Appeal from the Circuit Court of Cook County No. 92 L 7775 Honorable, Judge Leonard R. Grazian Presiding.
The opinion of the court was delivered by: Presiding Justice Cahill
Plaintiffs filed a two-count complaint against the Chicago Transit Authority (the CTA) in response to an electrocution at the CTA Morse Avenue transit station in Chicago. The complaint alleged negligence in count I and willful and wanton conduct in count II. Plaintiffs dismissed the willful and wanton count before the case went to the jury in response to a trial court ruling that decedent was an invitee as a matter of law. The trial court found, as a matter of law, that Taylor Eshoo was an invitee to whom the CTA owed a duty of ordinary care. The jury was so instructed. The court refused to instruct the jury on a standard of care defined in Illinois Pattern Jury Instructions, Civil, No. 120.02.01 (3d ed. 1995) (hereinafter IPI Civil 3d), which sets out the duty generally owed to an invitee and to a trespasser and an exception to the duty owed to a trespasser when a dangerous condition on the defendant's property presents a risk of death or serious bodily harm. The jury found for plaintiffs. The CTA's motion for judgment notwithstanding the verdict was denied. The CTA appeals. We reverse and remand with directions.
Plaintiffs' son, Taylor Eshoo, was electrocuted on June 27, 1991, when he came in contact with an electrified "third" rail at the CTA Morse Avenue station. The Morse Avenue station is on the Howard line, now known as the Howard/Dan Ryan or "red" line. According to testimony, Taylor and three friends, Michael Rosengrant, Peter Anthos and Kenneth Boch, had just accompanied Justin Long, another friend, to Morse Avenue. Long then went home. The four boys bought tickets and waited on the Morse Avenue platform for a southbound train. They planned to ride the train into the Loop, then take an O'Hare train to Harlem Avenue, near where they lived.
Taylor left the platform to urinate while his friends waited for the train. He was killed when he came into contact with the "third" rail. The rail carries 600 volts of electric current.
The Morse Avenue platform sits between and serves two sets of tracks, one heading north, the other south. The platform is about one block long and raised about 4½ feet above the tracks. The electrified rails are on the outside of the tracks farthest from the platform. The edge of the platform at Morse Avenue is nine feet away from the closest electrified rail. Passengers enter the station at street level, pay a fare, then climb a stairway leading to the platform. Passengers do not cross the tracks to enter or exit trains.
Taylor and his friends were waiting for a southbound train near the middle of the platform when Taylor decided to leave the platform. Taylor's friends did not know that he was leaving the platform, nor did they expect him to do so. Taylor walked north on the platform. Stairs at the end of the platform lead to the tracks. In front of the stairs a sign warns: "Danger, No One Permitted on Tracks Except Employees on Duty." There were also at least two signs on the wall opposite the platform. These signs warn: "Danger Keep Out Electric Current." Uncontradicted evidence at trial about where his body was found established that Taylor apparently jumped or climbed onto the tracks well short of the stairs that lead to the tracks.
Rosengrant testified that he did not see Taylor leave the platform. He said that about one minute after he saw Taylor walk north on the platform, he saw Taylor lying face down about 25 feet north of where Rosengrant, Anthos and Boch were waiting for the train. Rosengrant testified that he did not see signs warning of electric current. He conceded that he was not looking for signs. Rosengrant, Anthos and Boch carried Taylor's body down to Glenwood Street. Glenwood runs parallel to and below the station.
Anthos' and Boch's testimony tracked Rosengrant's. Anthos also admitted that he did not see warning signs. He conceded that he was not looking for signs because he had no reason to do so. But Boch admitted knowing of the electrified third rail. He testified he could not imagine Taylor leaving the platform to go on the track bed.
Justin Long testified under subpoena. He denied riding the "el" train with Taylor, Boch, Rosengrant and Anthos. Long also denied speaking with Chicago police about Taylor.
Plaintiffs introduced evidence of 11 incidents of electrocution at CTA stations during a 10-year period before Taylor's death. Many of these happened where access to the tracks required the trespasser to leave a raised platform, as here. CTA employees admitted that the CTA was aware that members of the public entered the track bed and came into contact with the electrified rail. The CTA knew that persons had been electrocuted by the rail. They placed signs warning of this danger in the stations.
Frank O'Dowd, the CTA general manager, testified that the signs were posted to warn the public of the "third" rail. O'Dowd said CTA policy directed that signs be posted at 50- to 75-foot intervals along both sides of the platforms at each station.
Charles Arndt, chief of operational graphics and "signage" for the CTA, testified that the signs are not posted at every station. Arndt said that many stations on the Howard line do not have signs at all. Arndt testified that there was no policy that mandated posting warning signs. He testified that the signs at Morse Avenue were posted in response to community complaints about children climbing on the track bed to avoid paying a fare. Arndt stated that the signs were not meant to be seen by people on the platform but, rather, to keep people from climbing over the outside wall onto the tracks. Harold Hirsch, vice president of planning for the CTA, confirmed Arndt's testimony that there was no policy that signs be posted every 50 to 75 feet.
Other testimony established that trees and bushes hid the signs at Morse Avenue station on the night Taylor was killed. The CTA conceded that the signs were hidden on that night. The CTA also admitted that it is responsible for removing the vegetation that obscured the signs..
Ronald Jacob, an engineering consultant on rapid transit safety, testified as an expert witness for plaintiffs. Jacob testified that, even if the signs had been visible, they were inadequate. He said that the signs do not warn of the nature of the danger or its consequences, nor do they show where the danger is located. Jacob also said that the signs were too far away from the platform to adequately warn people standing on the platform. ...