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Debra Dowe, Independent Administrator of Sheena Dowe v. Birmingham Steel Corporation

December 19, 2011

DEBRA DOWE, INDEPENDENT ADMINISTRATOR OF SHEENA DOWE,
DECEASED, AMAUSAE A. DOWE, A MINOR, BY AND THROUGH HIS CUSTODIAL GUARDIAN, DEBRA DOWE, SHALAINE JOHNSON, SHALAINE JOHNSON, AS MOTHER AND NEXT FRIEND OF JODEON ROUSER, A MINOR, ROBERT MUNSON, INDEPENDENT ADMINISTRATOR OF THE ESTATE OF MARIE ALVINA MUNSON,
DECEASED, KELLEY WHITAKER, PERSONAL REPRESENTATIVE OF THE ESTATE JESSICA LANE TICKLE,
DECEASED, MICHELLE PIETTE AND WARREN PIETTE, MAX BONNIN, PERSONAL REPRESENTATIVE OF THE ESTATE OF JUNE BONNIN, DECEASED, MAX BONNIN, AS FATHER AND NEXT FRIEND OF ASHLEY BONNIN, A MINOR, BILLY E. ADKINS, PERSONAL REPRESENTATIVE OF THE ESTATE OF HELENA R. ADKINS, DECEASED, BLANCHE R. JONES AND DERRICK JONES, CHARLENE A. HEMPFLING, NANCY D. HAIGH, MARY MOSLEY, INDIVIDUALLY AND AS MOTHER AND NEXT FRIEND OF ASHLEY MOSLEY, A MINOR, JOHN S. VANT, EXECUTOR OF THE ESTATE OF VIRGIL VANT, DECEASED, JOHN S. VANT, EXECUTOR OF THE ESTATE OF LEONA VANT, DECEASED, JOHN S. VANT, EXECUTOR OF THE ESTATE OF WENDY VANT, DECEASED, MINNIE C. STEWART, RAY STEWART, JR., CEDRIC STEWART, RAY STEWART AS CONSERVATOR OF THE ESTATE OF ORRAN STEWART, DECEASED, GAIL GORDON-ALLEN AND AARON ALLEN, SARAH DUDLEY, GREGORY HERMAN, INDIVIDUALLY, LISA D. HERMAN, INDIVIDUALLY, LISA D. HERMAN, MOTHER AND NEXT FRIEND OF KRISTEN E. HERMAN, A MINOR, MOTHER AND NEXT FRIEND OF KAITLIN G. HERMAN, A MINOR, AND MOTHER AND NEXT FRIEND OF DAVID G. HERMAN, A MINOR, NANCY M. SCHAFLE, DOLORES BELL AND ROBERT BELL, SUSAN FALLS, JENNIFER FALLS, JOHN FALLS, ANDREA SHIDLE, JOSEPH SHIDLE, MARILYN SHIDLE, JOHN STOLFA, CAMILLE STOLFA, BLANCHE FORTUNE, PLAINTIFFS-APPELLANTS AND CROSS-APPELLEES,
v.
BIRMINGHAM STEEL CORPORATION, DEFENDANT-APPELLEE AND CROSS-APPELLANT NATIONAL RAILROAD PASSENGER CORPORATION, D/B/A AMTRAK, PLAINTIFF-APPELLANT AND CROSS-APPELLEE,
v.
BIRMINGHAM STEEL CORPORATION, DEFENDANT-APPELLEE AND CROSS-APPELLANT (MELCO TRANSFER, INC., AND JOHN STOKES, DEFENDANTS).



Appeal from the of the Estate Circuit Court of Cook County Nos. 99 L 3194 and 01 L 3100 (cons.) Honorable William D. Maddux, Judge Presiding.

The opinion of the court was delivered by: Justice Hall

JUSTICE HALL delivered the judgment of the court, with opinion.

Presiding Justice Hoffman and Justice Karnezis concurred in the judgment and opinion.

OPINION

¶ 1 This consolidated appeal arises out of a collision between a semi tractor-trailer and an Amtrak*fn1 passenger train at a railroad crossing in Bourbonnais, Illinois, on March 15, 1999, at approximately 9:47 p.m. For the reasons that follow, we affirm.

¶ 2 BACKGROUND

¶ 3 The tractor-trailer at issue was driven by John Stokes. Stokes is employed by Melco Transfer, Inc. (Melco). Melco is an independent carrier that employs drivers to haul goods for various companies. Just prior to the collision, Stokes had picked up a large load of 3/4-inch-thick, 60-foot-long steel reinforcing bars, commonly known as rebar, from the Birmingham Steel Corporation (Birmingham Steel). Rebar is a bar or rod of steel used to reinforce concrete. Stokes was scheduled to transport and deliver the rebar to Gem City Steel in Dayton, Ohio.

¶ 4 The Amtrak passenger train collided with the rear of the tractor-trailer as Stokes ignored flashing warning lights at the railroad crossing and attempted to drive through the crossing ahead of the oncoming train. The collision caused pieces of rebar to be thrown onto the tracks derailing the locomotives and most of the passenger cars. Eleven passengers were killed and many others were injured in the derailment and resulting fire.

