2025 IL App (1st) 230797
FIFTH DIVISION March 14, 2025
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT
No. 1-23-0797
SHEARAL COLE, as Special Administrator of the Estate of ) Felon Nicole Smith, Deceased, ) ) Plaintiff-Appellant, ) Appeal from the ) Circuit Court of v. ) Cook County. ) THE CHICAGO TRANSIT AUTHORITY; PHILIP ) HAMILTON, Individually and as Employee/Agent of the ) No. 2019 L 008880 Chicago Transit Authority; AGB INVESTIGATIVE ) SERVICES, INC.; and FABEOUS DOWD, Individually and ) as Employee/Agent of AGB Investigative Services, Inc., and ) Honorable Agent of the Chicago Transit Authority, ) Scott D. McKenna, ) Judge Presiding. Defendants, ) ) (Chicago Transit Authority and Philip Hamilton, Defendants- ) Appellees). )
PRESIDING JUSTICE MIKVA delivered the judgment of the court, with opinion. Justices Oden Johnson and Mitchell concurred in the judgment and opinion.
OPINION
¶1 Plaintiff Shearal Cole, as special administrator of the estate of his deceased wife, Felon
Nicole Smith, appeals from the judgment of the circuit court in this wrongful death and survival
action. The circuit court granted summary judgment in favor of the Chicago Transit Authority
(CTA) and its conductor, Philip Hamilton, concluding that no duty of ordinary care was owed to No. 1-23-0797
a trespasser on its railroad tracks, there was no evidence to support a claim that Mr. Hamilton was
willful and wanton, and the CTA was neither liable for negligently hiring or training its contracted
security guard nor vicariously liable for the guard’s actions. For the following reasons, we affirm.
¶2 I. BACKGROUND
¶3 On August 12, 2019, Mr. Cole brought this wrongful death and survival action, on behalf
of his deceased wife’s estate, against the CTA, AGB Investigative Services, Inc. (AGB), and both
defendants’ “unknown employees.” Mr. Cole alleged that on the afternoon of June 27, 2019, Ms.
Smith dropped her cell phone onto the tracks from the platform at the 69th Street Red Line station
and was struck by the northbound train after jumping down from the platform to retrieve it. Mr.
Cole alleged that the CTA’s train conductor was negligent for failing to maintain a proper lookout,
for allowing his attention to be diverted away from the tracks, and for not noticing Ms. Smith in
time to stop the train and prevent the accident. He additionally alleged that a security guard
working for AGB, who was present at the station, was negligent for failing to alert the rail operator
about Ms. Smith’s presence on the tracks, for not assisting her, and for abandoning her on the
tracks. The lawsuit also included claims of negligent hiring, retention, and training against both
the CTA and AGB.
¶4 The CTA moved to dismiss the claims against it, arguing that at the time of her death, Ms.
Smith was trespassing on the tracks and the CTA, therefore, did not owe her any duty except to
refrain from willfully and wantonly injuring her once she was discovered. The CTA also argued
that the complaint was deficient because Mr. Cole failed to plead the correct standard of care—the
duty to refrain from willful and wanton conduct—and because the security guard was an
independent contractor rather than a CTA employee.
¶5 In lieu of a response, Mr. Cole filed an amended complaint naming CTA conductor Phillip
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Hamilton and AGB canine security guard Fabeous Dowd as additional defendants and adding a
count based on Mr. Dowd’s willful and wanton conduct. The CTA’s motion to dismiss the
amended complaint was denied.
¶6 At the close of discovery, defendants moved for summary judgment. AGB and Mr. Dowd
argued that they did not owe a duty to protect Ms. Smith from her own negligent conduct and did
not proximately cause her death. The circuit court denied summary judgment for AGB and Mr.
Dowd, finding that there were triable issues of fact regarding their conduct. They are not part of
this appeal. The circuit court granted summary judgment to the CTA and Mr. Hamilton.
¶7 In their summary judgment motion, the CTA and Mr. Hamilton argued that there was no
liability based on Mr. Hamilton’s conduct because there is no duty whatsoever owed to a trespasser
encountering an open and obvious condition of peril and that the proximate cause of Ms. Smith’s
death was her own conduct. The CTA and Mr. Hamilton submitted as exhibits video-only footage
from the train cab and platform surveillance cameras, which this court has viewed, a certificate of
AGB’s good standing from the Secretary of State, and the eyewitness depositions of CTA customer
Jonathan Artis, Mr. Hamilton, and Mr. Dowd, as well as depositions of the parties’ respective
experts.
¶8 In his deposition, Mr. Hamilton acknowledged that he did not apply the emergency brake
when he saw Ms. Smith but explained that he was “in shock” and “thought that [he] did apply the
emergency brakes.” He also said, “I did the best that I could to stop that full train.” After the
accident, Mr. Hamilton received counseling and was diagnosed with post-traumatic stress disorder.
