A possessor of land is subject to liability for physical harm caused to his invitees by a condition of the land if, but only if, he:
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
Id. at 557.
In 1984, eight years after the Fancil decision, the Illinois legislature passed the Premises Liability Act, Ill.Rev.Stat. ch. 80, PP301 et. seq. Paragraph 302 of the Act states:
The distinction under the common law between invitees and licensees as to the duty owed by an occupier of any premises to such entrants is abolished. The duty owed to such entrants is that of reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them.
Neither party cited the Premises Liability Act nor argued that its standard of care, rather than the standard articulated in Fancil, applies. In Hedberg v. Mendino, 218 Ill. App. 3d (2d Dist. 1991), a factually similar case in which a policeman sued a property-owner, the Illinois appellate court disregarded the Premises Liability Act and analyzed a motion to dismiss with the understanding that Fancil provided the standard of care.
The present motion would be denied under either the standard codified in the Premises Liability Act or the standard announced in Fancil. If the Premises Liability Act's "straight reasonableness" standard applied, the court would find that summary judgment should be denied on the grounds that the fact-finder should decide whether the right-of-way was reasonably maintained. The parties should be apprised, however, that this court will have to choose between the two articulations of the Defendants' duty at trial prior to instructing the jury. For purposes of this motion, the court will assume, as did the parties and the Hedberg court, that the Fancil articulation applies.
Defendants argue that the danger presented by the derailer was not "an unreasonable risk of harm" and that therefore, under Fancil, they owed Sartori no duty. That argument mixes up two separate questions, however. The first question, a question of law, is whether a duty is owed. The answer to that question is clear. Defendants owe Sartori the same duty that they would owe an invitee. See Fancil. The second issue is whether that duty was breached. Under Fancil, the duty is breached when inter alia an unreasonable risk that the landowner knew or should have known about causes an injury to an invitee.
Based on the factual record, this court can not conclude as a matter of law that the risk was not unreasonable. Sartori has presented admissible evidence that the spur track was not maintained and that the derailer was concealed by vegetation. The trier of fact should determine whether the risk was unreasonable or not.
Defendants also argue that they are not liable because Sartori should have discovered the hazard. They point to his general familiarity with railroads and his prior experience on the right-of-way on which the injury occurred. Sartori counters that the hazard of the derailer was not a danger he should have known about because the derailer was hidden in vegetation in an area maintained so as to appear that no equipment would be present. In addition, Sartori presents evidence that the derailer was not well painted. Consequently, the court can not rule as a matter of law that Sartori knew or should have known of the risk. That is another question for the trier of fact.
Finally, Defendants argue that tripping over a piece of railroad equipment while pursuing fleeing suspects through a railroad yard is a risk inherent in police work and that therefore they are not liable. The Fancil Court had ruled that possessors of land are not liable for injuries sustained by police officers due to risks inherent in police work. In Fancil, a police officer's widow sued a store for failing to illuminate adequately the exterior of the store. The policeman was ambushed and killed by burglars who were lurking in the shadows. The Illinois Supreme Court ruled that the store owners were not liable for the killing which it deemed a risk inherent in police work.
The Court wrote:
The risk to which the decedent was subjected because of the conditions which existed upon the defendant's premises was the same risk which every police officer encounters while conducting security checks in both residential and commercial areas. The danger of being ambushed by criminals lurking in poorly illuminated areas, in shadows or behind objects is a risk inherent in the occupation. Hence, the danger to which the decedent was subjected was not an unreasonable risk for a police officer.
Id. at 558.
Defendants' theory that tripping while chasing suspects is a risk inherent in police work expands the "inherent risk" theory too far. Otherwise the "inherent risk" exception would swallow the rule that possessors of land owe police officers the duty owed to invitees. Every injury a police officer suffers while on duty could be characterized as inherent in the job. Thus, Fancil's "inherent risk" exception must be limited to risks and dangers which created the police officer's response. For example, if Sartori had been assigned to inspect the railroad to determine whether the equipment was maintained safely, then tripping over a concealed derailer would be considered an "inherent risk."
The appellate court in Hedberg v. Mendino, 218 Ill. App. 3d 1087, 161 Ill. Dec. 850, 579 N.E.2d 398 (2nd Dist. 1991), reached the same conclusion on the scope of the "inherent risk" exception although it spoke in terms of assumed risk. In Hedberg, a police officer responded to a call regarding a prowler on someone's home. The policeman was injured when he came upon a depressed and defective portion of the sidewalk leading to the property. The Hedberg court emphasized that the policeman was on the property to investigate a prowler and not to investigate the sidewalk, observing that "the injury arose from a cause independent of the reason plaintiff was called to the premises." Id. at 1091. The court rejected the reasoning of Rosa v. Dunkin' Donuts, 122 N.J. 66, 583 A.2d 1129 (N.J. 1991), which held the distinction between the negligence that occasions the officer's presence on the scene and the negligence causing the injury to be artificial, and ruled that the policeman had not assumed the risk of injury posed by the defective sidewalk. See also Court v. Grzelinski, 72 Ill.2d 141, 148, 19 Ill. Dec. 617, 379 N.E.2d 281 (landowners have a duty of reasonable care to prevent injury to firemen which might result from a cause independent of the fire, but no duty to prevent injury resulting from the fire itself).
Defendants' motion for summary judgment is denied.
BRIAN BARNETT DUFF, JUDGE
UNITED STATES DISTRICT COURT