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03/30/95 RAYMOND J. ESPINOZA v. ELGIN

March 30, 1995

RAYMOND J. ESPINOZA, JR., ET AL., APPELLEES,
v.
ELGIN, JOLIET AND EASTERN RAILWAY COMPANY ET AL. (ELGIN, JOLIET AND EASTERN RAILWAY COMPANY, APPELLANT).



Chief Justice Bilandic delivered the opinion of the court:

The opinion of the court was delivered by: Bilandic

CHIEF JUSTICE BILANDIC delivered the opinion of the court:

The instant action arises from a collision between a pickup truck driven by Randy Anderson and a freight train owned and operated by the Elgin, Joliet and Eastern Railway Company (EJ&E). The plaintiffs, Raymond J. Espinoza, Jr., and Michelle Kolasinski, who were passengers in the truck, brought an action for negligence in the circuit court of Lake County against EJ&E. The trial court granted summary judgment in favor of EJ&E on all counts. The appellate court reversed the trial court (Nos. 2-93-0245, 2-93-0252 cons. (unpublished order under Supreme Court Rule 23)). We allowed EJ&E's petition for leave to appeal (145 Ill. 2d R. 315).

FACTS

On March 24, 1989, at approximately 1:21 a.m., a pickup truck owned and driven by Anderson was struck at a railroad crossing in North Chicago, Illinois, by a freight train owned and operated by EJ&E. The weather conditions at the time of the accident were dry and clear. Prior to the collision, Anderson had been traveling westbound on 22nd Street, which consists of two westbound and two eastbound lanes. The 22nd Street crossing is equipped with two sets of ground and overhead cantilever-mounted flashing light signals and a warning bell, which were functioning at the time of the accident. Additionally, the crossing has circular caution railroad signs and standard pavement railroad warning markings. There are no gates at the crossing. Upon approaching the intersection, Anderson observed red flashing warning lights and two other vehicles that disregarded the warnings. Anderson likewise disregarded the warning lights at the crossing. Anderson's pickup truck was subsequently struck by the EJ&E train on its left side behind the cabin area. Raymond Espinoza, Jr., who was riding in the bed of the pickup truck at the time of the collision, was seriously injured. Michelle Kolasinski, who was riding in the cab of the pickup truck, was fatally injured.

Raymond Espinoza, Jr., filed a complaint against Anderson and EJ&E alleging negligence. Sherri Kolasinski, individually, and James Kolasinski, individually and as administrator of the estate of Michelle Kolasinski, filed an amended complaint against Anderson and EJ&E, alleging negligence, and against other named defendants, alleging violations of the Illinois Dramshop Act. The dramshop defendants were subsequently dismissed with prejudice pursuant to a stipulation.

Following dismissal of the dramshop defendants, plaintiffs' joint motion to consolidate their respective complaints was granted. The consolidated complaints alleged inter alia that EJ&E carelessly and negligently (1) failed to apply the brakes of the train to avoid colliding with Anderson's vehicle; (2) operated the train without lighting the headlight on the locomotive so that the train was not visible in the nighttime to an ordinarily observant person; (3) failed to operate the whistle on the train so as to sound a warning of the approach of the train in a timely fashion; and (4) failed to install crossing gates at the crossing to block westbound vehicles from entering the crossing area.

EJ&E moved for summary judgment. The trial court ultimately granted summary judgment in favor of EJ&E on all issues and allegations. Plaintiffs appealed from the trial court's grant of summary judgment in favor of EJ&E on all counts. Anderson was not a party to the appeal.

The appellate court reversed the trial court's grant of EJ&E's motion for summary judgment and remanded the cause for further proceedings, finding that the record contained genuine issues of material fact regarding: (1) the EJ&E train crew's attempt to slow the train in order to avert a collision with the pickup truck; (2) the adequacy of the train's warning devices; and (3) the adequacy of the warning devices installed at the crossing. The appellate court held that the testimony of the EJ&E employees as well as Anderson raised material issues of fact as to whether EJ&E breached duties owed to the plaintiffs and whether those breaches may have been a or the proximate cause of the plaintiffs' injuries. The appellate court found that reasonable minds could differ as to whether the railroad is liable to the plaintiffs for injuries incurred in the incident. As stated, we granted EJ&E's petition for leave to appeal (145 Ill. 2d R. 315).

ANALYSIS

The sole issue before this court is whether the trial court properly granted summary judgment in favor of EJ&E. Our review is limited to examining the crew's actions in slowing the train prior to the collision, the adequacy of the train's warning devices, and the adequacy of the warning devices at the crossing.

