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HARRISON v. BURLINGTON N. R.R. CO.

August 21, 1990

CHERYL HARRISON, as Administrator of the Estate of Jennifer Harrison, Deceased, CHERYL HARRISON, as Guardian for Ryan Harrison, a minor, and CHERYL HARRISON, Individually, Plaintiff,
v.
BURLINGTON NORTHERN RAILROAD COMPANY, a Delaware corporation, Defendant


James B. Moran, United States District Judge.


The opinion of the court was delivered by: MORAN

JAMES B. MORAN, UNITED STATES DISTRICT JUDGE

 On June 14, 1987, according to plaintiff Cheryl Harrison ("Harrison"), the automobile in which her daughter, Jennifer Harrison ("Jennifer"), was riding as a passenger was struck by a train operated by defendant Burlington Northern Railroad Company ("Burlington"). Both Jennifer and the driver of the automobile, Jacqueline Hughes ("Jackie"), died from injuries sustained in the collision. Harrison, as the administrator of Jennifer's estate and the representative of Jennifer's heirs, filed a three-count complaint in federal court, seeking, in count I, damages suffered by Jennifer's heirs as a result of her allegedly wrongful death; in count II, compensation for personal injuries suffered by Jennifer and for property damage expenses incurred by her estate; and in count III, punitive damages based on Burlington's allegedly willful and wanton misconduct. In an earlier opinion, this court granted Burlington's motion to dismiss count III, holding that punitive damages are not recoverable under either the Illinois Wrongful Death Act or the Illinois Survival Act. Harrison v. Burlington Northern Railroad, No. 88 C 2193 (N.D. Ill. February 10, 1989). Now before this court is Burlington's motion for partial summary judgment with respect to count II of Harrison's complaint. For the reasons set forth below, that motion is granted.

 FACTS

 On July 14, 1987, a vehicle driven by Jackie Hughes was struck by a train as it was crossing the Harmony Road railroad crossing in Ogle County, Illinois. The westbound train hit the automobile, which was travelling north on Harmony Road, on the passenger side. The force of the accident catapulted the car from Harmony Road in a northwest direction; it ultimately landed approximately 22 feet north of the railroad tracks and 65 feet west of Harmony Road. As a result of the impact, Jackie and a passenger, Jennifer Harrison, who was sitting in the right front seat, were both thrown from the car. Jennifer was found west of the car and approximately 29 feet north of the railroad tracks. Jackie was also found west of the car but farther north, closer to a fence separating an adjoining campground and approximately 60 feet north of the railroad tracks *fn1" (plaintiff's exhibit 10 (diagram of accident scene)).

 Among the first witnesses to arrive on the scene were Cathleen Gyrion ("Gyrion"), Timothy Arlowe ("Arlowe"), and Kimberly Baker ("Baker"), who each saw only one of the two victims; the parties contest, however, which victim these witnesses encountered. Shortly after the accident, Brian Mueller ("Mueller"), a paramedic, arrived on the scene and rendered aid to Jennifer. He was joined by Michael Miller ("Miller") and Dan Fichtner ("Fichtner"), who arrived at the scene in an ambulance. *fn2" Jennifer was then transported to KSB Hospital in Mt. Morris ambulance 1 F 35. Jackie was treated initially by Virginia Sheets ("Sheets"), a nurse who arrived on the scene just after Mueller. Before being transported to the hospital in a Polo ambulance, Jackie was treated by several other paramedics who arrived shortly after Sheets.

 DISCUSSION

 Count II of Harrison's complaint asserts that Jennifer sustained serious injuries as a result of Burlington's negligence, causing profound pain and suffering, and that Jennifer's estate incurred significant expenses, including medical, funeral, estate administration, and legal fees. These damages, count II continues, are compensable under the Illinois Survival Act, Ill. Rev. Stat. ch. 110 1/2, § 27-6 (1989). Burlington argues in its motion for summary judgment that Harrison cannot affirmatively prove any of the asserted damages and, accordingly, no rational trier of fact could find for Harrison on this count.

