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03/29/89 Arley Dunn Et Al., As Co v. the Baltimore & Ohio

March 29, 1989





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

537 N.E.2d 738, 127 Ill. 2d 350, 130 Ill. Dec. 409 1989.IL.431

Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Douglas County, the Hon. Arthur F. Powers, Jr., Judge, presiding.


JUSTICE STAMOS delivered the opinion of the court. WARD and CALVO JJ., took no part in the consideration or decision of this case.


On October 29, 1983, at approximately 9:30 p.m., Lyle E. Dunn, operating a motorcycle, collided with the side of a railroad car stopped at a crossing and was killed. His parents, Arley Dunn and Nada Lou Dunn (plaintiffs), filed an eight-count third amended complaint against defendant Baltimore & Ohio Railroad Company, alleging negligence and wilful and wanton conduct. The circuit court of Douglas County allowed defendant's motion to dismiss the third amended complaint and dismissed the complaint with prejudice. The appellate court, one Justice Dissenting in part, affirmed in part and reversed in part, and remanded with directions. (162 Ill. App. 3d 97.) We granted defendant leave to appeal. Plaintiffs have cross-appealed. We granted leave to the Illinois Association of Defense Trial Counsel to file an amicus curiae brief in support of the defendant's position. For the reasons that follow, we affirm in part and reverse in part. I. PROCEDURAL BACKGROUND

In the circuit court, defendant filed a "Motion to Strike and Dismiss and in the Alternative Motion for Judgment on the Pleadings." The motion was directed to plaintiffs' second amended complaint and was supported by argument and citation to authority. Apparently, oral arguments were heard on the motion. Subsequently, at the request of the circuit court, the parties submitted briefs. The circuit court dismissed the second amended complaint, expressly adopting as its reasons for dismissal "the reasoning set forth in defendant's brief."

Plaintiffs were given leave to file a third amended complaint, which differs from the previous complaint only in certain immaterial respects. Defendant filed a motion to dismiss the third amended complaint. In support of the motion, defendant briefly summarized the arguments it had made previously, and further stated that "the Third Amended Complaint suffers from every defect previously set forth in the Second Amended Complaint and should be dismissed with prejudice." After hearing arguments on the motion, the circuit court allowed the motion to dismiss and dismissed the third amended complaint with prejudice. No reasons for the dismissal were given.

The appellate court ruled, and we agree, that defendant in its motion to dismiss the third amended complaint (motion to dismiss) incorporated by reference its motion to dismiss the second amended complaint. In this court, plaintiffs repeatedly suggest, particularly on the issue of whether they waived certain alleged errors, that they had no way of knowing what issues to address in the appellate court because defendant's motion to dismiss was "general and non-specific." It is clear from the procedural history of the motion that we have set out, that the motion was extensively briefed and argued by the parties in the circuit court. Thus plaintiffs' contention lacks merit. II. THE COMPLAINT

Each count of the third amended complaint (complaint) alleges that plaintiffs' decedent was operating a motor vehicle in a northerly direction across the Smith Street crossing of the defendant's tracks in Newman, Illinois, when his vehicle collided with a stopped train operated by defendant. According to the complaint, decedent was unable to see the train "until it was too late to avoid the collision due to one or more of the acts set forth hereinafter or a combination thereof." Various counts of the complaint also allege that after the collision, decedent was still alive, and that thereafter, defendant negligently, or wilfully and wantonly, started the train, running over decedent and killing him. Four of the counts are survival actions, and four are wrongful death actions. The opinion of the appellate court sets forth in detail the substantive allegations of each count, which we will repeat only to the extent necessary to explain our Disposition. III. ANALYSIS

A. Counts I-IV

Counts I through IV allege wilful and wanton conduct on the part of defendant. The appellate court affirmed the dismissal of these counts, holding that plaintiffs' "utter failure to present any written argument on appeal pertaining to the question of whether these counts contain legally sufficient factual allegations of wilful and wanton misconduct has resulted in the waiver of any error in the circuit court's dismissal of these counts." (162 Ill. App. 3d at 106.) After examining the briefs filed in the appellate court, we reach the same Conclusion. Contrary to plaintiffs' position, defendant's motion to dismiss, as well as its brief filed in support of the motion, clearly challenged the legal sufficiency of the wilful and wanton counts. Accordingly, we affirm the appellate court's ruling affirming the circuit court's dismissal of counts I through IV.

