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09/03/87 Arley Dunn Et Al., As Co v. the Baltimore & Ohio

September 3, 1987

DUNN, DECEASED, PLAINTIFFS-APPELLANTS

v.

THE BALTIMORE & OHIO RAILROAD COMPANY, DEFENDANT-APPELLEE



Before considering the substantive arguments raised on appeal, two preliminary matters need to be addressed. We first consider B&O's motion to strike the Dunns' brief on the basis that it contains references to deposition testimony which is irrelevant for purposes of this appeal and which is so intertwined in the brief that it cannot be easily excised by means of a motion to strike it from the brief. In opposition to this motion, the Dunns point out that B&O's motion to dismiss their second-amended complaint makes reference to a deposition of the Dunns' expert Thomas Berns, and that an affidavit in support of that motion was placed on file. The Dunns further note that none of the motions to dismiss or orders entered by the circuit court in this cause make reference to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-615). The Dunns also assert that the record demonstrates that the trial court considered more than the allegations of their complaint. For these reasons, the Dunns maintain that the references to depositions in their brief are appropriate and proper, and that in any event these references could not have prejudiced B&O in responding to their brief.

APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

ARLEY DUNN et al., as Co-Adm'rs of the Estate of Lyle E.

515 N.E.2d 1027, 162 Ill. App. 3d 97, 113 Ill. Dec. 868 1987.IL.1282

Appeal from the Circuit Court of Douglas County; the Hon. Art Powers, Jr., Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE SPITZ delivered the opinion of the court. JUSTICE LUND, specially Concurring. JUSTICE GREEN, Concurring in part and Dissenting in part.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

Plaintiffs Arley Dunn and Nada Lou Dunn (the Dunns) appeal the dismissal with prejudice of their third-amended complaint seeking damages on the basis of alleged negligence and wilful and wanton misconduct on the part of the defendant Baltimore & Ohio Railroad Company , which they assert caused the death of their son, Lyle E. Dunn (decedent).

The Dunns' third-amended complaint consists of eight counts. Common to all counts are allegations that at about 9:30 p.m. on October 29, 1983, decedent was operating a motor vehicle in a northerly direction across the Smith Street crossing of the B&O tracks in Newman, Illinois. In so doing, decedent's motor vehicle collided with a stopped B&O train which decedent "was unable to see until it was too late to avoid the collision due to one or more of the acts set forth hereinafter or a combination thereof."

Count I, which is a survival action, alleges B&O committed the following wilful and wanton acts which proximately caused decedent's injuries and death, and damage to his property: (1) failed to provide warnings of railcars in the crossing which B&O periodically and intentionally stopped there during hours of darkness, even though it knew (a) the visibility at night was so poor that a motorist might not see the cars until it was too late, (b) the crossing was extrahazardous when railcars were stopped there during hours of darkness, or (c) "that considering the periodic presence of parked cars, the motor vehicular traffic, the absence of lighting at the crossing during hours of darkness, and elevated approach grades of the crossing, and the obstructions to view in various quadrants of the crossing," the crossing was extrahazardous, and (2) failed to provide warning of railcars in the crossing which it periodically and intentionally stopped there even though it knew the crossing was extrahazardous when railcars were stopped there during hours of darkness.

Count II, also a survival action, alleges that B&O engaged in wilful and wanton misconduct in not conforming the Smith Street crossing to various rules promulgated by the Illinois Commerce Commission . The count specifically alleges that B&O:

"A. Intentionally constructed and maintained for a period of many years prior to the occurrence the crossing in such a manner that the crossing violated Rule 4 of General Order 106 of the Illinois Commerce [Commission] in that the surface of the roadway was not flush and level with the top of the rails between the rails and for a distance of at least 16 inches beyond the outside rail, and the width of the crossing was less than 18 feet measured at right angles to the centerline of the road, all of which was known to the defendant, and which conditions could cause an unnecessary diversion of the attention of a motorist such as plaintiff's decedent to the surface of the roadway thereby reducing his opportunity to look for approaching trains or trains standing on the crossing.

B. Knowingly and intentionally raised the level of the tracks at the crossing with the result that the roadway approaches thereto were changed so as to violate the requirements of Rule 204 as promulgated by Illinois Commerce Commission Order 138 with the result that a motorist such as the plaintiff's decedent would see under the rail car rather than see the rail car and thus be misled to believe that the crossing was unobstructed.

