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03/28/96 CORA LEE RHODES v. ILLINOIS CENTRAL GULF

March 28, 1996

CORA LEE RHODES, AS SPECIAL ADM'R OF THE ESTATE OF CARL RHODES, DECEASED, APPELLEE,
v.
ILLINOIS CENTRAL GULF RAILROAD, 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 plaintiff, Cora Lee Rhodes, as special administrator of the estate of Carl Rhodes, deceased, brought this action in the circuit court of Cook County seeking damages for Carl's death from the defendant, Illinois Central Gulf Railroad (ICG). The plaintiff charged that ICG should be held liable for failing to provide assistance to Carl when he was found injured in an unmanned ICG train station. Following a trial, the jury found in favor of the plaintiff and awarded $1,568,000 in damages. The trial court entered judgment on the verdict. The appellate court affirmed. 268 Ill. App. 3d 589, 645 N.E.2d 298, 206 Ill. Dec. 293. We allowed ICG's petition for leave to appeal. 145 Ill. 2d R. 315. The Illinois Trial Lawyers Association was granted leave and filed a brief amicus curiae in support of the plaintiff. The Chicago Transit Authority was granted leave and filed a brief amicus curiae in support of the defendant. 134 Ill. 2d R. 345(a).

FACTS

The testimony at trial revealed that, at approximately 5 a.m. on Saturday, November 29, 1986, an ICG commuter train stopped to pick up passengers at 75th Street and Exchange Avenue in Chicago. The station at this stop is unmanned and consists of a "warming house," a room in which passengers may wait for the train. Raymond Deany, the conductor of the train, testified that a passenger boarding the train at this stop informed him that someone was lying in the warming house. In response, Deany and the collector, Casey Ziolkowski, left the train and stepped into the doorway of the warming house. Deany saw a man, later identified as Carl Rhodes, lying face down on the floor. Deany observed a "minute amount" of blood "smeared" on the floor around the man's head, but saw no blood on the man himself. Ziolkowski testified that he observed a man lying on the floor, but did not see any blood, either on or around the man. Ziolkowski testified that the man did not appear to be injured or in distress. He did not observe the man more closely to check for injuries because he was concerned he might have been injured or robbed by the man.

Deany and Ziolkowski returned to their train. In accordance with ICG procedure, Deany called on his radio to Lee Hastman, his "load supervisor," and reported that he had observed a man lying in the warming house with blood and that the man needed assistance. Deany testified that the man needed assistance to "get out of the warming house because he was not supposed to be there." Deany explained that he made his report because a man was sleeping in the warming house, an activity which ICG did not allow. Deany's train then continued on its way.

Cora Rhodes, Carl's mother, testified that the last time she saw Carl alive was at home at approximately 2:30 or 3 a.m. on November 29, 1986. He had been out with friends when he stopped back at home for a few minutes and then left again. Carl was then 18 years of age and in his first semester of college.

Eugene Owens, a long-time friend of Carl Rhodes, testified that he attended a party with Carl on the evening of November 28, 1986. Owens stated that Carl became "extremely intoxicated" and a "nuisance" at the party. At approximately midnight or 1 a.m., Owens was with Carl and several others at a gas station located at 79th and Yates in Chicago. Carl left the gas station with a man named Rod. When he left, Carl was carrying a significant sum of money and stated that he wanted to buy more alcohol. Owens testified that it is approximately one mile from the gas station at 79th and Yates to the ICG station at 75th and Exchange. There was also testimony that Carl's home was approximately one mile from the 75th Street station.

David Moore, another long-time friend of Carl, testified that he was with Carl and some other friends drinking alcohol on the evening of November 28, 1986. At some point, they went to Carl's house, where Carl obtained some money, which he told them was his financial aid money. The group then purchased more beer. In Moore's opinion, Carl became intoxicated. At approximately 1 a.m., Moore witnessed Carl and Eugene Owens get into an argument which led to a tussle between the two. Owens slapped Carl around and threw him on the hood of the car, causing Carl to bump his head. Moore last saw Carl at approximately 1:30 or 1:45 a.m. at the gas station. Carl refused to ride home with Moore and the others. In Moore's opinion, Carl was intoxicated at that time.

Rodney Latham, another long-time friend of Carl, testified that he first came upon Carl on November 29, 1986 at approximately 2 a.m. at the gas station at 79th and Yates. He and Carl began walking toward 79th and Crandon, the block on which they both lived. Latham testified that Carl was not staggering, and he could not tell if he had been drinking. While they were walking, a stranger came up and Carl asked the stranger if he knew where a liquor store was located. Carl and the stranger then walked away from Latham. No further evidence was introduced regarding Carl's whereabouts until he was discovered at 5 a.m. in the ICG warming house.

