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July 12, 1983


The opinion of the court was delivered by: Shadur, District Judge.


Burlington Northern Railroad Company ("Burlington") initially sued JMC Transport, Inc. ("JMC") and Ben Reed Bramble ("Bramble"), alleging a Burlington locomotive and other equipment were damaged in July 1981 when struck at a crossing by a JMC truck negligently operated by Bramble. Some 18 months after Burlington filed its action, this Court granted JMC and Bramble leave to file Counterclaims alleging damages and personal injuries caused by Burlington's negligence at the time of the collision. Most recently this Court permitted defendants to amend their Counterclaims and their Answer, respectively, to add (1) claims for punitive damages and (2) an Affirmative Defense, in each instance based on Burlington's willful and wanton misconduct in entrusting its locomotive to engineer Marion Miller ("Miller").*fn1

Burlington has now moved (1) under Fed.R.Civ.P. ("Rule") 12(b)(6) to "strike" (really dismiss) defendants' Amended Counterclaims*fn2 and (2) under Rule 7*fn3 to strike the part of defendants' Affirmative Defense asserting Burlington's willful and wanton misconduct. In the alternative Burlington has moved under Rule 42(b) for separate trial of defendants' willful and wanton entrustment counterclaims. For the reasons stated in this memorandum opinion and order (1) Burlington's motion to dismiss (and for summary judgment on) the Amended Counterclaims is denied, (2) defendants' Affirmative Defense is stricken from their Amended Answer and (3) Burlington's motion for separate trial is conditionally granted.

Amended Counterclaims

In their April 15, 1983*fn4 Motion To Amend Pleadings, ¶¶ 2 and 4, defendants said (1) they did not become aware of Miller's prior disciplinary and safety record (the basis of their willful and wanton entrustment counterclaims) until April 5 and (2) they had been misled by Miller's prior deposition statement he had been involved in only one previous derailment, occurring some time in the late 1960s. On that latter point Burlington accurately responds (Motion To Strike Amended Counterclaim ¶ 2 and Exs. A(1) and (2)) Miller was asked at his deposition only about prior crossing accidents — and he responded correctly he had only one such accident, in the "Late 60's." But that simply means defendants are wrong in claiming Miller misled them. It does not also defeat, as a matter of law, defendants' willful and wanton entrustment counterclaims.

Miller's personnel record (Ans. Mem. Ex. A) reveals four disciplinary actions:*fn5

    1. December 2, 1964: "Censured for disregard of
  safety . . . and joint responsibility [as fireman]
  for accident by failure to keep a constant lookout
  [for track alignment] . . . resulting in running
  through . . . switch and derailing engines when
  reverse movement was made."
    2. August 28, 1975: "Suspended . . . for period of
  10 days . . . for disregard of safety . . . by
  failure to sound the proper whistle signal when
  stopped at . . . automatic interlocking . . . [and]
  to provide flag protection for his train, while
  assigned as engineer."
    3. June 6, 1977: "Suspended . . . for five (5)
  days . . . for disregard of safety . . . by failure
  to determine whether flat spots on wheels of
  Engine . . . in his charge were more than or less
  than two inches in length and failure to notify
  dispatcher and be governed by his instructions."
    4. July 3, 1980: "[D]ismissed . . . for disregard
  of safety . . . [by] failure to comply with bulletins
  and special instructions, resulting in derailment of
  nine cars . . . with resultant damage to track &
  equipment, and failure to operate train in compliance
  with speed restrictions when assigned as engineer."*fn6

Defendants contend (Ans.Mem. 2-4) they need not refer to that record to survive a motion to dismiss, because their Amended Counterclaims state an Illinois cause of action for willful and wanton entrustment.*fn7 Playing it safe, however, and sensing Burlington's conversion of its motion to one for summary judgment, defendants also (id. at 4-7) cite matters outside the pleadings to show (1) they have a cause of action and (2) factual issues preclude summary judgment for Burlington. Defendants are right on both points.

Earlier this year the Illinois Supreme Court recognized the cause of action for willful and wanton entrustment, Lockett v. Bi-State Transit Authority, 94 Ill.2d 66, 74, 67 Ill.Dec. 830, 834, 445 N.E.2d 310, 314 (1983). It also specifically approved Illinois Appellate Courts' earlier recognition of that action, citing Giers v. Anten, 68 Ill.App.3d 535, 24 Ill.Dec. 878, 386 N.E.2d 82 (1st Dist. 1978); Rosenberg v. Packerland Packing Co., 55 Ill.App.3d 959, 13 Ill.Dec. 208, 370 N.E.2d 1235 (1st Dist. 1977); and Dyreson v. Hughes, 333 Ill.App. 198, 76 N.E.2d 809 (2d Dist. 1947). Even the most cursory comparison of the Amended Counterclaims with the substantive pleading standards discussed in Giers, 68 Ill.App.3d at 539-40, 24 Ill.Dec. at 881-882, 386 N.E.2d at 85-86 shows defendants have properly pleaded a willful and wanton entrustment claim.*fn8

Moreover Giers, 68 Ill.App.3d at 540, 24 Ill.Dec. at 882, 386 N.E.2d at 86 labels as "questions of fact" (1) whether a tortfeasor was reckless or incompetent and (2) whether an "entruster" was guilty of willful and wanton misconduct. Burlington thus misses the mark in arguing (Motion ¶ 3; R.Mem. 2-4) that the fact Miller had only a single, and much earlier, crossing accident (one leading to no disciplinary action) establishes as a matter of law defendants cannot prove Burlington's willful and wanton entrustment. Miller's admission of that prior ...

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