Filed 5/19/08 NO. 4-07-0816
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
PHILLIP MORRIS, Administrator of the ) Appeal from Estate of ALVIN MORRIS, Deceased, ) Circuit Court of Plaintiff-Appellant, ) Coles County v. ) No. 05L86 ILLINOIS CENTRAL RAILROAD COMPANY, ) d/b/a CANADIAN NATIONAL/ILLINOIS ) CENTRAL RAILROAD; and TATE & LYLE ) Honorable GRAIN, INC., d/b/a STALEY GRAIN, INC., ) Teresa K. Righter, Defendants-Appellees ) Judge Presiding _________________________________________________________________
JUSTICE COOK delivered the opinion of the court:
Plaintiff, Phillip Morris, administrator of the estate
of Alvin Morris, appeals the trial court's order dismissing his
complaint against defendants Illinois Central Railroad Company,
which does business as Canadian National/Illinois Central Rail-
road (Illinois Central), and Tate and Lyle Grain, Inc., which
does business as Staley Grain, Inc. (Tate and Lyle). We affirm.
I. BACKGROUND
Plaintiff's original complaint alleged that on January
1, 2004, at approximately 7:06 p.m., Alvin Morris drove his
vehicle into the side of an Illinois Central train that was
stopped at a railroad crossing on tracks owned by Tate and Lyle.
Plaintiff claimed that at the time of the crash, the area was
unlit at night with overcast sky and precipitation. Plaintiff
died as a result of the injuries he sustained in the crash.
Both defendants filed motions to dismiss pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615
(West 2004)) and section 2-619 of the Code of Civil Procedure
(735 ILCS 5/2-619 (West 2004)). Plaintiff confessed those
motions by agreement with leave to file a first amended com-
plaint. Plaintiff filed his first amended complaint.
Both defendants filed motions to dismiss plaintiff's
first amended complaint. Finding the complaint failed to state a
cause of action, the trial court granted both motions without
prejudice. Plaintiff filed his second amended complaint. In
both counts that addressed the separate defendants, plaintiff
alleged that each defendant "failed to illuminate its train at
the crossing or to make [it] visible to motorists at the crossing
site given the special circumstances that existed at the time."
On August 13, 2007, the court granted both defendants' motions to
dismiss with prejudice for plaintiff's failure to state a cause
of action. This appeal followed.
II. ANALYSIS
Defendants' motions to dismiss reference both section
2-615 and 2-619 of the Code of Civil Procedure. 735 ILCS 5/2-
615, 2-619 (West 2004). When resolving motions to dismiss under
either section 2-615 or section 2-619, a trial court is required
to accept as true all well-pled factual allegations. See In re
Chicago Flood Litigation, 176 Ill. 2d 179, 184, 680 N.E.2d 265,
268 (1997). This court reviews dismissals under either section
- 2 - de novo. People ex rel. Ryan v. World Church of the Creator, 198
Ill. 2d 115, 120, 760 N.E.2d 953, 956 (2001) (section 2-615
motion to dismiss); DeLuna v. Burciaga, 223 Ill. 2d 49, 59, 857
N.E.2d 229, 236 (2006) (section 2-619 motion to dismiss).
Illinois courts follow the "longstanding rule that a
train stopped at a crossing is generally held to be adequate
notice and warning of its presence to any traveler who is in
exercise of ordinary care for his own safety, and the railroad is
under no duty to give additional signs, signals[,] or warnings."
Dunn v. Baltimore & Ohio R.R. Co., 127 Ill. 2d 350, 357, 537
N.E.2d 738, 741 (1989). Only when "special circumstances" are
present will the railroad have an added duty to further warn.
Dunn, 127 Ill. 2d at 357, 537 N.E.2d at 741.
According to the Supreme Court of Illinois, "special
circumstances" are not clearly defined but courts have recognized
"a blinding snowstorm" and "malfunctioning warning lights which
erroneously indicated that the crossing was clear" as "special
circumstances." Dunn, 127 Ill. 2d at 357, 537 N.E.2d at 741.
Citing Bachman v. Illinois Central R.R. Co., 132 Ill. App. 2d
277, 268 N.E.2d 42 (1971), the Supreme Court of Illinois went on
to state that "it has been held that darkness, heavy fog[,] and
poor visibility do not constitute special circumstances." Dunn,
127 Ill. 2d at 357, 537 N.E.2d at 741. Also in Dunn, the court
determined that the following circumstances did not constitute
- 3 - "special circumstances": (1) darkness, (2) the presence of
vehicular traffic at the crossing, (3) the absence of lighting at
the crossing, (4) the grade of the crossing, and (5) unnecessary
distractions in the vicinity of the crossing. Dunn, 127 Ill. 2d
at 360-61, 537 N.E.2d at 742. More recently, in Malcome v.
Toledo, Peoria & Western Ry. Corp., 349 Ill. App. 3d 1005, 1007,
811 N.E.2d 1199, 1202 (2004), this court held that the presence
of a flatcar across the tracks on a dark night did not establish
special circumstances.