¶9 In the platform video footage, Ms. Smith is wearing an orange shirt and carrying a white
plastic bag. After dropping her phone on the tracks, she turns to speak to an unidentified man on
the platform and, together, they look down at her phone. Mr. Dowd, the security guard, begins
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walking towards them, with his dog, from the south end of the platform. At 12:38:42 p.m., Ms.
Smith lowers herself onto the tracks to retrieve her phone.
¶ 10 After recovering her phone, at 12:38:49 p.m., Ms. Smith makes a quick, unsuccessful
attempt to hoist herself back onto the platform. The unidentified man on the platform points out
an oncoming train and, seconds later, Mr. Artis, another CTA passenger who was deposed during
discovery, enters the frame and points in the same direction. Both bystanders gesture towards the
oncoming train, which is in the same direction as Mr. Dowd and a set of egress stairs at the end of
the platform. Ms. Smith, holding her cell phone and white plastic bag, begins running towards the
south end of the platform, in the direction of the approaching train, where the stairs are located.
The train strikes Ms. Smith at 12:39:01 p.m., just before she reaches the end of the platform and
18 seconds after she entered the tracks.
¶ 11 The train cab’s internal camera shows Mr. Hamilton enter the train to begin his shift at the
previous station and drive the train towards the 69th Street Station. For the first 1 minute and 15
seconds of the trip, Mr. Hamilton alternates between glancing out the train cab’s window and at
the tracks ahead. One minute and sixteen seconds into the ride, he looks out the window on his
right side, towards traffic on the expressway. Mr. Hamilton laughs and makes a hand gesture. He
returns his gaze to the tracks ahead 11 seconds later and notices Ms. Smith on the tracks. Mr.
Hamilton’s expression quickly changes, and he releases the train’s controller, which engages the
“dead man” brake. He then applies the track brake, bringing the train to a stop in 12.6 seconds.
¶ 12 In response to the motion for summary judgment, Mr. Cole argued that the CTA owed a
duty of ordinary care or, at the very least, a duty to refrain from willful and wanton conduct. He
argued that whether Mr. Hamilton had engaged in willful and wanton conduct was a question of
fact for the jury. According to Mr. Cole, there was no open and obvious danger present when Ms.
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Smith lowered herself onto the tracks because there was no oncoming train visible at that time,
and Mr. Hamilton had a duty to maintain a proper lookout.
¶ 13 Mr. Cole relied, in part, on Mr. Hamilton’s testimony that in his 13 years at the CTA, he
had encountered people on the tracks approximately 30 or 40 times and the fact that Mr.
Hamilton’s employment with the CTA was terminated after the accident. A letter dated July 17,
2019, from the CTA to Mr. Hamilton explained that he was being discharged because he violated
several internal rules and failed to attend a discharge hearing with CTA management. Specifically,
the CTA concluded that Mr. Hamilton violated a rule requiring operators to devote full attention
to the proper performance of their duties, be constantly alert for any condition which may cause
injury, and be ready to bring their trains to a safe and smooth stop. He was also found in violation
of a rule requiring operators to use the emergency brake to stop a train within the shortest possible
distance. The letter also noted that Mr. Hamilton, did not operate his train “on sight” at all times,
meaning he was unable to bring the train to a stop within half his range of vision if necessary.
¶ 14 Mr. Cole also obtained expert opinions from railroad operations consultant Colon Fulk and
collision reconstructionist Daniel Billington. Mr. Fulk testified that the accident was preventable,
noting that Mr. Hamilton violated CTA and rail industry standards by failing to maintain a proper
lookout when approaching the station. He also stated that Mr. Dowd demonstrated “a reckless and
a total disregard for the safety of Ms. Smith” by failing to assist her physically and by not using a
call box on the platform to contact the CTA’s power control.
¶ 15 Mr. Billington agreed that the accident was preventable. His preliminary accident
reconstruction report stated that “the collision would have been entirely prevented if the train
operator had maintained a proper lookout.” Mr. Billington highlighted Mr. Hamilton’s failure to
pull the master control handle down to the emergency brake position. He explained that Mr.
5 No. 1-23-0797
Hamilton used only 54% of the train’s braking ability and the emergency brake would have nearly
doubled the train’s deceleration rate. Mr. Billington relied on evidence that CTA trains are
equipped with three braking mechanisms: an electric brake (with a deceleration rate of 2.8 miles
per hour per second), a friction brake (2.5 mphps), and a track brake (1.5 mphps). The emergency
brake engages all three mechanisms at once and is the quickest way to stop a train.
¶ 16 According to Mr. Billington, Mr. Hamilton stopped the train within 327 feet or 12.6
seconds. He opined that, if the emergency brake had been used, the train would have been able to
stop within only 177.4 feet. Mr. Billington did not offer an opinion on whether using the
emergency brake, rather than the “dead man” brake, after Mr. Hamilton saw Ms. Smith would
have prevented the accident. However, he opined that had Mr. Hamilton been paying attention and
quickly engaged the emergency brake, the accident would have been avoided.
