The opinion of the court was delivered by: Judge Cerda
Appeal from the Circuit Court of Cook County. Honorable Jacqueline Cox, Judge Presiding.
In June 1992, Kenneth P. Calhoun, then a minor, was severely injured when his left foot was caught under a freight train as he was playing upon a railroad right-of-way in Chicago, Illinois. As a result, the lower portion of Kenneth's left leg was amputated. The train involved, which was owned and being operated by the Consolidated Rail Corporation (Conrail), was traveling on a set of tracks owned by Belt Railway Company (Belt).
Plaintiff, Veronica Calhoun, as Kenneth's mother, filed a negligence action on her son's behalf seeking damages against Belt and two other railroad companies, defendants Norfolk and Western Railway Company (Norfolk) and Chicago Rail Link Railroad (CRL) (collectively referred to as "defendants"), both of which owned and operated tracks upon the right-of-way where Kenneth was injured. Pursuant to section 2- 1005 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1005 (West 1998)), defendants moved for summary judgment, arguing in part that they owed no duty of care to Kenneth because neither the property nor instrumentality involved were under their ownership or control at the time of the accident.
Shortly after defendants' motions were filed, plaintiff reached a settlement with Belt. Following arguments, the circuit court granted defendants' motions and dismissed plaintiff's claims against them. Plaintiff now appeals, arguing genuine issues of material fact exist as to whether Norfolk and CRL owed Kenneth a duty of care under the circumstances and that such factual issues should have precluded summary judgment. For the following reasons, we affirm.
The record establishes the following undisputed facts for our review. The area of the right-of-way in which Kenneth was injured consists of six sets of railroad tracks running parallel to one another and diagonally in a general east-west direction between Cottage Grove Avenue and King Drive in Chicago. The right-of-way is elevated from street level, located atop a sloped embankment, and is primarily bordered by residential neighborhoods on both its north and south sides.
The southernmost set of tracks is owned and maintained by CRL (sometimes referred to hereinafter as "Track 1"). The next two sets of tracks immediately north are owned and maintained by Norfolk (sometimes referred to hereinafter as either "Track 2" and "Track 3"). The three most northern sets of tracks are owned and maintained by Belt (sometimes referred to hereinafter as either "Track 4," "Track 5," and "Track 6"). *fn1 Belt's tracks are separated from the tracks of Norfolk and CRL by a roadway that runs east-west along the right-of-way. The record does not disclose the ownership of the embankment land and does not reveal defendants' relationship to this property.
Traveling approximately a mile east of the accident site, the tracks converge, intersect and/or split in different directions in an area commonly known as "Pullman Junction." Pullman Junction serves in part as a switching area for the railways' trains, enabling them to cross over the tracks of other companies so they can proceed in a desired direction. At times, trains are stopped on the surrounding tracks as other trains are passing through the switching area. While waiting for switching signals, these stationary trains, depending on their number of cars, may extend for a considerable distance along the tracks of the right-of-way.
The record reveals Belt's southernmost track, Track 4, as well as the tracks owned by Norfolk, split south and intersect CRL tracks and switches at Pullman Junction. By several operating agreements, Norfolk is granted use of CRL's tracks at the junction. Norfolk is further responsible for the switching of Norfolk and CRL trains on the CRL tracks. This responsibility encompasses the exclusive control of regulating the train movement on the CRL tracks in that area. The record does not show whether Belt enjoyed similar access and use of CRL's tracks as that granted to Norfolk. Furthermore, a separate agreement between Belt and Norfolk allowed Norfolk use of Belt's tracks located on the right-of-way.
The embankment between Cottage Grove and King Drive contains numerous paths, some well worn, leading up to the track area. The record establishes that for years prior to June 1992 these paths were used by the public as a short cut to the surrounding neighborhoods. In addition, children used the paths to access the tracks for purposes of climbing and playing on or about train cars. The area does not contain fences or other such barriers that would inhibit access to the tracks. The area further contains no signs warning the public of the train activities occurring on the embankment.
At about 8 p.m. on June 15, 1992, Kenneth, then 12 years old, and three of his friends were returning home when they decided to go to the tracks and play. The boys accessed the track area on the south embankment via a well-worn foot path immediately west of Cottage Grove. Once atop the embankment, they observed a CRL train, which was stationary on Track 1. Kenneth and his friends climbed over the CRL train and walked to the middle roadway, proceeding west.
As the boys walked, they noticed a Norfolk train moving toward them on Track 3. They ran after it in an attempt to climb aboard but were unsuccessful. The boys continued to walk west on the road until they noticed a Conrail train sitting on Belt's Track 6. The boys ran over to the Conrail train, climbed upon one of its car, and began to play.
Meanwhile, another Norfolk train was moving slowly westward on Track 2. The boys jumped off the Conrail train and climbed aboard one of the Norfolk cars as the train passed. The boys rode the Norfolk train west for a short time, dismounting at a point near King Drive.
Once off the Norfolk train, the boys decided to go home and proceeded down the northside embankment. When they almost reached an alley below, the boys heard the Conrail train upon which they had been playing starting to move. The boys ran back up the embankment and followed the train east as it traveled toward Pullman Junction.
While his friends began playing on the train, Kenneth positioned himself between two of the cars and began walking on one of the rails. Keeping pace with the train's movement, Kenneth told his friends that he was pretending to push the train with his hands. At that point, Kenneth's right foot slipped off the rail. While attempting to regain his footing, the lower portion of Kenneth's left leg was crushed ...