asphalt ended and the concrete portion of the crosswalk began, a "lip"
was created because of the difference in elevation. Union Pacific's
expert witness asserts that lip measures 5/8 of an inch at its highest
point. Gresser asserts that Union Pacific installed and maintained the
asphalt crosswalk which was located on a right-of-way of Union Pacific.
Union Pacific concedes that the crosswalk was located within its
right-of-way but indicates it was installed by the previous owner.
Second, there were two yellow poles on the crosswalk located
approximately 15 feet north of the tracks. The poles are known as
"bollards" and served the purpose of keeping vehicles off the crosswalk.
Finally, there was a yellow line that was located on the cement that
runs parallel to the railroad tracks. This line is apparently similar to
those typically located in railroad stations (and other mass transit
stations) to warn of a safe distance to remain from the tracks.
Once they were at the bar, Gresser and his friends remained there for
about 30 minutes. Gresser asserts that he drank, at most, two beers while
at the bar. Gresser and his friends left the bar at approximately 6:30
p.m. and began to walk back in the direction of the Amtrak station on the
crosswalk north of the tracks mentioned above. Gresser was walking in
front of the group and having a discussion with Beck. At some point as
Gresser approached the railroad tracks, he observed a passing train.
There is some dispute as the distance at which Gresser noticed the
passing train. Union Pacific contends that Gresser noticed the train
approximately 10 to 15 feet from the tracks, while Gresser asserts that he
did not know how far away he was when he noticed it.
Approximately six to seven feet before reaching the tracks, Gresser
allegedly tripped and fell on the crosswalk.*fn2 There is also some
dispute as to how Gresser ended up under the train. Union Pacific states
that Gresser attempted to push himself up and back from the train when a
ladder from the passing train struck him in the head and spun him
underneath the train. Gresser objects to this characterization of his
deposition, in that he did not use the phrases "push[ing] himself up" or
"a ladder on, a passing train." Gresser does concede that he was struck
by some object right before he went under the train.
On August 1, 2000, Union Pacific filed a Motion for Summary Judgment.
This Order follows.
Summary Judgment Standard
A motion for summary judgment will be granted where there are no
genuine issues of material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party has
the responsibility of informing the Court of portions of the record or
affidavits that demonstrate the absence of a triable issue. Celotex
Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265
(1986). The moving party may meet its burden of showing an absence of
material facts by demonstrating "that there is an absence of evidence to
support the non-moving party's case." Id. at 2553. Any doubt as to the
existence of, a genuine issue for trial is resolved against the moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct.
2505, 2513, 91 L.Ed.2d 202 (1986); Cain v. Lane, 857 F.2d 1139, 1142 (7th
If the moving party meets its burden, the non-moving party then has the
of presenting specific facts to show that there is a genuine issue of
material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986).