¶ 17 In reference to Mr. Cole’s claims based on Mr. Dowd’s conduct, the CTA argued in its
motion that (1) AGB was an independent contractor and not an agent, (2) there was no indication
that AGB was unfit to deliver security services when the CTA entered into its contract with AGB,
and (3) Mr. Dowd’s training, or lack thereof, was not the proximate cause of Ms. Smith’s death.
¶ 18 The CTA relied on the testimony of Mr. Dowd and two AGB officials: AGB’s owner and
CEO, John Griffin Jr., and the captain in charge of AGB’s canine guard division, Armando
Barraza. According to Mr. Griffin, AGB signed a contract with the CTA for canine guard services
on April 17, 2019. AGB partnered with International Scent Solutions (ISS) to provide canines and
training for its guards and hired Mr. Barraza to lead its new canine division.
¶ 19 Mr. Barraza testified that AGB’s human resources department selected personnel for the
canine division, ensured proper training, and managed the application process for canine handler
authorization cards. According to Mr. Barraza, on the day of the incident, Mr. Dowd was equipped
6 No. 1-23-0797
with an AGB radio that could contact his AGB supervisor but not CTA personnel.
¶ 20 In reference to claims based on Mr. Dowd’s conduct, Mr. Cole argued that there was
sufficient evidence that the CTA was negligent in hiring and training AGB and Mr. Dowd. Mr.
Cole relied on a petition for a preliminary injunction filed against the CTA in another case, the
month after AGB was hired, which alleged AGB was incapable of performing its contractual
obligations to provide security, and the fact that Mr. Dowd did not possess the required canine
handler license.
¶ 21 Mr. Cole also relied on Mr. Dowd’s deposition testimony. Mr. Dowd testified that he had
worked at AGB for three years and been assigned to provide security services at a senior citizen
home, Walmart, and concerts. He reported that this incident occurred on his second day of work
as a canine guard for AGB, before he received a canine handler authorization card. Mr. Dowd
received more than 100 hours of canine training and a one-day rail safety course provided by the
CTA in preparation for this assignment. Mr. Dowd’s examination following this training, where
he had to match photos of hand signals to their meaning, showed that he had crossed out and
rewritten answers several times. He received an overall score of 80% on this test.
¶ 22 Mr. Dowd testified that upon discovering Ms. Smith, he asked her what she was doing and
told her she could not be on the tracks. He explained that he did not physically assist Ms. Smith
because he was instructed to never let go of his dog under any circumstances. After the incident,
Mr. Dowd radioed AGB’s emergency code to his superior and filled out an incident report at their
office. He returned to his previous assignment at Walmart shortly after.
¶ 23 On April 20, 2023, the circuit court granted the CTA’s motion for summary judgment. The
court found that no duty was owed in this case because the danger of the track and train were open
and obvious. If a duty had been owed, however, it would have been to refrain from willful and
7 No. 1-23-0797
wanton misconduct. The court noted that, in his complaint, Mr. Cole used the incorrect standard,
alleging that the CTA and Mr. Hamilton were negligent rather than willful and wanton. However,
rather than dismiss the complaint or decide the motion based on that omission, the court analyzed
Mr. Cole’s claims under the willful and wanton standard. The court concluded that the evidence
failed to support any claim that Mr. Hamilton’s conduct was willful and wanton.
¶ 24 The circuit court primarily relied on footage from the train’s interior cab and the testimony
of Mr. Hamilton and Mr. Billington. The court noted that Mr. Hamilton was operating the train
below the speed limit, became distracted for 12 seconds, and applied the track brake within one
second of returning his attention to the tracks in front of him. It concluded: “The evidence
presented indicates that—at most—the conduct of Train Operator Hamilton could arguably be
negligent if the jury in fact believed, as Plaintiff argues, that Hamilton was inattentive towards the
track in front o[f] him and failed to see or react to the decedent’s presence on the track in time. As
these actions or inaction do not, and cannot, rise to the level of willful and wanton conduct, the
CTA and Hamilton could not have breached any duty owed to the decedent.”
¶ 25 The circuit court also ruled that there was insufficient evidence to support claims based on
theories of both direct and vicarious liability against the CTA for the actions of AGB or Mr. Dowd.
Because Ms. Smith was a trespasser, the only duty the CTA owed to her was “to hire AGB and
train [Mr.] Dowd while refraining from willful and wanton misconduct in the process.” The court
reasoned that any deficiencies in Mr. Dowd’s canine training could not rise to this level because
the accident did not concern the handling of his dog. Additional evidence, such as the CTA passing
Mr. Dowd on its safety course, despite evidence of confusion on his test, and Mr. Dowd’s
admission that, as the accident was unfolding, he was mainly focused on not dropping his dog’s
leash, may support a finding of negligence but not willful and wanton misconduct. The circuit
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court also ruled that there was no question of fact as to the CTA’s vicarious liability because the
CTA did not hire Mr. Dowd, pay him, or exercise control over his employment, sufficient to
establish an agency relationship with him or AGB.
