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Gayane Zokhrabov v. Jeung-Hee Park

December 23, 2011

GAYANE ZOKHRABOV,
PLAINTIFF-APPELLANT,
v.
JEUNG-HEE PARK, SPECIAL ADMINISTRATOR OF THE ESTATE OF
HIROYUKI JOHO,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County 10 L 07584 Honorable Thomas P. Quinn, Judge Presiding

The opinion of the court was delivered by: Justice McBRIDE

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

Presiding Justice Quinn and Presiding Justice R. Gordon concurred in the judgment and opinion.

OPINION

¶ 1 Hiroyuki Joho was killed when he was struck by an Amtrak train at the Edgebrook Metra station at Lehigh and Devon Avenues in Chicago. Joho's accident occurred just before 8 a.m. on Saturday, September 13, 2008, when the 18-year-old man was crossing in a designated crosswalk from the eastside passenger platform where Metra commuter trains arrive from Chicago, to the westside passenger platform where Metra commuter trains depart toward Chicago. Joho was about five minutes early for the next scheduled Metra departure to Chicago. The sky was overcast and it was raining heavily as he proceeded west across the double set of tracks, holding an open, black umbrella over his head and a computer bag on a strap across his shoulder. The Metra station was not a destination for the Amtrak train that was traveling south at 73 miles an hour, and the engineer in the bright blue locomotive maintained speed, but sounded a whistle which triggered automatic flashing headlamps. Witnesses, nonetheless, disagreed as to whether Joho realized the train was approaching. He was smiling at the commuters standing on the southbound platform when the train hit him. A large part of his body was propelled about 100 feet onto the southbound platform where it struck 58-year-old Gayane Zokhrabov from behind, knocking her to the ground. She sustained a shoulder injury, a leg fracture, and a wrist fracture.

¶ 2 Zokhrabov sued Joho's estate in the circuit court of Cook County seeking damages on the ground that his negligence caused her injuries. She alleged he owed a duty of care to her while walking in and around the Metra station and breached that duty when he: "(a) carelessly and negligently failed to keep a proper lookout for approaching trains; (b) carelessly and negligently ran in the path of an approaching [Amtrak] train; or (c) carelessly and negligently failed to yield the right-of-way to approaching trains." Joho's mother, Jeung-Hee Park, defended her son's estate. When Zokhrabov motioned for partial summary judgment as to proximate causation, Park cross-motioned for summary judgment on the ground that her son owed no actionable duty to Zokhrabov, and the court ruled in Park's favor. Zokhrabov appeals. She contends the trial court recognized the governing principles of law, but failed to apply them correctly.

¶ 3 The entry of summary judgment is addressed de novo on appeal. Vega v. Northeast Illinois Regional Commuter R.R. Corp., 371 Ill. App. 3d 572, 577, 863 N.E.2d 733, 737 (2007). Summary judgment should be granted when the pleadings, deposition transcripts, admissions, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Vega, 371 Ill. App. 3d at 577, 863 N.E.2d at 737 (quoting 735 ILCS 5/2-1005(c) (West 2000)). To prevail on a negligence claim, a plaintiff must establish that the defendant owed a duty of care to the plaintiff, the defendant breached this duty, and the plaintiff incurred injury proximately caused by the breach. Vega, 371 Ill. App. 3d at 577, 863 N.E.2d at 737. Thus, if there is no duty to the plaintiff, the defendant cannot be found liable for negligence. Vega, 371 Ill. App. 3d at 577, 863 N.E.2d at 737; Tesar v. Anderson, 2010 WI App. 116, ¶ 5 n.7, 789 N.W.2d 351 ("No duty, no negligence. Breach, cause and damage immaterial."). The existence of a duty is a question of law, which a court may appropriately resolve in a summary judgment proceeding. Vega, 371 Ill. App. 3d at 577, 863 N.E.2d at 737.

¶ 4 It is axiomatic that pedestrians on or near active train tracks are at great risk of suffering severe, even fatal, injuries. This court recently held that the personal danger posed by stepping in front of a moving train is an open and obvious danger. Park v. Northeast Illinois Regional Commuter R.R. Corp., 2011 IL App (1st) 101283, ¶19. The law generally assumes that persons who encounter obvious, inherently dangerous conditions will take care to avoid the danger. Park, 2011 IL App (1st) 101283, ¶19. " 'The open and obvious nature of the condition itself gives caution ***; people are expected to appreciate and avoid obvious risks.' " Park, 2011 IL App. (1st) 101283, ¶17 (quoting Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 448, 665 N.E.2d 826 (1996)). When a railroad employee in charge of a moving train gives the usual and proper signals that the train is approaching, the employee is generally not required to slacken speed or stop the train absent circumstances indicating people will not or cannot get out of harm's way. See Higgins v. Baltimore & Ohio R.R. Co., 16 Ill. App. 2d 227, 231, 147 N.E.2d 714 (1958) (rejecting rule that "a train must make an emergency stop every time a pedestrian is seen on or near the tracks"); Maxwell v. Illinois Central Gulf R.R., 513 So. 2d 901, 905 (Miss. 1987) (if a trespasser on the tracks is an adult and apparently in possession of his faculties, the engineer is entitled to expect the person to hear the warning signals and remove himself from danger; the speed of the train need not be slackened until circumstances indicate the person will probably not seek safety in time).