C. For an extended period of time knowingly allowed the right-of-way adjacent to its tracks to become obstructed by brush, shrubbery, weeds and crops within five hundred (500) feet of the crossing in violation of Rule 205 as promulgated by Illinois Commerce Commission General Order 138 with the result that the attention of a motorist such as the plaintiff's decedent was unnecessarily diverted to the areas obscured by said brush, shrubbery, weeds and crops thereby reducing the motorist's opportunity to observe whether or not there were any approaching trains or rail cars stopped upon the track.

D. After it intentionally raised one of the two sets of track at the crossing, knowingly failed to adjust or arrange for adjustment of the roadway approaches so as to conform them as nearly as practicable to Rules 203 and 204 in violation of Rule 207 as promulgated by Illinois Commerce Commission General Order 138 with the result that a motorist such as the plaintiff's decedent would see under the rail car rather than see the rail car and thus be misled to believe that the crossing was unobstructed.

E. Knowingly allowed the crossing to become and remain for an extended period of time so rough and uneven that a motorist's attention was unnecessarily diverted to the surface of the roadway thereby reducing the motorist's opportunity to look for approaching trains or rail cars stopped on the crossing in violation of Rule 206 as promulgated by Illinois Commerce Commission General Order 138."

Count III, which requests damages on the theory of wrongful death, repeats all the allegations of wilful and wanton misconduct alleged in count I, except it does not allege B&O's failure to provide warning of trains standing at the Smith Street crossing even though it knew that because of the periodic presence of parked cars, the motor vehicular traffic, the absence of lighting, et cetera, the crossing was extrahazardous. Additionally, count III alleges B&O wilfully and wantonly started the train notwithstanding that there were police cars at the Smith Street crossing with their headlights shining on decedent, who was still alive at the time and in plain view of B&O's employees.

Count IV, also a wrongful death action, alleges B&O wilfully and wantonly committed the same violations of ICC rules alleged in count II.

Count V, a survival action, alleges B&O was negligent in that it (1) failed to provide automatic flashers, flares, or a flagman to warn of the presence of stopped railcars in the Smith Street crossing, notwithstanding its periodically stopping railcars on the crossing during hours of darkness, "the vehicular traffic, the lack of lighting at the crossing, the grades and general condition of the crossing, that the crossing was extrahazardous"; (2) periodically stopped railcars on the Smith Street crossing during hours of darkness, even though it knew or should have known that it was "difficult for a motorist to see a rail car parked at the crossing during the hours of darkness an adequate distance back from the crossing to safely stop before striking the parked rail car"; and (3) failed to maintain the crossing in such a condition that a motorist's attention would not be unnecessarily diverted and motorists would not be unnecessarily distracted, and "in such a manner that a motorist would not receive the false illusion that a train was not blocking the crossing," with the result that in violation of "Ill. Rev. Stat., ch. 114, Section 62, a motorist could not safely cross the crossing during hours of darkness."

Count VI, also a survival action, alleges that B&O negligently committed the same violations of the ICC rules with respect to the Smith Street crossing stated in count II.

Count VII, a wrongful death action, alleges that B&O was negligent for all the reasons stated in count V. Additionally, it alleges that B&O was negligent in that (1) B&O's train crew failed to give an audible warning of the pending movement of the train with which decedent collided and failed to exercise an adequate lookout prior to starting the train, notwithstanding that decedent was still alive, potential rescuers were at the scene and the crew in the exercise of ordinary care should have known that a collision with the train or some other unusual event had occurred at the Smith Street crossing; (2) the train crew in the caboose failed to exercise an adequate lookout forward prior to starting the train, and (3) it "failed to post a flagman and ignite flares at the rear of the stopped train."

Count VIII, also a wrongful death action, alleges that B&O negligently committed the same violations of the ICC rules with respect to the Smith Street crossing alleged in count II.

Sections 2-615 and 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 2-615, 2-619) each provide a procedure for dismissal of causes prior to trial. Depositions may not be considered in ruling on a section 2-615 motion, but may be considered in acting on a section 2-619 motion to dismiss. See Ill. Ann. Stat., ch. 110, par. 2-619, at 662 (Smith-Hurd 1983); Premier Electrical Construction Co. v. La Salle National Bank (1983), 115 Ill. App. 3d 638, 450 N.E.2d 1360; see generally Gaudynski v. Corbett (1980), 81 Ill. App. 3d 910, 401 N.E.2d 1218.

