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Calhoun v. Belt Ry. Co. of Chicago, No. 1-98-4161

1st District, May 31, 2000

THIRD DIVISION

JUDGE CERDA delivered the opinion of the court:

In June 1992, Kenneth P. Calhoun, then a minor, was severely injured when his left foot was caught under a freight train ashe was playing upon a railroad right-of-way in Chicago, Illinois. As a result, the lower portion of Kenneth's left leg wasamputated. The train involved, which was owned and being operated by the Consolidated Rail Corporation (Conrail), wastraveling on a set of tracks owned by Belt Railway Company (Belt).

Plaintiff, Veronica Calhoun, as Kenneth's mother, filed a negligence action on her son's behalf seeking damages againstBelt and two other railroad companies, defendants Norfolk and Western Railway Company (Norfolk) and Chicago RailLink Railroad (CRL) (collectively referred to as "defendants"), both of which owned and operated tracks upon the right-of-way where Kenneth was injured. Pursuant to section 2-1005 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1005(West 1998)), defendants moved for summary judgment, arguing in part that they owed no duty of care to Kenneth becauseneither the property nor instrumentality involved were under their ownership or control at the time of the accident.

Shortly after defendants' motions were filed, plaintiff reached a settlement with Belt. Following arguments, the circuit courtgranted defendants' motions and dismissed plaintiff's claims against them. Plaintiff now appeals, arguing genuine issues ofmaterial fact exist as to whether Norfolk and CRL owed Kenneth a duty of care under the circumstances and that suchfactual issues should have precluded summary judgment. For the following reasons, we affirm.

BACKGROUND

The record establishes the following undisputed facts for our review. The area of the right-of-way in which Kenneth wasinjured consists of six sets of railroad tracks running parallel to one another and diagonally in a general east-west directionbetween Cottage Grove Avenue and King Drive in Chicago. The right-of-way is elevated from street level, located atop asloped embankment, and is primarily bordered by residential neighborhoods on both its north and south sides.

The southernmost set of tracks is owned and maintained by CRL (sometimes referred to hereinafter as "Track 1"). The nexttwo sets of tracks immediately north are owned and maintained by Norfolk (sometimes referred to hereinafter as either"Track 2" and "Track 3"). The three most northern sets of tracks are owned and maintained by Belt (sometimes referred tohereinafter as either "Track 4," "Track 5," and "Track 6").⁽¹⁾ Belt's tracks are separated from the tracks of Norfolk andCRL by a roadway that runs east-west along the right-of-way. The record does not disclose the ownership of theembankment land and does not reveal defendants' relationship to this property.

Traveling approximately a mile east of the accident site, the tracks converge, intersect and/or split in different directions inan area commonly known as "Pullman Junction." Pullman Junction serves in part as a switching area for the railways'trains, enabling them to cross over the tracks of other companies so they can proceed in a desired direction. At times, trainsare stopped on the surrounding tracks as other trains are passing through the switching area. While waiting for switchingsignals, these stationary trains, depending on their number of cars, may extend for a considerable distance along the tracksof the right-of-way.

The record reveals Belt's southernmost track, Track 4, as well as the tracks owned by Norfolk, split south and intersect CRLtracks and switches at Pullman Junction. By several operating agreements, Norfolk is granted use of CRL's tracks at thejunction. Norfolk is further responsible for the switching of Norfolk and CRL trains on the CRL tracks. This responsibilityencompasses the exclusive control of regulating the train movement on the CRL tracks in that area. The record does notshow whether Belt enjoyed similar access and use of CRL's tracks as that granted to Norfolk. Furthermore, a separateagreement between Belt and Norfolk allowed Norfolk use of Belt's tracks located on the right-of-way.

The embankment between Cottage Grove and King Drive contains numerous paths, some well worn, leading up to the trackarea. The record establishes that for years prior to June 1992 these paths were used by the public as a short cut to thesurrounding neighborhoods. In addition, children used the paths to access the tracks for purposes of climbing and playingon or about train cars. The area does not contain fences or other such barriers that would inhibit access to the tracks. Thearea further contains no signs warning the public of the train activities occurring on the embankment.

At about 8 p.m. on June 15, 1992, Kenneth, then 12 years old, and three of his friends were returning home when theydecided to go to the tracks and play. The boys accessed the track area on the south embankment via a well-worn foot pathimmediately west of Cottage Grove. Once atop the embankment, they observed a CRL train, which was stationary on Track1. Kenneth and his friends climbed over the CRL train and walked to the middle roadway, proceeding west.

As the boys walked, they noticed a Norfolk train moving toward them on Track 3. They ran after it in an attempt to climbaboard but were unsuccessful. The boys continued to walk west on the road until they noticed a Conrail train sitting onBelt's Track 6. The boys ran over to the Conrail train, climbed upon one of its car, and began to play.