ICG load supervisor Lee Hastman testified that he received a report from conductor Deany's train at 5:02 a.m. of a man lying in the warming house. Hastman immediately transmitted this information to ICG police dispatcher Jerome Meehan. Meehan testified that he received Hastman's call at around 5 a.m. and that nothing in this report suggested that any serious illness was involved. In accordance with ICG procedure, Meehan immediately contacted the patrolman on duty, Mark Krull, via radio, and relayed the report. Krull was engaged in the task of opening ICG's Van Buren station and instructed Meehan to contact the Chicago police department. Meehan contacted the Chicago police department at 5:02 a.m. and relayed the report he had received from Hastman. As of that time, Meehan had never known the Chicago police to fail to respond when he called them for assistance.

Conductor Deany's train again stopped at 75th and Exchange at approximately 5:48 a.m. Collector Ziolkowski looked out from the train at this time and saw that the man was still lying in the warming house. Ziolkowski reported this to the train engineer, Lavonne Blaylock.

Conductor Deany's train next stopped at 75th and Exchange at about 6:40 a.m. Deany looked out the window and saw the man lying there. Deany called on his radio to load supervisor Hastman to report that the man was still there. Hastman told Deany that he had taken care of the situation.

At 7:56 a.m., a conductor from another train passing through the station called on the radio to report that a man was sleeping in the warming house. James Carpenter, the load supervisor now on duty, received the report and relayed the information to the ICG police dispatcher. Carpenter testified that the load supervisor's office receives a lot of reports of persons lying in warming houses and that such calls are a routine matter in the wintertime. ICG police dispatcher Nancy Wheeler confirmed that it was very common for ICG to receive reports of persons sleeping in the warming houses. If a person were found sleeping in a warming house, the ICG procedure was to have them removed, either by ICG police or the local municipality's police.

In response to Carpenter's call, dispatcher Wheeler called on the radio to ICG patrolman Richard Bilek, the patrolman then on duty. Bilek, however, was busy and instructed Wheeler to call the Chicago police department. Bilek testified that he had been engaged since the start of his 7 a.m. shift performing a number of his police duties, including providing security while ticket vending machines were serviced. After speaking to Bilek, Wheeler called the Chicago police and relayed the report. In Wheeler's experience, the Chicago police responded when ICG police requested assistance.

Chicago police officers David Gomez and John Gomez testified that they were dispatched to meet an ICG police unit somewhere in the vicinity of 75th Street, Exchange and Saginaw at approximately 8 a.m. They went to that location. It was their understanding that an ICG police unit was to meet them there, and finding no such unit, they left without entering the station. There was no evidence that anyone from ICG told the Chicago police that an ICG representative would meet the Chicago police at the station.

At 9 a.m., conductor Deany's train again stopped at the 75th and Exchange station. A passenger boarding the train informed Deany that a man was in the warming house who appeared to be sleeping and was snoring. Deany did not report this information by radio to the load supervisor because he had already reported the man twice. Collector Ziolkowski testified that, at the end of his shift at 9:30 a.m., he went into the load supervisor's office and asked him if anything had been done about the man lying in the warming house. Ziolkowski testified that he was "kind of surprised" and "curious" that the man was still there. Records indicated that an engineer from one of the commuter trains, possibly Blaylock, also relayed a report to load supervisor Carpenter at about this time. This report stated, referring to the man in the 75th and Exchange warming house, that the man and the floor were "covered" with blood. Carpenter testified that he immediately called the ICG police dispatcher and relayed this report.

Dispatcher Wheeler testified that she received a call from the load supervisor at approximately 9:44 a.m. of an injured person at the 75th Street station. In response, Wheeler immediately contacted patrolman Bilek and the Chicago police.

Patrolman Bilek was at the Randolph station when Wheeler contacted him at 9:44 a.m. Bilek immediately drove to the 75th Street station, arriving at 10:11 a.m. Upon entering the warming house, Bilek saw a man lying on a bench. Bilek attempted to awaken the man, and the man responded by sitting up on the bench with Bilek's assistance. Bilek noticed bruising and one or two cuts on the man's face and that his face was somewhat swollen. The facial cuts were not bleeding, and Bilek saw no blood on the man or on the floor or walls. Bilek saw beer cans lying near the man. Bilek, who had been employed as either a municipal or an ICG police officer since 1972, determined that the man was highly intoxicated because of the smell of alcohol on his breath and clothing.

Bilek asked the man if he had been beaten up or had fallen. The man responded slowly to Bilek, nodding and speaking in a groggy voice. Bilek believed that his manner of responding was consistent with being intoxicated. Bilek told the man that, because he was highly intoxicated, he was going to have him transported to the hospital. Bilek then radioed the ICG police dispatcher and asked her to send the Chicago police to transport the man to the hospital. Bilek waited with the man for the police, making sure the man did not injure himself. When two Chicago police officers arrived, Bilek and the officers attempted to awaken the man but could not do so. The three men carried the man to the police vehicle. Bilek's report of the incident indicated that the man was not "authorized on property" and that his condition was "highly intoxicated." The narrative portion of Bilek's report recounted that "subject had been drinking in station, fell a number of times injuring face, taken by Chicago police to Jackson Park Hospital for treatment."