Plaintiff claims that the circumstances he alleges
constitute special circumstances despite the cases cited above.
The circumstances plaintiff alleged essentially were darkness, an
unlit crossing, and a sky that was heavily overcast with fog and
rain.
Plaintiff acknowledges that the Illinois Supreme Court
stated that darkness and heavy fog did not constitute special
circumstances but argues that the court only came to that conclu-
sion because it incorrectly interpreted the holding in Bachman.
Bachman was decided before Alvis v. Ribar, 85 Ill. 2d 1, 421
N.E.2d 886 (1981), held that Illinois would apply comparative
negligence instead of the common-law doctrine of contributory
negligence. According to plaintiff, in Bachman the court merely
held that the trial court was correct in finding that the evi-
dence established plaintiff's contributory negligence. The
- 4 - Bachman court did not reach the issue of whether plaintiff could
prove "special circumstances." For this reason, plaintiff urges
this court to ignore the supreme court's statement in Dunn that
darkness, heavy fog, and poor visibility do not constitute
Even if we were to agree with plaintiff that the
Illinois Supreme Court misinterpreted the technical holding of
Bachman, we cannot agree that plaintiff's complaint sets forth
special circumstances that would give rise to a duty in defen-
dants to provide further warning. Plaintiff asserts that dark-
ness and an overcast sky constitute special circumstances and a
jury should decide whether his assertions should be accepted.
The question, though, is whether plaintiff alleged a duty on
defendants' part. Malcome, 349 Ill. App. 3d at 1007, 811 N.E.2d
at 1202 (our supreme court has held that the stopped-train rule
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Filed 5/19/08 NO. 4-07-0816
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
PHILLIP MORRIS, Administrator of the ) Appeal from Estate of ALVIN MORRIS, Deceased, ) Circuit Court of Plaintiff-Appellant, ) Coles County v. ) No. 05L86 ILLINOIS CENTRAL RAILROAD COMPANY, ) d/b/a CANADIAN NATIONAL/ILLINOIS ) CENTRAL RAILROAD; and TATE & LYLE ) Honorable GRAIN, INC., d/b/a STALEY GRAIN, INC., ) Teresa K. Righter, Defendants-Appellees ) Judge Presiding _________________________________________________________________
JUSTICE COOK delivered the opinion of the court:
Plaintiff, Phillip Morris, administrator of the estate
of Alvin Morris, appeals the trial court's order dismissing his
complaint against defendants Illinois Central Railroad Company,
which does business as Canadian National/Illinois Central Rail-
road (Illinois Central), and Tate and Lyle Grain, Inc., which
does business as Staley Grain, Inc. (Tate and Lyle). We affirm.
I. BACKGROUND
Plaintiff's original complaint alleged that on January
1, 2004, at approximately 7:06 p.m., Alvin Morris drove his
vehicle into the side of an Illinois Central train that was
stopped at a railroad crossing on tracks owned by Tate and Lyle.
Plaintiff claimed that at the time of the crash, the area was
unlit at night with overcast sky and precipitation. Plaintiff
died as a result of the injuries he sustained in the crash.
Both defendants filed motions to dismiss pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615
(West 2004)) and section 2-619 of the Code of Civil Procedure
(735 ILCS 5/2-619 (West 2004)). Plaintiff confessed those
motions by agreement with leave to file a first amended com-
plaint. Plaintiff filed his first amended complaint.
Both defendants filed motions to dismiss plaintiff's
first amended complaint. Finding the complaint failed to state a
cause of action, the trial court granted both motions without
prejudice. Plaintiff filed his second amended complaint. In
both counts that addressed the separate defendants, plaintiff
alleged that each defendant "failed to illuminate its train at
the crossing or to make [it] visible to motorists at the crossing
site given the special circumstances that existed at the time."
On August 13, 2007, the court granted both defendants' motions to
dismiss with prejudice for plaintiff's failure to state a cause
of action. This appeal followed.
II. ANALYSIS
Defendants' motions to dismiss reference both section
2-615 and 2-619 of the Code of Civil Procedure. 735 ILCS 5/2-
615, 2-619 (West 2004). When resolving motions to dismiss under
either section 2-615 or section 2-619, a trial court is required
to accept as true all well-pled factual allegations. See In re
Chicago Flood Litigation, 176 Ill. 2d 179, 184, 680 N.E.2d 265,
268 (1997). This court reviews dismissals under either section
- 2 - de novo. People ex rel. Ryan v. World Church of the Creator, 198
Ill. 2d 115, 120, 760 N.E.2d 953, 956 (2001) (section 2-615
motion to dismiss); DeLuna v. Burciaga, 223 Ill. 2d 49, 59, 857
N.E.2d 229, 236 (2006) (section 2-619 motion to dismiss).
Illinois courts follow the "longstanding rule that a
train stopped at a crossing is generally held to be adequate
notice and warning of its presence to any traveler who is in
exercise of ordinary care for his own safety, and the railroad is
under no duty to give additional signs, signals[,] or warnings."
