*1 they their case had and David could have aided While Sussen Lincoln’s traits of more evidence presented ambitions, given David’s appropriate and how it was more program presented David not be fatal. Sussen and their failure to do so should for David necessary appropriate enough evidence to find that it was support a trial some evidence is to attend Lincoln. When in order decision, reweigh that evidence this court should not court’s to reverse. Morris, Deceased, Plaintiff- MORRIS, of Alvin of the Estate
PHILLIP Adm’r COMPANY, Appellant, CENTRAL RAILROAD v. ILLINOIS d/b/a Railroad, Central Fourth Opinion May filed
Argued April 2008 .
KNECHT, J., dissenting.
Timothy (argued), Offices, PC., Kelly Kelly Bloomington, W. Law for appellant. (argued), Coburn, Kurt Rietz Thompson and Heath H. Hooks both of LLR Belleville, appellee for Company. Illinois Central Railroad (argued) Kehart, Kehart, James E. Peckert and Michael J. both of Peckert Booth, Decatur,
& appellee Lyle Grain, for Tate & Inc. JUSTICE COOK delivered the opinion of the court: Plaintiff, Morris, Phillip administrator of the estate of Alvin Mor- ris, appeals the trial court’s order dismissing his complaint against defendants Illinois Central Railroad Company, which does business as (Illinois Central), Central Railroad Lyle Grain, Inc., Tate and which Grain, does business as Staley Inc. (Tate Lyle). We affirm.
I. BACKGROUND Plaintiffs original complaint alleged 1, 2004, that on January approximately p.m., 7:06 Alvin Morris drove his vehicle into the side of an Illinois Central train that was at a railroad crossing on tracks owned Lyle. Tate and Plaintiff claimed that at the time of crash, area was unlit at with overcast and precipita- tion. Plaintiff died as a result of injuries sustained the crash.
Both defendants filed motions to pursuant dismiss to section (735 (West 2004)) 2—615 of the Code of Civil Procedure ILCS 5/2—615 (735 and section 2—619 of the Code of Civil Procedure ILCS 5/2—619 (West 2004)). Plaintiff confessed those by agreement motions leave to file a first amended complaint. Plaintiff filed his first amended complaint.
Both defendants filed motions to dismiss first amended complaint. Finding action, failed to state a cause of granted trial court both motions prejudice. without Plaintiff filed his second complaint. amended In separate both counts that addressed the defendants, plaintiff alleged that each defendant “failed to illuminate its train at the crossing or to make [it] visible to motorists at the
886 at the time.” that existed given
crossing site to defendants’ motions 13, 2007, granted both August On to state a cause of action. plaintiffs failure prejudice dismiss with for followed. appeal This
II. ANALYSIS sections 2—615 reference both motions to dismiss Defendants’ 615, 2—619 735 Procedure. ILCS and 2—619 of the Code Civil 5/2— (West 2004). either section to dismiss under resolving motions When true all accept required a trial court is 2—615 or section 2— 176 Litigation, Flood allegations. Chicago See In re well-pled factual (1997). This court reviews 179, 184, 268 680 N.E.2d ex rel. v. World People Ryan novo. under either section de dismissals 115, 120, Creator, 2d Church (section dismiss); Burciaga, v. motion to DeLuna 2—615 dismiss). (section motion to 2—619 that a train “longstanding rule courts follow the warning of its notice and adequate held to be generally is at a for his own ordinary care who is in exercise any traveler signs, additional is under no the railroad safety, and Co., 127 Ill. Ohio R.R. Dunn v. Baltimore & warnings.” signals[,] or (1989). Only when 350, 357, duty to an added will the railroad have are circumstances” *3 357, 537 N.E.2d at Dunn, 127 Ill. 2d at warn. further Illinois, circum “special Court According Supreme to the “a blind recognized have clearly defined but courts are not stances” errone warning lights which “malfunctioning and ing snowstorm” circumstances.” “special crossing was clear” indicated that the ously Citing Bachman v. at 741. Dunn, 127 Ill. 2d at (1971), the 277, 268 N.E.2d App. 2d Central R.R. that “it has been held that went on to state of Illinois Supreme Court special do not constitute visibility darkness, heavy fog[,] poor and inAlso at 741. Dunn, 127 Ill. 2d at circumstances.” did not following circumstances that the Dunn, determined the court (2) (1) darkness, presence the circumstances”: constitute (3) lighting at crossing, the absence at the traffic vehicular distrac unnecessary and crossing, grade crossing, 360-61, 537 Dunn, 127 Ill. 2d crossing. vicinity in the tions Toledo, & Western Peoria Malcome v. recently, in 742. More N.E.2d at (2004), 1199, 1202 App. Ill. Corp., 349 Ry. on a the tracks across of a flatcar held that this court circumstances. special did not establish dark special alleges constitute circumstances that the Plaintiff claims despite circumstances the cases cited above. The circumstances plaintiff alleged darkness, essentially crossing, sky were an unlit and a heavily that was and rain.
Plaintiff acknowledges Supreme that the Illinois stated that Court darkness heavy fog special did not constitute circumstances but argues only that the court came to that conclusion because it incor rectly interpreted the in holding Bachman. Bachman was decided Ribar, (1981), before Alvis v. held that Il apply linois would comparative negligence instead of the common-law contributory doctrine of negligence. According plaintiff, in Bach- man the merely court held finding that trial court was correct in that the evidence plaintiff’s contributory negligence. established The Bachman court did not plaintiff reach the issue of whether could prove “special reason, circumstances.” plaintiff urges For this this ignore supreme darkness, court’s statement in Dunn that heavy fog, poor visibility do special not constitute circumstances.
Even if
agree
we were to
plaintiff
Supreme
that the Illinois
Court misinterpreted
Bachman,
holding
technical
we cannot
agree
plaintiffs
that
special
sets forth
circumstances that
give
would
rise
to a
provide
defendants to
further warning.
Plaintiff asserts that darkness and an
special
overcast
constitute
jury
circumstances and a
should decide whether his assertions should
be accepted. The question, though,
plaintiff alleged duty
is whether
part. Malcome,
defendants’
349 App.
Ill.
3d at
811 N.E.2d at
(our
supreme court has
stopped-train
held that
rule is
concerned with a
duty).
railroad’s
legal duty
“The existence of a
is a
question of law
Malcome,
to be determined
the court.”
349 Ill. App.
3d at
above,
Accepting as true all of complaint’s allegations, factual plaintiff failed a situation except that would itself from the standing-car rule.
III. CONCLUSION *4 For stated, the reasons judgment. we affirm the trial court’s Affirmed.
STEIGMANN, J., concurs. KNECHT, dissenting:
JUSTICE treatment of reasons for favorable long-standing There be rule. I do not know standing-car railroads and the creation twenty-first vitality they have in the they are or what continued what understand hard-pressed would be century. The citizens of Illinois imposes a behind a decision logic public policy or a customer door post a reasonable care on a merchant (1990)) (Ward but not Corp., v. K mart illuminate a train at a railroad for failure to a (Dunn & Ohio R.R. v. Baltimore
(1989)). momentarily forgetful while car- or
A customer can be distracted known or obvi- post collide with a rying large, bulky item and then misled or can be distracted or him An automobile driver ous to or her. night heavily confused on a dark Midwestern slowly moving train. of a rain and drive into the side unduly If here. It is not burdensome. imposed should be exception, special-circumstances there is a as in just the trier of fact properly left to question circumstances is a Ward. POND ROBINSON, Plaintiff-Appellant, v. NORTH
CHARLES JEFFREY HUNTING CLUB
Fifth
Opinion filed June