at 705; Bernier v. Illinois Cent. R.R. Co., 296 Ill. 464, 471,
129 N.E. 747, 750 (Ill. 1921); Restatement (Second) of Torts §
In the case sub judice, the first exception clearly does not
apply because Defendant never discovered Plaintiff. Defendant's
employees who were on the freight train at the time of
Plaintiff's accident (Timothy Roach, Leon Craighead, Jerry
Floyd, and Patrick Riley) all testified that they never saw or
heard Plaintiff on or near the vicinity of the tracks on August
4, 1995. Furthermore, Plaintiff admitted Defendant's undisputed
fact number 9 which stated: "It is undisputed that on August 4,
1995, none of the four crew members upon the N & W train saw or
heard Charles Reid upon the railroad tracks." Thus, Defendant
did not owe Plaintiff a heightened duty of care under the
discovered trespasser exception.
Likewise, the second exception does not apply. At the time of
his accident, Plaintiff was nearly 16 years of age. Thus, he
hardly qualifies as a small or a young child. Furthermore,
although Plaintiff was a minor at the time of his accident, the
Court cannot say that he was incapable of appreciating the
risks involved in walking on or in the vicinity of railroad
tracks. "Infants have no greater right than do adults to go
upon the land of another. Their minority, in and of itself,
imposes no duty upon an occupier of land to either expect them
or prepare for their safety." Mt. Zion Bank & Trust v. Consol.
Communications, Inc., 169 Ill.2d 110, 116, 660 N.E.2d 863, 868,
214 Ill.Dec. 156, 161 (1995).
The Court is confident in the conclusion that Plaintiff could
have and should have appreciated the risks involved in walking
near railroad tracks. He had been warned both by his parents
and in a seminar at his high school of the dangers involved in
being in the vicinity of the railroad tracks. Moreover, both
Plaintiff and his parents deemed him mature enough to have a
paper route and to travel throughout Springfield unsupervised.
Thus, based upon Plaintiff's age, abilities, and experience,
the Court finds that Plaintiff was capable of appreciating the
risks involved which allegedly led to his injuries.
Campbell v. Morine, 223 Ill. App.3d 678, 683, 585 N.E.2d 1198,
1202, 166 Ill.Dec. 176, 180 (1992).
Finally, whether the so-called "permissive use" exception
applies in Plaintiff's case is a closer question. Plaintiff has
the burden of establishing that the permissive use exception is
applicable to him. Rodriguez, 228 Ill. App.3d at 1040, 593
N.E.2d at 608, 170 Ill.Dec. at 719. Plaintiff states that
Defendant had constructive notice/knowledge of the fact that
people were constantly in the vicinity of and on the tracks
between Fifth and Sixth Streets in Springfield, Illinois.
Plaintiff has supported this claim by several affidavits from
persons who work and live in the area.
Furthermore, Plaintiff cites to the deposition testimony of
Jerry Floyd, Patrick Riley, and Timothy Roach who stated that
they had occasionally seen adults and children on that stretch
of railroad tracks. Therefore, Plaintiff argues that Defendant
had constructive notice/knowledge of the fact that pedestrians
regularly used the tracks between Fifth and Sixth Streets and
that Defendant owed him a heightened duty of care based upon
Defendant's permissive use of its property.
However, the Court finds that Plaintiff has not established
that the permissive use exception is applicable to him.
Illinois case law which has interpreted the permissive use
exception has stated that the trespasser must enter the
landowner's property in "a limited area." Lee, 152 Ill.2d at
446-47, 605 N.E.2d at 499, 178 Ill.Dec. at 705. Generally, when
the permissive use exception has been applied, the limited area
has been a path or a crossing used by the public for travel. "A
typical case is the frequent use of a `beaten path' that
crosses a railroad track, which is held to impose a duty of
reasonable care as to the operation of trains." Miller, 207
Ill. App.3d at 155-56, 565 N.E.2d at 691, 152 Ill.Dec. at 158
For example, the Illinois Supreme Court has found the
permissive use exception to be applicable where a retired
railroad worker was struck by a train while walking on the
railroad company's right of way along a well-traveled path used
by the railroad company's employees and the public. Morgan v.