Federal Rule of Civil Procedure 56(e) requires the non-moving party to
go beyond the pleadings and produce evidence of a genuine issue for
trial. Celotex Corp., 106 S.Ct. at 2553. This Court must then determine
whether there is a need for trial — whether, in other words, there
are any genuine factual issues that properly can be resolved only by a
finder of fact because they may be reasonably resolved in favor of either
party. Anderson, 106 S.Ct. at 2511; Hedberg v. Indiana Bell Tel. Co.,
47 F.3d 928, 931 (7th Cir. 1995).
Under Illinois law, in order for a plaintiff to recover in a negligence
action, the plaintiff must allege and prove that the -defendant owed the
plaintiff a duty, that the duty was breached by the defendant, and that
the breach was the proximate cause of the injuries suffered by the
plaintiff. First Springfield Bank & Trust v. Galman, 188 Ill.2d 252, 242
Ill.Dec. 113, 720 N.E.2d 1068, 1071 (Ill. 1999). Gresser claims that
Union Pacific owed a duty to him to maintain the crosswalk used by
pedestrians to cross over the railroad tracks in a reasonably safe
condition, free from the "lip" defect. It is an issue for the trial court
to determine whether or not a duty exists. Accordingly, a jury question
results only when the defect in the crosswalk is such that a reasonably
prudent man should anticipate some danger to persons walking upon it while
exercising reasonable care for his own safety. Gleason v. City of
Chicago, 190 Ill. App.3d 1068, 138 Ill.Dec. 351, 547 N.E.2d 518, 518 (1st
Dist. 1989); Hartung v. Maple Investment and Development Corporation,
243 Ill. App.3d 811, 184 Ill.Dec. 9, 612 N.E.2d 885, 888 (2nd Dist.
1993). Put another way, a jury question is present when "not all
reasonable minds would agree that [the defect] [is] so slight . . . that
no danger to pedestrians could reasonably be foreseen." Warner v. City of
Chicago, 72 Ill.2d 100, 19 Ill.Dec. 1, 378 N.E.2d 502, 503 (1978).
Union Pacific contends that the complained-of defect is not actionable
under the de minimis rule. Illinois law suggests that de minimis defects
in sidewalks are not actionable because the economic burdens imposed on a
defendant to repair every slight defect is far too great. See Gillock v.
City of Springfield, 268 Ill. App.3d 455, 206 Ill.Dec. 63, 644 N.E.2d 831
(4th Dist. 1994). The de minimis rule is traditionally applied only to
municipalities; however, this rule has been expanded and now provides to
private owners and possessors of land the same protection. See Hartung,
243 Ill. App.3d 811, 184 Ill.Dec. 9, 612 N.E.2d 885. As a result, Union
Pacific has a duty to keep its sidewalk in a reasonably safe condition
for the accommodation of travelers and pedestrians, but it is not
required to foresee and provide against every possible danger or accident
that may occur. Walter v. City of Rockford, 332 Ill. App.? 243,
74 N.E.2d 903, 906 (2nd Dist. 1947).
Summary judgment is an appropriate method to dispose of a case if the
Court finds that a defect in a crosswalk is too de minimis to be
actionable. See Birck v. City of Quincy, 241 Ill. App.3d 119, 181
Ill.Dec. 669, 608 N.E.2d 920 (4th Dist. 1993); Gleason v. City of
Chicago, 190 Ill. App.3d 1068, 138 Ill.Dec. 351, 547 N.E.2d 518;
Hartung, 243 Ill. App.3d 811, 184 Ill.Dec. 9, 612 N.E.2d 885. There is no
fixed mathematical measurement to determine whether defects caused by
unevenness in sidewalks are actionable, and courts are cautioned that
such determination must be made by examining the particular facts of each
case. See id. This Court recognizes that it is a tenuous task to
determine whether a defect is so slight that it is a question of law for
the court to decide, or one of fact for the jury to decide.
Obviously, the height or level unevenness of the defect must be
in determining whether a particular defect is actionable. Illinois law
suggests that defects under two inches, absent other circumstances, are
not actionable. (1 7/8 inch elevation between two concrete slabs of
concrete not actionable, Birck, 608 N.E.2d at 923; 1/4 crack in sidewalk
not actionable, Gleason, 547 N.E.2d at 519; 3/4 inch to 1 inch
differential between two pieces of concrete not actionable, Barnhisel v.
Village of Oak Park, 311 Ill. App.3d 108, 243 Ill. Dec. 885,
724 N.E.2d 194, 200 (1999); 1/2 inch difference in elevation between
slabs of concrete in a sidewalk not actionable, Cooks v. United States,
815 F.2d 34 (7th Cir. 1987); 3/4 to 1 inch elevation between slabs of
pavement on sidewalk not actionable, Walter v. City of Rockford,
332 Ill. App. 243, 74 N.E.2d 903, 906 (Ill.App. 2nd Dist. 1947)). The
complained-of defect in this case measures 5/8 of an inch at its highest
point. Clearly, this defect, absent other circumstances, would not be
However, this Court is directed to examine all of the surrounding
circumstances. In Warner, the Supreme Court of Illinois found that the
locale of the defect can be useful in determining whether a defect is
actionable. Warner, 19 Ill.Dec. 1, 378 N.E.2d at 504 (examination of 1
1/8 inch elevation on snow-covered public sidewalk near plaintiff's
residence). Specifically, the court explained:
An unacceptable height variation in one location such
as a busy commercial area where pedestrians must be
constantly alert to avoid bumping into one another,
may be nonactionable its another area, such as a