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December 31, 1997


Appeal from the Circuit Court of Cook County. Honorable Philip L. Bronstein, Judge Presiding.

The Honorable Justice Gordon Delivered The Opinion OF The Court. Presiding Justice Leavitt and Cahill, J., concur.

The opinion of the court was delivered by: Gordon


Catherine Benamon, individually and as mother and next friend of William Benamon, a minor, filed a negligence action against defendants Soo Line Railraod Company and the Belt Railway Company of Chicago seeking to recover for William's injuries sustained when William's foot allegedly became lodged between the rails on a train overpass. William was unable to extricate himself before a train drove by causing partial amputation of his left leg. The defendants moved for summary judgment alleging that they owed no duty to William because he was a trespasser. The trial court agreed, granting summary judgment to the defendants; and the plaintiff appeals.

On appeal, the plaintiff concedes that William was a trespasser but argues that the defendants owed William a duty of reasonable care because William's presence on the overpass was privileged due to private necessity; because William was a permissive user of the overpass; and because William was a minor and a dangerous condition existed upon the overpass. The plaintiff also argues that the defendants owed William a duty to warn under section 337 of the Restatement of Torts (Restatement (Second) of Torts § 337 (1965)).

Summary judgment is appropriate only if the pleadings, depositions and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005 (West 1996). In ruling on a motion for summary judgment, the trial court must construe the pleadings, depositions and affidavits in the light most favorable to the nonmoving party. Soderlund Brothers, Inc. v. Carrier Corp., 278 Ill. App. 3d 606, 663 N.E.2d 1, 215 Ill. Dec. 251 (1995). Although a plaintiff is not required to prove his or her case at the summary judgment stage, some evidentiary facts to support the elements of the claim must be presented. Helms v. Chicago Park District, 258 Ill. App. 3d 675, 630 N.E.2d 1016, 196 Ill. Dec. 851 (1994). An appellate court's review of a summary judgment is de novo. Myers v. Health Specialists, S.C., 225 Ill. App. 3d 68, 587 N.E.2d 494, 167 Ill. Dec. 225 (1992).

In the instant case, the undisputed facts before the court on the defendants' motion for summary judgment show that the defendants owned and maintained the railroad tracks and the right-of-way at the overpass located near 300 North Fulton in Chicago on January 13, 1992.

In his deposition, William testified that on January 13, 1992 at approximately 5 or 6 p.m., he was walking home after watching a basketball game at a grammar school. William was 15 years old at the time. As William passed a group of boys playing basketball in an alley, one of the boys asked him for a cigarette. William told the boy he did not smoke and continued walking. When he looked back, he saw the boys pointing at him and running towards him. William thought they might want to steal his "Bulls" coat. William testified that he ran up the railway incline near 300 North Fulton onto the tracks by the girder to hide because he was scared and wanted to do "anything to try to get away." He was approximately three blocks from home but did not want the gang to see where he lived. After William thought the gang was gone, he attempted to leave the area but his foot fell between the steel grates next to one of the wooden rails. He tried but could not extricate his foot before a passing freight train partially amputated his left leg below the knee.

William also testified in his deposition that he saw numerous graffiti marks on the girders near the tracks. He stated that he had never been upon the tracks prior to the accident and that none of his friends went up on the tracks. William stated that during the four years prior to his accident, he saw other children playing up on the tracks and throwing rocks on three or four occasions. He stated that he saw the children on the tracks somewhere between Fulton and West End. William did not know where they got onto the tracks. Over objection, William also testified that it was dangerous for the children to be on the tracks because "they could get killed."

Roger A. Fricke, the Soo line engineer who operated the freight train that injured the plaintiff, testified that he saw children playing on the tracks on other occasions but could not recall seeing them at the Fulton location.

Thomas A. Charniak, a member of the police department for Belt Railway since 1969, testified that he investigated William's accident. He testified that prior to that occurrence he had never investigated a pedestrian/train accident in the Fulton area. He stated that he was not aware that children in the area used the tracks or embankment to cross over to the other side of the tracks at the Fulton location. Charniak also identified a photograph which showed graffiti on the center girder in the area where William was injured.

Jeffrey Hinkle, a private investigator for the short line railroad industry, hired by the defendants, testified in his deposition that during his investigation of the accident scene he noticed some graffiti on the girders. He stated that he did not see any other indications that the area had been frequented by anyone other than railroad employees. He did not notice any trails or tracks on the embankment leading up to the overpass and did not recall seeing any footprints or any other indication that the embankment was used by people to reach the top of the overpass.

I. Private Necessity

It is axiomatic that a plaintiff in a negligence action must establish duty, breach of duty, and injury proximately caused by that breach. E.g., Ward v. K Mart Corp., 136 Ill. 2d 132, 554 N.E.2d 223, 143 Ill. Dec. 288 (1990); Rodriguez v. Norfolk & Western Ry. Co., 228 Ill. App. 3d 1024, 593 N.E.2d 597, 170 Ill. Dec. 708 (1992). Traditionally, the duty of care owed by a landowner to a person entering the premises was dependent upon that person's status. See, e.g., Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 605 N.E.2d 493, 498, 178 Ill. Dec. 699 (1992); Miller v. General Motors Corp., 207 Ill. App. 3d 148, 565 N.E.2d 687, 152 Ill. Dec. 154 (1990). See generally Restatement (Second) of Torts §§ 333 through 344 (1965). However, the Premises Liability Act (740 ILCS 130/1 et seq. (West 1992)) adopted in Illinois in 1984 abolished the common law distinctions of invitee and licensee providing, instead, that the duty owed to entrants is that of "reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them." 740 ILCS 130/2 (West 1992). As to trespassers, however, the Premises Liability Act reaffirmed the general common law rule that no duty of reasonable care is owed a trespasser except to refrain from wantonly or willfully injuring him. 740 ILCS 130/3 (West 1992); Lee, 152 Ill. 2d 432, 605 N.E.2d 493, 178 Ill. Dec. 699; Kahn v. James Burton Co., 5 Ill. 2d 614, 126 N.E.2d 836 (1955); ...

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