 1. Damages for Pain and Suffering

 Since 1974, Illinois has recognized an action for conscious pain and suffering, in addition to one for wrongful death, where an injured party dies as a result of his injuries. Murphy v. Martin Oil Co., 56 Ill. 2d 423, 308 N.E.2d 583 (1974); In re Air Crash Disaster Near Chicago, Illinois, MDL 391, 507 F. Supp. 21, 23 (N.D. Ill. 1980). To recover damages, however, a plaintiff must prove that the decedent actually and consciously suffered pain before death; where the death is instantaneous or where the decedent is rendered immediately unconscious, an action for pain and suffering cannot be sustained. See In re Air Disaster, 507 F. Supp. at 24; Maras v. Bertholdt, 126 Ill. App. 3d 876, 890, 467 N.E.2d 599, 609, 81 Ill. Dec. 728 (2d Dist. 1984). Moreover, during the alleged period of consciousness after the injury, "the evidence . . . must make more than speculative the conclusion that decedent was conscious and suffered pain." Maras, 126 Ill. App. 3d at 890-91, 467 N.E.2d at 609-610; Bart v. Union Oil Co. of California, 185 Ill. App. 3d 64, 68, 540 N.E.2d 770, 773, 132 Ill. Dec. 848 (3d Dist.), appeal denied, 128 Ill. 2d 661, 548 N.E.2d 1066 (1989); In re Air Crash, 507 F. Supp. at 24.

 Burlington does not offer direct proof that Jennifer died or lost consciousness immediately. It does establish, however, that by the time the first paramedic, Brian Mueller, appeared on the scene, Jennifer was unconscious (see Mueller dep. at 29), and she never regained consciousness (see id.; Fichtner dep. at 24-25; Miller dep. at 30; Deets dep. at 10, 13; Tannenbaum dep. at 12). Mueller, who was off duty at the time of the accident and swimming at a nearby campground, went to the scene of the accident in response to a call for medical personnel over the campground's public-address system; he estimates that he first saw Jennifer five to seven minutes after hearing the announcement (Mueller dep. at 15). It is unclear how much time lapsed between the accident and the public-address announcement, but in any event, any possible period of consciousness during which Jennifer might have suffered pain from her injuries ended five to seven minutes after this announcement was broadcast.

 This mere possibility is not alone enough to defeat Burlington's motion, for it can only support a speculative conclusion of conscious pain and suffering. The record reveals additionally, however, that several witnesses claim to have heard an injured woman say "my baby" or "where is my baby" while trying to sit up (see Gyrion dep. at 22; Arlowe dep. at 84, 86, 89-90; Baker dep. at 64; Sheets dep. at 15). This evidence certainly suggests that at least one of the two victims was conscious following the accident, but again, without more, the conclusion that it was Jennifer, and not Jackie, that spoke those words is too speculative to sustain a pain and suffering count. See Stanford v. McLean Trucking Co., 506 F. Supp. 1252 (E.D. Tex. 1981) (evidence too speculative where a bystander heard a scream emanating from inside a car containing three passengers but it was impossible to identify the actual screamer). *fn3"

 But there is more. At the time of the accident, Jackie was seven months pregnant and had a one-year-old son. By contrast, Jennifer was not pregnant, had no children, and had never been married (defendant's 12(l) statement paras. 15, 16). Although this court does not believe that a non-pregnant, single woman with no children could never utter "my baby," we consider the evidence of Jackie's pregnancy and motherhood to render most plausible the conclusion that it was Jackie who was heard to speak and highly speculative the conclusion that it was Jennifer. Witnesses who heard this utterance, moreover, clearly understood it as a reference to an actual infant rather than as a neutral exclamation or expletive blurted under the stress and excitement of the situation. Witness Cathleen Gyrion's reaction upon hearing the injured woman say "my baby" was to panic "because it was a bad accident and I didn't want to see a baby" (Gyrion dep. at 22). The victim's words prompted witness Timothy Arlowe to go to the car to look for a baby who he thought might be there (Arlowe dep. at 93). Similarly, witness Kimberly Baker indicated that bystanders at the scene were concerned about the possibility that a baby was involved in the accident because "she [the victim] had mentioned a baby" (Baker dep. at 66).

 That it was Jackie and not Jennifer who spoke after the accident is bolstered further by the testimony of those who heard her speak. Most directly attributing the words to Jackie is the testimony of Virginia Sheets, who heard the victim she was treating say, in a very quiet voice, "where is my baby?" (Sheets dep. at 15). Harrison concedes in her brief that Sheets treated Jackie ...


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