delivered the opinion of the court:
Plaintiff, Jae Boon Lee, administratrix of the estate of Sang Yeul Lee, brought a wrongful death action to recover damages for the death of- her husband which occurred while he was on land owned by defendant, Chicago Transit Authority (CTA). Plaintiff’s complaint alleged that the CTA’s conduct in maintaining its third rail was either negligent or wilful and wanton, and caused decedent’s death. The jury returned a verdict for plaintiff on the negligence count in the amount of $3 million, but reduced its award by 50% based on the decedent’s own negligence. In response to a special interrogatory, the jury found that the CTA’s conduct was not wilful and wanton. The court entered judgment on the verdict for $1,500,000. The CTA appeals from that judgment, contending that the trial court erred in denying its motions for directed verdict and for judgment notwithstanding the verdict; that improper and insufficient evidence and trial error compel a new trial; and that the jury’s apportionment of fault and award оf damages are not supported by the evidence.
Both the Illinois Trial Lawyer’s Association and Commonwealth Edison Company have filed briefs as amicus curiae in this case. The Association urges this court to affirm the trial court’s decision, while Commonwealth Edison urges us to reverse the decision.
At trial, the following information was adduced. Plaintiff testified that she and the decedent immigrated to the United States from a rural area outside of Seoul, Korea. They hаd two sons, Chong Yoon Lee and Jae Lee. At the time of his death, the decedent was employed at Thayer & Chandler, a manufacturer of air brushes. The decedent had a limited understanding of English, but was able to get to and from work by riding the Ravenswood “L.”
On October 21, 1977, the morning preceding the accident, the decedent informed plaintiff that he planned to attend a party in the evening. Decedent apparently left the party after dark. He proceeded up Kedzie Avenue, a north/south street which intersected with the northwest-bound Ravenswood rapid transit line. At this point, he apparently proceeded into the CTA’s right-of-way in order to urinate. In the process of doing so, he came into contact with the third rail, and suffered fatal injuries.
The decedent’s body was found on the elevated (“L”) tracks located on the CTA’s Ravenswood line at or near 4700 North Kedzie Avenue. John Costantini, a Chicago Fire Departmеnt paramedic field officer, testified that the decedent lay perpendicular to the northwest-bound CTA tracks, his head pointing north. The decedent’s feet were near the third rail, pointing in its direction. (The third rail carries 600 volts of electricity and provides power to the train cars as they traverse grade crossings.) The decedent’s pants zipper was open, and his penis was exposed. The pathology report listed the immediate cause of death as electrocution. At the time of his death, the decedent had a 0.341 percent blood-alcohol concentration which placed him in the stupor classification of intoxication.
Thomas Wolgemuth, the CTA’s director of plant maintenance and later its manager of engineering, testified that the decedent was neither permitted nor invited to be on the Kedzie “L” tracks on October 22, 1977. (Plaintiff introduced no evidence that the presеnce of decedent inside the Kedzie right-of-way was known to the CTA.) In order to prevent pedestrians from entering the right-of-way at grade crossings such as the one at Kedzie, the CTA developed a “pedestrian access barrier system.” This system was in place in July 1976 and consisted of warning signs, right-of-way fencing, access barriers and chain link fences, and trespass barriers, also known as “jaws.”
Prior to installing the “jaws” trespass barrier system, the CTA considered three alternаtive protective systems: gates which would remain closed except when a train was traveling through the crossing, cover boards which would cover the third rail, and catenary lines which would carry the electric current overhead.
Charles Heilman, a safety expert, testified for plaintiff that each of the above systems would have been preferable to the system employed by the CTA. Heilman concluded that the “jaws” were intrinsically unsafe and that thе warning signs were insufficient. Heilman gave detailed reasons for his conclusion, but because of our view of the proceedings, it is not necessary to set forth his reasoning.
Plaintiff introduced evidence of 10 prior accidents involving injuries caused by the third rail at CTA grade-level crossings. Of those, one occurred at the Ravenswood crossing at Kedzie in 1974. The 10 accidents spanned the period from 1948 through 1975. None of the accidents occurred after the CTA placed its “jaws” trespass barrier system at grade-level crossings on the Ravenswood line.
Following the presentation of all testimony, the parties tendered instructions to the court. Plaintiff tendered an instruction based on her theory that the CTA was engaged in the activity of conducting electricity. The CTA objected to plaintiff’s instruction and tendered its own instruction based on the position that the third rail was a condition, not an activity. The court found that the CTA was engaged in the activity of conducting electricity and gave the jury plaintiff’s instruction charging the CTA with the duty of ordinary care. The court refused to give the CTA’s instruction.