¶ 26 On April 24, 2023, the circuit court made a finding, pursuant to Illinois Supreme Court
Rule 304(a) (eff. Mar. 8, 2016), that there was no reason to delay appeal of its ruling granting
summary judgment to the CTA and Mr. Hamilton. This appeal follows.
¶ 27 II. JURISDICTION
¶ 28 The circuit court entered its Rule 304(a) finding on April 24, 2023. Ms. Smith’s estate
timely filed a notice of appeal on May 3, 2024. We have jurisdiction pursuant to Illinois Supreme
Court Rule 304(a) (eff. Mar. 8, 2016), governing appeals from final judgments as to one or more
but fewer than all the parties.
¶ 29 III. ANALYSIS
¶ 30 On appeal, Mr. Cole contends that the circuit court erred in granting the CTA’s motion for
summary judgment. Specifically, he argues (1) the trial court erred in finding that the CTA and its
employee Mr. Hamilton owed no duty to someone trespassing on train tracks, (2) there is a genuine
issue of material fact as to whether Mr. Hamilton engaged in willful and wanton conduct by failing
to maintain a proper lookout of the tracks ahead and failing to engage the emergency brake once a
trespasser was discovered, (3) there is genuine issue of material fact regarding whether the CTA
is liable for negligently hiring AGB and training Mr. Dowd, and (4) the trial court erred in finding
that the CTA is not vicariously liable for the conduct of AGB.
¶ 31 Summary judgment is appropriate where, construed liberally and in favor of the nonmoving
party, “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is entitled to a
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judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2020). Summary judgment should be
denied and the issue referred to the trier of fact when reasonable individuals could draw different
inferences from the undisputed material facts or when there is a genuine dispute over a material
fact. Jackson v. TLC Associates, Inc., 185 Ill. 2d 418, 424 (1998). A defendant seeking summary
judgment bears the initial burden of production, which can be met by either presenting evidence
that disproves the plaintiff’s case or showing that the plaintiff lacks sufficient evidence to prove
an essential element of the claim. Purtill v. Hess, 111 Ill. 2d 229, 240-41 (1986); Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Once this burden is met, the plaintiff must then provide factual
support for the elements of their claim. Celotex Corp., 477 U.S. 317 at 324. Our review of a circuit
court’s grant or denial of summary judgment is de novo. Doria v. Village of Downers Grove, 397
Ill. App. 3d 752, 756 (2009).
¶ 32 A. The CTA’s Liability for Mr. Hamilton’s Conduct
¶ 33 The first question is what duty, if any, the CTA and Mr. Hamilton owed to Ms. Smith in
this situation. A legal duty refers to a relationship between the defendant and the plaintiff in which
the law mandates the defendant exercise a level of care for the plaintiff’s benefit. Choate v. Indiana
Harbor Belt R.R. Co., 2012 IL 112948, ¶ 22. Whether a duty exists is a question of law for the
court to decide. Quiroz v. Chicago Transit Authority, 2022 IL 127603, ¶ 13. Our duty analysis in
any negligence case is based generally on four factors: (1) the reasonable foreseeability of the
injury, (2) the likelihood of the injury, (3) the magnitude of the burden of guarding against the
injury, and (4) the consequences of placing that burden on the defendant. Id.
¶ 34 Whatever the standard of care, if it is violated, the CTA would be liable for Mr. Hamilton’s
actions under the theory of respondeat superior because, as the conductor of the train that struck
Ms. Smith, he was an employee or agent of the CTA acting within the scope of his employment.
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Gant v. L.U. Transport, Inc., 331 Ill. App. 3d 924, 927 (2002).
¶ 35 1. The Standard of Care Here is Willful and Wanton
¶ 36 The CTA owned the land on which this incident occurred. Normally, a landowner, and
their agents, owe a duty of reasonable care to those entering their premises. Quiroz, 2022 IL
127603, ¶ 14. However, that is not the duty owed in this case for two reasons. First, there is an
exception to this duty of reasonable care where the danger is open and obvious. Second, Ms. Smith
was a trespasser, which generally means the only duty the landowner owes is to refrain from willful
and wanton conduct. Id. ¶ 16.
¶ 37 A landowner is generally not obligated to anticipate or guard against injuries resulting from
a potentially hazardous condition that is open and obvious. Bucheleres v. Chicago Park District,
171 Ill. 2d 435, 447-48 (1996). The rationale for this limitation is that, when a danger is apparent
and easily noticeable, the likelihood of injury is considered minimal—individuals recognize and
avoid such obvious risks Id. at 448. Whether a particular danger is open and obvious may be a
question of law for the court to decide, when appropriate. Choate, 2012 IL 112948, ¶ 34.
