is an open and obvious danger, however, does not serve as
       a per se bar to a finding that defendant owed the decedent a legal duty of reasonable care
       because such a duty may arise under the “distraction exception” or the “deliberate encounter
       exception” to the open and obvious rule. Sollami, 201 Ill. 2d at 15. Under the “distraction
       exception,” a duty may arise if defendant had reason to expect that the decedent may be
       distracted so that he would not discover the obvious danger, forget that he has discovered it,
       or fail to protect himself against it. Id. However, there is no evidence that the decedent was
       distracted when he crossed the tracks or that defendant would have had any reason to expect
       that the defendant would be distracted.
¶ 27       Under the “deliberate encounter exception,” a duty may arise if defendant had reason to
       expect that the decedent would proceed to encounter the obvious danger because a
       reasonable person in the decedent’s position would decide that the advantages of doing so
       outweighed the apparent risk. Id. While it may be true that people sometimes attempt to cross
       the tracks in front of an oncoming train because they believe the advantages of making their
       train outweigh the risk of being struck by the train, individuals who do so are not exercising
       reasonable care for their own safety at that time. Park, 2011 IL App (1st) 101283, ¶ 18.
       Therefore, the “deliberate encounter exception” does not apply in this case.
¶ 28       As such, we conclude that defendant did not owe the decedent a legal duty to warn him
       of the approach of the oncoming train because the danger posed by the train was open and
       obvious where the decedent knew the train was coming before he stepped in front of it and
       attempted to cross the tracks before it arrived. As defendant did not owe a duty to the
       decedent, defendant was entitled to a judgment n.o.v. (Washington, 188 Ill. 2d at 238-39),
       and we reverse the circuit court’s order denying its posttrial motion for a judgment n.o.v. As
       a result, we need not consider defendant’s additional claims, including whether plaintiff was
       barred from presenting evidence and argument regarding defendant’s failure to install and
       activate pedestrian signals by sections 3-104 (745 ILCS 10/3-104 (West 2002)) and 2-109
       (745 ILCS 10/2-109 (West 2002)) of the Local Governmental and Governmental Employees
       Tort Immunity Act because we may only consider the issue of whether an immunity or
       defense is available to a governmental entity if we first determine that the entity owed a duty
       to the plaintiff (Zimmerman v. Village of Skokie, 183 Ill. 2d 30, 46 (1998)).

¶ 29                                   CONCLUSION
¶ 30      Accordingly, we reverse the judgment of the circuit court of Cook County.

¶ 31      Reversed.




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