Following deliberations, the jury returned a verdict in the sum of $3 million which it reduced by 50% to account for the decedent’s own negligence. The CTA’s motion for directed verdict as well as its motion for judgment notwithstanding the verdict were denied.
The CTA first contends that the trial court erred in denying its motions for a directed verdict on the negligence count and for judgment notwithstanding the verdict. In support of this contention, the CTA argues that railroads owe no duty of ordinary care to trespassers and that only an intentional and affirmative activity by a landowner gives rise to a duty of ordinary care owed to trespassers whose presence can be anticipated.
Although plaintiff argues that it was not proved that decedent was a trespasser at the time of his death, we find that the evidenсe establishes that he was a trespasser. A trespasser is one who enters the premises of another for his own purposes without permission, invitation or other right. (Sumner v. Hebenstreit (1988),
Generally, a railroad company owes no duty to a trespasser except to refrain from wantonly or wilfully injuring him, and to use reasonable care to avoid injury to him after he is discovered to be in peril. (Rowe v. Taylorville Electric Co. (1904),
It is obvious that neither the first exception, dealing with small children, nor the third exception, dealing with discovered trespassers, is applicable to the situation before us. At the time of his death, decedent was 46 years old. Thus, the exception for children does not apply. Nor was there any testimony which would permit a finding that the decedent had been discovered by the CTA. Thus, the discovered trespasser exception does not apply.
Moreover, we find that the permissive use exception and its derivatives are not applicable. Undеr the permissive use exception, a landowner may owe a duty of care to trespassers, other than to refrain from wilful and wanton conduct, when the landowner permits regular use of his land for travel. (See, e.g., Morgan v. New York Central R.R. Co. (1927),
Having so determined, we nonetheless must inquire further to verify that additional, less clearly defined exceptions to the general rule of limited duty to trespassers do not apply. A review оf our jurisprudence in this area reveals that the exceptions to this general rule have evolved over the years to incorporate certain aspects of what formerly was known as the active negligence doctrine. Plaintiff’s theory in this regard is set forth in section 334 of the Restatement (Second) of Torts, which provides as follows:
“A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area thereof, is subject to liability for bodily harm there caused to them by his failure to carry on an activity involving a risk of death or serious bodily harm with reasonable care for their safety.” (Restatement (Second) of Torts §334 (1965).)
This Restatement section has been incorporated into an Illinois jury instruction specifically designed to apply in those situations in which an activity on the landowner’s premises causes injury to a known or anticipated trespasser. (See Illinois Pattern Jury Instructions, Civil, No. 120.03, Notes on Use (2d ed. 1971) (hereafter IPI Civil 2d) (stating that this instruction instead of IPI Civil 2d No. 120.02 is to be used when the activities of the owner or occupant, as distinguished from the condition of the premises, caused the injury).) The trial court here determined that this instruction obtained and, over the CTA’s objection, gave it to the jury.
The CTA contends that the trial court erred in instructing the jury on the standard of care owing to a trespasser who is injured by an activity occurring on its prеmises. As the basis of this contention, the CTA argues that the trial court improperly determined that the decedent’s death resulted from an “activity” on the CTA’s right-of-way. The CTA maintains that the third rail is a condition, not an activity. The CTA concludes that the trial court’s errors in this regard improperly permitted the imposition of a duty of ordinary care.
During the course of the trial, plaintiff amended her complaint four times. In her fourth amended complaint, plaintiff alleged that the CTA was negligent in that it used and transmitted electricity without proper safety measures. At the conclusion of all evidence, plaintiff moved to file an amendment to that complaint in order to conform it to the evidence as presented. The amendment contained an allegation that the CTA used and transmitted electricity without safety measures. Over objection, the court allowed the amendment, noting that there was evidence that the CTA was plaсing its electricity in the third rail for various stations throughout the City of Chicago.
Based on the amended complaint, plaintiff tendered an instruction based on IPI Civil 2d No. 120.03, which sets forth the duty owed by an owner to a trespasser for an injury caused by the owner’s activities. The CTA offered IPI Civil 2d No. 120.02, which sets forth the duty owed by an owner to a trespasser for an injury caused by a condition of the premises. That instruction provided that the CTA was not under a duty to use ordinary care to see thаt its premises were reasonably safe for Sang Yeul Lee. The court ruled that the CTA was engaged in the activity of conducting electricity, and, over the CTA’s objection, gave the instruction tendered by plaintiff. The court also instructed the jury that the CTA had a duty, “before and at the time of the occurrence, to use ordinary care for the safety of the decedent.”