¶ 38 Conditions are considered open and obvious when they are clear and recognizable to a
reasonable person using ordinary judgment. Deibert v. Bauer Brothers Construction Co., 141 Ill.
2d 430, 435 (1990). Our courts have long recognized that a moving train “presents a danger that
is so obvious” that even a child should be expected to appreciate it. Choate, 2012 IL 112948, ¶ 32.
¶ 39 An open and obvious danger can relieve a landowner of the duty of reasonable care, even
to an invitee. In Park v. Northeast Illinois Regional Commuter R.R. Corp., 2011 IL App (1st)
101283 and McDonald v. Northeast Illinois Regional Commuter R.R. Corp., 2013 IL App (1st)
102766-B, the decedents were struck by trains as they attempted to cross at dedicated pedestrian
crosswalks. The plaintiffs in those cases were invitees, rather than trespassers, but the courts found
11 No. 1-23-0797
that the potential for injury from an oncoming train was open and obvious and the railroads did
not owe a duty of ordinary care.
¶ 40 Here, there was no crossway and the tracks were several feet below the train platform,
which meant that Ms. Smith had to jump down to reach them. The platform area was clearly
marked and separated from the track area with blue tactile warning strips. A busy highway was
across from the tracks and the egress stairs at the end of the platform were closed with a yellow
metal gate. Additionally, trains regularly arrive only minutes apart at this station. While we agree
with Mr. Cole that the danger is not identical to situations in which passengers have gone onto the
tracks when an oncoming train was visible, there can be no question that a reasonable person
exercising ordinary perception, intelligence, and judgment would recognize the risk of jumping
from the platform area down onto these tracks even if a train was not immediately visible, since
trains come frequently and quickly into the area. We agree with the CTA and the circuit court that
the tracks constituted an open and obvious danger.
¶ 41 We disagree with the CTA, however, that an open and obvious danger means that it owed
no duty to Ms. Smith. As this court made clear in Pryor v. Chicago Transit Authority, 2022 IL
App (1st) 200895, ¶¶ 40-42, a railroad will still owe a duty to refrain from willful and wanton
conduct where the danger of the train is open and obvious. In Pryor, the decedent walked directly
off the platform and fell onto the tracks where an oncoming train struck and killed him. Before the
accident, he urinated on the platform, unsteadily walked around, and rocked back and forth. The
court found the moving train to be an open and obvious danger and held that there was no duty of
ordinary care. Id. ¶ 39. The court went on, however, to analyze separately whether the plaintiff
had sufficiently pled that the CTA had breached its duty to refrain from willful and wanton
conduct. Id. ¶¶ 41-42.
12 No. 1-23-0797
¶ 42 In addition to the fact that there was an open and obvious danger, the CTA did not owe Ms.
Smith a duty of ordinary care because Ms. Smith was a trespasser. The only duty that a landowner
typically owes to a trespasser is to refrain from willfully and wantonly injuring them. Choate, 2012
IL 112948, ¶ 25. Trespassers are owed a lesser duty because the law does not require an owner or
occupier of land to anticipate the presence of people wrongfully or unexpectedly on their land.
Corcoran v. Village of Libertyville, 73 Ill. 2d 316, 325 (1978).
¶ 43 Our supreme court reemphasized this point recently in Quiroz. In that case, the court
affirmed the dismissal of a complaint against the CTA based on a fatal accident involving a person
who was struck by a train after he trespassed into a CTA subway tunnel. The supreme court held
that because the decedent was a trespasser who had “entered an unauthorized area of the CTA’s
subway tunnel” the CTA’s only duty was to “refrain from willfully and wantonly” injuring him.
(Internal quotation marks omitted.) Quiroz, 2022 IL 127603, ¶¶ 15-16.
¶ 44 Mr. Cole argues that whether Ms. Smith was an invitee or a trespasser is a question for the
jury. He points to Eshoo v. Chicago Transit Authority, 309 Ill. App. 3d 831 (1999), where this
court held that the question of the decedent’s status at the time of injury should have been left to a
jury. This court reversed in that case because the trial court had instructed the jury that the
passenger/decedent, who was electrocuted on the third rail, remained an invitee, as a matter of law,
even after he left the platform. We found that to be clear error. Id. at 836. We also noted that there
was an absence of clear evidence as to how the decedent ended up on the third rail since none of
the witnesses saw him leave the platform. Id. at 833. Thus, the decedent’s status at the time of the
injury was disputed or “different inferences” could be drawn, although we acknowledged that the
inference that the decedent was a trespasser was “persuasive” in light of where he was discovered.
Id. at 836.