¶ 5 The accident led to the filing of numerous lawsuits that were litigated in the Northern District of Illinois and the circuit court of Cook County. In federal court, Debra Dowe and a number of other plaintiffs (Dowe plaintiffs) filed suit against Amtrak. Dowe v. National Railroad Passenger Corp., No. 01 C 5808, 2003 WL 22383016 (N. D. Ill. Oct. 17, 2003). Amtrak, in turn, filed a third-party action for contribution against Birmingham Steel, Melco, and Stokes based on the theory that Stokes was acting as an agent for Birmingham Steel at the time of the collision thereby making the steel company vicariously liable for Stokes' negligent conduct.

¶ 6 Meanwhile, in the circuit court, Angela Wilson-McCray, suing individually and as the mother and next friend of her minor son, filed a single personal injury suit against Amtrak, Birmingham Steel, Melco, Stokes and various other entities. Amtrak removed the case to federal court. Wilson-McCray v. Stokes, No. 01 C 1929. Amtrak and Birmingham Steel filed third-party actions against each other for contribution alleging that the other was liable for the negligent acts of Stokes based on theories of agency.

¶ 7 The two federal cases were consolidated for pretrial purposes. Wilson--McCray v. Stokes, No. 01 C 1929, 2003 WL 22901569, at *1 (N.D. Ill. Dec. 9, 2003). Birmingham Steel moved for summary judgment on the consolidated federal cases.

¶ 8 During the pendency of the federal cases, Dowe and a number of other plaintiffs filed separate lawsuits in the circuit court against Birmingham Steel and the other defendants for personal injury, wrongful death, and survival claims. The separate lawsuits were consolidated in the circuit court for purposes of conducting discovery and motion practice. Dowe v. Birmingham Steel Co., No. 99 L 3194 (Cir. Ct. Cook Co.) Amtrak filed suit in the circuit court against Birmingham Steel, Melco, and Stokes for the economic losses it incurred as a result of the incident. National R.R. Passenger Corp. v. Birmingham Steel Corp., No. 01 L 3100 (Cir. Ct. Cook Co.)

¶ 9 Back in federal court, the district court granted partial summary judgment in favor of Birmingham Steel. In regard to the agency issue brought by Amtrak and Wilson-McCray, the district court determined that Birmingham Steel was entitled to summary judgment on all claims premised on the theory of agency after the court concluded that Stokes was not acting as Birmingham Steel's agent at the time of the accident. Wilson--McCray v. Stokes, 2003 WL 22901569, at *6.

¶ 10 The district court also found that Birmingham Steel was entitled to summary judgment regarding the claims made by Wilson-McCray that Birmingham Steel was liable for allegedly: overloading the tractor-trailer; placing nearby railcars in positions that obstructed Stokes' view of railroad traffic; failing to assist Stokes in safely leaving the steel mill; and negligently entrusting the load of steel to Stokes when it either knew or should have known that Stokes was too sleep-deprived to drive safely. The district court found that Birmingham Steel was entitled to summary judgment on these claims because Wilson-McCray failed to refute the steel company's contentions that it was not liable on these claims. Wilson--McCray v. Stokes, 2003 WL 22901569, at *2.

¶ 11 The district court further concluded, however, that Birmingham Steel was not entitled to summary judgment concerning Amtrak's cross-claims of direct negligence against Birmingham Steel because Birmingham Steel's motion for summary judgment failed to address these claims, and its reply brief in which these claims were addressed, came too late. Wilson--McCray v. Stokes, 2003 WL 22901569, at *2. As a result, the district court held that Amtrak's cross-claims of direct negligence against Birmingham Steel remained pending for trial. Wilson--McCray v. Stokes, 2003 WL 22901569, at *6. Before these cross-claims could be tried, Amtrak settled the personal injury actions pending in federal court.

¶ 12 On July 1, 2009, the circuit court granted summary judgment in favor of Birmingham Steel and against Amtrak and the Dowe plaintiffs. The circuit court held that: Stokes was not acting as Birmingham Steel's agent at the time of the accident; the plaintiffs failed to establish a claim for negligent entrustment because they failed to show that Birmingham Steel had a duty to prevent an allegedly sleep-deprived Stokes from driving out of the steel mill with the load of steel; and the transportation of the oversized load of steel did not create a "peculiar risk" of harm to others such that Stokes' status as an independent contractor should be ignored.

¶ 13 However, the circuit court denied that portion of Birmingham Steel's motion for summary judgment premised on the doctrines of res judicata and collateral estoppel. The circuit court's resolution of Birmingham Steel's motion for summary judgment left remaining Amtrak's claims against Melco and Stokes.

¶ 14 Amtrak filed a timely notice of appeal pursuant to Illinois Supreme Court Rule 304(a) (Ill. S.Ct. R. 304(a) (eff. Jan. 1, 2006)), after the circuit court entered an order finding that there was no just reason to delay enforcement or appeal of its ruling granting summary judgment in favor of Birmingham Steel. The Dowe plaintiffs' notice of appeal and Birmingham Steel's notice of cross-appeal were timely filed pursuant to Illinois Supreme Court Rules 301 and 303(a)(3). Ill. S.Ct. R. 301 (eff. Feb. 1, 1994); R. 303(a) (eff. June 4, 2008). These appeals were consolidated for our review. The following issues are presented on appeal.

ΒΆ 15 Birmingham Steel argues that the notice of appeal filed by Debra Dowe on behalf of the Dowe plaintiffs was only sufficient to confer appellate jurisdiction over Debra Dowe, as the administrator of the estate of Sheena Dowe, deceased, and was insufficient to confer jurisdiction over the other Dowe plaintiffs. The steel company further contends that the circuit court erred in denying that ...


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