Chicago police officers John Gomez and David Gomez testified that they arrived at the 75th Street station at 11:05 a.m. Bilek met them and led them to a man who was snoring heavily. Officer David Gomez saw five or six beer cans around the man and believed the man was intoxicated. Officer John Gomez stated that, according to his report, they were responding to a call about a "down drunk." His report indicated that the subject was intoxicated with no visible injuries other than small abrasions on his face. The narrative section of his report stated the man was "lying face up snoring heavily with empty and partially [sic] beer cans surrounding victim," and that the officers "observed minor abrasions of the face and transported to [Jackson Park] Hospital for treatment." The man had no money in his wallet.

Jackson Park Hospital records indicate that Carl was brought into the emergency room at 11:25 a.m. The records state that his face was swollen and bruised and there was discolored blood around his nose and eyelids. He was unresponsive and was snoring with gurgling respirations. Soon after his arrival, he stopped breathing and was intubated. Neurological tests indicated that he had suffered an injury to his brain. A "CT" (computerized tomography) scan was performed several hours later, the results of which showed a massive subdural hematoma (a collection of blood under the dura matter covering the brain) on the left side of his brain. However, the records reveal that Carl had no corresponding visible injury to the external surface of his scalp. Carl died the following day at Jackson Park Hospital.

Dr. Robert Kirschner, the pathologist who performed the autopsy on Carl's body, testified that the cause of death was a subdural hematoma, likely the result of an assault. According to Dr. Kirschner, a subdural hematoma such as this cannot be seen without opening the person's scalp. Carl's body revealed no injury to the external surface of the scalp.

Dr. Thomas Stilp, a neurosurgeon, testified as an expert for the plaintiff that Carl was in a coma when he reached the hospital emergency room, the cause of which was an acute subdural hematoma. Once Carl went into respiratory arrest, in Dr. Stilp's opinion, he was beyond being helped by any medical treatment. Dr. Stilp opined that, had Carl undergone surgery to relieve the hematoma while he was still communicating, he would more probably than not have had a "good recovery." Dr. Stilp agreed that Carl's head injury was a closed injury and that there was no injury present on the external surface of his scalp.

Dr. Marshall Matz, a neurosurgeon, testified as an expert for the defense that 60% to 75% of persons who sustain acute subdural hematomas do not survive, and of those that do survive, only a "small percentage" return to normal neurological function. Dr. Ron Lee, an emergency room doctor testifying as a defense expert, stated that it would be difficult to identify an intracranial injury, such as that suffered by Carl, without a medical examination. In Dr. Lee's opinion, based upon the injuries that were noted at the hospital and the description of Carl's condition given by the train crew, the train crew could not have known the severity of Carl's injury.

Mitch Markovitz testified for the defense as an expert regarding the appropriate conduct of commuter train crews in the Chicago area. Markovitz testified that, based upon his 25 years of experience in this area, it is common for conductors to learn that a person is lying or loitering in an unmanned warming house. The conductor and/or collector should report the matter, but should not try to awake or arouse the person, due to the possibility of being injured or robbed. In Markovitz's opinion, Deany and Ziolkowski acted correctly in their handling of the situation in this case. The evidence at trial also showed that the temperature in the early morning hours of November 29, 1986, was approximately 30 degrees Fahrenheit.

During the course of the trial, ICG argued that Carl was a trespasser on ICG's premises and that, as a result, ICG owed him only a duty to refrain from willfully and wantonly injuring him. The trial judge ruled that Carl's status as an invitee or a trespasser on ICG's premises was not relevant because the duty owed by ICG to Carl would be the same in either case--to exercise ordinary care for Carl's safety. The trial judge reached this conclusion by accepting the plaintiff's argument that, even if Carl was a trespasser, he fell into an exception to the general rule applicable where a trespasser is discovered by the landowner in a "place of danger."

Following the presentation of evidence and closing arguments, the jury was instructed that ICG had the duty "before and at the time of the occurrence, to use ordinary care for the safety of the plaintiff's decedent. That means it was the duty of the defendant to be free from negligence." The trial court further instructed the jury that, according to the plaintiff, ICG was negligent because it "observed the decedent lying injured on the property of the defendant but failed to further investigate or to provide assistance or attend to the decedent for an unreasonable period of time." Due to the trial judge's ruling on the invitee/trespasser issue, the jury was not required to decide the issue of Carl's status on ICG's ...


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