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Beverly Bank v. Penn Central Co.

JULY 3, 1974.

THE BEVERLY BANK, GUARDIAN OF THE ESTATE OF LARRY HOLLIDAY, A MINOR, PLAINTIFF-APPELLANT,

v.

THE PENN CENTRAL COMPANY ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND K. BERG, Judge, presiding. MR. PRESIDING JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Plaintiff, Beverly Bank, as guardian of the estate of Larry Holliday, a minor, filed a two-count complaint in the circuit court of Cook County charging the Penn Central and Norman Young, one of its former employees, with negligence and wilful and wanton conduct for injuries caused Holliday when a shotgun held by Young discharged during Young's pursuit of several trespassers on the railroad's premises. The trial judge dismissed the negligence count prior to trial, and the jury found for the defendants on the second count. The jury also found by special interrogatory that Holliday was guilty of contributory wilful and wanton conduct which proximately contributed to cause his injuries. The trial court entered judgment on the verdict, and, after it denied plaintiff's post-trial motion, plaintiff filed this appeal.

The facts are as follows. On June 30, 1970, Norman Young, a probationary security policeman for Penn Central, was working the midnight to 8 A.M. shift. His duties included patrolling the railroad's premises at various locations, keeping unauthorized persons from trespassing upon the property, and recovering lost or stolen property stored on the premises. His patrol area on the night in question included the 47th Street Complex, which stretched from approximately 4200 to about 5800 South, and from Princeton Avenue to a block past Shields Avenue in the City of Chicago. Young, and other corroborating witnesses, considered the area highly dangerous. It had been the scene of armed trespassing juveniles and rock-throwing crowds. Patrol cars had been shotup, and armed assaults had occurred, resulting in injuries to various personnel. Prime targets in the area for trespassers were piggy-back trailers standing on flatcars, which frequently stored various kinds of merchandise. On the night previous, Young helped recover some television sets which recently had been stolen from the piggy-back trailers.

When Young arrived at work at 11:45 P.M. on June 29, Sergeant Esposito, his supervisor, informed him of some trouble at the 51st Street Yard, and the two men proceeded there in a squad car. Young removed a shotgun from the trunk and loaded it with 00 buckshot. Although the 51st Street Yard was found to be secure, Young kept the gun in the car for the duration of his patrol.

At about 4:45 A.M., the two men replaced the aforementioned television sets in the trailers. Young subsequently walked toward the flatcars with the shotgun slung over his shoulder. Between 5 and 5:30 A.M., Young heard noises sounding to him like a seal breaking and trailer doors opening. He walked toward the noise with his shotgun now held at waist level. It was daylight, and when Young had progressed to within 60 yards of the piggy-back trailers he clearly observed five males standing on a flatcar taking merchandise out of the trailer. Young yelled, "Halt, police officer," and, as he began to run toward the trailer "as fast as he could," he released the safety on the shotgun and placed his finger on the trigger. Young testified that when he closed to within 40 yards of the flatcar, he tripped over debris and the gun discharged. Holliday was shot in the back, and received severe injuries resulting in paralysis.

Esposito, who was in the area, corroborated Young's testimony that the latter issued a warning. He also testified that only one shot was fired.

Larry Holliday testified that he was with a group of people who observed railroad patrolmen placing television sets in a piggy-back trailer earlier that evening. He stated that some members of a local gang wanted him and others to steal the sets. Holliday stated that he never intended to steal anything, but that he voluntarily accompanied a friend onto the railroad's premises. Holliday knew that his friend intended to steal. He also believed the railroad's security personnel were armed. Holliday's friend jumped up on the car to break into the trailer containing the television sets. Holliday testified that he heard a gunshot and, upon seeing his friend start to run, also began to flee. During his flight, he testified that a second shot rang out, hitting him in the back. He denied hearing any warning to halt.

Plaintiff contends that the trial court erred in dismissing the negligence count of the complaint; in instructing the jury on the applicable law on trespass; and in permitting into evidence certain prejudicial and inflammatory testimony. It also urges that the finding of the jury that Holliday was guilty of contributory wilful and wanton conduct that was one of the proximate causes of his injury was against the manifest weight of the evidence.

Plaintiff first contends that the trial court committed reversible error in dismissing its negligence count. It claims that, as a discovered trespasser, Holliday was owed a duty of reasonable care by the defendants. The defendants insist that the only duty owed to Holliday was to guard against wilfully and wantonly injuring him, and thus contend that the trial court correctly dismissed the negligence count. The evidence amply supports the position that Holliday must be considered a discovered trespasser.

• 1 Historically, although an express or implied invitee was owed the duty of ordinary care by the owner or occupier of premises (Pauckner v. Wakem (1907), 231 Ill. 276, 83 N.E. 202), no obligation arose to keep the premises safe for trespassers and licensees, including children (McDermott v. Burke (1912), 256 Ill. 401, 100 N.E. 168), and the only duty owed to a trespasser or licensee was to refrain from wilfully or wantonly injuring him. Marcovitz v. Hergenrether (1922), 302 Ill. 162, 134 N.E. 85.

• 2, 3 Slowly, certain exceptions have been created concerning the standard of care owed to trespassers. Where a trespasser is a child, the basic test of responsibility now is whether the owner or occupier of land could have foreseen harm to the child. (Kahn v. James Burton Co. (1955), 5 Ill.2d 614, 126 N.E.2d 836.) Another situation that will cause a relaxation of the wilful and wanton conduct standard is in the case of frequent trespass over a limited area. (McDaniels v. Terminal Railroad Association (1939), 302 Ill. App. 332, 23 N.E.2d 785.) A third exception is the discovered trespasser rule. This doctrine, adopted by the great majority of jurisdictions, provides that an owner or occupier of premises owes to a trespasser the exercise of reasonable care for the trespasser's safety once his presence is known.

Illinois has joined the other jurisdictions in accepting this last exception to the trespasser rule. Our supreme court indicated its adherence to it in Briney v. Illinois Central R.R. Co. (1948), 401 Ill. 181, 81 N.E.2d 866, when it stated at page 186:

"[T]o a trespasser the owner owes only the duty not to wilfully and wantonly injure him and to use ordinary care to avoid injury to him after his presence on the premises in a place of danger has been discovered."

Also see Cullmann v. Mumper (1967), 83 Ill. App.2d 395, 228 N.E.2d 276; Patterson v. Byrne (1960), 24 Ill. App.2d 565, 165 N.E.2d 374 (abstract opinion).

• 4 We reject defendants' attempt to confine the discovered trespasser exception to very limited instances. Defendants attach great significance to the term "place of danger." They seek to confine application of the doctrine to those situations in which the discovered trespasser will "almost certainly be injured, if ordinary care is not taken for his safety because the trespasser cannot alleviate the danger through unilateral action." In our view, the rigidity of such a test would totally negate the remedial impact of the exception, since the failure of a defendant to take any helpful action in the type of fact pattern hypothesized by defendants would seemingly meet the wilful and wanton standard itself. We prefer to place a far more flexible meaning upon "place of danger." In our view, it means nothing more than to be in a position whereby the trespasser may be injured if the defendant does not exercise the proper degree of care. (See Briney v. Illinois Central R.R. Co., supra, at 187.) The duty in such a case is for the owner or occupier to exercise reasonable care in his actions for the discovered trespasser's safety. We conclude that the trial court erred in ...


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