Dunn v. Baltimore & Ohio R.R. Co., 127 Ill. 2d 350, 357, 537
N.E.2d 738, 741 (1989). Only when "special circumstances" are
present will the railroad have an added duty to further warn.
Dunn, 127 Ill. 2d at 357, 537 N.E.2d at 741.
According to the Supreme Court of Illinois, "special
circumstances" are not clearly defined but courts have recognized
"a blinding snowstorm" and "malfunctioning warning lights which
erroneously indicated that the crossing was clear" as "special
circumstances." Dunn, 127 Ill. 2d at 357, 537 N.E.2d at 741.
Citing Bachman v. Illinois Central R.R. Co., 132 Ill. App. 2d
277, 268 N.E.2d 42 (1971), the Supreme Court of Illinois went on
to state that "it has been held that darkness, heavy fog[,] and
poor visibility do not constitute special circumstances." Dunn,
127 Ill. 2d at 357, 537 N.E.2d at 741. Also in Dunn, the court
determined that the following circumstances did not constitute
- 3 - "special circumstances": (1) darkness, (2) the presence of
vehicular traffic at the crossing, (3) the absence of lighting at
the crossing, (4) the grade of the crossing, and (5) unnecessary
distractions in the vicinity of the crossing. Dunn, 127 Ill. 2d
at 360-61, 537 N.E.2d at 742. More recently, in Malcome v.
Toledo, Peoria & Western Ry. Corp., 349 Ill. App. 3d 1005, 1007,
811 N.E.2d 1199, 1202 (2004), this court held that the presence
of a flatcar across the tracks on a dark night did not establish
special circumstances.
Plaintiff claims that the circumstances he alleges
constitute special circumstances despite the cases cited above.
The circumstances plaintiff alleged essentially were darkness, an
unlit crossing, and a sky that was heavily overcast with fog and
rain.
Plaintiff acknowledges that the Illinois Supreme Court
stated that darkness and heavy fog did not constitute special
circumstances but argues that the court only came to that conclu-
sion because it incorrectly interpreted the holding in Bachman.
Bachman was decided before Alvis v. Ribar, 85 Ill. 2d 1, 421
N.E.2d 886 (1981), held that Illinois would apply comparative
negligence instead of the common-law doctrine of contributory
negligence. According to plaintiff, in Bachman the court merely
held that the trial court was correct in finding that the evi-
dence established plaintiff's contributory negligence. The
- 4 - Bachman court did not reach the issue of whether plaintiff could
prove "special circumstances." For this reason, plaintiff urges
this court to ignore the supreme court's statement in Dunn that
darkness, heavy fog, and poor visibility do not constitute
Even if we were to agree with plaintiff that the
Illinois Supreme Court misinterpreted the technical holding of
Bachman, we cannot agree that plaintiff's complaint sets forth
special circumstances that would give rise to a duty in defen-
dants to provide further warning. Plaintiff asserts that dark-
ness and an overcast sky constitute special circumstances and a
jury should decide whether his assertions should be accepted.
The question, though, is whether plaintiff alleged a duty on
defendants' part. Malcome, 349 Ill. App. 3d at 1007, 811 N.E.2d
at 1202 (our supreme court has held that the stopped-train rule
is concerned with a railroad's duty). "The existence of a legal
duty is a question of law to be determined by the court." Malcom-
e, 349 Ill. App. 3d at 1006, 811 N.E.2d at 1201. As stated
above, a railroad may only have a duty to provide warnings beyond
the presence of the train on the track if the plaintiff proves
special circumstances. A combination of darkness, an overcast
sky, fog, and rain is a common occurrence during an Illinois
winter and does not give rise to special circumstances that would
require defendants provide more warning than the presence of the
- 5 - train itself provides.
Accepting as true all of plaintiff's complaint's
factual allegations, plaintiff failed to present a situation that
would except itself from the standing-car rule.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
STEIGMANN, J., concurs.
KNECHT, J., dissents.
- 6 - JUSTICE KNECHT, dissenting:
There may be long-standing reasons for favorable
treatment of railroads and the creation of the standing-car rule.
I do not know what they are or what continued vitality they have
in the twenty-first century. The citizens of Illinois would be
hard-pressed to understand the logic or public policy behind a
decision that imposes a duty of reasonable care on a merchant
regarding a post and a customer door (Ward v. Kmart Corp., 136
Ill. 2d 132, 554 N.E.2d 223 (1990)) but not on a railroad for
failure to illuminate a stopped train at a crossing (Dunn v.
Baltimore & Ohio R.R. Co., 127 Ill. 2d 350, 537 N.E.2d 738
(1989)).
A customer can be distracted or momentarily forgetful
while carrying a large, bulky item and then collide with a post
known or obvious to him or her. An automobile driver can be
distracted or misled or confused on a dark Midwestern night
heavily overcast with fog and rain and drive into the side of a
stopped or slowly moving train.
A duty should be imposed here. It is not unduly
burdensome. If there is a special-circumstances exception, the
presence of special circumstances is a question properly left to
the trier of fact just as in Ward.
- 6 -