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Cacia v. Norfolk & Western Railway Company

May 17, 2002

JOSHUA CACIA, A MINOR, BY AND THROUGH HIS MOTHER AND NEXT FRIEND, PAULA RANDOLPH AND JOSEPH C. JERRICK, PLAINTIFFS-APPELLANTS,
v.
NORFOLK & WESTERN RAILWAY COMPANY, DEFENDANT-APPELLEE.



Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 99 C 759 & 99 C 760--Elaine E. Bucklo, Judge.

Before Flaum, Chief Judge, and Coffey and Easterbrook, Circuit Judges.

The opinion of the court was delivered by: Coffey, Circuit Judge

Argued January 15, 2002

Joshua Cacia and Joseph Jerrick each brought personal injury actions in the circuit court of Will County, Illinois, alleging injuries incurred in separate incidents in the month of July 1998, which occurred as they drove their off-road vehicles along an abandoned railroad track right-of-way near Essex, Illinois, owned by the defendant, Norfolk & Western Railway Com pany. The plaintiffs sustained their injuries when they drove their vehicles into a creek bed where a bridge had been removed at the request of the defendant-railroad. The defendant removed the cases to the Central District of Illinois, invoking the federal court's diversity jurisdiction. After consolidation of their cases for summary judgment purposes, the trial court granted judgment in favor of the defendant, ruling that the plaintiffs had failed to establish that Norfolk owed any duty of ordinary care to the plaintiffs and furthermore that the plaintiffs had failed to demonstrate that the railroad's conduct was willful and wanton. We affirm.

I. Factual Background

In October 1990, Norfolk entered into a salvage contract with The Tie Yard of Omaha, Inc., a company specializing in the removal of salvage material. Under the terms of the contract Tie Yard agreed both to remove and dispose of the railroad tracks from abandoned railroad lines in various locations throughout Central Illinois, including the bridge in question located in the area of Essex, Illinois, that spanned Horse Creek. Tie Yard further agreed to purchase any salvageable material from those tracks. As a result of the removal of the bridge at Horse Creek, a "pit" 31 feet across, 17 feet wide, and 11 feet deep was created. Pursuant to the contract, Norfolk required that the Tie Yard "barricade the right of way at the backwalls of each bridge removed by placing a mound of dirt, ballast or other suitable material at least four feet high completely across the roadbed . . . with side slopes steep enough to prevent their use by trespassers as ramps for jumping motor bikes or other such vehicles." Further, it was Norfolk's customary practice to send an employee from its maintenance of way department to inspect the area after the bridge had been removed and the barricade constructed in order to ensure that the barricade erected was satisfactory. Plaintiffs failed to present any evidence to suggest that Norfolk had neglected to make an inspection of the barricade at the accident site. On the other hand, Norfolk did not continue to make inspections of the barricade for maintenance purposes after it was initially constructed.*fn1 Even though Norfolk never permitted the public to enter onto or use the abandoned rail beds on its right of way, either before and after the track had been removed, without specific authorization, it had not posted any no-trespassing signs.

Norfolk was well aware of the fact that barricades might occasionally be damaged by vandalism, but in the factual situation presented to us nothing had been reported to any Norfolk employee concerning the barricade at the accident site and thus they had no specific knowledge that any vandalism had rendered the barricades at the site of the accidents ineffective. In fact, the only complaint Norfolk received relating to the stretch of abandoned track near Essex was a report of March 1998 notifying the company that appliances and tires had been dumped on Norfolk's rail bed about one-half mile from the accident location. In March 1998, a few months before the occurrence of the accidents at issue, Russell Josvai, an environmental property agent for Norfolk, investigated a complaint that trash had been dumped along Norfolk's abandoned rail bed, approximately one-half mile from the accident site.*fn2 Josvai inspected the trash in the designated railroad area, but never did "go the extra mile" by inspecting the one-half mile of the tracks that led to the bridge removal site. At the time of the inspection, Josvai did not observe any evidence of motorcycle or ATV tracks in the snow, which according to Josvai was present at the site when he made his March 1998 inspection. At the conclusion of his inspection, Josvai spoke with Essex's mayor, who promised to clean up the trash and "police" the area with the construction of a barrier or gate using a locked steel cable that would run across the abandoned rail bed and bar any trespassers who might have thoughts of driving their vehicles along it.