York Cent. R. Co., 327 Ill. 339, 158 N.E. 724 (1927). Likewise,
the Fourth District has found that the exception applies where
a trespasser was injured while walking along a well-trodden
path used by the public, including school children, which was
located on a railroad company's right of way. McDaniels v.
Terminal R. Ass'n of St. Louis, 302 Ill. App. 332,
23 N.E.2d 785 (1939). Even the illustrations to the Restatement (Second)
of Torts § 334 establish that the permissive use exception
refers to a path for travel.*fn5 Illustration number three
states: "The A Railway Company has knowledge of the fact that
the inhabitants of the town of X have so persistently used a
part of the right of way parallel to its track as a means of
reaching their homes that they have worn a beaten path beside
the track." (emphasis added).
In the instant case, Plaintiff has not established a
permissive use in a "limited area." Plaintiff does not allege
that he was injured while using a path, crossing, or some other
means of travel while on Defendant's property. Rather, the
limited area alleged by Plaintiff is a city block,
i.e. the stretch of railroad tracks between Fifth and Sixth
Streets in Springfield, Illinois.
Plaintiff relies upon the affidavits of people who work and
live in the area who stated that they have seen both adults and
children on and in the vicinity of the tracks between Fifth and
Sixth Streets as support for the exception. Plaintiff also
cites that deposition testimony of Defendant's employees who
testified that they have occasionally seen people on and near
those tracks. However, Plaintiff has offered no evidence which
would establish the "limited area" contemplated by the
permissive use exception. "A limited area" must be more narrow
than a city block.
Furthermore, to qualify for the permissive use exception, the
trespasser's use of the limited area must be of a sufficient
duration of time as to put the landowner on notice of the use.
As the Restatement (Second) of Torts § 334 states, the
trespasser must "constantly intrude." In McDaniels, the
testimony offered at trial established that the path used by
the injured trespasser was used on a daily basis for 20 years
by adults and children. McDaniels, 302 Ill. App. at 345, 23
N.E.2d at 790.
In the instant case, Plaintiff has offered no evidence
regarding the persistent or constant use of Defendant's right
of way. Although Plaintiff has tendered proof of the public's
presence on Defendant's property, Plaintiff has failed to
establish a time frame or a duration of the public's use.
Accordingly, the Court finds that the permissive use exception
is inapplicable to Plaintiff.
Because Plaintiff was a trespasser upon Defendant's property
and because none of the exceptions to the general rule apply,
Defendant owed Plaintiff only a duty to refrain from willfully
and wantonly injuring him. Defendant did not owe Plaintiff a
duty of ordinary care as alleged in Count I of Plaintiff's
second Amended Complaint. Accordingly, when taking all of the
evidence in a light most favorable to Plaintiff, the Court
finds that there are no genuine issues of material fact to be
determined by the trier of fact and that Defendant is entitled
to judgment as a matter of law on Count I of Plaintiff's second
B. COUNT II
Count II of Plaintiff's second Amended Complaint alleges that
Plaintiff was injured as a result of Defendant's willful and
wanton misconduct. Willful and wanton misconduct is a reckless
disregard for the safety of others after knowledge of the
impending danger. Miller, 207 Ill. App.3d at 161, 565 N.E.2d at
694, 152 Ill.Dec. at 161. As the Illinois Supreme Court
A wilful or wanton injury must have been
intentional or the act must have been committed
under circumstances exhibiting a reckless
disregard for the safety of others, such as a
failure, after knowledge of impending danger, to
exercise ordinary care to prevent it or a failure
to discover the danger through recklessness or
when it could have been discovered by the exercise
of ordinary care.
Schneiderman v. Interstate Transit Lines, Inc., 394 Ill. 569,
583, 69 N.E.2d 293, 300 (1946). "[I]t is sufficient if [the
defendant] had notice which would alert a reasonable man that
substantial danger was involved, and that [the defendant]
failed to take reasonable precautions under the circumstances."
Hering v. Hilton,