B. Counts V and VII

In count V, a survival action, plaintiffs allege that because of various acts of negligence on the part of defendant, particularly the failure to warn, decedent was unable to see the stopped train until it was too late to avoid the collision. In count VII, a wrongful death action, plaintiffs make the same allegations, and further allege that defendant was negligent in starting the train after the initial collision in that defendant should have discovered that a collision or some other unusual event had occurred. With the exception of one allegation, subparagraph 6.F of count VII, the appellate court affirmed the dismissal of counts V and VII.

1. Failure to Warn

We first address the alleged negligence with respect to the initial collision. The parties correctly focus on the issue of a railroad's duty to motorists approaching a standing train at a crossing. Illinois courts have followed the longstanding rule that a train stopped at a crossing is generally held to be adequate notice and warning of its presence to any traveler who is in the exercise of ordinary care for his own safety, and the railroad is under no duty to give additional signs, signals or warnings. See Petricek v. Elgin, J. & E. Ry. Co. (1959), 21 Ill. App. 2d 60, 65 (and cases cited therein); see also Langston v. Chicago & North Western Ry. Co. (1947), 398 Ill. 248, 255.

The exception to the general rule is that more warnings may be required if "special circumstances" are present. There is no fixed rule as to what constitutes special circumstances. Circumstances which courts have recognized as "special" or "extraordinary" include a blinding snowstorm (Petricek, 21 Ill. App. 2d 60) and malfunctioning warning lights which erroneously indicated that the crossing was clear (Langston, 398 Ill. 248). In contrast, it has been held that darkness, heavy fog and poor visibility do not constitute special circumstances. Bachman v. Illinois Central R.R. Co. (1971), 132 Ill. App. 2d 277.

In discussing the rule and its exception, the court in Petricek explained that because of the blinding snowstorm, plaintiff could not see the standing train. Therefore it did not serve as a warning or notice to him of the train's presence, and the general rule did not apply. (21 Ill. App. 2d at 66.) The court emphasized that perceptibility is an important element in the general rule, and implicitly held that if the train is not perceptible to one exercising ordinary care, the railroad may be liable. Plaintiffs in the case at bar contend that the Petricek court's emphasis on perceptibility shows that the Illinois law on this subject has somehow been modified. We disagree. The court in Petricek, after reviewing prior Illinois decisions, clearly stated that "one cannot recover for driving his automobile into a train standing across a crossing, except under extraordinary or unusual circumstances." 21 Ill. App. 2d at 66.

Plaintiffs' principal contention is that the traditional common law rule stated in Petricek is inconsistent with the doctrine of pure comparative negligence adopted in Alvis v. Ribar (1981), 85 Ill. 2d 1. This is so, according to plaintiffs, because under the traditional rule, a plaintiff is barred from any recovery if he was negligent in failing to discover the stopped train, yet under comparative negligence principles, a plaintiff's recovery is only reduced to the extent his negligence caused the injury. It follows, plaintiffs contend, that a railroad has a duty to provide warnings sufficient to alert the negligent motorist of the presence of the stopped train. Plaintiffs also contend that even if the traditional rule applies, they have sufficiently pleaded the existence of special circumstances.

Defendant contends that the doctrine of comparative negligence does not expand or otherwise alter a railroad's duty, and that plaintiffs' complaint fails to allege the existence of special circumstances.

We turn now to an examination of the specific allegations of counts V and VII. Subparagraphs 6.A, 6.B, and 6.C of both counts V and VII allege that the ...

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