¶ 5 Numerous cases indicate that death or great bodily harm is the likely outcome of failing to exercise due care when walking on or near active train tracks. See e.g., Chiriboga v. National R. Passenger Corp., No. 08-C-7293 (N.D. Ill. Oct. 7, 2011) (pedestrian attempting to cross tracks via pedestrian crosswalk in order to meet scheduled Metra train at Edgebrook station was struck and killed by onrushing Amtrak train); Eskew v. Burlington Northern & Santa Fe Ry. Co., 2011 IL App (1st) 093450 (pedestrian attempting to cross in designated crosswalk from one passenger platform to the other at Metra's Berwyn station was struck and killed by the arriving train); McDonald v. Northeast Illinois Regional Commuter R.R. Corp., 2011 IL App (1st) 102766 (pedestrian in crosswalk at Metra's North Glenview Station was struck and killed by Metra train that was running express through the station); Graves v. Northfolk Southern Ry. Co., No. 2:09-CV-401, 2011 WL 2146757 (N.D. Ind. May 21, 2011) (pedestrian at 169th Street station in Hobart, Indiana, ran across street and one set of tracks in order to beat oncoming train, and then had to dive across second set of tracks to avoid being hit by second train); Shaffer v. CSX Transportation Co., No. 3:09-CV-2068, 2010 WL 4923098 (N.D. Ohio Nov. 29, 2010) (where one intoxicated trespasser looked over his shoulder, became aware of train, and stepped outside of tracks, but second intoxicated trespasser continued to walk inside the rails, first trespasser returned and reached out to pull his companion to safety, and both men were struck and killed); Weaver v. Conrail, Inc., No. 09-5592, 2010 WL 2773382 (E.D. Pa. July 13, 2010) (when impatient pedestrian started to cross between two cars of what seemed to be a standing train, the train lurched forward, knocked her to the ground, ran over one leg, and instantly amputated her lower leg and caused substantial soft tissue damage to her thigh and hip). See also Calhoun v. CSX Transportation, Inc., 331 S.W.3d 236 (Ky. 2011) (car driver crossing single set of tracks in Bullitt County, Kentucky, was unaware of oncoming train, train struck the vehicle's rear quarter panel, she was ejected and suffered serious injuries).

¶ 6 In addition to these cases indicating that active trains pose an open and obvious danger to pedestrians, there is an Illinois statute regarding pedestrian rights and duties which states: "No pedestrian shall enter, remain upon or traverse over a railroad grade crossing or pedestrian walkway crossing a railroad track when an audible bell or clearly visible electric or mechanical signal device is operational giving warning of the presence, approach, passage, or departure of a railroad train [or railroad track equipment]." 625 ILCS 5/11-1011(c) (West 2006). Breach of a statute enacted to protect human life or property, which is the obvious purpose of this statute, is an indication that a person has acted with less than reasonable care. Feldscher v. E&B, Inc., 95 Ill. 2d 360, 370, 447 N.E.2d 1331, 1336 (1983) (a statute enacted to protect human life or property is relevant to whether the defendant acted with less than reasonable care; however, the statute does not create a duty of care to the plaintiff where none existed or indicate the defendant's conduct proximately caused the plaintiff's injury).

¶ 7 Thus, the precedent and statute indicate that Joho failed to act with due regard for his own safety and self-preservation. The record indicates the Amtrak engineer triggered an audible warning whistle and flashing headlamps before proceeding through the Edgebrook Metra station. Even if Joho mistook the Amtrak train which was not stopping at the station for the Metra train which he intended to board, the record indicates he failed to exercise reasonable care for his own safety when he failed to look down the train tracks before attempting to cross the tracks in front of an approaching train. The question we must answer is whether Joho owed a duty of care to Zokhrabov as he approached and entered the active Edgebrook station and she stood down the tracks in the waiting area designated for intended passengers.

¶ 8 Ordinarily, a person engaging in conduct that creates risks to others has a duty to exercise reasonable care to avoid causing them physical harm. Restatement (Third) of Torts § 6, cmt. b (2010); Karas v. Strevell, 227 Ill. 2d 440, 451, 884 N.E.2d 122 (2008) ("every person owes a duty of ordinary care to guard against injuries to others"). The general rule is that one must act as would a prudent and reasonable person under the circumstances. Restatement (Third) of Torts, § 7, Reporter's Note, at 85 (2010) (and cases cited therein); Nelson v. Union Wire Rope Corp., 31

Ill. 2d 69, 86, 199 N.E.2d 769, 779 (1964) ("every person owes to all others a duty to exercise ordinary care to guard against injury which naturally flows as a reasonably probable and foreseeable consequence of his act, and *** such duty does not depend upon contract, privity of interest or the proximity of relationship, but extends to remote and unknown persons").

"One justification for imposing liability for negligent conduct that causes physical harm is corrective justice; imposing liability remedies an injustice done by the defendant to the plaintiff. An actor who permits conduct to impose a risk of physical harm on others that exceeds the burden the actor would bear in avoiding the risk impermissibly ranks personal interests ahead of others. This, in turn, violates an ...


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