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November 3, 2004.

FRANK TATE, Individually and as Special Administrator of the Estate of TYRONE TATE, Plaintiff,

The opinion of the court was delivered by: MARK FILIP, District Judge


Plaintiff's decedent Tyrone Tate ("Tate") was killed in August 2000 when he was struck by a train operated by the defendant, Burlington Northern and Santa Fe Railway Company ("Burlington Northern"). Plaintiff Frank Tate brought this lawsuit individually, and as special administrator of the estate of Tyrone Tate. Plaintiff asserts two claims for damages. Count I alleges that Burlington Northern was negligent by failing to provide adequate warnings and in operating its trains in an unsafe manner. Count II alleges that Tate's death was caused by willful and wanton misconduct by Burlington Northern. Burlington Northern has moved to dismiss the complaint in its entirety under Fed.R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons set forth below, the Court grants in part and denies in part Burlington Northern's motion to dismiss. BACKGROUND FACTS

Burlington Northern owns, maintains, and operates railroad tracks that run over a bridge spanning Sawmill Creek, near Waterfall Glen Forest Preserve in Downers Grove Township in DuPage County, Illinois. (Compl. ¶ 2.)*fn1 The bridge is located near an area frequented by fishermen and tourists and there are well-worn paths leading to the bridge. (Id. ¶¶ 3-4.) The bridge is commonly used by fishermen and tourists as a means of access to the other side of the river. (Id. ¶ 5.) The bridge apparently contains parallel tracks, which allows for two trains to cross the bridge at the same time. (See id. ¶ 11.) On August 31, 2000, Tate attempted to cross the bridge to go fishing. (Id. ¶ 7.) While he was crossing the bridge, a train traveling toward Tate approached. (Id. ¶ 11.) At the same time, a train traveling in the opposite direction approached Tate from behind. (Id.) Tate could not hear the second train due to the proximity of the first train traveling toward him. (Id.) The second train overtook Tate, striking him and causing his death. (Id.)

  A preceding case, No. 02 L 7514, was filed in the Circuit Court of Cook County, Illinois in 2002 and dismissed without prejudice on October 25, 2002. (See D.E. 6, Ex. C.) Judge Kathy M. Flanagan held that the complaint was deficient for, inter alia, failure to allege willful and wanton conduct, as required by the Illinois Recreational Use of Land and Water Areas Act, 745 ILCS 65/1 ("Recreational Use Act" or "Act"). (Id. at 2.) The court rejected Plaintiff's claim that the Act did not apply because Tate was only crossing Defendant's bridge to access a recreation area and not engaged in a recreational activity at the time of his death. (See id. at 1-2 (rejecting Plaintiff's contention that the Recreational Use Act did "not apply as the Decedent was only crossing over the Defendant's property to get to a recreation area" and holding that "the Act applies and the Plaintiff must allege willful and wanton conduct.").) It went on to add that even if the Act was not applicable, Plaintiff would still be required to allege willful and wanton conduct because Tate was a trespasser. (Id.) Plaintiff did not file an amended complaint and the case was ultimately dismissed for want of prosecution on January 22, 2003.

  Plaintiff refiled the action in the Circuit Court of Cook County on January 21, 2004. The case was removed to this Court by motion of the Defendant under 28 U.S.C. § 1441. This Court has jurisdiction to hear the case because the parties are of diverse citizenship*fn2 and the amount in controversy exceeds $75,000.