As in all cases involving summary judgment, we conduct a de novo review of the evidence in the record. ( Outboard Marine Corp. v. Liberty Mutual Insurance Co. (1992), 154 Ill. 2d 90, 102, 180 Ill. Dec. 691, 607 N.E.2d 1204.) Specifically, the court must consider the affidavits, depositions, admissions, exhibits, and pleadings on file and must construe them strictly against the movant and liberally in favor of the nonmoving party. ( In re Estate of Hoover (1993), 155 Ill. 2d 402, 410-11, 185 Ill. Dec. 866, 615 N.E.2d 736; Outboard, 154 Ill. 2d at 131-32.) Summary judgment is appropriate when there is no genuine issue of material fact and the moving party's right to judgment is clear and free from doubt. ( Hoover, 155 Ill. 2d at 410; Outboard, 154 Ill. 2d at 102.) Although summary judgment is encouraged to aid the expeditious disposition of a lawsuit, it is a drastic means of disposing of litigation. ( Hoover, 155 Ill. 2d at 410; Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 95 Ill. Dec. 305, 489 N.E.2d 867.) Therefore, where reasonable persons could draw divergent inferences from the undisputed material facts or where there is a dispute as to a material fact, summary judgment should be denied and the issue decided by the trier of fact. Hoover, 155 Ill. 2d at 411; Pyne v. Witmer (1989), 129 Ill. 2d 351, 358, 135 Ill. Dec. 557, 543 N.E.2d 1304.

Plaintiffs here have alleged negligence on the part of EJ&E. To state a cause of action for negligence, the plaintiff must establish that the defendant owed a duty of care, that the defendant breached that duty, and that the plaintiff incurred injuries proximately caused by the breach. ( Wojdyla v. City of Park Ridge (1992), 148 Ill. 2d 417, 421, 170 Ill. Dec. 418, 592 N.E.2d 1098.) The existence of a duty is a question of law for the court to decide. ( Wojdyla, 148 Ill. 2d at 421; Ward v. Kmart Corp. (1990), 136 Ill. 2d 132, 140, 143 Ill. Dec. 288, 554 N.E.2d 223.) The issues of breach and proximate cause are factual matters for a jury to decide, provided there is a genuine issue of material fact regarding those issues. ( Thompson v. County of Cook (1993), 154 Ill. 2d 374, 382, 181 Ill. Dec. 922, 609 N.E.2d 290.) If the plaintiff fails to establish an element of the cause of action, summary judgment for the defendant is proper. Pyne, 129 Ill. 2d at 358.

With these principles in mind, we examine whether summary judgment is appropriate in the instant case.

I. Crew's Actions

The first issue before this court is whether a genuine issue of material fact exists regarding the EJ&E train crew's attempt to slow the train so as to avoid a collision with Anderson's vehicle. EJ&E argues that it did not breach any duty since the undisputed facts establish that the engineer operated the brakes in a reasonable manner under the circumstances. EJ&E claims it is "absurd and impractical" to require a train to apply its "emergency brakes each and every time a motorist violates the [train's] right of way."

A railroad has a duty to exercise due care to avoid a collision. (See Lee v. Grand Trunk Western R.R. Co. (1986), 143 Ill. App. 3d 500, 511-12, 97 Ill. Dec. 491, 492 N.E.2d 1364.) Although a train engineer is not required to anticipate and guard against the possibility that a motorist may disregard a warning and enter a crossing ( Dunn v. Baltimore & Ohio R.R. Co. (1989), 127 Ill. 2d 350, 366, 130 Ill. Dec. 409, 537 N.E.2d 738; Sheahan v. Northeast Illinois Regional Commuter R.R. Corp. (1991), 212 Ill. App. 3d 732, 737, 156 Ill. Dec. 816, 571 N.E.2d 796), the engineer is required to stop the train when it becomes apparent that the motorist has not heard or will not heed the signal given by the train. Robertson v. New York Central R.R. Co. (1944), 388 Ill. 580, 58 N.E.2d 527.

In this case, there is evidence in the record that raises a material issue of fact as to whether the train crew breached its duty to avoid a collision, thereby proximately causing the plaintiffs' injuries by its failure to apply the emergency brakes when it became apparent that Anderson would not heed the warning signals. This issue is evident in the statements made by various members of the EJ&E train crew during their respective depositions. The crew in the lead engine consisted of Donald Dipert, the conductor, Lee Wayne Syler, the engineer, and Donald Kolofa, the driver of the train.

All three crew members admitted to observing three vehicles, including Anderson's pickup truck, ignore operational warning signals at the 22nd Street crossing. Kolofa testified that he first observed the three vehicles approach the crossing when the train was 300 feet from the crossing. The first two vehicles were traveling alongside each other and Anderson's pickup truck followed behind them within seconds. Syler testified that the first two vehicles were traveling 25 to 30 miles per hour and did not stop prior to entering the crossing. Kolofa stated that he noticed the two vehicles cross the intersection and observed Anderson's pickup truck approach the intersection. According to Kolofa, ...


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