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November 23, 1994



Released for Publication January 13, 1995. As Corrected January 24, 1995.

Murray, Gordon, McNULTY

The opinion of the court was delivered by: Murray

PRESIDING JUSTICE MURRAY delivered the opinion of the court:

On August 12, 1980, in an attempt to retrieve a ball, the plaintiff's decedent, 11-year-old Marcos Arroyo, Jr., climbed onto the Chicago Transit Authority's (CTA) elevated structure, on the Douglas Line at approximately 1709 West 19th Street. The decedent came into contact with the third rail and was immediately electrocuted. Plaintiff filed a complaint alleging a cause of action for wrongful death.

On January 6, 1981, plaintiff served the statutory notice of intent to sue upon the CTA. Thereafter a lawsuit was filed in the circuit court of Cook County. Said lawsuit was voluntarily dismissed by the plaintiff on August 14, 1986. The present case was refiled on August 11, 1987.

On July 7, 1989, pursuant to Illinois Supreme Court Rule 220, interrogatories were propounded upon the plaintiff. On July 22, 1992, the trial court entered an order setting the cause for trial on January 11, 1993. The order also provided: (1) Plaintiffs shall disclose Rule 220 experts by August 15, 1992, and shall provide defendant with the expert's opinions and the basis therefore by August 25, 1992; (2) plaintiff's experts shall be deposed by September 30, 1992; (3) Defendant shall identify 220 experts by September 20, 1992, answer 220 interrogatories by October 10, 1992, and produce experts for deposition by November 10, 1992.

On December 7, 1992, plaintiff's counsel presented a motion seeking leave to disclose an unidentified expert witness. After argument, the trial court denied the request. However, before an order was entered the court allowed plaintiff's counsel to withdraw the motion. On December 18, 1992, defendant's counsel received, via facsimile transmission, plaintiff's emergency motion to continue the trial. The plaintiff's basis for the continuance was the plaintiff's desire "to conduct additional depositions of C.T.A. employees in order to fully prepare for trial and receive a response to a Supplemental Request for Production before beginning trial." The motion further indicated that plaintiff's counsel had recently learned "that Augustine Arroyo, the only locatable eyewitness to the accident is presently in Mexico and is not scheduled to return until May, 1993." In an affidavit attached to the motion, plaintiff's counsel stated that the only other eyewitness, Alberto Ortega, had since married and moved from the area and had failed to stay in contact with the Arroyo family. The trial court continued the trial date to March 17, 1993.

On January 15, 1993, plaintiff filed answers to rule 220 interrogatories naming an expert to testify as to "the design of the support columns of the elevated structure at the location of the occurrence and the lack of warnings with respect to the presence of the third rail." The CTA filed an emergency motion to bar the plaintiff's purported Rule 220 expert. In their motion, the CTA alleged that plaintiff's counsel had indicated that the reason for the previous trial continuance "was not for the purposes of obtaining or disclosing a Rule 220 expert, but the purpose of continuing the trial was to attempt to locate a witness" and that defendant's counsel stated he would not object to a trial continuance but that he would object to the plaintiff attempting to disclose a Rule 220 expert. In response, plaintiff's counsel indicated that he had no illicite motive in bringing the motion for continuance and that subsequent to the granting of the continuance for good cause, plaintiff's counsel had sufficient time to disclose an expert in accordance with Rule 220 and after reflection did so in a timely manner. The defendant's motion to bar plaintiff's expert was granted.

On January 25, 1993, plaintiff filed a motion to overrule objections and to compel discovery. The trial court denied the motion to compel with two exceptions.

On March 10, 1993, plaintiff filed an additional emergency motion to continue trial, once again citing as the basis the fact that decedent's brother was unavailable. The motion further indicated that Alberto Ortega had married, moved from the area and was unavailable. The matter was assigned to trial on March 18, 1993.

At trial, Alberto Ortega testified to the circumstances under which the decedent came into contact with the third rail. Mr. Ortega testified that he had never before climbed the CTA's elevated structure, that he had never before observed the decedent climb the structure, and that he had no knowledge of the presence of an electrified third rail. Mr. Ortega also testified that his family knew where he was living during the past couple of years.

The decedent's father testified that although the elevated structure and trains were visible from his home, he conceded that he had never before warned his children about the danger of climbing up the structure onto the tracks. After denying any knowledge of the danger of the trains, decedent's father admitted that he never imagined his son would climb up on the tracks. He had never before seen anyone climb up the pillars supporting the elevated structure.

Edmund J. Enright was a captain with the Chicago Fire Department when he was assigned to investigate an electrocution on the 19th Street elevated structure. When he arrived at the scene he observed that the area had been secured by CTA personnel, noting that the original fireman who had arrived at the scene did not possess a ladder which was high enough to reach the elevated structure, and that access was gained by using ladders from nearby rooftops.

David Josetti testified that he had been employed by the CTA for 25 years, 21 as a motorman. He was operating a northbound Douglas "B" train at the time he discovered the body of the decedent on the tracks. The bulk of Josetti's career as a CTA motorman was spent operating trains on the Douglas line. The incident at issue in the present case was the only such incident of which Josetti was aware.

A pathologist testified that the cause of decedent's death was electrocution. The plaintiff called a series of present and former CTA employees as witnesses to testify on various aspects of the operation of the Douglas and other elevated lines.

Decedent's mother testified that she had never seen her son nor any other children climbing on the elevated structure in front of their home. Conceding the fact that she and her family lived in close proximity to the "El", she denied any knowledge of the danger. She testified that she never told her son not to go up where the trains were running because she never imagined that someday he might go up. Mrs. Arroyo denied that in April or May of 1980 she had been called ...

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