  When considering a motion to dismiss, the Court accepts the well-pleaded allegations as true and draws all reasonable inferences in favor of the plaintiff. Flannery v. Recording Indus. Ass'n of Am., 354 F.3d 632, 637 (7th Cir. 2004). A motion to dismiss should not be granted unless it appears "beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Manning v. Miller, 355 F.3d 1028, 1031 (7th Cir. 2004). "The Federal Rules of Civil Procedure require a plaintiff to plead no more than is necessary to place the defendants on notice of his claim." Pizzo v. Bekin Van Lines Co., 258 F.3d 629, 634 (7th Cir. 2001). DISCUSSION

  Count I alleges that certain negligent acts by Defendant caused Tate's death. Count II asks for damages for wrongful death as a result of Defendant's willful and wanton misconduct. To state a claim for wrongful death under Illinois law, Plaintiff must allege that the defendant owed a duty to decedent; defendant breached that duty; the breach of duty proximately caused the decedent's death; and pecuniary damages arose therefrom to persons designated under the Act. See Leavitt v. Farwell Tower Ltd. P'ship, 625 N.E.2d 48, 52 (Ill.App. 1993). "The first element, the existence of a duty, is a question of law to be decided by the court," at least where that issue is clear taking the plaintiff's allegations as true. Reid v. Norfolk & W. Ry. Co., 157 F.3d 1106, 1110 (7th Cir. 1998) (citing Rodriguez v. Norfolk & W. Ry. Co., 593 N.E.2d 597, 607 (Ill.App. 1992)). Defendant argues that Count I should be dismissed because the duty it owed Tate was to refrain from willful and wanton behavior because (1) the Recreational Use Act applies, and (2) Tate was a trespasser, and therefore, Plaintiff's allegations that Burlington Northern acted negligently do not state a claim for wrongful death. Defendant also argues that Plaintiff's allegations in Count II do not allege willful and wanton misconduct as a matter of law. The Court will address each count in turn.


  Count I alleges that Tate's death was caused by the negligent acts of Burlington Northern and asserts a claim under the Illinois Wrongful Death Act, 740 ILCS 180/1 et seq. As noted earlier in this opinion, the Circuit Court of Cook County dismissed a substantially similar complaint for failure to allege willful and wanton misconduct, as required by the Recreational Use Act, 745 ILCS 65/1 et seq. While this dismissal without prejudice does not have res judicata effect, see Cooter Gell v. Hartmarx Corp., 496 U.S. 384, 396 (1990), this Court agrees with Cook County Circuit Court Judge Flanagan that the Recreational Use Act applies to this suit and that Plaintiff must allege willful and wanton misconduct.

  The Court notes that while a substantial portion of Defendant's Motion to Dismiss addresses the applicability of the Recreational Use Act, Plaintiff's response completely ignores this argument and does not respond to it. Plaintiff primarily argued that this case falls under an exception to the usual rule in Illinois that a landowner owes a trespassing plaintiff only a duty to refrain from willful and wanton misconduct. Even if Plaintiff is correct that an exception to the trespass rule might apply, Plaintiff loses if the Recreational Use Act, which governs liability to an individual who enters property or premises for recreational purposes, applies. See 740 ILCS 130/4; Jerrick v. Norfolk & Western Ry. Co., 124 F. Supp. 2d 1122, 1126 (N.D. Ill 2000) ("[T]he ordinary duty of care . . . has been expressly abrogated by the Illinois Recreational Act immunity."), aff'd, Cacia ex rel. Randolph v. Norfolk & W. Ry. Co., 290 F.3d 914 (7th Cir. 2002). The Act states that except for statutory exceptions, "an owner of land owes no duty of care to keep the premises safe for entry or use by any person for recreational or conservation purposes, or to give any warning of a natural or artificial dangerous condition, use, structure, or activity on such premises to persons entering for such purposes." 745 ILCS 65/3. The only exceptions are for "willful or wanton failure to guard or warn against a dangerous condition, use, structure, or activity." 745 ILCS 65/6(a). Thus, Plaintiff's claim that a negligence standard applies to this case is mistaken if the Recreational Use Act applies. DUTY OF CARE TO A TRESPASSER

  Burlington Northern asserts that it owed Tate — a trespasser — no more than a duty to refrain from willful and wanton conduct. Illinois law clearly establishes that Tate was trespassing at the time of his death if he cannot invoke an exception to the trespasser rule.*fn3 See 625 ILCS 5/18c-7503 ("[N]o person may . . . walk, ride, drive or be upon or along the right of way or rail yard of a rail carrier within the State, at a place other than a public crossing."). Generally, "a railroad company owes no duty to a trespasser except to refrain from wantonly or wilfully injuring him, and to use reasonable care to avoid injury to him after he is discovered to be in peril." Reid, 157 F.3d at 1110 (quoting Rodriguez, 593 N.E.2d at 607). But Illinois courts recognize certain exceptions to this rule.