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¶ 45 In contrast, Ms. Smith’s actions at the time of her injury were not in dispute but were well
documented by the video and by the witnesses. In contrast to Eshoo, it was undisputed and
documented in this case that Ms. Smith deliberately climbed off the platform and onto the track
area, leaving no question that she had lost her status as an invitee. As we recognized in Eshoo, a
passenger lawfully on the platform has no right to “expand the scope of the invitation to include
parts of the premises where no one could reasonably argue that he or she was lawfully entitled to
be.” Id. at 836. A CTA ordinance prohibits “entering or remaining upon any track or right-of-way”
(Chicago Transit Authority Ordinance No. 16-110 (approved Sept. 14, 2016)), and such ordinances
have the force of law (70 ILCS 3605/31 (West 2018). Quiroz, 2022 IL 127603, ¶ 15.) Passengers
who enter areas that are off limits are trespassers. Our supreme court left no room for an alternative
result when, in Quiroz, it unequivocally found that an individual on the tracks, in violation of a
CTA ordinance, is a trespasser. Id.
¶ 46 Mr. Cole argues that even if Ms. Smith was a trespasser, two exceptions to these limitations
on landowner duty apply here and required the CTA to exercise ordinary care: deliberate encounter
and frequent trespasser. The facts in this case simply do not support the applicability of either of
these exceptions.
¶ 47 The deliberate encounter exception applies where the landowner has reason to expect that
an invitee will proceed to encounter an open and obvious danger because a reasonable person
would conclude that the advantages outweigh the apparent risk. See Bruns v. City of Centralia,
2014 IL 116998, ¶ 20. This exception does not apply because, as discussed above, Ms. Smith was
a trespasser and not an invitee. Even if she were an invitee, however, the risks of entering the track
area were obviously extremely high, and Mr. Cole suggests no reason that the CTA would
reasonably anticipate that invitees would ignore those risks.
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¶ 48 The frequent trespasser exception would apply only if the CTA was aware of a “constant
intrusion.” (Internal quotation marks omitted.) Vega v. Northeast Illinois Regional Commuter R.R.
Corp., 371 Ill. App. 3d 572, 578 (2007). As the court made clear in Vega, after reviewing the cases
that had applied this exception and those that had rejected it, reliance on the doctrine of “frequent
trespasser” requires evidence of “the existence of a ‘beaten’ or ‘well-worn’ path, evidence of a
constant intrusion on the railroad’s property by pedestrians who had a custom of crossing the right-
of-way or tracks and evidence that the railroad knew of and tolerated the circumstance.” Id. at 581.
There was no evidence of any of this here. Mr. Hamilton testified that he had observed trespassers
30 to 40 times over his 13 years working for the CTA, but the fact that he observed a trespasser on
average once every four months in no way suggests a “constant intrusion” on railroad property.
¶ 49 Mr. Cole also argues that Ms. Smith was owed a duty of ordinary care as a discovered
trespasser in a position of imminent peril. This articulation of a duty is set out in section 336 of the
Restatement (Second) of Torts (Restatement (Second) of Torts § 336 (1965)), which requires
reasonable care where a landowner discovers a trespasser.
¶ 50 Illinois has not adopted this section of the Restatement, and our supreme court made clear
in Quiroz that the fact that a trespasser is discovered does not change the duty of care owed. Quiroz,
2022 IL 127603, ¶ 27. As the supreme court explained, the rule for a discovered trespasser is
“indistinguishable from the rule that a landowner owes a trespasser a duty to avoid willfully or
wantonly causing injury to the trespasser once aware of his peril.” Id. ¶ 30 (citing Chicago
Terminal Transfer R.R. Co. v. Kotoski, 199 Ill. 383, 387 (1902)).
¶ 51 In sum, the only duty that the CTA and Mr. Hamilton owed Ms. Smith was to refrain from
willful and wanton conduct. The danger of an oncoming train was open and obvious, and she was
a trespasser. No exception to this limitation on landowner duty is applicable here. We consider
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next whether Mr. Hamilton’s conduct was willful and wanton.
¶ 52 2. There Was No Question of Fact as to Whether Mr. Hamilton Was Willful and Wanton
¶ 53 Mr. Cole contends that, if the standard of care in this case is willful and wanton, there is a
question of fact as to whether Mr. Hamilton and the CTA engaged in willful and wanton conduct.
We do not agree.
¶ 54 Willful and wanton conduct is not a separate tort and is sometimes referred to as aggravated
negligence. Pryor, 2022 IL App (1st) 200895, ¶ 41. “Willful and wanton conduct is found where
an act was done with actual intention or with a conscious disregard or indifference for the
consequences when the known safety of other persons was involved.” (Internal quotation marks
omitted.) Burke v. 12 Rothschild’s Liquor Mart, Inc., 148 Ill. 2d 429, 451 (1992). Willful and
wanton conduct is distinguishable from “ ‘mere inadvertence, incompetence, unskillfulness, or a
failure to take precautions to enable the actor adequately to cope with a possible or probable future
emergency.’ ” Id. at 449 (quoting Restatement (Second) of Torts § 500 cmt. g, at 590 (1965)). A
court may decide whether willful and wanton conduct is present as a matter of law when
appropriate. Pryor, 2022 IL App (1st) 200895, ¶ 41. As our supreme court made clear in Quiroz,
the failure to keep a lookout for persons on the track is simply not willful and wanton conduct.
