The opinion of the court was delivered by: Charles P. Kocoras, District Judge:
This matter comes before the Court on the motion of Defendant National Railroad Passenger Corporation ("Amtrak") for summary judgment against Plaintiff John Chiriboga ("Chiriboga" or "Plaintiff"), individually and as administrator of the estate of Joyce Chiriboga ("Joyce"). For the reasons set forth below, the motion is denied.
This case arises out of an accident that occurred on November 8, 2008, at the Edgebrook Metra station ("the Edgebrook station") in Chicago. That night, Joyce and her sister, Diane Moss ("Diane"), entered the Edgebrook station on the opposite side of the tracks from where Diane was supposed to board a northbound Metra train scheduled to arrive at approximately 7:00 p.m. To reach the correct, eastern platform, the sisters needed to cross the tracks via the pedestrian crosswalk.
Diane was leading the way and Joyce was following her. As Diane reached the western platform, she looked to her right, saw no northbound Metra train approaching, and kept walking across the five-foot wide western platform at a regular pace. She does not remember looking to her left while walking across the platform. Diane decided to cross the tracks and Joyce followed her. As Diane started crossing the tracks, she looked straight ahead. She was past the first rail and taking the next step when she saw headlights in her peripheral vision on her left hand side. She looked to the north, saw headlights, heard a horn, and ran across the rest of the walkway, safely escaping from a southbound Amtrak train. Joyce, who was still following Diane, was struck and killed by the Amtrak train.
On December 22, 2008, Chiriboga, individually and as administrator of the estate of Joyce, brought suit against Amtrak under the Illinois Wrongful Death Act. 740 Ill. Comp. Stat. 180/0.01. Each side now disputes whether the warnings at the Edgebrook station were sufficient to signal the train's arrival. Amtrak's position is that Joyce was aware of the Amtrak train's arrival and chose not to yield. According to Amtrak, the train's presence was unmistakable because Joyce's view from the platform was unobstructed and the train was carrying two headlights on the locomotive's front and two auxiliary lights on either side of the plow, which formed a distinguishable triangular pattern. Had she looked, Amtrak argues, she would have seen the onrushing train. Furthermore, Amtrak submits Joyce received additional warning from the activated grade crossing warning system, consisting of flashing lights, crossing gates, and ringing bells, located at Devon avenue, one hundred yards south of the pedestrian crosswalk. Claudia Medina, a witness hired by the Plaintiff, testified that right before the accident, she was sitting in her car in a parking lot adjacent to the Edgebrook station, and heard the bells ringing at the Devon Avenue crossing.
Plaintiff argues that Amtrak's warnings were insufficient to signal the train's approach because the locomotive engineer, Larry Abfalder ("Abfalder"), negligently operated his train by failing keep an adequate lookout for pedestrians and timely blast the horn and ring the engine bell while entering the Edgebrook station. In support of his contentions, Plaintiff presents expert testimony from Richard Beall ("Beall"), a locomotive engineer who has worked several years as a train conductor on passenger trains. Amtrak now moves for summary judgment.
Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to summary judgment as a matter of law." Fed. R. Civ. P. 56(c). A genuine issue of material fact exists when the evidence is such that a reasonable jury could find for the non-movant. Buscaglia v. United States, 25 F.3d 530, 534 (7th Cir. 1994). The movant in a motion for summary judgment bears the burden of demonstrating the absence of a genuine issue of material fact by specific citation to the record; if the party succeeds in doing so, the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue of fact for trial. Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In considering motions for summary judgment, a court construes all facts and draws all inferences from the record in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). With these principles in mind, we turn to the instant motion.
As a preliminary matter, the Court clarifies the legal posture of the case. In the complaint, Plaintiff argues that the grade crossing accident resulted from Amtrak's failure to (1) operate its train at a moderate speed that would allow the train's headlights and engine bell to provide better warning to pedestrians, (2) ring the engine bell fifteen seconds before reaching the Edgebrook station in violation of 49 C.F.R. § 222.27, and
(3) continuously ring the engine bell in violation of Section 9-124-410 of the Chicago Municipal Code. Amtrak moves for summary judgment on these claims and Plaintiff does not contest Amtrak's position. Accordingly, summary judgment is granted on the aforementioned claims.
Additionally, Plaintiff raises, for the first time in his response to Amtrak's motion for summary judgment, a failure to instruct claim arguing that Amtrak failed to periodically instruct its employees on the meaning and scope of the railroad's operating rules. According to well-established federal procedural rules, a plaintiff is not allowed to raise an argument for the first time at the summary judgment stage. Johnson v. Cypress Hill, 641 F.3d 867, 873 (7th Cir. 2011). Furthermore, discovery in this case closed on August 18, 2010. If the Court allows ...