  Plaintiff cites McKinnon v. Northeast Illinois Regional Commuter Railroad Corp., 635 N.E.2d 744, 747 (Ill.App. 1994), for the proposition that a landowner owes an ordinary duty of care to a trespasser when he is aware or should be aware that trespassers are in the habit of entering his land at a particular point and traversing an area of small size. Precedent is somewhat split as to whether Plaintiff can invoke this exception. However, even if Plaintiff is given the benefit of the doubt on this issue, his claim still fails, as explained further below, because the negligence claim fails under the Recreational Use Act. As Plaintiff notes, McKinnon discussed what it termed the "beaten path" exception to the "no ordinary duty of care owed to trespassers" rule. McKinnon stated that "[u]nder this exception, a landowner is liable for injuries to a trespasser proximately caused by its failure to exercise reasonable care in the course of its activities, where the landowner `knows, or should know from facts within his knowledge, that trespassers are in the habit of entering his land at a particular point or of traversing an area of small size.'" McKinnon, 635 N.E.2d at 747 (quoting Miller v. General Motors Corp., 565 N.E.2d 687, 691 (Ill.App. 1990)). Miller v. General Motors had stated the following regarding the beaten path exception:
A typical case is the frequent use of a "beaten path" that crosses a railroad track, which is held to impose a duty of reasonable care as to the operation of trains. . . . Liability has been extended in such cases because the landowner's continued toleration of the trespass amounts to permission to make use of the land, so that the plaintiff is not a trespasser but a licensee. While it is true that a failure to object may amount to tacit permission, the mere fact the landowner does not take burdensome and expensive precautions to keep trespassers out, which may well be futile, should not in itself indicate that he is willing to have them enter. The real basis of liability to such "tolerated intruders" would seem to be only the ordinary duty to protect another, where the harm to be anticipated from a risk for which the defendant is responsible outweighs the inconvenience of guarding against it.
Miller, 565 N.E.2d at 691 (internal citations omitted).

  To be sure, more recent authority, including authority from this District and from the Seventh Circuit, casts some doubt on whether Plaintiff can invoke this exception. Specifically, in Reid v. Norfolk & Western Railway Co., 157 F.3d 1106 (7th Cir. 1998), the Seventh Circuit stated that, for purposes of this exception, the fact that others may have traversed an area is irrelevant to the analysis. Id. at 1111. Rather, the relevant issue, Reid instructed, was whether the plaintiff himself has been a frequent trespasser. See id. ("As Illinois courts have held, `[p]revious use . . . by other members of the public is immaterial to plaintiff's case because it cannot be relied on to establish that he was on the premises as a result of an implied invitation.'") (quoting Rodriguez, 593 N.E.2d at 607, and citing Briney v. Ill. Cent. R.R. Co, 81 N.E.2d 866, 869 (Ill. 1948));*fn4 Sandoval v. Northwest Ill. Reg'l Commuter R.R. Corp., No. 99 C 5821, 2001 WL 62605, at *2 (N.D. Ill. Jan. 24, 2001) ("Use of the general area by individuals other than . . . [the plaintiff-decedent] does not bolster plaintiff's claim. `Previous use . . . by other members of the public is immaterial to plaintiff's case. . . .'") (quoting Reid, 157 F.3d at 1111; emphasis in Sandoval), aff'd, Sandoval v. Northeast Ill. Reg'l Commuter R.R. Corp., 21 Fed. Appx. 492, 2001 WL 1298863 (7th Cir. Oct. 23, 2001)). With respect to this caselaw, the Court notes that none of ...

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