On July 19, 1998, the day of the accident, Joseph Cacia was driving a Honda CR 125 off-road motocross bike along Norfolk's abandoned rail bed (where Tie Yard had removed the tracks) with his friend, Greg Henke, on their way to Shannon Shores, Illinois, (a water skiing lake) and Monster Lake. On their return, they followed the abandoned railroad right-of-way referred to and rode single-file with Henke following some distance behind Cacia. At some point along the ride, Henke could no longer see Cacia and later found him in the creek bed at the site of the removed bridge that previously had covered Horse Creek. No warning signs were posted to alert Cacia and Henke that the bridge had been removed.

Six days later, on July 25, Jerrick, accompanied by his friend Mark Chipman, drove their all-terrain vehicles along Norfolk's abandoned railroad right-of-way, including the site where the tracks had been removed. During the early part of their ride, Jerrick and Chipman observed a stretch of the rail bed that traversed a creek where a bridge had been removed. About two and one-half hours later, Jerrick and Chipman were returning along the same path, near the same creek. Jerrick was following Chipman, and Chipman's all-terrain vehicle was stirring up a cloud of dust. Chipman was able to observe in sufficient time that the bridge had been removed and swerved to avoid it. Jerrick, however, could not see that the bridge was missing because of the dust churned up by Chipman's ATV. When Jerrick did notice at the last instant that the bridge was no longer there, he was unable to avoid losing control of his vehicle as he came upon the bridgeless area, resulting in his being catapulted off the trail into space, and landing on the creek bed below.

The plaintiffs sued and filed individual complaints in state court against Norfolk, alleging negligence and willful and wanton conduct under Illinois tort law. Norfolk removed the cases pursuant to 28 U.S.C. sec. 1441(a) to the United States District Court for the Northern District of Illinois, invoking the federal court's diversity jurisdiction.*fn3 The cases were consolidated for purposes of ruling on Norfolk's summary judgment motion and on October 17, 2000, the trial court granted summary judgment in favor of Norfolk on all counts of each of the plaintiff's claims, denied plaintiffs' motion for leave to file a second amended complaint containing claims for negligence, and also granted Norfolk's motion to bar the testimony of plaintiffs' expert witness. The trial court ruled that plaintiffs' negligence claims failed under the Illinois's Recreational Use of Land and Water Areas Act, 745 ILCS 65/1 (Recreational Use Act), which serves to immunize landowners whose land is being used for recreational purposes from all but wanton and willful conduct. The trial court went on to rule that the facts, when considered in the light most favorable to the plaintiffs, failed to rise to the level of establishing that Norfolk's conduct met the Illinois standard for willful and wanton conduct. In support of its ruling, the trial court found that the company had no notice of any accident at any time or safety complaint regarding the removed bridge and also that its contract with Tie Yard had obligated the salvage firm to erect the necessary barricades on either side of the removed bridge. The contract between Tie Yard and Norfolk specified that the barricades erected were required to have sufficiently steep sides of at least four feet high and of sufficient width to span the entirety of the rail bed in order that the barricade would prevent trespassers both from inadvertently falling into the creek bed and furthermore to bar and prevent anyone from using the barricade as a ramp to propel a jump across the pit created by the removal of the bridge. The trial court ruled that the plaintiffs had failed to establish the defendant had consciously disregarded any known risk. Finally, the trial court denied the plaintiffs leave to amend their complaint to reformulate their negligence claims after finding that these claims were barred by Illinois's Recreational Use Act.

After the trial court granted summary judgment in favor of Norfolk, the plaintiffs attempted to create a final, appealable order by voluntarily dismissing their claims against Tie Yard. We rejected this attempt to confer appel late jurisdiction, and the plaintiffs later secured from the trial court a Rule 54(b) certification of the October 17, 2000, order granting summary judgment to Norfolk. The plaintiffs-appellants now appeal the trial court's decision to grant summary judgment in favor of Norfolk as well as its denial of granting leave to file a second amended complaint.

II. Issues

On appeal, the plaintiffs raise two arguments that the trial court erred in granting summary judgment. The plaintiffs initially argue that the trial court committed error in ruling that the Recreational Use Act immunized Norfolk from plaintiffs' negligence claims and thus summary judgment was not proper. Second, the plaintiffs claim that the trial judge's grant of summary judgment was improper because she erred in concluding that Norfolk's actions were not wanton and willful. Finally, the ...


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