Quiroz, 2022 IL 127603, ¶ 42.
¶ 55 Mr. Cole points to two different time periods in which he argues a finder of fact could find
willful and wanton conduct. One period is in the seconds between when Mr. Hamilton saw Ms.
Smith on the tracks and when the train hit her, and the other is in the period before that when he
drove towards the station. We conclude that there is no evidence creating an issue of fact as to
either of these time periods.
¶ 56 Looking first at the period after Mr. Hamilton saw Ms. Smith, the evidence was undisputed
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that he reacted immediately. When he discovered Ms. Smith, his expression immediately changed,
and within one second, he released the train’s controller, triggering the “dead man” brake, and
engaged the track brake, bringing the train to a complete stop within 12 seconds. Mr. Cole’s own
expert noted, “This response is faster than what we might expect to find in the case of an operator
who encounters an unanticipated path intrusion.” Mr. Hamilton cooperated with responding
emergency personnel and explained in his deposition testimony that he believed he was in shock,
thought he had used the emergency brake, and did his best to stop the train as quickly as possible.
¶ 57 Mr. Cole points to evidence that suggests that, if Mr. Hamilton had seen Ms. Smith sooner
and if he had pulled the emergency brake immediately, she might have been saved, but this does
not support his claim here. As we recognized in Pryor, where someone in Mr. Hamilton’s position
fails to take all possible measures to avoid hitting someone on the tracks, “ ‘including reducing
speed, stopping and/or blowing the horn’ ” this does not, in itself, rise to the level or willful and
wanton. Pryor, 2022 IL App (1st) 200895, ¶ 42. Mr. Hamilton’s failures in this case simply did
not rise to the level of willful and wanton conduct.
¶ 58 Mr. Cole cites cases where reckless disregard and thus willful and wanton conduct can be
inferred from a failure to rescue a decedent after the defendant learns of his or her impending
danger. See, e.g., American National Bank & Trust Co. v. City of Chicago, 192 Ill. 2d 274, 285
(2000). But these cases concern emergency medical personnel responding to summonses for
help—a context quite different than a trespasser on a railroad track. Quiroz makes clear that the
CTA and its train operators owe an extremely limited duty of care to trespassers, even after they
are discovered. Quiroz, 2022 IL 127603, ¶ ¶ 30-32. The plaintiff in that case alleged that the
decedent could have or should have been discovered because he was allegedly visible on security
camera and two trains had seen and passed him before he was struck and killed by a third. Id. ¶ 3.
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The supreme court held that the first two trains had no affirmative duty to rescue trespassers on
the tracks and the third train had no duty to maintain a lookout for trespassers on the tracks. Id.
¶ 41. The court reasoned that the CTA did not put the decedent in a position of peril. Id. ¶ 35.
Similarly, here, Ms. Smith chose to lower herself onto the tracks and place herself in a position of
peril. Neither the CTA nor its operators owed her a duty to maintain a lookout for her in this
unauthorized area or to rescue her from a position of peril that she had put herself in.
¶ 59 Mr. Cole also points to Mr. Hamilton’s conduct before Ms. Smith was discovered. One
minute and sixteen seconds into his trip, Mr. Hamilton became distracted for eleven seconds. There
is no evidence to suggest that his distraction rose beyond “mere inadvertence, incompetence, or
unskillfulness.” The tragic outcome of this case notwithstanding, the undisputed facts are that Mr.
Hamilton was driving below the speed limit and had not yet discovered Ms. Smith. A train operator
under no duty to keep a lookout for trespassers is not engaged in willful and wanton misconduct
because he becomes distracted and glances away from the tracks for a matter of seconds.
¶ 60 Mr. Cole argues that the circuit court failed to appreciate evidence—namely the CTA’s
report detailing its internal investigation—supporting a finding of willful and wanton misconduct.
Mr. Cole is correct that Mr. Hamilton was determined to have violated several CTA rules,
including ones requiring that conductors use the emergency brake in these situations and be able
to stop the train within half of their line of sight. But the CTA’s internal safety rules do not create
tort duties. See Rhodes v. Illinois Central Gulf R.R., 172 Ill. 2d 213, 233 (1996) (no legal duty to
rescue despite the company’s protocols that required assistance be administered); Blankenship v.
Peoria Park District, 269 Ill. App. 3d 416, 422 (1994) (noting that “a legal duty is normally not
established through rules *** or internal guidelines” (internal quotation marks omitted)). Mr. Cole
relies on the fact that at his deposition Mr. Hamilton characterized the investigation and reason for
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his termination as “basically negligence.” However, the correspondence from the CTA includes
no such conclusion. Rather, it simply informs Mr. Hamilton that his employment is terminated and
lists the rules he was found to have violated. Moreover, even if Mr. Hamilton had been fired for
negligence, that would not equate with willful and wanton conduct.