Meanwhile, another Norfolk train was moving slowly westward on Track 2. The boys jumped off the Conrail train andclimbed aboard one of the Norfolk cars as the train passed. The boys rode the Norfolk train west for a short time,dismounting at a point near King Drive.

Once off the Norfolk train, the boys decided to go home and proceeded down the northside embankment. When they almostreached an alley below, the boys heard the Conrail train upon which they had been playing starting to move. The boys ranback up the embankment and followed the train east as it traveled toward Pullman Junction.

While his friends began playing on the train, Kenneth positioned himself between two of the cars and began walking on oneof the rails. Keeping pace with the train's movement, Kenneth told his friends that he was pretending to push the train withhis hands. At that point, Kenneth's right foot slipped off the rail. While attempting to regain his footing, the lower portion ofKenneth's left leg was crushed under the wheels of the rear car. Due to the severity of the injury, Kenneth's lower left legwas amputated.

On the date of the accident, neither Norfolk nor CRL owned the set of tracks upon which Kenneth was injured or theConrail train that ran over Kenneth's leg. In an affidavit, John Rall, a system engineer for Norfolk, states that Norfolk didnot control the set of tracks where the injury occurred, and did not own or control either the north or south embankments.Rufus Wujcik, a manager of administration at CRL, similarly states that CRL neither operated or controlled Track 6, andexplains that CRL did not operate trains on said tracks on the accident date.

ANALYSIS

The purpose of summary judgment under section 2-1005 of the Code is to determine whether there exist any genuine issuesof material fact between the parties. Hubble v. O'Connor, 291 Ill. App. 3d 974, 979, 684 N.E.2d 816, 820 (1997). Summaryjudgment is appropriate only where the pleadings, depositions, and admissions on file, together with any affidavits, presentno issue of material fact and show that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c)(West 1998); Benamon v. Soo Line Railroad Company, 294 Ill. App. 3d 85, 87, 689 N.E.2d 366, 369 (1997). Our review ofan order granting summary judgment in favor of a party is conducted de novo (Benamon, 294 Ill. App. 3d at 88, 689 N.E.2dat 369 (1997)), and we will construe all pleadings, depositions and affidavits in a light most favorable to the nonmovingparty. Soderlund Brothers, Inc. v. Carrier Corp., 278 Ill. App. 3d 606, 614, 663 N.E.2d 1, 7 (1995). Although a plaintiff isnot required to prove her case at the summary judgment stage, some evidentiary facts in support of her cause of action mustbe presented. Helms v. Chicago Park District, 258 Ill. App. 3d 675, 679, 630 N.E.2d 1016, 1019 (1994).

To succeed on her claims of negligence, plaintiff must establish a duty of care owed by the defendants, the defendants'breach of that duty, and an injury proximately resulting from that breach. Rhodes v. Illinois Central Gulf Railroad, 172 Ill.2d 213, 227, 665 N.E.2d 1260, 1267 (1996). The crux of defendants' summary judgment motions is that the evidence failsto show they owed a duty of care toward Kenneth at the time he was injured on Belt's premises. Whether a duty exists in aparticular case is a question of law for the court to decide (Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 446, 605N.E.2d 493, 498 (1992)), and as such is an issue that may be properly resolved on a motion for summary judgment. SeeHanks v. Mount Prospect Park District, 244 Ill. App. 3d 212, 215, 614 N.E.2d 135, 137 (1993).

The existence of a duty is an inquiry shaped by public policy (Kirk v. Michael Reese Hospital & Medical Center, 117 Ill. 2d507, 525, 513 N.E.2d 387, 396 (1987), and requires us to determine whether the parties stood in such a relationship to oneanother that the law imposes an obligation on the defendant to act reasonably for the benefit of the plaintiff. Rhodes, 172 Ill.2d at 227, 665 N.E.2d at 1267. Absent the existence of a duty, the plaintiff cannot recover and the defendant is entitled tojudgment as a matter of law. Helms, 258 Ill. App. 3d at 679, 630 N.E.2d at 1019.

Plaintiff asserts the issue of whether defendants owed Kenneth a duty in this case is controlled by the doctrine establishedby our supreme court in Kahn v. James Burton Co., 5 Ill. 2d 614, 126 N.E.2d 836 (1955) (the "Kahn doctrine). The Kahndoctrine sets forth the standard for determining the liability of an owner, occupier or controller of land to children injuredon their premises. According to the doctrine, liability is to be governed by the traditional rules of negligence, with themeasure of fault being the reasonable foreseeability of harm. Kahn, 5 Ill. 2d at 624, 126 N.E.2d at 624-25. The Kahndecision brought Illinois law in harmony with section 339 of the Restatement (Second) of Torts (Restatement (Second) ofTorts