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Fink v. Baker

OPINION FILED MARCH 15, 1977.

LINDA MARIE OSTROWSKI FINK, PLAINTIFF-APPELLANT,

v.

GEORGE P. BAKER ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. ABRAHAM W. BRUSSELL, Judge, presiding.

MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Linda Marie Ostrowski Fink (hereinafter plaintiff) takes this appeal pursuant to Supreme Court Rule 304 from the grant of a summary judgment in favor of defendants Elgin, Joliet & Eastern Railway, Inc. (hereinafter E.J. & E.), Baltimore & Ohio Railroad Company (hereinafter B.&O.), and H. Bairstow Company (hereinafter Bairstow).

On May 29, 1970, plaintiff, then 16 years of age, suffered injuries resulting in the amputation of both of her legs when she was caught between the cars of a freight train which started to move just as she was walking over the coupling of two of its cars. The train was owned and operated by Penn Central Transportation Company *fn1 and was situated in Penn Central's Calhour Yard in Hammond, Indiana.

The northwest corner of Hammond is bordered on the west by Illinois and on the northeast by Lake Michigan. Located at the point where the lake and the State lines meet is an electric generating station owned and operated by Commonwealth Edison of Indiana. As the lake shore reaches Illinois, it turns north. A paved road, which runs within a few hundred feet of the lake shore, ends at the gate to the generating station. Along the shore to the southeast of the station is a stretch of wooded and hilly undeveloped property 2,000 feet in length held in a trust created by Charles B. Shedd. Further along the shore to the southeast is realty owned by the City of Hammond. A public beach is located at Hammond's most easterly point.

Southwest of and parallel to these lake front properties is a series of rights of way. Immediately southwest and adjacent to the Shedd property is a 100-feet wide right of way owned by E.J.&E. To the southwest and adjacent to the E.J.&E. property is a 200-feet wide right of way owned by the B.&O. A portion of the B.&O. property, near the E.J.&E. property, is leased by Bairstow as a storage and handling facility for slag and other steel and iron producing byproducts. The B.&O. uses the remaining portion of its land as a railroad right of way. To the southwest and adjacent to the B.&O. right of way is a 100-feet wide right of way owned by the New York Central Railroad Company. Immediately southwest is a narrow strip of land owned by Commonwealth Edison of Indiana and/or C.D.E.G. Co. and/or Shedd. Immediately southwest and adjacent is Calhour Yard, where plaintiff was injured.

Plaintiff came to be on Penn Central's property because she and some friends were proceeding from the Hammond beach area toward a gas station on Indianapolis Boulevard in Illinois. There was no street or path over which plaintiff could have directly proceeded to Indianapolis Boulevard within 2,000 feet, nor was there any path or trail going through the Calhour Yard toward Indianapolis Boulevard. Plaintiff chose to cross directly through defendants-appellees' properties and the Calhour Yard.

Plaintiff filed her initial complaint only against Penn Central. She joined Penn Central's trustees, E.J.&E., B. & O. and Bairstow in an amended complaint wherein she alleged, inter alia, that E.J.&E. and B.&O. were negligent in that they failed to provide a fence or other protective devices in an area which they knew was frequently traversed by members of the public. In a separate count, she alleged that Bairstow allowed the public, including children, to regularly use its property as a recreational area, thereby establishing a path for travel through its property and onto Penn Central's tracks, but failed to erect fences or warning sign to prevent pedestrian traffic through its slag storage area toward the railroad yards and track area.

All defendants-appellees denied the material allegations of the amended complaint. Bairstow, as an affirmative defense, alleged that plaintiff, if upon its premises at all, was a trespasser.

After discovery pursuant to the pleadings, E.J.&E., B. & O. and Bairstow filed separate motions for summary judgment, attaching their respective depositions and affidavits in support thereof. These motions for summary judgment alleged that: (1) plaintiff was a trespasser, (2) defendants had no knowledge that pedestrians were crossing their properties, (3) they did not own or control the equipment which injured plaintiff or the premises upon which she was injured, and (4) negligence, if any, on their part was not the proximate cause of plaintiff's injury. In opposition to defendants-appellees' motions, plaintiff filed counteraffidavits of six persons who each stated that, on numerous occasions, they had personally crossed over defendants-appellees' properties, in a direct line between Indianapolis Boulevard and the beach area, without being questioned or warned not to do so. The evidence deposition of one Sam Visnick was also presented to the trial court for consideration. Visnick was an engineer employed by the Penn Central in May of 1970. He testified that, over a period of 20 years, he often saw boys and girls in Calhour Yard, going to and coming from the beach area. Plaintiff also testified in her discovery deposition that she had previously seen people cross through the railroad yards.

In separate orders, the three motions for summary judgment were granted, with express findings that there was no just reason for delay of appeal or enforcement of the court's order. The cause against Penn Central was continued. Plaintiff's motion for reconsideration was denied and this appeal ensued.

• 1 The threshold question posed in this case is whether Illinois or Indiana law is to be applied in the resolution of the substantive issues presented. In Ingersoll v. Klein (1970), 46 Ill.2d 42, 262 N.E.2d 593, our Supreme Court adopted the rule that the law to be applied in a tort case is the law of the State which has the most significant contacts with the elements of the cause of action. Plaintiff contends that Ingersoll, which overturned the vested rights theory of choice of law, precludes this court from giving extraterritorial effect to Indiana law under the doctrine of lex loci delicti. Defendants contend the law of Indiana should apply. Ingersoll states:

"[T]he local law of the State where the injury occurred should determine the rights and liabilities of the parties, unless Illinois has a more significant relationship with the occurrence and with the parties, in which case, the law of Illinois should apply." 46 Ill.2d 42, 45, 262 N.E.2d 593, 595.

Plaintiff contends that Illinois is the State most significantly related to this incident. She urges the following factors: Plaintiff is an Illinois resident. Defendants are either Illinois corporations or licensed to do business in Illinois. Most of plaintiff's witnesses reside in Illinois. Most of plaintiff's medical treatment was received in Illinois. The incident occurred near the Illinois-Indiana State line. Plaintiff was returning to Illinois when the incident occurred.

Defendants-appellees refute this contention and urge that Indiana is the State most significantly related to the incident and hence that Indiana law applies. They urge these factors be considered: The incident occurred in Indiana. All defendants are either incorporated in Indiana or qualified to do business there. At issue here is ...


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