¶ 61 Mr. Cole also points to the opinions of his experts, in particular Mr. Fulk’s conclusion that
Mr. Hamilton’s “actions or lack thereof were reckless and a total disregard for the safety of Ms.
Smith.” But experts are not permitted to opine on legal conclusions such as whether a defendant
was “reckless.” People v. Munoz, 348 Ill. App. 3d 423, 441, (2004). Thus, neither we, nor the
circuit court, are bound by or should even consider these conclusions.
¶ 62 B. The CTA’s Liability for the Conduct of AGB and Mr. Dowd
¶ 63 1. Direct Liability for the Negligent Hiring of AGB and Training of Mr. Dowd
¶ 64 Mr. Cole argues that the circuit court erred in finding the CTA could not be held directly
liable for its hiring of AGB and training of Mr. Dowd. Illinois law recognizes a cause of action
against an employer for negligently hiring or retaining an employee who is unfit for the job and
poses a danger to others. Van Horne v. Muller, 185 Ill. 2d 299, 310 (1998).
¶ 65 Mr. Cole’s negligent hiring claim, however, fails at the outset. The gist of this claim is that
the CTA failed to hire a qualified security company or to adequately train Mr. Dowd to rescue
someone, like Ms. Smith, who was in danger of being hit by an incoming train. As discussed above,
the CTA owed no duty to rescue Ms. Smith because she was a trespasser in an unauthorized area
who put herself at risk of an open and obvious potential injury. Quiroz, 2022 IL 127603, ¶ 41. In
the absence of a duty to rescue, Mr. Cole’s claim that the CTA negligently hired or trained someone
to do that rescuing fails. Carney v. Union Pacific R.R. Co., 2016 IL 118984, ¶ 26.
¶ 66 In Rhodes, our supreme court considered whether there could be liability for negligence in
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a railroad’s failure to rescue a trespasser found in its warming house. The court held that there
could not be any liability and explained, “The only ‘relationship’ between the parties is the wholly
fortuitous circumstance of the trespasser’s unlawful presence on the premises.” Rhodes, 172 Ill.
2d at 233. The court concluded that the railroad could “not be charged with the duty to take
affirmative action to obtain aid.” Id. at 237. Similarly, in this case, the CTA had no duty to provide
security that would aid Ms. Smith. Thus, there is no basis for holding the CTA liable for negligently
hiring a company to do that or properly training the company’s employees.
¶ 67 2. Vicarious Liability for Mr. Dowd’s Conduct
¶ 68 We agree with the circuit court that the CTA could not be vicariously liable for the actions
of Mr. Dowd and AGB under a theory of respondeat superior. This claim fails because it is clear
that Mr. Dowd worked for AGB and not for the CTA. A principal is vicariously liable for the
conduct of its employees but not for that of an independent contractor who is not under its control.
Cornejo v. Dakota Lines, Inc., 2023 IL App (1st) 220633, ¶ 26.
¶ 69 AGB is a large security company with 1,300 employees across eight states. There is no
evidence that the CTA has any ownership interest in AGB, nor is AGB’s security service closely
related to the CTA’s public transportation services. AGB, not the CTA, established its canine
services division, hired its own staff, and contracted with ISS to obtain its canines. AGB
established training, operating procedures, and scheduling for its canine handlers, including their
dress code, work duties, and reporting requirements. AGB’s supervisors monitored its employees’
performance, not the CTA. Mr. Dowd was not a CTA agent or employee, and the CTA had no
potential vicarious liability for his conduct.
¶ 70 IV. CONCLUSION
¶ 71 The circuit court did not err in granting summary judgment in favor of Mr. Hamilton and
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the CTA where (1) defendants owed no duty of ordinary care to a trespasser on the tracks, (2) there
was no issue of material fact as to whether Mr. Hamilton’s actions were willful and wanton, (3) the
CTA could not be liable for failing to train security guards to rescue a trespasser in these
circumstances, and (4) the CTA was not vicariously liability for the conduct of a security guard
who was not a CTA employee.
¶ 72 For the above reasons, we affirm the circuit court’s grant of summary judgment.
¶ 73 Affirmed.
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Cole v. Chicago Transit Authority, 2025 IL App (1st) 230797
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 2019-L- 008880; the Hon. Scott D. McKenna, Judge, presiding.
Attorneys Robert Robertson, of Robertson Duric, and Jeffrey Neslund, for both of Chicago, for appellant. Appellant:
Attorneys Daniel Cummings and Robin Powers, of Rothschild, Barry & for Myers LLP, and Kent S. Ray and Irina Dmitrieva, of Chicago Appellee: Transit Authority, both of Chicago, for appellees.
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