We find that the trial court improperly determined that the CTA’s use of a rail charged with eleсtricity was an “activity” giving rise to a basis for instructing the jury on the duty owed to a trespasser caused by the CTA’s activities.
The Illinois Supreme Court Committee Comments to the instructions distinguish situations in which a condition of the premises gave rise to the injury and those in which the owner or occupant of the premises actively did something which injured the plaintiff. (See generally Illinois Pattern Jury Instructions, Civil, Nos. 120.02, 120.03, Notes on Use (2d ed. 1971).) Moreover, the instructions provide different prerequisites to liability and a different standard of care in each situation. (See Illinois Pattern Jury Instructions, Civil, Nos. 120.02, 120.03 (2d ed. 1971).) Our decisions in this area confirm that this distinction is appropriate. (See, e.g., Marcovitz v. Hergenrether (1922),
Thus, the determination of whether an injury was caused by an activity or a condition is crucial, and we believe that a review of the relevant case law will be instructive. In the Comment to IPI Civil 2d No. 120.03, the authors cite McDaniels v. Terminal R.R. Association as an example of a situation in which the plaintiff was injured by an activity, and thus one in which that instruction would have been appropriate. There, the plaintiff, a trespasser on defendant’s property, was injured when he was struck by pieces of lumber thrown by defendant’s employees. The court found that defendant had constructive knowledge of plaintiff’s presence on a path which had been used by the public for as many as 20 years. In view of this knowledge, the court found that defendant had an obligation to keep a lookout for persons on its premisеs and to conduct its activities in a manner which reasonably would safeguard those persons.
The court reached a similar result in Shine v. Wabash R.R. Co., where a child was struck and injured by defendant’s train when the child wandered onto the tracks. The court noted that defendant’s employees had actual knowledge of the child’s presence and concluded that, in view of this knowledge, the reasonable care standard of ordinary negligence applied.
Finally, in Votava v. Material Service Corp., the court found that a submerged barge which was used for storing the defendant’s equipment and supplies was a condition rather than an activity. The plaintiff was injured when his boat ran into the submerged barge. Citing McDaniels and Shine, the court emphasized that in those situations in which an activity was found, there was a positive act of wrongdoing, rather than a mere condition of the land or property. The Votava court concluded that even though the defendant had knowledge of trespassers to the premises, it nonetheless owed such trespassers only a duty to refrain from wilful and wanton misconduct.
In light of these decisions, we find that the CTA was not conducting an affirmative activity when the decedent sustained his fatal injuries and that the trial court erred in so concluding. The use of electric energy is not akin to the operation of a train, or to the hurling of lumber, endeavors which have bеen labelled “activities.” (McDaniels v. Terminal R.R. Association (1939),
Significantly, we hold that, contrary to the trial court’s conclusion, the CTA is not in the business of distributing electricity despite the fact that it owns and operates transformers. Rather, the CTA is а consumer of electricity. More specifically, the CTA purchases electricity in order to charge its third rail. This purchase is not unlike a homeowner’s purchase of electricity in order to charge an appliance such as an electric outdoor grill. In such an instance the consumer purchases the use of electric energy and ultimately may use that electricity to undertake an activity which may result in injury. (See, e.g., Prater v. Veach (1962),
In view of our conclusion that thе third rail is a condition rather than an activity, we further find that the trial court erroneously denied the CTA’s request to instruct the jury that it was not under a duty of ordinary care to a trespasser for conditions on the premises. Illinois Pattern Jury Instructions, Civil, No. 120.02 (2d ed. 1971).
We find that IPI Civil 2d No. 120.02 properly sets forth the law with respect to a condition on the land (see Hansen v. Goodyear Tire & Rubber Co. (1990),
Significantly, this principle was found to apply in a situation analogous to the case before us. In Fosbury v. Aurora, Elgin & Chicago Ry. Co. (1908),
We note, however, that the failure of a landowner to disclose certain dangers to trespassers may constitute wilful and wanton misconduct. (Hessler v. Cole (1972),
In sum, we hold that the trial court improperly gave to the jury IPI Civil 2d No. 120.03, outlining the standard of care owed by a landowner to a known or anticipated trespasser when that trespasser is injured by an activity on the land. Thus, the trial court improperly instructed the jury that the CTA owed the decedent a duty of ordinary care. When a case is tried under an incorrect theory of law, the appropriate action is to reverse the judgment and to remand for a new trial. (Sparling v. Peabody Coal Co. (1974),
For the foregoing reasons, the judgment of the circuit court of Cook County is reversed.
Judgment reversed.
BILANDIC and RAKOWSKI, JJ., concur.