B&O did refer to a portion of a deposition of Thomas Berns in its motion to dismiss the Dunns' second-amended complaint, and did file an affidavit in support of that motion. B&O's motion to dismiss the Dunns' third-amended complaint adopts the objections stated in B&O's motion to dismiss the Dunns' second-amended complaint. These actions would support a Conclusion that B&O's motion to dismiss the Dunns' third-amended complaint was intended as a section 2 -- 619 motion. On appeal, however, B&O has done an about-face and insists, both in its motion to strike the Dunns' brief, and in its brief, that its motion to dismiss was a section 2 -- 615 motion. B&O does not refer to any affidavits or depositions in its appellate brief.

Whether to proceed by means of a section 2 -- 615 or a section 2 -- 619 motion to dismiss is the defendant's prerogative. Furthermore, a complaint must stand or fall on the basis of the allegations contained therein. At the motion to dismiss stage of the proceedings, the only function of affidavits and depositions from a plaintiff's perspective is to rebut any affidavits and depositions filed by the defendant if the defendant elects to proceed by means of a section 2 -- 619 motion. Affidavits and depositions may not be utilized to remedy deficiencies in the counts of a complaint which do not state causes of action. Since B&O has elected to have its motion to dismiss considered as a section 2 -- 615 motion, depositions may not be considered in determining whether the circuit court properly allowed this motion. We do not, however, find that the references to deposition testimony contained in the Dunns' brief are so intertwined with the remaining contents of the brief that their inclusion cannot be remedied by striking them from the brief. We therefore strike from the Dunns' opening brief all references to deposition testimony, but deny B&O's motion to strike that brief in its entirety.

We must next consider B&O's contention that the Dunns have waived their arguments that various counts of their complaint state causes of action by failing to specifically address those counts in their opening brief. To this contention the Dunns respond that a circuit court's dismissal order must be deemed to be based on the defendant's motion to dismiss. They point out that a contrary ruling would have the effect of denying a litigant the opportunity to cure a defective complaint at the circuit court level to the extent that defects in the complaint are argued for the first time on appeal. They contend that they adequately argued the issue of "special circumstances" imposing a duty to warn of a stopped train at a railroad crossing in their initial brief, which they assert is the only contention raised in B&O's motion to dismiss which goes to the effectiveness of their entire third-amended complaint to state a cause of action.

Where, as here, the circuit court specifies no reasons for its dismissal of a complaint, every issue raised in the motion to dismiss and argued on appeal must be considered on review. (Doner v. Phoenix Joint Stock Land Bank (1942), 381 Ill. 106, 112, 45 N.E.2d 20, 23; Powell v. Village of Mt. Zion (1980), 88 Ill. App. 3d 406, 410 N.E.2d 525.) Generally, failure to raise a point in a party's opening brief results in waiver of that point for purposes of appeal. (107 Ill. 2d R. 341(e)(7).) We perceive no reason why this rule should not be applied to an appeal of a circuit court order which dismisses a complaint without specifying reasons for the dismissal. Orderly appellate procedure requires that under such circumstances counsel for the appellant argue in its opening brief each issue raised in the opposing party's motion to dismiss. This requirement does not impose any great burden on counsel for the appellant, since counsel will almost always have prepared for use in the circuit court proceedings arguments with respect to all points raised in the opposing party's motion to dismiss.

In their opening brief, the Dunns presented extensive argument concerning, inter alia, a railroad's duty where a grade crossing is ultrahazardous or more than ordinarily dangerous, a railroad's burden of pleading and proof with regard to the visibility to motorists of a railcar standing in a grade crossing, and what constitutes special circumstances requiring warning to motorists of the presence of a railcar in a grade crossing. The Dunns also attempted to distinguish various cases relied upon by B&O in the circuit court proceedings. Moreover, they argued that the traditional rule pertaining to cases of this kind is inconsistent with the doctrine of comparative negligence and that whether violations of the ICC rules stated in their complaint proximately resulted in the decedent's injuries and death, and damage to decedent's property, is a question for the trier of fact to determine. For these reasons, we conclude that the propriety of the circuit court's dismissal of count V, and of count VII except for subparagraphs 6.D. and 6.E. thereof, of the Dunns' third-amended complaint, premised on ...


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